34 Md. 67 | Md. | 1871
delivered the opinion of the Court.
This is a contest with regard to the proper distribution among creditors of a fund arising from the sale of certain leasehold property of the common debtor, Mary Kraft.
The appellee claims as mortgagee of the specific property sold; the appellant claims as creditor upon a judgment recovered against the debtor and mortgagor, after the date of the execution of the mortgage, and before it had been recorded. The mortgage was duly executed and acknowledged on the 19th day of June, 1868, and was placed on record on the 30th day of Kovember, 1868. The judgment under which the appellant claims was confessed by Mary Kraft, in favor of Charles Thompson, on the- 26th day of September, 1868, and was assigned to the appellant on the 24th day of Decern
In the meantime the property was sold by Samuel Snow-den, Esq., receiver, and the fund arising from the sale being insufficient to pay both the judgment and the mortgage, it becomes necessary to decide which is entitled to priority. The question arises upon the appellant’s exceptions to the auditor’s report and account E, made in conformity with the opinion and direction of the Circuit Court, by which the fund is applied in part payment of the mortgage, to the exclusion of the judgment. The mortgage was duly executed, acknowledged' and recorded, within six months from its date, as required by the Code, Article 24, sections 1, 13, 28.
Section 14 provides that when so acknowledged and recorded, “it shall tahe effect, as between the parties thereto, from its date.” By the operation of this section, so far as Mrs. Kraft is concerned, the mortgage being recorded within six months after its date, as required by the Code, related back and took effect from its date, the 19th day of June, 1868. The judgment in favor of Thompson was rendered on the 26th day of September thereafter, when the only estate and interest of Mary Kraft in the property, upon which the judgment was a lien, under the Act of 1861, chap. 70, was the equity of redemption. The general rule is that a judgment^
But it is contended by the appellant, that as against a judgment creditor, without actual notice of the mortgage, that instrument operates only from the time it is recorded. In support of this position we have been referred to the 16th section of Article 21, of the Code. That section relates only to the case “ when there are two or more deeds conveying the same lands or chattels real,” and provides that “ the deed or deeds first recorded according to law, shall be preferred, if made bona fide and upon good and valuable consideration,” and the section by its terms applies “to all deeds of mortgage and to all other deeds or conveyances, to the validity of which recording is necessary.” A judgment creditor is not within^ the letter, or spirit of this provision, and cannot claim its ? protection. It is intended to protect against unrecorded deeds/ and mortgages, the title of a bona fide mortgagee, or purchaser/ for value, who perfects his title, by having his deed first re-; corded. If the 16th section had been designed to protect the ‘ rights of a judgment creditor, apt words for that purpose , would have been employed. But he is neither in fact nor in law a bona fide purchaser, as has been often decided.-
In the case of the Duchess of Marlborough, 2 Peere Wms., 491, it was said “one cannot call a judgment creditor a purchaser, nor has such creditor any right to the land; he has neither jus in re, nor ad rem.”
In Rodgers vs. Gibson, 4 Yeates, 111, and in Heister vs. Fortner, 2 Bin., 40, it was decided that a judgment creditor is not considered a purchaser or mortgagee within the words of the recording Act of Pennsylvania of the 18th of March, 1775. The provisions of that Act were similar to those contained in the 16th section of the Code. These decisions were followed in Cover vs. Black, 1 Pa., 493, where Chief Justice Gibsost said, in referring to Dodgers vs. Gibson, and Heister vs. Fortner, “it is true the question turned on the interpreta
As very well expressed by Justice Habe, in Cadbury vs. Duval, 1 Am. Law Reg., 109, “ it is settled that a judgment creditor is neither a purchaser in the technical or limited sense in which the term is used in equity, nor in that in which it is used in the recording acts of this country, and must stand or fall by the real, and not by the apparent, rights of the defendant in the judgment.”
"" In disposing of the question of priority in this case, we think it unnecessary to inquire whether the judgment creditor had or had not actual notice of the mortgage when he obtained the judgment. According to the well settled rule to which we have referred, the judgment binds only the equity of redemption, and must be postponed to the rights of the mortgagee, without regard to the question of actual notice, there being no evidence impeaching the bona fides of the mortgage, and it being recorded within the time prescribed by law.
Sections 19, 20 and 21, Article 24, of the Code, have no application to the case, they refer to absolute deeds; and mortgages are in terms excepted from their operation.
In the argument on the part of the appellant, some objection was made to the allowance of the mortgage claim for alleged want of proof, and because it is not stated in conformity with the rule laid down in Robertson’s case, 10 Md., 397. This last objection does not appear to have been insisted on below, it is not referred to in the opinion of the Judge of the Circuit Court, was not argued by the appellee,
Order Affirmed,