Samuel Barker et al. vs. David S. Stacy, Administrator, &c., 25 Miss. 471

Mr. Chief-Justice Smith delivered the opinion of the court. This was a bill filed in the superior court of chancery for the purpose of a foreclosure and sale of the equity of redemption held by Samuel Barker in certain slaves which were mortgaged by him in the State of Louisiana. The decree was for the complainant in the court below; and we will proceed to notice the objections urged by the appellants against its validity. 1. The act or deed of mortgage on which the complainant based his right to the relief prayed for, was executed in the parish of Concordia, in the State of Louisiana.

The slaves thereby conveyed were subsequently removed into the county of Jefferson, in this State, where they were held in possession by said Barker from 1837 to 1841, when they were sold by the sheriff, under executions against Barker, and as his property. The mortgage under which the complainant derived his claim had never been recorded in the county of Jefferson; and it is not pretended that the appellants, Dangerfield and Scott, who hold under the sale made by the sheriff, had notice of the existence of the mortgage before the rendition of the judgment against Barker, under which the sale was made.

Upon this state of facts, it is contended, that the purchaser at the sheriff’s sale took the slaves freed from any incumbrance whatever arising by reason of the mortgage executed in Louisiana. In Henderson v. Downing et al., 24 Miss.

R. 106, this court held, that a judgment creditor was not affected by a prior deed of trust, of which he had no notice, either at the time when the debt was contracted, or before the judgment was rendered; hence, that he had a right to enforce his judgment by a sale of the land conveyed by said trust deed, although notice may have been given to him of the existence of the deed subsequent to the rendition óf the judgment; and that a purchaser at the sheriff’s sale would acquire an unincumbered title, although he should purchase with notice of the deed of trust.

According to this decision, the notice given on the day of sale, of the existence of the mortgage executed in Louisiana, would not affect the title of the appellants, if the title acquired under that mortgage should be held to be lost' or postponed as to the creditors of Barker in this State, by the omission to have it recorded in this county of Jefferson. The language of the statute, (Hutch. Dig. 606, § 5,) does not in terms embrace deeds of trust or mortgages executed in any other State of this confederacy.

And we apprehend that there is nothing in the statute, or in the subject-matter of the law, which could properly lead us to the conclusion that mortgages or trust deeds executed abroad were within the intention of the legislature. The registry laws of this State render unrecorded | instruments of that character inoperative as to subsequent 1 creditors and bond fide purchasers without notice. In effect, as | to them, no title vests in the grantees. Very different is the condition of the mortgagee under a foreign deed of mortgage, which has been executed and recorded according to the laws of the place where made.

In such case, title in the mortgagee / has absolutely vested. Hence, to extend the statute above re- / ferred to to cases of foreign mortgage, in which the mortgaged; property has been brought within the jurisdiction of this State/ would not be to hold that no title had vested under the deedj; but that the title which had actually vested should be forfeited or postponed by the omission to record the deed. As early as 1843, this court, in the case of Palmer v. Cross et al., held, that the preceding

section of this statute, which provides that “ all deeds respecting the title to personal property thereafter executed, which by law ought to be recorded, shall be recorded in the court of that county in which such property shall remain; and if afterwards the person claiming title under such deed shall permit any other person, in whose possession such property shall be, to remove with the same, or any part thereof, out of the county in which such deed shall be recorded, and shall not, within twelve months after such removal, cause-the deed aforesaid to be certified to the county court of that county into which such other person shall have so removed, and to be delivered to the clerk of such county court, to be there recorded, &c., shall be void in law as to all purchasers thereof, without notice, and as to all creditors,” was intended by the legislature to apply only to deeds which were executed for personal property within this State at the time of making the conveyance, and to its subsequent removal from one county to another within its limits.

The question in that case arose upon a deed of trust executed in the State of Virginia. The property in controversy had been conveyed to trustees for the benefit of a married woman for her life, and for, the children she then had or might thereafter have. The husband of the donee, or both jointly, had possession of the property, which was afterwards removed into this State, where it remained for more than two years; the deed of trust not having been recorded in the county where the property was situated. The principle recognized in that case has never been overruled. In Prewett v.

Dobbs, 13 S. & M. 431, on the contrary, the same view of the statute was taken by this court, when the precise point under consideration was examined and decided. It is probably true, as contended for by counsel, that the latter case might have been determined without deciding that an instrument executed abroad, and which purported on its face to be a mortgage, was not within the operation of the registry laws. The question, however, arose in the case, and was directly decided. In a still later case, the case of Presley v. Rogers, 24 Miss.

R. 520, this question again came up, and was decided according to the previous adjudication. The court, in its opinion, citing the cases above rfeferred to. So that if the question had been one of even greater doubt than it was admitted to be when first presented, we must now consider it settled.

Another ground assumed by counsel for #the appellants is, that the slaves in controversy, having remained for the period of three years in the possesion of Barker within the county of Jefferson, and that during that time no claim had been made upon them in behalf of the appellee, became liable, under the statute of frauds, for the debts of Barker; hence, that the purchaser, at the sale made by the sheriff, acquired a title freed from the mortgage lien. If it were at all doubtful whether the second

section of the statute referred to (Hutch. Co. 637) did apply to the case at bar, we think the third

section can leave no doubt on the subject. It declares, that the provisions of that statute “shall not extend to any estate or interest in lands, goods, or chattels, or any rents, common, or profit out of the same, which shall be upon good consideration, and bond fide lawfully conveyed or assured to any person or persons, bodies politic or corporate.” Let the decree be affirmed.