Mangold v. Barlow

61 Miss. 593 | Miss. | 1884

Campbell, C. J.,

delivered the opinion of the court.

The question is, who shall suffer loss from an error of the clerk in recording a deed duly acknowledged and lodged with him for record? Hoes the grantee acquit himself fully of all duty when he delivers the deed to the proper officer for record, or is it his duty ,to see that the instrument is properly recorded? And if a mistake is made in recording by which a subsequent grantee is misled and injured, whose claim shall prevail, that of the first grantee, who relied on the officer to do his duty, or of the second grantee, who, in the faith that the record, is true, acts upon it? Shall the deed prevail or the record of it ? There is great contrariety of opinion on this subject in other States. The courts of New York, Ohio, Vermont, Michigan, Iowa, Wisconsin, Minnesota, Georgia, Tennessee, Missouri, and California hold that subsequent purchasers are bound only by what the record shows, while those of Alabama, Illinois, Pennsylvania, Connecticut, Rhode Island,.Virginia, and Texas hold that a grantee who lodges the deed for record has done all that is required of him, and that the deed must prevail although a mistake is made in recording it; that from the time of its delivery to the proper officer for record it is considered as recorded, and for any error in recording by which a subsequent purchaser is misled and injured, he must look to the clerk for redress and cannot throw the loss on the first grantee, who did all he was required to do and should not suffer from the negligence of the clerk. The decided weight of authority seems to be in favor of the view that the record may be relied on by a subsequent purchaser, and that he cannot be affected by a deed not truly recorded. Frost v. Beekman, 1 Johns. Ch. 288 ; Beekman v. Frost, 18 Johnson 544; Barnard v. Campau, 29 Mich. 162 ; Sawyer v. Adams, 8 Vt. 172; Sanger v. Craigue, 10 Vt. 555 ; Terrell v. Andrew Co., 44 Mo. 309; Lally v. Holland, 1 Swan 396 ; Baldwin v. Marshall, 2 Humph. 116 ; Chamberlain v. Bell, 7 Cal. 292 ; Shepherd v. Burkhalter, 13 Ga. 443; Meller v. Bradford, 12 Iowa 14 ; Brydon v. Campbell, 40 Md. 331; Pringle v. Dunn, 37 Wis. 449. For the other view, are Franklin v. Cannon, 1 Root 500; Judd v. Woodruff, 2 Root 298; McGregor v. Hall, 3 Stewt. 397; Mines v. Mines, 35 Ala. 23; Nichols v. Reynolds, 1 R. I. 30; Merrick v. Wallace, 19 Ill. 486; Throckmorton v. Price, 28 Texas 605 ; Glading v. Frick, 88 Pa. St. 460; Clader v. Thomas, 89 Pa. St. 343; Beverly v. Ellis, 1 Rand. 102. After the most careful consideration we range ourselves with the minority, and hold that a grantee fully acquits himself of all duty imposed by law when he lodges the instrument with the proper officer for record, and from that time it is notice to subsequent purchasers and creditors of what it contains, and pot of what the recording officers may make it to show on the record. The clerk is not the agent of the grantee and he is not responsible for his blunders. He has as much right to rely on the fidelity of the officer as has a subsequent purchaser. While his deed is in the clerk’s office it shows its contents, and when it is withdrawn from the office it has annexed a certificate by the officer, that it has been duly recorded. Either this may be relied on, or the grantee must compare the deed with the record to see if it is truly transcribed. This would be an unreasonable requirement. The first grantee having done all that he is required to do to give notice of the instrument may safely repose on the presumption that the recording officer has done his duty, and if subsequent purchasers or creditors suffer injury from official negligence or misconduct, they must seek redress from the party at fault, and cannot visit the loss on him who has done no wrong. In announcing this view we follow the language of our statute and the rule most consonant with justice and sound policy. The statutes declare that certain instruments shall be “void as to all creditors and subsequent purchasers for valuable consideration, without notice, unless they shall be acknowledged or proved and lodged with the clerk of the chancery court of the pn'oper county to be recorded.” The grantee is not required to record the instrument or to see that the officer does his duty. All that is imposed on the grantee isthat the instrument shall be acknowledged or proved and lodged with the clerk of the chancery court of the proper county. There his duty ends. That done, his deed is not to be void as to subsequent purchasers or creditors. That is a performance of the condition without which it would be void, and the condition having been performed the instrument is discharged of all conditions and is thenceforth valid as to all. The State has established depositories for instruments to be recorded and has prescribed the duties of recording officers. This is for the benefit and protection of subsequent purchasers from a grantor and his creditors. A grantee must have his deed put in condition for being recorded and must lodge it at the proper place for record. That is ail that is required of him. He is not a guarantor of compliance by the recording officer with the law as to recording. It 'is not for his benefit that the recording is to be done, but for others. The State has undertaken to have the recording done, and if one suffers from the negligence of the officer he must seek redress from the officer.

The judgment of the circuit court is reversed and the cause remanded for a new trial.