Thomas Beals, Plaintiff v. Felicite Hale, Defendant

• Decision Date: 01 January 1846
• Citation: 45 U.S. 37,11 L.Ed. 865,4 How. 37
• Parties: THOMAS BEALS, PLAINTIFF, v. FELICITE HALE, DEFENDANT
• Court: U.S. Supreme Court

45 U.S. 37

4 How. 37

11 L.Ed. 865

THOMAS BEALS, PLAINTIFF, v. FELICITE HALE, DEFENDANT.

January Term, 1846

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 Bennet, Robert Rumney, Austin Stocking, Sylvester Granger, 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 and thirty-eight, foreclosed under the statutes of the State of Michigan, and the said several lots sold at public auction, and struck off to said 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 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 the institution of this suit, and still is, a tenant in possession of 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 before 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 thereof 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 1827. 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 the registering of all mortgages of any lands or tenements situated withim their respective counties; in which books shall be entered the names of the mortgagors and mortgagees, the dates of the respective mortgages, the 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 persons whomsoever, at 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 allowed 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 all damages 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 instruments to 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...