Harding v. Allen

Bryan, J., delivered the opinion of the Court. The material facts of this case lie within a narrow compass. Mrs. Eleanora L. Lee executed a deed conveying to one William A. Nixon, in fee simple, a tract of land in Prince George’s County. The covenants were that the grantor had not encumbered the property, or suffered it to he encumbered, and that she would warrant it specially and would execute such further assurances as might he requisite. The deed was executed and [398] acknowledged on the thirteenth of November, 1814, and recorded on the twenty-eighth of April, 1815. Nixon and his wife executed a deed on the seventh of January, 1815, to Ira M. Allen in fee simple. This deed Avas recorded on the eighteenth day of the same month. On the twenty-third of December, 1814, Nixon and wife executed to Mrs. Lee a mortgage of the property purchased from her to secure a balance of the* purchase money. Mrs. Lee made the affidavit to this mortgage on the tAvelfth of April, 1815, and it was recorded on the eleventh of July of the same year. Allen has filed a bill in equity for the sale of the land, admitting that his deed, though in form a conveyance in fee simple, is only a security for debts due to him by the grantor. The question is whether his deed has priority over Mrs. Lee's mortgage. There is no evidence that Allen had any notice of the mortgage to Mrs. Lee. The case must rest entirely on the provisions of the registration laws. The deed to Nixon being duly recorded, by the express provisions of the statute took effect betAveen the parties from its date. General Code, Art. 24, sec. 14; that is to say Nixon was invested with Mrs. Lee’s title from the thirteenth of November, 1814; and he conveys this title to Allen, by a deed which was also duly recorded. The mortgage to Mrs. Lee from Nixon was not recorded until after the expiration of six months from its date. It was then too late for it. to acquire the lien belonging to a mortgage recorded according to the provisions of the registration Acts. The 19th section of Article 24 of the General Code authorizes the recording of certain deeds after the expiration of six months from their date; but it expressly excludes mortgages from its operation. If a mortgage is not recorded in time, a Court of equity may order it to be recorded under the circumsances mentioned in Article [399] 16, section 23, of the General Code. Upon the principle that equity will approve an act which has been done, if upon application it would have ordered it to be done, we may consider this mortgage in the same way as if an order for its recordation had been obtained. (Decided 26th March, 1889.) This is the most favorable view which we can take of it. By the express provisions of the section mentioned, it must be postponed to the title of a purchaser after the date of the deed without notice. This was the decision of the Circuit Court, and we approve of it. It has been said thattin the decree below the complainant’s claim has been overstated. The case must go to the auditor after the sale has been made and reported. All parties in interest will have an opportunity to be heard, and to oifer their proofs. It will be the duty of the Circuit Court, when the auditor’s report is considered, to adjust correctly the amount to be paid to the complainant. The main purpose and result of the decree was to order a sale, and to determine the priorities of the parties to the suit. We would not consider it proper to reverse this decree which is correct in its leading and essential features, for a matter which will be subject to correction and readjustment in the auditor’s'report. Decree affirmed, and cause remanded.