Fairbanks, Brown & Co. v. Davis

| Vt. | Oct 15, 1877

The opinion of the court was delivered by

Pierpoint, C. J.

The property in controversy in this suit was sold conditionally by the plaintiffs to one Puller, the title to remain in the plaintiffs until the property was paid for. The contract was reduced to writing and signed as required by the statute to give it effect against subsequent purchasers and attaching creditors, and was left in the city clerk’s office for record, and subsequently recorded.

After the aforesaid sale, and after the written contract was left with the city clerk, said property was attached by Meeker & Dean on a writ against said Fuller, and by said Fuller assigned to said Meeker & Dean, and by them sold to the defendants, who refused to deliver it to the plaintiffs on demand ; and this suit is brought by the plaintiffs to recover its value.

It is insisted on the part of the defendants that the written instrument referred to was not -recorded in the city clerk’s office within the thirty days after the property was delivered to Fuller, as is required by the statute to give it effect against subsequent purchasers and attaching creditors without notice ; that leaving it in the city clerk’s office for record was not sufficient; that it must have been actually spread upon the record within the thirty days.

The language of the statute is, that the instrument “ shall be recorded in the town clerk’s office of the town * * * within thirty days after such property shall be delivered,” &c. It is conceded that the instrument in question was not spread upon the record within the thirty days. Was that necessary ? The words used in this statute are the same as those used in the statutes requiring the record of deeds and other instruments conveying real estate — “ shall be recorded.” The object of the statute in both cases is, not to make the instruments valid and binding between the parties, but to give notice to all the world of the true state of the title. In respect to the statute requiring the record of deeds, &c., it has been repeatedly held that lodging the deed in the town clerk’s office and having it filed for record, are as effective for all purposes of notice, as spreading it upon the record, and is a compliance with the statute ; and that when put upon the record, the recording has relation back to the time of filing. No principle of law is better settled in this state, nor more universally understood by all classes, than this. We think it fair to infer that when the Legislature used the same words in the statute in question, it was understood and expected they would receive the same construction. There is no reason why they should not. Every argument in support of the one, applies with equal force in favor of the other. The act is the same, and the purpose is the same, in both cases. We think there was no error in the ruling of the City Court upon this branch of the case.

It is further urged on the part of the defendant, that the instrument in question was not lodged in the city clerk’s office for record within the thirty days. It appears from the case that the city clerk of the city of Burlington and the city treasurer occupied adjoining rooms in' the same building, with a vault between them that was used in common by them for storing the city records and books. It was the custom between said clerk and treasurer, when the clerk was absent from his office, for the treasurer to take such papers as were brought for record, and make a memorandum in pencil thereon of time, &c., and pass them to the clerk on his return. . On the 16th of November, 1874, which was within and the last of the thirty days after the delivery of said property to said Fuller, Howes, the agent of the plaintiffs, took said written contract of the sale to the office of the said city clerk, for the purpose of getting it recorded, and found said clerk absent; he then went to the office of the city treasurer, and the treasurer told him he could leave the paper with him, the said treasurer, for the said -clerk, and the said Howes did so, and the said treasurer received said paper for the clerk, and made a memorandum thereon of the time of receiving it, <&c. The next morning when the city clerk returned to his office, the paper was put into his hands, and he made a certificate thereon that it was received for record at the time, it was received by his agent, the city treasurer. Where the paper was kept in the meantime does not appear; but as the vault where the city records were kept was the appropriate place for it, it may safely be presumed it was put there for the clerk. Upon the facts in this case, we think the paper must be regarded as having been lodged in the city clerk’s office for record, from the time it was placed in the hands of the agent of the city clerk for that purpose on the 16th of November. It remained there open to the inspection of all, until it was spread upon the record, and for a long time before the attachment was made, and if the attorney who examined the record-book had inquired of the clerk if such a paper had been left, or had made his business known to the clerk, he would have obtained the information he sought. We think the City Court erred in the decision upon this point. *

Judgment of the City Court reversed, and judgment for the plaintiffs for the sum of $275.46, with interest and cost.