Eights v. Woodworth — 9 Paige Ch. 391

Majority

p. 391

Eights and others vs. Woodworth & Taylor.

Headnote

Opon the taxation of costs in mortgage cases, under the act of 1840 to reduce the expense of foreclosing mortgages in the court of chancery, only ten cents can be allowed for the fees of a county clerk for searching and certifying incumbrances upon the mortgaged premises, for each incumbrance found and certified, where the amount of such fees exceeds fifty cents.

January 24.

This case came before the court upon an appeal, by the complainants, from a decision of the taxing master, upon the taxation of costs in a mortgage case, on a bill taken as confessed. The complainants’ solicitor applied to the county clerk to search for deeds and mortgages, executed by the mortgagor, subsequent to the complainants’ mortgage, so far as they affected the mortgaged premises. By referring to the indexes to the books of records, the clerk found numerous deeds and mortgages given by the mortgagor. But on examining the record, only two of them were found to affect the mortgaged premises; which two incumbrances or deeds were certified by him accordingly. He charged $5 for the search, claiming ten cents for each deed or mortgage, from the mortgagor, which he examined ; although it turned out that they did not affect the mortgaged premises as to which he was searching. The complainants’ solicitor charged in his bill of costs the $5, paid to the county clerk. Of this charge the taxing officer struck out all but

p. 392

fifty cents; the minimum allowed for such searches by the 13th section of the act of 1840 to. reduce the expenses of foreclosing mortgages in the court of chancery.

0. Mleny for the complainants.

J. RhoacLeSj for the defendants.

The taxing officer was right in this ease, in disallowing the illegal charge for seaching and certifying as to subsequent deeds and incumbrances of the mortgaged premises. The original fee bill contained in the revised statutes, allowed to the county clerk five cents a year for making such searches. But the 13th section of the act of the 14th of May, 1840, allows to the clerks of counties and registers of cities, for searching and certifying the title of and incumbrances upon real estate, ten cents for each conveyance and incumbrance certified by him,; fixing the minimum of such fees, however, at fifty cents, and the maximum at five dollars. (Laws of 1840, p. 290.) This provision may perhaps be considered as somewhat in conflict, so far as concerns incumbrances by judgment or decree, with the 33d section of the act, concerning costs and fees in courts of law and for other purposes, passed the same day, (idem, 335 ;) which section fixes the allowance to the county clerks at twenty-five cents, for searching for judgments and decrees for five years or under; including the transcript and certificate. But the charge in the present case comes exclusively under the act to reduce the expense of foreclosing mortgages. And it can only he taxed at the rate of ten cents for each conveyance of or incumbrance upon the mortgaged premises, found and certified j, where the charge at that rate amounts to fifty cents or more.

Motion for retaxation denied.