M'Lanahan v. Reeside

The opinion of the court was delivered by Gibson, C. J. This case is not exactly like Friedly v. Hamilton, 17 Serg. & Rawle 70, in which a recorded conveyance and an unrecorded defeasance, constituting an unrecorded mortgage betwixt the parties, were postponed to a subsequent judgment. But though both have been recorded in this instance, the principle applicable to them is the same. They were recorded in the same volume, on the same day, and though it does not expressly so appear, most probably in juxta-position. But a creditor in search of a clew to the title, would necessarily stop at a conveyance absolute on the face of it, and referring to nothing beyond it. He would have no reason to suspect that further search would lead to a defeasance of which, not lying in the channel of the title, he would not, though actually recorded, be bound to take notice; as was held in Woods v. Farmere, 7 Watts 385; for a purchaser of a regular chain of title is not bound to notice a thing which is not ostensibly attached [511] to any part of it, as in Ripple v. Ripple, 1 Rawle 886, where a charge by the will of a devisor who had purchased by articles for his son, to whom the land was conveyed by the original owner after the testator’s death, was held to require actual notice of it,-in order to affect a purchase under a judgment against the son. The difference betwixt that case and the case at bar, is that here the incumbrance is of record, and there it was not; but according to Woods v. Farmere, if the record of the incumbrance lay not in the creditor’s way, he was not bound to notice it. It is indeed of no account that the conveyance and the articles were not recorded in the book set apart for mortgages. The keeping of such a book is an arrangement to promote the convenience of the officer, by contracting the surface over which he is to search for a particular thing; and he is bound to furnish precise information, get it as he may, of every registry in his office, whether made in the right place or not. Nor is it material, on the other hand, that they were recorded in the same volume, or side by side. The creditor may have actually seen no more than the absolute conveyance, which, referring to no other deed in pari materia as a part of it, would direct him to nothing beyond it. Nor is - this merely theoretical. For what would a creditor in such a case directa search? Undoubtedly for that which is usually the consummation of all bargains and stipulations; and when the registry of it is put before him, without leading him to a suspicion of aught beside the existence of an absolute conveyance, might he not justifiably rest satisfied of the clearness of the title? By allowing his eyes to range over the adjoining pages, in this instance, they might possibly have fallen on the registry of the articles; but the legal effect of their registration would be the same, were the place of it in another part of the book, for a question of constructive notice is not to be determined by the probability of actual notice. It is of the last importance to creditors that the registry of a mortgage, by which they are to be affected, whatever the form of the transaction between the parties, should exhibit as a whole, connected and perfect in its parts. But even were the registry of these two deeds taken as such, how could it benefit the case of the defendant below, who, as a purchaser subject to his own mortgage, as he.must be deemed by force of the statute of 1830, must look, not to the purchase-money, but the premises in his own hands. The agreement subjoined to the articles, if it did any thing, turned'the conveyance into a mortgage, to secure the payment of the notes given for the purchase-money. What is “a lien,in the nature of a mortgage,” but a mortgage itself? It is hard to conceive of a lien, simply, without.a means to enforce it; yet I will not say there may not be'such a thing. But if the agreement in this case be not deemed'a defeasance of the conveyance, and both together as constituting, one instrument, then the registration is incontestibly several, and the creditor would be [512] bound to look no further than the conveyance: so that, in either aspect, the defendant below had no right to any part of the purchase-money. Judgment reversed, and a venire de novo awarded.