Parker v. Wood
PARKER et al. verʃus WOOD.
S
CIRE Facias on a mortgage of lands in Northhampton county. The caufe was tired at Eaʃton, when a verdict was taken for the Plaintiff, fubject to the opinion of the Court, on the following cafe:“ That the Defendant, Wood on the 20th of June, 1776, made and executed the mortgage deed in the record fet forth ; and, on the 5th day of July, 1776 acknowledged the fame before Peter Kuchlin, Efquire, (illegible text)holding a commiffion as one of the Judges of the Court of Common Pleas for the county of Northampton, from John Penn, Eʃquire (illegible text)Governor oƒ the Province oƒ Pennʃylvania: but he had not received any (illegible text) comiffion after the declaration of Independence, nor any notice of that declaration.
“ That the faid mortgage was afterwards, to wit, on the 3d day of November, 1770, recorded by Lewis Gordon, Efquire in the record book kept for recording deeds and mortgages in the faid county, he, that faid Lewis, at the declaration of Independence being Recorder of deeds in and for the faid county, and continuing, as fuch, to do and perform the duties of the faid office, until the faid 3d day of November, and after; but he had received no commiffion for fo doing after the 4th of July, 1776.
“That the faid mortgaged premiffes were afterwards taken in execution, fet up to fale, and fold by the Sheriff of the faid county to G.A. Baker under certain conditions, and at the time of the
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deed from the Sheriff to the faid G.A.Baker, an agreement was made relative to the premiffes in cafe the faid mortgage fhould be adjudged to be valid.
“That the Defendant, Jacob Wood, at the time of the faid purchafe made by G.A. Baker, was indebted to the faid G.A.Baker, by judgment entered in the Common Pleas of the faid county, prior to the aforefaid fale by the Sheriff, and to the Plaintiff's judgment againft the Defendant. And that G.A. Baker knew of the aid mortgage before the contracting of the faid debt to him.
“ If, upon the whole matter, the Court fhall be of opinion that the law is with the Plaintiff, then judgment to be entered for him ; otherwife, judgment to be for the Defendant as in the cafe of a nonfuit.”
The queftion was, whether a mortgage, acknowledge before a juftice of the Common Pleas, and recorded by the Recorder of the proper county, fubfequent to the declaration of Independence, was void?– the Juftice and the Recorder having no other commiffions, than thofe which they had refpectively received from the late Governor of the Province, previoufly to fuch declaration. <
The cafe was argued in January term laft, by Bradƒord for the Plaintiff and Biddle, and Ingerʃol for the Defendant.
For the Plaintiƒƒ, it was urged, that, although the ftatute of 4 and 5. W. and M. c. 20. enacts, that, unles a judgment is docqueted, it fhall not affect purchafors ; yet judgments have been held good, in a variety of cafes, contrary to the letter of the act: 2 Eq. CA. Abr. 684. And equity will fupply a defect in a mortgage.1Eq.Ca.Abr. 320. The authorities cited in Levinz v. Will and. 430. on the point of notice, are equally applicable here : And, even if the Juftice would have had no authority to take the acknowledgement of the deed, after notice of the declaration of Independence , the want of fuch notice is fufficient to juftify him. Befides, during the fame period a confiderable number of deeds were recorded, (which was proved by the Recorder of deeds for the city and county of Philadelphia) fo as to render it neceffary at leaft to apply the maxim of communis error ƒacit jus, to cafes of this defcription. Lloyd v. Taylor ant. 17. The mortgage, according to common acceptation, was duly acknowledged and recorded ; and, as the record of a mortgage could only be required to give a conftructive notice of fubfequent purchafors, the fpirit and meaning of the law is fatisfied by the actual notice which G.A. Baker had of the deed. See 2 Eq. Ca. Abr. 482.
For the Deƒendant, it was contended, that, in ʃtrict law, the acknowledgment and recording before officers whofe commiffions were expired, did not make a valid acknowledgment and recording of the mortgage ; fo that by the act of Affembly 1State Laws 79. the mortgage was abfolutely void : And that, in point oƒ equity, as the mortgage might have been recorded in the proper officer after the 14th of March, 1777, the Plaintiff had neglected a fair opportunity of giving legal notice of his lien, for want of which the Defendant had been induced to lend his money, and that,
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therefore the Plaintiff, and not the innocent purchafor, ought to fuffer ; for a judgment creditor is within the equity of the rule in favor of purchafors. 19Vin. When, indeed, it is impracticable to comply fully with a law, the compliance fhould be as near as poffible ; and, from the act paffed on the 23rd of September, 1783, the Legiflature evidently confiders act done by officers under the Provincial Government to be void ; for, at the fame time that provifion is made for enlarging the time of recording mortgages, executed between the 1ft of January, 1776, and the 18th of June, 1778, (which was the cafe of the mortgage in queftion) there is a pofitive refervation in favor of judgments, and other liens, obtained during the intermediate period, and before the record was actually made. 3State Laws 227. But this more conclufively appears from the acts of the 28th of January, 1777, and the 31ft of Auguʃt, 1778 when all officers (with fome fpecific exceptions) under the former government are totally difqualified, and confidered as having been incapable of difcharging the functions of their refpective officers. See 1State Laws. 3.137.
After the Court had held the cafe for fome days under advifement, the chief justice delivered their opinion to the following effect:
M‘KEAN, Chieƒ Juʃtice.– The decifion of the Court is, unanimoufly, in favor of the Plaintiff, and the reafons of the decifion I will briefly recapitulate.
1ft, Becaufe the Legiflature declared by an act of the 28th of January 1777, that all acts of Affembly paffed before the 14th of May, 1776, ceafed to have any obligatory operation from that day until the 10th of February, 1777. And, confequently, there was no law which required mortgages to be recorded during that period.
2dly, Becaufe the mortgage did all he could to give conftructive notice of the mortgage, by having it copied into the book, in which deeds and mortgages had been before recorded, and by the former officer ; of which too the Defendant's fubfequent judgment creditor and purchafor at the fheriff's fale, had previous notice.
3dly, Becaufe it appears from the evidence of the Recorder of deeds, that, for the city and county of Philadelphia only, there had been three hundred deeds, fifty two mortgages, and four affignments, copied in the fame manner into the books of his office, during the above mentioned period of nine months, from May 1776, to the 10th of February, 1777; and as thee is no doubt that many inftruments are in a fimilar predicament in every county of the State, the maxim of “ communis error ƒacit jus,” ftrongly applies to the prefent cafe.
And,4thly, Becaufe all tranfactions in the Land Oƒƒice, and other offices, during the interrognum, which were in themfelves fair and honeft, have uniformly been confidered as valid, for the fake of public convenience.
Judgment for the Plaintiff.