author: Mr. Justice WOODBURY

text:
    Thomas Beals, Plaintiff, v. Felicite Hale, Defendant.
    There were two statutes of the State of Michigan, both passed on the same day, namely, the 12th of April, 1827. One was “ An Act concerning Deeds and Conveyances,” which directed that such deeds or conveyances should be recorded in the office of register of probate for the county, or register for the city, where such lands, &c., were situated. This act became operative from its passage.
    Another was “ An Act concerning Mortgages,” which provided “ that every mortgage, being proven or acknowledged according to law, may be registered in the county in' which the lands or tenements so mortgaged are situated.” This act did not go into operation until several months after its passage.
    In the case in question, there were two mortgages, both including the same property, in the city of Detroit, Wayne county, one of which was recorded' in the city registry, and the other in the county registry.
    These-statutes are not so contrary or repugnant to each other as necessarily to ima contradiction. Both can stand.
    T recording of the prior mortgage in the county registry was sufficient to give it validity and priority.
    Statutes which apparently conflict with each other are to be reconciled, as far as may be, on any fair hypothesis, and validity given to each if it can be and is necessary to conform to usages under them, or to preserve the titles to property undisturbed.
    This case came up on a certificate of division in opinion between the judges of the Circuit Court of the United States for the District of Michigan.
    It was an ejectment, brought by the plaintiff, Thomas Beals, a citizen of New York, against Felicite Hale, the defendant, a citizen of the State of Michigan. Nathaniel. Weed, Harvey Weed, and Henry W. Barnes were, on application, permitted to defend their title to the premises, claiming that the said Felicite Hale was their tenant, and in possession under them.
    The facts in the case are set forth in the special verdict of the jury, which was as follows.
    “ Issue being joined in this case, and the parties present, by their respective attorneys, hereupon comes a jury, to wit: John C. Mundy, Alanson. Sherwood, William P. Patrick, Albert Bénnet, Robert Rumney, Austin Stocking, Sylvester pranger, Garry Spencer, John Bour, James Beaubien, Tunis S. Wendell, and James Cicotte, senior, who, being empanelled and sworn to try the issue joined in this cause, and after .having heard the evidence adduced therein, find specially the following facts, and say: — That John Hale was, on the thirteenth day of November, in the •year of our Lord one thousand eight hundred and twenty eight, seized and possessed in his own right of said lots number sixteen, seventeen, and eighteen, in the city of Detroit, county of Wayne, and (then Territory, now) State of Michigan.
    “ That, being so seized and possessed of the said premises, he, the said John Hale, and Felicite Hale, his wife, executed a mortgage, to secure the payment of a certain sum of money, to one James Lyon, bearing date the thirteenth day of November, in the year of our Lord one -thousand eight hundred and twenty-eight, of the said lots*, together. with other lands lying in the said county of Wayne, as well as of certain lands in the County of Monroe, in the Territory of Michigan, which said mortgage was recorded in the office of the register of the said .county of Wayne, where said lots and part of said mortgaged premises were situated, on the thirteenth day of January, in the year eighteen hundred and twenty-nine, in' Liber 9 of Mortgages, pp. 103, 104, 105, &c., and also in the county of Monroe, where the remainder of said lands and premises were situated, in the office of •¡register for said county, in Liber 9, Folios 281 to 286. That said mortgage was afterwards, to wit, on the twenty-first day of November, in the year eighteen hundred mid thirty-eight, foreclosed under the statutes of the State of Michigan, and the said several lots sold at public auction, and struck off to sajd Lyon at the sale thereof, and that a sheriff’s deed was afterwards, on the 6th day of April, A. D. 1842, executed to the said plaintiff, as assignee of the certificate of sale to said Lyon, of the said lots, they not having been redeemed within two years from the time of sale, pursuant to statutes of said State in such case made and provided, which said deed was duly recorded.
    “And the said jury further find, that the said John Hale, and Felicite, his wife, after the execution of the former mortgage, and before a foreclosure thereof, to wit, on the sixth day of June, in the year eighteen hundred and .thirty-seven, for a good and valuable Consideration, duly made, acknowledged, and delivered, under their respective hands and seals, to Nathaniel Weed, Harvey Weed, and Henry W. Barnes (who had no notice of said .prior mortgage unless said record was notice), another or second mortgage on the said premises, lots sixteen, seventeen, and eighteen, in the city of Detroit, county of Wayne, and State of Michigan, which said mortgage, bearing date the said sixth day of June, in the year eighteen hundred and thirty-seven, was duly recorded in the appropriate registry, on the seventh day of June, in. the year eighteen hundred and thirty-seven, in Liber 8, Folio 343, of Mortgages, and which said mortgage was afterwards, on the thirty-first day of August, in the year eighteen hundred and thirty-nine, foreclosed under the statutes of said State, exposed to sale, and struck off to said Weeds and Barnes at the said sale, and, not having been redeemed within two years therefrom, that a sheriff’s deed of said J premises was executed on the sixteenth day of August, eighteen hundred and forty-two, and delivered to said Nathaniel and Harvey Weed and Henry W. Barnes, of all and singular the said premises, which was duly recorded.
    “ That the plaintiff and defendant both claim under the respective mortgages above set forth, and the sheriff’s deeds under the respective foreclosures aforesaid ; and' that Felicite Hale, the defendant, was, at th& institution of this suit, and still is, a tenant in posr. session óf said premises, under a lease from said Weeds and Barnes, who are admitted under .'the statute to defend as her landlords.
    “ And the jurors aforesaid, on their oaths aforesaid, do further say, that if it shall appear to the said court, from the facts above found, that the recording of said prior mortgage from Hale to Lyon in the registry of Wayne county was sufficient record thereof to constitute notice of said mortgage under the laws of Michigan, in reference to mortgages of real estate situate in the county of Wayne, within the: limits of the city of Detroit, .then they find for the plaintiff.
    “ But should said court be of opinion that said record in the office of said registry for the county of Wayne was. invalid and insufficient in law, so far as the said premises in the city of Detroit are concerned, to constitute notice thereof to the subsequent mortgagees, then they find for the defendants.
    THOMAS BEALS

      vs.

    FELICITE HALE,.”
    On consideration of the said special ■ verdict, the same being brought hefore the court on a motion for .judgment on the verdict, the opinions of the judges were opposed on the point whether the recording of the mortgage from Hale to Lyon in the registry- of Wayne county was a sufficient record thereóf to constitute notice-of said mortgage under the laws of Michigan, in reference to mortgages of real estate in the county of Wayne, within the limits of the city of Detroit; and it is ordered and directed, that this cause, with said point, be certified to the Supreme Court of the United States, in pursuance of the act of Congress in such case made and provided.
    The cause was argued by Mr. Henry N. Walker, for the plaintiff, and by George C. Bates and Alexander D. Fraser, for the defendant.

      Mr. Walker, for plaintiff..
    The facts will appear from the special verdict. The question of law arises under two statutes passed on the same day. The first is entitled “ An Act concerning Deeds and Conveyances,” and will be found on p. 258 of Laws of Michigan for 1827. By this act it was declared that a city register’s office should be established for the city of Detroit, in which “ all deeds and other conveyances ” relating to lands in the city should be recorded. The second act is entitled “ An Act concerning Mortgages',” and will be found on pages 273, &c., of Laws of J827. This was approved the same day as the act concerning “ deeds and conveyances,” but to take effect some months after. This last act does not allude to a city register’s office, but directs where all mortgages of lands situated in the respective counties in Michigan shall be recorded.' The point of difference between the counsel, as well as the point certified by the court, is whether Lyon should have recorded his mortgage under which we claim in accordance with the act “ concerning deeds and conveyances,” in the city office ; or in accordance with the provisions of the act “ concerning mortgages,” in the register’s office of the county of Wayne. It was recorded in the register’s office for the county, and plaintiff contends this was a good and sufficient record, for these reasons, viz.: —
    First. The act of the Territory of Michigan which governs this case, as we believe, is the one “ concerning mortgages.” It was passed on the 12th of April, 1827, to take effect on the first day of January, 1828. It is entitled “ An Act concerning Mortgages,” and was the first law enacted concerning mortgages by the Legislative Council of the then Territory of Michigan. The first section directs, “ that the registers of the respective counties of the Territory, from time to time, shall provide fit and convenient books for die registering of all mortgages of any lands or tenements situated within their respective counties ; in which books shall be entered the names of the mortgagors and mortgagees, the dates of the respective mortgages, tiie mortgage money, the time or<times when payable, the description and boundaries of the lands and tenements mortgaged, the time when such mortgages are registered, and a minute of the certificate and acknowledgment thereof hereinafter mentioned, to which books of registry all person's whomsoever, »t proper seasons, may have recourse; and it is hereby made the further duty of the said registers, when registering a mortgage, also to record at length the special power of sale, if any. be contained therein; for which service the respective registers are hereby állowed to demand and receive the like rate of compensation which is allowed them for recording a deed \ and if any register shall neglect or refuse to do the duty required of him by this act, he shall answer to the party injured alhdamages which shall happen by such neglect or refusal.”
    This section is general in its terms^ and the language used is susceptible of but one construction. The command is positive, and the object of providing the books clear and certain. It is to record “ all mortgages of any lands or tenements situated within their .respective counties.” Not only the inétruments tó be recorded are clearly pointed out, but the mode of registering, the compensation for the same, the penalty for neglect on the part, of the register, and a provision that these records shall at all times be subject to inspection.
    The second section of the same act is in the following words, viz.: —
    Sec. 2. “ That every mortgage, being proven or acknowledged according to law, and such proof or acknowledgment certified in like manner, map be registered in the county in which the lapdi or tenements so mortgaged • are situated; and in case .of seperai mortgages of the sqme premises or any part thereof the mortgage or mortgages which shall be first registered as aforesaid shall kavé the preference in all courts of law and equity, according to tho times of the registering of such mortgages respectively : Provided, the mortgage or mortgages so to be preferred be made bona fide, and upon good and valuable consideration: .and further, that nó mortgage,..or any deed* conveyance, or,writing in the nature of a mortgage, shall defeat or prejudice the title of any -bond fide purchaser of any lands or tenements unless the same shall have been duly registered as aforesaid.”
    /There is as little doubt about the construction of this section as the first; The most comprehensive language possible is used. It •décláres every mortgage” may be registered in the county where the. lands and tenements mortgaged are situated, and the one first recorded shall have preference in all courts of law and equity; The jury in this case have found that the premises described in the. declaration are in die county of Wayne, and that the mortgage to Lyon, under which we claim, was executed aftér the passage of this act, and was recorded in the register’s office for the county of Wayne, as provided in this act., Where is there rbom for an argu* ment against the validity of the record ? . Not from this act, for it is beyond a question, that, from the terms of the law, it includes this mortgage, as well as all other mortgages in the ^Territory. There is no exception in the law; it is general, and applies to “ every mortgage.” It is not contended, we believe, that this law does not in terms reach this case,.or .that there is any ambiguity or uncertainty in the language used. But we-are told that this statute is controlled and governed by another act of the Territory of Michigan, and this renders'it necessáry to examine that act.
    The counsel for the defendant have contended, and so will argue to the court, that the act entitled “ An Act concerning Deeds and Conveyances,” found in the Laws of Michigan for 1827, page 258, approved April 12th, .1827, is thé law of this case. It will be observed that the act “ concerning mortgages,” and the act “ concerning deeds and conveyances,” were approved on the same day. But the act concerning mortgages did not take effect until January, 1828, thus making it have the -same operation and effect, as though passed on a day subsequent. If the laws conflict, then the last one will-govern. The ¿ct “ concerning mortgages ” appears from ’ the statute book to have been acted upon by the legislature subsequent to the one “ concerning deeds and conveyances it is oh a subsequent page of the statute book, and if both, laws took effect at the same moment, we suppose they would be constructed (if thought to conflict in terms), like different sections of the same statute. The last one would stand, and the others fall. The application of this well known principle would.be conclusive, if the act* were thought to relate to the same subject-matter. But we suppose the first law has no reference to mortgages whatever. One evidence of it is, that on the same day an act is passed relating to mortgages, and providing for the recording of them in a specific manner. The first three sections of the act concéming u deeds and other conveyances ” are the only ones which it is pretended have any application to this case. These sections read as follows, viz. : —
    44 Sec. 1. Be it enacted by the Legislative Oouncil-of the Ter? ritory of Michigan, That all deeds or other conveyances of any lands, tenements, or hereditaments lying in this Territory, signed and sealed by the parties granting the same, having good and lawful authority thereunto, and signed by two or more witnesses, and acknowledged by such grantor or grantors, or proved and recorded as is hereinafter provided, shall be good and valid to pass the same lands, tenements, or hereditaments to the grantee or grantees, without any other act or ceremony in law whatever. . . .
    44 Sec. 2. That all such deeds or conveyances of or concerning any lands, tenements, or hereditaments lying within this Territory, or whereby the same may he in any wise affected in law or equity, shall be acknowledged by the party or parties executing the same, or proved by one or more of the judges of the Supreme Court, or before one of the justices of any county court, a notary public,, or any justice of the peace in any county within this Territory, and a certificate of such acknowledgment or proof being indorsed thereon, and signed by the person before whom the same was taken, such deed or conveyance shall be recorded in the office of register of probate for the county, or register for the■ city, where such lands, tenements, or hereditaments, respectively -, are situated, lying, and being : and every such deed or conveyance that shall at any time after the publication hereof be made and executed, and which shall not be acknowledged, proved, and recorded as aforesaid, shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee, for valuable consideration, unless such deed or conveyance be recorded as aforesaid, before the recording of the deed or conveyance under which such subsequent purchaser or mortgagee may claim.
    44 Sec. 3. That a suitable person shall be appointed register for recording deeds and other conveyances affecting in law or equity, or relating to real estate within the city of Detroit, who shall be sworn to the faithful performance of the duties of his office, and shall receive the same com. ensation as is or may be allowed for .the same services to the registei jf probate in the several counties in this Territory.”
    We think if there was no statute like the one 44 concerning mortgages,” still this court would say the act relating 44 to deeds and conveyances” is not applicable. 44Deeds and conveyances” are hot the terms used to designate mortgages. An analysis of this statute shows conclusively to our minds, that the construction attempted by the counsel for the defendant is not the one which the legislature contemplated. The latter part of the first section says, that a deed or conveyance within the meaning of this statute “ shall be good and valid to pass the lands, &c., without any other act or ceremony whatever.” Is this the way titles to lands are passed under mortgages ? By no means. Before a perfect title exists under a mortgage, there must be a failure to pay. The property must be sold, and the equity of redemption which remains in the mortgagor cut off; Another statute declares how this is performed, and when these acts are to be done, and it is wholly different from the mode pointed out in this law. It is clear, then, the. first section does not refer to or include mortgages. The second section declares that all such deeds, &c., referring back to the first section for a description of them, shall be acknowledged and executed in a certain manner, and “ such deeds or conveyances shall be recorded, in the office of the register of probate for the county, or register for the city where such lands, &c., respectively, are situated, lying, and being,” and the penalty for not recording is, that all such deeds and conveyances shall be adjudged fraudulent and void against any subsequent purchase or mortgage for valuable consideration, unless such deed or conveyance be recorded as' aforesaid, before the recording of such subsequent deed, &c.
    The counsel for the defendant insist that the mortgage under which we hold is void against them, for the reason that it was not recorded in the office of registry of deeds for the city of Detroit; though it is admitted that it was recorded in the office of register of probate, or county register. The penalty for not recording a deed there is, that it shall be adjudged fraudulent and void, while the penalty in the act concerning mortgages declares it shall be postponed only. One act.says that the deeds and other conveyances not recorded in pursuance of it shall be void, thereby rendering it necessary to record the deeds referred to in the city register’s office, under this law ; if applicable, we are not only not entitled to recover, but the mortgage under, which we claim is void, whatever the value of the premises, while the second law, or the one relating to “ mortgages,” in terms declares that the mortgage first recorded shall have preference in all courts of law and equity whatever. It is conceded that the mortgage under which we claim was recorded first in the registry for Wayne county, where this last provision prevails, and if the act concerning mortgages govern this casé, then the mortgage under which we claim is' good, and we are entitled to recover in this suit. The different penalties in the two acts would, of itself, indicate that the act “ concerning deeds and conveyances” was not intended to apply to mortgages, for we believe there is not a statute in existence in any country, nor is there a decision of any court, declaring the penalty for not recording a mortgage, as against a second mortgage, is that it is void. It is alwáys to postponé; never more. Any other law would be oppressive. Take this case, where the premises were worth, at the time the second mortgage was given, enough to pay both ; if the mortgage under which we claim is void, then we could not have redeemed from them, , and our whole security would have been lost, while if it was only postponed by paying their mortgage, we could have protected our debt. We are by no means certain, that, even if we' admit- (which we do not) • the first act to be applicable; to mortgages, we were compelled to record in the city register’s office.. Where is the record of the Lyon mortgage., under which we claim, to .be found ? In the office of register of probate, or county 'register (they are the same) , of the counties of Wayne and Monroe. Where are the lánds and' premises situated ? Answer: In the counties of Wayne and Mon,roe. Ay, but, say the Counsel for the defence, they are partly in the city of Detroit also. True ; but is not Detroit in Wayne county ? Are not the lots in question just, as much in Wayne county as though they were ■ out of the city ? Most unquestionably. The counsel for the defendant admit the record of the mortgage under which we claim is good'' for part of the lands in Wayne county, but contend it is bad for another part in the^same county.; this we do not' believe can be maintained. Our Conclusions formed from an examination of these statutes alone are, —
    1. That the first act on the statute book relates solely to “ deeds and conveyances,” and does not refer to or include mortgages.

      2. That the second act, having been pas'sed at the same time, to take effect subsequently, and relating solely to'mortgages, applies to and governs this case, and if the provisions of the two acts are inconsistent w'ith each other, the act concerning mortgagés must be sustained.
    3. But if the first act is sustained, then we say that a record of a mortgage in the probate or county register’s office for Wayne-county is good, though, part of the lands may be within the limits of the city of Detroit. But,
    Secondly. We say that this question has been decided. ' The present defendants in fact, Messrs.* Weed and Barnes, filed a bill in chancery, before the Chancellor of the State of Michigan^ against the present- plaintiff, setting up the facts as found by the jury, except. that the bill was filed before the day to redeem had expired. They asked the court to decide thét same question now before this court, that is, the validity of the. record of this mortgage'to Lyon, . tinder which we claim. The argument of the counsel then was the same as it will be here, that, the mortgage to Lyon was, as against them, under the provision of the act “ concerning deeds,” &c., void, and they asked the court to compel us to release our title. They asked the Court of Chancery to decide this question; and. after argument, the court did decide it, and the opinion of that court fully sustained us in every respect. The Chancellor said there could be no doubt but that the first act did not apply, and that the second did apply; and that the Lyon mortgage, having been recorded in accordance with the provisions of the act “ concerning mortgages,” was entitled to a preference in all courts of law and equity whatever. We suppose this adjudication, being between the same parties and upon the same subject-matter, is conclusive. This court will follow that decision.
    It is unnecessary to refer, this court to the numerous decisions establishing this rule. We believe it is without an exception that this court always follows the decisions of State tribunals, when the question turns on the construction of a State statute, where real estate is in controversy.

      Mr. Bates, and Mr. Fraser, for the defendant.
    The special verdict having found the real estate in controversy to be situated in the city of Detroit, the only question involved in this case is, whether the mortgage through which the plaintiff claims to derive title to the premises should, by the laws of Michigan, have been recorded in the registry kept for the county of Wayne, or in that established for the city of Detroit; if in the former, it is conceded that the plaintiff must prevail in this action ; but if in the latter, then the defendant is entitled to judgment on the verdict.
    It has been wellremarked by Chancellor Kent, that “ the policy of this country has been in favor of the certainty and security as well as convenience of a registry, both as to deeds and mortgages”; and it is believed that every State in the Union has some statutory provision on the subject. Congress deemed some temporary rule on this head indispensable for the new territories to be established northwest of the river Ohio, for in the Ordinance of 1787; a provision is incorporated, prescribing the manner in which conveyances were to be executed,' and proved and acknowledged, and requiring them to “be recorded within one year after proper magistrates, courts, and registers shall be appointed for that purpose.” Indeed, the security of title to real estate in a great measure depends on such registries; and it can scarcely be believed that the local legislature of Michigan should have been unmindful of the necessity of adopting adequate provisions on this subject. Yet if the reasoning of the plaintiff is correct, it would seem that the legislature of Michigan have been .sadly deficient in this respect, until the year 1827.
    The plaiatiff has contented himself with bringing into view two statutes adopted in that year, one on the subject of recording deeds and conveyances, and the other concerning mortgages; and he has merely referred to some of the provisions of those acts, to establish his' position, that the mortgage under which he claims was recorded in the appropriate registry.. These two acts ought not to be considered by themselves, for it will be found to be essential as well to a correct understanding of the subject, as to enable the court to put a proper construction on the statutes alluded to, that we care- . fully examine the previous legislation of Michigan on this subject.
    The earliest provision is a law of 1805, in the Woodward Code (so called), at page 52, which deglares, “ that the clerks of every court shall record all deeds and. writings, acknowledged or proved before such court, &c.,'together with the acknowledgments of married women, and all indorsements and papers thereto annexed, by entering them, word for word, in proper books, to be carefully preserved, and shall afterwards redeliver them to the parties entitled to them.” The -next enactment is in the Code of 1815, at page 80, which provides “ that all deeds and conveyances, which, shall be' made and executed within this Territory, of or concerning any lands, tenements, or hereditaments' therein, or whereby the same may be any way affected in law or equity, shall be recorded in the register’s office of the district where such lands or hereditaments are lying and being, within six months after thé date of such deed or conveyance ; and every such deed or conveyance that shall at any time after the publication hereof be made and executed, and which shall not be proved and recorded as aforesaid, shall be adjudged- fraudulent and void against any such subsequent purchaser ‘or mortgagee, for a valuable consideration, unless such deed or conveyance be recorded as aforesaid, before the proving and recording of the deed or conveyance under which such subsequent purchaser or mortgagee may claim.” Next follow's an “ Act concerning Deeds and Conveyances,” to be found in the Code of 1820, at page 156, the first section of which prescribes the requirements of “ all deeds or other conveyances of any lands,” &c., the second section of which declares, “ that all such deeds or other conveyances of or concerning any lands, tenements, or hereditaments lying within his Territory, or whereby the same may be in any •wise affected in law or equity; shall be acknowledged, &c., in the office of the register of probate for the county, or register for the city, where.such lands, &c., are situated, lying, and being, within six months after the execution of such deed or conveyance ; and any such deed or conveyance, that shall at any time after the publication hereof be made and executed, and which shall not be acknowledged and proved and. recorded as aforesaid, shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee, for a valuable consideration, unless such deed or conveyance be recorded as aforesaid, before the recording of the deed or conveyance under which such purchaser or mortgagee may claim. ” The third section provides for the appointment of “ a suitable person as register for recording deeds or other conveyances affecting in law or equity, or relating to, real estate within the city of Detroit; who shall be sworn to the. faithful performance of his office, and shall receive the same compensation as is or may be allowed for the same services to the registers of probate in the several counties in this Territory ; and the seventh section provides, ££ that it shall not be lawful for any register of any city or county in this Territory to record any deed, conveyance, or other writing, unless the same shall be acknowledged or proved as .is directed by this act,” &c., and the eighth section prescribes, “ that all deeds and conveyances of lands, &c.,.which shall hereafter be made and executed in any other Territory, State, or county, whereby such lands shall be conveyed in whole or in part, or otherwise affected or encumbered in law, shall be acknowledged,” &c., and recorded as aforesaid.
    This comprises the whole legislation of Michigan, from the organisation of the Territory iip to the year 1827, on the subject under consid ration ; and the similarity of the provisions in these various acts can hardly escape observation. Aside from'these statutes, nd allusion is to be found, in the whole legislation of Michigan, to the subject of mortgages,juntil the year 1827 ; nor any separate pro-1 vision touching their execution, registry, or foreclosure ; and if the mortgages which had been executed on real estate within the city of Detroit anterior to that time are not covered by these. provisions, fearful indeed must be the condition of titles to city property, for it will.be agreed ón all hands, that these statutes have been universally held, as well by the profession as the community generally, as comprehending that class of deeds. It is equally certain, that ever since the establishment of a separate registry for the city of Detroit, mortgages, and other deeds affecting real estate in the city, have'uniformly been recorded in that registry. Such has been the practical construction put on the law of 1820, and on that of Í827, referred to by the plaintiff, up to the year 1837, when an act was passed (Laws of 1837, p. 268)' requiring the duties of the city register to be performed by the register of the county of Wayne. Up to that time, scarcely an instance can be pointed out of a mortgage of city property being recorded anywhere else than in the city registry, except the mortgage on which the plaintiff seeks to recover in this action. It will be perceived, that the law of 1827 is merely a reenactmént of the law of 1S20, with this difference only, that the latter statute limited the time within which deeds should be recorded, and superadded a provision for the recording of deeds which had been previously executed “ in the. city or county registry, as the case might r quire, agreeably to the provisions uf that actAnd in the Revised Statutes of 1833, the act concerning deeds and conveyances of } 827 is again transcribed and adopted ; and in both these acts the provision which requires ££ deeds and other conveyances affecting in law or equity, or relating to, real estate within the city of Detroit ” to be recorded in the city registry is still preserved and incorporated.
    Now it is urged that the reason and necessity of these laws, no. less than the language employed and the context, manifestly show the intention of the legislature to have been the establishment of a registry of every description of deeds which might affect real estate. The general object was to prevent frauds on purchasers, mortgagees, and perhaps creditors, by having a place to which all might resort for the necessary information.
    The terms made use of are general. No particular description of deeds is tó be found in any of the acts, but the language used is sufficiently comprehensive to.include mortgages, else why introduce into these acts terms which would be inapplicable to the recording of conveyances merely ; such as “ all deeds, or other conveyances . concerning any lands, or. whereby the same may be in any way affected in law or equity ” ? And again, unless mortgages were in contemplation of the legislature, why declare that every such deed or conveyance that should not be recorded as aforesaid should be adj’udged fraudulent and void against subseqtieiit purchasers or mortgagees, unless such deed of conveyance should be recorded before the recording of the deed or conveyance under which such purchaser or mortgagee might claim ? And further, why should the sixth section of the act of 1827 use the terms “ deed, conveyance, or other writing”} and the seventh section require deeds whereby lands were sold, or “ Othei wise affected or encumbered in law,” to be recorded ?
    This is the language employed in the several statutes that have been passed upon this subject anterior and subsequent to 1827 ; and at the very time, too, that the mortgage law of. 1817, relied on by the plaintiff, formed a part of the revised code. To presume that these enactments did not apply to mortgages executed prior to 1827 is presuming that the legislature overlooked a subject of the deepest importance to the rights of parties, arid the securities of titles ; but if it be conceded that they did so apply, then it is insisted that they are equally applicable to mortgages executed after that period of time.¿since the same laws continued to be operative until the year J837, long after the execution of the plaintiff’s mortgage. And we emphatically ask, if the plaintiff in this case, in the position he now occupies, does not come within thq meaning, spirit, and terms of those acts ? Does he' not claim rights in opposition to a subsequent mortgagee for a valuable^ consideration ? Does not the “ deed, conveyance, or writing ” in virtue of which he makes this claim affect or encumber in law the premises in question ? And if so, does not that statute affix the penalty of his own omission,., by declaring that his deed shall be deemed, fraudulent and void, unless registered in the city registry ?
    But independent of the manifést intention of the legislature, in the various provisions above alluded to, to include mortgages, we might with confidence refer to the practical construction which they have uniformly received, should any ambiguity be found in the terms in which they are couched. Considering the purpose for which these acts were made, in order to. attain them, they ought to have , a liberal construction. The practice of recording mortgages of real estate, lying' within this city, in the city registry has been sanctioned byt a most extensive and continued usage, from the year 1820 to the year 1837, and it is apprehended that courts will take notice of such usage under a statute. If it is now to be condemned, few titles to city- property will be secure. Optimus■ legum. interpres consuetudo. The propriety of applying this maxim to this case is sufficiently apt parent. Long usage has been allowed great weight in cases allied to this. In reference to a usage which had obtained, under a statute concerning the acknowledgment of deeds, Chief-Justice Tilghman, in the case of M’Ferran v. Powers, 1 Serg. & Raw. 101,107, says : — “So extensive and deep rooted is the practice, that many titles depend upon it; and it would be unpardonable to disturb it now, by a critical examination of the words of the act.” To the like effect is the opinion of Chief-Justice Marshall, in the case McKeen v. Delaney’s Lessee, 5 Cranch, 22, 29,32, 33. And Lord Mansfield, in 2 Eden, 74, says, in reference to the usage which had obtained under the statute of Hen. VIII., as to the jointures : — “ Consider alsp the usage and transactions of mankind upon it. The object of all laws in regard to real property is quiet and repose.” Chancellor Sandford, in tiie case of Troup v. Haight, 1 Hopk. 239, 268, in regard to the acknowledgment of a deed, held that the general usage, long and unquestioned, has great weight, in the construction of the act, though such con&truction be not giyen upon adverse litigation.
    But it would appear that the plaintiff’s sole reliance for a recovery in this action is based oh the act concerning mortgages, adopted for the first time in the year 1827. Now let it «be kept in view, that this is the first special act passed in reference to mortgages in terms; that it was adopted on the same day with the act concern^ ing deeds and conveyances, though to .take effect in January, 1828 ; and that both these statutes are incorporated in the Revised Statutes of 1833, at pages 279 and 283, as they originally stood, and we ask what is the inference to be drawn from this fact. Clearly, that no change was contemplated as to the particular registry in which these “ deeds, conveyances, or other writings ” wére to be recorded. If not, it may be urged,rwhy the necessity of adopting a special provision in regard to mortgages ? We answer,-that this law was introduced merely as a remedial law, to provide for a statutory foreclosure,— a remedy unknown both to the common law. and to our legislation. ; and the scope of the provisions of the act is conclusive on that head. The act appears to have been- transcribed from the laws of New York, and the clause for the recording of mortgages was introduced without adverting to the previous legislation oh the subject. These two statutes then relate to the same subject, so far as they relate to the recording of deeds or mortgages ; and “ it is to be inferred that a code of statutes relating to one subject was governed by‘ one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions.” It is therefore an established rule of law, that all acts in pari materia are to be taken together, as if they were one law ; and they are directed to be^om-pared, in the construction of statutes, because they are considered as framed upon one system, and having one object in view. “ Indeed the latter act may be considered as incorporated in the former.” Dwarris on Statutes, 699, 700 ; 4 T. R. 447, 450; 5. T. R. 417, 419; Doug. 30. “ And the rule applies, though some of the statutes may have expired, or are not referred to in the other statutes ; Dwarris on Statutes, 700; 1 Burr. 445, 447 ; Bac. Abr., tit. Statutes, I, 3 ; 1 Ventris, 244, 246.
    If, then, as is most manifest, it was intended by the law of 1827 to record u deeds, conveyances, and other writings relating to real estate in the city of Detroit,” in the separate record previously provided for that purpose, is it not fair to presume that the legislature contemplated that mortgages should also be recorded in the same registry ? It would be absurd to suppose that it was designed to record one .class of deeds, affecting city property, in the city registry, and another in the county registiy .; and yet we must arrive at that result, if the construction contended for by the plaintiff is to obtain. The construction contended for by us can be adopted without doing violence to the mortgage law ; nor is this view of the case weakened by the fact, that that law was not to go into operation until some time afterward. This merely shows, that the law was adopted for the remedy provided to the creditor without resorting to a suit in chancery, and that that remedy was limited to mortgages executed after its passage.
    It has been said that this question has been decided in this State by the Chancellor. We are not called upon to consider the effect of a decision of the highest tribunal of our State on the question, directly presented for its adjudication, but that of a subordinate court, from which an appeal lies to the supreme court of the State (Revised Statutes of 1838, p. 379), in a case which was never argued, and between other parties than those to this record ; and where an appeal, too, was taken to the Supreme Court, but the benefit of which was lost in consequence of an omission to file an appeal bond in due time. Surely such a decision, under such circilmstances, cannot be considered as putting a settled construction on these statutes, nor prejudice the rights of parties. Besides, it is obvious from the opinion, that the Chancellor has taken too limited a view of this subject, for he considers the effect merely of the twp acts of 1827, without the remotest allusion to previous legislation in connection with. them.
   Mr. Justice WOODBURY

delivered the opinion of the court.

The sole question presented in this case is, whether a mortgage executed by the tenant and her husbánd to James Lyon, on the 13th of November, 1828, shall prevail over another mortgage. executed by them to Nathaniel and Harvey Weed and Henry W Barnes, on the 6th day of June, 1837. Being earlier in time; by nine year?, the first mortgage ought of course to have precedence, and will entitle the demandant to recover, unless it was improperly recorded.

The facts, important to be now noticed in connection with that question, are, that, at the time of the execution of the first mortgage, there were two registries,— one !n the city of Detroit, and the other in the county of Wayne, within which that city was situated. The premises in dispute were within the limits of the city, and the first mortgage was recorded, on . the 30th of January, 1829, in the registry for the county of Wayne, but not in the registry for the city of Detroit, where the second mortgage was recorded, June 7th, 1827. On these facts, whether the recording of the first mortgage was legal or void must depend upon the construction óf two statutes of the State of Michigan, both passed April 12th, 1827.

The demandant relies upon one ,of them, as being the only statute for recording “mortgages,” and as his registry was duly made under that, he claims to recover. While tie tenant relies upon the other statute, as embracing the case of mortgages, and as his was the only one recorded in conformity with it and others not so recorded are declared void, he asks for judgment in his favor. It seems hardly to have occurred to either side, that a construction may be given to these statutes, which will make them both operative on this subject, and sustain both of the mortgages according .to their original rank and intent; and if no legal principle is opposed to such a course, it is certainly entitled to preference.

Because it is a Well settled principle of construction, that conveyances, aré, if practicable on any reasonable view of the subject, to be sustained rather, than pronounced void, and also, .that statutes which apparently conflict with each other are to be. reconciled, as far as may be on any fair hypothesis, and validity given to each, if it can be and is necessary to conform to usages under them, or to Íreserve the titles of property undisturbed. Cooper v. Telfair, 4 Dall. 14; 1 Serg. & R. 105; 2 Cranch, 358; 5 Cranch, 25; Bac. Abr., Statute, I.

The statute which passed on the 12th. of April, 1827, and related to “ deeds and other conveyances,” went into effect immediately, and was the only law- of the State in forbe as to recording mortgages as well as other deeds, till January, 1828.

It provided, that all deeds should be recorded in *the county of Wayne or the city of Detroit, according as the land conveyed was situated in one or the other. Laws of 1827, p. 258.

Though the title to this act and its general language do not embrace' mortgages eo nomine; we do not agree with the counsel for the. demandant, that they are not included.

In the second section, the word “ mortgagee ” is twice used. In the third section, also, “ conveyances affecting iri law or equity,” “ real estatés,” are spoken off And besides this, it is reasonable to construe it as ineluding mortgages under the general words of “ all 'deeds and other conveyances of any lands,” &c. (Sec. 1.),. because they are sufficiently» broad for that purpose, and because a similar generality had existed in the expressions in former laws in the Territory oh this subje'ct (Woodward’s. Code, p. 52; Code of 1820, p. 15§), and was construed to include mortgages ; and be-; cause, if these are not included, there were eight months, from April,.

1827, to January, 1828,-during which no law except the first one was in operation, and consequently when no provisions whatever existed in respect to the recording of that important species of conveyance. The law, then, for that eight ftionths, as to recording mortgages, must be considered to have been, that those relating to lands in the city of Detroit should be recorded there, and those relating to lands in other parts of the county of Wayne should be recorded in the registry for the county. (See the second section.)

The prior mortgage in this case, however, was not executed within that period, but on the 13th of November, 1828 ; and in the mean time the other act, which passed on the same day with that' we have just considered,, had come into operation “ concerning mortgages,” and was made applicable to all executed after January 1st, 1828., '

The next important question then is, What, if any, was the alteration made by it in respect to the recording of mortgages ? and was the mortgage to Lyon, not having been registered as the first act required, recorded in the manner authorized by the last act ?

That act purports to relate to “mortgages” alone; leaving other conveyances to be recorded as they, had been under the other Jaw during the eight mo'nths before it took effect. As to “ mortgages,” it provided, that those executed after the 21st of January, 1828, “may be registered in the county in which thq lands or tenements so mortgaged are situated,” and that a subsequent one, recorded before a prior one, should be preferred. Laws oí* the ■Territory of Michigan, p. 273.

The mortgage under which the demandant claims, being executed about" eleven months after these new provisions, was recorded in conformity to them.

After this literal compliance with that law, and a construction under it which seems to uphold, as should be done, if practicable, the early mortgage, it does not seem desirable, and it is hardly expedient, unless on principle necessary, tó resort to a different construction, which would render the first security void as to the second mortgagee, although recorded in strict conformity with the law last going into operation. And as little does it seem expedient, unless necessáry under imperative principles or precedents, to push this construction so far as to avoid or postpone any mortgages recorded in conformity to the provisions of the act first going into operation. The statute as to “ mortgages ” does not profess, in so many words, to repeal any portion of the other statute ; nor is it necessary so to construe it. Going into effect later, if not passed later, it is true- that any of its provisions entirely inconsistent with the laws in forcé before it took effect, or repugnant to .them, might, without words of repeal, lie considered' as changed or abrogated, and the first impression would naturally be, that dip provisions of the second law, so far as regards mortgages of land situated in the city of Detroit, were irreconcilable with the former act, and hence’ tó that extent repealed it. But such a construction, though sustaining the mortgage to Lyon, might avoid many others and disturb numerous titles, and hence is not to be adopted, unless clearly, the proper one. Ld. Raym. 371; Bac. Abr., Statute,C and G; Stradling v. Morgan,. Plowd. 206. We think it is not the proper one.

A second law on the same subject does not repeal a former one without a.repealing clause or negative words, unless so clearly repugnant as to imply a negative. .1 Bl. Com. 89; 1 Gall. 153j in Case of Ship Argo, “ leges posteriores priores contrarías abrogant.” ' But if they be not so contrary or so repugnant, that the last act expresses or implies, a negative of the first, Sien they may continue to stand together. And, if such be the case here, a mortgage of city property recorded in conformity, to either law would be valid. Such, in our opinion, is the casé here, there being no words of repeal or negation in the act concerning mortgages. Many eases of this kind, very analogous, are cited in Foster’s case, 11 Coke, 63, 64. See also 2 Roll. R. 410 ; 19 Viner’s Abr. 525.

Among them is one where an act of parliament made an offence punishable at the Quarter Sessions, and another passed making it punishable at the Assizes, without any. words Of repeal. It was held that you may indict under either, or at either court. 11 Coke, 63.

The same "result is arrived at, if the two acts be considered as passing and taking effect, as one law, on the same day. In that view, the last one only says thatc ‘-mortgages ” executed after the 1st-of January, 1828, “ may be registered ” in the county where the lands lie ; while the first one provided, that they “ shall be recorded ” in the registry of the city, if the lands lay within its limits. These provisions may stand well together, upholding, under one act, a recording of mortgages in the city registry, as good in all cases of property situated there ; and, under the other, upholding a record of mortgages of like lands in the county registry as also good, whenever any persons prefer to resort to that. As either, of these views does not avoid the second mortgage, but only gives it,, as was intended by the maker of it, a rank second to the first one, and as they both give force or operation to both statutes, and do not endanger or disturb titles either in the city or county, when either statute has been complied with, they ought to settle the question.

It may not be amiss to notice, also, that the mortgage to Lyon contained land in the county of Monroe, as well as in the city of Detroit, and having been seasonably recorded in that county, would be valid for some purposes, if not for this, without any second registry whatever in another city or county. McKeen v. Delaney’s Lessee, 5 Cranch, 22 ; Delancy’s Lessee v. McKeen, 1 Wash. C. C. 525.

It is gratifying to find, that our conclusion in this case accords with the' result in the only decision which is supposed to have been made in the State of Michigan on this subject. See,Weed et al. v. Lyon et al., in Harrington, 363. :

Had that decision been made by the highest judicial tribunal of the' State, or been shown to accord with a settled usage and practice under these statutes affecting the titles to real estate. We should have felt bound to conform to it, as a part of the local law. 9 Cranch, 87 ; 2 Peters, 58, 85 ; 6 Wheat. 119 ; 10 Wheat. 152; 11 Wheat. 361 ; 1 Brockenbr. C. C. 539.

But, though entitled -to respect and weight, that case has hot been treated as a precedent to control this, because the judgment was.not in a court of the last resort, and is said to have been appealed from, but further proceedings defeated by some accident.

Let a certificate be sent down, that, in the opinion of this court, the recording of the mortgage from Hale to Lyon was sufficient to give it validity and priority under the laws of Michigan.


source: Caselaw Access Project

author: Mr. Chief-Justice TANEY

license: Public Domain

text:
    Thomas Maney, and others, Plaintiffs in error, v. Thomas J. Porter, Defendant.
    The decision of a state court upon the merits of a controversy between two parties, one of whom had sold, and the other purchased, an interest in lands which, it was thought, could be acquired as Indian reservations under a treaty with the United States, cannot be reviewed by this court under the 25th section of the Judiciary Act. .
    The party against'whom the state court decided, instead of setting up an- interest under the treaty, expressly averred that no rights had been obtained.
    In such a case, this court has no jurisdiction.
    This case was brought up by writ of error to the Supreme Court of Errors and Appeals for the State of Tennessee, under the„25th section of the Judiciary Act.
    The case was this. Thomas' Maney, one of the plaintiffs ia error, on the 4th of October, 1836, gave his note to the defendant m error, for ‡ 5,000, payable eight months after date. íjSuit was afterwards brought qn this note, and judgment recovered in the State Circuit Court, from which Maney appealed to. the Supreme Court of Errors and Appeals where the judgment was affirmed against him.
    He then filed his bill in the Chancery Court, and .obtained an injunction. The defendant in error answered, and upon the heading, the injunction was dissolved and the bill dismissed.; and this decree was affirmed in the Supreme Court of Errors and Appeals against the said Maney and the other plaintiffs in error, who were his securities in the appeal bond. It is from the last mentioned decree that the present writ of error was brought.
    In order to understand the character of the controversy in the State court, and the points in issue between parties, it is proper to state that by the 14th article of the treaty with Jhe Choctaw Indians, made at Dancing Rabbit Creek on the 27th of September, 1830, it was stipulated that each Choctaw head of a family, being desirous to remain and become a citizen of the States, should be permitted to do so by signifying his intention to the agent of the United States within six months from the ratification of the treaty ; and should thereupon become entitled to a reservation of .one section of 640 acres, to be bounded by sectional lines, —r one hálf that' quantity for each unmarried child living with him over ten years at age, — and a quarter section for each child under ten ; to adjoin the location of the parent. And if they resided on such, land intending to become citizens five years after the ratification of .the treaty, a grant in fee simple was to issue ; the reservation to include the improvement held by the head of the family at the time of the treaty, or a portion of it.
    The bill filed by Maney stated, that in December, 1835, the defendant informed him that many Indians had within thé time prescribed signified to the agent of the government their intention to remain under the above article of the treaty, whose names he had neglected to register and certifyand that in consequence of his neglect, the lands to which they were entitled, with the improvements, had in . many instances been sold, and had passed into the possession of the purchaser; and those who still retained possession of their reservation had become much alarmed ; that Gwinn and Fisher had undertaken to secure these reservations to the Indians entitled, or to obtain for them an ¿quivalent; and had. made contracts by which the Indians were to give them one half (and in some cases more), if they succeeded; that Gwinn and Fisher had employed the. defendant in error to a'ssist them in the business ; that he held their' obligation for twenty-five sections of these claims»; that he had.no doubt of success ; that the matter'had already been before Congress,'and it had been ascertained that a majority of both Houses were in favor of it; that he was confident a law would páss authorizing' commissioners to be appointed to investigate and decide upon these claims, and that the reservations would be made good to the persons entitled ; and that if Congress did not pass the law, the rights could be enforced in the courts of justice ; that the ’ defendant in error represented these Indian claims as of great value, and said that they had been already located on good lands, which were worth ten dollars per acre, . and proposed, as a matter of favor, to sell, a portion of his interest to Maney ; and that he (Maney), having himself no knowledge upon the subject, and relying altogether on the statements of the defendant in error, purchased from him one undivided half part of his cláim to the twenty-five sections above mentioned for $ 10,000 ; and thereupon gave two notes Of $• 5,000 each for the purchase money, and received from the defendant a covenant to convey.
    The bill further stated, that for reasons therein set forth the complainant became .dissatisfied with his purchase, and thought he had been deceived ; and in March, 1836, he applied to the defendant to rescind it, who refused ; but that afterwards, in October, 1836; he agreed to take back the one- half of these claims ; and thereupon the two notes before mentioned were cancelled, and the note' on which the judgment was rendered was given by Manéy, and a cOve- ■ hant made by the defendant to convey, according to this contract; that at the time the last mentioned agreement was made, as well as before, the defendant had ¿greed that he would take baok the lands and rescind the whole contract if the complainant' desired' it; in case Congress should pass a law authorizing ,a commission to examiné into and decide upon these claims ; that he and Gwinn and'Fisher would continue their exertions to secure the titles, and'that; a law authorizing a commission to inquire into their validity would place them beyond reasonable doubt.
    The bill fiirthér states, that the law proposed was passed by Ohtt* gress ; but that the defendant had refused to rescind the contract, and had not continued to give his: attention to the -business as he promised; that he had sold out the residue of his interest; that Gwinn and Fisher, as the complainant understood,'had likewise sold out their interest,- or nearly all of it; that • none of the claims had been secured, and the complainant did not think it probable that they would be obtained by the assignees of the Indians ;. that he had never received any thing in land or money,'and apprehended that be never would ; and prayed an injunctipn to restrain the defendant in error,. from suing out execution on the judgment at law, and that the contract might be rescinded and set aside.
    This is the substance of the bill, which is a very long One, going into much detail, and stating conversations which Maney alleges he held with the defendant in error, and with others, upon the subject; but which it is unnecessary to set but at length, as they are not mar terial to the point upon which-the case was disposed of in the Supreme Court.
    • The defendant put in his answer, denying and putting in issue -all . the material allegations in the bill ; and it was -upon this bill and answer, and the proofs taken upon the matters thus ip issue, that the decree was made upon which this writ of error is brought.
    The case was argued hy Mr. Brinley for the plaintiffs in error j and by the Attorney-General, for the defendant.
    As the decision of the court restéd entirely on thejquestion of jurisdiction, all those parts of the argument which involved the merits of the case are omitted in the report.

      Mr. Brinley

    rested his argument in favor of the jurisdiction of the court, upon the proposition that the contracts of the Indians were held to be valid because they had a right or authority-to make them under the State laws of 1829 and 1830'; and that the authority exercised under those laws was repugnant to .the treaty of 1830, and to the laws of the United States ; and that the decision of the State court was in favor of the authority thus set up.

      Mr. Mason, Attorney-General,
    contended that the facts in this case were not sufficient to sustain jurisdiction.
   Mr. Chief-Justice TANEY

delivered the opinion of the court.

Upon examining the bill in this case, it is not-easy to determine, from the loose manner in which it is drawn,’ whether the complainant claimed the .relief he asked for on the ground that the representations made to him by the defendant were false and fraudulent; or on the ground that the consideration for which thé note was given had failed, because the defendant was unable to convey him a title to the Indian reservations.

It is evident, however, that the suit was not brought to uphold any title-or right which the complainant claimed under the Choctaw treaty, or under the law of Congress which he states to have been passed upon the subject. For he does not ask for a conveyance of the reservations, nor of the Indian title to them. And he does not even aver that these claims are valid, or that he hás any title to them ; but, on the contrary, charges that none of the claims had been secured, and states that he did not think it probable that they would .he obtained by the assignees of the Indians. And as the case has been removed here from the decision of a state court, we have no right toL review it unless the complainant claimed some right under the treaty w' h the Choctaws or the act of Congress, and the decision of the state court had been against the right, title, cur privilege specially set up by him ; and even in that case, the power of revision given to this court extends no further than to the particular question thus raised and decided against the party. In the case before us, no such title, right, or privilege was claimed by the bill, and of course no decision was made against it in the state court. We therefore can exercise no jurisdiction, in the case, and are not authorized to exámine any questions of fraud or failure of consideration, or breach of contract, which the bill may be supposed to present, and upon which the court of the State of Tennessee may now decide.

Upon referring to the reports of this court, it will be seen that the 25th section of the act of Congress of 1789, under, which thig writ of error is brought, has been often the subject of examination and comment in this court, and the construction of the section and the practice under it well sbttled by many decisions. It is unnecessary to repeat here what the court have said upon former occasions. It is very clear, that this case is not within the provisions of the section, and the writ of error must therefore be dismissed for want of jurisdiction.