Page:United States Reports, Volume 1.djvu/449

438 

1789.

the Plaintiff, and not the innocent purchafor, ought to fuffer ; for a judgment creditor is within the equity of the rule in favor of purchafors. 19Vin. When, indeed, it is impracticable to comply fully with a law, the compliance fhould be as near as poffible ; and, from the act paffed on the 23rd of September, 1783, the Legiflature evidently confiders act done by officers under the Provincial Government to be void ; for, at the fame time that provifion is made for enlarging the time of recording mortgages, executed between the 1ft of January, 1776, and the 18th of June, 1778, (which was the cafe of the mortgage in queftion) there is a pofitive refervation in favor of judgments, and other liens, obtained during the intermediate period, and before the record was actually made. 3State Laws 227. But this more conclufively appears from the acts of the 28th of January, 1777, and the 31ft of Auguʃt, 1778 when all officers (with fome fpecific exceptions) under the former government are totally difqualified, and confidered as having been incapable of difcharging the functions of their refpective officers. See 1State Laws. 3.137.

After the Court had held the cafe for fome days under advifement, delivered their opinion to the following effect:

M‘KEAN, Chieƒ Juʃtice.– The decifion of the Court is, unanimoufly, in favor of the Plaintiff, and the reafons of the decifion I will briefly recapitulate.

1ft, Becaufe the Legiflature declared by an act of the 28th of January 1777, that all acts of Affembly paffed before the 14th of May, 1776, ceafed to have any obligatory operation from that day until the 10th of February, 1777. And, confequently, there was no law which required mortgages to be recorded during that period.

2dly, Becaufe the mortgage did all he could to give conftructive notice of the mortgage, by having it copied into the book, in which deeds and mortgages had been before recorded, and by the former officer ; of which too the Defendant's fubfequent judgment creditor and purchafor at the fheriff's fale, had previous notice.

3dly, Becaufe it appears from the evidence of the Recorder of deeds, that, for the city and county of Philadelphia only, there had been three hundred deeds, fifty two mortgages, and four affignments, copied in the fame manner into the books of his office, during the above mentioned period of nine months, from May 1776, to the 10th of February, 1777; and as thee is no doubt that many inftruments are in a fimilar predicament in every county of the State, the maxim of “ communis error ƒacit jus,” ftrongly applies to the prefent cafe.

And,4thly, Becaufe all tranfactions in the Land Oƒƒice, and other offices, during the interrognum, which were in themfelves fair and honeft, have uniformly been confidered as valid, for the fake of public convenience.

COMMON