The opinion of the Court was delivered by

The brief in this case has been completed since the last session of the Court. The consideration of the argument, submitted in printed form, was, therefore, necessarily defeired to the present term.

The concurrence of the Circuit Judge in the conclusion of the Referee, giving a preference to the mortgage of the plantation “Calais,” executed in 1854 by Joseph Alston to his father William Algernon Alston, Sr., over that of April, 1856, to Joseph Thurston, by the same party, might be sustained as decisive of the case if the question involved was to be determined as one of fact only. — Black-well vs. Searles, 1 S. C., 116.

*120In the absence of that positive proof which is attained through the medium of evidence of actual facts from the lips of credible witnesses, a resort is often had to inferences or deductions from circumstances which generally attend a transaction of the same kind, and from these a presumption arises which prevails until “actual certainty of the truth or falsehood of any proposition can be attained.” Presumptions of law must command belief until the impression is removed by countervailing positive proof. Presump■tions of fact receive their force from the customs and habits of society. What men commonly do under an existing state of circumstances it is presumed all others in the like condition will do, and the results which are found to follow a particular act may be expected to succeed its repetition.

The ease before us cannot be adjudged by an application of the rules which govern either conclusions conceded as presumptions of law or results accepted as presumptions of fact. It depends on the application of principles appropriate to both, or, in the language of the writers, to “ presumptions of fact recognized by law.”

The execution of the mortgage to William A. Alston, Sr., if not admitted, has certainly been proved, and may be accepted as an established fact in the case. To give validity to a mortgage, neither recording or any other means of notice is necessary. It stands as a valid instrument between the parties, and it is only where the rights of third persons are protected by Statute against it that its efficacy as a subsisting lien is at all liable to objection. By our Statute of 19th December, 1843, 11 Stat., 256, “ Uo mortgage of real estate shall be valid so as to affect the rights of subsequent creditors or purchasers for a valuable consideration without notice, unless recorded in the office of Register of Mesne Conveyance for the District wherein such real estate lies within sixty days from the execution thereof.” It is through the effect of this provision that the appellant, Richard Lathers, as executor of Thurston, claims that he has a title superior to that created by the senior mortgage. The instrument itself, as also the Register’s office, where it is alleged it was recorded, together with the records thereof, have all been destroyed, and the enquiry first arises whether the facts proved in the cause make a prima facie impression in favor of the appellee, which must be overcome by the appellant before his motion can prevail. The testimony, which would have been of the highest character, is beyond human reach* *121and resort can alone be had to those presumptions which, if they are sufficient to command belief, must avail as the best testimony which it is in the power of the party to produce.

All of the maxims of the common law, universally recognized wherever it prevails, as founded in wisdom and justice, and in perfect harmony with the great principles which give symmetry and vigor to the whole system, are interposed in the argument against the motion. “ Omnia presumuntur rite et solemniter esse aeta donee probetur in eontrarium,” is claimed as shifting the burthen of proof on him who avers against the conclusion which it announces. Mr. Best, in his Treatise on Presumptions of Law and Fact, p. 84, says: “ So collateral facts, requisite to give validity to instruments, will, in general, he presumed.” Mr. Broom, in his Legal Maxims, p. 429, remarks: “ That the presumption omnia rite esse aeta applies'also to the acts of private individuals, especially when they are of a formal character, as writings under seal.”

The effect of this rule, connected with the presumption that men are influenced in their conduct by their own interests, changes the course of proof, and throws on the other side the necessity of shewing the want of formalities, through the absence of which it claims a priority for the junior mortgage on which it relies for a precedent lien. The execution of the senior mortgage is proved — its foreclosure has not been resisted by those having an interest in defeating it. The junior mortgagee then interposes, and claims priority, because he alleges that the first mortgage was never recorded, and is, therefore, void against him, a subsequent creditor without notice. The averment seeks to avoid an instrument valid and subsisting between the parties, and he who is to be benefited, by reason of any want of conformity to the law, should not complain if he is asked to shew it. He is not required to prove a negative. He is only asked to sustain the allegation, which he contends vitiates and destroys, as to him, the instrument which is valid and effective between, the immediate parties to it.

Doe vs. Griffin, 3 Camp., 7, is a case in point. Ejectment for leasehold premises, upon the assignment of a. term by the defendant to the lessor of the plaintiff, to secure the payment of an annuity. It was insisted for the defendant that the lessor of the plaintiff was bound to prove that the annuity had been duly enrolled in pursuance of 17 Geo., 3 C., 26, as the assignment and all the annuity deeds were otherwise null and void. Lord Ellenborough said : “ If *122the annuity was not duly enrolled, that proof should come from the other side. Here is an assignment, executed by the defendant. I will presume it to be valid until the contrary be shewn.” The principle, thus laid down, may well be applied here. On the trial, however, the onus was assumed by the appellees of showing, by circumstances, in the absence of the written proof, which had been destroyed, that the senior mortgage had been recorded. It is true they were of a character to raise a presumption only sufficient to require contradicting testimony from the other side, which it failed to produce. The conclusion to which the Circuit Court arrived may not be absolutely certain, but we do not see such error as would justify our interference.

The motion is dismissed.