Brooke's Appeal , 64 Pa. 127 ( 1870 )

The opinion of the court was delivered,

by Read, J.

— Samuel DeHaven and Perry M. Hunter, on the 1st March 1865, became the owners of a building and lot of ground, in the lower ward of the borough of Norristown, subject to a mortgage of $3000. They were engaged in the manufacture of woollen goods, and converted the building into a woollen fac tory, by placing the requisite machinery in it, and enlarging the building. On the 6th February 1866, Samuel DeHaven and wife conveyed his undivided half of the said woollen factory building and lot of ground to Sarah Ann Stearns. P. M. Hunter from this date carried on this woollen factory with Mrs. Stearns, as his ostensible partner, under the firm name of P. M. Hunter & Co.

The purchase-money was $23,500, subject to one-half of the $3000 mortgage, and was made up of $6000 in cash, and a purchase-money mortgage and bond for $17,500. On the 6th February 1866, cotemporaneously with the delivery of the deed, Mrs. Stearns executed, acknowledged and delivered to Samuel DeHaven, a mortgage for $17,500 upon the same premises with a bond for the same amount, to secure the payment of the balance of the purchase-money.

The mortgage was duly acknowledged on the said 6th February 1866, before a notary public, and on the same day recorded in the office for recording of deeds, &c., at Norristown, in and for the county of Montgomery, in Mortgage Book No. 57, page 99, at 3J o’clock, p. M.

The appellant, Mary Ann Brooke, holds a mortgage of the same premises, executed by Mrs. Stearns, for $6000. This mortgage is dated March 8th 1866, and acknowledged February 8th 1866, and recorded March 13th 1866.

By a clerical error, the recorder has dated the acknowledgment of the first mortgage “ January” instead of “February.” The original deed is correct in every particular, and has on its back in the recorder’s handwriting, the date of its receipt for record— “ February 6th 1866, at 3| o’clock, p. M. Recorder’s fee paid.” It was properly indexed in the mortgage index, with a reference to the mortgage-book and page in which it is recorded.

There is no such case in our reports. The case of Solms v. McCulloch, 5 Barr 473, was entirely different. It was a scire facias upon a mortgage, which, when offered in evidence, was found to be dated November 12th 1835, and acknowledged on the 9th October and recorded on the 23d November. The error was in the original mortgage. Judge Rogers says: “ This raises two questions. 1st. Was the mortgage defectively registered, or in other words, had the recorder authority to record the mortgage ?” The doubt here clearly arose from the defective acknowledgment on the original mortgage itself. The plaintiffs on the trial, after the rejection of the mortgage, then proved the execution of it. “The first,” says the learned judge, “raises an open and interesting question, which we are not at this time prepared to decide, in consequence of the necessary absence of one of the judges, and a difference of opinion among those who heard the argument.” •Now this' does not touch the first Stearns mortgage at all, for there is no doubt of the authority of the recorder to record it, but it does impinge upon the mortgage to Mrs. Brooke, which is identical in its circumstances with the rejected mortgage in 5 Barr.

In this dearth of positive authority, we must turn to the act relating to mortgages, and see what its provisions are. All mortgages shall have priority, according to the date of recording, and it shall be the duty of the recorder to endorse the time upon the mortgages when left for record and to number the same according to the time they are left for record, and if two or more are left on the same day they shall have priority according to the time they are left at the office for record, and that no mortgage shall be a lien until such mortgage shall have been recorded or left for record as aforesaid.

The mortgage therefore commences its record and its lien the moment it is left for record and is endorsed by the recorder, and entered upon the recorder’s book, as required by the Act of 28th May 1775. It may remain there weeks and months, before it is actually recorded, and yet it is record notice to all the world. A regular mortgage entitled to record is a record the moment it is left for record and so continues for all time to come: Musser v. Hyde, 2 W. & S. 314.

We entertain no doubt that this record was notice to all the world, and the auditor has found that the appellant had also actual notice of the mortgage.

We are satisfied with the findings and conclusions of the auditor, and the decree is affirmed, and appeal dismissed at the costs of the appellant.