Oconto Co. v. Jerrard

• Decision Date: 31 January 1879
• Parties: OCONTO CO. v. JERRARD ET AL.
• Court: Wisconsin Supreme Court

46 Wis. 317

50 N.W. 591

OCONTO CO.

v.JERRARD ET AL.¹

Supreme Court of Wisconsin.

Jan. Term, 1879.

Appeal from circuit court, Shawano county.

Action of ejectment by the Oconto Company against Jerrard and another. Defendants claimed under a tax-deed, which they alleged had been recorded, and the controversy was whether the deed was actually recorded, and, if so, whether plaintiff's action was barred by the statute. There was a verdict for plaintiff, and from a judgment thereon defendants appeal. Reversed.George H. Myers and B. J. Stevens, for appellants.

Hastings & Greene, for respondent.

RYAN, C. J.

Several minor questions were discussed on this appeal, but the two principal questions raised dispose of the case, and these only will be considered. For three years after the record or attempt to record the tax-deed, if there were any actual possession of the premises, it was in the appellants; and the only substantial questions are whether and when the tax-deed can be considered as recorded, and whether the statute of limitation is a bar to the objections raised against the deed.

1. The practice imputed to the office of register of deeds in this case, said upon the argument to prevail in several counties, is but another instance of the willful disregard by town and county officers of the statutes creating their offices. This is a grave evil, for which the safety of public and private interests requires peremptory redress. In the mean time it is the duty of courts to save such interests as they can from the disregard of duty by any of these classes of officers. It was said on the argument that in upholding title by tax-deed under the statute of limitation the court can indulge in no presumption, but must hold the party to the very letter of the statute. That may be granted; but the statute of registry does not admit, and the court cannot favor, any distinction between the registering of a tax-deed and the registering of any other deed. What is a sufficient registry of one deed is a sufficient registry of every deed. A doubt was improvidently thrown upon this position by DIXON, C. J., in Insurance Co. v. Scales. 27 Wis. 640; but the remark was wholly foreign to the case, and has no foundation in the statute. Various statutes mention the record of deeds. One statute only defines what shall constitute a record, and that applies to all instruments proper to be recorded, without exception or discrimination. The statute requires each register of deeds to indorse on every instrument received for record the time when it is received, and the volume and page in which it is recorded. It requires him also to keep a general index of eight columns. Six only of these eight columns affect the registry of the instrument. These are to state, respectively, the time of reception, the name of the grantor, the name of the grantee, the description of the land, the name of the instrument, and the volume and page where recorded; and the register is required, immediately upon the receipt of each instrument, to enter these details in the appropriate columns, declaring that thereupon the instrument shall be considered recorded. Rev. St. 1858, c. 13, §§ 141-143. Practically there must always occur some brief interval between the receipt of the instrument and the noting on its back, and the filling of the columns stating the volumes and page where it is recorded, but the theory of the statute appears to be that the actual record of the instrument immediately follows its reception, and that all these duties are, as far as possible, simultaneous. In large offices the delay in stating the volume and page of the record may be often more than nominal, going beyond the day, or perhaps several days. But the other entries affecting the record should be immediately made. They give all the information necessary to the constructive notice of the instrument, which can be given without the record of the instrument at large; and, until the record at large be made, the instrument itself remains to supply its place; and when the record at large is necessarily delayed, it relates back to the time of the entries in the general index, and so satisfies the statute. Pringle v. Dunn, 37 Wis. 449. But all the details of registry are dealt with by the statute as parts of one continuous, contemporaneous process. The register is also required to keep a double, alphabetical index to each volume of records, on one page of the names of grantors, and on another page of the names of grantees, in each instrument, with reference to the page of the record. Section 144.

The evidence of the register, who was examined on the trial, is not very clear. He testifies that no “reception” index has ever been kept in his office. He appears to mean the general index of the statute. He states that two index-books have been kept,--one of grantors, and one of grantees. As far as his testimony can be understood, these two books are made to fill the double office of the general index and of the alphabetical index of each volume, required by the statute. This saving of labor, if the testimony is properly understood, is simply a disregard of the statute, and a violation of the register's oath of office. But the headings of the columns in the index-book of grantors appear to be nearly or quite identical with the headings of the general index of the statute. This index gives the time of reception, the name of the grantor, the name of the grantee, the description of the land, the name of the instrument, and the volume and page where recorded, as well as the proper headings of the other two columns. The index-book of grantees appears to contain the same columns with the same headings, reversing the order of grantors and grantees. Both appear to be alphabetical, the one following the names of grantors, and the other of grantees.

The violation of the statute, therefore, appears to be only in the omission of the proper index to each volume. The statute does not make this index necessary to the record of an instrument, and it has never been held by this court essential to the constructive notice of the record. On the contrary, the proper entries of an instrument in the general index have been uniformly held to be constructive notice as far as they go, and constructive notice of the whole instrument until recorded in extenso. Shove v. Larsen, 22 Wis. 142;Hay v. Hill, 24 Wis. 235; Pringle v. Dunn, supra. This volume index appears to be a convenience which it is the statutory duty of the register to keep. But the failure to keep it does not, in the terms of the statute or in reason, affect the registry of an instrument or its constructive notice. And if the register meant to testify that the general index of the statute had not been kept in his office he is contradicted by the book which he produced, for the index of grantors substantially complies with the statutory requisites of the general index; for, whatever the register may have intended, it is, in contemplation of law, the general index of the statute. The entry of the tax-deed in question, however, in the column of this index headed “Description of Land,” is defective. It describes no land. The entry is simply a direction to see the record of the deed in full, referring to the volume and page. This is, of course, a failure to comply with the statute, to save the register the trouble of earning his fees of office. But the question remains, whether and how far it can defeat the record of the deed.

In Shove v. Larsen, supra, it was held that a correct description of the land in the general index operated to cure a defective description in the actual record of the deed at large. On the same principle, the reference to the deed in this case, when recorded, would cure the want of description in the index. Certum est quod certum reddi potest. The statutory direction is substantially complied with by a certain reference to another book in the same office. No sane man, searching the general index for instruments affecting any land, would disregard such a reference, and it would be a severe technicality to avoid the registration of a deed for such a failure in duty of the register, with such present and easy means, given on the face of the index, of obtaining the information which the index itself should have given. The cruelty of such technicality would be apparent in the case of any instrument except a tax-deed; and, as already seen, what can impair the registry of a tax-deed impairs the registry of any deed. A failure of the register to make the proper entries in the general index immediately on the receipt of the instrument does not defeat the registry, but only delays it until they be made; and the court feels compelled to hold that the registry of the tax-deed was complete to give constructive notice to all the world when it was recorded in extenso, and the reference to the record made in the general index. And the only remaining difficulty on this point is the question of time. It has already been seen that, in contemplation of law, all the details of registry constitute one continuous, contemporaneous process; and this raises a presumption, until it be rebutted by evidence, that all the entries in this case were made, and the deed recorded in extenso, on the day of its receipt by the register. There is a general presumption that official duty is duly performed, until the contrary appears. Omnia præsumuntur rite acta donec probetur in contrarium. And the record here furnishes evidence of its own to support the presumption. The deed is recorded at length in the volume and page referred to in the index, and there is a memorandum at the foot of the record that the deed was received for record at the time mentioned in the index, and there recorded. Indeed, the very hardihood of the...