Bishop v. Schneider

• Decision Date: 31 October 1870
• Parties: A. W. BISHOP, Defendant in Error, v. JULIUS F. SCHNEIDER et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

46 Mo. 472

A. W. BISHOP, Defendant in Error,

v.JULIUS F. SCHNEIDER et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1870.

Error to Second District Court.

H. F. Ahlvers, for plaintiffs in error

I. The land lying in Jefferson county, and the mortgage seeming to have been acknowledged before a justice of the peace of Franklin county, the same was not acknowledged according to law, was therefore not entitled to be recorded, and hence could not be read as a recorded deed against Schneider. (Meyer v. Wiltberger, 2 Ga. 20; Schulz v. Moore, 1 McLean, 520; Heister v. Fortner, 2 Binn. 40; Smith v. Mounts, 1 Mo. 714.)

II. Even if the mortgage had been duly and properly acknowledged as proven, it could still not be read in evidence as a recorded deed, as it was not indexed, and therefore was not recorded as the law requires. The indexing is a part of the record, and absolutely necessary to convey notice to subsequent purchasers. (Gen. Stat. 1865, p. 160, § 14.) In this case the recorder was guilty of neglect in not indexing the mortgage, and he would be responsible in an action to the mortgagee in said mortgage who filed the deed for record, but not to Schneider, as he is no party to the mortgage. As to whom the recorder is liable to for neglect, and as to the effect of not indexing deeds, see Barry v. McCarty, 11 Iowa, 510; Noyes v. Howe, 12 Iowa, 570; 44 Mo. 309; Sawyer v. Adams, 8 Verm. 172.

Thomas & Thomas, for defendant in error.

I. The mortgage imparted notice of its contents to subsequent purchasers and mortgagees. (R. C. 1855, p. 731, § 46, copied into Gen. Stat. 1865; Lemay v. Poupenez, 35 Mo. 76.)

II. The deed, although not indexed, imparts notice to subsequent purchasers and mortgagees. (R. C. 1855, p. 731, § 46.) The holder of the deed is not bound to examine the books of the recorder to ascertain whether his deed has been properly indexed. If he is bound to see that it is indexed, then no deed could safely be sent and returned by mail. Schneider's remedy is--if he has been injured, which does not appear from the record in this case--to proceed against the recorder on his official bond. The record in this case does not show the appellant to be entitled to the relief he demands. The answer of Schneider does not allege that he paid anything for the title he got, nor does the evidence prove it. (See Halsa v. Halsa, 8 Mo. 313, and cases cited.)

WAGNER, Judge, delivered the opinion of the court.

In this case the record shows that one Reynolds, on the 2d day of January, 1860, executed to Robert E. Warren his promissory note for $852.90, and that, subsequently, to secure the payment of the same, he made and delivered to Warren a mortgage on certain real estate lying in Jefferson county. The mortgage was duly filed for record in the recorder's office of Jefferson county, and recorded, but no index thereof was made. On the 1st of May, 1869, Warren assigned the note and mortgage to Bishop, the plaintiff in this suit.

Reynolds, by deed dated March 17, 1864, and properly recorded, conveyed what interest he possessed in the land to one Ackerman, and Ackerman conveyed the same by deed of trust to secure a certain indebtedness. The trustee, in pursuance of the trust, advertised and sold the land on the 14th day of December, 1867, and Schneider, the defendant, became the purchaser. It is not shown that Schneider had any other notice of the mortgage encumbrance than what was imparted by the record.

The mortgage was defectively acknowledged, and on this proceeding being instituted for foreclosure, the suit was resisted mainly on two grounds: first, that the record imparted no notice of the contents of the mortgage; secondly, that the instrument was not recorded within the meaning of the statute.

The Circuit Court overruled the objections of the defendant and gave judgment for the plaintiff. This judgment was affirmed in the District Court, and the defendant has sued out his writ of error and brought the cause here for review.

I will first examine the point in reference to the effect of the failure of the clerk to properly index the mortgage. It is contended that, because the mortgage was not indexed by the recorder, it was not recorded according to law, and therefore failed to give even constructive notice to a subsequent purchaser. This necessarily raises the question whether the index is a part of the record, and whether, when the officer has failed to comply with his duty in this regard, although the grantee has done everything that was required of him by law, the recording shall be deemed a nullity and of no avail. In the case here the mortgage was duly filed and regularly recorded, and a certificate indorsed on the instrument stating that fact. The grantee then relied on the assurance that the recorder had discharged his whole duty, and that he would be protected in his rights. But, by the neglect and carelessness of that officer, no index to the deed was made, as the statute directs, and hence persons searching the records would be apt to be misled as to any existing encumbrance. Upon whom the primary loss must fall in such a case depends upon the construction of the statute in reference to the registration of conveyances.

All these proceedings were had whilst the statutes of 1855 were in force, though the same provisions are to be found in the subsequent revision of 1865.

By section 13, p. 1314, R. C. 1855, it is provided that the recorder shall record, without delay, every deed, mortgage, conveyance, deed of trust, bond, commission, or other writing delivered to him for record, with the acknowledgments, proofs, and certificates written on or under the same, with the plats, surveys, schedules, and other papers therein referred to and thereto annexed, in order of time, when the same shall have been delivered for record, by writing them, word for word, in a fair hand, noting at the foot of such records all interlineations and erasures and words visibly written on erasures, and noting at the foot of the record the day of the month and year when the instrument so recorded was delivered to him or brought to his office for record; and the same shall be considered as recorded from the time it was so delivered.

It is provided by section 14 that the recorder shall certify, on or under such deed, mortgage, conveyance, deed of trust, bond, commission, or other instrument so recorded, the day, month, and year when he received it, and the book and page or pages of the book in which it is recorded; and, when recorded, deliver it to the party or his order.

Section 15 declares that the recorder shall keep in his office a well-bound book, and make and enter therein an index, direct and inverted, to all the books of record wherein deeds, mortgages, or other writing, concerning real estate or deeds of trust, are recorded, distinguishing the books and pages in which every such deed or writing is recorded.

Section 16 prescribes that the index shall contain, in alphabetical order, the names of the several grantors and grantees, etc. Sections 17 and 18, in like manner, require that the clerk shall provide books for indexing marriage contracts and commissions and office bonds. Section 19 imposes a penalty on the recorder for refusing or neglecting to perform his duty, and further says that if he neglects or refuses to provide and keep in his office such an index as is required by the act, he shall pay to the party aggrieved double the damages which may be occasioned thereby, to be recovered by civil action on the official bond of the recorder. The grantee has no control over the official acts of the recorder, and when he has delivered to the officer his deed, he has performed all the duty within his power; and when the deed is copied on the record, the statute says it shall be considered as recorded from the time it was delivered. The subsequent sections are distinct and independent provisions respecting indexing, and do not form a part of the law as to recording. They impose a duty on the officer, and denounce a liability for a neglect or refusal to obey that duty, but they do not make what has previously been done void.

In the case of Terrell et al. v. Andrew County, 44 Mo. 309, the mortgage was given for four hundred dollars, and the recorder, 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 for the latter sum; and it was decided that notice of the contents of instruments was imparted after filing only where they were correctly spread upon the record, and not otherwise. And in conformity with that view the subsequent purchaser had notice of a subsisting encumbrance for two hundred dollars, and no more.

So, in Beckman v. Frost, 18 Johns. 544, the registry of a mortgage of $3,000 as a mortgage of $300 was considered as notice only of an encumbrance for the sum stated in the record. In such cases the purchaser may be wholly free from fault or negligence. He may deliver his deed to the proper officer, and it may be returned to him as recorded, but, through accident or design, it is not truly recorded. Subsequent purchasers or creditors, having no other means of knowing of the contents of the deed than by resorting to the records, can not be considered as having notice of any other conveyance than such as appeared on the record.

Where a town clerk copied a deed delivered to him for record on a book which had ceased to be a book for recording for a number of years, and, for the purpose of concealment and fraud, did not insert the names in the index or alphabet, it was held that the deed was not recorded, and was no notice to after-purchasers. (Sawyer v. Adams, 8 Verm. 172.)

In the case just mentioned, the mortgage, which was made by the clerk as grantor, was copied on the back leaf of a volume of records in which there had been no deeds recorded...