35 Neb. 739 | Neb. | 1892
This action was brought in the court below by appellee against William H. Miles and Nellie E. Miles, to foreclose a mortgage executed by them upon the west half of the southeast quarter and the east half of the southwest quarter of section 1, town 7 north, of range 28 west of the sixth principal meridian. The district court permitted Laura Miles, the minor child of the said William,H. Miles by a former wife to intervene in the action. A guardian ad litem was appointed for the minor, who filed an answer setting up therein that at the time of the execution of the mortgage, the said Laura Miles was the sole owner in fee-simple of the land in controversy, having acquired title thereto by inheritance from her mother; that said mortgage conveyed no interest in the lands therein described, and is a cloud upon her title to said premises. The answer closes with prayer that the mortgage be canceled and that - the .title to the real estate be quieted in said minor. A reply was filed by the plaintiff. Upon the trial the court found that at the time of the execution of the mortgage, said William H. Miles was the owner in fee-simple of said real estate; that the mortgage was valid and binding, and a decree of foreclosure and sale was entered for $628.09. For and on behalf of the said minor this appeal is prosecuted.
The record before us shows that on the 11th day of January, 1879, the defendant William H. Miles was the owner in fee-simple of the real estate covered by the mortgage, and on said day, by deed of general warranty, he
Appellant contends that the said deed of January 11, 1879, from Miles to Murphy, was duly filed and recorded on the 4th day of March, 1879, in the office of the county clerk of the county where the lands therein described are situated. It is undisputed that in the early part of the year 1883 the court house and records of Frontier county were entirely destroyed by fire. Subsequently, but prior to the making and recording of the mortgage for the foreclosure of which this action was instituted, the records with reference to the lands covered by said mortgage were so restored as to show that the title to the lands stood in the name of William H. Miles. The said deed from Miles to Laura C. Murphy at that time did not appear of record, and appellee insists it was not established that it was ever on record prior to the making of the mortgage. Upon the trial the original deed was produced and put in evidence with the indorsements thereon. Upon the back of the instrument is to be found the following certificate:
“ Filed for record this 4th day of March, A. D. 1879, eleven o’clock A. M., and entered in numerical index of deeds. Recorded this 4th day of March, 1879.
“A. L. Morgan, “County Clerh.”
Although Mr. Morgan’s testimony does not show that the deed was in fact spread upon the deed records of the county, the fact of its being delivered to the county clerk for such purpose clearly appears from the testimony of the witness as well as by the indorsement upon the back of the instrument.
By section 15 of chapter 73 of the Compiled Statutes, entitled “Real Estate,” it is provided that “every deed 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 recorded from the time of such delivery.” Whether the deed in question was in fact recorded is quite immaterial so far as the rights of appellant are concerned. Where a party files a deed or mortgage, properly executed and acknowledged, for record with the proper officer he has complied with the law, and he is not bound to see that the officer performs his duty by actually recording it, nor will the law hold him responsible to the parties for the omission or neg
We are, however, satisfied from other testimony contained in the bill of exceptions that the deed was actually recorded. It appears from the testimony of W. L. McClay, who was the county clerk of Frontier county during the year 1882, that between the 15th and 25th days of December of that year, at the request of Burton & Harvey, of ■Orleans, he examined the records of his office for the purpose of ascertaining what property, real as well as personal, was owned by said W. H.. Miles; that upon such •examination he found that the title to the land in litigation stood of record in the name of Laura C. Murphy, which was the maiden name of Mr. Miles’s first wife. No testimony was introduced by appellee to controvert the fact of the recording of the deed, but he insists that the evidence introduced by appellant is insufficent to establish that the instrument was ever recorded. His contention must be ■overruled. The fact that the record of this deed was destroyed does not affect the rights of appellant. There can be no doubt that^where a deed, properly executed and acknowledged, is duly filed and recorded, it is thenceforth ■ notice to all the world, although the record may be totally ■destroyed by fire. Such is the uniform adjudication in this country. (Wade on Notice, sec. 157; Alvis v. Morrison, 63 Ill., 181; Shannon v. Hall, 72 Id., 354; Gammon v. Hodges, 73 Id., 140; Myers v. Buchanan, 46 Miss., 397.)
To our mind it is perfectly plain that the mother of appellant at the time of her death was the owner in fee simple of the real estate involved in this litigation. Under the law in force at the time of the death of the mother the husband, William H. Miles, took only a life estate in the lands, and, subject to his right of curtesy, they descended to appellant as the sole and only heir at law of Laura C,
It is claimed that the mortgage is-invalid for the reason that at the time of the death of Laura C. Miles the premises were occupied by her and hér husband as a family homestead, and the husband therefore could not incumber the same. As no such issue is tendered by the pleadings in the case we will not take the time to consider the point, raised in the brief of counsel. „
Lastly, it is urged that William H. Miles has no estate-by the curtesy in the premises for the reason appellant's, mother acquired title thereto directly from him by a deed of general warranty, and the cases of McCulloch v. Valentine, 24 Neb., 215, and Pool v. Blakie, 53 Ill., 495, are cited in the brief of counsel in support of the proposition.. An examination of these authorities will show that they are not in point. In the case in our own reports one Ebenezer McCulloch, by his last will and testament, provided that a certain farm owned by the testator should be sold by his executors and the money arising therefrom be equally divided among his daughters, stipulating that the share going to his daughter, Elizabeth Pemberton, should be re
•The decree of the district court is reversed and the cause is remanded to said court with instructions to enter a decree of foreclosure and sale .only of the life estate of the defendant William H. Miles in the mortgaged premises and quieting the title to the property in the appellant Laura Miles, subject to said estate by the curtesy.
Judgment accordingly.