Page:United States Reports, Volume 1.djvu/445

434 

1789.

in Pennʃylvania, the mortgagor remains in poffeffion, although the legal title is in the mortgagee ; and hence the neceffity for the precautions required by the act of Affembly. The ftatute of inrollments, 27 H.8.c.16. has the fame expreffion ; and the conftruction under that ftatute is, that deeds of bargain and fale, have no operation to transfer the eftate, ‘till they are enrolled ; but, when that is done, the deeds operate ab initio, by relation, as in the cafe of letters of adminiftration, or affignments under commiffions of bankrupts ; and that, as Lord Coke fays, by the words oƒ the ʃtatute. 2 Inʃt. 674. But the words of the act of Pennʃylvania are in the negative, that no intereft fhall pafs ; and, therefore, although the deed may have the effect of a covenant, and be, in many other refpects obligatory on the perfon of the mortgagor, it cannot convey any intereft in the land unlefs duly recorded.

2. But, to notice the ʃecond propofition, whether the affignee can derive an advantage to which the affignor would not be entitled, it is clear that the latter may  his debtor for the benefit of the former: Term.Rep. 619. And, although, generally fpeaking, the affignor an affignee muft ftand on the fame footing ; yet as in the cafe of an innocent purchafor without notice of a previous conveyance, fo in the cafe of an honeft creditor deluded by a fictitious appearance of property, there may be circumftances which place him in a more favorable point of view.

Neither, upon the whole, is there any ground to complain of hardfhip, for the Legiflature, confidering the fituation of the country, gave ample time for recording deeds, that had been neglected. by the act of the 23rd of September, 1783. 3 State Laws. 226. And the univerfal underftanding upon this fubject has been, that a mortgage is abfolutely void, to all intents and purpofes, if not recorded within the fix months prefcribed by the law.

The caufe having been for fome time under adivfement, delivered the opinion of the Court as follows:

M‘KEAN, Chieƒ Juʃtice.– The judgment in this cafe depends upon the conftruction of the acts of Affembly 1 State Laws, pages 79 and 520.

It is to be promifed, that the reaʃon and ʃenʃe of the law-makers, either expreffed in other parts of the act itfelf, or gueʃʃed by confidering the ƒrame and deʃign oƒ the whole. 11 Mod. 161. Archer v. Brokenhum. And the original intent and meaning is to be obferved. 11Rep. 73. Magdalen Colledge Caʃe. Where, indeed, the expreffions in an act of Affembly are in general terms,  they are to receive a conftruction that may be agreeable to the rules of common law, in cafes of a fimilar nature. 19 ''Vin. Abr.'' 512. The