# Levinz v. Will

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LEVINE verʃus WILL.
T
“The Plaintiff executed and acknowledged a mortgage on the 3d of September 1782, which was recorded on the 30th of October, 1783. The mortgaged premiffes being fold by the Defendant, then Sheriff of the city and county of Philadelphia, the ballance, after deducting the fum for which the land had been fold, was paid to the mortgagee. Afterwards, to wit, on the 16th of July, 1785, the Plaintiff made an affignment of all his property for the ufe of all his creditors, and the affignees brig this action, in his name, to recover the money thus paid over to the mortgagee.
“ If the Court fhall be of opinion with the Defendant on the foregoing cafe, then judgment fhall be entered for him ; otherwife judgment to ftand for the Plaintiff for the fum fpecified in the verdict.” ​
1789.
The queftion was, whether a mortgage, not recorded within fix months, is good againft the mortgagor ? And it was argued on the 5th of January 1788, by Wilʃon and Ingerʃol, for the Plaintiff and Sergeant and Bradƒord for the Defendant.
For the Plaintiƒƒ, it was urged, that, on account of the notoriety of conveyances at common law, they were not liable to fo many frauds as modern alterations in the mode of transferring property tended to introduce. To prevent thefe, however, feveral fulutary ftatutes have been made, which, principally, have in view to protect the rights of honeft creditors, and bona ƒide purchafors. Thus, by the act of Affembly, 1 State Laws 79. it is exprefsly faid that “ no deed, or mortgage, or defeafible indeed, in the nature “ of mortgages, hereafter to be made, ƒhall be good or ʃuƒƒicient
“ to convey or paʃs any ƒreebold or inheritance, or to grant any eʃtate
“ therein ƒor liƒe or years, unlefs fuch deed be acknowledged or
“ proved, and recorded within ʃix months aƒter the date thereoƒ, where
“ fuch land lie, as herein before directed for other deeds:” And upon the conftruction of this claufe the prefent cafe depends.
By a fubfequent act of Affembly, indeed, the neglect or omiffion to record an abʃolute conveyance within fix months, makes it only void againft a fubfequent purchafor, or mortgagee, for a valuable confideration ; 1State Laws 520. but there was abundant reafon to vary the intent and form of the expreffion accompanies the deed, which does not take place on a mere mortgage ; and the object of the Legiflature was, to prevent a flafe and delufive colour of property. Since, then, the mortgage, for want of being recorded within fix months, was not fufficient to convey or pafs any eftate the Plaintiff, or rather his creditors who ufe his name, are entitled, in this action, to recover the money back from the Defendant, that has been paid to him on account of a deed, or inftrument, which the law had previoufly made void and nugatory.
For the Deƒendant, it was contended, that, although the letter of the act was againft him ; the fpirit of it, which is the true guide in the conftruction of laws, was in his favor. It is general rule, that cafe without the letter, if within the mifchief, fhall have the remedy. 4Bac. Abr. 648. Nay, words fhall fometimes be expounded againft the letter, in order to maintain the intent. 19Vin. 519. 1 Black Com. 61. Statutes muft be expounded by a confideration of the previous law, the mifchief complained of, and the remedy provided. Ibid. 512. Now, by the common law, the mortgage would have been good, although not recorded ; and the fole reafon, for calling for a record of the deed, muft be to protect fubfequent purchafors, fince it could be of no confequence to the mortgagor himfelf. The conftruction of this very act, has, in another refpect, been contrary to the letter; for, it requiress, that the deed fhall not only be executed, but acknowledgment, has always been held fufficiently binding on the party. But the authorities to (illegible text) ​ point are express and numerous. By the statute of 13 Eliz.c. d. all leases by ecclesastical bodies for longer terms than three lives or twenty one years are declared “utterly void to all intents and “ purposes, any law, custom, or usage, to the contrary thereof “ notwithstanding;” and, yet, as no Legislature could mean to make a man's act void against himself, the mischief, which was the impoverishing their successors, has always been deemed sufficiently suppressed by vacating longer leases, during their lives, being not within the mischief, are not within the remedy. 1Black. Com. 87. Were it otherwise, the grantors would be allowed to do wrong to other persons. 3Bac. Abr. 390. And every principle that applies in that cafe, equally applies in the one before the Court. By the act of Assembly 1 State Laws 520. an absolute conveyance, not recovered within six months, is made void against a subsequent purchasor for a valuable consideration ; but, let us suppose, that such subsequent purchasor had notice of the previous conveyance, it is certain that he would not be protected by the act, although his cafe would come fully within the words.
Thus, also, the words of the English statute of frauds and perjuries, 29 Car. 2. c. 3. s. 1 are as strong as those in the act now under discussion ; and any agreement which is not to be performed within a year from the making thereof, is declared to be invalid both in law and equity; and, yet, if an agreement to lease for a longer term is confessed in an answer to a bill in Chancery, the Court will compel the party (though the law has expressly declared the agreement void) to execute the lease. In Cowp. 141. 2. is a case within the letter of a rule of the King's Bench, respecting warrants of attorney given by persons in custody, and, yet, as it was not within the intent, the Court refused to consider it within the remedy. But, it is clear, that, if the common law could not grant relief, a Court of Equity would ; 2Eq. Ca. Abr. 684. 1 P.Will. 279. See 4 and 5. W. and M. c. 20. And this Court exercises both jurisdictions. Against Levine, the Defendant has a specific lien in equity, though the mortgage has been void (which is denied) at common law ; and, notwithstanding the action is brought in his name for the use of others, the assignees can be in no better situation than the assignor, and are bound by the same equity. 1 Chan.Cases. 170. If, indeed, a judgment, or mortgage, had been obtained by any person before the sale of the land, and actual payment of the money to the Defendant, the preference so obtained at law, would have been conclusive against him: but, as the case stands, the Court will do justice and support right. If a father conveys to a child for love and affection, though this will not be good as a bargain and sale, it is good in equity as a covenant to stand seized to uses. 3 Eq.Ca. Abr. 482. pl. 19.—— See how far a deed operates against the maker ; 4 Burr. 2209. And the relief in cases of defective titles. Gilb. For. Rom.228. 1Eq Ca Abr. 357. 385. ​
1789.
For the Defendants, in reply, it was obferved, that the arguments of the adverfe counfel proved the imperfection of human language ; for, never were words more definite, more clear, than thofe in queftion, and yet, it is contended that they do not exprefs the intention of the Legiflature that ufed them. Two general pofitions, however, are to be difcuffed– 1ft, Whether a mortgage not recorded within fix months is abfolutely void? and, 2dly, Whether the creditors can take any advantage which the Defendant himfelf could not? But we truft that the decifion of the firft will be fo plain, that it is hardly neceffary to confider the fecond.
1. The cafes cited from 4 Bac. Abr. and 19 Vin. contain nothing but general obfervations, that where the meaning of the Legiflature is evidently different from the letter of the act, the latter fhall be conftrued agreeably to the former : and this it is not intended to deny. But we contend, that the Legiflature had in view the protection and intereft of creditors, as well as to fecure the rights of thefe ; and there is no juft reafon for giving the one clafs a fuperiority over the other, fince all the bankrupt acts, by which the prefent act may in this refpect be explained, are made to prevent a falfe appearance of property ; by which men may be induced to give credit, as well as to purchafe an eftate.
There muft be fome force given to all the words of the Legiflature, as well as to the words of a deed; and , as the words very in the two acts. 1 State Laws 79. and 520. we muft prefume there was an international variation of the meaning. The cafe from Black. Com. on the 13. of Eliz. c. 10. fhews that the ftatutes was made for the benefit only of the fucceffors of ecclefiaftical bodies; and had no refpect to the party himfelf or to his creditor. But we will meet them on the ftatute of frauds and perjuries, from which they have argued by analogy ; for, are not leafes for more than three years void ? It is faid, that if an agreement to leafe for more than three years is confeffed in an anfwer, the Chancellor, if money has been received, will compel a performance : though we do not admit this doctrine, it does not affect the prefent argument, which turns upon the validity of a mortgage actually executed. A deed of bargain and fale not inrolled, is void. 1 Danv. Abr. 696. 2 Vern. 564. The cafe from Cowp was that of an attempt to commit a fraud, which vitiates every tranfaction.
But, we ftill infift, that where the letter is plain, the Court cannot conftrue is differently. Term. Rep. 101. It would, indeed, be an affumption of a difpenfing power, if the Judges could give relief againft a pofitive act.
Property is the foundation of credit; and hence, with an admirable independence of the prejudices in favor of Engliʃh jurisprudence, one of the firft acts of this Province recognized it as fuch ; fo that by the filent operation of the law for taking real eftate in execution, the whole is, in fact, mortgaged to creditors in cafe of the death of the poffeffor. But where a mortgage is actually ​
1789.
executed 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 (illegible text) 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, the chief justice 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. ​
1789.
The Original intent, then, of the makers of the law immediately under confideration, and their principle reaʃon, feems to have been to prevent honeft purchafors, or mortgagees, of real eftate, from being deceived by prior fecret conveyances, or incumberances ; and, therefore, they have directed that fuch conveyances, or incumberances, fhall be recorded in fix months, or that they fhould not be fufficient to pais any eftate. Thus, by having recourfe to the offices of the Recorders, any one may afcertain the previous liens up in the property, which he wifhes to purchafe , or to receive as a pledge ; and this amounts to a conʃtructive notice to all men, and fupercedes the neceffity of expreʃs perfonal notice. But the Legiflature did not mean, nor have they, in fact, enacted, that exprefs perfon (illegible text) notice, where given, fhould have no effect: Neither could they entertain an idea of defeating fair and honeft bargains, which do not injure other perfons : And, if this unrecorded deed can be obligatory in no other manner, it may certainly operate as a covenant to ftand feized to ufes. 2 Wils. 72 105.
But why fhould it not be good as between John Levinz and the grantee, fince by conftruing it fo, no one elfe can be hurt, and the deed was clearly delivered for fecuring a juft debt, without any fuggeftion of fraud in the tranfaction? It is true, it would not have been valid againft a fubfequent grantee, or mortgagee, whofe deed or mortgage was regularly recorded ; but we think it is efficient againft John Levinz, and all other perfons ; that the deed, fo far, is fufficient to pafs the lands, and that, under it, the poffeffion of the premifes might have been recovered in an ejectment.
There is a great variety of cafes which concern this opinion, and fome of them have been already city by the Defendant's counfel. Thus, with refpect to church leafes, the ftatute enacts, that they may be made for twenty one years or three lives, from the date; and, it made for a longer term, that they fhall be utterly void, any law, cuftom, or ufage, to the contrary. And, yet, leafes for a longer term have always been adjudged good againft thofe who made them; becaufe, that could no wrong to the fucceffors, or to any other perfons. See 1 Eliz.c. 10. ʃect 5. 3Bac. Abr. 390. Cowp. 141. So, likewife, notice of a judgment, though not docqueted, will bind a purchafor, not withftanding the exprefs words of the ftatute of 4 and 5 Will. and Mary c. 20. ʃect. 3 by which it is declared their judgments not docquete, fhall not aƒƒect lands, as to purchafors or mortgagees. 2Eq. Abr. 684. In the cafe of a leafe made in Ireland, where there is a ftatute providing, that all leafes which were not regiftered by a certain day, fhould be void, if a fubfequent leffee had notice of the prior leafe, though not regiftered, it fhall be good againft him. 2Eq. Abr. 282. Ca 19. And, in the inftance of a furrender of a copyhold by way of mortgage, not prefented to the Court in time, the furrender will neverthelefs be valid againft voluntary difpofitions, or creditors ; and that, although by the cuftom of the manor, confirmed by act of Parliament, all fuch furrenders were to be void, if not prefented in twelve ​
1789.
months after they were made. 1Chan. Ca. 170. 2 Vern. 564. Thefe, indeed, were confidered in the nature of purchafors by defective conveyance, and the law as a penal one. See, alfo, 1 Will. 279.
Upon the whole, the Court are clearly of opinion with the Defendant, and direct judgment to be entered accordingly.
Judgment for the Defendant.