IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD …...Mar 15, 2013 · MERSCORP, Inc. and...

No. 14-4315

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________________________________________________________

MONTGOMERY COUNTY, PENNSYLVANIA, RECORDER OF DEEDS, by and through NANCY J. BECKER, in her official capacity as

the Recorder of Deeds of Montgomery County, Pennsylvania, Plaintiff-Appellee,

v.

MERSCORP, INC. and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,

Defendants-Appellants. _________________________________________________________________

Appeal Pursuant to 28 U.S.C. § 1292(b) of Questions Certified by District Court in

Civil Action No. 11-CV-6968 (E.D. Pa.), Honorable J. Curtis Joyner _________________________________________________________________

BRIEF OF AMICI CURIAE THOMAS J. JUDGE, SR., DELAWARE COUNTY, PENNSYLVANIA, RECORDER OF DEEDS; RICHARD T.

LOUGHERY, RECORDER OF DEEDS IN AND FOR THE COUNTY OF CHESTER, PENNSYLVANIA AND THE COUNTY OF CHESTER,

PENNSYLVANIA; JOSEPH J. SZAFRAN, RECORDER OF DEEDS IN AND FOR THE COUNTY OF BUCKS, PENNSYLVANIA AND THE COUNTY OF BUCKS, PENNSYLVANIA,

IN SUPPORT OF APPELLEE AND IN SUPPORT OF AFFIRMANCE _______________________________________________________________

MICHAEL J. BONI JOSHUA D. SNYDER JOHN E. SINDONI Boni & Zack LLC 15 Saint Asaphs Road Bala Cynwyd, PA 19004 (610)822-0200

CARMEN P. BELEFONTE SIMON B. PARIS CHARLES J. KOCHER Saltz, Mongeluzzi, Barrett & Bendesky, P.C. One Liberty Place, 52nd Floor 1650 Market Street Philadelphia, PA 19103 (215)496-8282

LOUIS B. KUPPERMAN WILLIAM J. LEONARD DANIEL P. FINEGAN ZACHARY S. DAVIS RIGEL C. FARR Obermayer Rebmann Maxwell & Hippel LLP One Penn Center, 19th Floor 1617 John F. Kennedy Boulevard Philadelphia, PA 19103 (215)665-3000

Counsel for Amici Curiae (Full Names of Amici Listed on Signature Page)

Case: 14-4315 Document: 003111911792 Page: 1 Date Filed: 03/23/2015

CORPORATE DISCLOSURE STATEMENT

Amici curiae are Thomas J. Judge, Sr., in his official capacity as the

Recorder of Deeds of Delaware County, Pennsylvania; Richard T. Loughery, in his

official capacity as the Recorder of Deeds in and for the County of Chester,

Pennsylvania, and the County of Chester, Pennsylvania; and Joseph J. Szafran, in

his official capacity as Recorder of Deeds in and for the County of Bucks,

Pennsylvania, and the County of Bucks, Pennsylvania.

As all of the Amici are governmental officers and entities, they have no

corporate affiliations to be disclosed under Federal Rule of Appellate Procedure

26.1(a).


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TABLE OF CONTENTS

IDENTITY AND INTEREST OF AMICI ................................................................. 1

SUMMARY OF THE ARGUMENT ........................................................................ 2

ARGUMENT ............................................................................................................. 5 I. BY MAINTAINING COMPREHENSIVE AND ACCURATE RECORDS,

PENNSYLVANIA RECORDERS OF DEEDS SERVE IMPORTANT PUBLIC INTERESTS ..................................................................................... 5

A. Recorders of Deeds Play a Vital and Statutorily Mandated Role in Maintaining Pennsylvania Land Records .............................................. 5

B. The Modern Public Recording System and its Safeguards ................... 8 C. The Complete Integrity of Public Land Records Can and Should Be

Restored by Recording All MERS-Related Mortgage Assignments .... 9 II. MERS SYSTEMATICALLY UNDERMINES PENNSYLVANIA’S

PUBLIC LAND RECORDS ......................................................................... 10

A. MERS Was Created to Evade Recording Mortgage Assignments ..... 10

B. Claims that MERS Has Brought About Positive Change Lack Support and Run Counter to Amici’s Experience ............................................. 12

III. PENNSYLVANIA LAW REQUIRES CONVEYANCES OF REAL PROPERTY TO BE RECORDED ................................................................ 15

A. MERS’ Arguments Are Contrary to Well-Settled Pennsylvania Law ................................................................................ 15

B. The District Court Correctly Held that Recording Mortgage Assignments is Mandatory Under Pennsylvania Law, and Cases Concerning Other States’ “Optional” Recording Statutes, Cited by MERS, are Inapposite. ........................................................................ 17

C. The History of Pennsylvania’s Recording Statutes Confirms that Mortgage Assignments, as Conveyances, Must be Recorded ............ 24

IV. THIS APPEAL PRESENTS QUESTIONS THAT ARE SUITABLE FOR CERTIFICATION TO THE SUPREME COURT OF PENNSYLVANIA . 30

CONCLUSION ........................................................................................................ 31


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TABLE OF AUTHORITIES CASES PAGE(S)

Bristol County v. MERSCORP, Inc., 2013 WL 6064026 (Super. Ct. Mass. Nov. 15, 2013) .......................................... 22

Brown v. MERS, Inc., 738 F.3d 926 (8th Cir. 2013) ................................................................................ 22

Bryan v. Easton Tire Co., 561 S.W.2d 79 (Ark. 1978) .................................................................................. 22

County of Ramsey v. MERSCORP Holdings, Inc., 776 F.3d 947 (8th Cir. 2014) ................................................................... 22, 23, 24

Craft v. Webster, 4 Rawle 242 (Pa. 1833) ........................................................................... 27, 28, 29

Delancey v. McKeen, 7 F. Cas. 374 (C.C.D. Pa. 1806) ........................................................................... 25

First Citizens Nat'l. Bank v. Sherwood, 879 A.2d 178 (2005) ...................................................................................... 18, 20

First Union Nat’l Bank v. Portside Refrigerated Servs., Inc., 827 A.2d 1224 (Pa. Super. 2003) ......................................................................... 18

In re Long’s Appeal, 77 Pa. 151 (1874) ........................................................................................... 16, 29

Jackson v. Mortg. Elec. Registration Sys., Inc., 770 N.W.2d 487 (Minn. 2009) ............................................................................ 23

Jackson County Mo. v. MERSCORP, Inc., 915 F. Supp. 2d 1064 (W.D. Mo. 2013) ............................................................... 22

M’Keen v. Delancy’s Lessee, 9 U.S. 22 (1809) ................................................................................................... 25


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Morganelli ex rel. Commonwealth v. Casey, 641 A.2d 674 (Pa. Commw. 1994) ....................................................................... 19

New York Life Ins. Co. v. Bremer Towers, 714 F. Supp. 414 (D. Minn. 1989) ....................................................................... 24

Pepper’s Appeal, 77 Pa. 373 (1875) ..................................................................................... 27, 29, 30

Philips v. Bank of Lewistown, 19 Pa. 394 (1852) .................................................................................................. 28

Pines v. Farrell, 848 A.2d 99 (Pa. 2004) ................................................................................. passim

Plymouth County, Iowa v. MERSCORP, Inc., 774 F.3d 1155 (8th Cir. 2014) .............................................................................. 22

Scott v. O’Grady, 760 F. Supp. 1288 (N.D. Ill. 1991) ....................................................................... 24

Souder v. Morrow, 33 Pa. 83 (1859) .................................................................................................... 29

Union Cnty., Ill. v. MERSCORP, Inc., 735 F.3d 730 (7th Cir. 2013) ............................................................ 21, 22, 23, 24

Zimmerman v. O’Bannon, 442 A.2d 674 (1982) ............................................................................................. 18

STATUTES

1 Pa. Cons. Stat. § 1932 ........................................................................................... 20

21 Pa. Stat. § 325.1 .................................................................................................... 7

21 Pa. Stat. § 351 ............................................................................................. passim

21 Pa. Stat. § 356 ..................................................................................................... 20


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21 Pa. Stat. § 357 ..................................................................................................... 18 21 Pa. Stat. § 385 ..................................................................................................... 21

21 Pa. Stat. § 441 ..................................................................................................... 27

21 Pa. Stat. § 444 ..................................................................................................... 20

21 Pa. Stat. § 621 .............................................................................................. 20, 25

21 Pa. Stat. § 623 .............................................................................................. 24, 30

21 Pa. Stat. § 623-3 .................................................................................................... 7

21 Pa. Stat. § 623-4 .................................................................................................... 7

Act of April 9, 1849, P.L. 354 ................................................................................. 29

Act of April 24, 1931, P.L. 48 ................................................................................. 19

Act of June 12, 1931, P.L. 558 ................................................................................ 19

Act of May 28, 1715, 1 Sm. L. 9 .................................................................. 6, 25, 26

Act of March 18, 1775, 1 Sm. L. 422 ............................................................... 26, 27

Great Law of Pennsylvania, December 7, 1682 ........................................................ 6

Laws Agreed Upon in England, 1682, in The Frame of Government of the Province of Pennsylvania ....................................................................................... 6

Pa. Const. art. IX, § 4 ................................................................................................. 5

Pa. Const. of 1776 § 34 .............................................................................................. 5

OTHER AUTHORITIES

Anna Gelpern & Adam J. Levitin, Rewriting Frankenstein Contracts: Workout Prohibitions in Residential Mortgage-Backed Securities,

82 S. CAL. L. REV. 1075 (2009) ............................................................................. 3


v

Christopher L. Peterson, Predatory Structured Finance, 28 CARDOZO L. REV. 2185 (2007) ......................................................................... 3

Christopher L. Peterson, Two Faces: Demystifying the Mortgage Electronic Registration System’s Land Title Theory,

53 WM. & MARY L. REV. 111 (2011) ................................................ 3, 4, 9, 13, 14

Christopher L. Peterson, Foreclosure, Subprime Mortgage Lending, and the Mortgage Electronic Registration System, 78 U. CIN. L. REV. 1359 (2010) ............................................................... 4, 14, 15

Michael Powell & Gretchen Morgenson, MERS? It May Have Swallowed Your Loan, N.Y. TIMES, March 5, 2011 (www.nytimes.com/2011/03/06 /business/06mers.html) ......................................................................................... 12

Phyllis K. Slesinger & Daniel McLaughlin, Mortgage Electronic Registration System, 31 IDAHO L. REV. 805 (1995) .................................................................. 10

RECORDER OF DEEDS HISTORICAL INFORMATION, http://www.chesco.org/index.aspx?NID=429 ........................................................ 6

Steven L. Schwartz, The Alchemy of Asset Securitization, 1 STAN. J.L. BUS. & FIN. 133 (1994) ..................................................................... 3


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IDENTITY AND INTEREST OF AMICI1

Amici curiae are the Pennsylvania Counties of Bucks and Chester, along

with their Recorders of Deeds, Joseph J. Szafran and Richard T. Loughery, and the

Recorder of Deeds of Delaware County, Pennsylvania, Thomas J. Judge, Jr.

Recorders of Deeds in each Pennsylvania County are obligated, under the

Recording Acts and in furtherance of duties owed to the public, to create, keep, and

maintain accurate and complete land records. Defendants-Appellants

MERSCORP, Inc. and Mortgage Electronic Registration Systems, Inc.

(collectively, “MERS”), together with their non-public, profit-driven members,

conceived and implemented a private mortgage assignment system designed to

evade and disregard Pennsylvania law requiring the public recording of all

mortgage assignments. By circumventing the law and payment of statutorily

mandated recording fees, MERS and its members have destabilized Pennsylvania’s

land title records and caused harm to the Counties, their citizens, and

Pennsylvania’s 300-year-old land recording system.

Amici would be members of the Class that Appellee represents but have

separately commenced three civil actions in the Courts of Common Pleas of Bucks,

1 Amici state, in accordance with Federal Rule of Appellate Procedure 29, that all parties have consented to the filing of this Brief, no party’s counsel authored this Brief in whole or in part, and no party or party’s counsel contributed money that was intended to fund preparing or submitting this Brief.


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Chester, and Delaware Counties against MERSCORP, Inc. and Mortgage

Electronic Registration Systems, Inc. as well as certain banks and other financial

institutions that use the MERS® System to evade their recording obligations.

The three lawsuits seek to redress and end the ongoing and widespread harm

caused by MERS’ scheme to evade Pennsylvania law requiring the recordation of

mortgage assignments in the Counties’ public land records.2

SUMMARY OF THE ARGUMENT

Bucks County, Chester County, and Delaware County are three of the seven

most populous counties in Pennsylvania. The respective Counties have been

maintaining real property records since 1684 (Bucks), 1688 (Chester), and 1789

(Delaware). As such, Amici have special experience with Pennsylvania’s

recording laws and practices, and knowledge of the harms that have been inflicted

by MERS and its members. The views of Amici are consistent with the arguments

raised by Appellee in her brief in all key respects. Amici focus the instant Brief on

certain historical and factual background, and the proper interpretation of 21 Pa.

Stat. § 351, as those matters are especially informed by Amici’s experience and

2 Amici’s state court complaints were respectively filed on October 11, 2013 (Delaware County, No. 2013-010139), October 14, 2014 (Chester County, No. 2014-10113), and October 24, 2014 (Bucks County, No. 2014-07247).


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knowledge of the interference to the performance of their elected duties that has

resulted from the utilization of the MERS® System.

MERS was created by the mortgage banking industry in the 1990s for the

purpose of evading mortgage assignment recording requirements and payment of

statutorily mandated recording fees in order to maximize profits from, and to

facilitate, residential mortgage securitization financings. Utilizing a MERS

corporate structure “so unorthodox as to be arguably fraudulent,”3 the mortgage

banking industry began to issue mortgages naming MERS as the fictional

“mortgagee of record” and/or “nominee for the lender,” in order to evade recording

multiple mortgage assignments required as part of the residential mortgage

securitization process.4 By 2011, nearly sixty percent (60%) of all residential

mortgages existing in the United States named MERS as “nominee” and/or

“mortgagee of record” even though MERS—an entity that has virtually no

3 Christopher L. Peterson, Two Faces: Demystifying the Mortgage Electronic Registration System’s Land Title Theory, 53 WM. & MARY L. REV. 111, 120 (2011). 4 Multiple assignments of securitized mortgages are necessary to the securitization process. See generally Christopher L. Peterson, Predatory Structured Finance, 28 CARDOZO L. REV. 2185, 2208-12 (2007); Steven L. Schwartz, The Alchemy of Asset Securitization, 1 STAN. J.L. BUS. & FIN. 133, 135 (1994); Anna Gelpern & Adam J. Levitin, Rewriting Frankenstein Contracts: Workout Prohibitions in Residential Mortgage-Backed Securities, 82 S. CAL. L. REV. 1075 (2009).


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employees—does not lend any money to homeowners and does not make,

originate, or service mortgage loans.5 Beginning with its creation in the 1990s,

MERS facilitated the expansion of subprime mortgage-backed securitizations—

market anomalies which fueled the housing bubble and contributed to the collapse

of the nation’s housing market in the fall of 2008.6

In the rush to set up MERS, the mortgage banking industry failed to consider

jurisdictional variations in real property law across the country. With respect to

Pennsylvania, a title theory jurisdiction, MERS’ scheme violates Pennsylvania’s

principal recording statute, 21 Pa. Stat. § 351, which requires each and every

conveyance of land—including mortgage assignments—to be recorded in the

Recorder of Deeds Office in the county where the property is located.7 This

language reflects the considered judgments of the Legislature that the public has a

legitimate interest in knowing who holds interests in real estate in Pennsylvania,

and should have access to that information without jumping through or going

around mortgage-industry-created hurdles. Mandating public recording of

5 Peterson, supra note 3, at 117, 120-21. 6 Id. at 116. See also Christopher L. Peterson, Foreclosure, Subprime Mortgage Lending, and the Mortgage Electronic Registration System, 78 U. CIN. L. REV. 1359, 1360-61, 1397-98, 1407 (2010) [hereinafter Peterson, Foreclosure]. 7 See generally Pines v. Farrell, 848 A.2d 94 (Pa. 2004).


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conveyances, including mortgage assignments, is supported by the long history of

recording acts in Pennsylvania.

Against this backdrop, Amici respectfully submit that the decision of the

District Court should be affirmed, and join Appellee in requesting that the Court

petition the Supreme Court of Pennsylvania to certify and resolve the questions of

Pennsylvania law presented in this appeal, which are of great public importance.

ARGUMENT

I. BY MAINTAINING COMPREHENSIVE AND ACCURATE RECORDS, PENNSYLVANIA RECORDERS OF DEEDS SERVE IMPORTANT PUBLIC INTERESTS

A. Recorders of Deeds Play a Vital and Statutorily Mandated Role in

Maintaining Pennsylvania Land Records

Counties accepted title documents for recordation even before the enactment

of Pennsylvania’s first recording statute and before Pennsylvania was granted

statehood or ratified a state constitution. The 1776 Pennsylvania Constitution

provided for the Office of the Recorder of Deeds as a means to guarantee accurate

and public ownership records for all real property in the Commonwealth.8 The

Pennsylvania Constitution continues to mandate that each county has its own

Recorder of Deeds.9

8 Pa. Const. of 1776 § 34. 9 Pa. Const. art. IX, § 4.


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Chester and Bucks Counties were, together with Philadelphia County,

Pennsylvania’s first founded counties—each founded in 1682. Delaware County

was founded in 1789. As original counties, Chester and Bucks were influential in

the creation and implementation of the Commonwealth’s recording laws.10

The Master of the Rolls, as the position was once called, was responsible for

maintaining and preserving public land records. All conveyances of land made

within the Commonwealth were required to be publicly recorded with the Master

of the Rolls within two months of being made.11 In 1715, the position of Recorder

of Deeds was added to every then-existing Pennsylvania county.12 Section seven

of the 1715 Act expressly mandates recording mortgages.

Pennsylvania Recorders of Deeds are statutorily required “to receive all

deeds presented for record, when the same are duly acknowledged as required by

10 See generally RECORDER OF DEEDS HISTORICAL INFORMATION, http://www.chesco.org/index.aspx?NID=429 (last visited Mar. 4, 2015). 11 Laws Agreed Upon in England, 1682, in The Frame of Government of the Province of Pennsylvania. The Laws Agreed Upon in England were adopted by Pennsylvania’s first legislature in the “Great Law,” a compilation of the first statutes enacted in Pennsylvania. A copy of the Laws Agreed Upon in England, is attached as Addendum “A.” A copy of the Great Law of Pennsylvania, December 7, 1682 is attached as Addendum “B.” 12 Act of May 28, 1715, § I, 1 Sm. L. 9, § I. MERS Opening Brief (“MERS Br.”), Ex. A.


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law, and record the same.”13 Further, it is “the duty of the recorder of deeds, when

such instrument is filed for recording, to index and transcribe the same, and note

the recording of such assignment on the margin of the record of the original

mortgage.”14 The Recording Acts permit each county to set the fee for recording a

mortgage assignment.15

Pennsylvania Recorders’ offices, including those in Bucks, Chester, and

Delaware Counties, house many thousands of deeds, mortgages, mortgage

assignments, and other documents evidencing ownership and interest transfers.

The Recorders’ offices provide a unique source of publicly available information

concerning property that is, in many instances, an individual’s or family’s single

most significant asset. In addition to preserving records and property interests, the

Recorders’ offices also allow the public to review the records and learn the identity

of all stakeholders in the lands of Pennsylvania. The MERS® System has

undermined both of these benefits. Families can no longer tell who owns their

mortgage and property investors, among others, can no longer receive a full picture

of a property’s ownership without relying on the mortgage banking industry.

13 21 Pa. Stat. § 325.1. 14 21 Pa. Stat. § 623-3. 15 21 Pa. Stat. § 623-4.


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Pennsylvania’s public recording system remains rooted in the system created

as part of the formation of the Commonwealth itself, albeit with significant

technological upgrades. Its history and operation are integral to the integrity of the

records of real property ownership. With the exception of mortgages recorded and

assigned with MERS listed as “nominee,” the records are comprehensive and

accurate, tracking interests in land from as early as the 1600s to the present.

MERS’ evasion and abuse of the public recording system, in contrast, has created

systemic breaks in the chains of title for Pennsylvania properties.

B. The Modern Public Recording System and its Safeguards

Notwithstanding the unfounded suggestions to the contrary,16 Amici

recognized the need to adopt public recording processes and tools to take

advantage of technological innovations many years ago. Since the early to mid-

2000s, Amici and Recorders across the Commonwealth have adopted technological

advances—such as LANDEX Land Record Software, INFOCON County Access

System, and public search engines displayed on individual county websites—to

effortlessly speed instrument recording such that mortgage assignments can be

16 See Brief of amicus curiae Pennsylvania Land Title Association (“PLTA Br.”), 4-6, 23-25; Brief of amicus curiae Pennsylvania Bankers Association (“PBA Br.”), 7-11, 14.


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quickly and easily processed, indexed, and searched. Paper records and ledger

postings are things of the past.

Importantly, and in stark contrast to the MERS® System, Recorders check

each recording for accuracy and completeness, and trace all links in the chains of

title. In contrast, MERS does not enter or check any of the information on its

system, and expressly disclaims any responsibility or liability for the accuracy and

completeness of the information placed on its system by its members.17 As a

consequence, the MERS® System has been deprived the public of age-old

safeguards that have protected lenders, borrowers, and property owners for

centuries.

C. The Complete Integrity of Public Land Records Can and Should Be Restored by Recording All MERS-Related Mortgage Assignments

Fixing the public records is feasible, uncomplicated, and necessary.

Affirming the District Court and requiring MERS to record all mortgage transfers

would not pose any of the challenges MERS and its amici suggest.18 To the

contrary, Amici and other Pennsylvania Recorders are well-equipped to readily and

speedily handle the recordings that will follow should the District Court be

17 Peterson, supra note 3, at 127-28. 18 See PLTA Br. 23-26; PBA Br. 11-14.


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affirmed. With the technological systems in place, there would not be any

impediments to enforcing the District Court’s Order or achieving the goal of

mending local land records.

Further, Amici are not seeking to invalidate mortgage assignments or notes

in Pennsylvania; instead they are seeking to correct broken chains of title. Though

MERS and its amici object on the grounds that recording all assignments would be

overly-burdensome, such objections are unfounded, and the potential effort and

expense on MERS in complying with the District Court’s Order—and

Pennsylvania law—would not be excessive, especially since any fees or costs to be

incurred by MERS or its members are the same fees and costs that would have

been incurred sooner had they followed the law in the first place.

II. MERS SYSTEMATICALLY UNDERMINES PENNSYLVANIA’S PUBLIC LAND RECORDS

A. MERS Was Created to Evade Recording Mortgage Assignments

MERS’ central goal was to “virtually eliminate the need for paper mortgage

assignments.”19 This goal was recognized by MERS’ founders to be in tension

with state recording laws. The very first paragraph of the MERS White Paper

acknowledged that recording mortgage assignments was required:

19 Phyllis K. Slesinger & Daniel McLaughlin, Mortgage Electronic Registration System, 31 IDAHO L. REV. 805, 806 (1995).


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Today, mortgage investors transfer mortgage ownership and servicing rights using the same process as required by seventeenth century real property law. Note endorsements, mortgage assignments, and satisfaction documents must be prepared, verified, and delivered, and mortgage assignments and releases must be recorded. This process is cumbersome and paper intensive, costing the mortgage industry hundreds of millions of dollars each year.20

The White Paper later indicates that “over its life, an average loan requires

approximately four unrecorded and two recorded assignment documents.”21 The

cost-saving estimates of hundreds of millions of dollars included in the White

Paper assume that, on average, mortgage rights are transferred five times during

the life of the loan, including transfers of servicing and ownership rights.22

As a consequence of its very purpose and design, the MERS® System

became irresistibly attractive to the mortgage banking industry because of its

promise of increased profitability. Exalting profits over the requirements of law, at

the time MERS was formed and commenced operation, it did so without full

consideration and analysis of individual states’ recording laws or the purposes and

20 JA 316 (emphasis added). 21 JA 317. 22 JA 322.


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goals of those laws.23 Instead of taking the time to study state laws and establish a

system compliant with the diverse property laws of the fifty states—or simply

recording assignments to ensure compliance with state recording laws—MERS

hastily launched a “one-size-fits-all” system that violates Pennsylvania law.

B. Claims that MERS Has Brought About Positive Change Lack Support and Run Counter to Amici’s Experience

MERS’ amici go to great lengths to suggest that Amici and other Recorders

are unable to maintain functional records and that MERS was, in fact, the by-

product of an error-ridden system,24 with MERS effectively relieving the

residential mortgage industry from the cumbersome and inefficient public

recording system.25 The pronouncements that MERS has transformed the world of

mortgage lending for the better are, in Amici’s experience, unwarranted.26 First,

23 See Michael Powell & Gretchen Morgenson, MERS? It May Have Swallowed Your Loan, N.Y. TIMES, March 5, 2011(www.nytimes.com/2011/03/06 /business/06mers.html) (“MERS was flawed at conception…. [MERS’ outside counsel] produced a memo that offered assurances that MERS could operate legally nationwide. No one, however, conducted a state-by-state study of real estate laws.”) 24 See Brief of amicus curiae Federal Home Loan Mortgage Corporation (“Freddie Mac Br.”), 8; PLTA Br., 4, 24; PBA Br., 7-8, 14-15. 25 See JA 296-97, 314, 316, 319, 321; Freddie Mac Br., 7-9; PLTA Br., 24-25; PBA Br., 9-11. 26 For example, PLTA references, without citation, a mandamus action brought by PLTA against local Recorders of Deeds. PLTA Br., 5-6. Pennsylvania Land Title Ass’n v. City of Philadelphia and Comm’r of the Dep’t of Records, April Term,


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they disregard the benefits of maintaining complete, accurate and robust public

records. Second, they ignore the efficiency of the modernized Recorders’ offices

across the Commonwealth. Third, such claims disregard the significant dangers

arising from the MERS® System because of the lack of accuracy and reliability

inherent in the system.27 Fourth, because of MERS, homeowners and other

interested persons can no longer determine by examining the public land records

who holds mortgages, notes, and encumbrances on real property. And, even if

landowners are able to determine who owns their debt, in many instances

No. 003127 (Phila. Ct. Com. Pl. 1997). The lawsuit, filed in the Philadelphia Court of Common Pleas against the City of Philadelphia and the Commissioner of the Department of Records, required the City of Philadelphia to eliminate the indexing backlog that existed at the time and to index documents in the order they were presented. This alleged backlog did not exist in Bucks, Chester, or Delaware Counties, and, as explained above, this lawsuit predated numerous technological upgrades implemented in Pennsylvania.

PLTA’s complaint in that case reveals that PLTA actually advocated for complete and accessible public records. PLTA claimed that “the Pennsylvania legislature enacted various statutes since 1775 which compel the recording and indexing of documents affecting interest in real estate. . .” and the “Pennsylvania legislature recognized that it is also critical for accurate land records to be available to the general public so that interested persons could readily determine the ownership of, and encumbrances on, real estate at any particular time.” Complaint at 4-5 (emphasis added). 27 Peterson, supra note 3, at 127-28.


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confusion remains about why the entity that receives their monthly mortgage

payment is not the entity that owns the mortgage according to the public record.28

MERS’ records are unreliable, and, in the vast majority of instances,

inaccessible to the public. As a consequence of MERS, the public records now

contain gaps in ownership. Some assignments appear of public record, while

others are absent and unavailable except to MERS and its members. Chains of

title are systemically broken and the integrity of the public land records

undermined by the MERS® System. The result is unprecedented and potentially

devastating: “For the first time in the nation’s history, there is no longer an

authoritative public record of who owns land in each county.”29

Beyond the harm caused to the public land recording system in

Pennsylvania, the use of the MERS® System by the mortgage banking industry

facilitated subprime mortgage lending which contributed to the 2008 collapse of

the housing market and the nation’s mortgage foreclosure crisis.30 “[B]y serving

as the . . . proxy in recording and foreclosure, MERS abetted a fly-by-night,

28 JA 447-50. 29 Peterson, supra note 3, at 117. 30 Peterson, Foreclosure, supra note 6, at 1398.


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pump-and-dump, no-accountability model of structured mortgage finance.”31

“[S]ubprime mortgage lending . . . forced the American economy to the brink of a

depression and fundamentally undermined world faith in American consumer

financial markets.”32 And, MERS “has been a party in more subprime mortgage

loans than any other” participant in the residential mortgage market.33

III. PENNSYLVANIA LAW REQUIRES CONVEYANCES OF REAL PROPERTY TO BE RECORDED

A. MERS’ Arguments Are Contrary to Well-Settled Pennsylvania Law

For purposes of its recording acts, Pennsylvania follows the “title theory of

mortgages,” meaning that a mortgage represents a property transfer, such that

transactions involving mortgages are also property transfers.34 In this regard,

Pennsylvania differs from many other states, which follow the competing “lien

theory,” under which a mortgage merely represents a security interest.35 Under

31 Id. 32 Id. at 1359 33 Id. at 1361. 34 Pines, 848 A.2d at 99. See also JA 487 n.9 (“Pennsylvania is a ‘title theory’ state”). 35 See id.


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Pennsylvania law, as the Pennsylvania Supreme Court has explained, “[t]he ‘title

theory’ of mortgages deems a mortgage to be a conveyance.”36

This principle of Pennsylvania law extends back over the centuries: “In all

questions upon the recording acts, the mortgage is spoken of as a conveyance of

land.”37 Thus, mortgages are conveyances of land, and there is no dispute that

“conveyance[s]” are within the statutory text of 21 Pa. Stat. § 351.

With respect to mortgage assignments in particular, MERS has conceded

that such instruments are conveyances of land within the meaning of

Pennsylvania’s recording statute. As the District Court held: “None of the parties

challenge the settled rule in Pennsylvania, a title theory state, that assignments of

mortgages are conveyances of interests in land within the meaning of the recording

statute.”38 And, any present contention to the contrary is foreclosed by Pines:

“Given our conclusion that a mortgage conditionally conveys the subject property,

it logically follows that an assignment of the mortgagee’s rights likewise effects a

36 Id. MERS fails to cite Pines in its opening brief, notwithstanding the fact that it was relied upon by Judge Joyner in denying MERS’ motion to dismiss (JA 85 n.6), and cited by Judge Joyner four times in his summary judgment opinion. JA 20-22. 37 Id. (quoting In re Long’s Appeal, 77 Pa. 151 (1874)). 38 JA 85 n.6.


17

conditional transfer of the subject property,” and is a conveyance for purposes of

Pennsylvania’s recording acts.39

In this context, where it is bedrock law that (1) Pennsylvania is a title theory

jurisdiction for purposes of its recording statutes; (2) 21 Pa. Stat. § 351, the

primary Pennsylvania recording statute, expressly refers to recording

“conveyances”; and (3) mortgage assignments are “conveyances of land,” there is

little that can fairly be subject to disagreement among the parties. The central

question becomes, therefore, whether § 351 mandates recording mortgage

assignments. If it does, as the discussion below makes clear, then the MERS®

System violates Pennsylvania law.

B. The District Court Correctly Held that Recording Mortgage Assignments is Mandatory Under Pennsylvania Law, and Cases Concerning Other States’ “Optional” Recording Statutes, Cited by MERS, are Inapposite

A sound interpretation of § 351 must rest on the statutory language itself,

and the District Court’s interpretation is apt and well-reasoned: “The statutory

command is therefore quite clear: ‘all . . . conveyances . . . shall be recorded in the

[relevant] office for the recording of deeds.’”40

39 Pines, 848 A.2d at 100. See also JA 23 (“find[ing] that a mortgage assignment is a ‘conveyance’ subject to the recording mandate of §351.”). 40 JA 86 (quoting 21 Pa. Stat. § 351) (emphasis added).


18

In a case construing 21 Pa. Stat. § 357, concerning the constructive notice of

a properly recorded mortgage, the Pennsylvania Supreme Court explained:

[W]e are guided by the principles of our Statutory Construction Act. See 1 Pa.C.S. § 1501 et seq. The polestar in construing statutes is that where the words of a statute are clear and unambiguous, we must apply them as written. See 1 Pa.C.S. § 1921(b).41

The use of the word “shall” is essential to § 351, and, as shown by the

District Court’s analysis, consistent with carefully drafted and well-considered

language of various recording provisions under Pennsylvania law. Indeed,

numerous other provisions are on their face permissive, providing that instruments

“may be recorded,” as the District Court emphasized.42 Had the Pennsylvania

General Assembly intended § 351 to be optional as MERS contends, it would have

simply written the statute that way, as it did with respect to other types of

instruments and transactions subject to the recording statutes.43

41 First Citizens Nat’l Bank v. Sherwood, 879 A.2d 178, 181 (Pa. 2005); see also id. at 182 (“Nor may we decline to follow an unambiguous statute on the basis that other jurisdictions have charted a different course with regard to the same issue.”). 42 JA 87. 43 See Zimmerman v. O’Bannon, 442 A.2d 674, 677 (Pa. 1982) (“[I]t is clear from the other instances where the word [‘shall’] was used in this subsection that the General Assembly intended a mandatory connotation. This fact is further emphasized by the consistent use of the word ‘may’ where the action was intended to be permissive.”); see also First Union Nat’l Bank v. Portside Refrigerated Servs., 827 A.2d 1224, 1230 (Pa. Super. 2003) (“We are mindful of the mandatory


19

In addition, MERS’ proposed statutory interpretation ignores closely related

provisions that make clear that in § 351 shall means “shall,” not “may.” Six years

after enacting § 351 the General Assembly enacted the Act of April 24, 1931, P.L.

48, No. 40, which appears at 21 Pa. Stat. § 356. Section 356 provides that

agreements in which the parties “do grant, bargain, sell, or convey any rights or

privileges of a permanent nature” in real property “shall be recorded in the office

for the recording of deeds in the county or counties wherein such real property is

situate” (emphasis added). Moreover, the preamble to this act (“Requiring the

recording of certain written agreements…”) makes clear that recording is

mandatory.44 Shortly thereafter, on June 12, 1931, the Legislature also amended

21 Pa. Stat. § 351, to insert language adding judgment creditors as a group

expressly protected by that statute, P.L. 558, No. 191, §1, again confirming the

deliberateness of the use “shall” in §§ 351 and 356. Obviously, the Legislature

connotation which is usually attributed to the word ‘shall.’”); Morganelli ex rel. Commonwealth v. Casey, 641 A.2d 674, 678 (Pa. Commw. 1994) (“When the legislature employs the word ‘shall’ in a scrupulous manner, none of the branches of state government may ignore the mandate.”). 44 Preamble, Act of April 24, 1931, P.L. 48, No. 40 (emphasis added).


20

regarded §§ 351 and 356 as inter-related, and, under well-settled principles of

statutory interpretation, they must be read in pari materia.45

Along with being unmoored from the statutory text, MERS’ arguments

disregard other recording statutes that need be construed to properly understand the

Legislature’s use of “shall” be recorded language in §§ 351 and 356 and, as Judge

Joyner pointed out, in 21 Pa. Stat. §§ 444 and 621.46 In stark contrast, a number of

other recording statutes use the “may be recorded” language. See Appellee’s Br. at

33-34 (chart with statutory language). Especially in this context, MERS’ implicit

suggestion that the General Assembly carelessly and haphazardly interchanged

“shall” and “may” is unsupported and untenable.47

In the District Court, and again on appeal, MERS has advanced a strained

reading of 21 Pa. Stat. § 351 that attempts to deflect the force and purposefulness

45 See generally 1 Pa. Cons. Stat. § 1932 (a) and (b) (statutes should be considered in pari materia “when they relate to the same persons or things or to the same class of persons or things” and “shall be construed together, if possible, as one statute”). 46 JA 66-67. 47 MERS criticizes the District Court for relying on the heading “NECESSITY OF RECORDING AND COMPULSORY RECORDING” in Purdon’s unofficial statutory compilation. MERS Br. 20, 26. However, Justices of the Pennsylvania Supreme Court have also found that specific heading instructive. See Sherwood, 879 A.2d at 183 (Eakin, J., dissenting, joined by Saylor, J.). In any case, Judge Joyner’s conclusion is sound, as the statutory provisions clearly can be divided into compulsory sections, on the one hand, and optional on the other.


21

of the term “shall” by contending that the command merely refers to the place of

recording.48 With respect to Pennsylvania law, this argument is especially invalid

considering that the Pennsylvania General Assembly has repeatedly specified the

place of recording in conjunction with both permissive (“may”) and mandatory

(“shall”) phrasing.

To illustrate, on the one hand, § 351 uses the language “shall be recorded

in the office for the recording of deeds in the county where such lands,

tenements, and hereditaments are situate” (emphasis added). On the other hand,

§ 385, for example, states that certain releases and other instruments “may be

recorded in the office for recording deeds in the county where the lands lie.”

When viewed alongside § 385 and the other “may be recorded” sections, § 351

must direct more than simply the place of recording if one chooses to record, as

MERS has argued.49 If the General Assembly had so intended, it would have used

language in § 351 that parallels any of a number of other sections that say that very

thing: that instruments “may be recorded in the office for recording deeds in the

county where the lands lie.” MERS’ illegitimate reading also disregards the

48 See, e.g., MERS Br., 24-25 (discussing Seventh Circuit’s interpretation of the “shall be recorded” phrase in the Illinois Recording Statute “as referring to where the instrument must be recorded, if someone chooses to do so.”) (citing Union Cnty. v. MERSCORP, Inc., 735 F.3d 730, 733 (7th Cir. 2013)). 49 MERS Br., 16, 26, 29.


22

Legislature’s intent to protect the public by creating and maintaining a

comprehensive public record of land ownership.

While these unique aspects of Pennsylvania’s statutory recording scheme

alone render the Seventh Circuit’s Union County opinion and the Eighth Circuit’s

County of Ramsey opinion50 inapposite, those decisions are not on point for

additional reasons.51

With respect to Union County, the Seventh Circuit considered the language

of Illinois’ statutory recording provision, which refers to “all deeds, mortgages and

other instruments of writing which are authorized to be recorded,” reasoning that

“the phrase ‘authorized to be recorded’ implies that some land instruments can be

recorded but don’t have to be.”52 Critically, there is no corresponding provision

50 County of Ramsey v. MERSCORP Holdings, Inc., 776 F.3d 947 (8th Cir. 2014). 51 The other non-Pennsylvania cases MERS cites in footnote 2 of its brief lend no support to MERS’ arguments here. Plymouth County v. MERSCORP, Inc., 774 F.3d 1155, 1159 (8th Cir. 2014), arose under Iowa law, and the plaintiff conceded that Iowa law does not require recording mortgage assignments. Id. at 1159; see also Bristol County v. MERSCORP, Inc., No. 12-1246-BLS 2, 2013 WL 6064026, at *2 (Super. Ct. Mass. Nov. 15, 2013) (similar concession by plaintiff under Massachusetts law); Jackson County v. MERSCORP, Inc., 915 F. Supp. 2d 1064, 1071 (W.D. Mo. 2013) (similar concession under Missouri law). With respect to Brown v. MERS, Inc., 738 F.3d 926, 935 (8th Cir. 2013), which applied Arkansas law, the mandatory versus optional question had previously been squarely decided by the Arkansas Supreme Court. See Bryan v. Easton Tire Co., 561 S.W.2d 79, 80 (Ark. 1978) (“Our statutes do not require assignments to be recorded.”). 52 Union Cnty., 735 F.3d at 733 (citing 765 ILCS 5/30).


23

under Pennsylvania law, and, in fact, related statutory provisions in Pennsylvania

confirm that § 351 does indeed mandate recording.

The Eighth Circuit’s Ramsey opinion also involves a statutory framework

(Minnesota’s) that is fundamentally different from Pennsylvania’s. In 2004, the

Minnesota legislature enacted Minn. Stat. § 507.413, the so-called “MERS

statute,” which provides MERS with authority to record assignments on behalf of

its members.53 As the Minnesota Supreme Court explained, “[b]y passing the

MERS statute, the legislature appears to have given approval to MERS’ operating

system for purposes of recording.”54 There is no “MERS statute” in Pennsylvania.

With respect to both the Union County and Ramsey decisions, the Seventh

and Eighth Circuit opinions cite a significant body of state court authorities in

support of their holdings that recording is optional.55 By contrast, MERS is unable

to muster to any persuasive Pennsylvania precedent, and relies on other than

53 See Jackson v. Mortg. Elec. Registration Sys., Inc., 770 N.W.2d 487, 494-95 (Minn. 2009) (cited in Ramsey). 54 Id. at 494. 55 See Union Cnty., 735 F.3d at 734 (collecting cases); Cnty. of Ramsey, 776 F.3d at 95 (same).


24

decisions handed down prior to the enactment of § 351 and/or arising under a

repealed statute, 21 Pa. Stat. § 623, as discussed below.56

C. The History of Pennsylvania’s Recording Statutes Confirms that Mortgage Assignments, as Conveyances, Must be Recorded

MERS and its amici make various arguments concerning the history of

Pennsylvania’s recording acts.57 These arguments present a one-sided account, and

when viewed in a fuller (and accurate) context, the development of Pennsylvania’s

recording laws supports the Appellee’s position.

As early as 1682, enrollment of deeds and conveyances—the predecessor to

recording in county offices—was established in mandatory terms in Pennsylvania:

XX. And to prevent Frauds and vexatious Suits within the said Province, that all charters, Gifts, Grants and Conveyance of Land …made in the said Province, shall be Enrolled or Registered in the publick Enrollment-Office of the said Province, within the space of two

56 MERS Br., 20-22; Freddie Mac Br., 12-18. In citing Union County and County of Ramsey, MERS also fails to recognize the Pennsylvania Supreme Court’s holding in Pines that, for purposes of the recording act, Pennsylvania is a “title theory” jurisdiction. Illinois and Minnesota both adhere to the lien theory. See, e.g., Scott v. O’Grady, 760 F. Supp. 1288, 1297 (N.D. Ill. 1991) (explaining that Illinois has adopted the “lien theory of mortgages”); New York Life Ins. Co. v. Bremer Towers, 714 F. Supp. 414, 417 (D. Minn. 1989) (“Minnesota is a lien theory state.”). 57 Significantly, these arguments do not appear to have been raised by MERS in the District Court, as the crux of MERS’ argument in moving to dismiss was that § 351 mandated “where” to record.


25

Moneths next after the making thereof, else to be void in Law.58

MERS and its amici correctly observe that the Pennsylvania Land Recording

Act, which was passed on May 28, 1715, created an office for recording deeds,

mortgages, and other written conveyances and encumbrances in each county and

provided that “all bargains and sales, deeds and conveyances of lands, tenements,

and hereditaments, may be recorded in the said office.”59 They overlook, however,

the significance of § 7 of the 1715 act, 21 Pa. Stat. § 621, which concerns

mortgages and provides that “[n]o deed or mortgage, or defeasible deed, in the

nature of mortgages, hereafter to be made, shall be good or sufficient to convey or

pass any freehold or inheritance, or to grant any estate therein for life or years,

unless such deed be acknowledged or proved and recorded within six months

after the date thereof, where such lands lie, as hereinbefore directed for other

deeds.” See also Delancey v. McKeen, 7 F. Cas. 374, 375 (C.C.D. Pa. 1806)

(“Until the act of 1715, there was no absolute necessity to record any deeds,

mortgages excepted.”) (emphasis added), aff’d sub nom., M’Keen v. Delancy’s

Lessee, 9 U.S. 22 (1809) (Marshall, C.J.).

58 Addendum A3-4 (emphasis added). 59 See Freddie Mac Br., 12 (citing Act of May 2, 1715, § 2 (emphasis added)), MERS Br., Ex. A; accord MERS Br., 7-8.


26

In 1775, the General Assembly supplemented the 1715 Act, to provide that

deeds and conveyances “shall be” “acknowledged” or “proved” and “recorded” in

the county recorder’s office in which the real property is located within six months

after the execution of the instrument.60

Freddie Mac nevertheless boldly asserts that the 1715 and 1775 acts were

“understood at the time and by later generations as establishing a voluntary

recording system whereby a person who had been granted a deed, mortgage, or

other interest in real property could elect to have the written grant recorded.”61 As

an initial matter, this argument fails directly to address the clear language of the

1775 act, which reflected a decision to mandate recording, given the General

Assembly’s interest in preventing injuries in “purchases and mortgages” caused

“by prior and secret conveyances.”62

Additionally, under an 1841 enactment, the recording requirement plainly

set forth in the 1775 act affected not only conveyances prepared after the date of

the 1775 act, but also to conveyances prior to enactment as well: “It shall be the

duty of all persons who claim any lands or tenements in this commonwealth, under

60 Act of March 18, 1775, 1 Sm. L. 422. See MERS Br., Ex. B; see also MERS Br., 8; Freddie Mac Br., 12. 61 Freddie Mac Br., 12. 62 MERS Br., Ex. B-2.


27

or by virtue of any deeds or conveyances bearing date previously to the Act of 18th

March, 1775, to which this is a supplement, to have the same recorded, in the

proper county, in the manner now provided by law, within two years from the date

hereof.”63 This enactment also belies the notion that recording was merely

voluntary—just the opposite, it confirms it was a “duty.”

Further, the lynchpin case cited in support of the sweeping proposition

that the recording statutes collectively were understood during the 1800s to

be voluntary, Pepper’s Appeal, has been read much too broadly by MERS

and Freddie Mac.64

Specifically, the dispute in Pepper’s Appeal arose in the wake of the

Pennsylvania Supreme Court’s decision in Craft v. Webster.65 In Craft, Justice

Kennedy acknowledged that “the assignments of mortgages upon lands lying

within this state, have ever been thought to fall within the provisions of the

63 21 Pa. Stat. § 441 (emphasis added). 64 Pepper’s Appeal, 77 Pa. 373, 375-76 (1875). See MERS Br., 18-19; Freddie Mac Br., 13-15. The briefs of MERS and its amici are also internally inconsistent on the notion that recording has long been voluntary under Pennsylvania law. For example, the PLTA brief states that the District Court’s order, “if affirmed, will return the real estate industry in Pennsylvania back to the earlier time when multiple mortgage assignments were required. . .” (PLTA Br., 7 (emphasis added); see also PBA Br., 7, 10-11 (indicating that the recording of mortgage assignments in Pennsylvania prior to MERS was widespread and commonplace)). 65 Craft v. Webster, 4 Rawle 242 (Pa. 1833).


28

recording act, and have been in the city and county of Philadelphia almost

universally recorded under it.”66 Justice Kennedy then concluded, in high dicta,

that while the practice to date may have been to universally record mortgage

assignments, “I do not feel inclined to condemn it, but still I cannot give my assent

to the proposition that the assignment of a mortgage is embraced within the terms

of the recording act….”67 Thus, Craft rendered uncertain whether mortgage

assignments were within the ambit of the recording acts.

As the Pennsylvania Supreme Court explained nearly two decades later in

Philips v. Bank of Lewistown: “[T]he instrument before [Justice Kennedy in Craft]

was not a mortgage, and the learned judge admitted that the question which he

discussed did not arise in the cause. It is to be regretted, that under such

circumstances, he permitted his mind to be committed on a question so

important.”68 The Bank of Lewistown Court further explained that it disagreed

with Justice Kennedy’s conclusions, as “[i]t has been the usage to record such

instruments, because they affect the land, and are links in the chain of title.”69 In

1849, evidently to address the uncertainty caused by Craft, the Legislature passed 66 Id. at 249. 67 Id. at 250. 68 Philips v. Bank of Lewistown, 19 Pa. 394, 402 (1852). 69 Id.


29

the Act of 9th April, 1849, P.L. No. 354 § 14, which expressly declares that “all

assignments of mortgages” “may be recorded.”70 It was this statute, since

repealed, see infra, which was handed down in response to the controversial

reasoning in Craft relating to assignments and employing the word “may,” that was

at issue in Pepper’s Appeal.

MERS’ and Freddie Mac’s reading of Pepper’s Appeal as holding, with

respect to all types of conveyances of land, that recording was understood to be

optional at the time, is also misplaced in light of In re Long’s Appeal, a

Pennsylvania Supreme Court decision cited by Judge Joyner, but not addressed by

MERS or its amici.71 In Long’s Appeal, the Supreme Court explained, directly

contradicting Freddie Mac’s post hoc portrayal of the 19th-century

“understanding” of an elective recording system, that:

A mortgage in form is a deed or conveyance of real estate, and is required to be recorded as other deeds are. Hence in all questions upon the recording acts, the mortgage is spoken of as a conveyance of land….72

70 MERS’ Br., Ex. F-5. 71 In re Long’s Appeal, 77 Pa. 151 (1874); JA 21. 72 Id. at 153 (emphasis added); see also Souder v. Morrow, 33 Pa. 83, 84 (1859) (“Act of 1775 requires the recording of both deeds and mortgages”).


30

In any event, the statute in question for purposes of Pepper’s Appeal—the

Act of 9th April, 1849, codified at 21 Pa. Stat. § 623—has been repealed, such that

there is no longer any provision under Pennsylvania law providing that mortgage

assignments “may be” recorded. As such, far from being the discretionary or

optional system described by MERS and its amici, in Pennsylvania, mandatory

recording has its origins in the 17th century, with mortgages, in particular, having

been the subject of mandatory recording for three hundred years. And, to the

extent there is any doubt whether recording mortgage assignments is mandatory

today, such doubt is eliminated by Pines, supra, and MERS’ concession in the

District Court that mortgage assignments are conveyances.73

IV. THIS APPEAL PRESENTS QUESTIONS THAT ARE SUITABLE FOR CERTIFICATION TO THE SUPREME COURT OF PENNSYLVANIA

Amici join with Appellee in requesting that this Court certify to the Supreme

Court of Pennsylvania the controlling state law questions involved in this appeal.

The question whether MERS’ scheme for privately registering mortgage

assignments violates Pennsylvania statutory law by failing to record those

assignments in the public records is an issue of substantial public importance

concerning the construction and application of Pennsylvania’s recording statutes.

73 JA 85 n.6.


31

This question is appropriate for certification to, and definitive resolution by,

the Supreme Court of Pennsylvania, especially here where multiple, independent

state court cases are pending involving the same legal issue. Regardless of how

this Court resolves this legal question, the same question would still need to be

resolved by the Supreme Court of Pennsylvania in the pending state court actions.

By certifying the question now, this Court would be conserving valuable judicial

resources of both the federal and state judiciaries, serving the interests of the

parties, including putative class members who would not be bound by a ruling of

this Court, and, avoiding the possibility of inconsistent results.

CONCLUSION

For the above reasons, the Order on appeal should be affirmed.

Respectfully submitted,

/s/ Louis B. Kupperman Louis B. Kupperman William J. Leonard Daniel P. Finegan Zachary S. Davis Rigel C. Farr Obermayer Rebmann Maxwell & Hippel LLP One Penn Center, 19th Floor 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1895 215-665-3000 /s/ Joshua D. Snyder Michael J. Boni Joshua D. Snyder John E. Sindoni


32

Boni & Zack LLC 15 St. Asaphs Road Bala Cynwyd, PA 19004 610-822-0200 Counsel for Amici Curiae Richard T. Loughery, in his Official Capacity as the Recorder of Deeds in and for the County of Chester, Pennsylvania, and for the County of Chester, Pennsylvania; Joseph J. Szafran, in his Official Capacity as Recorder of Deeds in and for the County of Bucks, Pennsylvania, and the County of Bucks, Pennsylvania /s/ Simon B. Paris Carmen P. Belefonte Simon B. Paris Charles J. Kocher Saltz, Mongeluzzi, Barrett & Bendesky, P.C. One Liberty Place, 52nd Floor 1650 Market Street Philadelphia, PA 19103 215-575-3986 Counsel for Amicus Curiae Delaware County, Pennsylvania, Recorder of Deeds, by and through Thomas J. Judge, Sr., in his official capacity as the Recorder of Deeds of Delaware County, Pennsylvania


COMBINED CERTIFICATES

Louis B. Kupperman, attorney for Amici Curiae, hereby certifies that:

1. I caused a true and correct copy of the Brief of Amici Curiae to be

served upon all counsel of record via the Court’s ECF system, in accordance with

L.A.R. Misc. 113.4, on this 23rd day of March, 2015;

2. The Brief of Amici Curiae was filed with the Court via the Court’s

ECF system and via hand delivery, in accordance with Rule 25 of the Federal

Rules of Appellate Procedure;

3. I and numerous other counsel who appear on this Brief of Amici

Curiae are admitted to the bar of the Third Circuit;

4. This Brief complies with the type/volume limitation contained Fed. R.

App. P. 32(a)(7)(B). The brief contains 6,847 words, excluding the Cover Page,

Corporate Disclosure Statement, Table of Contents, Table of Authorities, and

Combined Certifications;

5. This Brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has

been prepared in a proportionately spaces typeface using Microsoft Word 2010

with 14-point Times New Roman;

6. The text of the electronic version of this Brief is identical to the text in

the hard copy;


7. A virus detection program has been run on the electronic file and no

virus was detected. The virus detection program used was Trend Micro Deep

Security (Version 9.0.6019).

/s/ Louis B. Kupperman Louis B. Kupperman


No. 14-4315

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________________________________________________________

MONTGOMERY COUNTY, PENNSYLVANIA, RECORDER OF DEEDS, by and through NANCY J. BECKER, in her official capacity as

the Recorder of Deeds of Montgomery County, Pennsylvania, Plaintiff-Appellee,

v.

MERSCORP, INC. and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,

Defendants-Appellants. _________________________________________________________________

Appeal Pursuant to 28 U.S.C. § 1292(b) of Questions Certified by District Court in

Civil Action No. 11-CV-6968 (E.D. Pa.), Honorable J. Curtis Joyner _________________________________________________________________

ADDENDUM OF STATUTES TO BRIEF OF AMICI CURIAE THOMAS J. JUDGE, SR., DELAWARE COUNTY, PENNSYLVANIA,

RECORDER OF DEEDS; RICHARD T. LOUGHERY, RECORDER OF DEEDS IN AND FOR THE COUNTY OF CHESTER, PENNSYLVANIA AND THE COUNTY

OF CHESTER, PENNSYLVANIA; JOSEPH J. SZAFRAN, RECORDER OF DEEDS IN AND FOR THE COUNTY OF BUCKS, PENNSYLVANIA AND THE

COUNTY OF BUCKS, PENNSYLVANIA _______________________________________________________________

MICHAEL J. BONI JOSHUA D. SNYDER JOHN E. SINDONI Boni & Zack LLC 15 Saint Asaphs Road Bala Cynwyd, PA 19004 (610)822-0200

CARMEN P. BELEFONTE SIMON B. PARIS CHARLES J. KOCHER Saltz, Mongeluzzi, Barrett & Bendesky, P.C. One Liberty Place, 52nd Floor 1650 Market Street Philadelphia, PA 19103 (215)496-8282

LOUIS B. KUPPERMAN WILLIAM J. LEONARD DANIEL P. FINEGAN ZACHARY S. DAVIS RIGEL C. FARR Obermayer Rebmann Maxwell & Hippel LLP One Penn Center, 19th Floor 1617 John F. Kennedy Boulevard Philadelphia, PA 19103 (215)665-3000

Counsel for Amici Curiae (Full Names of Amici Listed on Signature Page)


TABLE OF CONTENTS

Addendum A – Laws Agreed Upon in England, 1682, in The Frame of Government of the Province of Pennsylvania………………A1-A8

Addendum B – The Great Law of Pennsylvania, December 7, 1682………….B1-B22


Addendum A


App. 1111 The Statutesat LargeofPennsylvania. 319

APPEND]XIII

LAWS AGREED UPON IN ENGLAND

I. That the Charter of Liberties, Declared, Granted and Confirmedthe Five and Twentieth day of the Second Moneth called April, 1682,before divers Witnesses by William Penn, Governour and ChiefProprietor ofPennsilvania, to all the Free-men andPlanters ofthe saidProvince, is hereby declared and approved, and shall be forever heldforaFundamental in the Governmentthereof, according tothe Limita-tions mentioned in the said Charter.

II. That every Inhabitant in the said Province that is or shall be aPurchaser of One Hundred Acres of Land or upwards, his Heirs andAssigns; and every Personwho shallhave paid his Passage, and takenup One Hundred Acres of Land at One Penny an Acre, and havecultivated Ten Acres thereof; and every Person that hath been aServant or Bonds-man, and is Free by his Service, that shall havetaken up his Fifty Acres of Land, and cultivated Twenty thereof; andevery Inhabitant, Artificer or other resident in the said Province, thatpayes ScotandLot to the Government, shallbe deemed and accounteda Free-man ofthe saidProvince; and every such Person shallandmaybe capableof Electingor being elected Representatives ofthe People inProvincial Council or GeneralAssembly in the said Province.

III. That all Elections of Members or Representatives ofthe Peopleand Free-men of the Province of Pennsilvania, to serve in ProvincialCouncil or GeneralAssembly, to be held with the said Province, shallbe Free and Voluntary: And that the Elector, that shall receive anyReward or Gift in Meat, Drink, Moneys, or otherwise, shall forfeit hisRight to Elect: And such Person as shall directly or indirectly give,promise or bestow any such Reward as aforesaid, to be Elected, shallforfeit his Election, and be thereby incapable to serve, as aforesaid.And the Provincial Council and General Assembly shall be the sole

A1


320 The StatutesatLarge ofPennsylvania. [App. Ill

Judges of the Regularity or Irregularity of the Elections of their ownrespective Members.

W. That no Money or Goods shallbe raised upon, or paid by any ofthe People of this Province, by way of a Publick Tax, Custom, orContribution, but by a Law for that purpose made: And whosoevershall Leavy, Collect or Pay any Money or Goods contrary thereunto,shall be held a publick Enemy to the Province, and a Betrayer of theLiberty of the People thereof.

V. That all Courts shall be open, and Justice shall neither be sold,denyed or delayed.

VI. That in Courts all Persons of all Perswasions may freely appealin their own Way, and according to their own Manner, and therePersonally Plead their own Cause themselves, or if unable, by theirFriends: And the firstProcess shallbe the Exhibition ofthe Complaintin Court, Fourteen Dayes before the Tryal. And that the Party com-plainedagainst maybe fitted forthe same, he or she shallbe summon’dno less thanTen Dayes before, and a Copyof the Complaint deliveredhim or her, at his or her Dwelling-house. But before the Complaint ofany Person be received, he shall solemnly declare in Court, That hebelieves in his Conscience, his Cause is Just.

VU. That all Pleadings, Processes and Records in Courts shall beshort, and in English, and in an ordinary and plain Character, thatthey may be understood, andJustice speedily administered.

VIII. That all Tryals shall be by Twelve Men, and as near as maybe, Peers or Equals, and of the Neighbourhood, and men without justException. In cases of Life there shall be first Twenty-Four returnedby the Sheriff for a Grant Inquest, of whom Twelve at least shall findthe Complaint to be true, and then the Twelve Men, or Peers, to belikewise returned by the Sheriff, shall have the final Judgment: Butreasonable Challenges shall be always admitted against the saidTwelve Men, or any of them.

IX. That all Fees in all Cases shallbe Moderate, and settled by theProvincial Council and GeneralAssembly, and be hung up in a Tablein every respective Court: And whosoever shall be convicted of takingmore, shall pay Twofold, and be dismissed his Employment, oneMoyety of which shall go to the party wronged.

A2


App. UI] The Statutes atLarge ofPennsylvania. 321

X. That all Prisons shall be Work-houses for Felons, Vagrants andLoose and Idle Persons,whereof one shall be in every County.

XI. That all Prisoners shall be baylable by sufficient Sureties,unless for Capital Offences, where the Proof is evident, or thePresumption great.

XII. That all Persons Wrongfully Imprisoned, or prosecuted at Law,shall have Double Damages against the Informer or Prosecutor.

XIII. That all Prisons shall be Free, as to Fees, Food and Lodging.XIV. That all Lands and Goods shall be liable to pay Debts, except

where there be Legal Issue, and then all the Goods, and One Third ofthe Land only.

XV. That all wills in Writing attested by two Witnesses, shall be ofthe same Force, as to Lands, as other Conveyances, being legallyprovedwithin Forty Dayes, either within or without the said Province.

XVI. That Seven Years quiet Possession shall give an Unques-tionable Right, except inCases of Infants, Lunaticks, Married Women,or Persons beyond the Seas.

XVII. That all Briberies and Extortions whatsoever shall be severe-ly punished.

XVIII. That all Fines shallbe moderate, and savingmens Contene-ments, Merchandize or Wainage.

XIX. That all Marriages (not forbideen by the Law of God, as tonearness of Blood and Affinity by Marriage) shall be encouraged; butthe Parents or Guardians shall be first consulted, and the Marriageshall be published before it be solemnized, & it shall be solemnized bytaking one another as Husband and Wife before Credible Witnesses:And a Certificate of the whole, under the hands of Parties and Wit-nesses shall be brought to theproper Registerofthat County, andshallbe registred in his Office.

XX. And to prevent Frauds and vexatious Suits within the saidProvince, that all Charters, Gifts, Grants and Conveyances of Land(except LeasesforaYear, or under) andall Bills, Bonds andSpecialtiesabove Five Pounds, and not under three Moneths, made in the saidProvince, shallbe Enrolledor Registred in the publick Enrollment-Of-fice of the said Province, within the space of two Moneths next afterthe making thereof, else to be void in Law. And all Deeds, Grants and

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322 The StatutesatLarge ofPennsylvania. [App. ifi

Conveyances of Land (except as aforesaid) within the said Province,and made out of the saidProvince, shall be Enrolled or Registered, asaforesaid, within six Moneths next after the making thereof, andsettling and constituting an Enrollment-Office or Registry within thesaid Province, else to be void in Law against all Persons whatsoever.

XXI. That all Defacers or Corruptors of Charters, Gifts, Grants,Bonds, Bills,Wills, Contracts and Conveyances, or that shall deface orfalsifie anyEnrollment, Registry or Recordwithin this Province, shallmake Double Satisfaction for the same; half whereof shall go to theParty wronged, and they shall be dismised of all Places of Trust, andbe publickly disgraced, as False Men.

XXII. That there shall be a Register for Births, Marriages, Burials,Wills and Letters of Administration, distinct from the other Registry.

XXIII. That there shall be a Register for all Servants, where theirNames, Time, Wages, and Dayes of Payment shall be Registred.

XXIV. That all Lands and Goods of Fellons shall be liable to makesatisfaction to the Party wronged Twice the Value; and for want ofLands or Goods, the Fellon shall be Bonds-man, to work in the Com-mon-Prison or Work-house, or otherwise, till the Party injured besatisfied.

XXV. That the Estates of Capital Offenders, as Traitors and Mur-derers, shall go one-third to the next of Kin to the Sufferer, and theremainder to the next of Kin to the Criminal.

XXVI. That all Witnesses coming or called to testifie theirKnowledge in or to any Matter or Thing in any Court, or before anylawful Authority within the said Province, shall there give or deliverin their Evidence or Testimony by solemnly Promising To Speak theTruth, the Whole Truth, and nothing but the Truth to the Matter orThing in question. And in case anyPerson so called to Evidence, shallafterwards be convicted of Wilfull Falsehood, such Person shall sufferand undergo such Damageor Penalty as the Personor Persons,againstwhom he or she bore false Witness, did or should undergo, and alsomake Satisfaction to the Party wronged, andbe publickly exposed as aFalse Witness, never to be credited to any Court or before anyMagistrate in the said Province.

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App. III] The StatutesatLarge ofPennsylvania. 323

XXVII. And to the end that all Officers chosen to serve within thisProvince, may with more care and diligence answer the Trust reposedin them, It is agreed, that no such Person shall enjoy more than onepublick Office at onetime nor shall he be capable of any publick officeof Trust in the province that hath an Office or part in any othergovernment. A. . . accepting any such Foreign Office or (and?) part ofgovernment he shall immediately ceasetobe an officer in thisprovince.

XXVIII. That all Children within this Province of the Age ofTwelveYears shallbe taught some useful Trade or Skill, to the end none maybe Idle, but the Poor may Work to live, and the Rich, if they becomePoor, may not want.

XXIX. That servants be not kept longer than their time, and suchas are Carefulbe both justly andkindly used in their Service, andputin fitting Equipage at the expiration thereof, according to Custom.

XXX. That all Scandalous and Malicious Reporters, Backbiters,defamers, and Spreaders of false News, whether against Magistratesor private Persons, shall be accordinglyseverelypunished, as Enemiesto the Peace and Concordof this Province.

XXXI. That for the Encouragement of the Planters and Traders inthis Province, who are incorporated into a Society, thePatentgraatedto them by William Penn, Governour of the said Province, is herebyratified and confirmed.

XXXII. That all persons who are Chosen and appoinated to serve inany Office in this Province shall be such as are only of this Provinceand that Residepersonally therein.

XXXIII. That all Factors or Correspondents in the said Provincewronging their Employers, shall make Satisfaction, and onethird overto their saidEmployers; andin case ofthe Death ofany such Factor orCorrespondent, the Committee of Trade shall take care to secure somuch of the deceased Party’s Estate as belongs to his said respectiveEmployers.

XXXIV. That all Treasurers, Judges, Masters ofthe Rolls, Sheriffs,Justices of the Peace, and other Officers or Persons whatsoever, relat-ing to Courts or Tryals of Cause, or any other Service in the Govern-ment, and all Members elected to serve in Provincial Council andGeneral Assembly, and all that have Right to elect such Members,

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324 The StatutesatLarge ofPennsylvania. [App. ifi

shall be such as profess Faith in Jesus Christ, and that are notconvictedofIll Fame, or unsoberanddishonest Conversation, and thatare on One and Twenty Years of Age at least; and that all such soqualified shall be capable of the said several Employments andPriviledges as aforesaid.

XXXV. That all Persons living in this Province, who confess andacknowledge the One Almighty and Eternal God, to be the Creator,Upholder and Ruler of the World, and that hold themselves obliged inConscience to live peaceably and justly in Civil Society, shall in nowayes be molested or prejudiced for their Religious Perswasion orPractice in matters of Faith and Worship, nor shall theybe compelledat any time to frequent or maintain any Religious Worship, Place orMinistry, whatever.

XXXVI. That according to the good Example of the PrimitiveChris-tians, and for the ease of the Creation, every First Day of the Week,called the Lords Day, People shall abstain from their common dailyLabour, that they may the better dispose themselves to Worship Godaccording to their Understandings.

XXXVII. That as a Careless and Corrupt Administration of Justicedraws the Wrath of Godupon Magistrates, so the Wildness andLoose-ness of the People provoke the Indignation of God against a Country;Therefore, that all such Offences against God, as Swearing, Cursing,Lying, ProphaneTalking, Drunkenness, Drinkingof Healths, Obscenewords, Incest, Sodomy, Rapes, Whoredom, Fornication and other un-cleanness (not to be repeated:) All Treasons, Misprisons, Murders,Duels, Fellonies, Sedition, Mayhems, Forcible Entries and otherViolencies to the Persons and Estates of the Inhabitants within thisProvince: All Prizes, Stage-Plays, Cards, Dice, May-games,Gamesters, Masques, Revels, Bull-baiting, Cock-fightings, Bear-bait-ings and the like, which excite the People to Rudeness, Cruelty,Looseness, and Irreligion, shall be respectively discouraged andseverely punished, according to the appointment of the GovernourandFree-men in Provincial Council and General Assembly, as also allProceedings contrary to these Laws, that are not here made expresslypenal.

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App. III] The Statutes atLarge ofPennsylvania. 325

XXXVIII. That a Copy of these Laws shall be hung up in theProvincial Council andin publick Courts of Justice, andthat they shallbe readYearly at the opening of every Provincial Council and GeneralAssembly and Court of Justice, and their Assent shall be testified bytheir standing up after the reading thereof.

XXXIX. That there shallbe atno time anyAlteration of anyof theseLaws without the Consent of the Governour, his Heirs or Assigns, andSix parts of Seven of the Free-men met in Provincial Council andGeneral Assembly.

XL. That All other Matters and Things not herein provided for,which shallandmayconcernthe publick Justice, Peaceor Safety ofthesaid Province, and the raising and imposing Taxes, Customs, Duties,or other Charges whatsoever, shall be and are hereby referred to theOrder, Prudence and Determination of the Governour and Free-menin Provincial Council and General Assembly, to be held from time totime in the said Province.

Signed and Sealed by the Governour and Free-men aforesaid, thisFifth Day of the Third Moneth, called May, One Thousand SixHundred Eighty and Two.

Wm PennPhilip Ford

N. MoreCharles Lloyd

RichardDaviesJohnLonghurst

Daniel QuareJohn Gray (Grey?)

John WilsonRichard Thatcher

John StevensJames ClaypoolWilliam Howell

Since the original manuscript is lacking, the text follows theoriginal printed version in The Frame of Governmentof the Provinceof Pennsilvania . . . Printed in the Year MDCLXXXII. P.H.M.C.,ArchivesDocumentNo.2. Other printed versions include A CollectionofCharters. . . Relating to the Province ofPennsylvania. .. Printed

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326 TheStatutes atLarge ofPennsylvania. [App. III

and Sold by B. Franklin, in Market-Street, M,DCC,XL, 17-22;Colonial Records. I, xxix-xxxiv; Pa.Arch., Fourth Series, I, 37-44.

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Addendum B


1682] The StatutesatLarge ofPennsylvania. 5

THE GREAT LAW (LONGVERSION)

Or the Body of Laws of the Province ofPennsilvania and territorysthereunto Belonging past at an Assembly at Chester alias Upland the7th dayof the 10th Month December 1682

This copy of the Great Law is the longer version from the so-called“fair copy” from P.H.M.C. Archives, RG-21. Filed withthis copy is theversion engrossedon parchment sheets, substantially the same as towording, but with errors in the numberingof chapterswhichgive theimpression that there are only69 chapters.

Whereas the Glory ofAhnighty God andthe Good of Mankind is theReason and End of Government and therefore Government in it selfeis a Venerable ordinance of God and for as much as it is principallydesired and intended by the Proprietary and Governor and theFreemen of the Province of Pennsilvania and Territorys thereuntoBelonging to Make and Establish Such Laws as shall best preservetrue Christian and Civill Liberty in Opposition to all UnChristianLicentious and Unjust Practices whereby God may have his DueCaesar his Due and the People their Due from Tyranny and Oppres-sion on the One Side and Insolency & Licentiousness on the Other Sothat the best and firmist Foundation may be Laid for the Present andfuture happiness forboth the Governor and PeopleofthisProvince andTerritory aforesaid and their Posterity Be it therefore Enacted byWilliam Penn Proprietary and Governor with the advice and Consentofthe Deputies of the Freemen of this Province and Countys aforesaidin Assembly mett andby theAuthorityofthe same that thesef~iowingChapters and Paragraphs shall be the Laws of Pennsilvania and theTerritorys thereof.

Chapter 1 Almighty God being only Lord of Conscience Father ofLights & Spirits and the Author as well as Object of all divineKnowledge Faith and Worship who only can Enlighten the Mind andperswadeandConvince the UnderstandingofPeopleinDue Reveranceto his Soveraingty over the Souls of Mankind it is Enacted by the

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6 The Statutes atLarge ofPennsylvania. [1682

Authority Aforesaid that no Person now or at Any time hereafterLiveing in this Province who Shall Confess and acknowledge oneAlmighty God to be the Creatour Upholder andRuler ofthe World andthat professeth him or herselfe Obliged inConscience to Live Peaceab-ly and Justly under the Civill Government shall in any case beMolested or Prejudiced for his or her Conscientious Perswasion orPractice nor shall he or she at any time be Compelled to frequent orMaintaine any Religious Worshipp place or Ministry whatever Con-trary to his or her mind but shall freely and fully Enjoy his or herChristian Liberty without any Interuption or reflection and if anyPerson shall abuse or deride any Other for his or her DiferantPerswasion and Practice in Matters of Religion Such shall be Looktupon as a disturber of the Peace and be punished accordingly But tothe End that Looseness Irreligion & Athism may not creep in underpretence of Conscience in this Province Be it further Enacted by theAuthority aforesaid that according to the Example of the PrimitiveChristians andfor the Ease ofthe Creation Every firstday ofthe Weekcalled the Lords day People Shall Abstaine from their Usuall andCommon Toyle & Labour that Wheather Masters Parents Children orSerants theymaythe Better dispose themselvesto read-the -Scripturesof truth at home or frequent such Meetings of Religious Worshipabroad as may best Sute their Respective Perswasions.

Confirmed by chapter 63, 1683 anddeclared afundamentallaw bychapter 141, 1683. Abrogated in 1693, but accepted in Petition ofRight, June 1, 1693 as chapter 1.

Chapter 2 And be it further Enacted by the Authorityaforesaid thatall Officers & Persons Commissionatedand Imployedin the-Service ofthe Government ofthisProvince andall Members andDeputys Electedto Seve in Assembly thereof and all that have Right to Elect suchdeputies shall be Such as profess and Declare they Believe in JesusChrist to be the Son of God the Savior of the World and that are notConvicted ofill fameor Unsober andDishonest Conversation and thatare of One and TwentyYears of age at Least.

Confirmedby chapter 63, 1683.Abrogated in 1693,but accepted inPetition of Right, June 1, 1693, as chapter 2.

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1682] The Statutesat Large ofPennsylvania. 7

Chapter3 Andbe it further Enacted by the Authority aforesaid thatwhosoever shall Swear in their Conversation by the Name of God orChrist or Jesus being Legally Convicted thereof shall pay for EverySuch offense five Shillings or Suffer five days Imprisonment in thehouse of Correction athard Labour to the behoofof the Publike and befed with bread and Wateronly during that time.

Confirmedby chapter 63, 1683.Abrogated in 1693,but accepted inPetition of Right, June 1, 1693,as part of chapter 3.

Chapter 4 Andbe it furtherEnacted by the Authorityaforesaid thatwhosoever shall swear by any other thing or Name and is LegallyConvicted thereof shall for Every Such offence pay halfe a Crowne orSuffer three days Imprisonment in the house of Correction at hardLabourhaveing onlybread andWater for their Sustinance.

Confirmedby chapter 63, 1683.Abrogated in 1693,but accepted inPetition of Right, June 1, 1693,as part of chapter 3.

Chapter 5 And be it further Enacted by the Authorityaforesaid forthe better prevention of Corrupt Communication that whosoever shallSpeake Loosly and prophanely ofAlmighty God Christ Jesus the HolySperit or the Scriptures oftruth andis LegallyConvicted thereof shallforEvery Such offence pay five Shillings or Suffer five Days Imprison-ment in the house of Correction at hard Labour to the behoof of thePublick and be fed with bread and Water onlyduring that time.

Confirmed by chapter 63, 1683.Abrogated in 1693,but accepted inPetition ofRight, June 1, 1693, as part of chapter 4.

Chapter 6 And be it furtherEnacted by the Authorityaforesaid thatwhosoever Shall in their Conversation at any time curse himselfe oran Other or anythingbelonging tohimselfe or anyother and is LegallyConvicted thereof Shall pay for Every Such offence five Shillings orSuffer five days Imprisonment as aforesaid.

Confirmedby chapter 63, 1683. Abrogatedin 1693,but accepted inPetition of Right, June 1, 1693, as chapter 5.

Chapter 7 And be it further Enacted by the Authority that if anyPerson shall with Malice or premeditation Kill or be accessary to thedeath of an Other Person Man Woman or Child being Legally Con-victedthereofShall according to the LawofGod and all Nations Suffer

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death and that the Estates of such Capitalloffenders shall go onehalfeto the Next of Kin to the Sufferer and the remainder to the next of Kinof the Criminall.

Replacedby chapter 118, 1683.

Chapter 8 Andbe it further Enacted by the Authority aforesaid thatall Persons Guilty of Mans Slaughter or Chance-medley Shall bepunished according to the Nature and Circumstance ofthe offence.


Chapter9 Andbe it further Enacted by the Authorityaforesaid thatwhosoever defileth the Marriage bed by Lying with an other Womanor Man than their own wife or husband being Legally Convictedthereof Shall for the first offence be publikely Whipt and Suffer oneWhole years Imprisonment in the house of Correction athath Labourto the behoofe of the Publick and Longer ifthe ChiefMagistrate Seemeet and both he and the Woman shall be Liable to a bill of Divorse-ment ifrequired by the grievedhusband or Wife within the Said termeof One whole Year after Conviction and for the Second offence im-prisonment in Manner aforesaid during Life and if the Party withwhom the husband or Wife shall defile their bedds be unmarried forthe first offence they shall Suffer half a years Imprisonment in theManner aforesaid and forthe Second offence Imprisonment for Life.

Confirmed by chapter 63, 1683, and renumbered chapter 7.Abrogated in 1693,but accepted in Petition of Right, June 1, 1693, aschapter 6.

Chapter 10 And be it further Enacted by the Authority aforesaidthat if any Person shall be Legally Convicted of Incest which isuncleanessbetwixt near Relations in blood Such Shall forfeit one halfeofhisEstate andboath Suffer Imprisonment aWhole year in the houseof Correction athard Labour andforthe Second offence Imprisonmentin Manner aforesaid for Life.


Chapter 11 And be it further Enacted by the Authority aforesaidthat if any Person shall be Legally Convicted of the Unnaturall Sin of

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1682] The Statutes atLarge ofPennsylvania. 9

Sodomy or Joyningwithbeasts such persons shallbe whipt and fcirfeitone third part of his or her Estate and worke Six months in the houseof Correction athard Labour and forthe Second offence Imprisonmentas aforesaid during Life.

Confirmed by chapter 63, 1683, and renumbered chapter 9.Abrogated in 1693.

Chapter 12 And be it further Enacted by the Authority aforesaidthat whosoever shall be Legally Convicted of a Rape or Ravishmentthat is forsing A Maid Widdow or Wife shall forfeit one third of hisEstate to the Parent of the Said Maid and for want of a Parent to theSaid Maid and if a Widdow to the Said Widdow and if a Wife to thehusband and the SaidWife be Whipt andSuffer aYears Imprisonmentin the house of Correction at hard Labour and for the Second offenceImprisonment in manner aforesaid during Life.


Chapter 13 And be it further Enacted by the Authority aforesaidThat whosoever shallbe Convicted of Uncleanness or the Commissionof fornication that is if any Single Man shall defile a Single Womanthey Shall Suffer three Months Imprisonment in the house of Correc-tion at hard Labour and after the Expiration of the Said terme Shalltake onean Other in Marriage &Live as Man and Wife together but ifthe Man be Married he shall forfeit onethird of his Estatec~andboth:beImprisoned as aforesaid andbe it Enacted by the Authority aforesaidthat Whoso Ever Shall be Convicted of Speakeing an Unclean Wordshall be Every Such offense pay one Shilling or Sit in the Stocks twohoures.


Chapter 14 And be it further Enacted by the Authority aforesaidthat whosoever shall be Convicted of haveing two Wives or two hus-bands shallbe Imprisoned all their Lifetimein the house of Correctionat hard Labour to the behoofe of his former Wife and Children or herformer Husband & Children and if aman or Woman beingunmarrieddo knowingly marry the Husband or Wife of an other person he or sheshall be punished after the samemanner aforesaid.

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Chapter 15 And be it further Enacted by the Authority aforesaidthat Every Person disordering and abusing himselfe with drinke untodrunkenness being Legally Convicted thereof shall for the first timepay five Shillings or Worke five days in the house of Correction at hardLabour andbe fed onlywithbreadand waterand forthe Second offenceand Ever after tennShillings or ten days Labour as aforesaid.

Confirmed by chapter 63, 1683, and renumbered chapter 12.Abrogated in 1693,but accepted inPetition of Right, June 1, 1693, aschapter 9.

Chapter 16 And be it further Enacted by the Authority aforesaidthat they who do Suffer such Excess of Drinking at their houses shallbe Lyable to the Same Punishmentwith the Drunkard.

Confirmed by chapter 63, 1683, and renumbered chapter 13.Abrogated in 1693,but accepted inPetition of Right, June 1, 1693, aspart ofchapter 10.

Chapter 17 And be it further Enacted by the Authority aforesaidthat if any Person shall drinke healths which may provoke people tounnecessary and Excessive drinking being Legally convicted thereofshall for Every Such offence forfeit five shillings and whosoever shallpledge the same Shall be Lyable to the Same punishment.


Chapter 18 And whereas divers Persons as English Dutch Sweeds&ct have beenwont to Sell to the Indians Rum and Brandy and SuchLike DistilledSpirits though they know the Said Indians are not ableto Govern themselves in the use their of but do commonly drinke of itto Such Excess as makes them Sometimes to Destroyoneanother andGrievously annoy and disquiet the People ofthis Province and Perad-venture those of Neighbouring Governments whereby they make thepoore Natives worse andnot better for their coming amonglheirrwhithis an heinous offence to God and a Reproach to the Blessed name ofChrist and his Holy Religion It is therefore Enacted by the Authority

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aforesaid that no Person within this Province do from henseforthpresume to Sell or Exchange any Rum or Brandy or any Other StrongLiquors at any time to any Indian within this Province and if any oneshall offend therein the Person Convictedthereof Shall forEvery Suchoffence pay five pounds.

Confirmedby chapter 63,1683, andrenumbered chapter 15. Chap-ter 161, 1684, empowered the Governor and Council to suspend thislaw. Amended by chapter 195, 1690. Abrogated in 1693.

Chapter 19 And be it further Enacted by the Authority aforesaidthat whosoEver be convicted of Wilfully firing of any Mans housewarehouse Outhouse Barnes Stacks or Ricks ofcome Vessells or boatsinanypart ofthisProvince or Territory thereunto AnnexedEvery suchoffender shall be Lyable to make Satisfaction double the Vallue andsuffer Imprisonment forone year in the house of Correction and bearSuch Corporall punishment as shallbe Inificted by the Court ofJusticeof that County where the party offending hath Committed the fact.

Confirmed by chapter 63, 1683, and renumbered chapter 16.

Abrogated in 1693.Chapter 20 And be it further Enacted by the Authority aforesaid

that if anyPerson shallbreake into the dwellinghouse of any Other tothe aifrighting of anydwelling therein andShall Intend or offer to takeany thing out of the said house such person Convicted thereof shallmake fourfold Satisfaction and Suffer three Months Imprisonment athard Labour in the house of Correction and if the party offending benot able to make restitution he or She shall be Imprisoned SeavenYears.

Confirmed by chapter 63, 1683, and renumbered chapter 17.Abrogated in 1693, but accepted inPetition of Right, June 1, 1693, aschapter 12.

Chapter21 Andbe it further Enacted by the Autority aforesaid thatthe Land and goods of Theives and fellons shall be Liable to makeSatisfaction to the party Wronged four fold the Value andfor want ofLands or goods the Theifs or Fellons shall be bondsman to Worke inthe Comon prison or Workehouse or Otherwise till the party Injuredbe Satisfied.

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12 The StatutesatLarge ofPennsylvania. [1682


Chapter 22 And be it further Enacted by the Authority aforesaidthat if any person Shall Violently or forceably Enter the house orpossession of any Other being duly convicted thereof shall be punishtas a Breaker of the peace and make Such Satisfaction to the partyagrieved as the Circumstances of the fault will bear.

Confirmed by chapter 63, 1683, and renumbered chapter 19.Abrogated in 1693, but accepted in Petition of Right, June 1, 1693, aschapter 13.

Chapter 23 And be it further Enacted by the Authority aforesaidthat if any persons to the Number of three shall meet together withClubbs Staves or any other hurtfull Weapon to the terror of any-ofthePeaceable People of thisProvince and Comitt or Designe to Comitt anyViolence or Injury upon the person or goods of any of the Said In-habiants andbe Convicted thereof they shall be Reputed and Punishtas Rioters and that act of Terror and Violence or Design of Violenceaccounted aRiot.

Confirmed by chapter 63, 1683, and renumbered chapter 20.Abrogatedin 1693,but accepted inPetition of Right, June 1, 1693, aschapter 14.

Chapter 24 And be it further Enacted by the Authority aforesaidthat whosoEver shall assault or Menace a parent and shall be dulyproved Guilty thereof shall be Committed to the house of Correctionand there remaine at hard Labour during the pleasure of the SaidParent.

Confirmed by chapter 63, 1683, and renumbered chapter 21.Abrogated in 1693, but accepted inPetition of Right, June 1, 1693, aschapter 15.

Chapter 25 And be it further Enacted by the Authority aforesaid ifanyPersonshallassault or Menace aMagistrate andbeDulyconvictedthereof he shall be fined according to the Nature of the fact and beComitteci to the house of Correction at hard Labour for One Monthafter Conviction.

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Confirmed by chapter 63, 1683, and renumbered chapter 22.Abrogated in 1693,but accepted inPetition ofRight, June 1,~1693,aschapter 16.

Chapter 26 And be it further Enacted by the Authority aforesaidthat if any Servant assault or Menace his or her Master or Mistressand be Convicted thereof shall be punisht at the Discretion of TwoJustices ofthe Peace so it be Suteable to the Nature of the offence.

Confirmed by chapter 63, 1683, and renumbered chapter 23.Abrogated in 1693, but accepted in Petition of Right, June 1,16939aschapter 17.

Chapter 27 And be it further Enacted by the Authority aforesaidthat anyPerson convictedof an assault or Battery comitted by him onan Other Person he shall be reputed a Breaker of the Peace and Shallbe punisht according to the Nature and Circumstances of the fact.


Chapter 28 And be it further Enacted by the Authority Aforesaidthat whosoEver shall challenge an other Person to fight he thatChallengeth and he that accepteth the Challenge shall for Every Suchoffence pay five pounds or Suffer three Months Imprisonment in thehouse of Correction at hard Labour.

Confirmed by chapter 63, 1683, and renumbered chapter 25.Abrogated in 1693,but accepted in Petition ofRight, June 1, 1693,aschapter 18.

Chapter 29 And be it further Enacted by the Authority aforesaidthat whosoEver shall introduce into this Province or frequent Suchrude and Riotus Sports & practices as Prizes or Stage plays MasksRevells Bulbaits Cock fightings with such Like being convicted thereofshallbe reputedand finedas Breakers ofthe PeaceandSufferat Leasttenn days Imprisonment in the house of Correction at hard Labour orforfeit twenty Shillings.

Confirmed by chapter 63, 1683, and renumbered as chapter 26.Abrogated in 1693, but accepted in Petition of Right, June 1, 1693,part of chapter 19.

Chapter30 Andbe it further Enacted by the Autority aforesaid thatif any Personbe Convicted of Playing at Cards Dice Lotterys or Such

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Like Enticing Vane and Evill Sports and Games Such persons shallfor Every Such offence pay five shillings or suffer five Days imprison-ment at hard Labour in the House of Correction.

Confirmed by chapter 63, 1683, and renumbered chapter 27.Abrogated in 1693, but accepted in Petition of Right, June 1, 1693,part of chapter 19.

Chapter 31 And be it further Enacted by the Authority aforesaidthat if any person shall speake write or Act any thing tending toSeditionor Disburbanceof the peace andbe dulyConvicted thereoitheparty so offending shall for Every Such offence be fined according tothe Nature and Circumstance of the fact provided it be not Less thantwenty Shillings.


Chapter 32 And be it further Enacted by the Authority aforesaidthat if any Person Speake Slightingly or carry themselves abusivelyagainst anyMagistrate or Person inofficebeing dulyConvicted thereofshall for Every Such offence Suffer according to the Quality of theMagistrat and Nature of the offence always provided it be not Lessthan twenty Shillings or tenn days imprisonment at hard Labour inthe houseof Correction.


Chapter 33 And be it further Enacted by the Authority aforesaidthat all Scandalous and Malicious reporters Defamers-and Spreadersof false News whether against Magistrates or Private Persons beingconvicted thereof Shall be accordingly Severely punisht as Enemys tothe Peace & Concord of the Province.

Confirmed by chapter 63, 1683, and renumberedchapter 30. Chap-ter 191, 1690, includedit amongthe laws to be continued until the endof the next General Assembly and twenty days after and no longer,but it was still in force to be abrogated in 1693, but accepted in thePetition of Right, June 1, 1693, as chapter 21.

Chapter 34 And be it further Enacted by the Authority aforesaidthat ifany Person shall be Clamourus Scolding and Raylingwith their

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tongues upon Complaint and full proof thereof before a Justice of thePeace the Said Justice shall for Such offence committ Such Persons tothe house of Correction there to remaine three days at -hard Labour.

Confirmed by chapter 63, 1683, and renumbered chapter 31.Abrogated in 1693,but accepted in Petition ofRight, June 1, 1693, asfirstpart of chapter 22.

Chapter 35 And to prevent Clandestine Loose and Unseemlyproceedings aboute Marriage be it Enacted by the Authority aforesaidthat all Marriages not forbidden by the Law of God shall be En-couraged but the Parents and Guardians shall be first Consulted andthe parties Clearness of all other Engagements assured by a Certifi-cate from Credible persons and the Marriage shall be publisht beforeit be Solemnized andit shall be Solemnizedby takeingandOwningoneanother as Husband & Wife before Sufficient Witnesses and a Certifi-cate of the Whole under the hands of Parties and Witnesses shall bebrought to the proper Register of the County where they are Marriedand Shall be Registered in his office.


Chapter 36 And be it further Enacted by the Authority aforesaidthat no Person be it Either Widdower or Widow shall Contract Mar-riage much Less Marie under oneYeare after the decease of hisWifeor her Husband.

Not found in the shorter version of the Great Law or later laws.

Chapter 37 And be it further Enacted by the Autority aforesaid thatif any Person or Persons shall fall into decay and Poverty and not beable to Maintaine themselves and Children with their honest En-deavers or shall dye and Leave poore Orphants that upon Complaintto the Next Justice of the Peace of the Same County the SaidJusticesfinding the Complaint tobe true Shall makeprovisionforthem-in SuchWayas they Shall See Convenient till the Next County-Courtand thatthere care be taken for their future Comfortable Subsistance.


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Chapter 38 Andto prevent Exaction in Publickhousesbe it furtherEnacted by the Authorityaforesaid that all Strong beere andale madeof Barley Malt shall be Sould fornot above two pennys Sterling a fullWinchester Quart and all Beere made of Mollassus Shall not Exceedone pennyby the Quart.

Confirmed by chapter 63, 1683, and renumbered chapter 33.Amendedbychapter 162, 1684. Chapter 191, 1690, includedit amongthe laws to be continued until the end of the next General Assemblyand twenty days after and no longer, but it was still in force to beabrogated in 1693.

Chapter 39 And to prevent fraude in Measures and to reduce allforreigne Measures hereto the English Standard be it further Enactedby the Authorityaforesaid that the Measures of this Province shall beaccording to the Standard ofWeights andMeasures in England that isto say a Bushell Shall Containe Eight Gallons according to theWinchester Measure and all Weights to be averdupois which hathSixteen Ounces to the pound within three Months after the firstSessionof this Assembly.

Confirmed by chapter 63, 1683, and renumbered chapter 34.Repealed by chapter 155, 1684; but chapter 191, 1690, included itamong the laws to be continued until the end of the next GeneralAssembly and twenty days after and no longer. It was abrogated,however, in 1693. Another and virtually identical act, chapter 102,1683,was accepted in the Petition of Right as chapter 54.

Chapter 40 And be it further Enacted by the Authority aforesaidthat no person presume to Keep an Ordinary or Publique housewithout a License first Obtayned of the Governor and to the End thatall travelers and Such as are not house Keepers may be resonablyaccomodated in Places where Ordinarys now are or shall be hereafterErected no Such Keeper of Such Ordinary shall demand above Sixpennyes a Meale by the head which Meale shall Consist of Beef orPorke or Such Like produce of the Country and Small beare and of afootman he shall not Demand above Two pennyes a night for his bedand ofa horsemanNothing he paying Six pennyes aNight forhishorsehis hay.


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Chapter 41 And be it further Enacted by the Authority aforesaidthat the days of the Week and Months of the Year Shall be Called asin Scripture and not by Heathen Names (as are Vulgarly Used) as thefirst second & third days ofthe Weekandfirst secondand thirdmonthsof the Year and beginning with the day Called Sunday and the MonthCalled March.

Confirmed by chapter 63, 1683, and renumbered chapter 35.Abrogated in 1693,but accepted in Petition of Right, June 1, 1693,aschapter 23.

Chapter 42 Andbe it further Enacted by the Authority aforesaid tothe End that Justice may be faithfully and Openly done according toLaw that all Courts of Justice shall be Open and Justice shall not beSould denyedor delayed andin Every County there shall be one CourtErected towhichthe Inhabitants thereofmay Every Month repaireforJustice and in Case any person shall hold himselfe aggrieved by theSentence of the Said County Court that Such Persons may appeale tothe Provincial! Court which Shall Sitt Quarterly and Consist of notLess than five Judges the appellant giveing Security for the Chargesof the Sute and no further appeale to be admitted till the apellantdeposit in Court the Summehe is Condemned to pay andGi-ve-Secu-rityin Case he be Cast by the Last Jurisdiction which shall be the Provin-ciall Councell to pay treble Damages.


Chapter 43 And be it further Enacted by the Authority aforesaidthat in all Courts all Persons of all Perswasions may freely appear intheir ownway andaccording to their ownManner andthere personallyplead their own Cause themselves or ifUnableby their friends and thefirst process shallbe the Exhibition ofthe Complaint inCourtfourteendays before the Tryall and that the Defendant be prepared for hisDefence he or she Shall be Summoned no less than tenn days beforeand a Coppy of the Complaint delivered him or her at his or herDwellinghouse to answer unto but before the Complaint of any personshall be received he or she Shall Solemnly declare in Open Court thathe or she beleiveth in his or her Conscience his or her Cause is Justand if the Party complained against Shall notwith Standing refuse to

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18 The Statutesat LargeofPennsylvania. [1682

appear the Plaintiff Shall have Judgement against the Defendant byDefault.

Replacedby new chapter 66, 1683.

Chapter 44 And be it further Enacted by the Authority aforesaidthat there Shall be two Credible Wittnesses in all Cases in order toJudgment and all Wittnesses Comeing or Called to testifie theirknowledge in or to any matter or thing in any Court or before anyLawfull Authority within the Said Province shall there give andDeliver in their Evidence or Testimony by Solemnly promising tospeake the truth the whole Truth and Nothing but the truth to theMatter or thing in Question and in Case any person so Called toEvidence shall afterwards be Convicted of wilfull falsehood such per-son shall Suffer and Undergoe such damage or Penalty as the personor Persons against whome he or she bore falseWittness did or Shouldundergoe and Shall alsomake Sattisfaction to the Party Wronged andbe publikely Exposed for a false Witness never to be Credited againein any Court or before any Magistrate in the Said province andwhosoever shall be Convicted of Lying in Conversation shall for EverySuch offence pay halfea Crowneor Suffer threedays Imprisonment inthe house of Correction at hard Labour.

Confirmed by chapter 63, 1683, and renumbered chapter 36.Declareda fundamental law by chapter 141, 1683.Abrogated in 1693.

Chapter 45 And be it further Enacted by the Authority aforesaidthat all pleadings Processes andrecords in Court shall be Short and inEnglish and in an Ordinary and plaine Character that they may beEsily read& understoodand Justice Speedily administered.

Confirmed by chapter 63, 1683, and renumbered chapter 37.Abrogated in 1693, but accepted inPetition ofRight, June 1, 1693, aschapter 24.

Chapter 46 And be it further Enacted by the Authority aforesaidthat all Tryalls in Civill Cases shall be by twelve men and as near asmay be peers or Equalls and of the Neighbourhood and men withoutJust Exception and in Criminall Matters of Life there shall be firsttwenty four returned by the Sheriff for a Grand Inquest of whometwelve at Least Shall find the Complaint to be true and then forty

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Eight shall be Likewise returned by the Sheriff of whom Twelve shallhave the finall Judgment but resonable Challenges shall be alwaysadmitted against any or all of them.

Confirmed by chapter 63, 1683, and renumbered chapter 38.Declared afundamentallaw by chapter 141, 1683. Abrogated in 1693,but accepted in Petition of Right, June 1, 1693, as chapter 25.

Chapter 47 And be it further Enacted by the Authority aforesaidthat all fines shallbe moderate Saveing mens Contenements~Marchan-dize or Wainage which is to say the furniture of their Calling andMeanes of Livelyhood.

Confirmed by chapter 63, 1683, and renumbered chapter 40.Repealed by chapter 155, 1684.

Chapter 48 And be it further Enacted by the Authority aforesaidThat all Fees and Salaries in all Cases shall be moderate and Limitedby the Governor and Assembly and be hung up in a table in Everyrespective Court and whosoEver shall be Convicted of taking moreshall pay two fold & be Dismist his Imployment one Moyety of whichshall go to the party wronged and that all Persons Convicted ofBriberyand Extortion shall forfeit Double the sume.

Confirmed by chapter 63, 1683, and renumbered chapter 39.Abrogated in 1693,but accepted inPetition of Right, June 1, 1693, aspart ofchapter 26.

Chapter 49 Andbe it further Enacted by the Authority aforesaid foravoyding of Numerous Suits if two men dealing together be indebtedto Each other upon bills Bonds Bargains or the like provided they beof Equall truth and Clearness the defendant shall in his Answeracknowledge the debt which the Plaintiffe demandeth and defalkewhat the Plaintiffe Oweth to him upon the like Clearness.


Chapter 50 And be it further Enacted by the Authority aforesaidthat if in Case any Man arrest one another goeing out of the Provincehe Shall be ready withhis Declaration andEvidence the Next day and

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shall put in Security to pay the Charges and Damages Sustained bythe party arrested ifhe shall be found in the wrong.

Confirmed by chapter 63, 1683, and renumbered chapter 42.Abrogated in 1693,but accepted inPetition ofRight, June 1, 1693, aspart of chapter 28.

Chapter 51 And be it further Enacted by the Authority aforesaidthat all Promises Bargains andAgreements about buying and Seffingbeing made appear by Sufficient Evidence shall stand good and firmeand Such as shall Violate the Same he or She Shall for Every Suchoffence pay twice the Value to the Person Wronged.

Confirmedby chapter 63, 1683,andrenumbered chapter 43. Chap-ter 191, 1690, included it amongthe laws to be continued to the endof the next General Assembly and twenty days after and no longer,but it was still in force to be abrogated in 1693,and tobe accepted inthe Petition of Right, June 1, 1693, as chapter 29.

Chapter 52 And be it further Enacted by the Authority aforesaidthat to prevent frauds and Vexatious Suits within the Said Provinceall Charters guifts grants andConveyances of Land (Except-Leases-forone Year or Under) and all bifis Bonds and Speciallitys above fivepounds and not under three Months made in the Said Province Shallbe Enrolld or Registred in the publike Enrolement office of the saidProvince within the Space of two months after the makeing thereofElsetobe voyde inLaw and all deeds grants and Conveyances of Land(Except as aforesaid) withinthe Saidprovince andmadeouoftheSeidprovince shall be Enroledor Registred as aforesaid within-Six Monthsnext after the Makeing thereof and Settleing and Constituting anInrolement office or Registry within the Said Province Elseto be Voydin Law against all persons whatsoEver and in Case the Deeds ofPurchase inEnglandmade ofLands in thisProvince should be Lost bythe Way and so cannot be Registered Copies of the Deeds attested bya Publike Notary shall be of Equall force therein.

Confirmed by chapter 63, 1683, and renumbered chapter 44.

Declaredafundamental lawinchapter 141, 1683. Abrogated in 1693.Chapter 53 And be it further Enacted by the Authority aforesaid

that all Wills in Writing attested by two Sufficient Witnesses shall be

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of the Same force as to Land as to Other Convayances being Legallyproved within forty days Either within or Without the said Province.

Confirmed by chapter 63, 1683, and renumbered chapter 45.Abrogated in 1693,but accepted in Petition of Right, June 1, 1693, aspart of chapter 30.

Chapter 54 And be it further Enacted by the Authority aforesaidthat the Will of no Person shallbe offorce that is not in-his or her RightMind andUsuall understanding at the Makeing thereof.

Confirmed by chapter 63, 1683, and renumbered chapter 46.Abrogated in 1693,but accepted in Petition of Right, June 1, 1693,aspart of chapter 30.

Chapter 55 And be it further Enacted by the Authority aforesaidthat the Estates of Intestates shall go to the Wife and to the Childrenand ifno Wife be living at the time ofhis Death all the Estate Shall goto the Children and if no Children one third to the Governor and twothirds to the Next of Km.

Replacedby chapters 109and 110, 1683.

Chapter 56 And be it further Enacted by the Authority aforesaidthat there shall be a Registry for Births Marriages Burialls Wills theNames of Executors and Guardians and Trustees and Letters of Ad-ministration distinckt from the Other Register.

Confirmed by chapter 63, 1683, renumbered chapter 47, and

declared afundamentallawby chapter 141, 1683. Abrogated in 1693.Chapter 57 And be it further Enacted by the Authority aforesaid

that there shall be a Registrey for all Servants where theire Namestime Wages and days of freedom or Payment Shall be Registred.


Chapter 58 And be it further Enacted by the AuthorityAforesaidthat Servants Shall not be kept Longer than their time and Such asare Carefull shallBe boath Justly andKindlyUsed in their Serviceandput in fitting Equipage at the Expiration thereof according to Customand Such as Run-away and Serve not their time when Caught shallserve twice the timehe or she was absent andpaythe Charges orServ-e-

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out the Vallue after their time is Expired and ifany Master abuse hisServant on Complaint to the next Justices of the Peace he shall takeCare to redress the Said Grieveance.

Replacedby chapters 135-139, 1683.

Chapter 59 And be it further Enacted by the Authority aforesaidthat all factorsor Correspondents in the SaidProvince Wronging theirImployers shall make Sattisfaction and one third over to the SaidImployers and in Case of Death of any Such Factor or Correspondentthe Committee of Trade Shall take care to Secure so much of theDeceased partyes Estate as belongs to the SaidRespective Imployers.

Confirmed by chapter 63, 1683, and renumbered chapter 49.Abrogated in 1693, but replaced by chapter 114, 1693.

Chapter 60 And be it further Enacted by the Authority aforesaidthat all defacers or Corrupters of Charters Guifts Grants Bonds BillsWills Contracts and Conveyances or that shall deface or falsifle anyEnrolement Registrey or Record within this Province shall makeDouble Satisfaction for the Same halfe whereof shall go to the PartyWronged and they shall be dismissed of all places of Trust and bePublikely Disgraced as false Persons.

Confirmed by chapter 63, 1683, and renumbered chapter 50.Abrogated in 1693, but accepted in Petition of Right, June 1, 1693,aschapter 31.

Chapter 61 And be it further Enacted by the Authority aforesaidthat all Lands and Goods shall be Lyable to pay debts Except wherethere be Legal Issue andthan all goods and onehalfe ofthe Land onlyin Case the Land was bought before the Debts were Contracted.

Confirmed by chapter 63, 1683, and renumbered chapter 51. Ex-panded and explained by chapter 189, 1688. Chapter 191, 1690,included it among the laws to be continued to the end of the nextGeneralAssembly andtwentydays after andnolonger, but itwas stillin force to be abrogated in 1693, but accepted in Petition of Right,June 1, 1693, as chapter 80.

Chapter 62 And be it further Enacted by the Authority aforesaidthat all Prisoners Shall be Bailable by Sufficient Sureties unless forCapitall offences where the proofis Evident or the Presumption great

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and Every Quarter of a Year there shall be a Goal delivery in EveryCounty where Imprisonment is not the Punishment.

Confirmed by chapter 63, 1683, and renumbered chapter 52.Declared afundamental lawby chapter 141, 1683.Abrogated in 1693.

Chapter 63 And be it further Enacted by the Authority aforesaidthat Goalers shallnot oppres their Prisoners and that all Prisons shallbe free as to room and all Prisoners shall have Liberty to providethemselves Bedding food and other Necessarys during their Imprison-ment Except Such whose Punishment by Law will not admitt of thatLiberty.

Confirmed by chapter 63, 1683, and renumbered chapter 53.Abrogated in 1693,but accepted in Petition ofRight, June 1, 1693, aschapter 32.

Chapter 64 And be it further Enacted by the Authority aforesaidthat all Prisons Shall be Workhouses for felons Thieves Vagrans andLoose abusive and Idle persons whereofone Shall be in Every County.


Chapter 65 And be it further Enacted by the Authority aforesiadthat any Person Wrongfully Imprisoned shall have Damages againstthe Informer or Prosecutor.


Chapter 66 And be it further Enacted by the Authority aforesaidthat as in divers Laws the penalty of the offences is thus ExpresstEither a Certaine Summ ofmoney or Certain time of Imprisonment athard Labour in the house of Correction which shall be Left to theChoyce of the Civil Magistrate which of the two punishments he willInflict upon the Person offending andwhoso Ever shall know of anyofthe aforementioned offenses andinforme the Civil Magistrate thereofshall have one third of the fine and if any one shall Conceal Suchperson he or She Shall pay halfethe fine due from the Guilty Persons.

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Chapter 67 And to the End that it may be knowne who those arethat in this Province andterritorys thereunto belonging haveRightnffreemen to Chuse or to be Chosen and with the Proprietary andGovernor make and Enact Laws that Every Inhabitant of the SaidProvince and Territorys thereunto Annexed that is or Shall be apurchaser of onehundred Acres ofLand andhath Seated the SaniehisHeirs andAssignes and Every person who Shall have paidhis passageand taken up one hundred Acres of Land at one penney an Acre andhath Seated the Same and Every Person that hath been a servant orBondsman andis free by hisServices and shallhave takenup his fiftyAcres of Land and Seated the Same and every inhabitant Artificer orOther Resident in the Said Province that payeth Scott and Loft to theGovernment Shall be Deemed and accounted A freeman of thisProvince and teritorie thereof and Such only Shall have Rights ofElection or being Elected to any Service in the Government thereofprovided alsoandbe it further Enacted by the Authorityaforesaid thatall Persons holding any office in this Province or the Territory there-unto belonging or that hath or shall have Right to Chuse or to beChosen Members in Assembly Shall be Such as shall first Subscribethis following declaration I A B doe hereby freely acknowledge andSolemnly decare andPromise fidelity andLawfull obedience toWillianPenn Son & Heir of Sir William Penn deseased and his Heirs andAssigns as Rightfull Proprietary and Governor of the Same accordingto the Kings Letters Patents and Deeds of Grant and Feofment fromJames Duke of Yorke andAlbany &ct and that I will neverActnor doeby Word or Deed Directly nor Indirectly any thingnor Consent to norConceal any Person or thingwhatsoever to the breach of this SolemnEngagement in Wittness of Which I have hereunto Set my handthis day of in the year AB

Confirmed by chapter 63, 1683, and renumbered chapter 57.Declared afundamental lawby chapter 141, 1683. Abrogatedini693.

Chapter68 Andthat Elections maynot be Corruptly manageduponwhichthe present and future good of the province so much~dependsbe-

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it Enacted by the Authority aforesaid that all Elections of Members asRepresentatives of the People and freemen of the Province of Pennsil-vania andTerritorys Annexed to Serve in the Assembly there of shallbe free and Volluntary and that the Elector that shall Receive anyreward or Guilt in meate drinke monys or Otherways shall forfeit hisRight to Elect and Such Person as Shall give promise or Bestow anySuch Reward as aforesaid to be elected shall forfeit his-E-Iectiori andbethereby Incapable to Serve as aforesaid andthe Assembly Shall-besoleJudges of the Regularity or Irregularity of the Elections of the Mem-bers thereof.

Confirmed by chapter 63, 1683, and renumbered chapter 58.Declared afundamental lawby chapter 141, 1683.Abrogated in 1693,but accepted in Petition of Right, June 1, 1693, as chapter 36.

Chapter 69 And that the People may be fully Secured in the Injoy-ment oftheir Propertybe it furtherEnacted by the Authority aforesaidthat no Mony or goods shallbe raised upon or paid by any-cfthe-Peopleof this Province and Territorys annexed by way of a Publike TaxCustom or Contribution but by a Law for that purpose made by theGovernment and Freemen of the Shaid Province & Territorys thereofandwhosoEver ShallLevie Collect Receive or pay anymoneyor GoodsContrary thereunto Shall be held andPunished as a Publick Enemy tothe Province and a Betrayer of the Liberty of the people and that notax atanytime shallContinue Longer than forthe Space of oneWholeYear.

Confirmed by chapter 63, 1683, and renumbered as chapter 59.Declaredafundamental lawby chapter 141, 1683.Abrogated in 1693,but accepted in Petition of Right, June 1, 1693, as chapter 37.

Chapter 70 And be it further Enacted by the Authority aforesaidthat the Laws of this Province from time to time shall be publisht &Printed that Every Person may have the Knowlege thereof and theyshall be one of the books taught in the Schooles of this Province andTerritorys thereof.


Chapter 71 And be it further Enacted by the Authority aforesaidthat all Other matters and things not herein provided forwhich Shall

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or may Concerne the publike Justice peace and Safety of the SaidProvince andthe RaisingandImposing Taxes Customs duties or otherCharges WhatsoEver Shall be and are hereby Referred to the OrderPrudence and Determination of the Governor andFreemen ofthe SaidProvince from time to time.


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IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD …...Mar 15, 2013 · MERSCORP, Inc. and...

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