
    Henry O. Jacobs vs. Arthur E. Denison.
    Suffolk.
    Nov. 10, 1885.
    Feb. 24, 1886.
    Devens & Gardner, JJ., absent.
    In November, 1873, A. agreed in writing to give to B., tor money to be lent him, a mortgage upon certain personal property to secure such loan. In May, 1874, A. delivered to B. a mortgage, in which the date named in the in testimonium, clause was November, 1874. The certificate of the clerk of the city in which the property was situated stated that the mortgage was recorded in May, 1874; and, in recording the same, the date in the in testimonium clause was made to read November, 1873. In February, 1874, A. gave another mortgage of the same property to C., which was recorded in September, 1874. Held, that the mortgage to B. was entitled to priority over that to C.
    Replevin of certain personal property. Trial in the Superior Court, before BarJcer, J., who reported the case for the determination of this court, in substance as follows:
    Both parties claimed title to the property in question under one William J. Hall, formerly proprietor of a dining-room on Chauncy Street, in Boston, in which the articles were used.
    It-appeared in evidence that, in 1873, Hall, desiring to enlarge his business, applied to one Joy for money, and, on November 29, 1873, gave Joy an agreement in writing, stipulating that, upon the completion of the contemplated repairs and improvements, Hall would give Joy a first. mortgage upon all the personal property that should then be in his dining-room, to secure Joy’s advances to the amount of $6000. Under this agreement, Joy advanced to Hall various sums of money between November, 29, 1873, and July, 1874, aggregating $7750, for which Joy took fourteen promissory notes of Hall, on all of which there was written in the margin the words: “ Secured by assignment of lease of premises, No. 32 Chauncy Street, Boston, and by mortgage of personal property.” Early in May, 1874, the mortgage under which the defendant claims was made and delivered to Joy, and was left for record on May 16, 1874 ; and a certificate to this effect was indorsed upon the mortgage, and signed by the city clerk of Boston. In the mortgage the in testimonium clause was as follows: “In witness whereof, I, the said William J. Hall, hereunto set my hand and seal this twenty-ninth day of November, one thousand eight hundred and seventy-four.” In the record of the same this date is written, “ twenty-ninth day of November, in the year one thousand eight hundred and seventy-three.” The alterations and refitting of the premises were completed on February 19, 1874. The mortgage was given by Hall to Joy in pursuance of the written agreement of November 29, 1873, and was assigned by Joy to the defendant.
    On February 19, 1874, Hall gave to one Burnham a mortgage of the same property, to secure the payment of his promissory note for $1000, which was recorded on September 25, 1874, assigned by Burnham to the plaintiff, and duly foreclosed by the plaintiff, who demanded the property of the defendant.
    The judge ruled that the mortgage of Hall to Joy was not a duly recorded mortgage, within the meaning of the Gen. Sts. o. 151; and directed the jury to return a verdict for the plaintiff.
    If the ruling was correct, the judgment was to be affirmed; otherwise, the case to stand for trial.
    
      A. F. Denison, pro se.
    
    
      J. L. Fldridge 8? 6r. F. Jacobs, for the plaintiff.
   Holmes, J.

Both parties agree that the certificate of the city clerk upon the original mortgage from Hall to Joy, that it had been recorded, was conclusive, and could not be impeached by proof of a discrepancy between the copy in the registry and the original. Ames v. Phelps, 18 Pick. 314. Fuller v. Cunningham, 105 Mass. 442. Adams v. Pratt, 109 Mass. 59. Chapin v. Kingsbury, 138 Mass. 194, 196. They also agree that it is to be “ considered as recorded at the time when left for the purpose in the clerk’s office.” Gen. Sts. e. 151, § 3 (Pub. Sts. c. 192, § 4). It may be doubtful whether more need be said to show that the ruling of the court below was wrong. But, if the meaning was that the plaintiff was not bound to take notice of the mortgage because the original instrument was dated November 29, 1874, (seemingly by mistake for 1873,) and this date was subsequent to the time of recording it, and also to the execution and recording of the mortgage assigned to, the plaintiff, we are of opinion that the ruling was none the less erroneous. The plaintiff, being chargeable with notice that the mortgage was recorded, was chargeable with notice that it had been delivered. See Fowler v. Merrill, 11 How. 375, 394; S. C. Hemp. 563, 616. It would be going rather far to say that, under these circumstances, — and notwithstanding the fact that the registry copy bore a date earlier than that of the mortgage held by him, and that the mortgage notes seem also to have been dated 1873, — the plaintiff was to be regarded as having read the original mortgage, but not the notes, and as having had the right to assume, and as having assumed, that the date which it bore was the date intended by the parties. See Parke v. Neeley, 90 Penn. St. 52. But, even if we give the plaintiff the benefit of these fictions, postdating the mortgage did not prevent its operating at once when delivered, and the plaintiff therefore had notice that the mortgage had created a present charge upon the property, and that the date could only be material, if at all, as fixing the time for payment of the debt secured. See further, Stonebreaker v. Kerr, 40 Ind. 186; Partridge v. Swazey, 46 Maine, 414.

Case to stand for trial.  