Ferris v. Smith

24 Vt. 27 | Vt. | 1851

The opinion of the court was delivered by

Roxce, Ch. J.

Whether trover is a proper form of action upon the facts of this case, has not been made a question in the argument. That it would lay against Wells, the debtor, for his actual disposition of the property, cannot be doubted. And it is probably a legitimate conclusion from authority, that if the plaintiff had a right to recover in any form of action, against this defendant, he was at liberty to elect between trover for the property, and assumpsit upon the defendant’s receipt: — that the surrender of the property to Wells being unauthorized by the plaintiff, and made at the defendant’s risk, the conversion of it which ensued was properly chargeable upon him.

The objection to the competency of Griffin as a witness for the plaintiff, is answered by the case of Allen v. Carty et al., 19 Vt. 65.

The important question in the case, is, whether Griffin had authority to demand the property. In making the demand upon the defendant, Griffin could doubtless be regarded as the plaintiff’s agent for that purpose. The plaintiff, or those acting for him in his absence, sent the defendant’s receipt to Griffin, expressly to enable him to pursue and demand the property upon it. By the terms of that receipt the defendant had undertaken to return the property to the plaintiff, or the bearer of the receipt, on demand. The plaintiff was not bound to await the issuing of execution or the recovery of judgment, by the attaching creditors against Wells, but could lawfully demand a return of the property at any time. And as he could do this without legal process, so he could make the demand in person, or by any private agent entrusted with the receipt for the purpose of making it. It is true that Griffin professed to act in the matter as deputy sheriff; but if he had not the authority of that office, the law would sooner refer his act to another right or capacity which might render it effectual, than suffer it to be unavailing and nugatory.

And perhaps upon similar considerations the demand upon the plaintiff could also be sustained, by treating Griffin as having made it in the character of a mere agent or servant of Blodgett, the sheriff. But the argument has been mainly directed to the question of Griffin’s authority as a deputy sheriff; and we think the validity of the demand (on the plaintiff especially,) more properly depends upon that question.

As he had been appointed to the office, and had for some time assumed-to discharge the duties of it, he would on common principles, be regarded as at least an officer defacto, whose acts would be valid as between these parties. Rex v. Lisle, 2 Str. 1090. McGregor v. Balch, 14 Vt. 428. By the statute, however, ij¿ is not enough that a sheriff’s deputy be appointed, commissioned and sworn ;— another requisite is added, — that before he proceeds to act, he cause to be recorded his deputation and the certificate of his oath of office. Until this is done, it is expressly enacted that “ his official acts shall not be valid.”' And to hold that without a compliance with this requisition, the official acts of the deputy are available between third persons, as being those of an officer de facto, would be to annul this enactment in a great majority of the cases to which its terms are applicable. We must therefore regard the enactment as having been purposely interposed in the case of a deputy sheriff thus situated, to prevent any such construction in support of his acts in that character.

It remains to be determined whether the deputation and certificate were seasonably recorded. For the defendant it is claimed, that nothing short of a full enrollment in the County Clerk’s book of records could have any effect under the statute. The plaintiff insists, that by lodging the papers in the office of the clerk to be recorded, and paying the fees for recording, Gh'iffin became qualified to act officially; and that the record afterwards made, took effect by relation from the time of so lodging the papers for record. The distinction is between those cases where the record is made essential in working a transmission of title, or in creating or defeating a right, and those where it is'required for the purpose of public notice. In cases of the former class,— as the levy of an execution upon real estate, nothing is effectually accomplished, until the necessary records are completed. Morton & Clark v. Edwin, 19 Vt. 77. But in those of the latter class, where the title is passed, or the right acquired, by act of the parties, as in the conveyance of real estate by deed, though a record is necessary, in order to give full effect to the transaction for collateral purposes, it is made so as the medium of general notice. And as a public recording office is a place where all persons have the right to apply for information, as well in regard to instruments lodged there for record,-as to the records already made, the act of a party in lodging the evidence of his title in such an office, for the bona fide purpose of having it recorded without delay, and the reception of it by the recording officer for the same purpose, are held to operate like the record itself, as notice to third persons. In other words, the deed or instrument thus depositéd and received, is deemed to be of record, or recorded. Marbury v. Madison, 1 U. S. Cond. R. 273-4. This is on condition, to beAure, that a full and proper record be ultimately made, and that the party shall in no way interfere to prevent or delay the making it. Sawyer & Rogers v. Adams, 8 Vt. 172. Now it is certain that Griffin became fully invested with his office by the concurrent acts of the sheriff and himself. Marbury v. Madison, ut supra. The record enjoined by statute had no efficacy in creating or conferring it. And the. only object of the statutory provision was, to furnish to the public timely and incontestable evidence or notice of his appointment and authority to act. The reasons for the enactment with such a purpose in view, are strong and obvious ; for it deeply concerns the public to know who are empowered to act as executive officers, and for whose acts in such a capacity the sheriff of the county is responsible. But notice being the whole object of the requirement, we consider that this case is evidently to be ranked in the second class before mentioned, where the record, though perfected at a subsequent period, is constructively deemed to exist from the time of lodging the instrument for record. It follows, that at the time of demanding the property in this instance, Griffin was authorized to act as a depúty sheriff, and had competent authority to make the demand.

Judgment of the county court affirmed.