#### *Dr. John S. Fowke and Jane Johnson*vs. *Wm. Woodward et al. Administrators of Hugh*Johnson.

1. Unrecorded marriage settlements ave not void, as between the parties, under the Act of 1823, (6 Statutes at Large, 213,) notice supplying the place of registration as to them, as well as all other persons affected by it,

2. Registration is not to be regarded as parcel of the mere execution of a marriage settlement; but as an event for setting it up, as against those to be affected by it, and for whose protection the notice implied in the recording was necessary.

3. As settlements may be confirmed, they are voidable only;

4. The true import of the Act of 1823, appears to be — that settlements shall not operate until recorded; that they may be recorded within three months; and if not recorded within that time, shall be void; They shall operate against third persons, only from the recording, or from the time they shall receive actual notice, which is equivalent to recording. They shall operate *ab initio*against the parties, because, as they must necessarily have had notice from the beginning, they are recorded $s to them* at the very execution. If a creditor, or other third party, shall not re--*234ceive actual notice, be may avoid the settlement; but as tbe parties must, of necessity, have had notice, neither of them can take advantage of the .non-registration of the instrument. *

6. The case of *Austin*vs. Mullens, (not reported) examined and shewn not to conflict with the general doctrine, that explicit notice stands for registration.

*Before*Johnston, Ch. Barnwell, *May*Term, 1842.

From the decree, the facts of the case will he fully understood.

This case relates to the validity of an unregistered marriage settlement, as between the parties, under the Act of 1823.

Johnston, Ch. On the 4th of October, 1837, in contemplation of a marriage, which shortly thereafter ensued, between the plaintiff, Mrs. Johnson, (then Miss Fowke,) •and Hugh Johnson, now deceased, (the intestate of the defendants,) two separate instruments were executed, one by Miss Fowke, the other by Mr. Johnson; with the mutual knowledge of each other, as is admitted, in which, reciting their proposed union, they severally conveyed to the plaintiff, Dr. Fowke, certain property therein described, to be held by him as trustee for the wife after the marriage, and for her “ relations by consanguinity,” after her death. These instruments were not recorded, as required in the case of marriage articles and settlements.

Upon the death of Mr. Johnson, the defendants, in the administration of his estate, laid claim tp the negroes mentioned in these instruments, and were proceeding to sell them as parcel of his estate, when the bill was filed. The bill is for an injunction to restrain the threatened sale, for a decree that the property be delivered up, and for an account of Mrs. Johnson’s distributive share of her husband’s estate. The defendants resist these claims, on the ground that the instruments aforesaid constitute a marriage settlement, and are void under the Statute of 1823, for ■want of proper registration; and they, on their part, in virtue of the marital rights of their intestate, lay claim to about $1500, now in the hands of the trustee, and which passed to him under the paper executed by Miss Fowke.

*235At the hearing, it was admitted that the only defence to the bill, was the non-registratidn of the papers mentioned. The whole case is, therefore, narrowed to the single, but difficult question, whether these papers, considered in the light of a marriage settlement or contract, are void as to Mr. Johnson, who had actual notice of them at the time of their execution, and who himself executed one of them.

I have long had a decided opinion on this subject; and although I have ground for supposing there may be a diversity of views upon it among my brethren, yet as I cannot officially know, but by an authoritative decision, that the law is otherwise than I suppose it to be, motives of personal and judicial integrity compel me to decide the point according to my own judgment.

The object of registration is too plain to be misconceived. It is avowed, some where or other, in all the statutes upon the subject, and if they were entirely silent upon that point, no person of the least experience or penetration can mistake it. It is to prevent the frauds which might be practised through concealment, and a false ostentation of property, by requiring notice to be extended to all who might be taken in.

Thus, in the Statute of 1785, (most accurately published in 4 Statutes a Large, 656,) it is said the enactment was intended to remedy “ the practice prevailing in this State, of keeping marriage contracts and deeds in the hands of those interested therein,” which it characterizes as “ a deceitful practice,” which “ hath been oftentimes injurious to creditors and others, who have been induced to credit and trust such persons, under a presumption of their being possessed of an estate subject and liable to the payment of their just debts.” Again, in the next succeeding Act of 1792, (5 Statutes at Large, 203,) which amends certain defects in the prior Act, the preamble avows the motive to be, that the former Act had failed “ to remedy the mischief thereby necessary to be provided against,” thus concurring in the statement of what that mischief was. To say nothing of the manifestation of intention, exhibited in the 1st and 2d sections of this Act of 1792, which brand all contracts, deeds and settlements, not registered in conformity with its directions, as “fraudu*236lent,” and declare them void as to those liable to be taken in by them, the discrimination made in the *proviso*of the second section, (to which I refer,) shews clearly, that notice, or want of notice, were the sole occasion of their being drawn.

The Act of 1823, (6 Statutes at Large, 213,) is inartifi-cially, and, from its provisions, seems to have been hastily, drawn. That part of it Which relates to marriage settlements, Was evidently an amendment. But it had this con-nexion, and this only, with the bill to which it was tacked, in virtue of which alone it could, in parliamentary order, have been received; that the bill was one the provisions of which required notice to be given in the case of sole traders ; which, as we learn by the preamble, was done to prevent “ frauds on the community.”

It is true, that in the clause thus added to the bill, it is simply declared that marriage settlements shall be recorded in a specified manner, and if not so recorded, shall be Void; nothing being said about fraud on unnotified creditors or purchasers. But when we consider that the legislative mind had been constantly directed to recording, as a means of obviating fraud; that this very clause related to the same means, and was parcel of a bill which, in relation to its original subject, openly declared that the notice directed by it to be given, was intended for the purpose, so uniformly contemplated, of preventing frauds arising from concealment, can we fail to see what the intention was ?

Then, I think, all the Acts are to be considered as having been passed with the same design. And if the notice, Which is the object of them, instead of being given constructively by registration, has been given actually, those who have received it have not been defrauded ■; but have received all the benefits, and been saved from all the injuries, within the contemplation of the Legislature. Settlements *must*be known to the parties, and are admitted to have been actually known here. Settlements thus circumstanced, are what the Act of 1882, (6 Cooper, 482) calls “ fair settlements.”

Let us look a little into the clause of the Act of 1823, Under which this defence is made.

“ *And be it further*enacted, *that no marriage settlement*
      *237
      *shall be*valid, *until recorded in the office of the Secretary of State, and in the office of the Register of Mesne Conveyances of the district where the parties reside.*Provided, *that the parties shall have three months to record the same, and if not recorded within three*months, *the same shall be nidi and void."*

Now, why this extent of publicity'? Was it to inform the *parties?*Was it to protect *them?*Would they *learn*more from the Register’s office, or the Secretary’s office, than they already knew'? What protection could the registration extend to *them*? To *“the community"*mentioned in the preamble, it might be very important, but to them, of no moment whatever; and is it not likely that the legislative attention was directed to the community, who needed their protection, and whom they could protect, rather than to the parties, who could and would take.care of themselves? Would it be a rational construction to hold that it was intended by this Act, that the parties were to be made instruments to extend information to themselves, by registration of what they already knew ? That is to say, that they who already had *actual*notice, were to-put the instruments on record, for the purpose of acquiring *constructive*notice of them ; in order to be enlightened, it Would seem, by an information inferior to that which they already possessed ?

From the earliest decisions to the present time, actual and *explicit notice,*such as parties must always,necessarily have, and are admitted to have had in this case, has been held, upon the plainest principles of justice, to be equivalent to recording. I think I collected most of the authorities, some years ago, in a decree pronounced by me in this court. For that reason, as well as because I presume this doctrine is indisputable, I shall abstain from an examination of these authorities here. I shall take this point for granted. As an example, however, of the decisions upon it, I mention the case of *Givers*vs. *Bradford,*(2 M. C. R. 152,) where the doctrine is extensively examined, both in authority, and in its application to analagous recording Acts, particularly to the Marriage Settlement Act of 1785, upon which the case arose. It was held there, that although the Act refer*238red to, declared, in explicit terms, that for want of the registration therein required, the deed should be deemed fraudulent as to creditors, and the property covered by it as liable, to all intents and purposes, *as if no such deed had ever been*executed, yet that notice to a creditor made it as good as to him, as if it had been duly registered.

Now, the Act of 1823 does not more effectually avoid the instrument, generally, for want of registration, than does that of 1785, as to creditors; and why shall not notice stand here, as there, in lieu of recording'? The principle is, that a statute intended to prevent fraud, shall not be so construed as to make it the instrument of fraud; and why not apply it to suppress the greatest of frauds; which it would be for a party to a contract to set it aside for the want of those requisites, solely intended to remove an ignorance which he never can experience *1*Suppose there had been issue born of this marriage, and had been provided for in the settlement; can any thing be more abhorrent to every feeling of justice, than that he who was not- deceived, and could not be deceived, as to the provision made for them, should be allowed to wrest it from those, whom by reason of it, he was allowed to bring into existence, and who never would have had an existence, but for his most solemn pledge to provide for them 1 It would be hard enough that they should, through the necessary justice of the case, be stripped of it by a creditor, wTho had received no notice; but to allow such a thing to be done by a parent, and a party to the contract, would be far worse than any deceptive practice intended to be put down by registration, and could not have been intended by the legislature.

It is said the Act of 1823 declares the unrecorded instrument null and void; and that these terms are more emphatic than those employed in the Act of 1785. But if there is any difference, the greater opprobrium appears to be cast on the unregistered paper by the Act of 1785. It not only declares it to be, as if it had never existed, (which I take to be at least as good as null and void,) but calls it fraudulent besides; and yet notice shall make it neither the one nor the other. The truth is, that the ap*239plication of the word “void,” does not make the thing spoken of void. That depends on the nature of the thing itself. If it be in its nature voidable only, a word cannot make it otherwise. That which is susceptible of confirmation, is not, and cannot be, void. Settlements may be confirmed; and this shows that they are voidable only; and that the words used must, necessarily, be construed with reference to the subject matter about which they are employed.

It is said, however, and here I acknowledge is the real difficulty of the case, that marriage settlements, under the Act of 1823, have no legal existence until they are recorded ; and that, therefore, they are, until recorded, not only void, in the sense of voidable, but absolutely and essentially, for incompleteness. Things will impress different minds variously, according to the construction of the minds themselves ; and I can well perceive how there may be a difference of judgment here. But as the registration Acts have always (in my opinion, justly,) been construed with reference to their real design, in the light of remedial Acts, I think this canon of interpretation should not be forsaken here. Notice has been held to be recording, because it is its object. Let us apply this principle to this part of the discussion. Was registration contemplated by the Legislature, as parcel of the mere execution of the paper 7 or was it contemplated as an event for setting it up, as against those to be effected by it, and for whose protection the notice implied in the recording was necessary'? If the latter view be taken, and I think it comprehends the true principles of the statute, the difficulties vanish. And I am disposed to adopt it, because registration, although a very appropriate means of extending notice, is neither a natural nor an appropriate means of executing an instrument. This is emphatically true in relation to the parties. For when they have signed and sealed it, and delivered it, what right or power have either of them of interposition afterwards to prevent its registration ? And if they have mutually lost their control over it, at the delivery of it, how can it be said that it is not then complete as to them 'l How can the registration, over which they can exercise no influence by the strongest dissent, be attributed to them as their act'? *240or, if this is a thing imaginable, can we persuade ourselves, in the face of other sensible designs exhibited by the Legislature, that by adopting this construction, we are promoting the real intention of their statute *7*I most conscientiously think not.

It has been supposed that the statute of 1832, 6 Coop. 482, betrays a legislative opinion that unrecorded settlements are, under the terms of the Act of 1823, not only void as to third persons, but void and incomplete as to the parties themselves. If this were so, the opinion would be entitled to great weight, although devoid of judicial authority. But I do not read the Act of 1832 in this light. Its preamble recites that by reason of the provisions of the Act of 1823 being generally unknown, many fair settlements have not been recorded according to its requisitions, and are therefore “ liable to be avoided, to the injury of the wife, and parties interested therein.” Now, it is manifest here, that the danger apprehended was not an avoiding of the instrument by the parties, but *against*them, and to their injury. When the settlements are called fair settlements, they are so characterized in reference to the parties, and so far from the instruments being regarded as incomplete for want of registration, and absolute nullities, they are said to be “ liable to be avoided,” that is, voidable only, even as to creditors and purchasers. Their completeness of execution is asserted in the enacting clause, even as to creditors and purchasers; and an operation is given them, even as against those persons, simply upon condition of future registration, which could not have been thought of, if it had been supposed that the instruments were still incomplete and without legal existence; for even the Legislature cannot perfect an imperfect and invalid deed, or other contract for parties, without their intervention or consent.

There is another view differing slightly from some I have advanced, and depending more on the mere letter of decisions, and which may be stated thus. As notice has been, held to stand for recording, it may be affirmed that the instruments in question in this case *were recorded,*as to the parties, from the time the parties had notice, to wit, *241from their very date, and were, therefore, in the language of the Agí, valid from that time.

The true import qf the Act of 1823, appears to he this *\*that settlements shall pot operate until recorded ;• that they may he recorded within tlwee months; and if not record? ed within that time shall he yqid. They shall operate *242against third persons only from the recording, or from the time they shall receive actual notice, which is equivalent to recording. They shall operate *ab initio*against the parties, because, as they must necessarily have had notice from the beginning, they are recorded as to them, at their very execution. If a creditor, or other third party, shall *243not receive actual notice, be may avoid the settlement; but as the parties must, of necessity, have had notice, neither of them can take advantage of the non-registration of the instrument.

*241South *Carolina*— B.armoell *District.*

This indenture, made the fqurth day of October, in the year of our Lord eighteen hundred and thirty seven, between Hugh Jghnson, planter, of the district of IJarnwell, and S.tate aforesaid, of the orre part, apd John S, Fowke, physician, of the same district and State abovementioned, trustee nominated apd appointed by him, the said Hugh Johnson, for the trusts and purposed intents hereinafter mentioned and declared. Whereas, a marriage is shortly to be made and solemnized between the aforesaid Hugh Johnsop and Miss Jane Fowke, both of the same State and district; Now then, be it known, that in order that the said Jane Fowke may be secure in a decept mainte? nance, during the life and after the death of the said JJugh Johnson, should the said Jane prove the survivor, and so lopg as she shall live, the said Hugh makes over and assigns tq the said John S. Fowke, in trpst, all his right, title, interest, apd estate in and over the following property, subject nevertheless at a}l times to the discretionary power vested in said trustee, after the death of the said Hugh Johnson, and during the life of the said Jane Fowke, tq be managed apd coptroled by the said John S. Fowkp ps shall best fulfill the design and intent of this instrumept pr deed; the gpid Hugh reserving to himself the right of disposipg pf the same by sale or otherwise after the death of the aforesaid Jane Fowke, viz: two negrq b°ys -named Peter and Geqrge: also, ope third of thp land whereon the gaid Hugh • Johnson now lives, with all its profits, privileges and immupities; likewise,, two milch cows, with their Galves, ten head of good, well grown, stock hogs, one third of all the household and kitchen furniture 5 likewise, one third of the entire provision crop, and the same of all the plantation tools: Now, thjg indenture witnesseth, that the said Hugh Johpsop, in consideration of the premises, and of ten shillings to him in hand paid by the said John S. Fowke, the receipt whereof is hereby apknowledged, hath granted, bargained and sold, aliened, remised, released, conveyed, coníprped and assured uptp the said John £!. Fowke, apd by virtue of a bargaip and sale to him thereof made. In witpess whereof I have hereunto get pry hand and geal on the Jay apd ip the yepr pbQye mentioned.

Hugh Johnson, [l. sj

Signed, sealed and delivered ) Jno. Gallaway.

in the presence of $ James Woodward.

*242South *Carolina*— Barnwell *District.*

This indenture, made the fourth day of October, in the year of our Lord eighteen hundred and thirty seven, between Jane Fowke, spinster, of the district of Barnwell and State aforesaid, of the one part, and John S. Fowke, physician, of the District and State above mentioned, of the other part, trustee nominated and appointed by her, the said Jane Fowke, for the trusts, intents and purposes hereinafter mentioned and declared. Whereas, a marriage is shortly to be made and solemnized between Hugh Johnson and the aforesaid Jane Fowke, both of the same district and State as aforementioned. Now, then, that the property of Jane Fowke may be well and truly secured to herself and heirs, by blood, she hereby makes over and assigns to the said John S. Fowke, in trust, all her right, title, interest and estate, to, and over, the following property, subject nevertheless at all times, agreeable to the discretionary power vested in said trustee, to the payment of all and every legal claim or demand against her, and to be controlled by her order, last will and testament, in the disposition thereof, viz: one negro man named Armstrong, now in the town of Columbia; two female negro slaves, Hetty, and Caroline, her mother, with the entire issue of their bodies; one white bodied cow, with black head; one white heifer, and their increase ; household and kitchen furniture; wearing apparel; which may now or hereafter be lawfully claimed by the trustee or herself; also, the sum of fifteen hundred and ten dollars, subject to such necessary drawbacks as may be required for her decent support and payment of her just debts. Now, this indenture witnesseth that the said Jane Fowke, in consideration of the premises and often shillings to her in hand paid by the said John S. Fowke, the receipt whereof is hereby acknowledged, hath granted, bargained and sold, aliened and remised, released and confirmed, conveyed and assured unto the said John S. Fowke, and by virtue of a bargain and sale to him thereof made. In witness hereof, I have hereunto set my hand and seal, on the day and year above mentioned.

Jno. S. Fowke, [l. s.] for Jane Fowke.

Signed, sealed, and delivered ? John Callaway.

in the presence of $ James Woodward.

*243I shall rest this argument here. The deeds will be set up ; and the account on the intestate’s estate is a matter of course.

It is decreed that the defendants be enjoined from selling the property as to which the bill seeks an injunction ; that they deliver said property up to the plaintiffs; and that they account before the commissioner for Mrs. Johnson’s distributive share of heríate husband’s personal estate; but as the defendants were, from the doubtfulness of the question, bound to make it, let the costs be paid out of their intestate’s estate, before distribution.

From the *foregoing*decree the defendants appeal, and now move to reverse the same, because the deeds mentioned in the pleadings, and on which the complainants rely, constitute a marriage settlement, and not having been recorded, as required by law, are null and void, as well between the parties and their representatives, as between said parties and creditors and subsequent purchasers.

Patterson, for the appellants.

*Bellinger,*contra.

*Curia, per*Johnston, Ch.

When I delivered the circuit. decree, I supposed, as I then suggested, that a majority of this Court probably entertained opinions directly opposed to my views. For, although the validity of unregistered marriage settlements, as between the parties, was expressly reserved in the case of *Baskins*vs. *Giles,*(Rice Eq. R. 322-3,) yet an opinion was there intimated by one of the Chancellors, that the point had been decided in the case of *Mullins*vs. *Austin,*contrary to my circuit decree in this case. The appeal decree in that case was not in our hands when *Baskins*vs. *Giles*was decided; nor has it. been found since, although the registry of this Court, and of the Circuit Court of Spartanburg, from which it was brought up, have both been searched, and an extensive en-quiry made in all other quarters where it was likely to be *244found; But from the pleadings and circuit decree, which llave beén found and examined, it appears that the question, Whether unrecorded settlements are or Ore not Valid between the parties, was not necessarily involved in the case. Mullins had made a post-nuptial settlement, in the year 1829, by Which he conveyed to a trustee certain slaves and other personal property, tó the use of his wife, &c. This deed Was not registered, ás required by the Act of 1823; Subsequently-, he mortgaged the same property to AUstin, to secure the price of certain property sold by Austin to him-, and payable in instalments; Some of the in-stalments having become due, and being unpaid, Austin took possession of the slaves-, and Was about to sell them, When the bill Was filed by Mullins; The bill prayed an injunction ánd a r'é-delivery of the slávbs, upon four grounds, the first of which was abandoned-. The second Was, because, ás it Was alleged, Austin had drawn Mullins into the purchase ahd into the execution of the mortgage; by Oppression and fraud. Third, because Austin had due hotióe of the Settlement Which 'conveyed the property to the trustee; and therefore Could not avoid it for Want of registration, and if valid-, the title Was; by virtue of it; Out of Mullins, When he gave the mortgage, aild belonged to the trustee for Mrs-. Mullins, who Was a party to the bill. Fourthly, that the Seizure ahd threatened sale, Under the mortgage-, WaS premature, the whole debt being not yet due. Chancellor DeSáussure overruled the second ground, as unsupported by the evidence, and the fourth as Un-sústainéd by láW. Upon the third he observed that Mulíins Wás in debt and embarrassed When he executed the settlement-, and swore out of jail sóon afterwards-, and that this Would defeat the deed. “ít \vas argued, however,” he adds, “that though the deed was not properly recorded; the necessity for its being so Was superceded by the jfáct that Austin knew of the existence Of the deed before he took the mortgage, and, therefore-,'had the notice intended by the statutes. The statutes positively require thé recording-. They make ho exception. The Equity Courts ill England have made the ekceptioh above stated; and Wé tiáVé followed them with rather more guarded steps. We require the notice of the deed to be brought *245home clearly and positively. Mere loose knowledge, alleged or believed by the witnesses, is not sufficient. In this case, Dr. Austin swears, in his answer, that he has no recollection of seeing the deed. Mr. Bomer, the register, however, testifies that Dr. Austin was in his office, and did see the deed •; and thinks he read it, or the record of it, but he cannot say which. This discrepancy in the recollection of respectable men, of known veracity, shews the danger of substituting loose verbal testimony for the statutory rule, and the necessity of using great caution, and requiring very clear proof.” He dismissed the bill. Now, it appears from this statement, that the only position taken by the plaintiff, which Was sustained by the Chancellor, was the position, that notice is a substitute for recording, provided it be clear and explicit, and established by evidence clear of doubt; and that the Chancellor was restrained from applying it to the case, becaU.se the proof Was not satisfactory to him. The appeal decree affirming the circuit decision may have expressed the opinion that the deed was void, solely for the want of registration, but such an opinion, if expressed, (of which wre are uncertain,) was evidently beyond the necessity of the case.

A portion of this Court would have overruled this decision, if such á one existed as this of *Mullins*vs. *Austin*was supposed to be; for it would havebeeii clearly opposed to the whole current of authorities. But We preferred to keep this case under advisement, for the purpose of ascertaining, if we could, what was, iil fact; decided in that case. Being now satisfied that there Was no point necessarily adjudicated in it, contrary to the general doctrine, we are free to conform to that.

I might have said the universal, instead of the general doctriné'. There is no case in which explicit notice has not stood for registration. Even in *Baskins*vs. *Giles,*where the President of this Court questioned the applica* bility of the doctrine to the Act of 1823, an exception to the title (or letter) of the Act Was recognized, and the decision made to turn on it; by which it Was ruled, that marriage settlements are not void as to all persons, for want of recording, but that persons standing in particular circumstances, shall be bound by them. All that is asser*246ted in this case, is that it would be a fraud for parties, having notice of the execution and not defrauded by them, to take advantage of the mere letter of the Act, and avoid them. *Baskins*vs. *Giles*ruled that the instrument should *nol be invalid,*at the instance of a person who would have perpetrated a fraud by insisting on its want of registration. In what respect does this decision differ in principle from the general current of authorities, that a purchaser with notice of a settlement shall not be allowed to object to it? It would be a fraud in him to do so. And would it not be a fraud in a party, the husband, to receive and appropriate property known by him to have been secured by settlement ?

The only difference between the Act of 1.823 and the prior Acts of 1785 and 1792, is that they declare unregistered marriage deeds and contracts void as to particular persons, while the former declares them void generally. If notice supplied the place of recording, in regard to the particular persons as to whom the former Acts declared such unregistered instruments void, how is it possible, in conformity with the decisions to this effect, to hold otherwise than that it shall supply it as to all persons, the parties as well as others, under the Act of *18231*

The doctrine that notice supersedes the necessity of registration, is as old as the Court. It prevails in law as well as in equity. There is no exception to it.* I shall refer to only one or two cases, in addition to those particu*247larly mentioned in the circuit decree. In *Levinz*vs. Hill, 1 Dallas, 430, the argument was upon a special verdict finding that Levinz had executed a mortgage which was not recorded within the time prescribed by law. The defendant, as sheriff, sold the mortgaged premises, and after certain deductions, paid over the balance to the mortgagee, and afterwards Levinz assigned all his property for the benefit of his creditors generally. The action was brought by the assignees in the name of Levinz, the assignor, to recover the money paid over to the mortgagee. The Act of Assembly, relied on by plaintiff, declared that “ no deed, or mortgage, (or defeasible deed, in the nature of mortgages,) hereafter to be made, shall be *good*or *sufficient*to convey *or pass*any freehold,” *&c.*“ or to *grant any estate therein,*for life or years, *unless*such deed be acknowledged or proved, *and recorded*within six months after the date thereof, where such lands lie, as herein before directed for other deeds.” The opinion of the court was delivered by McKean, Ch. J.; that the mortgage was good as between Levinz and the mortgagee, and judgment was given for the defendant. The argument of counsel and the opinion of the court are very instructive; but for the sake of brevity must be omitted here. It is sufficient to say that it was held that the object of recording was notice to persons liable to be affected, and that this was subserved by actual and explicit notice, such as Levinz, as a party to the mortgage, had. The Chief Justice observes that “ the Legislature did not mean, nor did they in fact enact, that express personal notice, when given, shall have no effect; nor could they entertain an idea of defeating fair and honest bargains.” He confirms his decision by the analogous-principles of the cases on church leases, Bac. Ab. 390 ; Cowper, 141; on undocketed judgments, 2 Eq. Ab. 681; on leases in Ireland, Id. 282, case 19 ; and on surrenders of copy holds, by way of mortgage, 2 Chan. Ca. 170 ; 2 Vern. 564.

Now, the Act of Pennsylvania, above recited, corresponds in so many particulars with the Act of 1823, affecting the marriage settlement in this case, as to render the case in Dallas of great moment here. It draws no distinction between the parties and creditors or purchasers, but directs *248its enactment generally against the instrument if not recorded. So does the Act of 1823. It declares that the deeds embraced by it shall not be *good*or *sxtfficient*to pass an interest, (that is, shall not operate or be valid) unless recorded within a given time. The Act of 1823 provides that marriage settlements shall not be valid until recorded, which shall be dope within a fixed period. The only seeming difference is that the latter Act declares that for want of the prescribed registration, the settlement shall be null and void, But what difference can this make 1 The Pennsylvania Act declares that, unless registered, the deed shall not he good or efficacious ; and if so, is it not inoperative and void! The words *unless*in the ope Act, and *until*in the other, will be noticed hereafter. It appears to me, therefore, that the decision in *Levinz*vs. *Hill*amounts to a decision in conformity to the circuit decree upon the Act of 1823.

The case of *Stroud*vs. Lockhart, 2 Dallas R. 153, was a *scire facias*on a mortgage. The mortgage had not been duly recorded ; and Lockhart had purchased the premises. Rut on the trial it was proved that he knew of the mortgage when he purchased. The court said the case was too plain for controversy, and the plaintiff must have a verdict.

Our own case of *Anderson*vs. Hams, reported 1 Bailey R. 315, the particulars of which are more fully set forth in MSS. records of law decisions, Columbia, vol. 4, page 476, (case No. 381,) seems in principle *to*decide the present case. The action was trespass to try titles to lands. The plaintiff purchased from one Jenkins, who had previously leased a portion of the land • to the defendant for fifteen years. The lease was not recorded; and it was insisted by the plaintiff, that it was void under the Act of 1817, 6 Cooper, 67, which provides, “ that all leases, or com tracts in writing, hereafter to be made, between landlord and tenant, for a longer time than twelve months, *shall not be valid*in law, unless the same shall have been recorded in the office of mesne conveyances, at least within three months from the time of their execution.” But the plaintiff was fully notified of its execution at the time of his purchase. Mr. Justice Q’Neall, who presided at the trial, *249instructed the jury, upon the authority of *Tart*vs. *Crawford,*1 McCord R. 265, which was adjudicated upon the general recording law, 1 Brev. Digest, 171, and upon the authority of *McFall*vs. *Sherard,*Harper’s L. Rep. 295, that the notice was a substitute for recording, and obviated the objection raised. They gave a verdict accordingly; and upon appeal the whole court, (Nott, Colcock, and Johnson, JJ.) affirmed the instructions.

Now, there is no other difference between the Act of 1817 and that of 1823, than the words *unless*and *until;*except the difference between the latter and the Pennsylvania mortgage Act, respecting the omission in the Pennsylvania Act, of the words *null and*void, which has been already observed upon. The Act of 1817 declares that leases shall *not be*valid, unless recorded within a given time; that of 1823, that settlements shall *not be valid, until*recorded ; the time for which is limited. The one imposes a condition, the other a prerequisite; but the one is equal to the other.

But when the history of the registry Acts is examined, it will appear that this word until, employed in the Act of 1823, is hardly entitled to the weight allowed to it by the appellant’s counsel. Before that Act was passed, marriage settlements were required to be recorded in the office of the Secretary of State only. The Legislature desired to give more general publicity, and required, by the Act of 1823, that they should also be registered in the district where the parties resided. The true solution of the Legislature’s intention, as gathered from the previous legislation, is, not that the deeds should be imperative until recorded, but that the *registration*should not be considered complete until made in both offices. And this interpretation fortifies the conclusion that notice was the sole object of this, as well as all the previous Acts.

I have thus shown what the general doctrine is. That the case of *Mullins*vs. *Austin*is not opposed to it; and that not a single case, therefore, has ever been decided among ourselves or elsewhere contrary to the circuit decree.

It is the unanimous opinion of this eourt, that marriage settlements are not void as between the parties, under the *250Act of 1823; notice supplying the place of registration as to them, as well as all other persons affected by them ; and it is ordered, that the circuit decree be affirmed, and that the appeal be dismissed.

Johnson, Harper and Dunkin, Chancellors, concurred.

fd=* Note by the Chancellor. * The following authorities, among others, may be consulted with advantage upon the subject of notice generally; what notice is required as a substitute of registration ; what is sufficient as to an outstanding equity; under what circumstances it shall or shall not affect the party to whom it is directed, viz: *Martin vs. Sale,*1 Bailey Eq. 4 ; *Price vs. White,*Id. 266 ; *Miller vs. Kershaw,*Id. 480 ; 2 Hill Ch. Rep. 180; *Cabiness vs. Mahon,*2 McCord Rep. 274; *Givens vs. Bradford,*2 Id. 152; *Anderson vs. Harris,*1 Bailey, 315; *Jackson vs. Ellis,*12 Johnson Rep.; *Jackson vs. Sharpe,*9 Id. 168 ; *Same vs. Bext,*8 Id. 108 ; *Same vs. Givens,*2 Johnson Ch. Rep. 603 ; Id. 190; 19 Ves. 439; 3 Id. 484; 2 Atk. 275 ; 2 Dess. 238; 6 Munford, 42; Newland on Contracts, 510, et seq. Id. chap. 36; 2 Sugden on Vend. 223, (late edition,) Id. 276; 1 Story Eq. 359, 387, 393, 394.