Terrell v. Andrew Cnty.

• Decision Date: 31 August 1869
• Parties: WARREN F. TERRELL and JOHN TERRELL, Plaintiffs in Error, v. ANDREW COUNTY, Defendant in Error.
• Court: Missouri Supreme Court

44 Mo. 309

WARREN F. TERRELL and JOHN TERRELL, Plaintiffs in Error,

v.ANDREW COUNTY, Defendant in Error.

Supreme Court of Missouri.

August Term, 1869.

Error to Fifth District Court.

Vories & Vories, for plaintiffs in error.

I. Plaintiffs in error were only chargeable with notice of the mortgage to the extent of $200. (Lessee of Jennings v. Wood, 20 Ohio, 261; 1 U. S. Dig. 158, § 107; 1 Sup. U. S. Dig. 534, § 355; 2 U. S. Dig. 37, § 263; 8 Verm. 172.)

II. The recorder failed to record correctly the mortgage to the defendant, and not the mortgage to Terrell; and if an injury resulted thereby, the defendant was the party damnified, and should sue the recorder. (See above authorities.)

III. The effect of filing deeds is to give notice of what is put upon the record, and the statute merely fixes the time at which this notice shall commence.

Strong & Chandler, for defendants in error.

I. Plaintiffs had notice in law of the existence and amount secured by mortgage of Holt to Andrew county. (R. C. 1855, p. 364, § 41; Watts, 57; 24 Pick. 274; 2 Greenl. Cruise, 553-8; 2 Am. Law Reg. 4-11.) Equity presumes a mortgage to have been recorded properly. (1 Sto. Eq. § 64, g;12 Ohio, 532.)

II. A deed is recorded in contemplation of law when filed for record. (R. C. 1855, p. 364, § 41; 10 Ala. 368; 1 Greenl. Cruise, 546; Beverly v. Ellis, 1 Rand. 102.) All subsequent purchasers and mortgagors shall be deemed, in law and equity, to purchase with notice. (R. C. 1855, p. 364, § 41; 9 Mo. 323-6; 14 Mo. 175.)

WAGNER, Judge, delivered the opinion of the court.

The argument in reference to the execution of the power contained in the mortgage, and the frauds between the Terrells in the purchase of the property at the mortgagee's sale, is beside and irrelevant to any issue in the case. If the facts alleged are true, they may have furnished sufficient reason for Holt, the mortgagor, to move to set aside the sale; but in the absence of any complaint on his part, the defendant can not make the objection for him. There is but one question in this case to be determined. It seems that Andrew county loaned to one Holt the sum of four hundred dollars belonging to the common-school fund, for the securing of which he gave personal security, and also executed a mortgage on a lot owned by him in the city of Savannah. The county duly deposited the deed for record with the recorder of the county, and that officer, in recording the same, by mistake inserted two hundred dollars in the record instead of four hundred dollars, showing an encumbrance for the former instead of the latter sum. After the mortgage was recorded, Holt applied to one of the plaintiffs for a loan of money, and offered to secure him by mortgage liens on real estate, the lot mortgaged to the county being among the property. On examination, the record showed a mortgage for two hundred dollars; the money was loaned, and a junior mortgage given subject to the prior lien. Subsequently the county ordered the lot sold in default of payment, claiming the full amount of four hundred dollars, together with accrued interest. The plaintiff paid the two hundred dollars, with interest thereon, and proceeded to enjoin the collection of the remainder.

The Court of Common Pleas in Buchanan county, to which the cause was removed by change of venue, rendered judgment of perpetual injunction, and this judgment was reversed in the District Court.

The only question, therefore, is whether, under the law, the record imparted notice for any greater amount than two hundred dollars. It is not pretended that, at the time Terrell loaned the money and took his mortgage, he had any other notice of the county's claim than that disclosed by the record.

It is contended here on behalf of the county that, according to our statute, when a person files with the recorder an instrument, it imparts notice of its real contents to all subsequent purchasers, regardless of any mistake that the recorder may commit in placing it on record; that the statute provides that every instrument in writing, certified and recorded in the manner prescribed, shall, from the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed, in law and equity, to purchase with notice. (R. C. 1855, p. 364, § 41.)

According to the literal interpretation of the section, no notice is imparted till the instrument is actually placed on record, and then it relates back to the time of filing. It was, no doubt, the...