M'Caraher v. Commonwealth

The opinion of the court was delivered by Sergeant, J. The responsibility of the sureties in this case cannot be distinguished from that of the principal. The condition of the bond is the same as to all the obligors, that is, for the faithful discharge of duty in the office of Recorder of Deeds; and whatever is a breach of condition as to the Recorder, is equally so as to the other obligors. Farmers’ Bank v. Boyer, (16 S. & R. 50). This raises the question whether the Recorder, by giving a certificate that he has searched and could find no mortgage, and charging and receiving the fee allowed by the Act of Assembly in such case, has violated the condition of the bond, when it afterwards appears that a mortgage then existed on the record,- by which the party obtaining the search has been prejudiced. I state it thus particularly, because, in the present instance, there are no facts mentioned from which it might be argued, either from the position or conduct of thé party aggrieved, or of the officer, that the liability of the latter was removed or extenuated in consequence of any peculiar circumstances attending the transaction. Neither the Acts of Assembly requiring official bonds, nor the bonds themselves, define the details of duty appurtenant to an office to which the party is appointed, nor indeed could it well be done. It is obvious that the extent of duty in an office must vary with its nature, and perhaps there is not one in which these details could be expressly defined and set out. The Act of Assembly contents itself with imposing an obligation to perform the duties of the office, leaving the character and bounds of those duties to be settled by the nature of the office, by general principles of convenience, policy and public security, by usage, and by such matters of express legislation as may be connected with the subject. The party seeking the office (and universally, we may say, these offices are sought for the emoluments attached to them), takes it with the condition annexed of giving bond with sureties conditioned, in general terms, to fulfil and discharge all the duties annexed by law to the office; and upon such bond being prepared and sent to him by the Executive Department, executes and returns it, thereby subjecting himself to the liabilities involved by law in the exercise of the office, whatever they may be. Without so doing, he knows that he cannot enter on the duties of the office, or hold the appointment. What, then, are the duties annexed by law to any office, which the officer thus undertakes to discharge faithfully? The solution of this question must result, I think, from a consideration of the nature and character of the office, and a determination of what constitute essential or vital parts of it; for thus much, at least, [26] may be said, that whatever constitutes an essential or vital part of the office, so that without it the design and object of the office cannot be attained, must necessarily be ranked amongst the duties which the officer is bound to fulfil: and as the character and design of different offices are different, the duties of the officer vary accordingly — that being an appropriate and necessary duty in one office, which is of no importance, or altogether unknown, in another. To limit, however, our present inquiry to the office of Recorder of Deeds and Mortgages, let us examine the object and design of the office. This office, though unknown to the English common law, has been coeval with our province and state; being part of the laws agreed upon in England between William Penn and the first purchasers in 1682, and reduced, after various efforts, to a regular system by the Act of 1715, which continues to be the foundation of our code on the subject; and this office may be said to form the pivot on which all our titles to real estate turn. The design of it has been to furnish a permanent record of all titles and muniments of real estate, and many of personal, to which parties may have recourse for exemplifications that have the same force and efficacy as the originals. But there is ánother equally, if not more, important design, which is, to enable all persons to obtain knowledge of the state of titles to real estate by deeds and conveyances, and also of charges and encumbrances existing on them by way of mortgage. Hence it has been the practice of conveyancers and others, I presume from its earliest establishment, to cause searches to be made for existing conveyances, mortgages and encumbrances; and in fact, without such search, there would be no safety, since titles by mortgage depend, for their efficacy among us, not less on their due execution, than on the regularity and priority of their recording. Mortgages have priority only from the date of recording; and who would take a mortgage as a security for money, if he could not be certain as to the existence of prior encumbrances 1 Search, then, is of the essence of the office—indispensable to effect the design of its establishment, and to give certainty and security to the community. That being the case, who is to make that search 1 Surely not any and everybody that may desire it. That has never been the practice; and indeed, especially in such an office as our recording office here, it would be impracticable from the throng of applicants, and would moreover subject the records to many hazards, from carelessness, wantonness, and even fraudulent design. The Recorder and his confidential clerk have, therefore, usually made the searches and given a certificate; and for these the fee-bill allows him a fee. No stronger evidence can be given of the duty of an officer, than that the law gives him a fee for the performance of it. If the search, then, be within the prescribed duty of the Re [27] corder, is he not bound to perform it faithfully ? or, in other words, to make a true search, and give a true certificate 'l and is he not responsible if he does otherwise ? Or can it be maintained that, though he is bound to search, yet the party must take the certificate as he gets it—the officer not being liable for its incorrectness, whatever prejudice may ensue ? Pursuing the same process of reasoning as before, viz., the design and object of such an office, it seems to me it is only by holding the officer responsible, at least, prima, facie, for an untrue certificate, that security can be obtained. Who could rely on a search made in private, and a certificate of the result, if there were no responsibility by the officer whether it were true or false ? It would be a temptation to indolence and carelessness. Purchasers, creditors and mortgagees, would leap in the dark, taking the risk of latent transfers or encumbrances. The usefulness of the office would be nearly destroyed. Every consideration of policy and security to titles, requires the exaction of the utmost vigilance in the officer. In this the law demands no impossibility or insuperable difficulty. Experience has proved that, whilst the public have been secured under the existing practice, the instances of resort against the officer are rare. If there be a risk to the officer attending this rule, qui sentit commodum seniire debet et onus. More care and vigilance ought to be and are required of officers appointed by the law to guard the interests of the community, and who are paid for it by them, than in ordinary cases. As to the form of the certificate that the officer could not find a mortgage, this is, in common understanding and effect, a certificate that none existed; since, if it were there, it was his duty to find and certify it, at least till some good reason is given why he did not. We are therefore of opinion that there was no error in rendering judgment for the plaintiff. A new objection has been raised on the argument here, which was not mentioned in the court below, nor is it contained among the errors assigned; and in such case the rule is, that unless it goes to the merits, we will not reverse on account of it. That exception is, that the Act of 14th March 1777 directs the Recorder of Deeds to give a bond in the sum of £1500, (equal to $4000); whereas the present bond is in the penal sum of $4500, and therefore not in conformity with the Act, and void. In this case it makes no difference in the result, whether the true sum is $4000 or $4500, as the damages recovered are much less than the smallest of these. Under what authority the Secretary of the Commonwealth took the bond in this sum, I have not been able, after inquiry, to ascertain. But we are of opinion that if it exceeds the amourit directed by the Act, it is good for that amount, and void only for the residue. United States v. Howell, (4 Wash. C. C. 620); Commonwealth v. Laub, (1 W. & S. 263); United States v. Brown, (Gilp. 155) ; 8 Mass. 153. Judgment affirmed for $4000 penalty.