Benson v. Green

Blandford, Justice. The question in this case is, whether a mortgage presented to the clerk of the superior court for record in time, but not actually recorded within the time required by law, is to be considered as duly recorded so as to retain its lien. We are of the opinion that the mortgage must be actually recorded; that the mere presentation of it to the clerk, and minute made upon it by the clerk that it was filed at a certain time, is not á record of.the mortgage so as to retain the lien from its date. We think this question is settled, by our own .statutes on the subject. The code, §267, subsection 15, provides that the clerk shall “ make a minute on all conveyances or liens of the day left for record, and the day recorded, to be signed officially, which shall be evidence thereof.” The filing for record is one thing and the recording another. - That is manifest from this section of the code. It is not to be .considered recorded simply because it is filed. Section 1957 of the code postpones morgtages not recorded within the time required, to all other liens created or obtained prior to the “ actual record of the mortgage.” Under certain decisions of this court, an unrecorded mort 232 gage is postponed to judgments obtained after the mortgage is made and before it is actually recorded. This section of the code refers to the “ actual record”; and we think that means the spreading of the mortgage on the record, not the filing of it with the clerk. The court be • low having so held, the judgment in this case is affirmed.