Cowan v. Green, 9 N.C. 384, 2 Hawks 384 (1823)

June 1823 · Supreme Court of North Carolina

9 N.C. 384, 2 Hawks 384

Cowan v. Green.

From Mecklenburg.

X mortgage not registered in-time, is ineffectual against purchasers subsequent to the mortgage whose conveyances ate registered before the mortgage*

This was an action of detinue for a negro slave, tried before Daniel, Judge. The slave had belonged to Andrew McBride, who made and executed a mortgage deed to the Plaintiff, of the slave, dated August, 1814 £ this deed was proved in May, 1815, and registered in June, 1816. McBride retained possession of the slave-until January, 1815, when he sold her to the Defendant, and gave him a bill of sale dated at that time$ this bill of sale was proved and registered on the 7th of May, 1816, and Green took the slave into his possession.

The Cdurt charged the Jury, that if they believed Green was a bona Jide purchaser of the slave, without any notice of Cowan’s mortgage at the time$ as his bill of sale was first registered, he would, under a fair construction of the act of 1715, chap. 38, be entitled to hold the. slave. The Jury found a verdict for the Defendant. A new trial was refused and judgment rendered, whereupon Plaintiff appealed.

Gaston, for the Defendant,

read a case from 5 Hayw., Rep. (Tennessee) to shew the construction of the act made by Judges Haywood, White, and Roane, that a mortgage pot registered in time, is ineffectual against subsequent purchasers. He referred also to a case on the registration actsof Middlesex~-£craf¿cm v. Quincy — (2, Ves. 413.^

Hall, Judge,

T,e act of 1715, ch. 7. sec. 1, gives twelve montlis for the registration of conveyances for lauds, (other than mortgages.) By the same act, sec. 7, mortgages of lands or personal property must be regís-tered within fifty days, otherwise subsequent mortgages first registered shall be prefer red. By an act of 1789, ch. 315, sec. 2, bills of sale for slaves are directed to be registered within 1 welv e months. By another act, passed in the year 1814, ch. 875, it is declared, that all bills of sale for slaves may and shall, within two years after the passing of that act, be admitted to registration, under the same rules as heretofore appointed.

At the time w hen tills act passed, the bill of sale to Green had not been executed, but it was executed the January following, and registered within the time prescribed by that act; so that no objection can be made to this deed for want of registration in due time. The mortgage to the Plaintiff was not registered within fifty days, nor until the expiration of almost two years after it bore date. It was during that time, and after the time had expired within which the mortgage ought to hav e been registered, that the deed was executed to Green. For these reasons, I think the title to the slave in question vested in the Defendant, and that judgment should he given for him.

The rest of the Court concurred.