73 W. Va. 551 | W. Va. | 1914
By deed dated the 28th day of May, 1907, B. C. Conrad and M. J. Conrad his wife conveyed to P. B. Wethered a number of tracts of land, reciting a cash consideration of $6,000. The deed on its face appears to be an absolute conveyance in fee, but is admittedly a mortgage. On the -same date there was executed between said Conrad and Wethered a separate writing, agreeing that the deed was- intended as a mortgage, and that it was given to secure the payment of $2,145.13 that day loaned by Wethered to Conrad, and to secure any additional loans or advancements that might thereafter be made. Wethered thereafter endorsed notes for Conrad, which he had to pay, and also paid some judgments against him, amounting in all, with interest, to over six thousand dollars. Wethered then brought this suit to foreclose the mortgage. Conrad answered the bill denying that he had title to the three following tracts, which were described in the conveyance, viz: 20 acres, 3614 acres, and 8 acres and 18 poles, and averred that his wife M. J. Conrad was the owner in fee of those tracts by
Assuming, for the present, that Mrs. Conrad was, in fact, the owner of the three tracts in question, did the deed to Wethered operate as a conveyance of her title? Her counsel insist that the deed shows clearly that there was no intention to convey her land, but only the land owned by B. C. Conrad. The granting clause of the deed is as follows: “The said B. C. Conrad, and Mary J. Conrad, his wife, do grant and convey unto the said P. B. Wethered, with covenants of general warranty, those certain lots, tracts or parcels of land1 situate, lying and being in the District of Fork Lick, in the County of Webster, State of West Virginia, on the waters of Black Fork of Elk River, adjacent to the town of Webster Springs, and more particularly bounded and described as follows.” The several tracts are then taken up in order and described by giving the quantity of land in each, and by reference to the several deeds by which B. C. Conrad acquired title, and the deed book and page where recorded. The granting clause shows that Mary J. Conrad was as much a party grantor ajs her husband. The deed does not indicate that the purpose of her joining her husband in executing it was simply to release her contingent right of dower. It passed all the right and title which she then had to any of the land granted. That section 6, chapter 73, Code (1906), gives such effect to her deed is too plain, we think, to admit of question. It was
Appellants rely upon the following exception in the deed to show that the lots claimed by Mrs. Conrad were not intended to be granted, and were excepted from its operation, viz.: “But there is expressly excepted and reserved from this conveyance and from the operation thereof, so much of the said several tracts, lots or parcels of land 'aforesaid as has heretofore been granted and conveyed away by the said B. C. Conrad as shown by deeds of record in said County Clerk’s office, the intent and purpose of this conveyance and deed being to grant and convey unto the said P. B. Wethered that portion and quantity of all the aforesaid several lots, tracts or parcels of land now owned by the said B. C. Conrad.” This exception, however, is not of any entire tract, but only of such portion thereof as may have been previously conveyed. The tracts are not described by metes and bounds and reference to the deeds whereby Conrad got title was made for such description; and, but for the exception, the description by reference
Webster county courthouse burned in 1888, and a portion of the records therein contained, including Deed Book No. 5 in- which, as contended by appellants, the trust deed made to Darius Conrad, trustee, for Mary J. Conrad, was recorded, was destroyed. But Wethered insists that the deed was never recorded. Inasmuch as we have already decided that the effect of Mary J. Conrad’s deed is to pass to P. B. Wethered whatever title she had, for the purpose of securing the money loaned and to be loaned, as provided by the separate writing between B. 0. Conrad and said Wethered, the fact of record-ation would not be material, were it not for the additional fact that other creditors of B". C. Conrad are claiming liens upon the lots to which his wife is now asserting title. A decision of the question is necessary in order to determine their respective rights. The portion of the record destroyed included also the deeds by which title to the lots in question had been conveyed to B. C. Conrad. He procured these deeds to be re-recorded, pursuant to the provisions of chapter 73A of the Code, but he failed to have the aforesaid trust deed re-recorded, although he had the original in his possession. It seems to be well settled that, if a grantee has delivered his deed to the recorder at his office, he has done all the law requires of him and the subsequent mutilation, or destruction, of the record does not affect his right. This is certainly the rule in the absence of a statute making it his duty to have it re-recorded. Chapter 73A, providing for restoration of burnt and lost records, does not make it a duty. It makes it rather a privilege than a duty. The law on the subject is thus stated in 24 A. & E. E. L. (2nd ed.) 153: “A grantee in an instrument evidencing a conveyance to him, who has complied with
“Where a mortgagee places his mortgage on record, his rights under it are fixed, and it is notice for all time, notwithstanding the destruction of the record, and the mortgage may be enforced against a subsequent purchaser from the mortgagor, although he had no actual knowledge of the mortgage. ” Hall v. Shannon, 85 Ill. 473.
To prove that the deed had been recorded, appellants produced the original deed. It bears date the 9th of August, 1879, and appears to have been duly acknowledged' by the grantor on the same day. The certificate of acknowledgment is admittedly in the handwriting of B. P. Conrad who, as notary public, certified it. It also bears a certificate dated May 13, 1880, admitting the deed to record. This- certificate is admittedly in the handwriting of the appellant B. C. Conrad who, at that time, was deputy for his half brother B. P. Conrad, then clerk of the county court of Webster county, and is signed, “B. P. Conrad, Clerk. ByB. C. Conrad his Deputy. ” Endorsed on the back of the deed is the following memo-randa: “Admitted for record May 13, 1880. Attest: B. P. Conrad Clerk.” And just below it the following: “Recorded in Deed Book 5 pp. 396-7.” Even though the deed may not have been actually spread- upon the record, yet if it was delivered to the clerk for recordation, it is regarded as having been recorded from the time of such delivery. See Secs. 4 and 5, Ch. 74, Code; also numerous cases cited in 11 Enc. Dig. Va. & W. Va. Cases 689.
The commissioner found, and stated in his second report, that the deed to Darius Conrad, trustee, had never been .admitted to record and was, therefore, not a recorded instrument, and that the judgments against B. C. Conrad were liens on all the lands conveyed to P. B. Wethered and so reported
She also excepted to the report for the reason that sums of money, other than the $2,145.13 loaned to Conrad on the date of the deed, were decreed as liens in favor of P. B. Wethered, The separate paper executed between Conrad and Wethered, on the sahne day as the deed, must be read as a part of the deed. They are parts of one and the same transaction, the two constituting a mortgage. It expressly provides for the securing of additional loans. The amounts loaned to Conrad, and paid for him, by Wethered, are not controverted. B. C. Conrad did not except to the commissioner’s report on any ground, and he is, therefore, concluded by his' finding as to questions of fact; and Mrs. Conrad, having never had the deed to her trustee recorded, can not complain of liens that had been acquired against her husband. Mrs. Conrad for some reason did not testify in the case. While the trust deed may be good as between the parties to it, it is void as to the lien creditors of, and subsequent purchasers for value without notice from B. C. Conrad, it not having been recorded. Sec. 5, Ch. 74, Hode.
The report was excepted to also for the alleged reason that the evidence taken before the commissioner was not properly certified by him to the court. This exception is not urged in brief of counsel arid seems to have been abandoned. Replying to it nevertheless, we find, in the record, a certificate appended to the commissioner’s report, and signed by him, in which he says, that he took all the proof and considered all the evidence as mentioned and set forth in the beginning of his report, “which testimony, proofs, evidence, papers, plats, etc., including the testimony taken in the hearing of a former report,” he certifies, are returned and filed as a part of his report. In the first part of his report he mentions the papers that were filed with, and considered by, him, and also shows that depositions of witnesses were taken and considered by him. Such papers as are mentioned in the report, and the depositions of witnesses appear in the record, and, in the absence of any
The decree is affirmed.
Affirmed.