Mutual Life Insurance v. Dake

This action is brought to foreclose a mortgage which was executed by the defendant Teeple and his wife, to the plaintiff on the 4th day of June, 1870, upon lands in Livingston county, to secure payment of the sum of $2,000, with interest.

On the 7th day of December, 1870, the plaintiff left the mortgage at the office of the clerk of Livingston county, for record, and paid the fee for recording it. On the same day the clerk duly transcribed the mortgage in full, in the proper record

We have carefully examined the able and exhaustive briefs submitted to us, and are satisfied that no error was committed in the court below by its holding that plaintiff’s mortgage had the priority. The carefully prepared and able opinion of Smith, J., at the Special Term, leaves but little now to be said; but as the question is claimed to be a new one in this State, we will

The plaintiffs mortgage, being prior in time, is entitled to priority over the Balty mortgage, unless it has lost such priority by force of the Recording Act, and a reference to it is therefore needful. It is found in chap. 3, part 2, of the Revised Statutes, which chapter is entitled, “ of the proof and recording of conveyances of real estate, and the canceling of mortgages.” Section 1 provides, that |jEvery conveyance of real estate within this State, hereafter made, shall be recorded in the office of the clerk of the county where such real estate shall be situated; and every such conveyance not so recorded shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.” The record here intended was plainly a copy of the conveyance,transcribed into the proper book of records. Section 2 provides, that “ Different sets of books shall be provided, by the clerks of the several counties, for the recording of deeds and mortgages.” „ Sectional provides, that “Every conveyance entitled by law to be recorded shall be recorded in the order and as of the time when the same shall be delivered to the clerk for that purpose, and shall be considered as recorded from the time of such delivery.” Section 25 provides, that “ The recording officer shall make an entry in the record, immediately after the copy of every conveyance recorded, specifying the time of the day, month and year when the said conveyance was recorded, and shall indorse upon every conveyance recorded by him, a certificate stating the time as aforesaid, when, and the book and page where, the same was recorded; ” and a later section provides that the term “ conveyance ” shall embrace a mortgage.

Here there is a complete system for the registry of deeds and mortgages prescribing the place and mode of registry, and not one word is said of any index to be made. It will be observed that the clerk is not required to certify, upon the conveyance recorded, that he has indexed the same, and jmt if the index

By chapter 313 of the Laws of 1826, county clerks were required to make separate indices in separate book of all deeds and mortgages recorded or registered in their respective offices, whenever directed by the Court of Common Pleas, and it was provided that they should he paid for making such indices by the board of supervisors, and that was the first act in this State, in reference to indexing deeds jmd mortgages. It did not provide for indexing conveyances thereafter to be recorded.

The only provision in the Revised Statutes on the subject of indexing conveyance is found in part 3, chapter 3, article 2, which article is entitled “Of the powers and duties of certain judicial officers ” Section 61 of the article provides, that “It shall he me duty of the clerk of each county in the State, and of th» register of the city and county of Mew York, to attach to every hook kept in his office, in which deeds- or mortgages shall he recorded, or collectors’ bonds entered, an index to the .natters contained in such hooks, arranged in alphabetical order, under the names of the several parties to such matters, with references to the pages where the same may be found, which, together with such boobs, shall at all proper times be open for the inspection of any person paying therefor the fees allowed by law.” That section is still in force; í* <looa not make the index a part of the record; it recognizes the record as complete without the index, and simply provides for an index to the records.

The first law requiring county clerks to make and keep books of general indices is found in chapter 199 of the Laws of 1843, section l of which provides, that “ The clerks of the several counties in this State, and the register of the city and county of Mew York, in those counties in which general indices of deed?, and mortgages have not been made and preserved according to the act passed April 18th, 1826, shall provide proper hooks for making such general indices, and shall form indices thcwSin in such manner as to afford correct and easy reference

I have thus quoted at length the main provisions of the Recording Act, and of the acts in reference to indices, ttiat the-full force of the language used in them may be fully and easily comprehended; and thus it is plainly seen that there is nothing in them which makes the index a part of the record. ■ It is clear that the only purpose which was intended to be Served by the indices is as a guide to the records'for the convenience, of searchers.

That our conclusion is the correct one is made still I more

There is nothing in the history of the legislation on the subject of the registration of deeds and mortgages, from the earliest time in England and in this State, which tends, in the least degree, to show that it has ever been supposed that indexing was any essential or necessary part of registration. Such legislation is ably reviewed in the opinion of Smith, J., at Special Term, and needs no further notice here.

Whatever forms part of a perfect record, as prescribed in the act, is essential; that is, the conveyance must be recorded in the proper book, in the proper order, and with substantial accuracy. If the record be defective in any thing essential, it will not serve the purpose of giving constructive notice to subsequent bona fide grantees or incumbrancers.

It is claimed, on the part of the appellant, that if the index is no part of the record, it is useless, and even worse than useless, as it might operate to ensnare and mislead persons relying upon it. It is true that an index may, by mistake, be omitted ; but such mistakes must rarely occur, and the legislature undoubtedly deemed it sufficient to make it part of the duty of county clerks to make the indices. It is an adequate guaranty that the indices will be sufficiently correct and reliable that county clerks are liable to be indicted if they willfully or fraudulently omit to make them correctly, and are at the same time liable in a civil action to the party injured by their omis

When a conveyance is delivered to the clerk the statute provides, that it shall be “ considered as recorded from the time of such delivery.” After such delivery nothing more need be done to keep the record perfect, except at the proper time to record it in its" proper order, in the proper book; and yet if the conveyance, in the meantime, before the record thereof, should be mislaid in the clerk’s office, or lost or purloined, the record would still remain complete. In such case there could be no index of such conveyance, because, until the time for recording it had arrived, it could not be known in what book, or in what place in any book, it would be recorded.

That the index is no part of the record, and may be omitted by the clerk without impairing the record, is the view sanctioned by the current of decisions, in the other States, and by elementary writers. In 4 Kent’s Com. 174, note, it is said: “ An index or alphabet of a mortgage is no part of a mortgage, and a mortgage is duly registered if no index of it is made.” In 1 Washburne on Real Property, 578, the rule is laid down as follows: “ The proposition is a general one, that an irregular registration of a deed is no notice to others of the existence of such deed; but an omission of the register to note the time of receiving the deed for record, or to enter it in the index or alphabet, will not invalidate the effect of the registration; ” and in 1 Hilliard on Mortgages, 721 [4th ed.], as follows: “ The record of a mortgage is sufficient, though not mentioned in the alphabet, or index; ” and also in 1 Jones on Mortgages as follows: “ The index is no part of the record, and a mistake in it does not invalidate the notice afforded by a record otherwise properly made; although the mortgage be omitted from the index it is just as much an incumbrance upon the land, and notice of it from the time it was left for record, or transcribed, affects all subsequent purchasers.”

It may be that the index, both for convenience and safety?

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.