The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1872-08-31
A Decrco In Reference 20 tho RecordI ~
Of Lost Mortgages.

|
terest to the bar and public generally:
Joseph D. Taylor, Trustee, and Rosa A.
BRcot. Ds. M. T.. Hutchinson-In the
Common Pleas.
| DECREE.-This case comes no on ex-
ceptions to the report of the referee, to
whom it was referred, with instructions
to report the amount due on the bond OF
the defendants, with leave to report any
special matter. The facts of the case, as
reported by the referee. and agreed to
by the parties, are rs follows: On the
10th day OF July, A. D. 1860. Nj. Edward
Hutchinson and Josiah J. Perry, of Col
Teton County, {then District executed
to Joseph d. Taylor, trustee of Rosa A..
Bacot, their joint and several bond, in
the penal sum of $4,000, conditioned
for the full and just sum of 81 900, to be
paid in three equal annual installmente,
with interest payable annually. To se-
cure the payment Of the bond, the said
NJ. Il. Hutchinson, on the same day and
year, executed and delivered to the said
Joseph D. Taylor. trustee, mortgage
on the house and lot in Summerville, the
subject of this suit. This mortgage was
given for the unpaid portion of the pur-
chase money, and was duly recorded
within the proper time in the Office Of
the Clerk of the Court of Common Pleas,
for Colleton County. at Walterboro.
Afterwards, to wit, on the - day of
-, A. D. 1856, tho said Office was de-
stroyed by fire by the nct Of the public
enemy, and with it all the papers and
records therein kept. The original mort
gage itself being still in the custody of
the Clerk, and unreturned to the plain
tiffs, was also destroyed by fire. On
March =, 1869, one William Meyer
obtained judgment in the Court of
Common Pleas against NJ. E. Hutchin-
son and J. 81. N. Hutchinson for S3O6,
with interest from March Is, 1869. The
Judgment was obtained on note dated
April "a. 1867, and without notice of
aeid mortgage. Afterwards, to wit, on
the - day of -, A. D. 1871, the
plaintiff, Joseph D. Taylor, trustee, filed
his petition, to come in under tho in
formation of the Attorney. General, filed
in accordance with A. A., 1865, "To per-
petuate testimony in relation to deeds,
wills, chooses in action. and other papers
and records destroyed or lost during the
recent war," and the amendments there
TO, proved his mortgage and the destruc-
ton thereof, md had substitution
made on the record.
The question of priority is made upon
this statement of facts between the judg-
mont held by William Meyer and the
mortgage as substituted by Joseph D.
Taylor, trustee, in the manner and form
stated above. The case was referred to
It. Herbert Sass, Esq, as special referee.
who reported in favor Of the priority of
the mortgage, on the ground that the
mortgagee, having complied with the
provisions of the Act of the Legislature,
known as the Act of 1S43, and having
recorded his mortgage in the proper
office within the sixty days required by
said Act, acquired thereby valid and
snbsisting lien against subsequent credi-
tors, without notice. which it was not in
the power of the Legislature to impair
or defeat by any subsequent legislation.
10 this decision OF the referee, the judg-
ment creditor excepts On the following
grounds:
II. Because his conclusions, if cor
rect, will deprive tho judgment creditor
of his priority, and put the mortgagee
who had lost his lien before, and when
the Judgment was obtained before him.
III. Because the judgment creditors
right to priority OF claim was vested,
and the Legislature had no power to di-
vest him.
iii. That the Act was not intended
to apply to cases where liens had at
tached before it WAS passed"
This case turns upon the effect and
validity of the fifth aection Of the Act Of
the Legislature, passed on September
20, 1866, at tho extra session of that
year. which section declares that "all in
struments in writing of which q record
or registry is required by law. and of
which the record or registry has been
destroyed or lost. but the original pre-
served, and the substitutes provided in
the said Act (of 1863 for such original
i'll case of their loss, shall be recorded
within six months from tho ratification
of this Act. Otherwise, they shall not
prevail as liens against subsequent pur.
chasers, for valuable consideration, nor
creditors without notice." (Stat at
Large. Vol. XIII, page 394) This Sec
ton was amended at the regular session
Of the same year, by on ACT passed De-
cember IA, 1865, which provided: THAT
the time for re-recording, provided by
the fifth section of the Act of the Gene
ral Assembly. ratified on the Goth day OF
September, 1866, entitled AN Act to
amend and extend the operation of an