Prouty v. Marshall

• Decision Date: 11 October 1909
• Docket Number: 260
• Citation: 74 A. 550,225 Pa. 570
• Parties: Prouty v. Marshall, Appellant
• Court: Pennsylvania Supreme Court

74 A. 550

225 Pa. 570

Prouty v. Marshall, Appellant

No. 260

Supreme Court of Pennsylvania

October 11, 1909

Argued April 20, 1909

Appeal, No. 260, Jan. T., 1908, by defendants, from judgment of Superior Court, Oct. T., 1907, No. 75, affirming judgment of C.P. Clearfield Co., Sept. T., 1906, No. 115, on verdict for plaintiff in case of Agnes Prouty v. L. J. Marshall and A. A. La Rue, Terre-tenant. Reversed.

Appeal from judgment of the Superior Court. See 36 Pa.Super. 527.

The facts appear by the opinion of the Supreme Court, and from the report in 36 Pa.Super. 527.

Errors assigned were in affirming the judgment of the trial court.

The judgment of the Superior Court is reversed, as is also that of the court of common pleas, and it is ordered that judgment in favor of the terre-tenant be entered, non obstante veredicto.

A. L Cole, for appellants.

W. C Pentz, with him W. L. Calkins, for appellee.

Before FELL, BROWN, MESTREZAT, POTTER and STEWART, JJ.

OPINION

MR. JUSTICE POTTER:

The precise question here presented for determination is whether, when a mortgage is defectively recorded, and wrongly indexed, by inserting a wrong initial, in entering the name of the mortgagor, the correct name being entirely omitted from the record, a purchaser of the mortgaged premises, without actual notice, is chargeable with notice of such mortgage, and as terre-tenant of the premises, subject to its enforcement against him.

It appears from the record, that on January 20, 1900, L. J. Marshall executed and delivered to Agnes Prouty a purchase money mortgage, secured upon premises in Dubois borough, Clearfield county. On February 6, 1900, the mortgage was delivered for record by the mortgagee to the recorder of deeds for Clearfield county, and the fee for recording paid to him. The recorder subsequently returned the mortgage to the mortgagee, with his certificate indorsed upon it, certifying that it had been recorded.

The recorder, however, had not recorded the mortgage as executed by L. J. Marshall, and had not indexed it under the name of L. J. Marshall. But upon the record the name of the mortgagor, wherever it appeared, was written "S. J. Marshall," and the only name entered on the indexes was that of "S. J. Marshall."

On August 25, 1903, A. A. La Rue purchased the mortgaged premises and the same were conveyed to him by Marshall. La Rue had no actual notice of the mortgage to Prouty. On July 10, 1906, a scire facias was issued on the mortgage against Marshall as mortgagor and La Rue as terre-tenant, to recover a balance claimed to be due the mortgagee. La Rue, the terre-tenant, defended upon the ground that neither the mortgage books nor the mortgage indexes in the recorder's office showed any mortgage executed by L. J. Marshall or contained any record of the mortgage sued on.

Upon the trial in the court of common pleas, the trial judge directed a verdict for the plaintiff, reserving a point requesting binding instructions for the defendants. The court subsequently overruled a motion for judgment on the reserved point, non obstante veredicto, and entered judgment on the verdict. The terre-tenant appealed to the Superior Court, which affirmed the judgment of the court below. The present appeal is by the terre-tenant from the decree of the Superior Court, which is assigned for error.

An examination of the cases cited in the opinion of the Superior Court, shows that none of them presented facts similar to those in the case at bar, and in none of them was the exact question here presented, considered. Thus in Speer v. Evans, 47 Pa. 141, the case turned upon the question of actual notice, and it was held that actual notice is equivalent to the constructive notice given by the mortgage index. In Brooke's Appeal, 64 Pa. 127, the point decided was, that, under the Act of May 28, 1775, 1 Sm. L. 94, a mortgage has priority of lien from the moment when it is left with the recorder for record, not from the time when it is actually recorded. In Schell v. Stein, 76 Pa. 398, the instrument was properly recorded, but not indexed, in a general index. It was held that as the law then stood, the recorder of deeds was not required by the Act of March 29, 1827, P.L. 154, to keep a general index of all the deed and mortgage books in his office, but only to keep an index for each book. The law in this respect has been changed by the Act of March 18, 1875, P.L. 32, and general indexes are now required to be kept, and failure to index renders the record defective. The case of Wood's and Brown's Appeal, 82 Pa. 116, also arose before the passage of the act of 1875, and it held, that the entry of the mortgage in the proper book gave it a lien, which failure to index would not disturb. The case of Glading v. Frick, 88 Pa. 460, also arose before the act of 1875. It was there decided that, "Where certain instruments of writing are not required by law to be recorded in a particular book, they may be recorded in any book kept by the recorder; and a building contract is valid although recorded in a deed book." In Wyoming National Bank's Appeal, 11 W.N.C. 567, the syllabus reads: "Where a mortgage is left for record and actually recorded, its lien will not be postponed to a subsequent judgment, by reason of the fact that the recorder has failed to enter the same on the book of entries, or upon the index." But this court was careful to point out (p. 568) that, "The mortgage in question was left at the recorder's office in 1873, prior to the passage of the act of March 18, 1875, so that it is not necessary to inquire whether the failure to index deprived the mortgagee of his security." Clader v. Thomas, 89 Pa. 343, and Paige v. Wheeler, 92 Pa. 282, enunciate no new principle, and both cases arose prior to the act of 1875. Stockwell v. McHenry, 107 Pa. 237, does not bear directly upon the question raised by the present appeal. As pointed out by the Superior Court, the case related to an instrument recorded in 1865, and therefore the indexing act of 1875 did not apply. It was expressly held (p. 244) that the act of 1875 was not retroactive. In the case of Farabee v. McKerrihan, 172 Pa. 234, the mortgage was actually recorded and indexed, but in the deed book and deed index, and not in the mortgage book and mortgage index. It was held that as recording in the deed book, and indexing in the deed index placed the incumbrance in the line of title of the mortgagor, where it could be discovered with the same ease and certainty as if it had been placed in the mortgage book index, by anyone examining the title, it was sufficient notice to preserve the lien.

The great object to be attained, by recording and indexing an instrument affecting the title to real estate, is to give notice of the incumbrance. This principle seems to have been overlooked in the present case, for in reaching a conclusion both the Superior Court and the trial court apparently gave little heed to the fact that the prime purpose of the law, in providing for the recording of deeds and mortgages, is to give notice to intending purchasers, or to others who may be interested, that the conveyance or incumbrance stands in the line of title to the property which it describes. The object of the recording acts is to give notice to the world of that which is spread upon the record. Therefore, the record is constructive notice to all persons, without regard to the fact of actual notice. Under our system, the record is open to everyone who desires to ascertain the condition of the title to any piece of real estate, in so far as its ownership is concerned, or as to incumbrances thereon, and everyone is bound to take notice of what the record shows, and searchers may rely upon the record as it stands. If this were not so, no one would be safe in purchasing...