Perkins v. Moore, Judge, &c.

of Pace v. Dossey 1 Stew. Rep. 20; see also 2 S. and P. 341. But the correct doctrine is, that/a judgment on a general de- \ murrer to a declaration is a judgment on the merits, and conclusive upon a subsequent action for the same cause. In this case, a majority of the court are of opinion, that the plea, although it does not set out the record of the former judgment, sufficiently identifies the two declarations, to satisfy them, that they are substantially the same, and being the same, the judgment on demurrer is a good bar. Gould on Pl. 478; 1 Chit. Pl. 198, 214, 540. I have not been able to agree with my brethren in respect to the identity of the two causes of action, or rather of the two declarations. In my judgment, the plea, being in the nature of an estoppel, cannot be aided by any intendment; and this declaration being confessedly good, we cannot therefore intend that the former declaration, although it averred the same breaches of the same bond, averred them in the same way; for if this intendment were indulged, it would amount to a presumption, that the court, upon the trial of the first case acted improperly, and decided against the law. I think it better conforms to the law, governing the doctrine of legal intendment, to presume that the same breaches, now assigned upon the condition of this bond, were imperfectly assigned in the first declaration.

It will be observed, that this plea is unlike any of the forms furnished by the books, and we have looked in vain for a precedent to guide us. The usual mode is for the defendant to plead the former judgment in bar. This plea does not show whether the judgment was upon the merits, or otherwise; but if the judgment was not upon the merits, but was rendered upon a defect in the declaration, then the practice is for the plaintiff to reply this matter. In the case at bar, however, the plea itself shows that the former judgment was upon a demurrer to the declaration, and showing this, in my opinion, the legal intendment is that the declaration in the first case was defective, and unlike the declaration in this case, which is manifestly good; and the pleader having thus raised a presumption adverse to his plea, should have gone further, and have averred not only, that the two declarations contained the same identical breaches, on the identical same condition of the bond, but that all the other collateral facts, necessary to

Dearing v. Watkins.

give point to the breaches, were identical. My brethren think the plea in substance does this, and that the demurrer to it was improperly sustained. According to the rules of law, which in my judgment apply, the plea, which is purely technical, and which, being a plea in estoppel, should not be aided by intendment, does not sufficiently exclude the presumption, which the law raises of a defect in the first declaration. The judgment pleaded must be upon the merits-1. Greenl. Ev. 530 and citations.

Let the judgment of the Circuit Court be reversed, and the cause remanded, that the plaintiff, if he desire it, be allowed to reply, and such proceedings be had, as shall conform to the views of a majority of the court,

DEARING rs. WATKINS.

1. An unregistered mortgage is valid and operative against subsequent purchasers, with notice. The fact that the mortgage was executed in another State, whilst the property was in this, cannot affect the principle.

2. The retention of possession, by the mortgagor, after the law day has elapsed, is not prima facie evidence of fraud: It is, at most, but a circumstance from which fraud may be inferred.

Error to the Circuit Court of Lawrence. Tried before the Hon. Thomas A. Walker.

THIS was an action of detinue by the plaintiff in error against the defendant for the recovery of a slave and damages for his detention. The plaintiff claimed title under a mortgage executed to him on the 24th October, 1840, by James Jackson, the consideration and bona fides of which were admitted. The mortgage was executed in the State of Georgia on property in this State, and the debt, which it was intended to secure, became due on the 1st January, 1841. The defendant relied for his defence on a bill of sale from said James Jackson, dated the 10th January 1842, the consideration paid being a note of said Jackson for $662 held by the defendant,

Dearing v. Watkins.

and which was extinguished by the purchase. The slave was owned by Jackson as far back as 1832, had continued in his possesion in Alabama up to the date of the purchase by the defendant, and was then delivered to him. It was admitted that the mortgage had never been recorded in this State, but the defendant had actual notice of it at and before his purchase. The court upon this state of facts charged the jury, 1st. That although the mortgage was valid between the parties both in the State of Georgia and in this State, yet, as to subsequent purchasers and creditors in this State, who became such after the law day had elapsed, it was fraudulent and void, notwithstanding such purchasers and creditors had actual notice of its existence, unless it had been duly recorded in this State in accordance with the requirement of the stat

ute.

2. That if the mortgagor was permitted to retain possession of the slave, after the law day of the mortgage had elapsed, it was prima facie evidence of fraud, and required explanation. To these charges the plaintiff excepted, and now assigns

them as error.

T. M. PETERS for plaintiff.

1. Under the acts of 1823 and 1828, which, if any do, apply in this case, actual notice renders registration unnecessary. The act of 1803 does not apply, as the mortgage was on consideration deemed valuable in law. Clay's D. 255, §§ 5, 4, 3; Smith v. Zurcher, 9 Ala. 208; Bolling v. Carter et al., 9 Ala. 921, 923; 3 Stew. 233; Ohio Life Ins. Co. v. Ledyard, 8 Ala. 866; 1 Story Eq. § 403; 10 Ala. 682; 4 Ala. 469.

2. The retention of possession by the mortgagor of personal property after the law day is passed, is not prima facie evidence of fraud. It must be shown that there is fraud before fraud need be rebutted: fraud is not a presumption of law, but a fact to be proven. Simerson v. Br. Bank at Decatur, 12 Ala. 205, 212, 213; Willis v. P. & M. Bank, 5 Ala. 781; 1 Story Eq.

3. The mortgage, under which the plaintiff claims, having been made and delivered in the State of Georgia, by a resident citizen of that State, and conveying property in this State at the time of the execution of the mortgage, is not affected by the act of 11th January, 1828. The language of this act is

Dearing v. Watkins.

descriptive only of such conveyances as have been made by parties residing in this State. It is not ambiguous. It cannot therefore be extended by construction to others not mentioned. Expressio unius est exclusio alterius, is the law of statutes as well as contracts. Conveyances so circumstanced are also excluded by the acts of 1803 and 1823, as their language does not embrace it; and as State laws have no force extra territorium, (12 Ala. 53, 42,) this State never intended its enactments to operate on foreign contracts. Clay's Dig. §§ 5, 4, 3; Caterlin v. Hardy, 10 Ala. 514; Adams v. Broughton, 13 Ala. 731; 2 Dwarris Stats. 712; Rex v. Cunningham, 5 East. 478; Broom's Max. 278; Co. Litt. 210.

L. P. WALKER for defendant.

1. It is contended for the plaintiff in error, that as to Watkins the mortgage is certainly valid, although not registered in time, he having actual notice of its existence. Actual notice of the existence of the mortgage is equivalent to the constructive notice afforded by registration. E contra-We contend that the absence of any certificate of probate or acknowledgment defeats the validity of the mortgage, even with actual notice. To authorize the registration of such a deed, it must be acknowledged by the maker thereof, or be probated by one of the subscribing witnesses thereto, before one of the officers named in the act. Clay's Dig. 153, §§ 7 & 8—p. 256, § 7; 8 Ala. 360. The statute requires the certified oath of the witness that he saw the maker of the deed execute it-a very different thing from the mere subscription of a name, which the clerk of a court certifies is a genuine signature. Although registration upon an acknowledgment or probate defective or irreggular in form, may be valid and operative as constructive notice, yet a registration without some acknowledgment or probate is a nullity, and therefore no notice. These conditions must be complied with, otherwise the party has no right to have his deed registered, and the clerk no authority to record it; and an act illegally done can possess no virtue and confers no rights. 8 Ala. 360; 4 Ala. 469; 5 Ala. 297; 2 Ala. 203; 5 Porter, 413; 3 Cranch, 140, 155; 4 Kent, 174. Therefore, the mortgage would be invalid, even if recorded in time-its registration being illegal and unauthorized. How can actual

Dearing v. Watkins.

notice put the plaintiff in a better condition than registration would have done? 8 Ala. 866 makes actual notice of the existence of the deed equivalent to the constructive notice afforded by registration—that is, that the former is a good substitute for the latter. But as the registration, even within the thirty days, is of no avail unless the mortgage has been previously probated or acknowledged, so neither is actual notice-because, being a mere substitute for the former, it cannot effect more than that could have done. Actual notice being merely equivalent (8 Ala. 866) to constructive notice, cannot, of course, dispense with any of the steps or formalities essential to the validity of constructive notice. The actual notice must be of a mortgage fit for registration, which is not the case until it is probated or acknowledged. Actual notice is equivalent to registration, but not to registration and probate. Until its execution is proved or acknowledged, it is not a mortgage. Up to this, there is a locus penitentiæ. It is an inchoate instrument, a knowledge of which operates as a mere declaration of an intention on the part of the grantor. The actual notice must be of a perfected lien.

2. The possession of the negroes by Jackson after default in the payment of the notes for the security of which he gave the mortgage, raises the presumption of fraud, and must be rebutted by the plaintiff. 5 Ala. 303, 336, 374; 6 Ala. 185; 4 Ala. 469; 7 Ala. 262; 7 Ala. 690; 4 Hill's (N. Y.) Rep. 272, 308-10-11.

The instrument offered in evidence to support Dearing's title is not an absolute bill of sale. It was liable to be made void upon payment of the money intended to be secured, and therefore does not come within the rule laid down in P. & M. Bk. of Mobile v. Borland (5 Ala. 531, 519); nor is it a conditional sale, because the debt intended to be secured was not discharged-this is necessary to a conditional sale, (4 Kent, 145, note a); but it is a mortgage, vesting the title and possession at once in the mortgagee, subject to defeasance upon payment of the notes to Dearing at the time appointed. Jackson's pos session, then, was inconsistent with the terms of the mortgage, and therefore a badge of fraud, which it was Dearing's duty to explain. 5 Ala. 303, 336, 371; 6 Ala. 185; 7 Ala. 262, 690 ; 4 Ala. 469; 1 Hill's (N. Y.) Rep. 272, 308-10-11.