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Although the statute is peremptory in form, it is potential in effect; in so far, that he who chooses to hazard his title by neglecting to record his deed, may do so, and abide any disaster that may attend the jeopardy. The consequence of his neglect is, that his unrecorded deed is absolutely void, as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded. A subsequent conveyance, however, will not take precedence, although first recorded, unless it be in good faith, and for a valuable consideration. The good faith will be presumed, until the contrary be shown in all cases; hence, the burden of proving bad faith and want of consideration, to defeat a subsequent purchaser or mortgagee, will rest upon the prior purchaser.

"Good faith," in this connection, indicates knowledge, or notice of the prior unrecorded conveyance. If the subsequent purchaser knew of the prior deed, however slight may be his knowledge, the law will not accredit him good faith toward the prior grantee, in taking a subsequent conveyance of the same land; for to do so, would be to contravene the general policy of the statute. A valuable consideration is requisite to the validity of the second conveyance; for if there be no consideration paid by the subsequent purchaser or mortgagee, he will have lost nothing of value, in case his deed is declared void; and the equity of the statute will be in favor of the prior grantee, whose deed was upon a valuable consideration. Hence, the statute requiring good faith and a valuable consideration on the part of a subsequent purchaser, to enable his deed to prevail against another of a prior date, is founded in equity and sound policy.

It is further enacted, that different sets of books shall be provided by the Clerks of the several counties, for the recording of deeds and mortgages; in one of which sets, all conveyances, absolute in their terms, and not intended as mort

gages, or as securities in the nature of mortgages, shall be recorded; and in the other set, such mortgages and securities shall be recorded." [Id., Sec. 2.]

"Every deed conveying real estate, which by any other instrument in writing shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage; and the person for whose benefit such deed shall be made, shall not derive any advantage from the recording thereof, unless every writing operating as a defeasance of the same, or explanatory of its being designed to have the effect only of a mortgage, or conditional deed, be also recorded therewith, and at the same time." [Id., Sec. 3.]

This section of the statute was enacted for the prevention of fraud. Whilst it recognizes the doctrine advanced in relation to deeds and mortgages where the defeasance is separate from the conveyance, it at the same time makes provision against the collusion and fraud which such conveyances might otherwise cover, by going upon record as absolute conveyances, to the prejudice of creditors of the grantor, when the same was in fact but a mortgage. The grantee, therefore, of such a conveyance, must take heed that the defeasance executed by himself to the grantor thereof, be not only recorded, but recorded contemporaneously with his conveyance, lest he lose all benefit of the recording of the latter. The Clerk, it will be remembered, is required to provide and keep different sets of books, in which to keep the record of deeds and mortgages. Whilst the recording is notice to all the world of the existence of a conveyance, it must be observed nevertheless, that an improper record is not a notice that will bind a creditor, subsequent purchaser, or incumbrancer. To record a conveyance, absolute upon its face, but intended as a mortgage without the defeasance, would be to record it as a deed, in a set of books other and different from those which contain the record of mortgages.

In such case, the record thereof would not be the record of a mortgage; and the constructive notice thereof would not be notice of a mortgage, but rather of a deed; and being improperly recorded, the statute deprives the grantee of all benefit of the record. To protect it against subsequent purchasers and incumbrancers, it must be recorded as a mortgage; but this cannot be done unless the defeasance goes upon record "therewith and at the same time." In 1 Paige, 553, Chancellor Walworth remarks that "the object of this statute undoubtedly was to require every deed or instrument which was in fact only a mortgage, to be recorded. In Day vs. Dunham, 2 Jolin, Ch. Rep. 188, Chancellor Kent held, that a deed absolute upon its face, but intended only as a security by way of mortgage, must be recorded as a mortgage, to protect the property against a bona fide purchaser; and that a constructive notice, arising from its being recorded as a deed, was not sufficient. It is true, in that case there was a written defeasance; but it was not executed until six months after the recording of the abso lute deed, and long after the conveyance to the adverse party. It therefore could not have altered his rights if the defeasance had continued in parol. If the deed and defeasance had been recorded together as a mortgage, the moment the defeasance was executed it would not have protected the property against the intermediate conveyance. The decree in that cause was afterwards reversed in the Court of Errors, on the ground that the intermediate purchaser had actual notice, but the decision upon the point now under consideration was deemed correct. [15 John, 555.] The same question came before the court in James vs. Johnson and Morey, [6 Johnson, Ch. Rep. 417,] where there was no written defeasance, and was decided in the same way. When that case afterwards came before the Court of Errors, [2 Cowan, 247,] the present Chief Justice examined that question and concurred in the construction of the statute given by Chan

cellor Kent; and the correctness of that construction was not questioned by any member of the court.

There can be no hardship or injustice in such a construction; but on the contrary, it will more effectually carry into effect the intention of the Legislature, and prevent fraudulent conveyances and secret trusts. If a conveyance is intended only as a mortgage, there can be no good reason why the terms on which it is to be defeasible should not appear on its face. If, through inadvertence, it is taken as an absolute deed, the holder may comply with the terms of the statute by making a written defeasance, specifying the conditions on which it was intended to be given, and recording both together in the book of mortgages. If he do this before the rights of any third party have intervened, he will be protected. And if he neglect it, he will only be in the same situation of every other mortgagee who neglects to have his security recorded. To entitle any conveyance to be recorded, either as a deed or mortgage, it must be properly acknowledged by the party or parties executing the same, or proved by a subscribing witness thereto and have endorsed thereon a certificate of such proof or acknowledgment, which certificate goes upon the record as an incident, together with any authentication that may be attached. The statute provides that "where any conveyance shall be proved or acknowledged before any Judge of the County Courts, not of the degree of Counsellor at Law in the Supreme Court, or before any Commissioner of Deeds, or Justice of the Peace of any county, it shall not be entitled to be read in evidence, or to be recorded in any other county than that in which such Judge, Commissioner or Justice resides, unless in addition to the preceding requisites there shall be subjoined to the certificate of proof or acknowledgment signed by such Judge, Commissioner or Justice of the Peace, a certificate under the hand and official seal of the Clerk of the county in which such Judge, Commissioner or Justice resides, specifying that such Judge, Commissioner or

Justice of the Peace was, at the time of taking such proof or acknowledgment, duly authorized to take the same, and that the said Clerk is well acquainted with the hand writing of such Judge, Commissioner or Justice of the Peace, and verily believes that the signature to the said certificate of proof or acknowledgment is genuine. [Id., Sec. 18.] This section, however, does not apply to any conveyance executed by any agent for the Holland Land Company, or by any agent for the Pulteney Estate, lawfully authorized to convey real estate. [ld., Sec. 19.]

The certificate of the proof or acknowledgment of every conveyance, and the certificate of the genuineness of the signature of any Judge, Commissioner, or Justice of the Peace, in the cases where such last mentioned certificate is required, should be recorded, together with the conveyance so proved or acknowledged; and unless the said certificates be so recorded, neither the record of such conveyance nor the transcript thereof can be read or received in evidence. [Id., Sec. 20.]

The jurisdiction of County Judges not of the degree of Counsellor at Law, Commissioners of Deeds for any city or county, and Justices of the Peace, are limited to their respective counties, and they are not judicially known beyond the confines thereof. Within their respective counties, however, all persons are bound to observe and recognize their acts. Their signatures carry all necessary evidence of the matter contained in their certificates, both to courts and recording officers. But where the deed is proved or acknowledged before a Judge not of the degree of Counsellor at Law, or a Commissioner of Deeds, or a Justice of the Peace, residing in Albany, and the land conveyed is in Cayuga, the Clerk of the latter county does not judicially know their signatures, and hence cannot safely record the deed. But it is otherwise with the Clerk of Albany. He is bound to know their signatures. He keeps the rolls of office upon which are entered their names, in the proper hand writing of each

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