Farabee v. McKerrihan, 172 Pa. 234

Farabee v. McKerrihan

172 Pa. 234 | Pa. | 1896

Opinion by

Mr. Justice Green,

The only question in this case is, whether a mortgage left at the recorder’s office to be recorded, but actually recorded in the deed book and indexed in the index of deeds, was sufficiently recorded to constitute a lien from the time it was left for record.

In the case of Luch’s Appeal, 44 Pa. 519, we held that mortgages must be recorded in mortgage books and are not properly recorded in any other species of book where they cannot be found by means of the mortgage index.

*239Bub in Glading v. Frick, 88 Pa. 460, Luch’s Appeal was distinctly overruled in an elaborate opinion delivered by Mr. Justice Paxson, in which the subject was reconsidered and carefully reviewed. Summing up the whole matter the opinion declares, “In contemplation of law a paper is recorded the moment it is lodged in the office and the fees paid. In point of fact it may not be, and in many instances is not, actually entered in the books until months afterwards. Where a man has complied with the law by depositing his papers in the recorder’s office and paying the fees, it would be a hard rule that would deprive him of his lien or his estate because of an error of the recorder in recording the instrument in the wrong book. It would be different were there an act of assembly directing in what book the particular paper should be recorded. In such a case the recorder might be liable upon his official bond for a failure to record as required by law. In the absence of any such act we are unable to see how we can declare that a paper is not recorded when the holder has done all that the act of assembly requires in placing it on record. To do so would seem very much like legislation.”

We ruled in this case that where certain instruments of writing are not required by law to be recorded in a particular book they may be recorded in any book kept by the recorder; and a building contract is valid though recorded in a deed book.

We have never departed from the ruling in Glading v. Frick. In the case of Stockwell v. McHenry, 107 Pa. 237, our late brother Clark, delivering the opinion,said, “Prior to the act of 17th March, 1875, at least, it was well settled that a deed was in contemplation of law recorded when it was left in the recorder’s office, and put upon the entry book for that purpose. The duty of the recorder was to record it, and the responsibility rested upon him for any default in the proper discharge of that duty; the consequences of his default could not be visited upon the owner, who had done all that the law required in depositing the deed in the office for that purpose. A different doctrine was perhaps declared in Luch’s Appeal, 8 Wright, 519, where it was held that mortgages must be recorded in a ‘mortgage book,’ and that they are not properly recorded in any other book where they cannot be found by means of a ‘ mortgage index,’ but that case was expressly overruled in Glading v. Frick, *2407 Norris, 460, where it was said by Paxson,. J., ‘ We feel ourselves constrained to return to the rule laid down by Chief Justice Gibson in McLanahan v. Reeside, 9 Watts, 511; “It is indeed, of no account,” says the chief justice, “that the conveyance and the articles were not recorded in the book set aside for mortgages; the keeping of such a book is an arrangement to promote the convenience of the officer by contracting the surface over which he is to search for a particular thing; he is bound to furnish precise information, get it as he may, of every registry in his office, whether made in the right place or not.’ ”

In Clader v. Thomas, 89 Pa. 343, we said, speaking of Luch’s Appeal, “That case, however, has since been overruled by this court in Glading v. Frick, 7 Norris, 460, and it is now settled that a deed is, in contemplation of law, recorded,when it is left for record in the recorder’s office, and the record cannot be lost by being transcribed by the recorder or his clerk in the wrong book.”

In the case of Paige v. Wheeler, 92 Pa. 282, referring to a defeasance which was not recorded in the mortgage book, but in the agreement book, Mr. Justice Mercur delivering the opinion said, “Inasmuch however as the defeasance was not recorded in the mortgage book, but in the agreement boob, it is claimed that it was improperly recorded, and therefore if in fact a mortgage the sheriff’s sale passed a title discharged therefrom. It may be conceded that this was the correct view under the authority of Luch’s Appeal, 8 Wright, 510. That case, however, has been expressly overruled by Glading v. Frick, 7 Norris, 460. It is there held that such an instrument of writing is properly recorded in any book kept by the recorder of deeds.”

In Shebel v. Bryden, 114 Pa. 147, the present chief justice referring to the fact that a deed of assignment was first indexed in the limited-partnership docket, and not in the deed book index, said, “ This did not invalidate the recording of the instrument. In contemplation of law it was recorded and took effect from the time it was left with the recorder for the purpose of being duly recorded. This principle is recognized in Glading v. Frick, 88 Pa. 463; Clader v. Thomas, 89 Pa. 343 ; Paige v. Wheeler, 92 Pa. 282; and Marks’ Appeal, 85 Pa. 231.”

After all these utterances it is in vain to contend that Luch’s *241Appeal is any longer of authority, or that Glading v. Frick is not the law as declared by repeated decisions of this court. The principle of that case is that when the holder of an instrument to be recorded has left it with the recorder to be recorded, it is to be regarded as actually recorded from that time, whether it was actually recorded at that time or not, or whether it was recorded in the wrong book.

But it is urged that the act of March 18, 1875, Purd. Dig. 565 and 568, in effect changes the law upon this subject as it was prior to its passage, and that under that act all mortgages must be recorded in mortgage books and indexed in mortgage indexes, in order to constitute notice to subsequent purchasers and incumbrancers. We are unable to sustain this contention. The act of 1875 contains no direction that deeds shall be recorded in deed books, or mortgages in mortgage books and so far as that aspect of the subject is concerned there is manifestly no change in the law as it stood up to the date of the act. All that the act does is to direct that in addition to the indexes which the recorders in each county are required to keep, they shall prepare and keep two indexes of deeds and two of mortgages, direct and ad sectum, in one of which the recorder shall enter the name of the grantor, the name of the grantee and the volume and page in which the instrument is recorded, and in the other of which he shall enter the name of the grantee, the name of the grantor and the volume and page of record, all in the order named in the act. The indexes are directed to be arranged alphabetically and in such a way as to afford an easy and ready reference to the deeds and mortgages respectively. The second section provides that as soon as the indexes are prepared the recorder shall index in its appropriate place and manner every deed and mortgage thereafter recorded in his office and the time the same is recorded. The third section provides that the entry of recorded deeds and mortgages in said indexes shall be notice to all persons of the recording of the same. This act contains no repeal of any of the prior legislation of the state nor is it inconsistent with any part of it. It did not assume to create any new rule of constructive notice of recorded instruments.

The act of the 28th March, 1820, Purd. 588, P. L. 122, provides that mortgages left for record shall be liens from the time *242they are recorded or left for record, and the contention of the appellants would practically destroy that part of this act which gives the same effect to being left for record as to being actually recorded. In Wyoming Nat. Bank’s Appeal, 11 W. N. C. 567, we held that a mortgage actually recorded though not entered upon the index is entitled to precedence over a subsequent judgment. We said, “Whatever the-effect of the failure of the recorder to enter the mortgage on his book of entries would have been in the case of a lien intervening between that time and the recording of the mortgage, we think such recording is a valid entry and record against a subsequent judgment.”

It is no answer to this or any of the cases heretofore cited to say that they were decided either before the act of 1875 was passed, or upon facts arising prior to its passage, because that act is not in conflict with them. Moreover the appellee’s mortgage was actually recorded in the book of deeds on August 2, 1884, nearly eight jmars before the judgments of the appellant were obtained. Being there recorded it was in the line of the title of the mortgagor and would have been at once discovered by any creditor desiring to investigate his title. Without extending the argument we dismiss all the assignments of error relating to this subject.

The sixth assignment raises a question upon the construction of the mortgage, to the effect that it was given only to secure future advancements to the mortgagor and therefore could not embrace the sum of $2,645.71, which it is agreed was advanced before the mortgage was given. But the auditor very correctly disposed of this contention by showing that on the day the mortgage was executed the mortgagor gave to the mortgagee a note under seal for $2,645.71, payable in four years, which contained the clause, “ being a part of the amount secured by my deed dated March 20th, 1884.” The parties thus made the sum named a part of the indebtedness to secure which the mortgage was given, which they had a perfect right to do. ’ It had precisely the same effect as if the mortgagor had paid over the amount to the mortgagee and then immediately taken back the money as a present advancement. There is no merit in this or the remaining assignments and they are all dismissed.

Decree affirmed at the cost of the appellant.