Bedford v. Tupper

Boarbman, J.: This is an appeal from a judgment directing a partition of lands among the parties to this action. The facts appear in the findings of the court below. The defect in the record of the assignment from Zephirin Perrault to Theophile Perrault did not prejudice the rights of the latter as a purchaser; nor did the failure of the clerk to properly index such, assignment have that effect. It follows that Zephirin Perrault had no title to the premises in question after May 2, 1872. This property was attached by plaintiffs March 10, 1878, long after Zephirin. and Theophile had parted with their title. But the judgments of the plaintiff appear to have been entered before the attachments were levied, to wit, February 27,1878. But in no event did either the attachment or tbe judgment become_a lien upon any interest of [176] Zephirin in the real estate in question, since he had none. The deed of the sheriff upon his sale under the judgments could not, therefore, convey any title. He could only sell the interest which Zephirin had in the premises on the 27th of February, 1878. (Code, §§ 1242, 1244.) But as he had no interest at that date the sheriff’s deed conveyed nothing to the plaintiffs. (Lamont v. Cheshire, 65 N. Y., 30, 43; affirmed S. C., 6 Lans., 235.) We have said the defect in the record and in indexing did not prejudice the rights of Theophile under his purchase from Zephirin. That position seems to be fully sustained in the case of Mutual Life Insurance Company v. Dake (87 N. Y., 257), where it is, after careful consideration, held that the index is no part of the record, and that the omission of the clerk to index properly does not deprive the mortgagee of the right of priority given by the recording act. The learned judge (at page 264) also says : “ When a conveyance is delivered to the clerk the statute provides that it shall be £ considered as recorded from the time of such delivery.’ After such delivery nothing more need be done to keep the record perfect, except at the' proper time to record it in its proper order in the proper book; and yet if the conveyance in the meantime, before the record thereof should be mislaid in the clerk’s office or lost dr purloined, the record would still remain complete.” To the same effect is the case of Simonson v. Falihee (25 Hun, 570). P. J. Barnard says (page 573): ££ The record did not bind Simonson. * * * He is not to be deprived of his property by a failure of the clerk to record the release properly. * * * The record of the release was complete when it was left with the clerk for record.” (Jones on Mortgages., § 552; 4 Kent’s Com., * 174, [n] 3.) The counsel for the appellants cites cases of similar import from various States of the Union. It is not necessary to notice them particularly. They confirm the views expressed in 87 New York, 257. (Mims v. Mims, 35 Ala., 23; Chatham v. Bradford, 50 Ga., 327; S. C., 15, Am. R., 692; Polk v. Cosgrove, 4 Biss., 437; Riggs v. Boylan, Id., 445; Merrick v. Wallace, 19 Ill., 486; Bank of Kentucky v. Haggin, 1 A. K. Marsh., 306; Payne v. Pavey, 29 La. Ann. R., 116; Swan v. Vogel, 31 id., 38; Sinclair v. Slawson, 44 Mich., 123; Green v. Garrington, 16 Ohio St., 548; Tousley v. Tousley, 5 id., 78; Schell v. Stein, 76 Penn. St., 398; Wood [177] v. Brown’s App., 82 id., 116; Curtis v. Lyman, 21 Vt., 338; Mwnter v. Windsor, Id., 327.) Without considering the questions of adverse possession as notice to purchasers, or as affecting tbe plaintiff’s right to bring an action of partition, we conclude that tbe plaintiffs bad no title to any portion of tbe premises, and bence tbeir complaint should have been dismissed. Tbe judgment is therefore reversed and a new trial granted, costs to abide tbe event. Learned, P. J., and Bookes, J., concurred. Judgment reversed, new trial granted, costs to abide event.