The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1872-08-31

part OF the purchase money-one of the
highest securities known to the law. By
the common law, creditor of this class
had an equitable lien for his unpaid pur-
chase money, which was prior charge
on the property. This common law
doctrine of the vendors equitable lien
has never prevailed in this State, be-
cause the recording Acts took it's place.
The moment that mortgage creditor
recorded his mortgage, under the Act of
lS43, and in compliance with it's pruvi-
sions, the presumption of notice was
established as aguinst all the world, and
this presumption is nnrebutable. If
Meyer, in this case, had given credit to
Hutchinson before The destruction Of lie
records, and at the time this mortgage
was actually on record in the Clerks
Office Of Colleton District, there can be
no question but that he would hnvo
been creditor with notice, aud having
been thus once affected with notice he
| could never afterwards have beco me- uu-
affected by the destruction of records
which were notice to him at the time he
gave his credit. In this case, tho credit
was given in April, 1867. Admitting
for the moment that the Acts OF 1866
were good and valid Acts, still, even
under those Acts, the time allowed
for recording had not expired in
April, 1867. It did not expire until
December l. 1867 This mortgage,
therefore, was potentially on record ut
that very time, even under the Acts OF
1866. AT any time between April and
December, 1867, the mortgagee might
have cnme in and set up his mortgage,
aud his lien would have been perfect. It
is not, therefore, q sound argument to
say that at the time Meyer gave his
credit he did it on the faith of Hutchin-
son-being in reality, as he Was in out
ward appearance, the owner of this pro-
perty, and that there were no records in
existence at that time to show the re-
verse. Even if the recording under the
Act Of 1S43 had not affected him indcIi-
bly, with notice, which think it did,
still there were seven months yet to
come in which these very limiting Acts
gave him no protection. It il precisely
analogous to the case Of Il mortgagce
who records on the Sixtieth day from the
date of his mortgage. as provided by the
Act of 1913. If credit had been given
to the mortgagor during the two months
previous, that would be no argument
against the priority of the mortgage
lien Might not the word subsequent,
in the fifth section of the Act of 1866, be
reasonably and Justly interpreted to
mean subsequent to tue time there
limited for recording? During that
time, might not rule of c1ucm creditor
properly apply2 And during thnt time,
WAS not any one giving credit. by the
very terms Of the Act itself, affected by
the implied notice of the original record?
Meyer gave Hutchinson credit in April,
1857, just as much at his own risk as if
the records had been there, and he hod
neglected to examine them.
But tho Acts of 1865 are open to the
grave objection of disturbing and divest-
ing vested rights, and cannot regard
them as valid. At the time they were
passed the whole State was in o confused
and unsettled condition. A new Consti-
tuition was about to be adopted under
the pressure of novel and disturbing cir
cumstances, and none Of the ordinary
machinery Of society was in even tolera-
bic working order. In the midst of this
anomalous state Of things the Legisla.
ture passed an ACT, whose practical effect
is to declare that all rights of property
vested and secured under the Aot of 1S43
shall be void and worthless, as against
subsequent creditors. in cases where the
actual records have been destroyed, un-
lug them. shall be re-recorded within the
short and inadequate space of fourteen
months. In this action the Legislator.
exceeded its powers. Inm strengthened
in this view by cnse decided in the
courts of this State, and reported in 4th
Rich Law Reports, p. 56S. Walton and
Hdsehine, surcioors, rS. j. j. DicAerSon.
The case was tried before Judge Evans,
at Williamsburg, in 1851, and his report
to the higher court was as follows
This was rule on the sheriff. The
facts we're these: On the 30th Of O,tober,
1S49, the defendant confessed iudg-
ment to Hyatt. McBurney & Co., for
$40, 75S.43. A il. (u. was lodged with the
sheriff Of Charleston on the same day,
and with the sheriff of williamsburg on
the 28th of March. 1850. On the 18th
of March, 1850, Walton & Haseltine re-.
covered, at Marion. q judgment against
Dickerson for 1924, and lodged their
execution with the sheriff of Williams
burg on the Goth of March. Hyatt, Mo
Burney & Co.'s fiji. tu. was the oldest,
but it was not lodged in Williamsburg
until eight days after the fl. ia. of Wal.
ton e. Haseltine. The sheriff had aold