Chatham v. Bradford

| Ga. | Jul 15, 1873

McCay, Judge.

The sole question made by this record is, whether it is a necessary part of the recording of a deed that the clerk shall enter in the index of the book the names of the parties under the proper letter, with the page where the record can be found. Is this necessary to make a complete record of a deed ? It cannot be denied that the record of a deed in a large book, with many other records of like character, and without any index to enable one searching to find the page, furnishes, in fact, but a poor notice of the existence of the deed ; and without any question, a failure by the clerk to keep such an index is a wrong for which he is answerable to the party injured. But after much consideration we are of the opinion that the entry in the index is not a part of the process of record, so as that the record is null without it. Our Acts for the recording of deeds, beginning in 1755, do none of them point out the mode ■of registry, nor do they, any of them, require the clerk to keep an index.. The Act of 1815, Cobb’s Digest, 191, provides that the Inferior Court shall see to it that the books are lettered and indexed. So, too, the Code, sections 2663, 2671. It is, also, true that in prescribing the duty of the clerk, section 256, paragraph 7, the Code requires him to index his record books.

But there is nothing in any of these provisions prescribing that the indexing is a necessary part of the record. When a deed has been duly copied upon the record book, it is difficult to say that it is not recorded. The steps to be taken for easy reference, as it seems to us, are matters with which the owner of the deed has nothing to do. He has caused his deed to be copied upon the public books ; that is all the law requires of him, and that is all he can do. If any one desires to find the record, he can find it if he will take the trouble. The index is for the benefit of the searcher. It is the means furnished by the public to its citizens for an easy reference to the books of record. It is a provision, not for the benefit of the holder of the deed, but for the convenience of those who desire to examine the record. Ease of access is wholly a question of degree. A book may be indexed by the name of the grantor or grantee, or both — it ought to be by both. It is often convenient, too, in this State, to index the numbers of the lots of land conveyed. But, obviously, all these are matters for the convenience of those who desire to examine the books. If the clerk fails to do his duty, he injures those who desire to search. The duty is, therefore, to the searcher and to the public, and not to the holder of the deed. And this has, as ^we think, always been the understanding of the law in this State. Many of our books of record have no indexes, or very imperfect ones, and for many years this has been true. Ease of access to a record is a question of degree; it is possible to get at the fact of record or no record without any index. If the books be few and small, it is easy. If the books be many and large, it is difficult. And so, the index may be single or double. The ease or difficulty of finding what is on the record, is not a matter in which the owner of the deed is concerned. We have been able to find bnt one case in the books bearing upon this subject, to-wit: Sawyer vs. Adams, 8 Vermont, 172. In this case, the deed was recorded in a book that had not been used for years. It was not indexed, even in that; and this was done intentionally by the clerk to conceal the fact. The Court held the record no notice, but there was a dissenting opinion. That was a much stronger case of failure of duty than this. We put our decision mainly on our own statutes, and on the condition of our records, and what we believe to be tlie uniform practice in this State.

Judgment affirmed.