On the 15th of October, 1860, the plaintiff sold and conveyed a tract of land to the defendant, Styres, for tiite-sum of $570, taking his bond for the purchase money with the defendants, Harrison and Hill, as the sureties thereon. At the same time, and as a part of the transaction, Styres, the principal, executed to the sureties a mortgage of the land, reciting therein the suretyship and expressly stipulating that Styres should pay the debt on or before the 15th of March, 1861, or the deed should become absolute. The mortgage was not registered until the 14th of May, 1861. The principal and sureties in the bond are now insolvent, and the land embraced in the mortgage is the only property available for the payment of the debt. The prayer of the complaint is for judgment on the bond and a foreclosure and sale of the mortgaged premises for the satisfaction of the debt.
The defense mainly relied on is, that the mortgage is void under the seventh section of an act of the Legislature, ratified the 11th of May, 1861, and known as the first stay law of the war. That section is as follows: “That all mortgages and deeds of trust for the benefit of creditors hereafter executed, whether registered or not, and all judgments confessed during the continuance of this act, shall be utterly void and of no effect.”
It will be observed that the mortgage was executed on the 15th of October, 1860, the stay law was passed on the 11th of May, 1861, and the deed was registered on the 14th of May, 1861. The mortgage was executed prior to the act of the Legislature, which, in express terms, makes void those mortgages and trusts only, which should be executed after the passage of the act. This deed, then, does not fall within the prohibition of the act. It is true, the mortgage was not-registered until after the act was ratified, but the act clearly refers to the time of the execution of the deed, and not the time of its registration, for the terms used in the act are “ hereafter* executed, whether registered or not,” that is, whether those *294mortgages and trusts, which shall hereafter be executed, shall be registered or not. Prior to the act, mortgages were good interpartes, without registration, and the purpose of the act -seems to have been to make such deeds void as well as registered ones, when they were executed after the passage of the act. Certainly, when this mortgage was executed on the 15th of October, 1860, there was no law in existence which forbid it; it was then valid between the parties, and the subsequent act does not, in terms or by implication, forbid its registration. Valuable rights were acquired by the plaintiff, by virtue of the mortgage, even prior to registration; rights which could not be divested without impairing the obligation of contracts. If the contract of mortgage was valid when entered into, it was not competent to the Legislature, afterwards to make it invalid. If the act of May 11th is fairly capable of it, it must receive such a construction as will not conflict with the Constitution.
But this court in Barnes v. Barnes, 8 Jones, 366, has declared so much of this act, as was brought in question in that case, to be unconstitutional and void. That part of the 7th section of the act, which attempts to make void all judgments confessed, was held to be an invasion of the judicial power, as well as a violation of contract. The whole section is an integral part of the act, the design and purpose of which, as a whole, was to stay the proceedings of all courts, indefinitely, and to prohibit creditors from either collecting or securing their debts. The reasoning of the court in Barnes v. Barnes, is, therefore, as applicable to the whole act, as to the part there brought in question, and must be considered as conclusive against the constitutionality of the act. This is upon the supposition, that the act was intended to include mortgages executed before and registered after the act, which is the extremest view which can be taken in behalf of the defendants. But we believe the first view taken of the act is a correct one, and by it, the validity of the act need not be drawn in question.
*295The mortgage being established as valid, the defendants Hill and Harrison, by the very terms of the mortgage, hold the land in trust for the payment of this debt. Even if it were a deed in trust to indemnify the sureties, asw as argued by the defendants’ counsel, the debt of the creditor supplies the consideration to support the deed, and the creditor’s interest, therefore, is the primary object to be protected in equity, and the sureties’ indemnity is only secondary. Wiswall v. Potts, 5 Jones Eq., 184; Bank v. Jenkins. It is unnecessary to consider the rights of the defendant Harris, who claims to have lately purchased the interest of Styres, under a sale for a violation of the revenue law.
This claim seems to have been trumped up to complicate the rights of the plaintiff, and for the benefit of Styres. It cannot affect the rights acquired by the plaintiff under the mortgage.
There is no error.
Peb Cubiam. Judgment affirmed.