Hunter v. Windsor & West Windsor

The opinion of the court was delivered by Isham, J. The questions in the case arise upon a general demurrer to the declaration. The action is in case upon the statute, in which the. defendants are sought to be charged, in consequence of the negligence and default of the town clerk of Windsor, previous to its division by act of the Legislature in 1848. The particular matter of default or negligence, of which the # plaintiff complains, is the neglect of the clerk to make and keep an alphabet or index, annexed to the book of records, and referring to such deeds or instruments as are on record therein. And for the neglect of the clerk in this particular, this action is brought. It is insisted by the defendants that it was no part of the official duty of the clerk to make such index, and that in this case, his duties as town clerk were fully discharged; in recording at length upon the records of the town, the mortgage deed of Edgerton and wife to George and Edward Curtis, although he did neglect and omit to enter the same on any alphabet or index, belonging to the book of records. And the question presented on this demurrer is, whether that is an official neglect on the part of the town clerk, for which the town is responsible. The act of 1797, Slade’s Comp. 414, Sec. 20, provides “ That a “ book or books with an index or alphabet to the same, suitable for “ registering deeds and other evidences of title to lands, and 'a — 334 — “ book or books for recording the proceedings of town meetings, “ &c. shall be kept in each town in this State, and which are to “ be provided by the clerk, at the expense of such town, and it is “ made the duty of the town clerk truly to record all deeds and “conveyances, writs and executions, where by law it becomes “ necessary.” The intention of the Legislature in these provisions is very evident, and it is the duty of the court to give such construction to the act as will carry such intention into effect. Two different set of books are to be kept; one exclusively for recording evidences respecting titles to lands, with an index or alphabet to the same, the other for recording the proceedings of town meetings, &c. and with .which no index is required. It may with propriety be asked, for what purpose is the clerk required to procure an alphabet or index, in connection with the book of records for recording evidences of title to real estate. Certainly it wras not for the purpose of effecting constructive notice of the execution and record of deeds, for that object is accomplished by recording the deeds at length upon the records, although there has been a neglect and omission to index or alphabet the same. This was so ruled by this court in the case of Curtis v. Lyman, on a bill of foreclosure brought on this same mortgage deed ; and the plaintiff and others, who subsequently became interested in the premises included in the mortgage deed, were charged with constructive notice thereof, and their title was held subject to that incumbrance. Evidently, therefore, that whole provision is a singular instance of idle legislation, if the Legislature did not intend that the index or alphabet should be kept in each town, for the definite object and purpose of furnishing an easy and accessible facility, by which any person in the exercise of reasonable diligence, can discover and obtain actual notice of the existence of any deed, or mortgage, or evidences of title to real estate thereon, so that all persons who may become purchasers thereof, or who may wish to make advances on such security, may obtain actual knowledge of the title and condition of the property. That such an index or alphabet is of practical importance, that it contributes, and is even rendered essential, as a facility for such discovery and notice, must be within the experience of every one conversant with such records. And it is not to be presumed, that such an important facility for the discovery of the true condition of real estate was overlooked or disregarded by the Legislature. — 335 — The act, therefore, was designed to effect two objects, in the first place, providing the means, and furnishing facilities for the discovery of, and obtaining notice in fact of such deeds, mortgages and evidences of title, as are placed on the records. And in the second place, to furnish the proper evidences of constructive notice, when all means before provided, have failed in giving actual notice ; and when an injury has been sustained by any one for 'a neglect in either respect, the town is liable under the statute. The statute imposes the duty upon the town clerk to record all deeds, conveyances, writs and executions, and to keep such boohs within his town, and to record the proceedings of town meetings. It is true that in the specific enumeration of matters to be recorded, no mention is made of the index or alphabet. But the general provision is in these words, ■“ It is made the duty of each town “ clerk in this State, to keep such books within his respective town.” The words “ such boohs” evidently refers to all those which it was made the duty of the town clerk to procure at the expense of the town. And in specifying those books, the index or alphabet is particularly mentioned. On this subject the intention of the Legislature is too obvious to be mistaken, and we conceive it would be a great departure from judicial duty to defeat that intention by an illiberal or technical construction. To carry into effect an intention so manifestly spread upon the face of the act, the court, if necessary, would be warranted in departing from the ordinary meaning and use of words, and would disregard the grammatical construction, for the object of the act is salutary, and necessary for the safety of those who are interested in the evidences of title to real estate. We have no hesitancy, therefore, in deciding that it was the duty of the town clerk, to provide such an alphabet or index, and to keep and preserve the same for inspection and use, with the same truthfulness and care, that he is required to exercise in keeping the books of record. To enable the plaintiff, however, to sue for such neglect, it must appear that he has sustained a damage thereby, or in other words, it must appear that the neglect to keep an alphabet or index, was the cause of the damage he has sustained, and as this matter arises upon demurrer, such averments should be made in the declaration. The declaration contains the following statement of facts, and — 336 — which are admitted hy the demurrer; that the mortgage 'deed of Edgerton and wife, to George and Edward Curtis, was executed and recorded on the 11th day of July, 1835, but that the clerk has never made, and kept for inspection and examination an alphabet or index, referring to the deed or its record, until after the plaintiff had become a purchaser of those premises; and that as such purchaser, he never had actual knowledge of the existence of that incumbrance, until the bill in chancery, to foreclose the premises on the Curtis mortgage, was served upon him. It is also stated in the declaration, that on that bill a decree was obtained, and that to protect his property under his purchase, he has been compelled to pay and advance the money for which, as damages, this suit is brought. In the statement of the plaintiff’s cause of action, in his declaration thus far, we find admitted by the demurrer, the neglect of the clerk to make and keep an alphabet or index to the book of records, on which is recorded the evidence of title to real estate; and also, the damages which the plaintiff has sustained, in consequence of not having notice in fact of the existence of the Curtis mortgage. In order, therefore, to show that the damages which the plaintiff has sustained, was the result of, and caused by this neglect of the town cleric, the declaration contains the following averments or statement: “ That upon the occasion of the negotia- “ tion and purchase of the premises by the plaintiff, and before “ completing the same, and for the purpose of assuring himself “ that the premises were free from incumbrance, he made an ex- “ amination of the records of deeds in the town clerk’s office, and “ by reason of there being no alphabet, index or reference, point- “ ing to that mortgage deed, or the record thereof, he was caused “ and led to believe, and did believe that there was no incumbrance “ upon the same, and that thereupon he completed and closed, on “ the 31st day of March, 1845, his purchase of the premises.” The sufficiency of these averments and statement, it should be observed, arises upon general demurrer; and it is sufficient, if those facts are substantially stated, which will give a right of action, without regard to the form of statement, for if the statement is informally alledged, that can only be reached by special demurrer. On this demurrer therefore, we think the fact is sufficiently stated, that the damage of the plaintiff was the result of, and caused by that neglect of the clerk. It is not stated that the plaintiff made a — 337 — specific request for the index or alphabet. If such a specific request was necessary, it should have been averred in the declaration. But we do not think such a specific request is necessary in any case. The plaintiff had a fight to make a personal examination of the record for himself, and he was under no necessity of making known the object of such examination. He possibly might have deemed it imprudent to make such disclosure. And no such duty or obligation rests upon any one; every person has a right to a personal examination of such records, and for that purpose, may call upon the clerk for the book of records, containing the evidences of title to lands,- and upon such general request, it is as much the duty of the clerk to submit to his examination, and use the index or alphabet to such books of record, as the books themselves. And if he neglects so to do, and damages have resulted therefrom the town is responsible therefor. Upon that part of the case therefore, we think the declaration is sufficient, and sets forth a good cause of action. Another objection has been urged on this demurrer to this declaration, and equally effecting the right of action. It is insisted that whatever may have been the former liability of Windsor on this matter, that liability was removed and lost by the division of ■ the town under the act of 1848. ' This we can but feel, is giving rather a severe effect to the operation of that act, particularly as it regards third persons, who were not as inhabitants of l lie town interested in such division. And that no court would fed disposed • to give such effect to the act, unless compelled so to do, by most unequivocal legislation, even if there were no constitutional objections in the way. It is also insisted, that by that division, the corporate existence of Windsor, as it existed when this cause of ac- * tion accrued, has been lost and its charter vacated ; and that with it were lost all claims and causes of action, except such as have been particularly excepted from its operation. The statute making that division, saves the liability for debts notv due from, the town of Windsor and specifies the manner and proportion to be paid by each town respectively. In this provision, the Legislature were evidently settling the terms of that division, and disposing of matters that might be in controversy between them after the division was effected. And it is not reasonable to suppose that they were simply providing — 338 — the manner in which debts arising ex contractu should be apportioned between them, for there may have been, and it is not unreasonable to suppose that there were other liabilities existing arising ex delicto, which should be proportionately paid by the respective towns. As claims against the town for neglect in keeping roads in repair, neglect of constables, &e. That the Legislature intended, under that form of expression, to include the whole liabilities of the town of Windsor, as it stood when the division was made, is‘very appareht. And the words, “debts now due,” should be held as synonymous with the word liabilities, whether arising ex contractu or ex delicto. That clause of the act, saves all such liabilities of the town of Windsor, as it then stood, from the operation and effect of the division, and those liabilities still rest upon the territory, and inhabitants of Windsor and their successors, the same as if that division had not been made. • We are not therefore, called upon to investigate the question whether for any purpose that division vacated the old charter of Windsor and created two new towns, with new charters, as by an express saving clause the matter for which this suit is brought, is excepted from its operation, and unaffected by the division. The result is, that the judgment of the county court is affirmed.