Rising v. Dickinson

• Decision Date: 01 May 1909
• Citation: 18 N.D. 478,121 N.W. 616
• Parties: RISING et al. v. DICKINSON.
• Court: North Dakota Supreme Court

18 N.D. 478

121 N.W. 616

RISING et al.

v.DICKINSON.

Supreme Court of North Dakota.

May 1, 1909.

Syllabus by the Court.

Under sections 2452, 2453, Rev. Codes 1905, it is made the duty of the register of deeds of each county to keep a numerical index in his office in which shall be noted, opposite the description of each tract, the volume and page of each mortgage or other instrument affecting the title thereto. Held, that defendant's failure for over two months after a mortgage was duly recorded to note the same in such numerical index is negligence per se, rendering him liable to one who, in reliance on such index, purchases the property, and sustains damage as the necessary and proximate result of such official neglect.

It is essential to a recovery for such negligence that plaintiff be free from contributory negligence, but it was not contributory negligence on plaintiff's part in failing to examine the grantor and grantee index wherein such mortgage was noted.

The register of deeds is a ministerial officer, and as such is liable at common law, in the absence of an express statute, to an action for damages caused by his failure or neglect to perform the duties of his office, or for their negligent or illegal performance.

The action was tried on the theory, and it is, in effect, conceded that it was essential to a recovery, however, that plaintiff should prove that one S., the mortgagor, and the person from whom he purchased the premises, and who gave him a warranty deed containing a covenant against incumbrances, was insolvent, and hence unable to pay the mortgage indebtedness or to respond in damages for the breach of her covenant. Evidence examined, and held insufficient, for reasons stated in the opinion, to establish such fact.

Appeal from District Court, Benson County; Jno. F. Cowan, Judge.

Action by F. C. Rising and another against George Dickinson. From a judgment for plaintiff Rising and an order denying a new trial, defendant appeals. Reversed.Lindstrom & Sinness and Burke & Middaugh, for appellant. McClory & Barnett, for respondent.

FISK, J.

Plaintiff Rising recovered a judgment in the court below against defendant for damages for the alleged negligence of the latter, who was register of deeds of Benson county, in failing and neglecting to note in the numerical index a certain mortgage filed and recorded in his office on September 20, 1901.

The facts necessary to a correct understanding of the law points involved are as follows: On September 20, 1901, one Julia Solvey, who was the owner of the real property described in the complaint, gave a mortgage thereon to the Advance Thresher Company. Such mortgage, as above stated, was filed in defendant's office on September 20th, and recorded in Book 18 of Mortgages at page 445, and thereafter entered in the grantor and grantee's index of mortgages, but the same was not noted on the numerical index of mortgages until after December 5th following. On the latter date plaintiff Rising purchased the premises covered by such mortgage from Julia Solvey, taking from her a warranty deed of the premises with the usual covenant warranting the same to be free from all incumbrances, except a mortgage for $400 and one for $60 in favor of other parties. The proof shows that prior to such purchase the plaintiff Rising examined the reception book required to be kept by defendant as such register of deeds, covering entries for the period of about two months immediately prior thereto, and also the numerical index and failed to find the mortgage to the Advance Thresher Company in either of such records, and he claims to have made such purchase without any notice of any kind of the existence of such last-named mortgage. Subsequently, and prior to the commencement of this action, the holder of the Advance Thresher Company mortgage foreclosed the same by action which resulted in a judgment decreeing that there was due thereon the sum of $492.30, and directing a sale of the premises to satisfy such sum. Plaintiff Rising appeared as an intervener in such foreclosure proceedings, but, failing in his defense, he thereafter was required to and did pay to protect his title the sum aforesaid, which is one of the items of damage claimed to have been suffered by him by reason of defendant's said negligence. At the conclusion of the trial both parties moved for a directed verdict, whereupon the learned trial court excused the jury, and thereafter findings of fact and conclusions of law were made and judgment ordered in favor of the plaintiff F. C. Rising and against the defendant for $492.30, with interest, together with the costs and disbursements of the action. A motion for a new trial was thereafter made and denied, and this appeal is both from the judgment and order aforesaid.

Among other things, appellant contends, in effect, that plaintiff was himself guilty of contributory negligence barring a recovery, because he neglected to make a proper and diligent search of the records, and that, if he had done so, he would have discovered the Advance Thresher Company mortgage. It is a conceded fact that this mortgage was duly noted both in the reception book and the grantor and grantee index, and that the same was recorded in mortgage book 18 on page 445, but was not noted in the numerical index, and that plaintiff Rising merely examined the reception book and the latter index. It is no doubt true that plaintiff by searching a little farther back in the reception book, or by examining the grantor and grantee index, would have discovered such mortgage, but we think he was not bound at his peril to do so. The law required defendant to keep a numerical or tract index in which should be noted opposite the description of each tract the volume and page where each mortgage or other instrument affecting the same is recorded, and the plaintiff had a right to assume that defe...