Page:United States Reports, Volume 1.djvu/448

Rh 

1789.

deed from the Sheriff to the faid G.A.Baker, an agreement was made relative to the premiffes in cafe the faid mortgage fhould be adjudged to be valid.

“That the Defendant, Jacob Wood, at the time of the faid purchafe made by G.A. Baker, was indebted to the faid G.A.Baker,  by judgment entered in the Common Pleas of the faid county, prior to the aforefaid fale by the Sheriff, and to the Plaintiff's judgment againft the Defendant. And that G.A. Baker knew of the aid mortgage before the contracting of the faid debt to him.

“ If, upon the whole matter, the Court fhall be of opinion that the law is with the Plaintiff, then judgment to be entered for him ; otherwife, judgment to be for the Defendant as in the cafe of a nonfuit.”

The queftion was, whether a mortgage, acknowledge before a juftice of the Common Pleas, and recorded by the Recorder of the proper county, fubfequent to the declaration of Independence, was void?– the Juftice and the Recorder having no other commiffions, than thofe which they had refpectively received from the late Governor of the Province, previoufly to fuch declaration. <

The cafe was argued in January term laft, by Bradƒord for the Plaintiff and Biddle, and Ingerʃol for the Defendant.

For the Plaintiƒƒ, it was urged, that, although the ftatute of 4 and 5. W. and M. c. 20. enacts, that, unles a judgment is docqueted, it fhall not affect purchafors ; yet judgments have been held good, in a variety of cafes, contrary to the letter of the act: 2 ''Eq. CA. Abr.'' 684. And equity will fupply a defect in a mortgage.1Eq.Ca.Abr. 320. The authorities cited in ''Levinz v. Will and. '' 430. on the point of notice, are equally applicable here : And, even if the Juftice  would have had no authority to take the acknowledgement of the deed, after notice of the declaration of Independence, the want of fuch notice is fufficient to juftify him. Befides, during the fame period a confiderable number of deeds were recorded, (which was proved by the Recorder of deeds for the city and county of Philadelphia) fo as to render it neceffary at leaft to apply the maxim of communis error ƒacit jus,  to cafes of this defcription. Lloyd v. Taylor ant. 17. The mortgage, according to common acceptation, was duly acknowledged and recorded ; and, as the record of a mortgage could only be required to give a conftructive notice of fubfequent purchafors, the fpirit and meaning of the law is fatisfied by the actual notice which G.A. Baker had of the deed. See 2 ''Eq. Ca. Abr.'' 482.

For the Deƒendant, it was contended, that, in ʃtrict law,  the acknowledgment and recording before officers whofe commiffions were expired, did not make a valid acknowledgment and recording of the mortgage ; fo that by the act of Affembly 1State Laws 79. the mortgage was abfolutely void : And that, in point oƒ equity, as the mortgage might have been recorded in the proper officer after the 14th of March, 1777, the Plaintiff had neglected a fair opportunity of giving legal notice of his lien, for want of which the Defendant had been induced to lend his money, and that,  fore,