Ritchie v. Griffiths

• Decision Date: 19 December 1890
• Citation: 1 Wash. 429,25 P. 341
• Parties: RITCHIE v. GRIFFITHS ET AL.
• Court: Washington Supreme Court

25 P. 341

1 Wash. 429

RITCHIE v. GRIFFITHS ET AL.

Supreme Court of Washington

December 19, 1890

Appeal from superior court, Clallam county; MORRIS B. SACHS, Judge.

Bush & Noyes, for appellant.

Johnson & Moody, for appellees.

DUNBAR J.

The first question to be decided in the consideration of this case is, does a grantee, who deposits his deed for record in the auditor's office, where it is received by that officer, discharge his duty of notice to the public so that his title cannot be prejudiced through the fault or negligence of the auditor in not recording said deed, in accordance with the requirements of the registry laws? If it is concluded that he does so discharge his duty, and that constructive notice is thus given, it will be conclusive of this case; and it will not be necessary to enter into the question of whether or not the index is an essential part of the record. It will be seen that important questions arise here, affecting valuable rights, and that, whichever way they are decided, a hardship will be imposed upon an innocent party. In one instance, the first grantee relies on the officer, who is a creature of the law, to do his duty; and in the other, the purchaser, reposing faith and confidence in the correctness of the record, acts upon it. Shall the deed prevail, or the record of it? On the first question there is a somewhat perplexing conflict of authority; some courts holding that a deed is recorded, in contemplation of law when it is entitled to registration, and is deposited with the recorder in his office for that purpose, and if, through any fraud or neglect or mistake of the recording officer, the proper notice is not conveyed to a subsequent purchaser or incumbrancer, that the misfortune will fall upon the subsequent purchaser; while other courts hold the opposite doctrine, that the onus is on the grantee, who deposits his deed with the recorder, to see that every step is taken, and every act done, that is prescribed by the registry laws. For collated authorities on this question, see Mangold v. Barlow, 61 Miss. 597; and Wade, Notice, pp. 70-73. In many of the cases, however, that are cited as holding the doctrine claimed by plaintiff, the courts, on a careful investigation, are found to have based their opinions on statutes materially different from ours; and others, on the peculiar circumstances of the case. The enunciation by the supreme court of the United States, in Lytle v. State, 9 How. 315, that "it is a well-established fact that where an individual in the prosecution of a right does everything which the law requires him to do, and he fails to obtain his right, by the misconduct or neglect of a public officer, the law will protect him," has been largely relied upon by the plaintiff, and has been quoted by a majority of the cases reported, which hold to plaintiff's view, but in none of these cases, that we have seen, have the circumstances of that case, which called forth the opinion, been reported. To get the full scope and meaning of this expression, we must not regard it as a segregated proposition, independent of the case under consideration, and applicable to all cases; for judges, in rendering opinions, use expressions with reference to the application of principles involved in the case under consideration, and the language employed must be construed, and its meaning gathered, from an examination of the questions involved, the circumstances surrounding, and the argument that leads up to the utterance, or, in homely phrase, it is necessary to know what the court was talking about. Of course, there are certain underlying or basic principles of law, from the true deductions of which are constructed legal maxims, which may be stated as independent propositions, and which will admit of no modification; but the examination of the case cited shows that the quoted utterance of the eminent judge has no application to the principles involved in, and the circumstances surrounding, this case. That was a case where a pre-emption claimant tried, through a succession of years, to obtain title to some fractional subdivisions of land, and was prevented, not by any negligence of the register and receiver in the land-office, but on account of their construction of the law, and circular instructions from the general land-office. Afterwards, by act of congress granting a thousand acres of land to the state of Arkansas, for the purpose of building a court-house, the governor selected and sold the land in controversy to one Russell, under whom the defendants held. Of course, many interesting questions were raised during the trial of this case; but the particular circumstances of the case, which called out the quoted utterance, and the intended applications of the principles therein enunciated, can probably be gathered from the balance of the paragraph following the quotation, which is as follows: "In this case the pre-emption right of Cloyes having been proved, and an offer to pay the money for the land claimed by him, under the act of 1830, nothing more could be done by him, and nothing more could be required of him under that act; and, subsequently, when he paid the money to the receiver, under subsequent acts, the surveys being returned, he could do nothing more than to offer to enter the fractions, which the register would not permit him to do." Thus it will be seen that none of the principles involved in the case at bar were involved in that case, and it shows the misleading tendency of quoting detached sentences from the opinions of courts. In that case, the action of Cloyes was at every step a matter of public record, and of official report, and the whole circumstances of the case show that the defendants had actual notice of his claim, though some of them denied such a notice in the answer, while others admitted that they had heard of his claim, but believed it to be fraudulent; but the court spoke with reference to the acts of an officer acting in a judicial capacity, and deciding questions of law,-decisions and acts over which the plaintiff could not possibly exercise any supervision or control. It will certainly not be hard to see that a very different rule might obtain, when the act required by the applicant was purely ministerial, and which he had a right to see was done in the manner prescribed by law. It is doubtful if the judge who rendered that opinion would have concluded that the grantee "had done everything which the law required him to do," when he contented himself with simply handing his deed to the auditor, without exhibiting any further concern about it. In our judgment, the scope and meaning of this opinion has been entirely misconstrued, when applied to this character of cases.

In Mangold v. Barlow, 61 Miss. 593, and one of the best argued cases sustaining the doctrine that the onus is on the purchaser, and a case which is also largely quoted, the court bases its opinion on the peculiar language of the Mississippi statute, which declares that certain instruments "shall be void, as to all creditors and subsequent purchasers for valuable consideration, without notice, unless they shall be acknowledged or proved, and lodged with the clerk of the chancery court of the proper county, to be recorded." Here the statute seems, by express terms, to make the lodging of the properly proved instrument with the clerk the proof of constructive notice. And thus it is with a great majority of cases cited in favor of plaintiff's theory. A close examination of them will show that the opinion is based upon some express language of the statute, which would justify the conclusion reached; but, on the general proposition, however, the decided weight of authority seems to be in favor of the view that the record can be relied upon by subsequent purchasers, without actual notice, and that constructive notice cannot be given by an attempt to comply with the registry laws. And this view we think is supported by right reasoning, and founded on principles of equity and justice.

As is most admirably stated by Mr. Jones, in his work on Mortgages "Registry laws are intended to furnish the best and most easily accessible evidence of the title to real estate, to the end that those designing to purchase may be fully informed of instruments of prior date, affecting the subject of their contemplated purchase; and also that, having availed themselves of this means of knowledge, they may rest there, and purchase in absolute security, provided that they do so without knowledge, information, or such suggestion from other facts as would be gross negligence to ignore of some antecedent conveyance or equitable claim." The recorder cannot be considered the agent of the purchaser, as is asserted by some of the authorities. It is a much fairer construction of the law, and more in harmony with the law of agency generally, to consider him the agent of the party who has the business transaction with him, who gets him to do the work. And to him he should be responsible for any damage flowing from his refusal or neglect to do the work according to the contract between them; and that contract is, either express or implied, that the instrument shall be recorded according to law. That is what the grantee pays him to do, and he must see to it that his work is done right, or accept the consequences as between himself and third parties, who are misled. It cannot be said that the purchaser is alone subject to damages from the non-recording of the instrument. The very object in having it recorded is to give constructive notice to innocent purchasers, and to protect the grantee's title against said purchasers. The law imposes upon him the duty of having his deed recorded. It is not the attempt to record a deed that the law requires;...