
    James Evans executor of Nathan Evans against Thomas Jones and wife, late Mary Nicholas, administratrix of Thomas Nicholas, and terretenant.
    The recording of a mortgage is a constructive notice to all the world.
    It is not absolutely necessary that mortgagees should have the possession of title deeds; but when after the execution of a mortgage and before the same is recorded, a sum is borrowed from a second mortgagee, on the strength of the title papers, without notice of -the first mortgage, the first mortgage perhaps will be postponed.
    
      
      Scire Facias stir mortgage to testator dated ntli August 1759, for securing the payment of iool. ón the 27th September 1775, regularly recorded. The defendants pleaded pay ment, with leave to give the special matters in evidence.
    The defence set up (besides the length of time, which was not much insisted on at the trial) was, that the mortgagee never had the possession of the title deeds of the lands, or if he ever was possessed of them, that he had given them up to the mortgagor or his administratrix, (who was his daughter;) and that by reason thereof, the lands had been appraised at their full value under an order of the Orphans’ Court, and had been vested by three different mesne conveyances in Peter Plank, the terretenant, who now produced the title deeds.
    The defendants’ counsel insisted, that here was a legal deception, and that the plaintiff’s mortgage ought not to prevail against the terretenant, who had purchased fairly without notice of the incumbrance. They cited 9 Mod. 37. One having a title to lands, and not giving notice to a purchaser, it is fraudulent; and this holds even in the cases of infants and femes covert. 2 Atky. 49. A mortgagee being present, and giving no notice of his incumbrance at the time of the making of a marriage settlement, * he shall be post--I poned. 1 Cha. Rep. 60. S. P. 3 Wms. 281. The first mortgagee permits the mortgagor to keep the title deeds, and the mortagor shewing a fair title, mortgages the premises to a second mortgagee, to whom he delivers the deeds, the first mortgagee is accessary to the drawing in of the second. 1 Wms. 394. Mortgagee of a ship by deed, intrusts the mortgagor with the original bill of sale, and the mortgagor indorses thereupon subsequent mortgages or bills of sale of several parts of the ship, and the mortgagee acquiesces, this is evidence of an assent in such mortgagee, and shall therefore postpone him.
    On the part of the plaintiff, was cited the resolution of the court in the case of Eevinz v. Will. Dallas 435. “The “ recording of a mortgage amounts to a constructive notice to ‘ ‘ all men, and supersedes the necessity of express personal “notice.”
   Per curiam.

This matter'has already been settled in effect, by the solemn decision of the Supreme Court in the case quoted by the plaintiff’s counsel. In Pennsylvania, “any ‘ ‘ one by having recourse to the offices of the recorders, may “ascertain the previous liens upon the property, which he ‘ ‘ wishes to purchase. ’ ’ The records are constructive notices to all mankind. We still adhere to that opinion. Our situation is very different from that of England, as to transferring or mortgaging landed property. There by a general statute (27 Hen. 8. c. ±6,) bargains and sales alone by deed indented, must be enrolled within six months in one' of the courts of Westminister Hall, or with the cusios rotulorum of the county. 2 Black. Com. 338. In the counties of York and Middlesex, and some other provincial divisions, special acts of parliament have directed the registry of deeds and wills in their several districts; but it is confined to them alone. Ibid. 343. It is not to be wondered at, that in England the circumstance of the mortgagee having the title deeds in his hands should be deemed of consequence, where the alienation or incumbrances are secret. There purchasers or creditors cannot know with any absolute certainty, what the estate, and the title to it, in reality are, upon, which they are to lay out or lend their money. 2 Black. Com. 342.

Cited in 87 Pa., 206, to support the proposition that recording a mortgage was constructive notice to a married woman.

Cited also in 77 Pa., 377.

Messrs. W. Smith and Mark Biddle, pro quer.

Messrs. Clymer and Read, pro def.

Verdict pro quer. by consent for 200I.

Vide. 2. Brown’s Cha. Rep. 650. Mortgagee of a revision not having the title deeds, shall not be postponed to another mortgagee (whose mortgage was made after mortgagor came into possession) who has the title deeds, there being neither fraud nor gross negligence.

But it is not so here. The law directs that mortgages shall be recorded within six months, and any man may discover the incumbrances, if he will take the trouble of searching the proper offices. If he will not, he must impute the consequences to his own laches. Vigilantibus non dormientibus leges siibservmnt. Besides it is not a general custom in this government for mortgagees to receive the possession of title deeds. It may be done in some instances by very prudent persons who lend out money, ex abundanti caiitela, but it is far from being generally practised.

The chief justice in the course of the trial said: — In one case only can the mortgagee be affected by suffering the title deeds to remain in the hands of the mortgagor; and that is, where after the execution of the mortgage, and before the same is recorded, the mortgagor, on the strength of the title papers in his hands, borrows money on a second mortgage. If this second loan was made without knowledge of the first incumbrance, and before the first mortgage was put into the recorder’s office, there I should apprehend the first mortgagee should be postponed.  