Emerson-Brantingham Implement Co. v. Rogers

• Decision Date: 06 December 1919
• Docket Number: No. 2563.,2563.
• Citation: 216 S.W. 994
• Parties: EMERSON-BRANTINGHAM IMPLEMENT CO. v. ROGERS et al.
• Court: Missouri Court of Appeals

216 S.W. 994

EMERSON-BRANTINGHAM IMPLEMENT CO. v. ROGERS et al.

No. 2563.

Springfield Court of Appeals. Missouri.

December 6, 1919.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Suit by the Emerson-Brantingham Implement Company against Frank V. Rogers and others. Judgment for plaintiff, and defendant James Spencer appeals. Affirmed.

Lamar, Lamar & Lamar, of Houston, for appellant.

Ellis, Cook & Dietrich, of Kansas City, for respondent Implement Co.

STURGIS, P. J.

This is a suit to enforce the lien of a chattel mortgage against certain personal property—a traction engine and threshing separator. The defendant (appellant) Spencer claims the property free from any mortgage lien as mesne purchaser without valid notice under the recording act relating to chattel mortgages. Spencer claims to have purchased from one Carroll, also a defendant, who had purchased from the mortgagor at a time when it is claimed the chattel mortgage sued on was void as against purchasers, because not properly recorded. Section 2861, R. S. 1909.

The facts as to the recording are that the mortgagee, promptly after its execution, filed the mortgage for record in the recorder's office and paid the proper fee. The recorder correctly recorded it in a book used to record miscellaneous conveyances affecting real estate, and not in the separate book used to record chattel mortgages, as required by section 10383, R. S. 1909. Nor was there any index made of such mortgage, as required by sections 10384 and 10387, R. S. 1909, which seem to be made applicable to chattel mortgages by section 2861, R. S. 1909, supra.

This was the condition of the records when defendant Carroll purchased (if at all) the property from the mortgagor. The records were, however, corrected in this respect before defendant Spencer purchased from Carroll. There can be no doubt, however, that if, by reason of the then defective recording, the purchaser, Carroll, acquired title to this property free from the mortgage lien, then he could convey such unincumbered title to Spencer, though at the time of such last conveyance the record of the mortgage was perfect and imparted notice.

The first question at issue, therefore, is as to Carroll taking title free from the mortgage by reason of the defective or erroneous record. We think appellant is correct in saying that it is immaterial whether Carroll had actual knowledge of this mortgage at the time of his purchase or not, if the same is void under the statute. The statute (section 2861) makes chattel mortgages not recorded, where the mortgagor retains possession, void as to third parties, and the purchaser of such mortgaged property takes a clear title, though he has actual knowledge of the unrecorded mortgage. Rawlings v. Bean, 80 Mo. 614; Bevans v. Bolton, 31 Mo. 437, 443; Stewart v. Asbury, 199 Mo. App. 126, 201 S. W. 949; Pearson v. Lafferty, 197 Mo. App. 123, 130, 193 S. W. 40; Pew v. Price, 251 Mo. 614, 623, 158 S. W. 338.

The defendant contends that this holds true where, as here, the mortgage is actually and correctly recorded, but such record is in a real estate book, instead of a chattel mortgage book. It is conceded that this recording in the wrong book is due solely to the dereliction of duty on the part of the recorder, as the mortgagee deposited it with him for proper record and paid the proper fees. In such a case it is claimed there is an irreconcilable conflict in the decisions in this state as to whether the damage due to the recorder's failure to do his duty in this respect must fall on the mortgagee, who has done his duty in filing the instrument for record and paying the proper fee, or on the purchaser, who has done his duty in searching the proper records. One line of cases springs from the ruling in Terrell v. Andrew County, 44 Mo. 309, where the recorder had erroneously recorded a mortgage for $400, making it appear on the record to be one for $200; and the court, speaking from the standpoint of the purchaser, held that the record of a conveyance only imparts notice of what is in such record, and said:

"It never was intended to impose on the purchaser the burden of * * * a long and laborious search to find out whether the recorder had faithfully performed his duty. The obligation of giving the notice rests upon the party holding the title. If he fails in his duty, he must suffer the consequences. If his duty is but imperfectly performed, he cannot claim all the advantages, and lay the fault at the door of an innocent purchaser."

The court there followed the literal reading of section 2810, which provided that the conveyances "recorded in the manner hereinbefore prescribed" shall impart notice of the contents. It is the record which imparts notice, and it devolves on the grantee to give such notice. This case is followed in White v. Lumber Co., 240 Mo. 13, 23, 139 S. W. 553, 556 (42 L. R. A. [N. S.] 151), where the court, speaking of a deed incorrectly copied on the record, said:

"Obviously one cannot be required to learn from the record facts which are not in the record. When the statute says that the filing of a deed for record imparts notice of its contents from and after the time of filing, it must mean that the deed itself imparts notice until copied into the record, and that, after it is so copied, the record, and the record only, imparts notice."

The other line of cases has its origin in Bishop v. Schneider, 46 Mo. 472, 2 Am. Rep. 533, where" the court refused to extend this doctrine to the failure of the recorder to properly index recorded conveyances, a duty imposed on him by section 10384, and held that a deed properly filed and copied in the records imparts notice of its contents notwithstanding the failure of the recorder to index it. The court there said:

"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."

It is pointed out that the statute that makes a record of a conveyance impart notice requires that the instrument be copied on the record and that the indexing of such record is imposed by another section of the statute and is not essential to the validity of such notice. This is apparent from this language of the opinion:

"The statute states, without reserve or qualification, that when an instrument is filed with the recorder and transcribed on the record, it shall be considered as recorded from the time it was delivered. From that time forth it is constructive notice of what was actually copied. A subsequent section, for the purpose of facilitating research, besides recording, devolves a separate, distinct, and independent duty upon the recorder, and in the event of noncompliance with that duty the party injured has his redress. The purchaser or grantee, when he has delivered his deed, and seen that it was correctly copied, has done all the law requires of him for his protection; and if any other person is injured by the fault of the recorder in not making the proper index, he must pursue his remedy against that officer for the injury."

So in Long v. Gorman, 100 Mo. App. 45, 79 S. W. 180, where a deed of trust conveying both land and chattels was recorded in the land book only, and no index as to the chattels was made, the court held same to impart notice and to be valid as to the chattels. When this court, in Seymore v. Dabbs, 170 Mo. App....