36 Pa. Super. 527 | Pa. Super. Ct. | 1908
Opinion by
The issue in this case was between a mortgagee seeking by scire facias to enforce payment of her mortgage and a terretenant, who, more than three years and one-half after the execution and delivery of the mortgage, bought the land from the mortgagor without actual knowledge of the existence of the mortgage. The case comes before us by appeal of the terretenant from the judgment upon the verdict directed in the plaintiff’s favor for the unpaid balance of the mortgage debt; and the single, assignment of error is that the court erred in overruling the defendant’s motion for judgment non obstante veredicto on the reserved questions. The reserved questions, as shown by the judge’s charge, were first, “whether there is any evidence entitling the plaintiff to recover as against A. A. LaRue,” the terre-tenant, secondly, whether under the law and the evidence the terre-tenant’s point for binding instructions should have been affirmed.
It appears that L. J. Marshall executed and delivered to Agnes Prouty a mortgage, dated January 24, 1900, and duly acknowledged on February 5, following, to secure the payment of $1,375, the unpaid purchase money of certain described land in the borough of DuBois, which was conveyed by her to him by deed, of even- date. A certificate, in these words, under the hand and official seal of the recorder of deeds, was indorsed on the mortgage: “ Entered of record Feb. 6th, 1900, by W. C. Pentz. Fees paid $2.50. Recorded in the office for Recorder of Deeds in and for Clearfield County in Mortgage Book No. 7, page 421, etc. Witness my hand and seal of office this 6th day of Feby. Anno Domini, 1900.” A scire facias upon a mortgage is founded on the instrument itself, not upon the record of it: Lancaster v. Smith, 67 Pa. 427; Tryon v. Munson, 77 Pa. 250; Michaelis v. Brawley, 109 Pa. 7. Hence the production of the mortgage duly executed and acknowledged, and
It is argued with great vigor by the appellant’s counsel that if his client had made or had caused to be made a search for mortgages against L. J. Marshall, his vendor, he would not have found any; that such a record is valueless as notice to subsequent purchasers and mortgagees of the mortgage given by L. J. Marshall; and therefore they ought not to be affected by it. This is the position taken by the courts of some of the states of the Union. The principle upon which they go is well expressed by Weight, J., in Miller v. Bradford, 12 Iowa, 14, where, speaking of the statutory provision that the deed shall be effectual to import notice from the time of depositing it for record with the recorder, he said: “This statute, in our opinion, was only intended to fix the time from which notice to subsequent purchasers was to commence, not to make such filing or depositing notice of the contents of the deed after the same was recorded. After the recording of the deed, the record itself is the constructive notice of its contents, and it never was the intention of the legislature to hold a subsequent purchaser, buying after the recording, bound by the contents of a deed, ever so improperly and incorrectly recorded, because at some time a deed correct in the description of the property was filed with the recorder.” See also Terrell v. Andrew County, 44 Mo. 309, where the same doctrine is elaborately and vigorously expressed. There are other cases outside this state to the same
Passing Luch’s Appeal, 44 Pa. 519, which was overruled in Glading v. Frick, 88 Pa. 460, the next case in chronological order is Speer v. Evans, 47 Pa. 141, wherein, as stated in the opinion, the only legal conclusion the record required the Supreme Court to declare was that actual is equivalent to constructive notice. But there is this dictum of Chief Justice Woodward: “As a guide to inquirers, the index is an indispensable part of the recording, and without it, the record affects no party with notice.” This, however, was questioned in the later case of Schell v. Stein, infra, and was distinctly rejected as an adjudication of the question in Stockwell v. McHenry, 107 Pa. 237.
Brooke’s Appeal, 64 Pa. 127, decided in 1870, arose out of a dispute between two mortgages. The case has an important bearing upon the case before us because, apart from the reasoning of the decision, it turned on the effect of the recorder’s mistake in transcribing the acknowledgment of the first mortgage. In consequence of this mistake, it was made to appear by the record that the mortgage was acknowledged a month before it was executed. It was argued by appellant’s counsel, upon the authority of Heister v. Fortner, 2 Binney, 40, and Solms v. McCulloch, 5 Pa. 473, and other cases, that the registry of a deed defectively proved or acknowledged is not constructive notice to a subsequent purchaser, and that, going by the record of the first mortgage, this principle was applicable. Justice Read, after summarizing the provisions of the act of 1820, said: “The mortgage therefore commences its record and its lien the moment it is left for record and is indorsed by the recorder, and entered upon the recorder’s book, as required by the Act of May 18,1775,1 Sm. L. 422. It may remain there weeks and months, before it is actually recorded, and yet it is
In Schell v. Stein, 76 Pa. 398, decided in 1874, the action was ejectment between a purchaser at sheriff’s sale under a judgment upon a mortgage given by the owner in 1871, and the holder of a deed given by the owner in 1856, recorded in the same year in a certain deed book and entered in the index of that volume but not in the general index of deeds. The point decided was that the act of 1827 imposed no duty as to indexes, except to have one for each book. “But surely the one who has had his deed duly acknowledged or proved, recorded in the proper book, and certified under the hand and seal of office of the recorder in due form, has done all the law requires of him. On what principle of law or sound reason shall he be required to supervise the officer’s gratuitous indexing of deeds in an index not required by law? He is not to be presumed to be familiar, and as a fact, nine out of ten persons are not familiar with the system of the office. All the citizen can be bound to know, is the law, and he is warned by no law that there must be kept a general index. Whether his title can be taken from him, by the omission to enter his recorded and certified deed in the particular index, may admit of question, but we give no opinion on this point.”
Woods’s and Brown’s Appeal, 82 Pa. 116, decided in 1876, was an appeal from a decree distributing the proceeds of a sheriff’s sale of land of John S. Bare. The dispute was between a mortgagee and subsequent judgment creditors. The mortgage was left for record and entered on the entry book on July 15, 1872, but was not transcribed in the mortgage book
Following the chronological order of the cases we now come to Glading v. Frick, 88 Pa. 460, decided in 1879. The precise question was whether a building contract had been “duly recorded in the office for recording deeds within fifteen days after the execution thereof.” If it was, then under the act of April 3, 1872, the building and land were liable to the contractor alone for work done or materials furnished pursuant to the. contract, and the plaintiff (not being the contractor) in the scire facias upon the mechanic’s lien in question could not recover. It was shown'that the contract was recorded in the deed book, and it was argued upon the authority of Luch’s Appeal that this was not the proper book, and, therefore, the contract was not “duly recorded,” and the defendant could not claim the benefits of the act. Paxson, J., said: “The fact that it was recorded in a deed book did not prejudice the plaintiffs, they had made no search and were not misled.” But the decision was not put on that ground (if it were it would fit this case exactly) but upon the broad ground thus stated: “In contemplation of law a paper is recorded the moment it is lodged in the office and the fees paid. In point of fact it may not be, and in many instances is not actually entered in the books until months afterwards. Where a man has complied with the law by depositing his papers in the recorder’s office and paying the fees, it would be a hard rule that would deprive him of his lien or his estate because of an error of the
Wyoming National Bank’s Appeal, 11 W. N. C. 567, decided in 1882, involved a controversy between a mortgagee and a judgment creditor of the mortgagor, whose judgment was for an indebtedness incurred prior to the execution of the mortgage. The mortgage was left for record May 2, 1873, which it will be noticed was prior to the act of 1875, but was not actually transcribed until six weeks after; nor was there in the meantime any entry made in the entry book or any other book; nor was it indexed until 1879. It was held on distribution of the fund realized from an orphans’ court sale that the mortgage was entitled to precedence over a judgment entered in 1878. As to what the effect of the failure to entei the mortgage in the entry book would have been in the case of a lien intervening between that time and the recording of the mortgage, the court declined to express an opinion; but it is very evident from the opinion that the omission to enter the deed or mortgage in the entry book is not under all circumstances fatal to the recording of the instrument.
Paige v. Wheeler, 92 Pa. 282, decided in 1880, arose out of the recording of a defeasance in the agreement book instead of the mortgage book. The point decided and the facts out of which the controversy arose are concisely stated in the following excerpt from the opinion of Justice Mercur: “Cooper, one of the plaintiffs .in error, claims title by virtue of his purchase at sheriff’s sale as the property of his co-plaintiff, Paige. The judgment on which it was sold was entered after the deed from Paige to the defendant in error and after the contract of defeasance were recorded. Inasmuch, however, as the defeasance was not recorded in the mortgage book, but in the agreement book, it is claimed that it was improperly recorded, and, therefore, if in fact a mortgage, the sheriff’s sale passed a title discharged therefrom. It may be conceded that this was the correct view under the authority of Luch’s Appeal, 44 Pa. 519. That case, however, has been expressly overruled by Glading v. Frick, 88 Pa. 460. It is there held that such an instrument of writing is properly recorded in any book kept by the recorder of deeds. Cooper then bought subject to the claim of the defendant in error, conceding the conveyance to have been a mortgage. If a mortgage, the latter can recover no more than the sum loaned, which it was given to secure, with legal interest thereon.”
Shebel v. Bryden, 114 Pa. 147, decided in 1886, recognized,
Stockwell v. McHenry, 107 Pa. 237, which, though decided by the Supreme Court in 1884, related to an instrument recorded in 1865, and therefore the indexing act of 1875 did not apply. It was held: first, that the legal effect of the incorporation of a company under the act of 1854 was to vest in the corporation the title to all the lands in the certificate described without any further conveyance or assignment; secondly, that although the act provided that the certificate should be “recorded in the office for recording of deeds .... in a suitable book to be kept for that purpose,” it was not necessary that the names of the individual corporators named in the certificate be indexed in the recorder’s office in order to make the conveyance effective as against a mortgage subsequently given by two of the corporators upon their undivided interests. The opinion of Justice Clark so clearly states the duty, and its limits, of the grantee in a deed or mortgage in order to protect his title or his lien against subsequent purchasers and mortgagees that we quote from it at length. He says: “Assuming, therefore, that the certificate was in the nature of a conveyance, and that a proper indexing required that the names of the corporators contributing the land should be placed with the grantors, it does not follow that the failure of the recorder so to do invalidated the record. Prior to the act of March 18, 1875, at least, it was well settled, that a deed was in contemplation of law recorded when it was left in the recorder’s office and put upon the entry book for that purpose. ... No duty rested upon the Forest County Oil and Mining Company, to supervise the action of the recorder, to see that he made the
There remains to be noticed one other case, Farabee v. McKerrihan, 172 Pa. 234. McKerrihan gave a mortgage to Farrabee, which was recorded in the deed book and indexed in the deed book index, instead of the mortgage book. It seems not to have been entered in the fair or entry book. On the distribution of the proceeds of sheriff’s sale of the land it was held that the mortgage was entitled to precedence over subsequent judgment liens. The case is valuable in the determination of the question before us, because Justice Green, speaking for the court, after an elaborate review of all the earlier cases, declared the law to be “that when the holder of an instrument to be recorded has left it with the recorder to be recorded, it is to be regarded as actually recorded, from that time, whether it was actually recorded at that time or not, or whether it was recorded in the wrong book.” The decision is particularly valuable also because it is the first case which discussed and determined the effect and applicability of the act of March 18, 1875. Justice Green says: “But it is urged that the Act of March 18, 1875, P. L. 32, in effect changes the law upon this subject as it was prior to its passage, and that under that act all mortgages must be recorded in mortgage books and indexed in mortgage indexes, in order to constitute notice to subsequent purchasers and incumbrancers.” Then after summarizing the provisions of the act he proceeds: “This act contains no repeal of any of the prior legislation of the state nor is it inconsistent with any part of it. It did not assume to create any new rule of constructive notice of recorded instruments. The Act of March 28,1820, 7 Sm. L. 303, provides that mortgages left for record shall be liens from the time they are recorded or left for record, and the contention of the appellants would practically destroy that part of this act which gives the same effect to being left for record as to being actually re
"Undoubtedly individual cases of hardship have arisen and will arise under the rule contended for by the appellee’s counsel. So there would under the rule contended for by the appellant’s counsel. But, in view of the foregoing decisions, it is impossible to see how a grantee in a deed or in a mortgage can be expected to do more to protect his title or his lien against subsequent purchasers and mortgagees than the appellee did in the present case. If it be said that before removing her mortgage from the recorder’s office she ought to have taken pains to see that it was duly recorded, the answer is, and under the Pennsylvania decisions it seems to be a conclusive answer, that she did not remove her mortgage until there was indorsed upon it the certificate, in the form prescribed by the statute, of the keeper of the record, who was authorized to make it, that the mortgage was duly recorded. As a result of a thorough examination of the decisions we conclude that if a mortgage, entitled to be recorded, is left with the proper officer for that purpose, and the fees are paid, and is not withdrawn until there is indorsed thereon the recorder’s certificate as above stated, and there is nothing to show why he should not rely upon that certificate, his lien will be protected against a subsequent purchaser without actual knowledge of its existence, although by a mistake of the recorder or his clerk, the name of the mortgagor is not correctly transcribed in the mortgage book or in the mortgage book index.
In the opinion of the learned judge below, there appears this sentence: “The writing of the scrivener of this mortgage undoubtedly misled the recorder.” The learned counsel for the appellant makes the point that if that be the fact the loss ought to fall upon .the mortgagee instead of upon the subsequent purchaser. This may be true, but the quoted remark
The judgment is affirmed.
