Scire Facias on a mortgage of lands in Northampton county. The
cause was tried at Easton, when a verdict was taken for the
Plaintiff, subject to the opinion of the Court, on the following
case:
'That the Defendant, Wood, on the
20th of June, 1776, made and executed the mortgage deed in the
record set forth; and, on the 5th day of July, 1776, acknowledged
the same before Peter Kuchlien, Esquire, then holding a commission
as one of the Judges of the Court of Common Pleas for the county of
Northampton, from John Penn, Esquire, late Governor of the Province
of Pennsylvania; but he had not received any such commission after
the declaration of Independence, nor any notice of that
declaration.
'That the said mortgage was
afterwards, to wit, on the 3rd day of November, 1776, recorded by
Lewis Gordon, Esquire, in the record book kept for recording deeds
and mortgages in the said county, he, the said Lewis, at the
declaration of Independence being Recorder of deeds in and for the
said county, and continuing, as such, to do and perform the duties
of the said office, until the said 3rd day of November, and after;
but he had received no commission for so doing after the 4th day of
July, 1776.
'That the said mortgaged premises
were afterwards taken in execution, set up to sale, and sold by the
Sheriff of the said county to G. A. Baker under certain conditions,
and at the time of the
Page 1 U.S.
436, 437
deed from the Sheriff to the said G. A. Baker, an agreement was
made relative to the premisses in case the said mortgage should be
adjudged to be valid. 'That the Defendant, Jacob Wood, at the time
of the said purchase made by G. A. Baker, was indebted to the said
G. A. Baker, by judgment entered in the Common Pleas of the said
county, prior to the aforesaid sale by the Sheriff, and to the
Plaintiff's judgment against the Defendant. And that G. A. Baker
knew of the said mortgage before the contracting of the said debt
to him. 'If upon the whole matter, the Court shall be of opinion
that the law is with the Plaintiff, then judgment to be entered for
him; otherwise, judgment to be for the Defendant as in the case of
a nonsuit.' The question was, whether a mortgage, acknowledged
before a Justice of the Common Pleas, and recorded by the Recorder
of the proper county, subsequent to the declaration of
Independence, was void? the Justice and the Recorder having no
other commissions, than those which they had respectively received
from the late Governor of the Province, previously to such
declaration. The case was argued in January term left, by Bradford
for the Plaintiff, and Biddle, and Ingersol for the Defendant. For
the Plaintiff, it was urged, that, although the statute of 4 and 5.
W. and M. c. 20. enacts, that, unless a judgment is docqueted, it
shall not affect purchasors; yet judgments have been held good, in
a variety of cases, contrary to the letter of the act: 2 Eq. Ca.
Abr. 684. And equity will supply a defect in a mortgage. 1 Eq. Ca.
Abr. 320. The authorities cited in Levinz v. Willant. 430. on the
point of notice, are equally applicable here: And, even if the
Justice would have had no authority to take the acknowledgement of
the deed, after notice of the declaration of Independence, the want
of such notice is sufficient to justify him. Besides, during the
same period a considerable number of deeds were recorded, (which
was proved by the Recorder of deeds for the city and county of
Philadelphia) so as to render it necessary at least to apply the
maxim of communis error facit jus, to cases of this description.
Lloyd v. Taylor ant. 17. The mortgage, according to common
acceptation, was duly acknowledged and recorded; and, as the record
of a mortgage could only be required to give a constructive notice
to subsequent purchasors, the spirit and meaning of the law is
satisfied by the actual notice which G. A. Baker had of the deed.
See 2 Eq. Ca. Abr. 482. For the Defendant, it was contended, that,
in strict law, the acknowledgement and recording before officers
whose commissions were expired, did not make a valid
acknowledgement and recording of the mortgage; so that by the act
of Assembly 1 State Laws 79. the mortgage was absolutely void: And
that, in point of equity, as the mortgage might have been recorded
in the proper office after the 14th of March, 1777; the Plaintiff
had neglected a fair opportunity of giving legal notice of his
lien, for want of which the Defendant had been induced to lend his
money, and that, therefore,
Page 1 U.S.
436, 438
the Plaintiff, and not the innocent purchasor, ought to suffer;
for a judgment creditor is within the equity of the rule in favor
of purchasors. 19 Vin. When, indeed, it is impracticable to comply
fully with a law, the compliance should be as near as possible;
and, from the act passed on the 23rd of September, 1783, the
Legislature evidently considers acts done by officers under the
Provincial Government to be void; for, at the same time that
provision is made for enlarging the time of recording mortgages,
executed between the 1st of January, 1776, and the 18th of June,
1778, ( which was the case of the mortgage in question) there is a
positive reservation in favor of judgments, and other liens,
obtained during the intermediate period, and before the record was
actually made. 3. State Laws 227. But this more conclusively
appears from the acts of the 28th of January, 1777, and the 31st of
August, 1778, when all officers (with some specific exceptions)
under the former government are totally disqualified, and
considered as having been incapable of discharging the functions of
their respective offices. See 1 State Laws 3.137. After the Court
had held the case for some days under advisement, the Chief Justice
delivered their opinion to the following effect:
M'Kean, Chief Justice. The decision of the Court is,
unanimously, in favor of the Plaintiff; and the reasons of the
decision I will briefly recapitulate. 1st; Because the Legislature
declared by an act of the 28th of January 1777, that all acts of
Assembly passed before the 14th of May, 1776, ceased to have any
obligatory operation from that day until the 10th of February,
1777: And, consequently, there was no law which required mortgages
to be recorded during that period. 2nd, Because the mortgagee did
all he could to give constructive 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 subsequent judgment creditor and purchasor at the
sheriff's sale, had previous notice. 3rdly, Because 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 assignments, copied in the same
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 there is no doubt that many instruments are in a
similar predicament in every county of the State, the maxim of
'communis error facit jus,' strongly applies to the present case.
And, 4th, Because all transactions in the Land Office, and other
offices, during the interregnum, which were in themselves fair and
honest, have uniformly been considered as valid, for the sake of
public convenience. Judgment for the Plaintiff.
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