Page:Federal Reporter, 1st Series, Volume 10.djvu/496

 484 FEDEEAL BEPOUTEK. �and we are without any decision of the supreme court to guide us in the matter. The decisions of the various circuit and district courts re- ported, in which the precise question of this case has been aiiswered, are very numerous, and as conflicting as the testimony of witnesses in a collision case. In this circuit, the rule followed by the district judge in this case, in favor of the recorded mortgage, has prevailed since 1877. It may, therefore, be set down as an open question, in the country at large, to remain so until the supreme court shall finally settle it. �The whole question seems to turn upon the effect to be given to sec- tion 4192 of the Revised Statutes of the United States, which de- clares that — �"No bili of sale, mortgage, hypothecation, or eonveyance of any vessel or part of any vessel, of the Unitecf States, shall be valid against any person other than the gi'antor or mortgagor, bis heirs and devisees, and persons hav- ing actual notice thereof, unless such bill of sale, mortgage, hypothecation, or conveyance is i-ecorded in the office of the collector of the customs where such vessel is registered or enrolled. The lien by bottomry on any vessel, created during her voyage, by a loan of money, or materials necessary to repair or enable her to prosecute a voyage, shall not, however, lose its priority, or be in any way affeeted by the provisions of this section." �The question is, does this section create a lien in favor of a mort- gage reeorded according to its provisions ? The language of the sec- tion is in the negative form. If put in the affirmative form, on the theory of its creating liens or granting rights, then the following three propositions comprise the whole substance, as far as said sec- tion declares liens or rank of liens : �(1) Bottomry liens, etc., shall not be affeeted by recordation or non-recorda- tion. �(2) A reeorded conveyance or mortgage, etc., shall be valid against all persons. �(3) An unrecorded conveyance or mortgage shall be valid against the grantor or mortgagor, his heirs and devisees, and persons having actual notice. �It ought to follow, then, that if this section gives a lien to reeorded mortgages, it gives one also, though of a limited scope, to unrecorded mortgages. And as liens created by congress are superior in rank to state liens, it follows that an unrecorded mortgage has priority over state liens. �Again, considering from the lien hypothesis, the lien given by sec- tion 4192 to a reeorded mortgage ranks the lien given by state laws to material-men. The lien given to material-men by state laws ��� �