Opinion by
Mb. Justice Mitchell,Stripped of incidental complications which do not affect the substantial question that question is, When a grantor who has ■parted with his title by a deed which has not been recorded, dies and his heir enters and in good faith without notice mortgages the land, and subsequently the deed is recorded, is the mortgage good against the grantee, or his representative ?
That this question must be answered in the affirmative is too clear to admit of any doubt whatever. It is frankly admitted by the learned counsel for appellant that the case is within the mischief intended to be remedied by the act of 1775,1 Sm. Laws, 422, but it is contended that it is not within the words as construed by this court, and must therefore be regarded as casus omissus.
This contention is founded on the language of Henry’s Lessee v. Morgan, 2 Binn. 497, where Chief Justice TlLGHMAN, said: “ The general expression used therein must be construed so as to accomplish the intent of the act, which was to protect innocent purchasers from suffering by the fraud or negligence of those who had obtained prior conveyances from the same person and omitted to have them recorded,” and Bbackenridge, J., in the same case said, “for that (the act of 1775) I take it respects purchasers under the same bargainor or grantor and no other. I understand the words ‘ subsequent purchaser ’ to relate to purchasers from or under the grantor or bargainor before spoken of, and with regard to whose acknowledgment or proof of handwriting provision had been made.” Similar language may be found in subsequent cases which have followed this authority. But judicial expressions must always be read in view of the facts of the case in which they are used. The language of Chief Justice Tilgiiman was entirely adequate to cover the question on the facts then before him, but the principle on which he intended to rest the decision is not necessarily to be limited by his literal expression, when it is to be applied to a different state of facts. And the breadth of the principle is apparent from the whole of his language in this connection. The intent of the act, he says, “ was to protect innocent purchasers from suffering by the fraud or negligence of those who had obtained prior conveyances from the same person and omitted to have them recorded. If unrecorded deeds of this kind were *118to prevail against subsequent purchasers, no human prudence would be sufficient to guard against imposition, because the title submitted to the examination of the last purchaser, independent of the unrecorded deed, would be perfect. But that is not the case when a man purchases under a title totally unconnected with the first deed. He is entitled to no protection because he has placed no faith in the title to which the unrecorded deed relates.” If anything further were needed to show the scope of that language, it would be found in the construction given to it at the time by the eminent lawyer who reported it. Mr. Binney’s syllabus is, “ The recording act of 1775 does not make void an unrecorded deed as against a subsequent purchaser under a title totally unconnected with that deed, but only as against purchasers under the same grantor.”
When therefore the cases speak in this connection of deeds from the same grantor, they do not mean necessarily from the same person, but deeds purporting to convey the same title, whether by the grantor, his heir, his heir’s grantee or any other person in the devolution of the same line of title. The plaintiff’s mortgage having been made by the heir in possession under a title good against everybody but the ancestor’s grantee, and the deed to such grantee not having been put on record until after the making of the mortgage in good faith and without notice, the plaintiff is entitled to the protection of the statute. He is not outside the words and is clearly within the intent.
Some question is made upon the regularity of the judgment, but the paper-books differ as to the facts, and as the questions do not affect the ultimate result we do not think it necessary to go behind the statement of the judge in his opinion. Should it be shown to him that part of the land has been released from the lien of the mortgage he will no doubt correct the judgment accordingly, and its affirmance here will not prevent his doing so.
Judgment affirmed.