Sinclair v. Slawson

• Decision Date: 23 June 1880
• Court: Michigan Supreme Court
• Parties: SINCLAIR v. SLAWSON and others.

6 N.W. 207

44 Mich. 123

SINCLAIR v. SLAWSON and others.

Supreme Court of Michigan

June 23, 1880

Under the statutes of Michigan a mortgage is considered as recorded when it is filed for record, and the register is required to make an entry, in what is called an entry book, of the date of reception, the names of the mortgagor and mortgagee, and the township in which the lands lie. The entry in the entry book, until the mortgage is copied in full into the record constitutes the constructive notice to purchasers, and refers them to the mortgage on file for full particulars. In copying a mortgage into the record the register omitted the name of the mortgagee. Held, that this error did not defeat the mortgage as to subsequent purchasers, but that as the entry book would supply the name of the mortgagee, that book and the record book together gave full information and constituted notice to all parties concerned.

Appeal from Montcalm, in chancery.

Ellsworth & Sapp, for defendants.

COOLEY J.

This is a bill to foreclose a mortgage. The defendants claim the premises as bona fide purchasers under the mortgagor. The only question of law which is raised by the record is whether the mortgage is defeated by the conveyances to these defendants by reason of an error in recording it. It appeared that the register of deeds was making use in his office of books made up of printed blanks; and that, in attempting to fill up one of these for the record of the mortgage in suit he wholly omitted the name of the mortgagee. It is not pretended that in any other particular the record was incorrect. The defendants bought without making an examination of the record, and there is no claim that they had express notice of the mortgage. The question, then, is whether the defective record was of any avail to complainant as constructive notice of his mortgage? Under a New York statute, which provided that no mortgage should "defeat or prejudice the title of any bona fide purchaser, unless the same shall have been duly registered," Chancellor Kent held that "the registry is notice of the contents of it and no more, and that the purchaser is not to be charged with notice of the contents of the mortgage any further than they may be contained in the registry. The purchaser is not bound to attend to the correctness of the register. It is the business of the mortgagee; and if a mistake occurs to his prejudice, the consequences of it lie between him and the clerk, and not between him and the bona fide purchaser." The statute, he adds, intended the registry "as the correct and sufficient source of information; and it would be a doctrine productive of immense mischief to oblige the purchaser to look at his peril to the contents of every mortgage, and to be bound by them, when different from the contents as declared by the registry. The registry might prove only a snare to the purchaser, and no person could be safe in his purchase without hunting out and inspecting the original mortgage, a task of great toil and difficulty. I am satisfied that this was not the intention, as it certainly is not the sound policy of the statute." Frost v. Beekman, 1 John.Ch. 288, 298.

The mistake in the record in that case consisted in a misrecital of the amount secured. The case has been often followed. In Sanger v. Coague, 10 Vt. 555, the error consisted in misdescribing the land. In Jennings v. Wood, 20 Ohio, 26, the name of the grantor in a deed was incorrectly given. In Parrett v. Shaubhut, 5 Minn. 323, the mistake consisted in the omission of one of the subscribing witnesses, whereby the deed was made to appear insufficiently executed. In Shepherd v. Brubhalter, 13 Ga. 443, the name of the mortgagor was not appended to the mortgage as recorded. In Sawyer v. Adams, 8 Vt. 172, the deed was recorded in an unused book and not indexed. Terrell v. Andrew Co. 44 Mo. 309, was another case of error in giving in the record the amount of the mortgage, and the following are cases in which the thing conveyed was misdescribed: Chamberlain v. Bell, 7 Cal. 292; Miller v. Bradford, 12 Iowa, 14; Baldwin v Marshall, 2 Humph. 116; Brydon v. Campbell, 40 Md. 331; Breed v. Conley, 14 Iowa, 269; Gwinn v. Turner, 18 Iowa, 1. This court has also held that a sheriff's notice of attachment was ineffectual where by mistake it failed to describe the land attached. Barnard v. Campau, 29 Mich. 162.

On the other hand, it has been held in Illinois, under a statute which gave a deed effect as against subsequent bona fide purchasers from the time it was filed for record, that the grantee was not affected by errors in recording, he having done all that the law required of him when he had filed his deed with the recorder. Merrick v. Wallace, 19 Ill. 486; Polk v. Cosgrove, 4 Biss. 437; Riggs v. Boyland, 4 Biss. 445. So, in Alabama, under a statute which made a conveyance "operative as a record" from the time it was left for registration, it was decided that a mortgage was a valid lien for the whole amount, though incorrectly recorded as for a smaller sum. Mims v. Mims, 35 Ala. 23. The following are cases which recognize the rule that filing a deed for record gives it effect as a record: Dubose v. Young, 10 Ala. 365; Bank of Kentucky v. Hagan, 1 A.K.Marsh. 306. The different conclusions in these cases are the result, in the main, of differences in the statutes under which the records have been made or attempted, and perhaps if all the statutes had been alike, all the decisions would have been harmonious.

The doctrine, that he who claims the benefit of registry laws must bring himself within them, is universally admitted. It becomes important, then, to see what our own statutes are which bear upon this case; for these after all, and not the decisions of other states, must control. We have no statute which makes a record necessary to the validity of a conveyance as between the parties. Godfroy v. Disbrow, Wal.Ch. 260; Brown v. McCormick, 28 Mich. 215. The recording is only, for the preservation of evidence, and for notice to subsequent purchasers and encumbrancers. Every register of deeds is required to keep an entry book of deeds, and an entry book of mortgages, each page of which shall be divided into six columns with the following headings: Date of reception; Grantors (or Mortgagors); Grantees (or Mortgagees); Township where the lands lie;...