PARKER v. WOOD, 1 U.S. 436 (1789)

'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.