#### Davidson v. Beard,

From Rowan.

A. mortgaged certain slaves to B. and retained possession of them. After the execution of the mortgage, A. contracted a debt with C. who sued him, recovered judgment and had his execution levied on the slaves in A5s posses jen. C- at the time the debt to him v.'i's contracted, had no knowledge of the mortgage, but at the time of the levy, both C. and the Sheriff knew of the existence of the mortgage. At the time oí' the levy, the mortgage had not been proved and recorded, in an action by B. against the Sheriff it was held that the mortgage had efficacy from the time of registration only, and that C’s execution, binding the property from its tesl.s had priority over the mortgage.

An ordinary deed f rtho conveyance of land, passes no title until duly registered within a prescribed time, and when so registered it re-, lates back to its dale, and passes title therefrom ; but a mo.-, gaged deed, not registered within time, when registered, operates from the time of registration oiüy¡ and has no relation back to its date,

A subsequent purchaser is viewed, under the registry acts, as a ••vbie quent mortgagee, and so is any other subsequent incumbrancer.

Trespass vi et armis for taking certain negro slaves. 'The facts were as follows : George McCulloch being indebted to the Bank of Newbern, the Plaintiff became bis surety, and to indemnify him from loss, McCulloch executed to him a mortgage deed for the slaves in question ; this deed bore date 29th of May, 1818. McGui-lof : lived ‘n liov&n, and the Plaintiff in Mecklenburg*, ab *t vhiFy rnoef. d; taut from him. The mortgage was afj»’r:i£. fule transaction. McCulloch remained in possession of the slaves, and after the execution of the mortgage deed aforesaid, contracted a debt with William an.d Jesse Hargrave, who sued him and recovered judgment, and sued out their execution, which was delivered to the Defendant, the Sheriff of How an county. The slaves were taken possession of by the Plaintiff, claiming them under his mortgage before the issuing, but after the teste of the execution 3 and McCulloch, at, this time had *521failed to comply with the rules» regulations and cond;-lions of the Bank, and a loss and damage had actually been sustained by the Plaintiff, in consequence of his being surety for McCulloch. The Defendant levied the execution on the slaves in the Plaintiff’s possession, by directions of W. & .!. Margrave, who, as well as the Defendant, had notice of the mortgage at the time of the levy ; but the Hargraves bad no notice of this mortgage when their debt was contracted. The levy was made on the 15th of May, ¡821, at which time the mortgage liad not been proved and recorded. And whether the slaves were liable to be thus taken in execution, tlul mortgage deed not having been registered, but the debt to the Bank, .still remaining unpaid, was the question submitted to the Court. Verdict and judgment were rendered below for the Plaintiff* and Defendant appealed.

Hall, Judge.

By the act of 1715, Ch. 7, Sec. 7, it Ls required that all mortgages of lands, negroes, goods and chattels, which shall be first registered, shall be held to be the first mortgage, unless a prior mortgage shall be first registered, within fifty days after its date.

it was held, in 2 Hawks, 384, chat an unregistered mortgage should yield to a bill of sale, which had been registered in due time, the mortgage not having been registered until nearly two years after its date. In this case, the mortgage to the Plaintiff, was made in May, 1818, and was not registered on the 15th day oí May, 1821, when the executions in question, were levied three years after its date.

Although the section of the act just cited, declares, that when mortgages are registered in due time, they shall be good as against other mortgages, there can be no doubt but they would be good, also, against other conveyances of the same property, afterwards made, or against liens subsequently acquired $ but when they are not registered in due time, as the act requires, they mwtit *522give way to rights and liens acquired up t.o the time, at' least, when they shall ;be registered.

It would not do to puta construction on the act, so as to give a preference to unregistered mortgages at any indefinite period of time.- There is a greater necessity for the registration of mortgages, than absolute bills of sale ,• because, in the former case, property mortgaged,, most commonly remains in the possession of the mortgagor f in the latter, it is generally delivered to the purchaser.-

I, therefore; think that the rule for a new trial should be made absolute.

Henderson, Judge.

By tlie registry act, it is enacted, that no conveyance or bill of sale for land, other than mortgages,-shall be good and available in law, unless the same be registered within twelve months. By the 7th section of the same act, it is enacted, that every mortgage of lands, tenements, goods or chattels, which shall be first registered, shall be taken and held to ho the first mortgage, any former or other mortgage not before registered, notwithstanding; unless such prior mortgage be registered within fifty days after the date. And the subsequent acts of the legislature, giving further’ time for the registration of deeds and mesne conveyances, apply not to mortgages; they were left under the sole operation of the act of 1715, until the passage of the act of 1820, which does not affect this case. The to-tally different phraseology used in the' two sections of the act, requires that a different construction should be" put upon them. A deed for the conveyance of lands, that is, not mortgages, passes no title until duly registered, Within a prescribed time, but,-when-so registered, they peíate back to their date, and pass title therefrom; but in regard to mortgages, nothing is said as to their inefficiency, unless registered within a prescribed time, only, that a- registered mortgage shall be held the first mort*523-gage, unless a prior mortgage shall be registered within fifty days of its date. And, in the case of Green v. Cowan, (2 Hawks, 384,) a subsequent purchaser is viewed as a subsequent mortgagee, and so may, Í think, any other subsequent incumbrancer. A mortgage, therefore, not registered within fifty day s of its date has no relation back at all, yet it operates i'roin its registration ,* there being no law saying, unless registered within a particular time, it shall pass no title, as there is in the case of absolute deeds. An unregistered mortgage therefore, the fifty days having expired, may be considered as a mortgage without date, having efficacy from its registration only, and 1 think registration gives it efficacy from that period, not because I can find any act of the legislature expressly authorising such mortgages to be registered, but because there is no act prohibiting it. And the 7Sh section of the act before mentioned, speaks of their registration within fifty days of their date, and, of course, gives to them, when so registered, relation to that period, and principally’, because the words of the act are, that the fur,l regie'eredmovigaga shall be deemed •the first mortgage; which dearly implies that the first executed mortgage, was not then registered, for if it had been, the second mortgage could not have been the first registered mortgage; both of which requisites, to wit: that the first mortgage should not have been registered within fifty days, and that the latter should be the first .registered mortgage, must concur, otherwise the preference was not accorded to it. It is plain, from this, that She legislature contemplated the registration of mortgages, after the fifty days had expired, and gave to them a priority over mortgages then unregistered, unless such unregistered mortgage, should itself be registered within fifty days? for there it is admitted, that the spirit of the act would give a priority to the second mortgage iroin the time of its date.

The creditor Hargrave, having reduced his demand to a judgment and taken out execution, which bound the. *524property of McCulloch from its teste, (see the case of Green v. Johnson, 2 Hawks, 309,) nay more, having de-Iivered it to the Sheriff, became an incumbrancer, within the principle of the case, Cowan v. Green, (2 Hawks, 384,) and the mortgage to Davidson, being at that timo unregistered, and if registered afterwards, operating only from its registration, must be postponed to Har-grave’s prior lien. The Sheriff was,'therefore, justifiable in seizing the property to satisfy Hargrave’s debt. The rule for a new trial must be made absolute,

Tayxok, Chief-Justice, concurs.

There was another rase before the Court, between the same parties, which resembled the first, in all respects, except that Cowan, the Plaintiff in the execution, had «•edited McCulloch before tiie execution of the mortgage.

Hall, Judge.

The difference between this case and the former, is, I conceive, an unimportant one, and the opinion which Í have already delivered, is applicable to the present casé.

Henderson, Judge.

This case is, in all respects, analogous to the other case, between the same parties, decided at this term. The circumstance of Cowan’s being a creditor, before the mortgage was executed, places him in no better situation than Hargrave, who became a creditor afterwards. Both of them by reducing their demands to judgments, and taking out execution thereon. the ieste, of which over-reached all transfers made by McCulloch, and Davidson’s mortgage not being registered, must be viewed as a transfer acquiring validity from registration only; it having no relation back, not 5,cing registered within fifty days of its date, gives to each, of their claims a preference over his mortgage,

Taylor, Chief-Justice, concurred.