97 Me. 222 | Me. | 1902
Lead Opinion
Bill in equity to redeem from a mortgage. The defendant holding under the mortgagee claims an absolute title through a complete foreclosure by publication. The plaintiff denies that the mortgage was legally foreclosed. And this is the sole issue here. The plaintiff urges several objections to the foreclosure proceedings, only one of which do we consider, as we think that one is necessarily fatal.
The statute, It. S., chap. 90, § 5, requires one who seeks to foreclose a mortgage by publication, to cause a copy of the printed notice, and the name and date of the newspaper in which it was last published, to be recorded in the registry of deeds in which the mortgage deed is, or by law ought to be recorded, within thirty days after such last publication. That the printed notice was recorded in this case is not in dispute. The defendant says in his answer that it ivas recorded Avithin thirty days after the last publication. But the certificate of the register, Avhich by statute is made prima facie evidence of the fact of such publication, does not prove the allegation. It is not dated, and there is no record evidence that the printed notice Avas seasonably recorded. By statute, every instrument is “considered as recorded” at the time when the minute of its reception is made by the register upon the instrument itself. R. S., c. 7, § 15. In order to effect a legal foreclosure, all conditions required by statute must be strictly performed. Freeman v. Atwood, 50 Maine, 473; Bragdon v. Hatch, 77 Maine, 433; Hollis v. Hollis, 84 Maine, 96; Belfast Savings Bank v. Lancey, 93 Maine, 422. And to support a foreclosure title, the performance of all statute conditions must be proved.
But if we were to concede the premises of the defendant, we do
It is suggested that the statute provision making the register’s certificate prima facie evidence of the fact of publication raises a fair
There being no record evidence that the printed notice was recorded seasonably, can the want of it be supplied by evidence aliunde? We think not. Besides the reasons already stated, there is a strong reason to be deduced from the very purpose of our system of registration of land titles, and that is, certainty and security of land tenure. The stability of land titles depends in a large degree upon the certainty of record evidence.
In Chase v. Savage, 55 Maine, 543, a mortgagor sought to extend the time when foreclosure would become absolute by showing that the mortgagee had fraudulently misstated to him the time when the right of redemption would expire. The court, after saying that the claim was not sustained by the evidence, added words which are peculiarly appropriate here. “Besides,” the court said, “the record was the only fountain from which such information could flow. To that place all parties interested could and must resort. Otherwise the record, designed to protect the interests of all, becomes a nullity, since it might be avoided by parol testimony, or the weight of testimony as judicially decided, based upon the imperfection of human memory, rather than the recorded certainty.”
Nor can the record be now amended. The record which makes a foreclosure legal and complete must be made within thirty days from the last publication. The record as it is on the last one of these
The foreclosure relied upon by the defendant is, therefore, ineffectual t'o give him absolute title. It is unnecessary to decide, and we do not decide, the other questions discussed by counsel, namely, whether the publication of notice as described in the register’s certificate was sufficient, and if not, then whether proper publication in fact may be otherwise shown.
The plaintiff is entitled to redeem. In accordance with the stipulation, the case is to be remanded to the court below to ascertain the amount due on the mortgage.
Bill sustained with eosts.
Case remanded in accordance with stipulation.
Dissenting Opinion
dissenting.
We dissent for the following reasons among others.
I. Our system of registration of titles is wholly the creature of statute. The registering officer is purely a statutory officer. He has only statutory duties which of course he must perform carefully and faithfully. The statute requires the register of deeds to minute on the instrument to be recorded the day and time of day when received. R. S., ch. 7, § 15. It does not require him to minute such time, or any time, on the page where the instrument is eventually recorded. The majority opinion concedes this, but proceeds to add that duty to his statutory duties. This seems to us legislation, which the constitution forbids the court to undertake.
The Legislature has required the town clerk, as a registering officer of chattel mortgages, to note the time on the record as well as on the instrument. It. S., ch. 91, § 2. ft has made no such requirement of the register of deeds. There is no presumption that this omission
II. The register of deeds was authorized by the statute to record this notice of foreclosure if filed within thirty days from its last publication. For him to record it if filed after that thirty days would be an unauthorized and unlawful act. DeWitt v. Moulton, 17 Maine, 418. The notice was recorded and there is nothing showing it to have been unlawfully recorded.
The ancient and favored rule is omnia rite acta praesumuntur. It has been repeatedly applied by this court to sustain interests otherwise imperilled by acts or omissions of public officers. Treat v. Orono, 26 Maine, 217; Shorey v. Hussey, 32 Maine, 579; Blanchard v. Dow, 32 Maine, 557; Pratt v. Pierce, 36 Maine, 448; McClinch v. Sturgis, 72 Maine, 468; Snow v. Weeks, 75 Maine, 105, 108; Maxcy v. Bowie, 96 Maine, 435. The majority of opinion, however, holds in effect that it must be presumed, not only prima facie but conclusively, that the record was unlawfully made, and that the register was guilty of an illegal act. No authority is cited in support, and we think none can be found.
III. The report of the case shows that the mortgagee in fact did all that the statute required .of him to perfectly foreclose the mortgage. He caused the proper notice to be published in the proper newspaper, and within thirty days after its last publication furnished to the register of deeds a copy thereof to be recorded, and the register “received” it for record within that time. There was nothing more for the mortgagee to do, or that he could do. The register
We think reason and authority both hold that the mortgagee having fully complied Avith the State’s requirements should not suffer from a subsequent omission of the State’s officer, but that the consequences should fall on the searcher, Avho after all only relies on such visible omission to establish his oAvn title. We are to assume, as above stated, that the register minuted upon the copy of the copy of the notice the time Avhen received for record. In Gillespie v. Rogers, 146 Mass. 610, 612, the court declared the 1¿av as folloAvs : “If the recording officer places upon it (the instrument to be recorded) his certificate that it has been so received, even though he afterwards fails in his duty, by recording it inaccurately, by omitting material portions of it, or even by altogether suppressing it from the records, yet in contemplation of laAV the whole Avorld has constructive notice of it, just the same as if it had been accurately copied in full upon the records. It is obvious that, under this rule, one searching the records may fail to find all that is necessary for his protection; but nevertheless he Avill be bound.” See cases cited in that opinion, especially Sykes v. Keating, 118 Mass. 517, 519; also see Monaghan v. Longfellow, 81 Maine, 278; Maxcy v. Bowie, 96 Maine, 435; Lewis v. Hinman, 56 Conn. 55; People v. Bristol, 35 Mich. 28; Nichols v. Reynolds, 1 R. I. 30; Chase v. Bennett, 58 N. H. 428; Mutual Life Ins. Co. v. Dake, 87 N. Y. 217; Bigelow v. Topliff, 25 Vt. 273; Steam Stone Cutter Co. v. Sears, 23 Fed. Rep. 313; Lytle v. Arkansas, 9 How. (U. S.) 314; 1 Devlin on Deeds, 686. All the above cases and many others sustain the doctrine that the person seasonably filing the instrument for record is protected, and the consequences of the recording officer’s subsequent omissions fall upon the searcher of the records. Only one case is cited in the
The effect of the majority opinion is to deny the citizen, without fault of his, an acknowledged legal right earned by his full performance of every legal duty imposed upon him, and though not necessary to protect the rights of innocent third parties. This seems to us an injustice which could be easily avoided by a reasonable application of approved legal principles.