concurred in a separate opinion as follows :
It seems to me that the ease of King v. Fraser (23 S. C., 543) is conclusive as to the main point raised by this appeal; for I do *439not think that the circumstances relied on by appellant, as distinguishing that case from this, are sufficient for that purpose. It is true that I did not then, and do not now, assent to the correctness of the construction placed upon the recording act of 1876 by the majority of the court in that case, but I do fully recognize it as a binding authority; for it is an authoritative construction of a statute by the tribunal invested with power for that purpose. It is the law of the land, and must and should be respected accordingly.
I have had very grave doubt as to whether the mortgage in favor of Mrs. Kinloch should not be declared void under the provisions of section 2015 of the General Statutes, inasmuch as it did not become a lien until it was recorded, two days before the execution of the assignment by the mortgagor. But as that section seems to prohibit only acts done by the insolvent debtor within ninety days before the execution of his assignment, and as the act which gave this mortgage a lien as against other creditors' — putting the mortgage on record — was not only not done, or even suggested or procured, and, in fact, could not have been prevented by the mortgagor, it cannot with propriety be said that the insolvent debtor has, within ninety days before the execution of his assignment, made a mortgage of his property for the purpose of giving a preference to one of his creditors, for the only act which he did — the execution of the mortgage — was done long before the ninety days commenced to run.
It is true that the insolvent debtor, by giving the mortgage, placed it in the power of the mortgagee to make such mortgage a lien as against other creditors at any time he might see fit to do so, and that this power was, in this case, exercised within the ninety days, from which it has been argued that this was a continuing power from the mortgagor to the mortgagee, and hence that the mortgagor must be regarded as intentionally participating in the act of recording the mortgage, which was done within the ninety days. But this involves the idea that the mortgagor could, at any time before its exercise, withdraw this power, which he certainly could not do, for one can scarcely be regarded as intentionally participating in an act which he could not prevent if he wished to do so, and to the efficacy of which his consent, at *440the time, would add nothing whatever. If McPherson had, at the date of the mortgage, given to Mrs Kinloch a note, he would thereby have placed it in her power to have more readily obtained a lien by reducing the note to judgment than if her claim had remained in an unliquidated form ; and if she had reduced such note to judgment within the ninety days, the lien thereby acquired would certainly not be void under section 2015, although the act of giving the note might be said to have facilitated the acquisition of the lien. So here, when the mortgage was given, McPherson thereby afforded Mrs. Kinloch the means of easily acquiring a lien whenever she might afterwards see fit to do so; but her act in doing so was entirely her own, over which McPherson neither did nor could have any control, just as if she had taken a note instead of a mortgage, which she afterwards, and within the ninety days, reduced to judgment, and thereby acquired a lien;
Under a provision in the bankrupt act, in all respects similar to section 2015 of our General Statutes, except as to the period— four months instead of ninety days — within which preferences are forbidden, the Supreme Court of the United States have held, in the case of Wilson v. City Bank (17 Wall., 473), that the lien of a judgment, even though recovered by default upon a valid debt to which the debtor has no defence within the four months, is not void under the provisions of the act, upon the ground that it cannot be regarded as an act to which the debtor has contributed, and something more than mere passive non-resistance on his part would be necessary to make it void under the provisions of the thirty-fifth section of the bankrupt act.. This case, as well as those cited by the Chief Justice,-more directly in point, it seems to me, furnish conclusive authority in favor of the conclusion reached, in which I concur.
Judgment affirmed.