120 F.2d 712 | D.C. Cir. | 1941
The plaintiff, receiver of the Industrial Savings Bank of Washington, D. C., brings this action against the trustees under a deed of trust for the alleged wrongful release of that instrument. The trustees are sued individually, and damages are claimed in the amount of the note secured by the deed of trust, which was collateral on a loan made by the Bank.
Defendants answered that the Bank’s note had been paid, that the Bank author
At the trial, after plaintiff and defendants had made their statements to the jury, without evidence presented, the court directed a verdict for defendants. Since the payment of the note, the authorization of the release, and the time when the Bank had actual knowledge of the release, were directly in issue, the court evidently was controlled in its action by the fact that the release had been recorded thereby giving the Bank constructive notice, and hence the action was barred by limitation. The memorandum overruling plaintiff’s motion for a new trial indicates that such was its point of view.
The deed of trust placed the trustees in a fiduciary relationship to both the settlor and the Bank.
A primary purpose of the recordation of an instrument is to give notice of its existence to those about to deal with the properly involved. Such persons are protected by, and charged with, notice of the recorded instrument. The purpose, in most instances, is not to inform those with existing interests of events purportedly affecting their property and to charge them with such knowledge. It is often said that a recordation operates prospectively, not retrospectively. To attribute the latter effect to a recordation would necessitate periodic checks by owners, lienholders, and others with existing interests. A person should be circumspect when he enters into a transaction and in performing his subsequent contractual duties, but to require him to act as a member of a watch and ward society to safeguard his position against all the world is neither reasonable nor in accord with the authorities.
As has been indicated, the more common question, which has been answered in the negative, is whether a recordation of subsequent claims against the property is notice to the mortgagee. Here, there is even less reason to construe a recordation as giving constructive notice to the Bank. The Bank is not claiming against another with an equitable interest in the property but against the trustees. Here, the trustees owed the Bank the continuing obligation of keeping it informed of action upon their part that would prejudice its rights. The fiduciary relationship has significance not only by making it necessary that the Bank be notified of such action, hut also in determining what constitutes notification. The language and the decisions to which defendants call our attention, for the most part, reveal that constructive notice has the same consequences as actual notice to those chargeable with constructive notice, but this does not answer the question whether the Bank was chargeable with constructive notice. It is clear to us that constructive notice of recordation of the release is not applicable to the Bank or its receiver.
Reversed.
Lonnartz v. Estate of Popp, 118 Ill. App. 31; Rheem v. Allnut, 62 App.D.C. 50, 64 F.2d 548.
D.C.Code, Tit. 25, § 191; see § 171.
Church, Inc., v. Holmes, 60 App.D.C. 27, 46 F.2d 608; Holman v. Ryon, 61 App.D.C. 10, 56 F.2d 307; I Scott, Trusts (1939) § 9, p. 71. 41 C.J. 605-607, § 573.
Mayse v. Mineola Co-op. Exchange, 139 Kan. 24, 30 P.2d 120, 124; American Nat. Bank of Macon v. Fidelity & Deposit Co. of Maryland, 131 Ga. 854, 63 S.E. 622, 21 L.R.A.,N.S., 962; II Scott, Trusts (1939) § 219.2; 37 C.J. 977.
Wolfe v. Murphy, 47 App.D.C. 296, 300; Matteson v. Thomas, 41 Ill. 110; Bridgewater Roller Mills Co. v. Strough, 98 Va. 721, 37 S.E. 290; Lynchburg Perpetual Building & Loan Co. v. Fellers, 96 Va. 337, 31 S.E. 505, 70 Am.St. Rep. 851; Dwelle v. Home Realty & Inv. Co., 134 Kan. 520, 7 P.2d 522; Kinch v. Fluke, 311 Pa. 405, 166 A. 905 ; 41 C.J. 557, 560; II Pomeroy Equity Jurisprudence, 3rd Ed. 1905, §§ 656(5), 657; I Jones, Mortgages, 8th Ed. 3928, §§ 456, 651.
While most breaches of trust are frauds in law in respect to the cestui, it is unnecessary to use any definite label in the present case. In any event, for this alleged breach of trust, releasing the se