CALL et al., Respondents, v. HASTINGS, Appellant, 3 Cal. 179

Heydenfeldt, Justice, delivered the opinion of the court. Wells, Justice, concurred. It is unnecessary to decide whether the mortgage under which the plaintiffs claim, was valid under the Mexican municipal laws which prevailed at the time it was made. Its validity may be conceded, and if so, it not only was unaffected, but was specifically protected by the act concerning conveyances, passed April 16, 1850. That act, however, introduced a new rule for the government of these contracts, not as affecting their validity, but in respect to their relation to the rights of other parties which might after-wards grow up.

The act referred to, after providing for the proof and registration of conveyances, declares, “ Every such conveyance, certified and recorded in the manner prescribed in this act, shall from the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof, and all subsequent purchasers and mortgagees shall be deemed to purchase with notice.” The evident intention of the statute seems to be to protect subsequent purchasers without notice, actual or constructive.

And such is the rule at common law, where registration is not notice, whenever the prior purchaser or mortgagee is guilty of such negligence as leads to imposition upon an innocent party, for in such cases the negligence is regarded as a legal fraud. In this case it appears that the plaintiffs took none of the precautions which would have answered to put the defendant on his guard.

He left the mortgagor in actual possession of the mortgaged premises, and of the title deeds to the property, allowed the law day of the mortgage to pass for nearly a year without taking action, although the time of credit specified by the mortgage was for less than ten days, and although the terms of the mortgage provided to the mortgagee a power of absolute sale in default of payment. The mortgage under which the defendant claims, was made after the law day of the first mortgage had gone by.

A mere recital of these facts conclusively determines, that the plaintiffs’ claim must yield to the defendant’s, unless he is protected by the doctrine of constructive notice. This doctrine has always been regarded as a harsh necessity, and the statutes which create it have been always subjected to the most rigid construction. I have shown that the act concerning conveyances protected the first mortgage as far as its validity was concerned, but that protection did not make it notice to those who might become purchasers subsequent to the passage of the law.

On the contrary, the act in positive terms required that it should be recorded according to the provisions of the act. The 41st

section declares, “ all conveyances of real estate heretofore made and acknowledged, or proved according to the laws in force at the time of such making and acknowledgment or proof, shall have the same force as evidence, and be recorded in the same manner and with the like effect as conveyances executed and acknowledged in pursuance of this act.” By the 80th section, the term “ conveyance,” as used in the act, is made to embrace mortgages. It is clear that the object of the 41st

section was to produce a strict conformity in the registration of all deeds affecting real property within this State, and doubtless the main and strong reason for it was, in a condition of things new to the great body of the people, to afford the utmost facilities for research and information, and thus to diminish the frequency of the application of the doctrines of implied notice. The conformity demanded is as easy as it could be made. The new forms of acknowledgment on proof of execution are dispensed with. Nothing was required but the simple registration, and that is imperative.

Without this, the first mortgage, although valid and legally executed under the Mexican civil law, under the new act imparted no notice to the subsequent purchaser ; and although not in express terms declared to be void as to such subsequent purchaser, yet it is so, not only by the intent of the law, but by the laches, amounting to legal fraud, of the mortgagee. The judgment is affirmed, with costs.