
    Edward Penman against John Hart, Sheriff of Charleston District.
    
      Charleston,
    
    
      January, 1800.
    A deed not recorded iv’thm six months, is not thereby rendered invalid ; nor does a mortgage lo*«o its lien for sucln omission, so as to give a subsequent judgment a priority to either of them. The 45th section of the act of 1785, related only to ceouties where county courts v ere estnhlishu], and did not extend other parts of the state.
    
      Public Jjatvs, 382,
    CASE on a special verdict.
    This case came before the court on a special verdict, which found substantially, that the plaintiff obtained his judgment in the court of common pleas, against the defendant David Ramsay, on the 2d of March, 1797, on which an execution issued, and a levy was made on a house and lot in Meeting-street, in Charleston. When this house and lot were advertised for sale, John M. Ehrick, produced title-deeds to the sheriff, for the lot in question, dated I4th of January, 1797 ; but these deeds to Ehrick were not recorded till 11th of January, 1798. Upon the production of these deeds to the sheriff, he refused to proceed in the sale of the house and lot; whereupon the present action was commenced against the sheriff for not doing his duty. The special verdict then concluded in the usual manner, referring the construction of the law to ihe court, and finding accordingly.
    Mr. Desaussure, on the part of the plaintiff,
    argued, that although EhricRs deed was prior to the date of plaintiff’s judgment, yet it was not recorded until near twelve months after; therefore void as against creditors and bona fide purchasers ; and for that purpose, relied on the 45th section of the county court act, passed in 1785, and on the clause in the act of 1789, allowing twelve months to record deeds, which had been made before the passing of the county court act, which he said,' proved that it was considered as a general law throughout the state, and that thereafter, all deeds should be recorded within six months after their execution.
    Mr. Gaillard, for defendant, in reply,
    urged, that the county court act was local in its nature, and was restricted to those portions of the country only, where county courts hac! been established, and did not extend to the lower divisions» of' the state, the districts of Charleston, Georgetown and Beaufort, or any other parts where those inferior courts had never prevailed. He likewise contended, that the act of 1789 was retrospective, and not prospective; that the recital of the act as well as the enacting clause, proved it to be so without doubt; the recital stated the mischiefs which might' arise by so great an alteration in the law respecting real estates, by a clause concealed in an act, purporting to be for the purpose of establishing and regulating the proceedings in the inferior county courts only ; a clause which might defeat the titles of many, who held deeds and conveyances of lands, who might be totally ignorant of such a clause in the body of an act, for so different a purpose ; it then goes on and enacts, that persons holding such deeds, should record them in the county courts within twelve months after the date of that act. That this was not making it a general law, but left its locality where it found it, still attached to county court jurisdictions.
    Mr. Ford, for plaintiff,
    insisted» that ever since the passing of the act in 1785, establishing county courts, this clause, requiring deeds to be recorded within six months after their execution, had been considered as the general law of South Carolina, by most, if not all of the practising lawyers at the bar. It was true, he said, there had not been any judicial decision to his knowledge on the subject, but he himself for one, and many others of longer standing than himself, and whose opinion he bowed down to with respect, had considered it so also ; and it would be a very dangerous thing at this day, to call it in question after such a construction had for fourteen years been generally given to this clause ; that the whole of the state had been divided into counties, and Charleston was made a county also, although no county courts had ever been held in it; yet the act attaches itself on Charleston, as well as upon the other counties; that there was no express clause in the act to confine this regulation to those counties only where county courts were established, and held that it was general throughout the state.
    The Attorney-General, for defendant,
    concluded the argument by observing that it was unreasonable to construe this to be a general law of the state, and although it may have been considered as such by some gentlemen of the bar, yet he had never conceived it as extending generally throughout Carolina; for the very regulation itself, upon an attentive consideration, would appear to be a local one in its nature. In the first place, it related to lands lying in those counties only where county courts were established, and being within the limits of those counties, and to no others ; for deeds for lands lying in one county, could not be recorded in the clerk’s office of any other county ; but were to be recorded in the office of the county where the lands were situated, or if they were recorded in any other county, it was of no avail. Secondly, it requires that the deeds should be proved before the judges of the county court, where the lands lay, previous to their being recorded; he insisted, therefore, it was impossible to prove deeds before judges where none were appointed, or to record them in offices where none were established ; so that from the necessity of the case, the regulation must be confined to those portions of the county only, where these inferior jurisdictions had been established ; he admitted, that Charleston was nominally one of the counties mentioned in the act of 1785, and that counties had nominally been laid off in all the lower divisions, but it was notorious to every man in the state of common observation, that the lower divisions of the state were utterly opposed to county courts, and the. whole county court system, as inconsistent with the true interests of the country, and believed that they would prove a curse rather than a blessing wherever they might be established. Under this idea, then, the act passed ; that those portions of the county which wished them should have them, and those which did not wish them should be exempted from the plague and burthen of them ; consequently, the lower parts near the sea coast, Charleston, 
      Georgetown and Beaufort, never had them ; while Cherccw, Camden and Ninety-Six districts had them established ; but finding from sad experience the bad effects of them, have come forward almost to a man, and had them abolished in the upper divisions of the country, so as to free South Carolina entirely of such useless and troublesome jurisdictions. From this view of the case, then, it was most evidently a partial regulation, which was in force only where those courts were established ; that it was coexistent with them, and ceased with’their existence.
    Deeds for lands in Charleston district, did then, as they do now, depend upon the general law of the land, as they did before the passing of that act; and as the law stood before the pássing of that act, and as it does now, there was no time fixed for recording of deeds : every man recorded them as it suited his convenience, or omitted to do so if he thought proper; the only risk he ran was* the chance of another man’s getting another deed from the same grantor, and putting it first on record ; in which case, the younger deed recorded, would have a preference under the “ act for u preventing double conveyances and mortgages.” But if he was not afraid of another conveyance being put on record he might omit recording it entirely if he pleased. He quoted the case of Ashe v. Ashe, v. 1. p. 304. Riley’s edit, as in point, where a mortgage was found among the papers of a deceased man,.twenty years after his death, without being recorded which had the preference of a judgment entered up many years after, although the land had been sold by the sheriff, and the money paid over to the plaintiff in the action at law ; he also said, the construction contended for, went to defeat the vested right of a freehold estate in lands by implication, which was against law and common right.
   The court was unanimously of opinion, that the 45th clause of the county court act, passed in 1785, were confined to the counties where county courts were established only, and never extended to anj? other parts of the state ; consequently, that this case was to be governed by the law as it stood before the passing of the county court act in 1785, and by the law as it then stood, there was no time limited for recording deeds of conveyance of lands or mortgages ; if, indeed, a younger deed or mortgage was obtained from the grantor or mortgagor, for the same lands, it had a preference ; and that (as has been stated by the Attorney-General) seems to be the only risk which the grantee or mortgagee run, by not recording his deed or mortgage. Conlormably to these principles, the case of Ashe v. Ashe, tras determined, and also another case of Ashe v. Executors of Livingston, since, to recover money paid over by the sheriff to a judgment creditor, not knowing of a mortgage prior to the judgment; by virtue of which, lands had been sold, and the money received by the plaintiff at law.

gee t;le case 1797, ante.

Let therefore judgment be for the defendant in this case.

Present, Bay, Johnson and Tkezevant.  