
    ALEXANDER SHIRRAS, JOHN BLACK, WILLIAM MILLIGAN, WILLIAM BLACKLOCK & JOSEPH VERREES, v. JOHN CAIG & ROBERT MITCHEL.
    
      Msent....Washington, justice
    
    jan^made6by one who has a ieg.-u and e<juifeble title to a property' "’inch tue vey, passes on- ' ly lus legal hfhád ípow* er> fróm/the heiTthel-esiáue of the ieestate in the” !fnncId,c‘° right^iToTthe to colvey^ny1 partofitundcr Mother peri son, although ldsrfeed0pur‘ mortgage the whole; ami tit^no^tóng in the person' ’ po°,¿fve
    
      ERROR to, the Circuit Court for the. district of Georgia, hy- Shirr as. and others original Complainants, against Caig and Mitchel, original Defendants, in-a.3uit in equity to foreclose a mortgage'of a lot, houses, and wharf in Savannah, called Gairdner’s wharf, which were in the possession of tlie-Defendalits. r
    a plat refer-annex^dtolt, hut which was never in fact unnexed nnd was not re-fords no evity mentioned ^ppg-sontan nothe charged' with fmidulently secreting a deed who places it upon. record as soon quid'slaW re”
    
      . The mortgage was made on the 1st of December, 4801, by E'dwin Gairdner, in his own name, and also as attqrney for the Defendant, Caig, (but without any an thority from Caig so to do,) to secure the payment of ¿30,000 sterling, for which E. Gairdner .had, on the same day, executed a bond for himself, and Caig.
    , Ip the year. 1796, this property had been purchased by James Gairdner, Edwin Gairdner, and Robert Mitchel as joint tenants, who toók a,conveyance from Levi Sheftall to-themselves, by the description of James Gairdnér, Edwin' Gairdner and Robert Mitchel, merchants ■ and co-partners of the city of Savannah. The name of the firm was Gairdners and Mitchel. In 1799 this firm was dissolved, and the business was carried on in Charleston by Edwin Gairdner alone under the firm of Edwin Gairdner and Co., and by mutual consent, in December, 1799, an entry was made inthe books of Gairdners and Mitchel, by James Gairdner, charging this property, to the account of Edwin Gairdner and Có. at the price of 20,000 dollars. In 1800, Edwin Gairdner entered into partnership, with John Caig, the Defendant, at Savannah, under the firm. of. Edwin Gairdner and Co.. — under which name he continued to carry on business alone at Charleston; and upon his books at that place, made an entry charging "this property to the Savannah house (consisting of himself and Caig) at an agreed price $ and the Savannah- house by an entry on their books credited the same on the account of the Charleston house consisting of Edwin Gairdner alone.
    On the 7th of January,' 1802, Edwin Gairdner and John Caig dissolved their partnership at Savannah, and a new firm was established consisting of Edwin Gairdncr, John Caig and the Defendant, Rpbert Mitchel, under the name of Gairdner, Caig and Mitchel, by their articles of co-partnership under seal, agreed to take the property in question, at a valuation and hold it as their joint property.
    
      It is not neeeshtHt va" Mortgage that it shouid truly state the debt it is intended to secure; but it shall stand as a security forthe real equitably morflageesf whether they date-of the*16 mortgage,'or arose after-SS the mortgage, of the Defendant.s equity,
    Previous to this, viz, in March, 1800, Mitchel had by deed conveyed his third part of this property to Bdwin Gairdner and John, Caig, as joint tenants; and at ^me executing the mortgage (viz,'December 1, Edwin Gairdner had full power and authority from James Gairdner to sell and convey his share of tllC property,
    Subsequent to the mortgage, Viz. on the 27th of July» *802’ Edwin Gairdner, as attorney for James Gairdner, by deed conveyed to Mitchel one third of the property, anc' own deed of the same date, he .conveyed one sixth of the property to Caig, who had before received a conveyance of one other sixth from Mitchell. •
    , ’ These two last deeds were proved and recorded on the 14th of September, ¿802. A
    The mortgage was .proved on the 10th, and recorded °«ttie 17tfl of September,'i802. By the law of Georgia, deeds of bargain and sale are *° rcc6rdcd'' in 12 months — and hy a law of 1768, every mortgage and deed recorded within ten days after it’s execution, shall have preference of other deeds and mortgages, not recorded within that period.
    ^ time °f executing the mortgage, therefore, the legal title of three sixths of the -property was in Edwin Gairdner, and according to the book entries of the several co-partnerships he was also equitably entitled to the same. The legal title of two sixths was ip James Gairdner, and of the other sixth in Caig, who, according to' the book entries was equitably entitled to three sixths; so thpt although Edwin Gairdner had a legal power to sell and transfer James Gairdner’s two sixths, yet he was bound in equity to transfer them to Caig.
    The complainants in their bill claim the whole. They state that, Edwin Gairdner was the real bona fide owner of the property — that the book entries were made only to give a credit to the Savannah house, and were without consideration — that the Savannah house was only to hold it in trust for Edwin Gairdner during the co-partnership. That Edwin Gairdner became bankrupt bn the Sd. of November, 1802, has received bis certificate of discharge and that two of the complainants, Blacklock and Y errees, were duly appointed his assignees. That Caig Mitchel, and the firm in which they are partners, are still largely indebted to Edwin Gairdner, who is also very largely indebted to the Complainants. And they pray that all conveyances, under which Caig and Mitchel claim to hold possession of the property, may be declared void and may be cancelled — that the property may be sold and the proceeds applied towards payment of the debts due to the Complainants — and for general relief.
    The answers of Caig and Mitchell, the Defendants, do not admit that any thing was due by E. Gairdner to the Complainants on the 1st of December, 1801, the date of the mortgage, and suggest.that if any thing was dye it has since been paid off or otherwise settled. That . Caig was made a party to the bond and mortgage without his authority and consent. That the bond and mortgage were carefully kept secret until the 13th of September, 1802. That it was not a regular transaction and ought not to avail against the Defendants, who are bona fide purchasers.
    They set forth the several co-partnerships and entries in the books and aver that they and all the parties considered them as good transfers of the property which was always holden and considered as stock in trade. They deny all. private, secret, or confidential trust for the benefit of É. Gairdner. They aver, that they believe, that at the date of the mortgage the Charleston house was indebted to the Savannah house, after allowing credit for the property in question.
    In this state of the cause, the Defendants, Caig and Mitchel, fiied a cross bill against the Complainants, Shirras and others, alleging secret transactions between them and E. Gairdner, and praying a discovery. They charge that the execution of the bond and mortage was an act of hurry and despair, in the confusion and embarrassment of entangled circumstances, and at the eve of one of the greatest and most distressing bankruptcies. That the deeds were not signed until some weeks or months after their date. That no title papers were shown to the mortgagees, [they being all in the hands qf Caig-at Savannah] nor any. authority from Caig to convey his, interest. That the mortgage Was taken without reflection or previous contemplation $s to the "Security intended-to be given, but as the last hope of saving or securing something from a person on the eve of insolvency. That the bond and mortgage were not executed for advances made, or money lent on the security, or hope of security arising from the mortgage, but with the intent to indemnify the mortgagees for endorsements at the banks in South Carolina for E. Gairdner, and for other collateral securities entered into fon him; all. which were settled and discharged by the exertions óf E. Gairdner, and the.resources he was then enabled, to bring into activity. Tiiat there is no money due on the bond, or on the consideration for which the bond was given. That all the obligees have been fully paid, satisfied and indemnified, without having recourse to the mortgaged premises, and that the mortgage' is kept up for speculating purposes, and to oppress Caig and Mitchel, or to cover some transaction between E. Gairdner and one of the obligees, subsequent to the execution of the mortgage and which has no rélation to the same. That the mortgage was concealed from Caig and Mitchel for fear of injuring E. Gairdner’s credit, and was hot delivered to the mortgagees till some time before it was recorded; and was not recorded until Caig and Mitchel had paid a valuable consideration for two-thirds of the property and were in the quiet possession thereof, with the knowledge of the mortgagees. They claim title to two-thirds of the property under the various book entries of the several firms,
    The bill then seeks a-discovery óf the day, and consideration on which the bond and mortgage were really executed;-and whether the mortgagees had not notice of the claim of‘Caig and Mitchel. 'Whether the mortgagees gave notice of the mortgage to them, and requires Shirras and others to disclose the real debts, together with the particulars thereof, actually due from E Gairdner, to each of them, at the date of the mortgage. It prays that the mortgage may be decreed to be fraudulent and void as to Caig and Mitchel, and for general relief.
    The separate answers of the several Defendants, Shirras and others, to the cross bill, set forth minuetely their several claims against E. Gairdner, and .aver that the monies loaded and'responsibilities incurred upon the faith of the mortgage — except ¥m. Blacklock, who did not know that he was included in the mortgage till some time after its date. Black in his answer produces on oath the plat referred . to in the mortgage, which he says had remained with' him ever since the execution of the mortgage.
    They all admit that Caig And Mitchel were not notified of the mortgage, and that they knew of no authority from Caig to E. Gairdner tci incumber his share of the property. They admit they did not see any title papers, and that they did not require them, having a perfect confidence in the representations" and character of Edwin Gairdner. They deny that they had anyknowy ledge of any transfer to Caig and Mitchel, except that E. Gairdner stated that Caig held one sixth. Tliey admit that the mortgage was kept secret until the 10th September, 1802, lest it should injure the credit of the mortgagors. They aver that it was executed on the day of its date or within a very few days afterwards, and was not retained by E. Gairdner, but immediately delivered to the Defendant, Black. The testimony, in tL, causé related merely to the authentication of the instruments ,* and the entries upon the books, and to the balance of the accounts between the Charleston and the Savannah house, and tending to prove that the Savannah house was considerably indebted to the Charleston house at the date of the mortgage.
    In May, 1807, the Circuit Court, consisting of Judges Johnson and Stevens, gave the following opinion,
    
    
      “ In the great confusion of legal and equitable interest which exist in this ease, the mind can resort to no other means of making a just discrimination, but that of recurring to the original slate of the interests of the several parties and following their respective portions through the several changes of property which resulted from subsequent transactions.
    By the conveyance from Levi Sheftall to James Gairdner, Edwin Gairdner, and Robert Mitchel, eách acquired; a fee simple in one third of the property in question.'
    
      in legal language they were eacn seized per my and per iml 0f a third part in joint tenancy. The third part" of James Gairdner never was legally conveyed, until the ^eet^ 1802» by Edwin, attorney for James Gairdner, conveying it to Robert Mitchel. With regard therefore to that third, and the one sixth conveyed by Mitchel and Caig, making up a moiety of the whole, there can be no doubt that the Complainants are not entitled to recover. Both law and equity are on the side of the Defendants. The only difficulties that exist, arise in relation to the one sixth conveyed by Mitchel to Edwin Gairdner and by him conveyed to Caig, and the remaining third originally vested in Edwin Gairdner.
    With regard to these propositions the Complainants are in possession of the legal right, imd the question is,how far are the Defendants relieved in equity.
    It is contended that this Court ought not to aid the Complainants, on several grounds.
    
      Í-. Because this property ought .to be considered as a part of the co-partnership funds of the first firm of Gairdner, Caig and Mitchel, and of E. Gairdner and Co. — and neither co-partner is at liberty to alienate his share until the debts of those concerns are discharged, and their balances adjusted.
    
      % Because the amounts claimed by the several mortgagees were for loans ahd assumptions not existing at the time of. the mortgage, but incurred afterwards, with a small exception.
    3. Because by the articles of co-partnership, the property is legally pledged to the last concern of Gairdner, Caig and Mitchel, and this instrument as well as the conveyance',of one sixth to Caig from E. Gairdner, are entitled to a preference to the mortgage, in consequence of the mortgagee’s having neglected to record their mortgage, and thereby to put others on their guard.
    On the first of these grounds we remark, there are many cases in which real property may be pursued as part of a co-partnership .¡tpck, but it is only in the hands of legal representatives incases of descent, bankruptcy,' &c. but not whére a legal a-lienation has been made, nr the property is unaffected by articles of co-partnership.
    With regard to the 2d and 3d grounds, we think them of much importance. This Court will certainly support a mortgage when there exists no actual debt, if the mortgagee is under any liability or engagement which may ultimately subject him to loss, or the payment of money for the mortgagor; such, for instance, as the indorsement of notes; the renewal of notes originally indorsed, or an arbitration or administration bond, or other undertaking from which a debt only may he incurred. But it is evident that some bounds ought to he $et to this mode of mortgaging on contingencies, especially when the mortgagee retains an absolute unrestrained option, whether the mortgagor shall or shall not be his debtor; when he is under no legal or moral obligation to make loans or assume a liability in his. behalf. But as we do not mean to found our decree in this case on this ground, we shall not now atft ípt to draw the line. The subject is a very delicate one-
    On the 3d ground the Court feel themselves compelled to decree in favor of the Defendants.
    The Complainants, by not making knoxbn tó the world the existence of this mortgage, have lost their right to the aid of this Court in obtaining a foreclosure in their behalf. The Defendant, Caig, ought not to lose the benefit of the conveyance of the one sixth executed to him by Gairdner. He was legally proprietor of the one sixth, and; by book entries, equitably, of another sixth.
    We consider the acknowledgment of interest in him by Gairdner upon the face of the mortgage as sufficient notice, to Complainants, of his interest both legal and equitable. This alone would be sufficient to entitle him to the favor of this Court, independently of his having become purchaser afterwards of the legal title without notice of the mortgage. With regal’d to the remaining 3d, we consider the articles of co-partnership, accompanied with the payment of the consideration, as a'covenant to stand seized to the use of the firm,. and entitled to a precedence to the mortgage because of the tatters not having been recorded..
    
      The co-partners,therefore, wiRbe entitled to a preferencc as to Gairdners Sd, both as to payment of creditors of the last house of G. C. & M. and for the satisfaction of any demand which the co-partnership may have upon him. Subject to their claims the Complainants will be entitled to relief.”
    In May .1808, the Circuit Court, made the following final decree.
    «The Court, refering to the interlocutory decree of May term 1807, order, adjudge and decree, that the bill be dismissed with costs as against the Defendants, John Caig and Robert Mitchel, as to the two third parts of the mortgaged premises; and that the bill be sustained as to one third of the mortgaged premises, reserving a preference on the said third part of the premises, both as to the payment of the creditors of the late house of Gairdner, Caig and Mitchel, and for the satisfaction of any demand which the co-partnership may have upon him,said Gairdner.”
    To, reverse this decree, the present writ of error was sued out by Shirras and others.
    C. Lee,for Plaintiffs in error.
      
    
    The mortgage ought to avail the mortgagees to tlie ex tent of the rower aiid interest of the mortgagor.
    Edwin Gairdner had the legal estate of three sixth» in himself, and had full power and authority from James Gairdner to dispose of, sell and convey the two sixths, whereof the legal estate remained in him. So that Edwin Gairdner’s power and interest, extended to five sixths. It is true he omitted to refer to his Power of Attorney in making the mortgage j but this defect may be supplied in a Court of Equity. 10. Mod. 36—Sir Edward Cleer's case, cited by Ch. J. Parker. 6. Co. 17. (b) S. C.—3. Levinz. 372.— 2. P. Will. 490. Tollet. v. Tollet.—2. P. Will. 623. 1. Ca. in Chancery 263. Smith v. Ashton.—1. Br. C. C. 368. Wade v. Poget—2. P. Will, 222 Coventry v. Coventry.—1. Sir. 596. 604. S. C. 4. Br. C.C. 462. Jackson v. Jackson.—Ambler 640. 684.—Hob. 165. 4. Vez. jun. 631.—7. Vez. 567.—10. Vez. 246.—6. East. 105.— Carth. 427.
    • There was no obligation upon the mortgagees to prove or record the deed sooner than they did. The law allows twelve mouths. — Neither of the deeds was recorded within ten days after its date, and therefore neither can claim a preference under that law.
    It is no objection that the mortgage was made to indemnify against future indorsements. 3. Crunch, 713 U. S. v. Hooe.
    
    If the power from James had been given to a third person, he would have conveyed to Edwin — but the power being to Edwin, he could not convey to himself, and the law will consider the equitable title, united with the power, as a legal conveyance to him.
    The creditors of Edwin, who are the mortgagees, are superior in equity to Caig or Mitchei, who never paid any thing for the property, and who are indebted to Edwin at this time; and who, if so indebted, would, if necessary, be decreed, in equity, trustees for the mortgagees, rather than they should lose their debts.
    The entries on the hooks conveyed no legal title to the property: — but if it is to be considered as stock in trade and . therefore liable .to.be transferred by hook entry, E. Gairdner, being a partner, had a right to sell and dispose of the whole partnership effects.
    It is admitted that the mortgage transferred all the legal and equitable,estate of Edwin Gairdner, but not of James Gairdner. ' If an Attorney means to convey the. rights of his constituent, he must speak in the name of his principal — Edwin had only one half — the other half belonged to Caig and Mitchel.
    
      
      Harper — Contra.
    
      The plat not having been recoi’ded with the deed, the description of the property is imperfect — it can convey at most, only Gairdner’s Wharf- — and not the lot which lies at a distance on the other side of the street.
    The articles of co-partnership between E. Gairdner, Caig and Mitchel, being under seal, operate as a conveyance by way of covenant to stand seizéd. Each party covenants to stand seized to the .use of the firm.
    The Complainants admit that they concealed the mortgage, and held it up, to prevent injury to the credit of Edwin Gairdner — and they contend they had a right so to do.
    Although they may have such a right at law, yet they have not in equity. Where the mortgagee does any thing to induce a belief, that the mortgagor has still a right to encumber the property (such as suffering him to x’etairi the title papers whereby he gains a false credit) the first moi’tgagee shall be postponed to the second, who is deceived thereby. So in this case the deeds to Caig and Mitchel are to be'preferred to the mortgage which was thus concealed. 1. Fonb. 153.
    Besides, the mortgage untruly recites the whole transaction. The bond was altogether fictitious.
    It was calculated to impose upon the world. The mortgage Was in truth made only to cover future contingent responsibilities.
    This propex'ty is to he considered as part of the joint funds of Gairdner, Caig-and Mitchel, and liable in the first place to the debts of that firm. The separate auditors of Edwin Gairdner can only claim his share after payment of all the joint debts.
    P. B. Key, in reply.
    It cannot he denied that, at the date of the mortgage,' Edwin Gairdner had a legal estate in one half of the mortgagedpremises.
    
      The mortgage, therefore, to that extent, is good, unless it want some formality; or unless the Defendants have a prior title at law, or some prior equity of which the Complainants had* notice previously to the mortgage.
    No want of fprmality, nor prior legal estate are sug gested;. nor can it be contended that Mitchel or Caig had any prior equity as to one half the property. Mitchel in his answer expressly disclaims any interest prior to the mortgage.
    It is indeed suggested that this real estate is to be considered as part of the joint stock in trade of the firm of Edwin Gairdner &-Co. of Savannah, consisting :of E. Gairdner and John Caig; and one partner cannot dispose of any part of the joint funds to his own use, without the consent of the other partner.
    But neither at law, nor in equity, will real estate be considered: as stock in trade, so as to alter the nature of the estate, unless there be some express agreement for that purpose. 3.Br. C. C. 199, 300. Thorntonv. Dixon. In the present case there were no articles of co-partner-, ship prior to the mortgage, nor any agreement that the real estate should be converted into stock in trade. 5, Fe». 189. Smith v. Smith. — in order to make partnership stock of real estate, it must be purchased with partnership funds, or there must be an agreement at the time, of purchasing that it shall be used and invested as partnership. stock.
    But in the present cáse nothing wras paid by the firm of E. Gairdner & Co. of Savannah^ for this property, nor was there any agreement converting it into stock.
    The firm of Gairdner, Caig & Mitchel was formed after the mortgage, and therefore whatever interest they took in this property was subject to the mortgage.
    There can be no doubt that the mortgagees had a right under such a mortgage, to recover in equity, all advances made upon the credit of the mortgage subsequent to its-date, and before notice of junior incumbrances; and recording the subsequent incumbrance is not of itgelf notice. Powell on Mart. 229, 230, 285,
    
      As to the objection that one of the mortgagees was not a creditor at the date of the mortgage, and did not he-come a creditor upon the faith, of the mortgage, it is laid down in Fowdlon Mart. 275, that if one purchase in. the name of another without any authority to do so, yet if he afterwards agree to it, lie makes the former his agent ab. initio.
    
    The Complainants therefore, are entitled to a decree for a foreclosure of one half of the property described in the mortgage, and for the recovery of all sums advanced on the faith of the mortgage before the mortgagees had notice of the second incumbrance.
    
      Feb. 17,
    
      JÜl the Judges (except Washington, J.
      
       J being present,
    
    
      
       When this • case was called, and before it was opened, C. Lee suggested, that it would be desirable'to wait .for a fuller Court, as the Judge who rendered the decree might think proper to retíre from, the bench.
      Livingston, J. That practice has been abandoned.
      Johnson, J.- We have agreed among ourselves, not to excuse the Judgr. who passed the decree.
    
    
      
       Judge Washington-was prevented by indisposition, from attending on ■ the 13th, 14th, 15th, 17th and 18th of February.
    
   Marshall, Ch. J.

delivered the opinion of the Court as follows:

This is an appeal from a decree rendered by the Circuit Court for the district of Georgia.

Shirras and others, the Appellants, brought their bill to foreclose the equity of redemption on two lots lying in the town of Savannah, alledged to have been mortgaged. to them by Edwin Gairdner. ' The deed of' mortgage is dated the first of December, 1801, and purports to be a conveyance from Edwin Gairdner and John Caig, by Edwin Gairdner his attorney in fact. Edwin Gairdner not appearing to have possessed any power, to act for John Gaig, the conveyance, as to him, is void, and could only pass that interest which was possessed-by. Gairdner himself. The Court will proceed to inquire what that interest was.

ít appears that, on the. 17th May, 1796, the premises were conveyed to Janies Gairdner, Edwin Gairdner and Robert Mitchel, merchants & cp-partners of the city of Savannah.

In 1799, this partnership ivas dissolved ; and, in December in the same year, James Gairdner made an en-try on the books of the company charging this property to Edwin. Gairdner & Co. of Charleston, at the price of 20,00.0 dollars. This firm consisted of Edwin Gaird-. her'alone. James Gairdner also executed a power of attorney authorizing Edwin Gairdner to sell and convey his interest in this and other real property.

In March, 1801', a partnership was formed between Edwin Gairdner and John Caig to carry on trade in Savannah, upder the firm of Edwin Gairdner & co.; and in the same month, Robert Mitchel conveyed his one third of the lots in question to Edwin Gairdner and John Caig.

About the same time it was agreed between the house . at Charleston and that in Savannah to transfer the, Savannah property to the firm trading at that place; and entries to that effect were made in the books of both companies; and possession was delivered to Edwin Gairdner. . and Co. of Savannah.

Such was the state of' title in December, 1801, when the deed of mortgage bears daté.

The Plaintiffs claim the whole property, or; if not the whole, five sixths; because they suppose Edwin Gairdner to have been equitably entitled to, his own third, to that óf James Gairdner, and to half of the third of Robert Mitchel. But for this claim the Court is of opinion that there can be no just pretension, beb’ause he did not affect to convey by virtue of the power from1 James Gairdner — he did not affect to pass the interest of Janies Gairdner, but to pass the estate of John Caig and himself. Consequently the power of attorney may be put out of the case, and the conveyance could only operate on his own legal or equitable interest.

In, law, he was seized under the original deed, and the deed from Robert Mitchel of one undivided mGiety of the property.

Under the various agreements, and entries on the books of the firms at Charleston and Savannah which have been stated, his equitable interest was precisely equal to his legal interest.' In law and equity he held one moiety of the premises in question. The other moiety was in John Caig. To one sixth Caig was legally.entitied by the conveyance from Robert Mitchel, and to two sixths hé was equitably entitled by the agreement with Edwin Gairdner and the consequent entries on the

Of the equitable interest of John Caig the mortgagees were bound to take notice, because the purchaser of an equitable interest, purchases at his peril, and Acquires the property burdened with every prior equity charged upon it,, because the deed itself gives notice of Caig’s title, and because Caig was in possession of the property.

The mortgage deed of December,' 1801, could not, then, in law or equity, passmore than one moiety of the property it mentions.

A question arises on the face of the deed respecting the extent of the property comprehended in it. The Plaintiff’s contend that both lots are within the description | the Defendants that only the wharf lot is conveyed.

The property conveyed is thus described — “All that “lot-of land, hduses and wharfs in the city of Savannah" “ as is particularly described by the annexed plat, and “is generally known by the' name of Gairdner’s wharf.”

The plat was not annexed, nor was it recorded with the deed. It is, however, filed as an exhibit in the cause, and appears to be a plat of part of the town of Savannah, including the lot on which Gairdner’s wharf, was, and also one other lot belonging to the same persons, which was designated as No. 6, and which does not. adjoin the property on which the wharves are erected.

The words descriptive of the property intended to be conveyed do. not appear to the Court to be applicable to more , than the wharf lot. The word “lot” is in the singular number; the term “ houses” is satisfied by the ‘fact that there are houses on the wharf lot; and there is no evidence in the cause, nor any reason to believe that lot No. 6 was “ generally known “by the name of Gairdner’s. wharf.” The Court, therefore, cannot consider that lot as comprehended within the conveyance.

The mortgaged property is in possession of the Defendants, Caig and Mitchel, who derive their title thereto in the. following manner.

On the 7th of January, 1802, a new partnership was formed between Gairdner, Caig and Mitchel, and, by the articles of co-partnery, which are under séal, the Savannah property is declared to be stock in trade, and an entry was made on the books of the old firm transferring this property to the new concern. On the' 12th of the same month,. the co-nartnership of Gairdner and Caig was dissolved.

On the 27th of July, 1802, by deeds properly executed, orm third of the property became vested in John Caig, and one other third in Robert Mitchel.

On the 3d ofNovember, 1802, Edwin Gairdner became a bankrupt | and this bill is brought by his mortgagees and assignees.

The claim to foreclose is resisted by Caig and Mitchel, because, they say,

l?t. The mortgage was not executed at the time, it hears date, but long afterwards, and on the eve of bankruptcy.

■ 2d. That the transaction is not bona fide> there being no real debt, nor any money actually advanced-, by the mortgagees.

3d. That the mortgage was kept secret, instead of being committed to record.

4th. That the whole transaction is totally variant from that stated in the deed.

They therefore claim the property for the creditors of Gairdner, Caig and MitcheL

1st. From the testimony in the cause it* appears that the deed, if not executed on the day, was executed, about the day-of its date; ,and that Gairdner, at the time, waa (believed to be solvent.

3d. It appears, also, that the mortgage was executed, in part, to secure the payment of money actually due at the time, and, in part, to secure sums to be advanced, and to indemnify some of the mortgagees for liabilities to be incurred.

3d., The mortgage is dated the 1st of December, 1801, and was recorded in September, 1803.

By the laws of .Georgia, a deed is valid if recorded within twelve, months; but any deed recorded within ten days after its execution takes preference of deeds not recorded within that time, or previously on the record.

It appears to the Court, that neither negligence, nor that fraud which is inferred from the mere fact of omittingto place .a deed on record, can, with propriety, be imputed to the person who has used all the dispatch which the law requires. If subsequent purchasers without notice, sustain an injury within the time allowed for recording a deed, the injury is to be ascribed to the law, not to the individual who* has complied with its requisi . tion.

In this case the subsequent purchasers might have proceeded to record their deeds within ten days, and have thereby obtained the preference they claim, but they have failed to do so. They are themselves chargeable with the very negligence which,they ascribe to their. adversaries; and, were they to be preferred, the Court would invert the well, established rule of law,, and postpone, under similar circumstances, a prior to a subsequent deed.

4th. It is trim that the real transaction does not appear .on the face of the mortgage. The deed purports to secure a debt of 30,0001. sterling due to all the mortgagees. It was really intended to secure different sums, due at the time from particular mortgagees, advances afterwards to be made, and liabilities to be incurred, to an. uncertain amount.

It is not to be denied, that a deed, which misrepresents the transaction it recites, and the consideration on which it is executed, is liable to suspicion. It must sustain a rigorous examination. It is, certainly, always advisable fairly and plainly to state the truth.

But if, upon investigation, the real transaction shall appear to be fair, though somewhat variant from that which is described, it would seem to be unjust and precedented to .deprive the person claiming under the deed,-of his real equitable rights, unless it be in favor of a person who has been, in fact, injured and deceived by the misrepresentation.

That cannot have happened in the present case.

There is the less reason for imputing blame to the mortgagees, in this case, because the deed was prepared by the mortgagor himself, and executed without being inspected by them, so far as appears in the case.

It is, then, the opinion of the Court that the Plaintiffs, Shirras and others, have a just title, under their mortgage deed, to subject one moiety of the lot, or parcel of ground, commonly known by the name, of Gairdner’s Wharf, to the payment of the debts still remaining due to them, which were either due at the date of the mortgage, or were afterwards contracted upon, its faith, either by advances actually made or. incurred prior to the receipt of actual notice' of the subsequent title of the Defendar.ts, Caig and Mitchel; and that the decree of the Circuit Court of Georgia, so far as it is inconsistent with this opinion, ought ,to be reversed.

ThefoUowing is the decree of this Court.

This cause came on to be heard on the transcript of jhe record, and was argued by counsel/ On consideration whereof, it - is the opinion of this Court, that the deed of mortgage in the proceedings mentioned, and dated on the 1st of December, 1801, is; in law, a valid conveyance of one moiety of that lot of land, houses and Wharves in the City of Savannah, which was generally known by the name of Gairdner*s. Wharf, being the parcel of ground lying between the river and the street, and that the mortgagees in the said deed mentioned, are entitled to foreclose the equity of redemption in the said mortgaged property, and to obtain a sale thereof, and to apply the proceeds of the said sale to the payment of what remains unsatisfied of their respective debts, which were either due at the date of the mbrtgage, or have been since contracted,-either on apcótint of monies advanced, or liabilities incurred prior to their receiving actual notice of the title of the Defendants* Join» Caig, and Robert Mitchel. And the decree of the Circuit Court for the District of Georgia, so far as-it is inconsistent ^ith this opinion, is reversed and annulled, and in all other things is affirmed; and the cause is remanded to the said Circuit Court for the District of Georgia, that further proceedings may be had therein accox’ding to equity.  