Sawyer and Rogers vs. James Adams, 8 Vt. 172

The opinion of the court was delivered by Williams, Cb. J. The plaintiffs, being creditors of Cyrus Adams, attached the premises in question, recovered judgment and levied their execution thereon. The defendant, James Adams, being in possession of the premises, they commenced their action against James and Cyrus Adams. James set up a title under a mortgage deed from Cyrus of a prior date, duly executed and acknowledged and on which there is a certificate of Cyrus, who was then town clerk, that it was received for record and recorded.

On referring to the records it is found that the mortgage deed was recorded on the back leaf of volume third of said records, on which there had been no deeds recorded for upwards of twelve years previous to the time said mortgage purported to be recorded. On the back leaf of the fourth volume of records another deed from" Cyrus Adams to James Adams, dated June 3d 1826, was copied as recorded, although the last deeds recorded on that book, were in May 1820.

In the fifth volume of the town records there was no record of the deed in question, although it was the book where others, received in June and July 1826,- were recorded. It farther appears, there was no paging on the book beyond page 424 nor in the place where the mortgage was copied or recorded. In the alphabet it is found that the names of the parlies to this deed are not entered, either as referring to the place where the deed was recorded, or attempted to be recorded, or to any other book or place.

It is admitted in the case, that the mortgage deed was secretly and fraudulently recorded by the said Cyras Adams, who was then town clerk of the town of Middletown, on the back leaf of an old book of records; and it must also be considered as established by the verdjpt, that James had not consented nor was privy to this fraudulent act of Cyrus Adams, the grantor and town clerk. The whole question is, was this deed of mortgage duly recorded. For,if it was, the plaintiff and all others* are bound to recognize it, and are considered in law as having notice of its contents.

If it is not duly recorded, and the plaintiffs had no actual notice of its execution and contents ; on the principle that a conveyance of a later date duly registered is to have priority to a deed of an earlier date not recorded, the title of the plaintiffs must prevail. In the first place it may be remarked, that

an act false and fraudulent is usually considered as no act, but as a mere nullity. The expression, therefore, that the deed was fraudulently recorded, was probably intended as referring only to the intentions and designs of Cyrus Adams; not .as expressing that the placing the deed in the book where it was found, was, in itself, a fraudulent act. Without, however, attending particularly to this, it will be proper to enquire what is meant by recording a deed, and what is the object of such a record ; and upon the answer to these enquiries it will be determined whether this mortgage has been duly recorded.

On the first particular, there is but little doubt that recording means the copying of the instrument, to be recorded, into the pub-lie records of the town in a book kept for that purpose, by or under the superin tendance of the officer appointed therefor. This recording may and does take effect from the time the deed or instrument is delivered to the officer, if it is in due time placed upon the records. The delivery of the deed to a town clerk, or his minute on the same that he has received the same for record, are not the recording; but the record, if completed, is considered as taking effect from that time.

Hence, if the deed is by the grantee taken from the possession and custody of the clerk after he has received it, and again returned, the record can only be considered as taking effect from the time it was returned. This was decided in a case of Brush vs. Cook, in Franklin county Jan. 1824. Furthermore, the deed must be duly recorded. Hence if the deed, as it appears on the record, contains defects which would render it void, if they existed in the original, although there are no such defects in the original, such deed is treated as not recorded. The cases which have been decided on this principle, Huntington vs.

Cobleigh, Skinner et al. vs. McDaniel et al. in Vermont Reports, are but following the principle decided in Popham’s Reports, “ that an enrolment remans good, notwithstanding'omissions by the clerk, when the omissions are not that which is of any substance in the deed.” — Sir Francis Englefields case, Populism 21.

If the town clerk in recording a deed, through accident or design, carelessly or falsely records or describes the boundaries in a deed, so that it would appear to convey but a part of the land conveyed in the original deed, the record would be good only, and considered as notice only of a conveyance of so much as appeared on the record to be conveyed. In the case of Beckman vs. Frost 18 Johns. 544, the registry of a mortgage of 3000 as a mortgage of 300 was considered as notice only of an incumbrance * for the sum stated in the record. In such cases, the purchaser jmay be wholly free from fault or negligence.

He may deliver his ¡deed to the proper officer and it may be returned to him as record-led, but through accident or design it is not truly recorded. Subsequent purchasers or creditors, having no other means of knowl-I edge of the contents of the deed than by resorting to the records, ' cannot be considered as having notice of any other conveyance than such as appeared on record. The object of recording, as has already been noticed, is for the purpose of notice to after purchasers and creditors.

In considering what is necessary to complete a record, it will not answer [to-say that the record may be so made as entirely to defeat the object for which it was designed. The purchaser may fairly deliver his deed to the town clerk. The clerk may return it to him with a regular certificate that it has been recorded; and if he does nothing more; if he does not record it in fact, there is no actual or' constructive notice to purchasers of the existence of such deed.

The clerk is guilty of fraud, and the person who left the deed for record is deceived; still his deed .is not recorded and no title passes thereby, except as against the grantor and his heirs. In such a. case there can be no doubt that the purchaser will lose his title through the fault or fraud of the town clerk. In applying. these principles to the case under consideration;, we1 cannot hesitate in saying that the mortgage deed of the defendant has not-been recorded, and that the act of the town clerk was as wholly inoperative as if he had written this deed on a slate, or copied it into his family record.

The duty of the clerk was plain, to record this deed in the book where he was then recording other deeds; and it seems that he had then recorded as far as the fifth volume or more. Book 3, in which this deed was- recorded, was not the book for recording deeds at that time, and had ceased to be so for more than twelve years. It was a book of records full and completed, and not a book in which deeds were thereafter to be placed.

Such a record as was attempted by the town clerk was not, and it was designed that it should not be any notice to the creditors of Cyrus Adams, and was as palpable a fraud and as gross a deception as was ever attempted by any man in a public office The deed was not recorded in a book kept for that purpose, and undoubtedly was kept from the alphabet for the very purpose of deception and concealment.

We cannot consider that this deed was recorded according to the letter or spirit of our constitution and laws upon that subject; and unless we admit that a deed may be recorded in any place, where the town clerk may choose for the-purpose of concealment and not for notice, and which he may call the records of a town, we must treat this record as a- mere nullity. A variety of new cases have been supposed in argument, in which a town clerk might literally perform the duty and yet render his act wholly ineffectual.

We cannot say, how ingenious, or corrupt and fraudulent public officers may be in evading the laws; nor are we to suppose that cases may exist more flagrant than the one under consideration. In one of the eases supposed, of the clerk recording a deed and immediately gluing two leaves together, or cutting out the one containing the record, it may not perhaps be material to enquire what would be the effect of such

an act. The same thing might be done by any other person. Either of them in such a case would be guilty of forgery and exposed to the penalty of the law therefor. If the deed was actually recorded and the duty enjoined by law done and performed, it is not necessary to declare what would be the effect of such after proceedings; but I can say for myself that, if I believed the town clerk recorded the deed, having at the time the intention to cut it out or efface it as soon as recorded, and did so cut it out or efface it, I ¡should he loth to say that such a deed had ever been recorded.

In the case suPPose,3; of bis keeping weekly books in which he recorded such deeds as he chose, if it was done for no justifiable reason or excuse, but for the purpose of concealment and fraud, it would not and ought not for a moment to be considered as a compliance with the statute. The result to which we come is, that the mortgage deed has not been recorded; and we do this with less reluctance, as the defendant has a clear and undoubted remedy against the town clerk and against the town, if he has not been in any way a party, or consenting to the fraudulent act of the town clerk.

The remedy of the plaintiffs, in the event of a decision the other way, is not so clear. Indeed, if the mortgage of the defendant had been recorded, they had constructive notice, and proceeded with knowledge of the existence of the deed, and probably could have no remedy. The judgment of the county court is reversed and new trial granted.