State v. Green

• Decision Date: 07 March 1905
• Parties: STATE ex rel. PHILLIPS et al. v. GREEN et al.
• Court: Missouri Court of Appeals

90 S.W. 403

112 Mo. App. 108

STATE ex rel. PHILLIPS et al. v. GREEN et al.

St. Louis Court of Appeals. Missouri.

March 7, 1905.

1. REGISTERS OF DEEDS—NEGLIGENCE—LIABILITY ON BOND.

The act of a recorder of deeds in negligently permitting a mortgagee in a trust deed to satisfy the deed of record without canceling the notes secured by the deed or making affidavit that they had been paid, and thereby inducing relator to purchase the land covered by the trust deed, and to give his notes therefor, in the belief that it was unincumbered, whereas, in fact, the mortgagee had previously transferred the notes to another, who foreclosed the trust deed, so that the land was lost to relator did not entitle relator to maintain an action on the recorder's bond, in the absence of anything to show that relator paid the notes given by him, or that they had been transferred to an innocent purchaser, or that the mortgagee was insolvent, or that relator had sued to have the notes set aside, or that he had been or would be forced to pay the notes, or that he had in any way been damaged by the negligent act complained of.

2. SAME.

A purchaser of land, who participates in soliciting the recorder of deeds to permit a deed of trust on the land to be marked "Satisfied," in pursuance of which the trust deed is marked "Satisfied," although not in fact satisfied, and the land is lost to the purchaser by foreclosure of the trust deed, cannot maintain an action on the recorder's bond for his negligence in permitting the trust deed to be marked satisfied.

3. SAME—MEASURE OF DAMAGES.

The measure of liability on the bond of a recorder of deeds for negligently permitting a trust deed to be falsely marked "Satisfied" cannot exceed the amount due on the trust deed at the date of the entry of satisfaction.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by the state, on the relation of W. E. Phillips and others, against John W. Green and others. From a judgment for plaintiffs, defendants appeal. Reversed.

Brewer & Collins, for appellants. Faris & Oliver, for respondents.

BLAND, P. J.

After alleging the appointment of John W. Green as clerk of the Pemiscot county circuit court, by virtue of which appointment he became ex officio recorder of deeds of said county, and setting forth his official bond, as recorder, with the other defendants as sureties thereon, the petition proceeds as follows: "Plaintiff further states that the said defendant John W. Green has failed to perform the conditions of said bond, in that he has not `faithfully performed the duties enjoined on him by law as recorder,' in this, to wit: That on the 10th day of May, 1902, said John W. Green negligently, carelessly, and against and in contravention of the statutes in such cases made and provided permitted and allowed one F. T. Jackson to satisfy of record a certain deed of trust theretofore on the 17th day of October, 1901, made, executed, and delivered by Judson Rice and W. J. Rice to said F. T. Jackson, for the purpose of securing the payment of certain promissory notes amounting in the aggregate to $500, in which notes said F. T. Jackson was the payee, without requiring said F. T. Jackson, or any one for him, to produce and cancel said promissory notes in the presence of the recorder, and without requiring said F. T. Jackson, or any one for him, upon the allegation that said notes were lost, to make affidavit, in writing, stating that said notes named in said deed of trust, sought to be released, had been paid and delivered to the maker thereof, or his representative, and without requiring said F. T. Jackson, or his legal representative, to make affidavit in writing that the notes in question had been paid, and that the same could not be produced and canceled because they had been lost by said F. T. Jackson, and that said notes were not then in the possession of any person having lawful claim to said notes. Plaintiff further states that prior to the transactions above set out said Judson Rice and W. J. Rice had made, executed, and delivered said notes above mentioned, together with said deed of trust upon certain lands situate in Pemiscot county, Mo., securing said notes to one, the said F. T. Jackson; that said notes not having been paid, but being, as alleged by said Jackson, unpaid and still in the possession of said Jackson, he induced relators to become the purchasers of said land, and agreed with relators that he would procure the conveyance of said land from said Rices to relators, Sam Phillips and Charles Phillips, in consideration of the making, execution, and delivery of the promissory notes of relators, in the aggregate amount of $640, to him, said F. T. Jackson, by the relators, and of the securing of said notes by a deed of trust upon certain valuable lands of relators situate in Pemiscot county, Mo.; that thereupon relator W. E. Phillips, together with said relator W. E. Phillips'...