State to Use of Cardin v. McClellan

• Decision Date: 24 February 1905
• Parties: STATE, to Use of CARDIN, v. McCLELLAN et al.
• Court: Tennessee Supreme Court

85 S.W. 267

113 Tenn. 616

STATE, to Use of CARDIN, v. McCLELLAN et al.

Supreme Court of Tennessee.

February 24, 1905

Appeal from Chancery Court, Monroe County; I. M. McConnell Chancellor.

Action by the state of Tennessee, for the use of D. A. Cardin against Thomas McClellan and others. From a judgment for plaintiff, defendants appeal. Affirmed.

McCroskey & Peace, Young & Young, W. Morris Harrison, and N.M McDonald, for appellants.

Pritchard & Sizer, for appellee.

SHIELDS J.

This bill was brought by D. A. Cardin, in the name of the state to recover of Thomas McClellan, former register of Monroe county, and others as sureties on his official bond, damages sustained by the complainant, resulting from the failure of the defendant McClellan to correctly register a conveyance made by Larkin Cardin to complainant of a tract of land situated in Monroe county. The Court of Chancery Appeals find that the complainant placed the deed in the hands of the defendant for registration March 4, 1895, paying him the legal fees for his services, and that in a few days it was returned by the defendant with his certificate that it had been received for registration, noted, and registered in a certain deedbook in his office, indorsed thereon, when in fact the description of the land conveyed was not correctly copied, but so inaccurately done that it did not describe any land, and the premises conveyed could not be identified from an inspection of the register's records. That court further finds that on January 25, 1899, Cowan, McClung & Co., creditors of Larkin Cardin by indebtedness created after the conveyance was made to complainant and supposed to be registered, obtained judgment against him, and had the land conveyed levied on and sold February 26, 1903, when complainant was compelled to buy it in, at an outlay of $627, to protect his title. This bill was filed March 19, 1903, to recover this sum and $76.48 costs incurred by complainant in litigation in which he attempted to prevent the sale of the property under the said proceedings.

The chancellor and the Court of Chancery Appeals have granted the relief sought by him, and the case is now before us upon the appeal of the defendants. Two assignments of error are filed:

(1) That the Court of Appeals erred in rendering judgment against defendant McClellan and his sureties, because it was not shown, and the court did not find, that the mistake in registering the deed of the complainant was willful, or so gross as to imply willfulness.

(2) That the complainant's right of action as against defendant's sureties was barred by the statute of limitations of six years when this suit was instituted.

We will dispose of these defenses in the order stated.

The register of deeds is elected by the people in each county, and holds his office for four years, and until his successor is qualified. Code 1858, § 454; Shannon's Code, § 567.

Before taking charge of his office he is required to make a bond in the penalty of $12,500, with sureties to be approved by the county court, conditioned for the true and faithful performance of the duties of his office. Code 1858, §§ 447, 448; Shannon's Code, §§ 559, 560.

For a failure to discharge any of his duties, he is civilly responsible to the party injured, and guilty of a misdemeanor, and all parties aggrieved may maintain actions upon his bond to recover damages sustained by them. Code 1858, §§ 454, 456, 2797; Shannon's Code, §§ 567, 570, 4494.

He is required to have an office in the county town, and there to safely keep the public records of the conveyances of lands in his county, and other instruments authorized by law to be registered, and receive, note for registration, and promptly register in the appropriate records, and index, all conveyances and other instruments presented him by individuals for that purpose, upon payment of his fees for registration, and discharge such other duties as are incident to his office. All his duties, and the fees allowed therefor, are fixed and prescribed by law. Code 1858, §§ 450, 453, 454; Shannon's Code, §§ 562, 566, 567.

The due and proper registration of instruments authorized by law to be registered secures to the parties interested therein certain rights and priorities in the property involved, which they do not otherwise have, of the most vital and important character. Code 1858, §§ 2071, 2075; Shannon's Code, §§ 3748, 3752.

The register, it is evident from these statutes, is a public officer, whose duties are primarily due to the public, but in the faithful performance of which all those who have occasion for his official services, and resort to his office for information, have a special interest and a direct right. These duties are purely ministerial--not involving the exercise of discretion or judgment. They are personal, certain, and imperative, and capable of exact performance, and the compensation is adequate.

The liability of a public officer and his sureties for damages, the proximate result of a breach of ministerial duties of this character, is absolute. No question of willfulness or negligence is involved, and innocent mistake or inadvertence affords no excuse. This seems to be well-settled law.

Mr. Mechem, in his book on Public Officers, says:

"It is settled that where the law imposes upon a public officer the performance of ministerial duties in which a private individual has a special and direct interest, the officer will be liable to such an individual for any injury which he may proximately sustain in consequence of the failure or neglect of the officer either to perform the duty at all or to perform it properly.

"In such a case the officer is liable as well for nonfeasance as for misfeasance or malfeasance."

"Nonfeasance," says Judge Metcalfe, "is the omission of an act which a person ought to do; misfeasance is the improper doing of an act which a person might lawfully do; and malfeasance is the doing of an act which a person ought not to do at all." The rule above stated therefore includes:

(1) Nonfeasance, or neglect or refusal, without sufficient excuse, to perform an act which it was the officer's legal duty to the individual to perform.

(2) Misfeasance or negligence, which here, as elsewhere, is a failure to use, in the performance of a duty owing to the individual, that degree of care, skill, and diligence which the circumstances of the case reasonably demand.

(3) Malfeasance, or the doing, either through ignorance, inattention, or malice, of that which the officer had no legal right to do at all, as where he acts without any authority whatever, or exceeds, ignores, or abuses his powers.

Bell v. Josselyn, 3 Gray, 309, 63 Am. Dec. 741.

It is not necessary, to establish liability, to show either malice or willfulness in the failure or improper performance of the act. Olmsted v. Dennis, 77 N.Y. 378.

And mistake and good faith are no defense to the defaulting officer. Clark v. Miller, 54 N.Y. 528; Keith v. Howard, 24 Pick. 292; Amy v. Supervisors, 11 Wall. 136, 20 L.Ed. 101.

The case of Maxwell v. Stuart, 99 Tenn. 409, 42 S.W. 34, and McTeer v. Lebow, 85 Tenn. 121, 2 S.W. 18, have no application to this one. The statutes invoked in both of those cases required that the wrongful act of the officer to do his duty be knowingly or willfully done, while the one under consideration contains no such qualification of the liability of the register for failure to do his duty, but is unlimited and absolute.

Moreover, the failure of the register to copy the deed of the complainant correctly cannot be said to be an innocent mistake, as failure to do so cannot be accounted for upon any other hypothesis than incompetency or gross carelessness.

The very occurrence of the mistake in so simple and plain a matter is plenary evidence of negligence. The exercise of the most ordinary care would have prevented it, and comparison of the original with the record would have detected it and furnished an opportunity for its correction. The failure to promptly and correctly register deeds and other instruments, if tolerated, would defeat the very object and purpose of our registration laws. Public policy and the rights of those directly interested in the proper registration of instruments require that registers be held to a strict and literal performance of their official duties. They and their official sureties undertake and contract that the duties of the office will be honestly, diligently, and correctly performed, and when their obligation is breached, and injury follows, they are liable to the party injured.

There is no doubt, upon this record, that the defendant McClellan has been guilty of an inexcusable malfeasance in office, which was the proximate cause of complainant's loss, for which he and his sureties, other questions out of the way, must answer in damages.

The second assignment of error which is filed in behalf of the defendant sureties presents a question of more difficulty, and one that we have no case deciding. It is whether the cause of action of one who is injured by a breach of public duty by a public officer accrues and is complete when the breach or wrong is done, or when the consequential injury occurs.

The defendants say the complainant's cause of action accrued and was complete March 7, 1895, when their principal failed to correctly register the deed, and that this suit was barred, by the statute of limitation of six years in favor of sureties of public officers, March 19, 1903, when it was brought, while the complainant insists that the failure of the register to correctly register the deed was a breach of a duty which he primarily owed to the public, and that he was not injured, and had no cause of action therefor, until his property was...