Jackson ex dem. Fosdick v. West — 10 Johns. 466

Majority

p. 472

Jackson, ex dem. Fosdick, against West.

NEW YORK,

Oct. 1813.

Headnote

-laied 5Ui^of ■April, 1810, fscss 33 o 381.) concernriasvl16 Soft*" SmreiS\hlt' “ all leases of and all transfers thereof, should be recorded within 24 hours after the execution thereof, in the town clerk’s office, 5sc. or that in default the same should be “deemedvoids” ‘that7neglect to have an astugnment fora lease record-ft ’vóid’ mdy1 j&Tpuithif Sc?" (stfs si 0.76.8.13.) "

THIS was an action of ejectment for a lot of land in tlie town of Salina, in the county of Onondaga. * • w

■The plaintiff produced and proved a lease by Thomas II. Rawson, superintendent of the Onondaga Salt Springs, in behalf ^le people, to Isaiah Bunce, for the premises in question, dated 7th May, 1808, to hold from the 21st June, 1807, to the 20th June, 1818. The plaintiff produced an assignment of the lease from Bunce, to the lessor of the plaintiff, dated the 24th April, 1811, and approved by the superintendent.

The defendant objected that the assignment ought to have been recorded in the office of the clerk of the town of Salina, within 24 hours after the execution thereof. The 12th section of the act concerning the Onondaga Salt Springs, (sess. 33. c. 161.) passed 5th April, 1810, required “ that all leases of the said salt I°ts, ar,d a^ transfers thereof, shall be recorded within 24 hours after the execution thereof, in the town clerk’s office of Salina, at the expense of the lessee or assignee, and that m default thereof the same shall be void.” That this assignment, not having been so recorded, must be deemed void.

The plaintiff then read in evidence the 13th section of the act, .passed the 29th March, 1811, (sess. 34. c. 76.) concerning the salt springs, which requires every transfer of a lot to be recorded, &e. and declaring that “ in default thereof, it shall be deemed fraudulent and void as against any subsequent bona fide purchaser.”

A verdict was taken for the plaintiff, subject to the opinion of the court on the case above stated.

Kellogg, for the plaintiffs.

I. Hamilton, contra.

The better construction of the act of the 5th of April, 1810, is, that the omission to record the assignment only rendered it void, as against bona fide purchasers, or mortgagce$, `without notice. None of the registering acts have been considered as destroying the conveyance, as between the parties to it, from the omission to record it. The record was only intended for the benefit of purchasers and creditors. It could be of no other use. and the act of 1811, which repeals the act of 1810, and makes a new provision for the case of leases at the salt springs, de= dares that transfers not recorded should be deemed fraudulent and void as against bona fide purchasers. This may be considered as a more full and clear explanation of the provision in the former act; and as the defendant in this case sets up no title, nor pretends to any purchase, he ought not to be permitted to set up the want of a registry to defeat the plaintiff’s title. Fraudulent conveyances are declared by the statute 27 Elis, to be void ; yet a title derived through them will, in many cases, be supported. (Ante, 197.) The courts are to construe the act not so literally as to work injustice, but so liberally as to prevent the mischief and advance the remedy-.

Judgment for the plaintiff.