212 Pa. 19 | Pa. | 1905
.Opinion bt
There is no denial in the affidavit of defense of any material fact averred in the plaintiff’s statement. Sometime prior to April 4, 1877, John Wagner, late of the township of Lower Nazareth, county of Northampton, this state, died intestate, leaving to survive him a widow, Susanna Wagner, and three children: Susanna Wagner, Jr., Eva Matilda, married to Bar-net. Laubach, and Rebecca Elizabeth, married to John J. Young. He was the owner of a tract of land situated in the said township, containing a little over 100 acres. On April 4, 1877, by a deed of release the widow and the two daughters, Mrs. Laubach and Mrs. Young, in consideration of the sum of
The widow of John Wagner, as already shown, had no dower in the premises at the time of the sheriff’s sale, and the notice of the two daughters amounted to nothing. Even if the dower had not been extinguished, its existence would have had no bearing on the principal question raised below and on this appeal, which is : Did the sale on the mortgage given to Mrs. Laubach divest the lien of the one given to Mrs. Wagner, the widow? While this is hardly to be considered a question, we must pass upon it because it has been raised by the appellants, the vendees of the executor of Susanna Wagner, Jr., and W.
By the Act of March 28, 1820, 7 Sm. L. 308, it is the duty of the recorder to indorse the time—hour and minute—when a mortgage is left with him for record, and the lien of it on the land described in it commences from that time of the day. The act further provides that if two or more are left for record upon the same day, they shall have priority according to the time thej'- are left at the office for record. These two mortgages were left at the office for record on the same day and at the same moment of time—9:30 A.M., April 14,1877. Neither had priority over the other. The lien of each commenced at precisely the same moment. There can be no answer to this. in the face of the words of the statute; but the appellants contend, and with apparent seriousness, that the lien of the mortgage given to the widow was prior to that of the one given to the daughter, because, according to the pages in the mortgage book, it was recorded first. It was recorded on page 81, and the other on page 83, and the position of the appellants, as they state it", is “ that the paging in the mortgage book conclusively establishes the priority of entry,” and, therefore, priority of lien. It was impossible to record the two mortgages at the same instant in the same mortgage book. One had to appear there first, but the page on which it appeared had nothing to do with its lien. That commenced the moment, the arrival of the mortgage in the recorder’s office was noted by the recorder, and, in contemplation of law, it was recorded from the moment it was left for record. As a matter of universal experience, we know that mortgages and deeds are not actually recorded as soon as they are brought into the office, because it is not possible to so record them. They accumulate in the office for record. Those brought first are first recorded, and in time all are recorded.
Under the contention of the appellants, as it must be understood, no mortgagee is safe with the lien of his mortgage, as against other mortgagees, until his mortgage is actually recorded in the mortgage book. Of this proposition serious consideration could hardly be expected, and certainly will not be given to it. As the lien of the mortgage to the widow was not prior to that given to the daughter, it was not preserved
Judgment affirmed.
