Stockwell v. McHenry

Mr. Justice Claejk; delivered the opinion of the Court, October 20th, 1884. The Forest County Oil and Mining Company was incorporated under the Act of 21st April, 1854; the certificate was formed on the 8th March, 1865, on that day it was signed, and acknowledged by the corporators; on the 10th March, 1865, it was certified by the Attorney-General, and on the 26th March, 1865, it was recorded in the office for recording of deeds, etc., in the county of Forest where the business of the company was to be conducted. Letters patent were issued by the governor, on 11th April, 1865, as provided by the Act of 7th May, 1855. The lands in dispute, are embraced in the certificate, [244] and by tbe provisions'of tbe Act of 1854, constituted part of tbe common stock of tbe company, in which the shares for all legal purposes whatsoever are deemed personal estate. On the 12th August, 1875, Roxalina McHenry, executrix of A. R. McHenry, deceased, obtained a judgment against the company, and upon executions thereon, the lands were sold; the plaintiff’s title is derived through the sheriff’s sale. On the 29th July, 1874, Alexander McAndrew and Samuel Warren, two of' the corporators, upon a good and valuable consideration executed a mortgage on what they recite as their undivided interest in the lands in dispute to William H. Stockwell, and the defendants’ title is derived through a sale on this mortgage. The court below was certainly correct, in concluding that the legal effect of the incorporation was to vest in the company the title to all the lands in the certificate described, ■without any further conveyance or assignment. By tbe subsequent Act of 27th March, 1865, this was enacted to be the true intent and meaning of the original statute; but this amendatory provision was, in this respect merely declaratory of its obvious meaning, and was perhaps intended to dissipate any doubts which might exist on that subject. A careful study of the statute of 1854, will we think lead to this conclusion. The Recorder of Deeds in Forest county, however, in the recording of this certificate did not enter the names of the parties signing it among the grantors in the index of deeds and conveyances in his office; nor was the ownership of the land otherwise manifested by actual occupancy, improvement or cultivation. The question therefore arises, whether the record of the articles of association transferring the title from Alexander McAndrew and Samuel Warren to the Forest ' County Oil and Mining Company, not having been thus indexed, was constructive notice to the mortgagee, and those claiming under him; this was, in substance the point reserved. By the Act of 27th March, 1865, the Recorder of Deeds is required so to index instruments of this character, that the names of the parties signing them, shall appear among the grantors, in the index of deeds and conveyances; by the later statute of 18th March, 1875, he is required to keep not only a direct but an adsectum index also, and it is provided that the entry of recorded deeds and mortgages, in such indexes shall be notice to all persons of the recording of the same. This certificate, however, was recorded on the 26th March, 1865, which was prior to the passage of .either of the statutes referred to, and as they are not retroactive in effect they can have no application to the case under consideration. [245] Assuming therefore, that the certificate was in the nature of a conveyance, and that a proper indexing required that the names of the corporators contributing the land should be placed with the grantors, it does not follow that the failure of the Recorder so to do invalidated the record. Prior to the Act of 18th March, 1875, at least, it was well settled, that a deed was in contemplation of law recorded when it was left in the Recorder's office, and put upon the entry book for that purpose. The duty of the Recorder was to record it, and the responsibility rested upon him for any default in the nroper discharge of that duty; the consequences of his default could not be visited upon the owner, who had done all that the law required in depositing the deed in the office for that purpose. A different doctrine was perhaps, declared in Luch’s Appeal, 8 Wright 519, where it was held that mortgages must be recorded in a “ mortgage book,” and that they are not properly recorded in any other book, where they cannot be found by means of a “mortgage index;” but that case was expressly overruled in Glading v. Frick, 7 Norris 460, where it was said by PaxsoN, J., “ We feel ourselves constrained to return to the rule laid down bv Chief Justice GfiBSON in McLanahan v. Reeside, 9 Watts, 511; ‘It is, indeed,’ says the Chief Justice, ‘of no account that the conveyance and the articles were not recorded in the book set aside for mortgages ; the keeping of such a book is an arrangement to promote the convenience of the officer by contracting the surface over which he is to search, for a particular thing; he is bound to furnish precise information, get it as he may, of every registry in his office, whether made in the right place or not.’ ” Clader v. Thomas, 8 Norris 348, and Paige v. Wheeler, 11 Norris 282, are to the same effect. The remark of Chief Justice Woodward, in Speer v. Evans, 11 Wright 141, that the index is an indispensable part of the record, is not to be regarded as an adjudication to that extent; that case turned upon the question of actual notice: Schell v. Stein, 26 P. F. S. 398. No duty rested upon the Forest County Oil and Mining Company, to supervise the action of the Recorder, to see that he made the record and indexed the conveyance: Brown & Wood’s Appeal, 3 W. N. C. 35; Wyoming Bank’s Appeal, 11 W. N. C. 567. Constructive notice of the conveyance must, therefore, be imputed to the holder of the Stockwell mortgage, as well as to those claiming under it: that notice being the implication which the law attaches to the registration of the certificate. We are of opinion, therefore, that the learned court was clearly right in entering judgmeut for the plaintiff on the question reserved. The judgment is therefore affirmed.