From Rowan. Trespass vi et armis for taking certain negro slaves. 'The facts were as follows : George McCulloch being indebted to the Bank of Newbern, the Plaintiff became bis surety, and to indemnify him from loss, McCulloch executed to him a mortgage deed for the slaves in question ; this deed bore date 29th of May, 1818. McGui-lof : lived ‘n liov&n, and the Plaintiff in Mecklenburg*, ab *t vhiFy rnoef. d; taut from him. The mortgage was afj»’r:i£. fule transaction.
Cited by 2 later decisions — most recently November 1898
1 federal appellate · 1 state decisions
Good law ✅— No negative treatment on recordhow we know
¶1By Laws 1715, ch. 7, sec. 7, it is required that all mortgages of lands, negroes, goods, and chattels, which shall be first registered, shall be held to be the first mortgage, unless a prior mortgage shall be first registered within fifty days after its date.
¶2It was held, Cowan v. Green, ante, 384, that an unregistered mortgage should yield to a bill of sale, which had been registered in due time, the mortgage not having been registered until nearly two years after its date. In this case the mortgage to the plaintiff was made in *292
May, 1818, and was not registered on 15 May, 1821, when the executions in question were levied three years after its date.
¶3Although the section of the act just cited declares that when mortgages are registered in due time they shall be good as against other mortgages, there can be no doubt but they would be good also against other conveyances of the same property, afterwards made, or against liens subsequently acquired; but when they are not registered in due time as the act requires, they must give way to rights and liens acquired up (522) to the time at least when they shall be registered.
¶4It would not do to put a construction on the act, so as to give a preference to unregistered mortgages at any indefinite period of time. There is a greater necessity for the registration of mortgages than absolute bills of sale; because in the former case property mortgaged most commonly remains in the possession of the mortgagor; in the latter, it is generally delivered to the purchaser.
¶5I therefore think that the rule for a new trial should be made absolute.
¶6The difference between this case and the former is, I conceive, an unimportant one, and the opinion which I have already delivered is applicable to the present case.
