US SUPREME COURT DECISIONS

This action was tried at July term 1788, when, by consent. a verdict was given for the Plaintiff, for the sum of sl.687.5. with six pence costs, subject to the opinion of the Court on the following facts:

'The Plaintiff executed and acknowledged a mortgage on the 3rd day of September 1782, which was recorded on the 30th of October, 1783. The mortgaged premisses being sold by the Defendant, then Sheriff of the city and county of Philadelphia, the ballance, after deducting the sum for which the land had been sold, was paid to the mortgagee. Afterwards, to wit, on the 16th of July, 1785, the Plaintiff made an assignment of all his property for the use of all his creditors, and the assignees bring this action, in his name, to recover the money thus paid over to the mortgagee.

'If the Court shall be of opinion with the Defendant on the foregoing case, then judgment shall be entered for him; otherwise judgment to stand for the Plaintiff for the sum specified in the verdict.'

Page 1 U.S. 430, 431

The question was, whether a mortgage, not recorded within six months, is good against the mortgagor? And it was argued on the 5th of January, 1788, by Wilson and Ingersol, for the Plaintiff; and Sergeant and Bradford for the Defendant. For the Plaintiff, it was urged, that, on account of the notoriety of conveyances at common law, they were not liable to so many frauds as modern alterations in the mode of transferring property tended to introduce. To prevent these, however, several satutary statutes have been made, which, principally, have in view to protect the rights of honest creditors, and bona fide purchasors. Thus, by the act of Assembly, 1 State Laws 79. it is expressly said that 'no deed, or mortgage, or defeasible deed, in the nature of mortgages, hereafter to be made, shall be good or sufficient to convey or pass any freehold or inheritance, or to grant any estate therein for life or years, unless such deed be acknowledged or proved, and recorded within six months after the date thereof, where such lands lie, as herein before directed for other deeds:' And upon the construction of this clause the present case depends. By a subsequent act of Assembly, indeed, the neglect or omission to record an absolute conveyance within six months, makes it only void against a subsequent purchasor, or mortgagee, for a valuable consideration; 1 State Laws 520. but there was abundant reason to vary the intent and form of the expression in the two cases; because, on an absolute conveyance possession accompanies the deed, which does not take place on a mere mortgage; and the object of the Legislature was, to prevent a false and delusive colour of property. Since, then, the mortgage, for want of being recorded within six months, was not sufficient to convey or pass any estate, the Plaintiff, or rather his creditors who use his name, are entitled, in this action, to recover the money back from the Defendant, that has been paid to him on account of a deed, or instrument, which the law had previously made void and nugatory. For the Defendant, it was contended, that, although the letter of the act was against him; the spirit of it, which is the true guide in the construction of laws, was in his favor. It is a general rule, that cases without the letter, if within the mischief, shall have the remedy. 4 Bac. Abr. 648. Nay, words shall sometimes be expounded against the letter, in order to maintain the intent. 19 Vin. 519. 1 Black. Com. 61. Statutes must be expounded by a consideration of the previous law, the mischief complained of, and the remedy provided. Ibid. 512. Now, by the common law, the mortgage would have been good, although not recorded; and the sole reason, for calling for a record of the deed, must be to protect subsequent purchasors, since it could be of no consequence to the mortgagor himself. The construction of this very act, has, in another respect, been contrary to the letter; for, it requires, that the deed shall not only be executed, but acknowledged and recorded; and yet the execution, without the acknowledgement, has always been held sufficiently binding on the party. But the authorities to this [1 U.S. 430, 432]

Full Text of Opinion