delivered the opinion of this court.
The appellee in this court was the complainant in the court below. He insists that his mortgage dated the third day of September, eighteen hundred and forty-two, shall be preferred to the mortgage of the appellants, not only executed but recorded before the execution of the appellee’s mortgage. The act of Assembly of 1825, chap. 203, does not give any such preference. It provides, (sect. 1st,) that in case of several deeds for the same real or personal estate, the deed which shall be first recorded according to law, shall have the preference in all courts of law and equity in this State, if the same be for valuable consideration. The same act of Assembly, in its second section, provides, that no person shall derive any advantage from the recording of a deed intended only as a security in the nature of a mortgage, unless every instrument operating as a defeasance of such deed or mortgage, or explanatory of its being designed to have the effect of a mortgage, or conditional deed, be also therewith recorded.
Prima facie then, the prior deed in this case, the deed to the appellants, being the deed not only first executed, but also first recorded, is to be preferred; and it would seem that the appellee has no title to relief, unless there be proof that the mortgage executed to the appellants, is for some reason Or other, fraudulent and void as against the appellee. The record furnishes no proof of any such fraud, or which would warrant the court in giving relief upon such ground.
If this was a controversy between the mortgagor and the appellee, the latter might have reasons, which do not exist in this case, for complaint. But the suit is between mortgagees, all of them creditors, and to be considered as bona fide creditors of the mortgagor, and each of them having an unquestionable right to secure, if he can, the money due to him. All of them obtained a mortgage, and the mortgages convey the same property, to secure to each one the money due to him. The fund has proved to be insufficient to pay the several claims, and the question now is, which has, in equity, the preference ?
By the appellee it is insisted that he is to be preferred, because of an agreement which the mortgagor made with him'. *362before the date of the deed to the appellants, and upon the principle, that equity will consider that as done which ought to be done. No doubt, this, when correctly understood, Is an established maxim in equity. But there are many things which ' a man ought to feel himself bound to do, many promises, which the party promising ought to feel himself bound to fulfil, and yet which the chancery court cannot compel him to perform. The court then,, in order to be justified in regarding an act as done, must have jurisdiction of the case, and be able to insist that it shall be done. It is said that on the first September 1842, the mortgagor promised to give a mortgage,, and, simply for this reason, he is to be considered as having given one on that day. Now, if this was true, how could it benefit the appellees. They would then have a mortgage one day older than that of the appellants, but in order to be entitled to a preference, it must be first recorded.
But the alleged promise is contradicted by the mortgagor, and there is no written evidence of it. The agreement, then, is one of which a court of chancery can take no notice^ (see 3rd Powel, p. 150,) and of course cannot regard it as performed. We are told that the promise is to be found in the deed of mortgage executed on the third of September. The recitals, however, in that deed, cannot prejudice the rights of the appellant, acquired before its execution. But the question in this suit is, not whether the mortgagor ever made a promise to the appellee, which he is bound to perform, but was there on the 2nd September 1842, any promise binding- on- the mortgagor, and of which the appellants were bound,-or could be presumed to have notice? Of a promise made the day. after the execution of the deed to the appellants, they could have had no knowledge, at the time, of the execution of that deed. In this case, too, it appears, that a mortgage has been executed and accepted by the appellee, and it would be difficult for him, in this suit, and after accepting of that mortgage, to maintain that he is entitled to another mortgage, or to interpolate into- the one which he has received, other provisions.
Much has been said about the original claims against Hupe, the obligor. They were judgments, and some-of these judg*363merits were liens on the land, and the appellee, it is thought, ought to be regarded as the assignee of them. If such was the design, the appellee ought to have taken care not to pay them. His contract ought to have been made, not with the debtor, but with the creditors, who, alone, could make such contracts and assignments. If the judgments could be considered as unsatisfied, and the appellee the assignee of them, it is supposed that a court of law could give him ail the relief which he now seeks, and thus he would be without excuse for coming into equity.
It would seem, then, that both the act of 1825, before alluded to, and the law which previously existed, (see 2 John’s Ch. Rpts., 603,) would tell us that the mortgage of the appellees is not to be preferred to that of the appellants.
In the case of Binckerhoff vs. Lansing, 4 John’s Ch. Repts., 65, it is said, that “although if a prior mortgagee witnesses a subsequent mortgage, knowing its contents, without disclosing his own incumbrance, he will be postponed or barred; yet this rule does not apply, if the prior mortgage is registered.” It is added, “that to affect the right of such prior mortgagee, mere silence is not sufficient. There must be actual fraud charged and proved, such as false representations, or denial upon inquiry, or artful assurances of good title, or deceptive silence, when information is asked. The burthen of proving such fraud lies on the subsequent mortgagee.”
It is difficult to discover, upon what matter, to be found in this record, relief could be obtained by the appellee. According to the statement in his bill of complaint, the mortgage was to be given to secure the payment of the money due on a note dated 1st September 1842, and the mortgage which he says ought to be preferred to that of the appellants, states the consideration of that note. The sum actually due to the mortgagee at the time was about $110; tire rest of the consideration was, the “ said Byerly has agreed to advance to said Hupe more money, in such manner, as to render the same available to said Hupe, in paying off some judgments,” (which are mentioned) “it being understood that the said Byerly is to see the said judgments paid; that is, go and pay them himself. ’ ’
*364If there was an equity in the appellee’s case, he seems to have lost it, by delaying for such a length of time to make it known. The deed which he alleges to be fraudulent against him, was executed and recorded 2nd September 1842. The appellee does not pretend that he was ignorant of its existence, or of any of its provisions. Yet, with a knowledge of this deed, he pays the money, although it does not appear that he was under any legal obligation to pay it and never seems to have complained of the deed to the appellant, until he filed his bill of complaint on the 22nd February 1844.
It seems then, that the verbal promise to execute a mortgage was principally in consideration of a verbal promise, by the creditor, to pay debts, for which, although due by the mortgagor, the mortgagee was not legally responsible. The mortgagee is presumed to have, and no doubt had a knowledge of the mortgage of the 2nd September, when he was under no legal obligation to pay any portion of those claims. It was his o wn fault that he afterwards undertook to pay the debts, and he cannot blame the appellants for endeavoring to secure themselves; nor can he insist that they should have forborne to take a mortgage, because of an understanding, or promise between the appellee and mortgagor, which could be enforced by neither. If, in such a case, and for anything to be found in this record, equity could decree that the mortgage first recorded should have the preference, which the act of 1825, before mentioned, gives to it, that law would become a dead letter, and the manifold evils which the law was designed to prevent, would still exist.
decree reversed.