29 Vt. 305 | Vt. | 1857
The opinion of the court was delivered by
The questions in this case arise upon a motion in arrest of judgment for the insufficiency of the declaration, and upon exceptions allowed upon the trial of the case before the jury. The second count, on a former hearing of the ease, was adjudged sufficient upon general demurrer, and is now regarded as sufficient upon this motion in arrest. If the plaintiff is entitled to an affirmance of the judgment on the second count, the motion in arrest is obviated; but if otherwise, the questions in the case arise on that motion, whether the facts stated in either of the other counts are sufficient to sustain the action.
The action is brought on that provision of the statute which renders towns liable for damages which have accrued to any person by reason of the neglect or default of their town clerk. It
But to sustain an action of this character, it must appear that the neglect of the town clerk was the cause of the injury, and that the want of such an index, or his neglect to submit the records of his office to the plaintiff’s examination, is 'the reason why actual knowledge of the existence of the mortgage was not obtained. There is no ground of complaint for any neglect of official duty by the town clerk when that neglect in no way contributed to the injury which the plaintiff has sustained. The principle applies to this case as well as to others, that the injury must not result from the plaintiff’s negligence or want of proper diligence. In relation to the neglect of the town clerk to make an index to that mortgage deed, the court properly charged the jury that, “ as the plaintiff never examined the records, and was not
In relation to the neglect of Edgerton to submit to the plaintiff’s examination the records in his office, it may be observed that such a request is averred in this count; and if there had been any testimony proving that averment, the plaintiff would have been entitled to recover in this action. It does not appear from the ease that the question, whether a request was made to examine the records, was a matter submitted to the jury. The case, on all the counts, was made to rest on the false representations of Edger-ton that the premises were free from incumbrances •; for the coftrt instructed the jury that if the plaintiff omitted to make that examination of the records in consequence of the false information given by Edgerton, the want of such an examination would not preclude the plaintiff from a recovery. The effect of that charge is that, if those representations were made by Edgerton, it will dispense with the necessity of proving an examination of the records or of making any request for that purpose. But we think that doctrine cannot be sustained. So far as the townsof Windsor and West Windsor are concerned, no act of Edgerton will excuse the plaintiff from using those facilities, or complying with those requirements for which express provisions are made by statute ; and particularly it is necessary, in this case to prove such a request, as such is the averment in this count. It is not competent to prove an excuse for not making such -a request under an averment that an actual request was made.
But if we were to regard that question as submitted to the jury, and as now properly before us, the difficulty in the case is not avoided, as we think there is no evidence stated in the case tending to prove that, for the examination of the town records, a
The questions on the motion in arrest of judgment arise upon the first, third and fourth eounts. We are to regard the facts stated in each of these counts as having been found by the jury on competent testimony. The third count, in common with all the others, contains the averment that Edgerton neglected to make an index to the record of the Curtis mortgage. It is then stated that, with a view to mislead the plaintiff, and thereby prevent him from making an examination of the records in his office, he represented
The statute provides that towns shall be liable to make good all damages which shall accrue by reason of the neglect or default of any town clerh, &c. To ascertain whether there has been any such neglect or default, it becomes material to ascertain the duties which are imposed upon the town clerk by law; for it is only for the neglect to perform official duties, or such as the statute requires, that towns are liable; Hathaway v. Goodrich, 5 Vt. 66; Davis v. Clements, 2 N. H. 390; People v. Schuyler, 5 Barb. S. C. 168. The statute (Slade’s Comp; 414,) provides that town clerks shall provide books, with an index for registering deeds and other evidences respecting titles to lands, and also for recording the proceedings of town meetings and such other acts and things as are by law required to be recorded ; and it is made his duty to record all such matters, to furnish copies of the same, duly attested by him, and on proper request, to show the records and files .in his office. These are the specific duties enumerated by statute, so far as they are material to be now considered. It will be observed that the powers and duties of the town clerk are confined to making truthful records of all matters left with him which by law are to be recorded, to duly exemplify copies of the same, and to keep and preserve them for public Use and inspection.
The intention of the legislature and the policy of the act are obvious; It was their intention to provide a feasible method,
In the ease of Hill v. Bellows, 15 Vt. 727, it was held that a certificate of a town clerk that a person had not conveyed land is not evidence of that fact. Williams, Ch. J., observed, “ The certificate of the town clerk is evidence of what is on record, but he is not a certifying officer as to what does not appear of record.” The certificate was not evidence in that case, because it was not an official act; and if not an official act it is not a matter for which in any way towns can be made liable. The intent with which such certificates or statements are made, does not affect the case.
The first and fourth counts are for the-reasons which have been stated in connection with the third count, regarded insufficient. The first count contains the averment that Edgerton neglected to disclose to the plaintiff the existence of the mortgage previous to the purchase of the premises; and that is the gravamen of the count. The fourth count is similar to the first, with the additional allegation that the neglect to make that disclosure was with a fraudulent intent. If the representations of the town clerk cannot be regarded as official acts, his neglect to disclose facts within his knowledge cannot be regarded as such. The difficulty in sustaining these counts arises from the consideration that towns are liable only for some neglect or default in keeping the town records, and not for any representations of the town clerk, nor for his neglect to disclose facts within his personal knowledge. If the town clerk has made such representations, or has neglected to make such disclosures, they are personal considerations, the same as if done by any private individual; and for such matters towns are not
The result is that the judgment of the county court must be reversed, and a new trial granted.