State Ex Rel. Bank of Spruce Pine v. McKinney

Connor, J. This action was instituted under the provisions of C. S., 354, wherein it is provided, among other things, that every person injured by the neglect of the register of deeds of any county in this State to perform an official duty may institute an action in the name of the State against such register of deeds, and the surety or sureties on his official bond. Every person who has been duly elected register of deeds of any county in this State, before he is inducted into his office, is required by statute to give bond with sufficient surety, to be approved by the board of commissioners of the county, in a sum not exceeding ten thousand dollars, payable to the State of North Carolina, and conditioned for the safe keeping of the books and records, and for the faithful discharge of the duties of his office. He is required to renew his bond annually on the first Monday in December. C. S., 3545. It is provided by statute that “the register of deeds shall register all instruments in writing delivered to him for registration forthwith. He shall endorse on each instrument in writing the day and hour on which it is presented to him for registration, and such endorsement shall be *672 entered on his hooks and form a part of the registration, and he shall, immediately upon making the endorsement herein required upon each instrument in writing, index and cross-index the same in the order of time in which such instruments are presented to him: Provided, that the register of deeds may, if in his opinion it is proper to do so, prepare and use in lieu of his permanent index a temporary index until the instrument is actually recorded, upon which all instruments shall he indexed immediately upon receipt of same in his office, and until said instruments shall have been recorded, the temporary index shall operate in all respects as the permanent index. In the event the register of deeds shall use a temporary index, however, all instruments shall be recorded and cross-indexed on the permanent index within thirty (30) days from date of receipt of same.” C. S., 3553. The neglect of a register of deeds to register a deed or other instrument presented to him for registration, as required by statute, is a breach of his official bond, and for such breach he and the surety or sureties on his official bonds are liable to any person injured by such breach. C. S., 3555. The indexing and cross-indexing of deeds or other instruments in writing filed with a register of deeds for registration, as required by statute, is essential to their proper registration (Woodley v. Gregory, 205 N. C., 280, 171 S. E., 65), and the failure of a register of deeds to index and cross-index such deed or instrument is a breach of his official bond, for which he is liable on his official bond to the person injured by such breach. (Watkins v. Simonds, 202 N. C., 746, 164 S. E., 363.) The evidence at the trial of the action showed that the defendant J. H. McKinney, register of deeds of Mitchell County, breached his official bond by his neglect to index and cross-index, as required by statute, the mortgage deed which was delivered to the said defendant for ' registration by the relator Bank of Spruce Pine on 15 January,. 1925. The relator is entitled to recover in this action such damages as resulted from said breach, unless, as contended by the defendants, the action is barred by the statute of limitations. It is provided by statute in this State that an action to recover on the official bond of a public officer must be begun within six years from the date at which the cause of action accrued. O. S., 439. Otherwise, the action is barred, and the plaintiff cannot recover. This action was begun on 25 October, 1933. The cause of action on which the plaintiffs seek to recover in this action accrued at the date of the neglect of the defendant J. H. McKinney, register of deeds of Mitchell'County, to index and cross-index the mortgage deed delivered to him by the Bank of Spruce Pine for registration, as required by statute, which was 15 January, 1925. The action *673 was not begun within six years from tbe date on wbicb tbe cause of action accrued. For that reason, tbe action is barred and tbe plaintiffs cannot recover. See Daniel v. Grizzard, 117 N. C., 106, 23 S. E., 93. There was error in tbe refusal of tbe trial court to allow defendants’ motion for judgment as of nonsuit. See Washington v. Trust Co., 205 N. C., 382, 171 S. E., 438. Tbe judgment is reversed, and tbe action remanded to tbe Superior Court of Mitcbell County tbat judgment may there be entered in accordance with this opinion. Reversed. Stacy, C. J., and Devin, J., took no part in tbe consideration or decision of this case.