Bank v. Brown

• Decision Date: 12 January 1899
• Citation: 96 Va. 614,32 S.E. 64
• Parties: MERCANTILE CO-OPERATIVE BANK. v. BROWN et al.
• Court: Virginia Supreme Court

32 S.E. 64

(96 Va. 614)

MERCANTILE CO-OPERATIVE BANK.

v.BROWN et al.

Supreme Court of Appeals of Virginia.

Jan. 12, 1899.

Mortgages—Admission to Record —Priority — Condition of Record—Notice—Estoppel.

1. A deed of trust delivered to the clerk of the county court for record, with the tax, and recording fee, and by him admitted to record, and so indorsed, is prior to a deed of trust subsequently recorded, notwithstanding the clerk retained the former without recordation until after the subsequent deed was recorded, and then erased his former indorsement thereon, and recorded it, and indorsed it as received and admitted to record as of the date of recordation.

2. Actual notice of the truth of facts rep-resented or concealed is not indispensable to an equitable estoppel, and a mortgagee in possession of a recorded mortgage, on which is in-dosed a certificate of the clerk showing a mistake as to the time of recordation, will be charged with notice of the mistake, where he is sought to be estopped from setting up the true date.

3. Where, 18 months after notice to a first mortgagee of a mistake appearing in the records as to the date of recordation of his mortgage, a bona fide assignment was made of a subsequent mortgage recorded prior to the date of the recordation of the first mortgage, as shown by the records, the first mortgagee was estopped to set up the true date of recordation, as against the assignee.

Keith, P., dissenting.

Appeal from circuit court, Page county.

Bill by the Mercantile Co-operative Bank against J. P. Brown and others. There was a decree for defendants, and plaintiff appeals. Affirmed.

Sipe & Harris, for appellant.

J. S. Harnsberger, for appellees.

RIELY, J. The appellee J. P. Brown applied to the Mercantile Co-operative Bank of the City of New York for the loan of $1,-000, which he offered to secure by deed of trust on a certain lot in the town of Shenandoah, Page county, Va. This the bank agreed to do, if the security offered was sufficient and the title to it good. It employed Mr. R. S. Parks, an attorney, to examine the title and furnish an abstract thereof. The security and the title to it proving satisfactory, the bank sent a check for the loan to its attorney, payable to J. P. Brown, but to be held by the attorney until the deed of trust should be executed and acknowledged for record and receive the approval of the bank.

The deed having been approved by the bank, and returned to the attorney, the latter, on March 13, 1891, turned over the check to Brown, taking his note for the loan, and delivered the deed to the clerk of the county court of Page county, in his office, to be recorded.

The deed having been duly executed and acknowledged for record, and the tax and recording fee being paid by the attorney, the clerk then and there admitted it to record, noting the time of its admission by an indorsement on the back of the deed in the following words and figures: "A. B., March 13, 1891." The attorney, on the same day, wrote to the bank that its check had been delivered to Brown, the deed of trust admitted to record, and that as soon as the deed was transcribed upon the record he would forward it.

Some few days thereafter the attorney went to the clerk's office, and instructed the clerk not to record the deed until he should direct him to do so. This he did at the instance of Brown, who complained of delay in the payment of the check, although the evidence shows that it was paid in New York without delay, four days after it was turned over to him. The deed remained in the clerk's office until the 23d of June following, when the attorney went to the clerk's office and ordered that it be recorded. The deputy clerk thereupon ran his pen through the words and figures, "March 13, 1891, " which had been indorsed on the deed at the time it was delivered to the clerk to be recorded, and wrote above them, "June 23, 1891, " and the deed was then transcribed in the proper deed book.

Brown, in the meantime, had applied to Lucretia J. Harnsberger for a loan of $1,500 upon the same lot of land. The title to it was examined by her attorney, and, no incumbrance being disclosed, she made the loan, taking a deed of trust on the said property to secure it, which deed was admitted to record on June 10, 1891.

Which of the said deeds has priority, is the first question to be decided, the property being insufficient to pay both of them.

The deed securing the bank being duly executed and properly acknowledged for record, it was the duty of the clerk, upon its delivery to him, on March 13, 1891, with the amount of tax and recording fee, forthwith to admit it to record. This he did, as already shown.

Its admission to record was an official act performed by him, and, having been performed, it was not within his power to undo it. He could no more recall his official act admitting it to record, when he was ordered by the attorney to withhold its recordation, than he could have expunged its recordation from the deed book if it had been actually transcribed. When the bank, through its attorney, delivered the deed to the clerk to be...