I think this case falls within the case of Davidson v. Beard, (2 Hawks, 520,) and to that case I refer. Let the rule for a new trial be discharged.
In this judgment, the Chief-Justice and Judge Henderson concurred.
Tate v. Brittain, 10 N.C. 55, 3 Hawks 55 (1824)
June 1824
·
Supreme Court of North Carolina
10 N.C. 55, 3 Hawks 55
Tate and others v. Brittain.
j- From Burke. J
A mortgage deed not registered in time, when registered, has no re. lation back to its date, but operates-only from the time of registration j it shall not, therefore, avail any tiling- against an execution levied after its date, and before its registration.
This was an action of trespass, for taking a negro boy out of the possession of the Plaintiffs.
The Plaintiffs, on the trial below', produced a mortgage deed for this negro, and other property, executed by John McGuire, on the 2d of May, 1820, certified 1o be proved at July Sessions of Burke County Court, (the first Court after its execution) and registered 29th of July, 1820; they then proved that they were the securities of McGuire, to a large amount, and took the mortgage to secure themselves ; when the deed was executed, but one of the Plaintiffs was present, to whom it was delivered. On the succeeding day, McGuire delivered all the property to one of the Plaintiffs, who left, it in McGuire’s possession; about two weeks after, one of the Plaintiffs took the negro boy into his possession, and while thus situated, Defendant took him and sold him.
*56The Defendant, who was Sheriff of the county, produced a judgment, granted by a Justice of the Peace, in favour of one Caldwell, on the 2d of June, 1820, against j0|ul McGuire, execution thereon issuing on the same day, which Defendant levied on the 4th of June, 1820, upon the negro boy, and on the 28th sold him. Defendant had notice of the mortgage before, and at the time of sale.
The. Jury was instructed that a delivery of the mortgage deed, to one of the Plaintiffs, was a delivery to all; but as it was not registered within the time limited by law, viz. fifty days from its date, it must yield to liens created after its date, and up to its registration; that the Plaintiffs mortgage,'not having been registered in time, could have no relation back, hut acquired its efficacy from the date of its registration, so far, at any rate, as the liens created by the execution, under which the Defendant acted, was concerned, and must give way to it.
Yerdict for the Defendant and judgment accordingly, and the cause was heard in this Court, on a rule to shew cause why a new trial should not be granted.