State v. Green

• Decision Date: 19 March 1907
• Citation: 100 S.W. 1115,124 Mo. App. 80
• Parties: STATE ex rel. PHILLIPS v. GREEN et al.
• Court: Missouri Court of Appeals

100 S.W. 1115

124 Mo. App. 80

STATE ex rel. PHILLIPS v. GREEN et al.

St. Louis Court of Appeals. Missouri.

March 19, 1907.

1. REGISTER OF DEEDS—LIABILITY ON OFFICIAL BONDS—CONTRIBUTORY NEGLIGENCE.

That a vendee of land accompanied the beneficiary of a deed of trust to the office of the recorder of deeds, and remarked that they had come to satisfy the record, was not such negligence as to relieve the recorder of liability for permitting the release to be entered without compliance with Rev. St. 1899, § 4358 [Ann. St. 1906, p. 2401], requiring the production and cancellation of the notes secured, or an affidavit that they had been paid before the entry of satisfaction.

2. SAME—PRESUMPTIVE KNOWLEDGE OF LAW.

The presumptive knowledge of a purchaser of land of the law prohibiting a recorder of deeds from entering satisfaction of a mortgage without the production of the note secured or an affidavit that they had been paid is not such as to relieve the recorder of liability for injury resulting to the purchaser from the entry by the recorder, with the purchaser's knowledge, of satisfaction of a prior mortgage without the production of the notes or affidavit.

3. SAME.

Where one executed a deed of trust in which there was a mistake in the description of the land, and, discovering the existence of a prior deed of trust, refused to make a corrected deed till satisfaction of the prior deed was entered of record, the liability of the recorder for permitting the entry of satisfaction without the production of the notes or the affidavit required by law, whereby the mortgagor was induced to execute a corrected deed of trust, was not affected by the execution of the first deed prior to the recorder's act.

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

Action by the state, on the relation of W. E. Phillips, against John W. Green and others. From a judgment in favor of defendants, relator appeals. Reversed and remanded.

J. S. Gossom, for appellant. Brewer & Collins, for respondents.

NORTONI, J.

The suit is on the official bond of the defendant, who was, at the time of the breach complained of, circuit clerk and ex officio recorder of deeds for Pemiscot county. The breach declared upon is that the defendant, as recorder of deeds, permitted one Jackson to enter on the margin of the record satisfaction of a deed of trust on certain lands which plaintiff had recently purchased, without presentation of the notes therein secured for cancellation or accounting for their absence by proper affidavit, whereby it was made to appear to plaintiff that such indebtedness and the lien of the deed of trust on the lands mentioned was discharged, when in fact such indebtedness was still unpaid, and the notes and deed of trust then outstanding in the hands of the Pemiscot County Bank, an innocent third party, which bank afterwards foreclosed the deed of trust and sold the lands, to the plaintiff's damage in the sum of $____, the amount of such incumbrance. The facts out of which the controversy arose are as follows:

One Jackson, a resident of Caruthersville, owned a small tract of land in that vicinity and sold the same to William J. and Judson Rice on time payments, for which they executed to him their certain promissory notes, two for $100 each, and one for $300, and secured the same by a deed of trust on such lands, which deed of trust was duly recorded, etc. About the time these notes became due, Rice Bros., a couple of young men, notified Jackson that they would be unable to pay the same and proffered to convey the lands to him, or to any one to whom he might sell, and thus discharge their debt. Thereupon Jackson approached Mr. Phillips, the relator herein, and informed him that, inasmuch as the Rice Bros. could not pay for the land, he proposed that Mr. Phillips buy the same. After some negotiations Mr. Phillips agreed to purchase the lands at the price of $600 for his two sons, Charles and Samuel, and to execute his notes to Jackson for the amount of the purchase price, and secure their payment by a deed of trust on his home place, another property entirely. In accordance with this proposition, the agreement was made, and Jackson procured the conveyance of the lands from the Rice Bros. by warranty deed dated April 12, 1902, to relator's sons, Charles and Samuel Phillips, It appears that the trade was consummated and the deed delivered to relator, Phillips, April 24, 1902, on which date Mr. Phillips and wife executed to Jackson their three negotiable promissory notes for $200 each, due December 15, 1904, and a deed of trust intended to cover their home farm to secure the payment thereof. These notes and deed of trust were on that day delivered to Jackson in exchange for the deed from the Rice Bros. conveying the lands first mentioned to the Phillips Bros. This deed of trust was duly recorded April 25, 1902.

A few days thereafter, the relator was advised by the Rice Bros. that Jackson held a deed of trust from them covering the lands which he had purchased, and that he had better see about its release or satisfaction, and about May 1st he called upon the defendant recorder of deeds in his office to ascertain whether or not such deed of trust was on record. The defendant examined the record, found such deed of trust thereon, and exhibited the record thereof to relator, whereupon relator announced that Jackson must release the same. It next appears from the evidence that an error in the description had been made in drafting the deed of trust from Phillips and wife to Jackson, and on May 10th Jackson, seeking a correction of this error, in company with one Garrett, a notary public, called upon Mr. Phillips at his home to procure a new or corrected deed of trust securing the original debt, the notes of April 24th. Mr. Phillips agreed to and did, come to Caruthersville that afternoon, accompanied by his wife, and the defendant says that Phillips called upon him again on that day and inquired a second time with reference to the satisfaction of the deed of trust on the lands he had purchased for his sons; that defendant exhibited the record to him a second time, which was still unsatisfied, and that Phillips remarked that Jackson said he had lost or mislaid the notes signed by the Rice Bros. and described in that deed of trust; that Jackson must release the same, etc., and departed; that later in the day Phillips and Jackson entered the defendant's office together, and Phillips said, "We have come to satisfy the record, or to make that satisfaction," whereupon the defendant produced the record and filled out the blank form for satisfaction on the margin, Jackson signed the same in the presence of Mr. Phillips, and defendant, as recorder, attested the act of Jackson with his official signature; that Jackson did not produce for cancellation the notes described in such deed of trust, nor did he make or furnish the necessary affidavit as to their payment, loss, or destruction; that he, the defendant, did not request nor require Jackson so to do, and, on the following questions being propounded to him, he explained his conduct as follows: "Q. You knew at that time that it was your duty to require Jackson to produce the notes canceled in your presence, or make affidavit? A. As far as knowing it, I never had examined the laws in regard to it. I had been under the impression up to that time, and after that time, that so long as a beneficiary in a deed of trust proffered the satisfaction of the deed of trust it was not necessary for him to produce the notes, and in case he had assigned those notes, and they were in the hands of some other persons, then it would be necessary to produce the canceled notes. Q. Did you make any demand on Jackson to produce the notes? A. I did not. Q. Did you ask him anything about the notes? A. Not a question. Q. You never required him to make an affidavit, or any one for him? A. No, sir."

It appears that on that day, May 10th, Phillips and his wife executed and delivered to Jackson a new or second deed of trust for the purpose of correcting the error in description mentioned in the prior instrument and securing the same and identical notes which had been delivered to Jackson 16 days prior thereto, April 24th, which deed of trust afforded Jackson a first lien on the Phillips' home. All of the evidence tends to show that Phillips refused to execute this second or corrected deed of trust on his home property until Jackson had first satisfied the deed of trust securing the Rice notes on the lands he had purchased. It is further shown that Jackson had sold and assigned the notes and deed of trust from Rice Bros. to himself, prior to maturity, to the Pemiscot County Bank, and that said bank was the legal holder of the same at the time defendant Green permitted Jackson to indorse the record "satisfied"; that the bank afterwards caused the lands to be sold under such deed of trust to satisfy the debt; and that Phillips lost the same by such sale. Jackson sold and assigned the notes given by Phillips and wife on their home place before maturity, to the Fredericktown Trust Company, and Phillips paid them when due. It appears...