Deming v. Miles
| Decision Date | 23 November 1892 |
| Citation | 53 N.W. 665,35 Neb. 739 |
| Parties | ERASTUS A. DEMING, APPELLEE, v. WILLIAM H. MILES ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Frontier county. Heard below before COCHRAN, J.
Reversed and remanded with instructions.
J. L White, and A. S. Sands, for appellants.
R. M Snavely, contra.
This action was brought in the court below by appellee against William H. Miles and Nellie E. Miles, to foreclose a mortgage executed by them upon the west half of the southeast quarter and the east half of the southwest quarter of section 1, town 7 north, of range 28 west of the sixth principal meridian. The district court permitted Laura Miles, the minor child of the said William H. Miles by a former wife to intervene in the action. A guardian ad litem was appointed for the minor, who filed an answer setting up therein that at the time of the execution of the mortgage, the said Laura Miles was the sole owner in fee-simple of the land in controversy having acquired title thereto by inheritance from her mother; that said mortgage conveyed no interest in the lands therein described, and is a cloud upon her title to said premises. The answer closes with prayer that the mortgage be canceled and that the title to the real estate be quieted in said minor. A reply was filed by the plaintiff. Upon the trial the court found that at the time of the execution of the mortgage, said William H. Miles was the owner in fee simple of said real estate; that the mortgage was valid and binding, and a decree of foreclosure and sale was entered for $ 628.09. For and on behalf of the said minor this appeal is prosecuted.
The record before us shows that on the 11th day of January, 1879, the defendant William H. Miles was the owner in fee-simple of the real estate covered by the mortgage, and on said day, by deed of general warranty, he conveyed the same to one Laura C. Murphy, which deed appellant contends was duly recorded on the 4th day of March, 1879; that on the 13th day of said month the said William H. Miles was married to said Laura C. Murphy; that on the 22d day of January, 1880, the appellant Laura Miles was born as the lawful issue of said marriage, and that on the 27th day of the same month said Laura C. died intestate, leaving surviving her, as her sole and only heir, the said minor. Subsequently, the said William H. Miles was married to one Nellie E. Murphy, and they, on the 16th day of August, 1883, executed, acknowledged, and delivered the mortgage in suit to secure a loan of $ 500, which mortgage was recorded on the 18th day of September, 1883, in the mortgage records of Frontier county.
Appellant contends that the said deed of January 11, 1879, from Miles to Murphy, was duly filed and recorded on the 4th day of March, 1879, in the office of the county clerk of the county where the lands therein described are situated. It is undisputed that in the early part of the year 1883 the court house and records of Frontier county were entirely destroyed by fire. Subsequently, but prior to the making and recording of the mortgage for the foreclosure of which this action was instituted, the records with reference to the lands covered by said mortgage were so restored as to show that the title to the lands stood in the name of William H. Miles. The said deed from Miles to Laura C. Murphy at that time did not appear of record, and appellee insists it was not established that it was ever on record prior to the making of the mortgage. Upon the trial the original deed was produced and put in evidence with the indorsements thereon. Upon the back of the instrument is to be found the following certificate:
It was also proven by Mr. Morgan, who was the county clerk of Frontier county in 1879, that the above certificate is in his handwriting and was made while he was such clerk. Mr. Morgan further testified, in answer to the question, "You may state whether you received that deed for record at the time stated, and whether you spread it at large upon the records of the county?" that
Although Mr. Morgan's testimony does not show that the deed was in fact spread upon the deed records of the county, the fact of its being delivered to the county clerk for such purpose clearly appears from the testimony of the witness as well as by the indorsement upon the back of the instrument.
By section 15 of chapter 73 of the Compiled Statutes, entitled "Real Estate," it is provided that "every deed entitled by law to be recorded shall be recorded in the order and as of the time when the same shall be delivered to the clerk for that purpose, and shall be considered recorded from the time of such delivery." Whether the deed in question was in fact recorded is quite immaterial so far as the rights of appellant are concerned. Where a party files a deed or mortgage, properly executed and acknowledged, for record with the proper officer he has complied with the law, and he is not bound to see that the officer performs his duty by actually recording it, nor will the law hold him responsible to the parties for the omission or neglect of the officer to discharge his duty. The proper filing of the deed for record operated as constructive notice to all subsequent purchasers and mortgagees. (Perkins v. Strong, 22 Neb. 725, 36 N.W. 292.)
We are however, satisfied from other testimony contained in the bill of exceptions that the deed was actually recorded. It appears from the testimony of W. L. McClay, who was the county clerk of Frontier county during the year 1882, that between the 15th and 25th days of December of that year, at the request of Burton & Harvey, of Orleans, he examined the records of...
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