¶1The only question in this ease is what force and effect is to be given to the final provision of the statute, (Paschal’s Digest, Art. 4985,) “ No mortgage shall take lien upon property unless so recorded.” This law, improvident as it undoubtedly is, is clear, distinct and unambiguous, and while it remained unrepealed must be considered as positive law. But fortunately it remained in force but a short time.
¶2On the fifth of February, 1840, by an amendatory act, it was provided “ that all mortgages shall be recorded as heretofore, but the lien created by the mortgage shall not be lost or destroyed as between the parties to it, if the mortgagee should fail to have it recorded within the time prescribed by law.” (Paschal’s Digest, 4986.) This repealed that improvident law so far as it affected the parties to the mortgage. And on the same day was passed “ An act concerning conveyances,” the fourth section of which provides as follows : “And all deeds of trust and mortgages whatsoever, which shall hereafter be made and executed, shall be void as to all creditors and subsequent purchasers for valuable consideration without notice, unless the same shall be acknowledged and proved, and lodged with the clerk to be recorded, according to the directions of this act; hut the same, as between the parties and their heirs, and as to all subsequent purchasers ■frith notice thereof, shall nevertheless be valid and binding.” (Acts 4 Con. Bep. Tex., 158.) This last cited act repealed the said provision in the former act, (Paschal’s Digest, Art. 4985,) as it affected not only the parties, but all subsequent purchasers with notice, and leaving the law exactly as it was before the passage of the said improvident provision.
¶3The judgment is therefore reversed and the cause remanded for further proceedings in accordance with this opinion.
¶4Keversed and remanded.