Opinion of the Court. acknowledged, but recorded with a misdescription of the premises, would protect the grantee against subsequent purchasers and encumbrancers. But how could this be, unless the party were at liberty to prove the mistake in the record, either by the production of the original, or, in case of its loss, by other competent secondary evidence? This is what happened in Nixon v. Cobleigh, 52 Ill. 387. There the plaintiff in ejectment, to prove his title, relied on a deed, signed, as he claimed, "Samuel H. Turrill." The original not being in his power to produce, he offered a certified copy from the record. It purported, however, to be signed by "James H. Turrill." Against the objection of the defendant, he was allowed to prove by parol evidence that the original was signed "by the name of Samuel H. Turrill." The court said: "This renders it morally certain that the recorder made a mistake in transcribing the original upon his records." The same construction was given to a statute of Alabama, the meaning of which cannot be distinguished from the statute of Illinois, by the Supreme Court of that State in Harvey v. Thorpe, 28 Ala. 250, where the very point was ruled, that parol evidence was admissible to show that a deed was not correctly recorded. And the same principle was adjudged in Wisconsin, in Sexsmith v. Jones, 13 Wis. 565, and in New Hampshire, in Wells v. Iron Co., 48 N. H. 491, 534. The next question relates to the competency of the evidence admitted by the court to prove the mistake in the record of the deed, and the correct description of the property as contained in the original. This was, in substance, as follows: First, the testimony of certain persons tending to prove that they had seen the original deed, and that it described the land conveyed as identical with that in controversy; second, a certified copy from an entry or file-book kept by the recorder of La Salle county, in which the land was situate at the time the conveyance was made by the attorney of Lacey to Newman, of a memorandum made by the recorder, showing the date of the receipt of the deed for record, the names of the grantor and grantee, the hour of its receipt, the nature of the conveyance, the date of its VOL. CIX-14 Opinion of the Court. execution, and the location of the land conveyed, under which head the premises are described as the "N. E. S. 29, T. 32 ́N., 1 R. 8 E. 3d P. M.;" third, a transcript from the land office at Springfield, Illinois, in which office was contained the records of the entry of the land in controversy, showing Jeddiah Wooley entered the N. E. 29, 32, 8, on August 8th, 1835, and that he did not enter the S. E. of said section; also a receipt from the land office at Chicago, Illinois, in which office the land in controversy was sold, dated August 8, 1835, for $200 from Jeddiah Wooley, jr., in full payment of the N. E. sec. 29, town. 32 N., R. 8 east of third principal meridian, being the land in controversy, upon which receipt was a memorandum indorsed in the handwriting of Joel Wicks, who was dead at the time of the trial, as follows: "Sold this to Alva Newman, May 6th, 1840." But it is recited in the bill of exceptions that the court did not decide that the last mentioned memorandum and a memorandum on the copy of the deed of May 6th, 1840, from Lacey to Newman, that "this land was entered by Jeddiah Wooley, August 8th, 1835," were either of them competent evidence. The evidence offered and objected to was, we think, competent. The testimony of witnesses who had read the original deed, as to their recollection of its contents, was direct evidence of the fact; and the copy of the registry of the deed, as entered in the file-book, was a copy of an official entry, made in a book of public records required to be kept by the recorder, and which constitutes the first step in the process of recording. The statute requires that every recorder shall keep "an entry book, in which he shall, immediately on the receipt of any instrument to be recorded, enter, in the order of its reception, the names of the parties thereto, its date, the day of the month, hour, and year of filing the same, and a brief description of the premises, indorsing upon such instrument a number corresponding with the number of such entry." Rev. Stat. Ill. 1845, p. 432, §7; L. 1847, p. 69, § 1; L. 1869, p. 2, § 7. All these items of evidence tended to prove the alleged mistake and what was the correct description of the premises conveyed in the lost original deed, and were entitled to be con Statement of Facts. sidered, in connection with the certified copy of the record of the deed itself, as secondary evidence of its contents. In admitting and considering them the circuit court committed no error; what effect should be given to them, singly or together, was for that court, to whom the cause had been submitted, alone to determine. We find no error in the record, and the judgment is Affirmed. NEW ORLEANS NATIONAL BANKING ASSOCIATION v. ADAMS. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR Argued October 31st, 1883.-Decided November 12th, 1883. A executed a promissory note to B, another to C, and two others to D, and secured all by a mortgage of real estate in Louisiana. The notes to D were paid at maturity. Default being made by the others, B obtained a decree for foreclosure of the mortgage, and the property was sold to E. E, being unable to pay the purchase money, agreed in writing with the holders for time, and that the parties might enforce their judgments in case of non-payment, and that the original mortgages should remain in full force and effect, and that they were recognized as operating on the property to secure the debts. This agreement was recorded in the record of mortgages. E then conveyed to F, who mortgaged to G. The debt to B not being paid on the expiration of the extension, B instituted proceedings to foreclose, treating the agreement as a mortgage, and made G a party defendant. Held, That the agreement was not a mortgage; that to constitute a mortgage there must be a present purpose to pledge the estate, and that there was no such purpose at the time of the agreement. In equity. A firm doing business in Louisiana under the name of Tucker Brothers, on February 24th, 1860, made and delivered their promissory note of that date, for $5,000, payable February 15th, 1861, to the Bank of New Orleans, which afterwards, by virtue of the provisions of the "act to provide a national currency," etc., passed June 3d, 1864, became a national bank under the name of the New Orleans National Statement of Facts. Banking Association. Tucker Brothers, on the same day, executed three other notes, for $5,000, one of them, payable to Godfrey Barnsley, falling due January 21st, 1861. To secure these four notes the makers executed a mortgage on a certain plantation in La Fourche Parish, Louisiana. Two of the notes were paid, but those given to the Bank of New Orleans and Barnsley were not paid at maturity. Thereupon the bank, having instituted a suit on the mortgage and the note held by it, on June 11th, 1867, obtained a decree of foreclosure against Tucker Brothers, by virtue of which, on September 7th, 1867, the mortgaged property was sold by the sheriff to one Albert N. Cummings for the price of $13,025 to satisfy said unpaid notes. Cummings being unable to pay the purchase moncy, it was agreed between him and the parties entitled to the proceeds of the sale that he should have time; whereupon Cummings, on September 7th, 1867, executed an agreement in writing, before J. K. Gourdain, a notary of the parish of La Fourche, in which he recited that he had not paid the purchase money of the plantation, and declared as follows: "That he corresponded and compromised with the mortgage creditors hereinafter named, who agreed to give him time, without, however, impairing or novating the original claims, the right to enforce which they expressly reserved." Cummings then by this same agreement stipulated that out of the price of the plantation he would pay to one Gaubert the sum of $1,851.10, on or before March 1st, 1861, he holding the first privilege on a part of the plantation for that amount; to Barnsley the sum of $4,904.40, on or before May 15th, 1870; and to the Bank of New Orleans $6,269.50, on or before May 1st, 1870; and that all these sums should bear interest at the rate of eight per cent. per annum after maturity till paid. The agreement then further declared as follows: "It is understood, as above stated, that the parties hereto do not by those presents impair, affect, or novate their existing. claims, and that in case of non-payment they will be entitled to enforce the judgments which may be held by them; and furthermore, that the original mortgages and privileges remain in full Statement of Facts. force and effect, and are not hereby novated, and if need be, for the purpose of avoiding all doubts, the said privileges and mortgages are hereby recognized as operating on the said property in the proportions aforesaid, and to secure the debts stated as aforesaid with the rank above stated." This agreement was duly recorded in the office of the recorder of mortgages for the parish of La Fourche on September 12th, 1867. After the making of this agreement, Cummings, without having paid the sums the payment of which was promised thereby, sold the property to a Mrs. Tucker, who conveyed an undivided half interest to one Thomas J. Daunis, and Mrs. Tucker and Daunis then executed a mortgage on the same to John I. Adams & Co., to secure certain notes made by Daunis to said firm, after which Mrs. Tucker conveyed her undivided half of the property to Daunis. Subsequently the Bank of New Orleans, now become the New Orleans National Banking Association, assuming that the agreement entered into by Cummings before Gourdain, the notary, on September 7th, 1867, constituted a mortgage by which the balance found thereby to be due it from Cummings was secured, filed the bill in this case to foreclose the same. The bill made the firm of John I. Adams & Co. parties defendant, charging that said firm claimed to have a mortgage on the property covered by the alleged mortgage of the complainant, and that if said firm had any lien upon or interest in said premises it was subsequent to September 12th, 1867, the date of the inscription of the complainant's alleged mortgage. To this bill John I. Adams & Co. filed a plea and answer, in which they set up that they, being holders of certain notes secured by a mortgage on the property described in the bill of complaint, instituted a certain suit upon the same against Thomas J. Daunis, in the district court sitting for the Parish of La Fourche, and obtained a writ of seizure and sale against said property, under and by virtue of which the same was seized by the sheriff, and in October, 1875, sold to John L Adams, who claimed title thereto. They further alleged that |