Dec. 1828.

#### Den ex dem. of Howel L. Ridley and William M. Sneed v. Joseph M. McGehee.

From Caswell.

It seems that a deed of trust made after the passage of the act of 1820, (Rev. ch. 1037) and before the 1st of june, 1821, need not be registered within six months.

But deeds of trust of the above date, are by that act, placed upon the footing of mortgages in respect to creditors and purchasers, and are not included within the usual acts extending the time for the registration of grants, mesne conveyances, &c.

Where a deed of trust was proved within the prescribed period, and an entry made of the probate anri order of registration, hut the fees not being paid, the Clerk informed the person who brought it, that it should not be registered, and offered it to him again.&emdash;It was held, that while the entry remained, parol evidence was not admissible to contradict it, and that the default of the Clerk in not handing it to the Register, did not affect the right of the vendee.

Ejectment for a lot in the town of Milton, tried on the last circuit before Ruffin, Judge. The lessors of the Plaintiff claimed under a deed made by one Sims to one Smith, dated the 26th day of March, 1821, in trust to indemnify them, as sureties of the vendor in an injunction bond. The deed was in common form, contained the usual power of sale, and on it was indorsed a certificate of probate and an order for its registration, dated of the July term, 1821, of Caswell County Court, and also a certificate of its registration, which was without a date.

The Defendant claimed under a Sheriff’s deed dated the 9th day of May, 1822, which was founded on a judgment obtained against Sims at July term, 1821, of Caswell County Court, from which term a fu fa. issued, was levied upon the lot, and had been followed by regular issues of venditionis, until the sale.

The Defendant then proved by the Deputy Clerk of the County Court, that he and the Clerk were both in Court when the deed to John Smith was brought in by *41 Farley, one of the attesting witnesses, for probate — that after the probate was taken, the principal Clerk asked Farley for the fees of the Clerk and Register, to which he replied, that no money had been sent by him for that purpose, and that he should not pay them — that thereupon the Clerk refused to keep the deed, and offered it to FcS'ley, who declined having any thing to do with it. That the witness, the Deputy, took tiie deed, with many others, which had been proved at the same term, and wrote on it the usual certificate of probate, and inserted in the minutes of the Court the probate and. the order of registration — that a few days after July term, 1821, the Clerk examined the deeds which had ‘ been proved at that term, for the purpose of seeing if the certificates were properly made, and of handing them to the Register — that when he found the deed in question among them, he became angry with the witness for certifying the probate, and ordered him not to give it to the Register, as the fees bad not been paid j and that accordingly, the deed was kept until the 10th of April, 1822, when the witness saw Smith, the vendee, and informed him of the facts above mentioned — upon which he paid the fees, and the deed was handed to the Register and immediately registered.

The lessors of the Plaintiff then produced and read in evidence, from the minutes of the County Court of July term, 1821, the entry of the probate of the deed, and the order for the registration thereof. The Counsel for the Defendant moved the Judge to instruct the Jury, that the lessors of the Plaintiff could not recover, because the deed of trust to Smith, being dated on the 26th March, 1821, was not registered within twelve months of its date, and that consequently, the lien created by the judgment obtained at July term, 1821, and the execution thereon, was in law preferable to it. This motion was opposed by the opposite Counsel, who contended that the deed in question, being executed before the 1st day of *42May» 1821, was not within the act of 1820, {Rev. ch. 1037). That the deed was not a mortgage within the meaning of the act of 1715, (Rev. ch. 7,) because it had j,0 provjS() for redemption — but was an absolute conveyance in fee simple, with a power of sale — and because there was no debt due to the lessors of the Plaintiff", or to Smith, but only a right in Smith, upon a contingency, to sell and raise certain money to indemnify the former, in case they should be compelled to pay any thing for Sims —that mortgages and deeds of trust, being distinguished from each other by the act of 1820, and other statutes, the deed to Smith was a conveyance of land, other than a mortgage, within the meaning of the act of 1715, and the act of 1821, (Taylor’s Revisal, ch. 1087) entitled “An act to extend the time of registration of grants, mesne conveyances, powers of attorney, bills of sale, and deeds of gift.” That the order of the County Court was conclusive that the fees on the deed were paid, and was imperative on the Clerk and Register to have the same registered, without any thing else to be done by the vendee therein — and that if the act of registration was not performed until April, 1822, it did not aifect the operation of the deed, so as to injure the rights of those claiming under it. And further, that if the registration was to be taken against the lessors of the Plaintiff, to have been made in April, 1822, only — yet that it was good and sufficient under the acts of 1715 and 1821, inasmuch as it was within two years from the passage of the latter — • and that the lien under the execution was not preferable, because by the act of 1715, twelve months from the date of the deed was allowed for its registration, and there Was no interval between the expiration of the first twelve months after its date, and the operation of the act of 1821, during which the judgment and execution under which the Defendant claimed, could create a lien on the land in dispute, because the act of 1821 was in force before the expiration of twelve months from the date of the deed.

*43His Honor being of this opinion, refused to give the instructions asked for by the Counsel of the Defendant, but gave those prayed for by the counsel for the lessors of the Plaintiff, which were excepted to, and the Jury having returned a verdict for the Plaintiff, the Defendant appealed.

Badger, for the Appellant, contended,

1st. That the deed was within the operation of the act of 1820, and it being an act to suppress fraud, that it was entitled to the most liberal construction, (19 Viner Jib. Statutes pi. 18, 27, 31, 32, 47, 86 and 151 — Cb. L. 268 6. — Do. 381 b. — .Flaw deni’s Com, 366, 464, a b.

2d. That if the deed was aided by the act of 1821, as to creditors and purchasers, it was only to give it a prospective effect — it had no relation except as to the parties.

He contended, that most manifestly the deed was not aided by the act of 1821, and insisted that if it was, the act of 1820 was rendered inoperative, as the usual biannual acts would help all deeds of trust made since the year 1820, in proof of this, be cited tfie act of 1825, (Taylor’s Eevisal, ch. 1224) and compared it with the act of 1821, showing them to be in the same words.

3d. He distinguished this case from those in which it had been held, that where a party does ail the law imposes upon him, to procure bis deed to be registerd, that the laches of the officer shall not affect his rights — and contended that the vendee Smith, was in fault, the witness who proved, the deed being his agent, and having neglected to do that which the law imposed upon the vendee, when he had his deed proved, via. to pay the fees of the officers.

Gaston, contra, contended,

that the deed was not within the operation of the act of 1820 — that before that act, and supposing it never to have passed, the title of the *44Plaintiff was clearly good. — That the act of 1820 applied only to deeds of trust, made after the first day of June, 1821, and in no sense, could the deed to Smith he within it.

He also contended, that Smith, the vendee, had done all in his power to admit the deed to registration in due time, and that the entry of the probate and the order of registration, was conclusive upon the Defendant $ he cited the cases of Scales v. Ferrell, '(3 Hawks, 18) and Doe ex dem. JIaughton v. llascoe, (Do. 21.)

Henderson, Judge.

-The deed as regards its registration within six months from its date, is not affected by the act of 1820, because it was executed before the first day of June, 1821; but it is affected by that act so far as deeds of trust are by it excepted from the general registry act, and placed, in respect to the rights of creditors and purchasers, upon the footing of mortgages, as to the time of their registration. It is therefore, together with all other deeds of trust and mortgages, not within the operation of the acts giving further time for the registration of deeds. Every principle which can apply to except a deed executed after the first of June, 1821, from the operation of those acts, applies with equal force, to deeds of trust, executed before that time, and not registered. The policy which induced the Legislature to except deeds executed before the first of June, 1821, from the operation of the act of 1820, as to the time within which they should be registered, does not apply to give them the benefit of the acts allowing further time for the registration of deeds. The act of 1820 places deeds of trust and mortgages, as regards the time in which they should be registered, as to creditors and purchasers, into a distinct class ; and although for peculiar reasons, deeds executed before the 1st of June, 1821, were excepted out of the operation of the act, yet the' exception docs not affect their classifi*45cation, and they shall not by construction, be embraced by the general words of the acts giving further time, because the mischief as to them, is in all respects similar to that of those executed after the 1st of June, 1821.

1 am inclined also to think that the fair construction of the act of 1820, is that all deeds of trust executed before the 1st of June, 1821, shall be registered within six months after that time. The time was given for the purpose of diffusing a knowledge of the law'. It could not be given for any other reason, and none can be assigned why a deed executed on the 81st of May, should have twelve months thereafter allowed for its registration, and a deed executed on the next day, tiie 1st of June, in all respects similar, except in its date, should only have six months. I would not take tin's liberty with the words of the act, could any possible motive be assigned for post-, poning its operation, but that its enactments might be known before they became a law. I express this opinion with great diffidence. But as there is another point in the case, which I think is decisive for the Plaintiff, any error into which I may have fallen in the two preceding points, cannot be prejudicial to him, and may be re-considered in other cases. The point alluded to is as follows: it appears that at July session of Caswell Court, next after the date of the deed, it was duly proved and ordered to be registered. The vendee then had done all that by lawjjg^was required to do. It then became the duty of the Clerk to deliver the deed within ten days to the Register, and it was his duty to register it. As to the vendee I must consider the ceremony as compleat, for he had done all that the law required of him. And if not done, he who has been merely a passive stranger, and who has received an injury by the non performance, must have recourse to that officer who has been to blame in the omission, not to him who has been active and followed the path pointed out by law, and has done all that was required. Such has been the language of our Courts *460n several occasions, where the party had done what the law required, and the officer who was then to act, had omitted to perform his duty. I do not think that it is even a balancing point, when the question is which of two persons is to suffer, a stranger who lias been passive, and one who has been active and done what was required of him. If in this case, the Defendant has sustained any injury from the want of actual registration, let him seek redress from the defaulting officer. It will be perceived that I have disregarded the parol evidence, that the fees due on the probate of the deed had not been paid, and that the Clerk offered to return it to the person who handed it in, and apprized him that it would not be registered unless the fees were paid. The record is at variance with this ; it states that the deed was duly proved and ordered to be registered. No parol evidence should be heard to contradict it. It would place all that we hold dear in jeopardy, when the records of our Courts can be thus contradicted. If a Clerk, upon a deed’s being handed in and proved, makes an entry on his docket to that effect, and even indorses the entry on the deed, under a belief that the fees would be immediately paid, and should find himself mistaken, upon his mentioning this to the Court, the entry would be impugned by their order. By this means, the Clerk would be protected from impositions. Having failed to do this, but having permitted the entry to remain on the record, and even indorsed on the deed, no matter what words passed, they must, in opposition to the record, be considered as mere idle talk. In fact, the evidence should not have been received, and when heard entirely disregarded.

Per Curiam. — Let the judgment be affirmed.