Page:Federal Reporter, 1st Series, Volume 10.djvu/497

THE DE SMBT. 486 �ranlcs unrecorded mortftages, which latter have no United States lien. An unrecorded mortgage ranks a recorded mortgage when the holder of the latter has actual notice of the unrecorded mortgage. �Now let us take a case where there is an unrecorded mortgage, a subsequent recorded mortgage, where the mortgagee and holder has actual notice of the first mortgage, and a lien, under the state law, for a material-man ; and this is the actual state of f acts in the case of The John T. Mowe, 3 Woods, 61. In that case, Judge Woods, who maintains that section 4192 gives a lien to a recorded mortgage, says: �" This fact of notice gives the mortgage to Swift's Iron & Steel Works and Long (unrecorded) precedence over the mortgage (recorded) of John T. Moore & Co., and entitles it to priority of payment over all the claims, even though, as between the mortgage to Swift's Iron & Steel Works and Long, and claims inferior to the mortgage of John T. Moore & Co., the latter would be entitled to priority if the mortgage of Johu T. Moore & Co. were out of the case." �It would seem to have been just as logical to have said : As the mortgage of John T. Moore & Co. was duly recorded, it has preced- ence over the lien given by the state law to W. G-. Coyle & Co. for supplies, and is entitled to priority of payment over all the claims, even though, as between the mortgage of John T. Moore & Co. and claims inferior to the state lien, the latter would be entitled to prior- ity were the state lien to Coyle & Co. out of the case. Or to have said : As the state lien given to Coyle & Co. has precedence over the unrecorded mortgage of the Swift Iron Works, it is entitled to prior- ity of payment over all the claims, even though, as between the state lien to Coyle & Co. and claims inferior to the Swift Iron Works mort- gage, the latter would be entitled to priority were the mortgage to the Swift Iron Works out of the case. �It is true that Judge Woods follows two Ohio cases, Brazee v. Lan- caster Bank, 14 Ohio, 318, and Holliday v. Franklin Bank of Colum- bus, 16 Ohio, 533, but there, where the controversy was between judg- ment liens and mortgages, the court arbitrarily eut the knot by de- ciding that each lien should prevail according to its age. That Ohio court says : �" The first-named proposition is known to the profession as the triangular question," and "if it be attempted to settle the question on the principle of superiority, it runs in a circle and produces no resuit." �And it is also true that if the dilemma exists as Judge Woods fonnd it in the John T. Moore Case, his method of extrication, fol- io wing the Ohio cases, may be right; but a construction of a statute ��� �