Clement v. . Harrison

Brogden, J. The question is this: Is a mortgage or deed of trust, which has been duly and properly registered and indexed under the “appropriate letter of the alphabet,” invalid by reason of the failure of the register of deeds to index the mortgage under a subdivision or catch-head of the “appropriate letter of the alphabet” ? Or, to state the proposition differently, would a mortgage or deed of trust so registered take priority over a subsequent mortgage or deed of trust properly indexed and registered under the subdivision or “catch-head” of the appropriate letter of the alphabet? It appears from the judgment in this case that the register of deeds of Eowan County kept in his office an alphabetical index to real estate *828 mortgages. The letter “H” in such index is subdivided as follows: “Haa” to “Hap.” “Har” to “Haz.” “He.” “Hi.” “Hu” to “Hy.” As the mortgage in controversy was executed by the defendants J. E. Harrison and wife, it was necessary to index and cross-index this instrument under the “appropriate letter of the alphabet,” which, of course, was the letter “H.” Under the subheads of the index, kept by the register of deeds, this mortgage or deed of trust should have been indexed under the subhead “Har” to “Haz,” but as a matter of fact it was actually indexed under the subdivision of “Haa” to “Hap.” If the indexing and cross-indexing of this deed of trust under the wrong subdivision is invalid, then the plaintiff has lost his lien securing the payment of the sum of $1,350, evidenced by the notes described in the deed of trust. The indexing of deeds and deeds of trust and mortgages is an essential part of the registration thereof. Ely v. Norman, 175 N. C., 298; Fowle v. Ham, 176 N. C., 12; Mfg. Co. v. Hester, 177 N. C., 609; Wilkinson v. Wallace, 192 N. C., 156. Our case presents the question as to what constitutes sufficient indexing and cross-indexing. O. S., 3560 and 3561, contain the statutory essentials of sufficient indexing and cross-indexing. C. S., 3561, provides: “The register of deeds shall provide and keep in his office full and complete alphabetical indexes of the names of the parties to all liens, grants, deeds, mortgages, bonds, and other instruments of writing required or authorized to be registered; such indexes to be kept in well-bound books, and shall state in full the names of all the parties, whether grantors, grantees, vendors, vendees, obligors, or obligees, and shall be indexed and cross-indexed, within twenty-four hours after registering any instrument, so as to show the name of each party under the appropriate letter of the alphabet; and reference shall be made, opposite each name, to the page, title, or number of the book in which is registered any instrument. A violation of this section shall be a misdemeanor.” C. S., 3560, apparently contemplates that the index provided by the county commissioners shall be one book, constituting a general index of all instruments admitted to registration or required to be registered. The only requirement of cross-indexing specified in the statute is that such index and cross-index shall “show the name of each party under the appropriate letter of the alphabet, and reference shall be made opposite each name to the page, title, or number of the book in which is registered any instrument.” The deed of trust in controversy was properly registered in a book containing real estate conveyances. It was indexed and cross-indexed under the letter “H,” which is the “appropriate letter of the alphabet,” and the cross-index referred to the page, title, or number of the book *829 in which the instrument had been duly registered. The statute, upon its face, apparently does not contemplate the division of the index into subheads. This division of the index into subheads has been installed in many counties for the convenience of parties who are compelled to examine the public records. Undoubtedly the method of subdividing the index is modern and efficient, and relieves the members of the profession particularly from a vast amount of unnecessary labor in passing upon titles; but, under the statute, as written, the only requirement is that the instrument should be indexed and cross-indexed under the “appropriate letter of the alphabet.” This has been done. As to whether the statute should be amended so as to include “catch-heads” or subdivisions' of the appropriate letter is not a matter for us to determine. It is our duty to construe the law as it is written. In the recent case of Bank v. Harrington, decided 27 April, 1927, the Court was evenly divided upon the question as to whether a real estate mortgage registered in a chattel mortgage book and cross-indexed on a chattel mortgage index was a sufficient registration of the instrument. There is a wide and fundamental difference between this case and the Harrington case referred to. In this case the deed of trust was recorded in the proper book. It was indexed on the general index for real estate conveyances, and furthermore, it was indexed and cross-indexed under the appropriate letter of the alphabet. We therefore concur with the trial judge, declaring that the instrument was sufficiently registered and indexed so as to constitute a lien upon the land. Affirmed.