
    *Thomas Magee v. Thomas S. Beatty and James M. Bell, Administrators of Z. A. Beatty.
    Since the passage of the act of March 16, 1838, “ declaratory of the law on the subject of mortgages,” all doubts are removed with respect to their priority, and whether executed before or since the passage of that act, they take effect from the time of their delivery to the recorder.
    Reserved in Guernsey county.
    This is a case in chancery. The facts, so far as it is necessary to state them, are as follows:
    At the March term of the court of common pleas of Guernsey county, 1834, the complainant recovered a judgment at law against Tnomas S. Beatty, for one thousand dollars damages, besides costs of suit; upon which judgment execution was issued on the 2d day of April next following, which was levied on lot numbered 18, in the town of Cambridge, in said .Guernsey county, as the property of said Thomas S. Beatty.
    On February 27, 1834, Thomas S. Beatty mortgaged the lot in controversy to Zaeeheus A. Beatty, by deed of mortgage of that date, but which was not acknowledged until the 12th day of March, of the same year. This deed was left for record on the 14th day of March, but not actually recorded in the book of .records until the 2d day of April. The term of the court of ■common pleas commenced on the 24th day of March.
    It is alleged in the bill that this deed of mortgage was executed, ■without consideration, and for the purpose of defrauding creditors, ■especially the complainant. Zacclieus A. Beatty, in his answer, denies the fraud, sets out the consideration for which the deed was given, and avers that the same was good and bona fide.
    
    Thomas S. Beatty has not answered.
    Since the institution of the pi’ocoedings, Zacclieus A. Beatty, who was originally a defendant, has deceased, and James M. Bell, his administrator, has been made a party defendant.
    The prayer of the bill is, that the mortgage deed may be declared void, or postponed as a lien to the complainant’s judgment; and that the land may be sold to satisfy that judgment.
    Cowan and Parrish, for complainant, and Pjeok, for defendants, argued the case at length.
   Judge Hitchcock

delivered the opinion of the court:

This case was argued at great length and with much ability, and submitted to the court at the last term. The question of *fraud seemed to have been abandoned, as well it might be, there being no proof to sustain the allegation.

As presented to the court, it was a ease of two creditors contending for the priority of lien, and this priority must depend upon the construction of the statutes relative to the subject. The mortgage under which the defendant, Bell, as administrator of Zaccheus A. Beatty, claims, was executed, acknowledged, and left with the recorder of the county, previous to the first day of term of the court at which the complainant recovered his judgment, but was not actually copied into the record book until after the rendition of that judgment. If, then, by a. fair construction of the statute, a mortgage takes effect from the time it is left with the recorder, the defendant has the preferable lien, but if, on the other hand, it only takes effect from the time it is copied into the book of record, then the mortgage in this case must be postponed to the complainant’s judgment. By section 4 of the act prescribing the duties of county recorders, 29 Ohio L., they are required to record “all deeds, mortgages, and other instruments of writing, required by law to be recorded,” in regular succession,

according to the priority of their presentation ; “ and if a mortgage, the precise time of the day on which the same was presented, shall also be recorded.” By section 8, the recorder is subjected to an indictment for certain acts of commission and ■omission therein specified, one of which is the omission to record, u without good excuse,” any deed, or other instrument of writing, within twenty days after the same is received for record. In section 1 of the act to provide for the recording of deeds, etc., 29 Ohio L. 346, it is enacted, “ that all mortgages, executed agreeably to the provisions of this act, shall be recorded in the office of the ■recorder of the county in which such mortgaged premises are situated, and shall take effect from the time when recorded; and if two or more mortgages are presented for record on the same day, they shall take effect from the order of presentation for record; the first presented shall be first recorded, and the first recorded shall have preference.” It will be seen that there is no little obscurity in these several provisions taking them all in connection, At least it so seemed to the court at the last term, and we could not agree as to the proper construction. In consequence of this difference of opinion, the case was continued. The difficulty is, however, now removed. On March 16, 1838, the legislature passed an act upon this subject, in which, after reciting that doubts had ^arisen “whether deeds of mortgage take effect from the time the same are delivered to the recorder of the proper county for record, or from the time the same are actually copied into the record book, and that it is proper such doubts should be removed,” they declare and enact that mortgages do, and shall take effect and have preference from the time the same are delivered to the recorder of the proper county, to be by him entered on record.” 36 Ohio L. 62. This declaratory law, we suppose, is decisive of the rights of these parties, and the claim of the ■complainant can not be sustained. The bill might with propriety be dismissed, each party to pay his own cost. But as all the parties in interest are before the court, and as the complainant has a lien upon the land subject to the mortgage, we think it right that the property should be sold, and that from the avails the mortgage debt should be first paid, next the costs of this suit, next the judgment of the complainant, and if there be any surplus, that the same brought into court, and shall decree accordingly.  