
    
      Cape Fear Steamboat Company vs. Henry W. Conner.
    
    The secretary of State’s office is the proper office, under the Act of 1698, in which to record mortgages of ships.
    A purchaser with notice of an unrecorded mortgage, takes subject to it.
    
      Before Gantt, J. at Charleston, Spring Term, 1831.
    The report of his Honor, the presiding Judge, is as follows :
    “ The plaintiffs were the owners of a steam-boat, and sold the same to Joseph H. Townes. Townes, on the same day, executed a mortgage to secure the payment of the consideration money; and by the terms of the mortgage, it was stipulated that in the event of a failure on the part of Townes to pay off the notes as they respectively became due, the mortgagees were to have the privilege of selling the boat, dec. This event having taken place, the boat, which had been sold to the defendant with a full knowledge of the encumbrance of the mortgage, was demanded of him, and he refused to deliver her. The identity of the boat, the demand and refusal, were admitted, and it appeared in evidence, that the mortgage had been duly recorded in the office of the secretary.
    It was contended by Mr. Petigru in the defence, that the secretary’s was not the proper office for the registration of deeds or papers for the transfer of ships, and that, as the defendant had the first register of a deed for this boat, he was entitled to hold the same against the plaintiffs, on the ground, that the mortgage of a ship, not accompanied by possession or the register, is, at common law, null and void against purchasers and creditors, whether with or without notice. Certain navigation Acts of the Parliament of Great Britain, one of the year 1660, during the reign of Charles the 2d, the other 1696, of William the 3d, were referred to, shewing that, in the instances there mentioned, to prevent frauds, the ships contemplated by those Acts should be registered. Abbott on Ship. 42, was also referred to : “ That the sale of a ship, unless indorsed bn the register, was void and a certificate from the custom house was read in evidence, by which it appeared that the sale of this boat had not been registered by the plaintiifs, nor the mortgage. As the laws of the United States do not require the registration of vessels, as will appear by referring to note 1, in Abbott on Ship. 42,1 thought, and so instructed the jury, that the secretary’s office was the proper one, under the Act of 1698, P. L. 3, for recording the mortgage. I thought, also, that, under existing circumstances, the plaintiifs might legally recover against the defendant, and although the mortgage might not have been recorded in the secretary’s office, as he purchased with notice ; 2 McC. 152; 1 McC. 265. The jury found according to the eharge of the court on the law.”
    The defendant appealed, and moved for a yiew trial, on the grounds:
    1. Because the defendant having obtained the first register of a deed for the boat, is entitled to hold the same against the unregistered mortgage of the plaintiifs.
    2. Because the secretary’s office is not an office for the registration of deeds or papers for the transfer of ships.
    3. Because the mortgage of a ship, not accompanied by possession,,or by the register, is, at common law, null and void against creditors and purchasers, whether with or without notice.
    4. Because the verdict is contrary to law and evidence.
    
      Petigru and Cruger, for the motion.
    -, contra.
   Curia, per

O’Nealu, J.

The view taken of the law of the case by the presiding Judge, in his instructions to the jury, appears, to us, to be correct. Independent, however, of the legal effect of the plaintiffs’ mortgage being properly recorded, it appears that express notice of it was brought home to the defendant, both before the execution of his own mortgage, and his subsequent purchase, and this entitled the plaintiffs to recover.

The motion for a new trial is dismissed.

Johnson, J. concurred.  