22 Tenn. 619 | Tenn. | 1842
delivered the following opinion.
Masterson, to secure a debt of about $1200, due from him to Mrs. Knowles, made a deed of mortgage of a lot in the town of Nashville, to Godfrey Fogg, for her benefit on 28th September, 1836, which was acknowledged on the same day, and registered 29th of September, 1835. On the 14th of February, 1838, he made a second deed of mortgage of the same lot, to Mr. M. B. Vance, to secure a debt of $2000, and the interest which had accrued and which might accrue upon the sum of $10,000, within a specified time. This deed was -acknowledged on the 6th of August, 1838, and was registered on the 10th of August, 1838. And on the 20th April, 1838, he made a third deed of mortgage to Crockett and Robinson of Nashville, of the same lot, for the benefit of Bierne and Burnside and other creditors, of the city of New Orleans. This deed was acknowledged before a Notary Public of New Orleans, and certified under his notarial seal the same day, and registered 21st of May, 1838.
The first, second, third, fourth and fifth sections of this statute, having specified the two modes of authenticating instruments by the proof of witnesses, and the acknowledgment of the bargainor, the 6 and 12 sections, which declare the legal effect of probate and registration, and of their omission, use the word proved as a generic term, embracing both modes of authentication. This is most obvious; and the 9th section most clearly uses the word in same sense. And this is a cor
But the counsel of Yance, in the second place, insist that the third mortgage, registered before the second, should be postponed to the latter, because at the time of the execution of the former, it was known to Burnside one of the creditors, and the agent of the rest, that Vance’s mortgage existed. The answer of the defendant, and the depositions of Masterson and Crockett satisfactorily establish as a fact that this knowledge did exist. The effect and operation of such knowledge is expressly declared in the 6th section of'the said act of 1831, where it is said, that “any deed of conveyance, bill of sale, or other instruments above mentioned, which shall be last executed but first registered, shall have preference thereof, unless it is proved, in a court of equity, according to the rules of said court, that such subsequent purchaser, had full notice of the previous conveyance.” And in the 12th sec., where it is said, that “all such deeds and other instruments mentioned in the first section of this act, not so proved and registered as aforesaid, shall be null and void, as to existing and subsequent creditors, or bona fide purchasers without notice.”
The object of the act is to make the deed first proved and registered, paramount and exclusively effective, subject only to be controlled in a court of chancery, as against a subsequent purchaser by his knowledge of a prior incumbrance. But it is argued, that mortgagees are not purchasers within the meaning of this statute. They are specifically enumerated in the first section; and the 6th and 12th sections, in declaring the legal effect of registration, and non-registration, distinctly refer to all the instruments set forth in the first section.
It is true that the act of 1715, made priority as to mortgages
' To hold the contrary would contradict not only the words of the statute, but disturb the unity, simplicity and harmony of the entire system, intended to be corrected by the registration act of 1831.
We are of opinion, therefore, that the mortgage of Bierne and Burnside and others, must be postponed to that of Vance.