Supreme Court of United States.
*39 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.
Mr. Bates and Mr. Fraser, for the defendant.
*51 Mr. Justice WOODBURY delivered the opinion of the court.
The sole question presented in this case is, whether a mortgage executed by the tenant and her husband to James Lyon, on the 13th of November, 1828, shall prevail over another mortgage executed by them to Nathaniel and Harvey Weed and Henry W Barnes, on the 6th day of June, 1837. Being earlier in time, by nine years, the first mortgage ought of course to have precedence, and will entitle the demandant to recover, unless it was improperly recorded.
The facts, important to be now noticed in connection with that question, are, that, at the time of the execution of the first mortgage, there were two registries, one in the city of Detroit, and the other in the county of Wayne, within which that city was situated. The premises in dispute were within the limits of the city, and the first mortgage was recorded, on the 30th of January, 1829, in the registry for the county of Wayne, but not in the registry for the city of Detroit, where the second mortgage was recorded, June 7th, 1827. On these facts, whether the recording of the first mortgage was legal or void must depend upon the construction of two statutes of the State of Michigan, both passed April 12th, 1827.
The demandant relies upon one of them, as being the only statute for recording "mortgages," and as his registry was duly made under that, he claims to recover. While the tenant relies upon the other statute, as embracing the case of mortgages, and as his was the only one recorded in conformity with it and others not so recorded are declared void, he asks for judgment in his favor. It seems hardly to have occurred to either side, that a construction may be given to these statutes, which will make them both operative on this subject, and sustain both of the mortgages according to their original rank and intent; and if no legal principle is opposed to such a course, it is certainly entitled to preference.
Because it is a well settled principle of construction, that conveyances are, if practicable on any reasonable view of the subject, to be sustained rather than pronounced void, and also, that statutes which apparently conflict with each other are to be reconciled, as far as may be on any fair hypothesis, and validity given to each, if it can be and is necessary to conform to usages under them, or to preserve the titles of property undisturbed. Cooper v. Telfair, 4 Dall. 14; 1 Serg. & R. 105; 2 Cranch, 358; 5 Cranch, 25; Bac. Abr., Statute, I.
The statute which passed on the 12th of April, 1827, and related to "deeds and other conveyances," went into effect immediately, and was the only law of the State in force as to recording mortgages as well as other deeds, till January, 1828.
It provided, that all deeds should be recorded in the county of *52 Wayne or the city of Detroit, according as the land conveyed was situated in one or the other. Laws of 1827, p. 258.
Though the title to this act and its general language do not embrace mortgages eo nomine, we do not agree with the counsel for the demandant, that they are not included.
In the second section, the word "mortgagee" is twice used. In the third section, also, "conveyances affecting in law or equity," "real estates," are spoken of. And besides this, it is reasonable to construe it as including mortgages under the general words of "all deeds and other conveyances of any lands," &c. (Sec. 1.), because they are sufficiently broad for that purpose, and because a similar generality had existed in the expressions in former laws in the Territory on this subject (Woodward's Code, p. 52; Code of 1820, p. 156), and was construed to include mortgages; and because, if these are not included, there were eight months, from April, 1827, to January, 1828, during which no law except the first one was in operation, and consequently when no provisions whatever existed in respect to the recording of that important species of conveyance. The law, then, for that eight months, as to recording mortgages, must be considered to have been, that those relating to lands in the city of Detroit should be recorded there, and those relating to lands in other parts of the county of Wayne should be recorded in the registry for the county. (See the second section.)
The prior mortgage in this case, however, was not executed within that period, but on the 13th of November, 1828; and in the mean time the other act, which passed on the same day with that we have just considered, had come into operation "concerning mortgages," and was made applicable to all executed after January 1st, 1828.
The next important question then is, What, if any, was the alteration made by it in respect to the recording of mortgages? and was the mortgage to Lyon, not having been registered as the first act required, recorded in the manner authorized by the last act?
That act purports to relate to "mortgages" alone; leaving other conveyances to be recorded as they had been under the other law during the eight months before it took effect. As to "mortgages," it provided, that those executed after the 21st of January, 1828, "may be registered in the county in which the lands or tenements so mortgaged are situated," and that a subsequent one, recorded before a prior one, should be preferred. Laws of the Territory of Michigan, p. 273.
The mortgage under which the demandant claims, being executed about eleven months after these new provisions, was recorded in conformity to them.
After this literal compliance with that law, and a construction under it which seems to uphold, as should be done, if practicable, the early mortgage, it does not seem desirable, and it is hardly expedient, *53 unless on principle necessary, to resort to a different construction, which would render the first security void as to the second mortgagee, although recorded in strict conformity with the law last going into operation. And as little does it seem expedient, unless necessary under imperative principles or precedents, to push this construction so far as to avoid or postpone any mortgages recorded in conformity to the provisions of the act first going into operation. The statute as to "mortgages" does not profess, in so many words, to repeal any portion of the other statute; nor is it necessary so to construe it. Going into effect later, if not passed later, it is true that any of its provisions entirely inconsistent with the laws in force before it took effect, or repugnant to them, might, without words of repeal, be considered as changed or abrogated, and the first impression would naturally be, that the provisions of the second law, so far as regards mortgages of land situated in the city of Detroit, were irreconcilable with the former act, and hence to that extent repealed it. But such a construction, though sustaining the mortgage to Lyon, might avoid many others and disturb numerous titles, and hence is not to be adopted, unless clearly the proper one. Ld. Raym. 371; Bac. Abr., Statute, C and G; Stradling v. Morgan, Plowd. 206. We think it is not the proper one.
A second law on the same subject does not repeal a former one without a repealing clause or negative words, unless so clearly repugnant as to imply a negative. 1 Bl. Com. 89; 1 Gall. 153, in Case of Ship Argo, "leges posteriores priores contrarias abrogant." But if they be not so contrary or so repugnant, that the last act expresses or implies a negative of the first, then they may continue to stand together. And, if such be the case here, a mortgage of city property recorded in conformity to either law would be valid. Such, in our opinion, is the case here, there being no words of repeal or negation in the act concerning mortgages. Many cases of this kind, very analogous, are cited in Foster's case, 11 Coke, 63, 64. See also 2 Roll. R. 410; 19 Viner's Abr. 525.
Among them is one where an act of parliament made an offence punishable at the Quarter Sessions, and another passed making it punishable at the Assizes, without any words of repeal. It was held that you may indict under either, or at either court. 11 Coke, 63.
The same result is arrived at, if the two acts be considered as passing and taking effect, as one law, on the same day. In that view, the last one only says that "mortgages" executed after the 1st of January, 1828, "may be registered" in the county where the lands lie; while the first one provided, that they "shall be recorded" in the registry of the city, if the lands lay within its limits. These provisions may stand well together, upholding, under one *54 act, a recording of mortgages in the city registry, as good in all cases of property situated there; and, under the other, upholding a record of mortgages of like lands in the county registry as also good, whenever any persons prefer to resort to that. As either of these views does not avoid the second mortgage, but only gives it, as was intended by the maker of it, a rank second to the first one, and as they both give force or operation to both statutes, and do not endanger or disturb titles either in the city or county, when either statute has been complied with, they ought to settle the question.
It may not be amiss to notice, also, that the mortgage to Lyon contained land in the county of Monroe, as well as in the city of Detroit, and having been seasonably recorded in that county, would be valid for some purposes, if not for this, without any second registry whatever in another city or county. McKeen v. Delancy's Lessee, 5 Cranch, 22; Delancy's Lessee v. McKeen, 1 Wash. C.C. 525.
It is gratifying to find, that our conclusion in this case accords with the result in the only decision which is supposed to have been made in the State of Michigan on this subject. See Weed et al. v. Lyon et al., in Harrington, 363.
Had that decision been made by the highest judicial tribunal of the State, or been shown to accord with a settled usage and practice under these statutes affecting the titles to real estate, we should have felt bound to conform to it, as a part of the local law. 9 Cranch, 87; 2 Peters, 58, 85; 6 Wheat. 119; 10 Wheat. 152; 11 Wheat. 361; 1 Brockenbr. C.C. 539.
But, though entitled to respect and weight, that case has not been treated as a precedent to control this, because the judgment was not in a court of the last resort, and is said to have been appealed from, but further proceedings defeated by some accident.
Let a certificate be sent down, that, in the opinion of this court, the recording of the mortgage from Hale to Lyon was sufficient to give it validity and priority under the laws of Michigan.
