King v. . Portis

FaiRCLOTH, J. Both parties claim the land in controver.sy under the Portis G-old Mining .Company, and it is conceded .that the plaintiff has a good title unless the defendant acquired title by prior purchases. The first question is whether a mortgage of one tract of land described by metes and bounds and registered in one County only — both mortgagor and mortgagee believing the whole tract to be situated in such Count}' — is valid against creditors or purchasers, when in fact a part of said tract is situated in an adjoining County, about which the controver■sy arises. And this question turns upon the construction of • our Registration Act, Bat. Rev. ch. 8.5. At common law the most ancient and public mode of. conveying lana was by feoffment, and this was effectual to pass freehold estates only by livery of seizin. The object of this ceremony .was to give notice of the transfer to the neighboring freeholders of the County, and the feoffment and livery • of one parcel in the name of all the other parcels in the same *27 County of which the feoffor was possessed, were sufficient, because the freeholders who might be summoned on the jury in the event of a dispute about title had the same notice in regard to the several parcels. If however the lands be in different Counties it was necessary to make as many liveries as there were Counties, for the reason that if controversies should arise, there must be as many trials as there •were Counties, and a jury in one County, were no judges of -the notoriety of a fact in another. Co. Litt. SO, a. And so it was in the case of a disseiziu. If the disseizee should resort to his writ and the lands lie in different Counties, there must-be several actions and consequently several ■entries, which would not be necessary if the several parcels were in the same County. Co. Litt. 252, b. At a later period the Enrolment and Registration Acts were passed as a more convenient method of giving notoriety to transfers of real property. Deeds and mortgages are valid inter partes without registration. But our Act, § 12, expressly declares that no mortgage deed shall be valid to pass any property as against creditors or purchasers for a valuable •consideration, but from the registration thereof “ in the County where the land lieth.” It is plain, therefore, that the mortgage was inoperative beyond the limits of the County in which it was registered as against the plaintiff The defendant also claims title as purchaser at a Sheriff’s sale made in the same County in which the mortgage was registered, under issued upon a judgment docketed in the same County. We do not see how this gave him title to land in the adjoining County. Under our former system he could not have obtained title or a lien upon such land without an actual levy, and a docketed judgment ‘ shall be a lien on real property in the County where the same is docketed.” C. C. P. § 254. We are therefore of opinion that neither the mortgage nor the judgment was of any effect as against the plaintiff be *28 yond the County in which they were recorded, and we do not see how the Sheriff of one County can sell land in another except in special cases provided for by statute. The fact that the land in dispute is a part of the same tract as that purchased by the defendant and described by the same instrument by metes and bounds can make no difference. The lien acquired is limited as above stated. There is error. We are unable to enter judgment for the plaintiff in this Court because we have no description of the land sued for, nor any means of identifying the same, which probably results from the fact that there is no copy of the complaint filed with the record. Per CüRIAm. Judgment reversed.