
    McDonald vs Penny.
    Illegality, from Floyd. Mortgages. Debtor and Creditor. Appropriation of Payments. (Before Judge Branham).
   Jackson, C. J.

Although a mortgage may not be recorded within the time prescribed by law, and for that reason may not be good as against other liens created or obtained, or purchases made prior to its actual record, yet such a mortgage is valid as between the parties thereto, though not recorded in proper time; and the mortgagor cannot attack the mortgage as being invalid because not recorded in due time.

(a) Where certain creditors held mortgages which were not recorded within the time prescribed by law, but were afterwards recorded and foreclosed ; and subsequently, a judgment having been rendered against the mortgagor,the mortgagees obtained title thereto by transfer,, and by sale under it a fund was raised from the mortgaged property, the creditors could apply it to either lien; and if they applied the proceeds of the sale to the mortgage ft. fas. an affidavit of illegality would not lie on the ground that the fund was improperly applied, and that the general execution was satisfied.

Junius F. Hillver, for plaintiff in error.

No appearance for defendant-

(b) If an instrument have all the essentials of a mortgage, it is valid, whether an attesting witness signed individually or officially as a notary public. 46 tía., 253.

Judgment reversed.  