
    Joseph M. Harper vs. David M. Barsh and others.
    
      Bond — Mortgage—Recording—Implied Notice.
    
    In a bill to foreclose a mortgage given to secure the payment of a bond, the plaintiff cannot recover beyond the penalty of the bond, although the principal and interest should largely exceed it.
    A mortgage with only one subscribing witness is void as a legal mortgage, and is not such an instrument the recording of which will raise the presumption of notice to a purchaser from the mortgagor.
    BEFORE *WARDLA W, OH., AT ORANGEBURG,
    FEBRUARY, 1857.
    Ward law, Ch. This is a bill for the foreclosure of a mortgage of lands, and it was filed January 11, 1856.
    On January 14, 1833, David W. Barsh, of Orangeburg, executed a bond to Catherine M. Barsh, of Columbia, in the penalty of $4,742.2 lj, conditioned for the payment of $790.45 on January 1, 1837, the like sum on January 1,1841, and the like sum on January 1, 1845, with interest from the date, on the whole, payable annually; and, to secure the payment, the obligor, on February 14, 1833, executed to the obligee a mortgage of two adjoining tracts of land in St. Mathew’s parish, one granted to Moses Thompson, October 7, 1755, for 350 acres, and the other granted to John Wooten, November 28, 1771, for 200 acres. This mortgage was attested by one witness only, and was recorded in the Register’s office for Orangeburg, November 23, 1833.
    On November 19, 1834, the said Catherine M. Barsh, in contemplation of intermarriage, shortly afterwards had, with Abner Lewis Hammond, settled and assured to David W. Barsh, as trustee,' for her separate use, (with certain limitations over,) certain negroes, and $1,500 of the money secured by said bond. This settlement was recorded in the office of the Secretary of State, at Columbia, February 10, 1835, but it has not been recorded in the Register’s office.
    On November 18, 1834, credits were indorsed on the bond for $871.35 of the principal, and for all the interest to January 1, 1835. . No subsequent payment appears to have been made.
    On November 19, 1834, Catherine M. Barsh, by indorsement under seal, assigned to David W. Barsh $1,500, the balance due on said bond in trust for her benefit, “agreeably to the terms, uses, trusts and conditions contained” in the marriage settlement that day executed by her, Hammond and Barsh.
    On February 2, 1854, Catherine M.'Hammond, in pursuance of a power reserved in the settlement, substituted the plaintiff, Joseph M. Harper, as her trustee, in place of the former trustee.
    By deed, executed December 10, 1834, David W. Barsh conveyed the said two tracts of land in fee simple to Joel Butler, for the recited consideration of $2,500. This conveyance was recorded in the Register’s office for Orangeburg, January 1, 1838. Joel Butler has been in the actual, exclusive and adverse possession of the land ever since the date of his conveyance, more than twenty-one years before the filing of the bill.
    The bond and mortgage were placed in the hands of Mr. Bellinger, August 12, 1847, “on consideration,” and on May 31, 1853, he presented the claim arising from them to Butler, and requested him to confer with counsel on the subject.
    David W. Barsh has been insolvent for several years, and the bill is taken pro confesso against him.
    The marriage settlement is invalid against third persons,, (generally,) for lack of recording in the Register’s office, [Barsh vs. Riols, 6 Rich. 162,) and it is used in the case only to show that the office of trustee has been regularly conferred on the plaintiff. For this purpose, and as to the parties to it, it is efficacious.
    Joel Butler, in his answer, denies actual notice of the mort- . gage when he accepted a conveyance and entered into possession, and insists that the recording more than six months after its execution, of a mortgage of land not attested by two witnesses, is insufficient to raise the implication of notice to him. He claims to be a bona fide purchaser for value, and he relies upon the lapse of more than twenty years both to fortify his possession and to raise the presumption of satisfaction of the bond.
    The plaintiff objects that the defence of bona fide purchaser is not well pleaded, because the answer does not allege payment of the purchase money before notice. It is certainly a requisite of this defence, that notice before payment of the purchase money should be denied; and in good pleading all the requisites of the defence should be set forth with convenient certainty, and not rest in intendment or vague statements — Cummings vs. Qoleman, 7 Rich. Eq. 520. Still the same exactness of averment may not be indispensable when the defence is corroborated by lapse of time as when it stands alone. Here the defendant avers that Barsh, for a valuable consideration by him received, duly granted and conveyed to this defendant, December 10, 1834, the tract of land, etc., and defendant went into immediate possession, and at the execution of the conveyance was not advised of the existence of any lien by way of mortgage; on the contrary, was induced by Barsh to believe no incumbrance existed, etc.; and that defendant purchased the premises for a valuable and bona fide consideration. Considering the defendant’s long possession, and that the plaintiff could not pretend any surprise, these averments may be treated as substantially including the allegation supposed to be omitted. The payment of the purchase money, at the time of taking possession, must be presumed from defendant’s long possession. The title of the plaintiff is of that equitable character to which the plea is applicable. But after ali, this equivocal defence may be waived, and the judgment rested on other grounds.
    Ifithere were not another ground which is more satisfactory to me, the defence would be sustained, for the reason, that from the long possession of the defendant, not disturbed by any demand of payment from him, and without any actual payment, by any person, of any part of the bond during the whole term, the presumption of satisfaction of the bond must be deduced. And this presumption would arise whether the defendant had actual or implied notice of the bond or not. Several cases in our courts, Thayer vs. Cramer, 1 McC. 395; Nixon vs. Bynum, 1 Bail, 148; Smith Cuttino vs. Osborne, 1 Hill Ch. 342; Wright vs. Eaves, 5 Rich. Eq. 81, have settled that the alienee of the mortgagor with notice of the mortgage, cannot protect himself by his possession under the statute of limitations, nor perhaps under the presumption from lapse of time, so long as the mortgage debt, by partial payments, or other equivalent circumstances, is kept subsisting. But all of these cases imply that the presumption of satisfaction of the debt, from lapse of time, must be applied where the continuing efficacy of the bond has not been exhibited for twenty years. See, also, Drayton vs. Marshall, Rice Eq. 373; Sims vs. Jiutezy, 4 Strob. Eq. 117; Tucker vs. Hunt, 6 Rich. Eq. 1S9, 193; 4 Kent C. 189; Giles vs. Barremore, 5 Jno. C. 552. No circumstance appears in this case adequate to rebut the presumption.
    Lastly, I entertain the opinion firmly that the defence of Butler must prevail, that during his long possession of the land before suit, he had no notice of the debt with lien claimed by the plaintiff. This defendant had no actual notice; and recording of a mortgage incomplete in execution, for lack of proper attestation, did not fix him with implied notice, so as to impose on him the character of trustee for tfie mortgagee. As I have elsewhere said, Cummings vs. Coleman, 7 Rich Eq. 519, “where one has notice of an instrument of conveyance, void for incompleteness of execution, for example, of a devise of lands without attesting witnesses, he may safely treat the instrument as legally invalid, and in disregard of it may make ( a contract concerning the subject.” Is, then, a mortgage of land without two witnesses, a valid and complete instrument, which may be properly recorded with the legal results of recording? An ordinary mortgage, as the present purports to be, is a conveyance in fee defeasible on the performance of a subsequent condition, the payment of the debt, 2 Jacob L. D. 575, 7, 8, Coote on Mort. 8. Our Act of 1795, to facilitate the conveyance of real estates, 5 Stat. 255, prescribes a form of release, which shall be valid and effectual, to convey the fee, "if the same shall be executed in the presence of, and be subscribed by, two or more credible witnesses.” It is provided in the Act that it shall not be construed to restrain the grantor from inserting such other clauses as may be. deemed proper by the purchaser and seller. In Mlston vs. Thompson, Chev. L. 271, it is held by the Court of Errors that a deed like the present, except as to the condition, is not valid to convey land; and in Craig vs. Pinson, p. 272, it is held by the same Court, that such a deed, with only one subscribing witness, is equally invalid. A mortgage is equally within the scope of the general terms employed in the Act of 1795 as an absolute conveyance; it was equally within the mischiefs of the old law, and equally needed the remedies provided by the Act. The 45th section of the County Court Act of 1785, 7 Stat. 232, under terms quite as general as those of the Act of 1795, embraced mortgages for the purposes of registry. Steele vs. Mansell, 6 Rich. L. 440. And the Act of 1797, 5 Stat, 311, in amendment of the Act of 1791, ib. 169, enacts, that a release by the mortgagor to the mortgagee, of the equity of redemption, shall consummate the legal title of the mortgagee, and seems to imply that the mortgagee previously had title, to some extent, conveyed by the usual formalities. In Pledger vs. Ellerbe, 6 Rich. L. 266, Judge Frost expressly decided that a mortgage of land could be made only by the same forms and solemnities as an absolute conveyance, and that the mortgage there was invalid, because it was attested by a single witness; and his decision was not controverted on this point by the Court of Appeals, although that Court ordered a new trial on another ground, that the plaintiff was estopped by proceedings for foreclosure, to which she was privy, from denying the validity of the mortgage.
    The Act of 1791, 5 Stat. 169, inhibits a mortgagee from maintaining a possessory action against the mortgagor, even after condition broken, and declares that the mortgagor shall still be deemed owner of the land, and the mortgagee owner of the debt secured, with right to proceed for foreclosure; and it is urged for the plaintiff, that this Act changes altogether the character of a mortgage from a conveyance of the land, and makes it a mere security for the debt, not controlled by the provisions of the Act of 1795. I shall not stop to-discuss whether or not the Act of 1791 is applicable to such a case as the present, where the mortgagor has been so long out of possession, but concede for argument that the Act is applicable. The provisions of the Act had long before been recognized as doctrines of Equity, and the main purpose of the Act was to extend these doctrines to the Court of Law, and to provide an easy method of foreclosure in certain cases in that Court. Durand vs. Isaack, 4 McC. 55. Nothing is enacted or intimated as to any change in the form and requisites of mortgages, and the legislation is limited to declaring the effect of such instruments when executed with due formalities. They are still left conveyances of the fee in form, although declared to operate only as securities for debts. In Equity, an unattested agreement to mortgage, or a m ere deposit of title deeds may be set up as a mortgage, but it was never suggested that the recording of such an equitable mortgage would affect purchasers with notice — so an absolute conveyance or instrument in almost any form, if demonstrated according to the rules of evidence to be intended by the, parties to be a mortgage, will be treated in Equity as a mortgage; but none of these doctrines, nor the language of the Act of 1791, disturbs the conclusion that, when a mortgage is presented to . the Court for consideration as a legal instrument, and as having the consequehces by recording, or otherwise, of a legal .mortgage, it must possess the requisite formalities of a complete mortgage. I am of opinion that a mortgage of land, attested by one witness only, is incomplete in execution and not entitled to be recorded. No stress had been laid on the fact, that the mortgage was not recorded within six months from its execution, for I understand Steele vs. Mansell to decide such delay to be immaterial for most purposes, and that a regular mortgage recorded out of time still affects with notice from the date of recording.
    It is adjudged and decreed that the bill be dismissed with costs as to the defendant, Butler.
    The defendant, Barsh, makes no defence, and I suppose the plaintiff is entitled to a decree against him, but not beyond the penalty of the bond, although the debt now largely exceeds the penalty.
    It is ordered and decreed that the defendant, David W. Barsh, pay to the plaintiff, as trustee, the sum of $4,742 21-|, , and that plaintiff may proceed for the execution of the same by fi. fa. or attachment.
    The complainant appealed and moved this Court to modify the decree so as to make the defendant, Barsh, liable for the whole amount due on the face of the bond, with annual interest, even though the same should exceed the penalty thereof — which amount is $5,648, due 1st January, 1857. And, also, to reverse the decree of the Chancellor in favor of the defendant, Butler, on the grounds:
    1. Because no presumption of payment or satisfaction of the debt did or could arise in this case, the instalments sued' for being due in 1841 and 1845, and the bill filed in 1856.
    2. Because the defendant, Butler, was not protected by his possession against the lien of the mortgage. -
    3. Because the mortgage (though attested by only one witness) was valid and complete.
    
      4. Because the registration of this mortgage was sufficient and legal notice to the defendant, Butler, as subsequent purchaser.
    5. Because on the case, as made by the pleadings and proof, the complainant was entitled to a decree of foreclosure for the whole amount due on the bond, viz: The second and third instalments, (unpaid,) with annual interest since 12th January, 1836, twenty years, less one day, prior to the filing of the bill, which amount is $5,530, due 12th January, 1857.
   Per Guriam.

This Court concur in the decree of the Chancellor. The appeal is dismissed.

Dunkin, Dahgan and Wardlaw, CC., concurring.

Appeal dismissed.  