I concur in the decree rendered in this case on the ground that the mortgage securing the payment of the promissory note held by Louis Spiro was, by the very terms of the act of mortgage, subordinated to the mortgage securing the note held by the homestead association. The fact that the clause in the act of mortgage, subordinating the mortgage to that of the homestead association, was not *Page 445 recorded when Spiro acquired the mortgage note, did not give Spiro the right to claim the benefit of the mortgage and at the same time to disavow the clause subordinating the mortgage to that of the homestead association. The mortgage note which Spiro acquired was a negotiable instrument, but the act of mortgage securing the payment of the note was not a negotiable instrument. Hence Spiro, in buying the mortgage note, did not acquire any better security, or higher ranking mortgage, than Marks, the original mortgagee, had. I can understand how a third party, setting up a claim in opposition to this mortgage securing Spiro's note, might claim an advantage from the want of registry of a stipulation in the act of mortgage; but I do not see how the mortgagee himself can claim an advantage by reason of the failure to record a stipulation in the act of mortgage.
I have some doubt about the soundness of the reason given for the decree rendered in this case; but, for the reason which I have stated, I concur in the decree.