Crews v. Taylor

Watts, J. Com. App. When the mortgage from Richardson to Buckholtz was acknowledged and filed with the clerk for record, the statute required him to enter the same in a file book, to be provided for that purpose. Pasch. Dig., art. 5012. Also the clerk was required without delay to record the same, in the order, as to time, when it was deposited with him. Pasch. Dig., art. 5013. As shown by the evidence, the mortgage was acknowledged and filed with the clerk May 16, 1870; there was no file book kept in the office, nor was the mortgage entered of record July 20, 1870, when Crews made the loan to Richardson, and accepted the trust deed to . Phillips upon the land to secure the same. [465] It is claimed by Crews that he was damaged by reason of this negligence upon the part of the clerk in the sum of $1,249, and he brings this suit upon his official bond to recover such damages. The position that art. 5018 of Paschal’s Digest gives a right of action to any person injured by the negligence of the clerk, in the particulars mentioned, is not sound. The language conferring the right is as follows: “And shall also be liable to the party for all damages he may have sustained thereby, to be recovered by suit on the official bond of such recorder, given by him as clerk of the county court, against such clerk and his sureties.” From a consideration of this clause together with the entire article, the undoubted intention was to confer the right of action upon the party who was interested in, and who had a right to have the instrument recorded; and that it was not intended thereby to extend that right to third parties who might be injured by reason of the negligence of the clerk. As to such third parties who might be damaged by reason of the negligence of the clerk as such, a right of action exists upon the general principles of law independent of statute. Besides, it would seem that a right of action upon the official bond of the clerk was given by statute to any person injured by a breach of the same. Pasch. Dig., arts. 500, 1240. Undoubtedly if the clerk was negligent in the discharge of his official duties, and Crews, without fault upon his part, was injured thereby, he would have a right of action upon the official bond for the damages sustained by such negligence. The gist of the action here is that the clerk failed to enter the 'mortgage upon a file book, and also failed to spread the same upon the record and note it in the index; that by reason of this negligence, Crews, after examining the records, failed to find any such mortgage, and was thereby misled and induced to believe that Richardson’s [466] title to the property was good, and that the same was free from incumbrance. That, being thus deceived, he made the loan to Eichardson, relying upon the land, but to protect himself he was afterwards compelled to pay off the Buckholtz debt, the amount of which with interest he seeks to recover as damages. Now, if the mortgage had been spread upon the record, and had been seen by the attorney of Crews, it would have given him notice, actual and constructive, of the fact that a portion of the purchase money for the land was unpaid by Eichardson, and that it constituted a lien thereon. That actual and constructive notice of a fact are equivalent each with the other, and that one receives no additional force or strength by means of the existence of the other, are propositions of law that will not admit of question. As a matter of law the depositing of the mortgage with the clerk for record, from that time constituted constructive notice of its contents to all persons; and if by reason of the negligence of the clerk in the particulars complained of, Orews was deprived of the information of the fact that such mortgage had been deposited with him for record, then ordinarily he would be entitled to recover of the clerk and his sureties the damages resulting from such negligence, unless it appears that the appellant was otherwise legally chargeable with a knowledge of the existence of the adverse claim and lien. It is admitted that the deed from Buckholtz to Richardson was on record at the time Crews’ attorney made the examination, and that he, as a matter of fact, saw and examined the same. That deed recited that it was made “in consideration of the sum of fifteen hundred gold dollars to me paid and secured by Joseph A. Richardson.” This record, as a matter of law, gave notice to Crews that a portion of the purchase money was unpaid, and that prima facie the vendor’s lien existed upon the [467] land in behalf of Buckholtz. Willis v. Gay, 48 Tex., 469; Ellis v. Singletary, 45 Tex., 27; Robertson v. Guerin, 50 Tex., 323. Admitting that the law charged Crews with notice of such facts by reason of the registration of this deed, then it surely follows that the record of the mortgage would have given notice of the same facts, which, in contemplation of law, he then had; that is, that Richardson owed Buckholtz part of the purchase money for the land, and that it constituted a lien on the land superior to any that he might obtain from Richardson. In contemplation of law he knew these facts at the time he made the loan to Richardson; hence it would follow that whatever injury he sustained in that particular is chargeable to his own fault and not to the negligence of the clerk. But if we should concede that the law is otherwise, when, as shown by the evidence, the mortgage was deposited with the clerk for record, from thence constructive notice of the same results just as though it had been spread upon the record. When the attorney of plaintiff went to the clerk’s office to examine with reference to Richardson’s title, he did not inquire of the clerk for the file book, nor for instruments filed and not recorded; nor does it appear that the clerk knew that he was making an examination with reference to that land; but the attorney contented himself with simply examining the record and indexes. The record of the deed gave him notice of the existence of Buckholtz’s claim, and the evidence shows that the latter lived but a short distance from the court house; also that an inquiry of him would have resulted in full information respecting the whole matter. Now, admitting that the clerk might have acted negligently in failing to record the mortgage, still it must be conceded that Crews was equally negligent in failing to [468] inquire of the clerk for instruments filed and not recorded; and also in failing to make inquiry of Buckholtz, who is shown to have resided in the same city. [Opinion delivered March 13, 1882.] It may be stated as a general rule, that when the parties are both guilty of negligence neither can recover of the other damages resulting from such negligence. That is, if the negligence of á party materially contributed to an injury, then he cannot recover of others on the ground of their negligence. Shearman & Redfield on Negligence, sec. 32 and notes; The Law of Damages by Field, sec. 171. From the evidence in this case, it clearly appears that the negligence of Crews, if not the prime cause of the injury, certainly materially contributed to it. The supposed errors in the rulings and charges of the court, in regard to the value of the-land, in the view we take of this case, must be considered as immaterial, and could not vary the result. The judgment ought to be affirmed Affirmed.