of the mortgage could not then in any wise concern the judgment creditor. The judgment creditor, by entering his judgment, acquired no rights as against the mortgagor or mortgagee. The neglect to record, or the want of notice, in no way affected him. He was not within the protection of the act; he had no need to be. The position of the judgment creditor is established when he takes his judgment, and if it is not a judgment which is then a lien on the lands, the statute has no relation to it. It is certainly not within the spirit of the Registry Law. . . . When the judgment was taken the mortgagor was owner. The plaintiff in the judgment, when entered, had no interest whatever in the condition of the title to these lands, or in knowing how the record stood." The court held, however, that if the judgment had been recovered after the title of the heir at law had vested, the case would have been entirely different; that a judgment recovered against him after his title had vested would have displaced the unrecorded mortgage given by the ancestor, and the purchaser under the judgment, if he had no notice of the mortgage, would have been a bona fide purchaser within the language of the act; saying in that connection: "This construction, I think, gives full effect to the letter and spirit of the statute, and protects all who are required to act upon it. In my view, the Registry Law applies only in cases where the interest of the judgment creditor, mortgagee, or purchaser, at the time he acts, can be affected by want of notice of the unrecorded mortgage. It cannot be conceived that it was intended to relate to those who have no concern in such mortgage, when they acquire their rights. The learned vice chancellor, in his opinion in this case, says 'that, as a general rule, a judgment creditor can take nothing for the satisfaction of his debt, which his debtor cannot himself sell, and make a good title to as against his creditors. That the statute has changed this rule and given a judgment creditor, in a certain contingency, a right to sell property for the satisfaction of his debt, which

his debtor could not himself sell, an to sell the same free from the lien of a prior unregistered mortgage, executed thereon by his debtor. But, in order to possess this right, he must be a judgment creditor of the person who executed the prior unregistered mortgage, and not a judgment creditor of some person who may, at some future time, after entry of his judgment, become the owner, by descent, of the mortgaged premises.' This qualification of the rule 'that the judgment creditor must be a judgment creditor of the person who executed the unregistered mortgage' is not accurate. It is obvious that a purchaser from the heir at law, after the inheritance falls to him, is, upon a just and reasonable interpretation, within the protection of the Registry Law, where the unregistered mortgage is executed by the ancestor. The princi

ple must be the same where the purchaser of the heir's estate acquires title through a judicial sale, made under a judgment like the adversary judgment in this case. Otherwise the record will furnish no protection to the purchaser from the heir at law of the descended estate, nor could title safely be taken from a devisee of land."

In Wood v. Lake (1878) 62 Ala. 489, in holding that the recovery of a judgment, without the levy of an execution, constituted the holder a creditor, with a claim superior to that conferred by an unrecorded mortgage the court said: "There is no attempt to prove notice of the trust deed given to anyone, until its registration, which operated constructive notice from that date. The testimony is that part of the debt the trust deed was given to secure was contracted contemporaneously with the execution of the deed, and the residue was to cover future advances. The sections of the Code which bear on this question are as follows: "2166. Conveyances of unconditional estates, and mortgages, or instruments in the nature of a mortgage, of real property, to secure any debt created at the date thereof, are void as to purchasers for a valuable consideration, mortgagees and judgment creditors having no notice

thereof, unless recorded within three months from their date. 2167. All other conveyances of real property, mortgages, or deeds of trust to secure any debts, other than those specified in the preceding section, are inoperative and void as to purchasers for a valuable consideration, mortgagees and judgment creditors, without notice, unless the same have been recorded before the accrual of the right of such purchasers, mortgagees, or such judgment creditors.' No argument is necessary to show that the trust deed in the present record is one of the instruments provided for in each of the sections copied above. It is an instrument in the nature of a mortgage of real property, so far as its purpose was to secure a debt created at the date of its execution; and, as to the debts not created, it is a deed of trust falling within the express terms of § 2167. Such deeds, when made to secure presently contracted debts, are required to be recorded three months from their date. When made to secure any other description of debt, it is only from the date of their registration that they are valid. against purchasers for a valuable consideration, mortgagees, and judgment creditors without notice. The statutes draw no distinction between purchasers for a valuable consideration, mortgagees, and judgment creditors. All, alike, occupy the same vantage ground. Hence, if a purchaser for a valuable consideration is protected, a judgment creditor is equally protected. The purpose of these enactments was the prevention of frauds. They impose a very light burden on the beneficiaries under such instruments, while they render a valuable service to the public at large, in furnishing the means of ascertaining what property is, and what is [not] encumbered by such conveyances. They are void -that is, inoperative-unless recorded as the statute prescribes. They are not technically void instruments, for they are binding on the parties, and on all persons having notice of their existence. They are only inoperative as against the classes of persons the statute was designed to protect.

Our present statutes

are imperative and specific in their terms. They define the class of creditors they mean, judgment creditors, at a time when judgments were not a lien on any species of property. Perhaps the legislature, in this change, was influenced by the fact that a debt in judgment is of higher dignity than one existing in mere contract. Be this as it may, we find the statute express in its terms, and we do not feel at liberty to add provisions which the lawmakers left out. It declares that such unrecorded conveyances are void as against judgment creditors 'having no notice thereof,' and we feel that there is left to us no room for construction. We should endanger, if not impair, the usefulness of a very salutary statute, enacted to prevent fraud, if we were to travel out in search of an intention or policy not expressed or implied in the words of the statute."

In De Vendell v. Doe (1855) 27 Ala. 156, arising under the Alabama statute (Act of 1828; Clay's Dig. pp. 255, 256, § 5) providing that all deeds and conveyances of personal property, in trust to secure any debt or debts, should be recorded within thirty days, or else the same should be void against creditors and subsequent purchasers, it was held that as the judgment creditor in that case had, at the time the judgments were rendered, and when it acquired a lien on the land, no notice of a prior deed of trust, and as the deed of trust was not recorded within the time prescribed by the statute, it was void as against the judgment creditor.

In Fash v. Ravesies (1858) 32 Ala. 451, it appeared that an equitable mortgage was registered more than sixty days after its execution. A judgment creditor was not shown to have had notice of it until the institution of a suit in chancery for its foreclosure, his judgment having been rendered before the commencement of that suit. It was held that, having obtained a lien without notice, the judgment creditor would be protected against the prior unregistered deed or conveyance of real and personal property in trust to secure the payment of

debts, which was required to be recorded by the foregoing statute. But the court held in that case that the judgment creditor's title was subordinate to that of the purchaser at the foreclosure sale, inasmuch as the contract, simply pledging the real and personal property of a railroad company for the faithful performance of a contract to purchase certain merchandise, though creating an equitable mortgage, was not an instrument required to be recorded by that act.

In Mississippi Valley Co. v. Chicago, St. L. & N. O. R. Co. (1881) 58 Miss. 846, it was held under a registry law providing that "every conveyance, covenant, agreement, deed, mortgage, and trust deed must be recorded in order to be valid and effectual against "subsequent purchasers and all creditors," that where a mortgage remained unrecorded, a judgment creditor who had no actual notice of it, or anything to put him on inquiry, might subject the interest of the mortgagor exactly as if he had made no such instrument, and the purchaser at the execution sale would obtain a title superior to the rights of those who claimed by, through, or under the unrecorded instrument.

In Lash v. Hardwick (1878) 5 Dill. 505, Fed. Cas. No. 8,097, the court sustained the priority of a judgment lien over that of an unrecorded mortgage, under the Minnesota statute (Rev. Stat. p. 330, § 21) enacting that an unrecorded mortgage "shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance is first duly recorded or as against any attachment levied thereon, or any judgment lawfully obtained. at the suit of any party against the person in whose name the title to such land appears of record, prior to the recording of such conveyance." It was held that the statute protected judgment creditors as bona fide purchasers for a valuable consideration.

In Dunwell v. Bidwell (1863) 8 Minn. 34, Gil. 18, a prior Minnesota statute (Act of August 3, 1858) declaring that every conveyance by deed,

mortgage, or otherwise, of real estate, within the state, hereafter made, should be void as against attachments and judgments, etc., obtained before it is recorded, etc., while placing attachment and judgment creditors on the same equality with bona fide purchasers for value, was held to apply only to such conveyances as were made after the passage of the act. As to all other conveyances, it was held, they were governed by the law as it previously existed, and that gave an unrecorded mortgage precedence over a judgment. To the same effect see Golcher v. Brisbin (1874) 20 Minn. 453, Gil. 407.

In Hawkins v. Files (1888) 51 Ark. 417, 11 S. W. 681, it was held that the lien acquired by the levy of an execution on lands was superior to that of a prior unrecorded mortgage, though the mortgage was filed for record before the sale. That decision was followed in Cleveland v. Shannon (1889) Ark. 12 S. W. 497, the court holding that the lien of a judgment was superior to that of an unrecorded mortgage.

In Bingaman V. Hyatt (1843) Smedes & M. Ch. (Miss.) 437, it was said that a judgment is a lien on the property, both real and personal, of the defendant from its date, but a mortgage takes effect as against creditors only from the date of its registration; hence, a judgment which is of older date than the registration of the mortgage of course overreaches it, unless, by subsequent proceedings under that judgment, its lien becomes extinguished and discharged.

A Nova Scotia statute (Rev. Stat. 5th ser. chap. 84, § 21) provides as follows: "A judgment, duly recovered and docketed, shall bind the lands of the party against whom the judgment shall have passed, from and after the registry in the county or district wherein the lands are situate, as effectually as a mortgage, whether such lands shall have been acquired before or after the registering of such judgment; and deeds or mortgages of such lands, duly executed but not registered, shall be void against the judgment creditor who shall first register

his judgment." Thereunder, in Miller v. Duggan (1891) 21 Can. S. C. 33, it was held that an unregistered agreement to give a mortgage, as in the case of an actual unregistered mortgage, was subordinate to the lien of a subsequently docketed judgment. The court said: "It seems to me to be reducing the registry statute to an absurdity to say the legislature could have intended that a mortgage, duly executed but not recorded, should be void as against a judgment creditor whose judgment is duly recorded, and that a mere parol agreement not recorded to give a mortgage should have priority over the duly recorded judgment, thereby giving greater effect to a mere parol unrecorded promise to give a mortgage than to the unrecorded mortgage itself; such a result the legislature could, in my opinion, never have contemplated."

In Ludlow v. Clinton Line R. Co. (1861) 1 Flipp. 25, Fed. Cas. No. 8,600 (applying Ohio statute), it was held that the lien of a railroad mortgage recorded in one county before the judgment creditor obtained his judgment had priority over the judgment with respect to the lands and road of the railroad company situated in that county, but as to lands in other counties where the mortgagee failed to record his mortgage until after the rendition of the judgment, it had priority over the mortgage.

In Bostic v. Young (1895) 116 N. C. 766, 21 S. E. 552, it was held that deeds of trust and mortgages were of no validity whatever as against judgment creditors, unless they were registered, and that they took effect only from and after registration, under the statute (Acts of 1885, chap. 147, § 1) providing that no conveyance of land, etc., should be valid to pass any property as against creditors or purchasers for a valuable consideration, but from the registration thereof, within the county where the land lay.

In Union Bank v. Lumsden Milling Co. (1914) 8 Sask. L. R. 263, 23 D. L. R. 460, it was held that the effect of the Land Titles Act (§ 118, subsec. 2, as amended by § 17 of chap. 16 of Acts

1912-13) was to give an execution, a copy of which was filed in the proper office, priority over an unregistered equitable mortgage.

In Gulley v. Thurston (1893) 112 N. C. 192, 17 S. E. 13, wherein the question question was whether a judgment creditor whose judgment had been duly docketed, or a mortgagee whose mortgage was executed and registered after the docketing of the judgment, had a superior lien on the land of the debtor, outside his allotted homestead, the court said that under the statute (Code, § 435) the docketing of a judgment created a lien on all land of the debtor in the county where docketed from the date of the docketing, and that a mortgage was a lien only from the registration. This decision was followed in Vanstory v. Thornton (1893) 112 N. C. 196, 34 Am. St. Rep. 483, 17 S. E. 566.

A judgment lien has priority over that of a previous unrecorded deed, absolute in form, but which was intended as a mortgage. United States v. Deveraux (1898) 32 C. C. A. 564, 61 U. S. App. 548, 90 Fed. 182 (applying North Carolina statute).

So, an absolute deed and a separate defeasance, executed on the same day between the parties, as security for money advanced, constitute in effect but one instrument, which is to be considered in law in the nature of the mortgage; and the deed having been recorded, but not the defeasance, it is

to be considered as an unrecorded mortgage, and will be postponed to a subsequent judgment. Jaques v. Weeks (1838) 7 Watts (Pa.) 261; Friedley v. Hamilton (1827) 17 Serg. & R. (Pa.) 70, 17 Am. Dec. 638; Manufacturers' & M. Bank v. Bank of Pennsylvania (1844) 7 Watts & S. (Pa.) 335, 42 Am. Dec. 240; Corpman v. Baccastow (1877) 84 Pa. 363.

In Western Chemical Mfg. Co. v. McCaffrey (1910) 47 Colo. 397, 135 Am. St. Rep. 234, 107 Pac. 1081, it was held that no resulting trust nor unrecorded deed would operate to defeat the right of a judgment creditor who had caused his judgment to become a lien by proper record, unless the creditor had notice of the trust or unre