Johnson v. Brice

102 Wis. 575 | Wis. | 1899

Marshall, J.

A number of questions are discussed in appellants’ brief, not of controlling importance in disposing of the appeal, therefore they will be passed without special mention. The facts are found by the jury on sufficient evidence to present for consideration this question: Where it is the official duty of the register of deeds to keep a tract index and he fails to perform that duty in respect to a mortgage upon a particular parcel of land, and thereafter a person relying upon such index as correct purchases such parcel believing it to be free from incumbrances, and subsequently, on discovering the existence of such mortgage, he makes unsuccessful efforts to secure a release of his property from it, and failing in that regard purchases the mortgage in order to clear his title of the incumbrance and protect himself so far as practicable against loss, and thereafter he reimburses himself for his expenditures in buying up the mortgage so far as practicable by enforcing the same as to all property covered by it other than his own, and then exhausts his remedy against his vendor and the party personally liable for the mortgage debt as well, can. he hold the defaulting register and the sureties upon his official bond for the balance of his loss if his action to do so be not commenced till more than six years after the default of the register as to the tract index ? That presents what is involved in this case in a narrow compass so that it can be easily understood.

It is conceded that it was the duty of the register to keep the tract index and that he did not perform that duty as to the mortgage in question. Sec. 762, R. S. 1878, covers the subject of duty. The conditions of the register’s official bond bound Mm and his sureties for the correct and impartial performance of his duties. Sec. 755, R. S. 1878, covers that subject. Any person injured by neglect of the register constituting a breach of his bond has a right of action on such bond in his own name to recover his damages caused by such neglect. Sec. 985, R. S. 1878, covers 'that subject. The statutes referred to, on, the facts of this case, fix beyond reasonable controversy the liability of defendants for the damages to plaintiff caused by the neglect of the register, and entitle him to the judgment appealed from if the action was brought in time and the proper measure of damages was adopted in reaching it. Plaintiff had a right to rely on the tract index. While there is evidence that some examination in his behalf was made of the indexes other than the tract index, the jury found that the defect in the latter was the cause of plaintiff’s failure to discover the existence of the mortgage before he purchased the lot. It follows that whatever legal damage resulted to him from the mortgage goes back to the neglect of the register to properly perform his official duty, and is chargeable to him and his sureties, unless the claim is barred by the statute of limitations, as before stated.

But it is said that notwithstanding Schaller, the holder of the mortgage, refused to release plaintiff’s lot therefrom, he had no right to purchase such mortgage or incur expense, to the defendants’ loss, till compelled to do so by an enforcement of the mortgage by Schaller, “because,” says the learned counsel, a person circumstanced as plaintiff was “ is not obliged to redeem from the mortgage and cannot recover compensation for an uncertain injury,” citing authorities to the effect that only actual damages are recoverable for breach of a covenant against incumbrances, and that a person who is liable to suffer from such a breach is not obliged to buy up the incumbrance, but may wait till eviction has taken place and then sue for the consideration paid for the property, with interest. Such authorities have no application here, because, in the same connection, it is ruled that a person so circumstanced may free his property from the in-cumbrance if he sees fit to take that course, and then hold the covenantor liable for the actual damages caused by it. The universal rule, as stated in Rawle, Covenants (2d ed.), 158, is that, “If the character of the incumbrance be such as to admit of removal, the plaintiff is entitled to recover the amount which he has fairly and reasonably paid for its extinguishment.” Eaton v. Lyman, 30 Wis. 41, cited by appellants’ counsel to support'his proposition, states both rules referred to together, to the effect that while a covenantee is not bound to discharge the incumbrance before bringing suit for a breach of it, unless he suffers actual damages by effecting such a discharge before suit he can recover only nominal damages. Eor further authorities on the subject, see Rawle, Covenants (5th ed.), § 188; Coburn v. Litchfield, 132 Mass. 449; Braman v. Bingham, 26 N. Y. 483; 3 Washb. Real Prop. (5th ed.), 529; 2 Suth. Dam. (2d ed.), § 623; Pillsbury v. Mitchell, 5 Wis. 17; Noonan v. Ilsley, 21 Wis. 138. The law on this subject is so well settled that it would look too much like treating the question as one for serious consideration to pursue it further. It is the undoubted right of the owner of real estate upon which there is an incum-brance, which another is legally bound to him to discharge, but has failed to do so, to extinguish it, expending no more for that purpose than is reasonably necessary, relying on such other for reimbursement; and when that is done the amount of the expenditure, with interest, will be the true measure of such person’s damages and such other’s liability.

It is not necessary to say here whether it was requisite under the circumstances of this case for plaintiff to have ex' hausted his remedy against his covenantor and on the note and mortgage as to property other than his own covered by it as well, before pursuing the register and his bondsmen. The rule is that way in many jurisdictions, and certainly he was permitted to do so, and defendants have no reason to complain on that score so long as they are unable to make any showing but that plaintiff proceeded with diligence and care. Undoubtedly, in such cases, the expenditures should be carefully scrutinized, and no more included in the recovery than was reasonably necessary.

The foregoing rule as to the measure of damages for breach of covenant against incumbrances applies in regard to indemnity for loss to a person caused, without fault on his part, by neglect of a register of deeds in respect to his official duties. Throop, Pub. Off. § 743; Wacek v. Frink, 51 Minn. 282; Lusk v. Carlin, 5 Ill. 395; Chase v. Heaney, 70 Ill. 268; Ziegler v. Comm. 12 Pa. St. 227.

There is left for consideration the effect of the statute of limitations pleaded- It does not definitely appear by the answer what particular statute is relied upon, but appellants’ counsel suggests in his brief subd. 3, 4, sec. 4222, E. S. 1878. The learned counsel failed to give proper significance to the fact that this action is on a sealed instrument. Sec. 4220 covers such actions, except those mentioned in secs. 984, 3968, and 4222, none of which refer to an instrument like the one in suit. Sec. 984 covers actions by public corporations upon official bonds; sec. 3968 refers to actions on guardians’ bonds; and sec. 4222, so far as it applies to sealed instruments, refers to actions on public obligations in writing for tbe payment of money. So tbe twenty-year statute, not tbe six-year statute of limitations, governs, beyond room for reasonable controversy, and tbis action was brought in time.

Tbe other questions suggested in tbe argument of tbe learned counsel for appellants have received such consideration as their importance requires. Tbe reason why they have not been specially treated is that they do not appear to be of sufficient significance to affect the' result.

By the Court.— Tbe judgment of tbe circuit court is affirmed.