George Tracy et al. versus Jesse Jenks, 15 Pick. 465

Putnam J. drew up the opinion of the Court. It is contended for the demandants, that the mortgage was void, because it was made, executed, acknowledged and recorded on Sunday evening and also, because no record of the deed was made oefore the deed was withdrawn from the office of the register on Monday, May 28, 1832, about 2 o’clock, P. M., and returned back on Wednesday, May 30, about 10 o’clock, after which it was in fact recorded. The facts last stated appear from the certificate of the register of deeds.

In regard to the objection first mentioned, that the mortgage deed was made, executed, acknowledged and recorded on Sunday evening, we are all of opinion, that it cannot prevail.

The St. 1791, c. 58, providing for the due observance of the Lord’s day, and reciting that some thoughtless and irreligious persons, inattentive to the duties and benefits of the Lord’s day, profane the same by unnecessarily pursuing their worldly business and recreation on that day, to their own great damage as members of a Christian society, to the great disturbance of well disposed persons, and to the great damage of the community, by producing dissipation of manners and immoralities of life, provides in § 1, that no person shall do any manner of business or work (works of necessity and chanty only excepted) on the Lord’s day, under a penalty.

But by § 4, of the statute before cited, the regulations as to work and labor extend to the time included between the midnight preceding and the sunsetting of the same day. This deed was begun on Sunday evening and executed about 10 o’clock of the same evening. The recording must necessarily have been after that hour. So far therefore as it is to be considered as work and ■ labor, it is not performed within the time prohibited by the statute.

But it is contended, that as by § 9, no person shall execute any civil process from midnight preceding to midnight following the Lord’s day, and such service thereof shall be void, that the giving a security by mortgage should be considered as prohibited within and during the time that the service of civil process is prohibited. It is sufficient to say, in answer, that the service oí civil process is the only work and labor that is prohibited after the sunsetting of the Lord’s day, and that the making or giving a mortgage is not civil process or the serving of civil process.

As to the second objection, that the deed was taken from the office on Monday afternoon, before it was in fact recorded, we all think that there is no legal evidence of the fact. The original certificate of the register of deeds, that it was received and recorded on May 27,. 1832, is to be taken to be conclusive, as between creditors. At the very time when the attachment was made, the deed remained in the office. It is not competent for the demandants to disprove the original certificate of the register.

If there has been any mal-conduct on his part, (which we do not impute at all,) he is answerable to those who suffer from it. The result is, that upon the facts in the case, the Court are all of opinion, that the demandants must recover one undivided half only, of the demanded premises.