35 A.D. 459 | N.Y. App. Div. | 1898
By chapter 2Y9 of the Laws of 1833, as amended by chapter 528 of the Laws of 1896 it is stated: “ Every mortgage * * * shall cease to be valid * * * after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration * * * a statement describing such mortgage, stating the names of the parties, the time when and the place where filed, and exhibiting the interest of the mortgagee in the property thereby claimed by him by virtue thereof, shall be again filed in the office of the clerk or register,” etc.
The relator shows that, in conformity with this statute, he presented such a statement to the register on the 2d day of July, 1898,
A failure to comply with the War Revenue Law is a matter with which the register has nothing to do. The duty of the register is to record or file in his office those instruments or papers which, by the laws of the State, are entitled to be recorded or filed. Whether in the making or execution of such instruments the parties thereto-have made a valid instrument or not it is not his province to determine. In Moore v. Moore (47 N. Y. 467), a case arising under the Revenue Law of 1862, it was held that it is not in the constitutional power of Congress to provide for the State a rule for the-transfer of property, and that a deed is valid to prove title though not stamped, and in People ex rel. Barbour v. Gates (43 N. Y. 40) it was held that Congress cannot make rules of evidence for State courts.
It is true that by sections 14 and 15 of the War Revenue Law of 1898 it is provided “ that hereafter no instrument, paper or document, required by law to be stamped, which has been signed or issued without being duly stamped, or with a deficient stamp, nor any copy thereof, shall be recorded or admitted or used as evidence in any court until a legal stamp or stamps, denoting the amount of tax, shall have been affixed thereto as prescribed by law,” and that “the record, registry or transfer of any such instruments upon which the proper stamp or stamps aforesaid shall not have been affixed and canceled as aforesaid shall not be used in evidence.” It is apparent that these regulations apply only to records pursuant to United States statutes .and to evidence admissible in courts of the United States. As has already been decided by the Court of Appeals of this State in regard to provisions of the previous Reve
We think, therefore, that the disposition made below was erroneous and that the order should be reversed and the application for the writ of mandamus granted, but, as against a public officer, without costs here or in the court below.
Van Brunt, P. J., Barrett, Rumsey and Patterson, JJ., ■concurred.
Order reversed and application granted, without costs in this court or in the court below.