Jarvis v. Town of Barnard

The opinion of the court was delivered by Poland, J. It is fairly to be assumed that Cutts, the agent of the plaintiff, in making the examination of the town records of Barnard, which he did make, for the purpose of ascertaining whether there were any encumbrances upon any of the lands which Aikens proposed to mortgage to the plaintiff, failed to discover the record of the two Caryl mortgages, or of the mortgage from Aikens — 499 — to Southgate, and that such failure to discover them was known to the defendant Aikens, the town clerk. It is now insisted by the defendants, that Cutts did not exercise reasonable diligence in searching the records, and that had he done so, he would have discovered the record of these mortgages, and thereby avoided any loss that could happen to the plaintiff from the default or neglect of the town clerk in not showing them to him (if he was guilty of any), and that the plaintiff’s loss was the result of, or at least was contributed to, by the negligence of his own agent t and that therefore he can not recover. We have no occasion here to inquire as to the effect of any such neglect of the plaintiff or his agent, in making search, or how far it might operate as a defence to the town, or town clerk, in a case of positive violation of official duty by the town clerk, because no such question appears to have been raised in the court below, and among the numerous points upon which the court were called to give special instructions, there was none, founded, to any extent, upon the basis that any such negligence was shown or existed. And we discover nothing in the exceptions calling for any instructions to the jury upon that subject. The jury, by their verdict, have found that after the plaintiff’s agent had finished this unsuccessful search for mortgages and attachments on the lands, that he then asked Aikens “whether he knew of any, or if there were any encumbrance on any of these lots ; that if he did, he wished him to show itthat Aikens answered there were none, and that he did not show him any ; that Aikens at the time, knew of the existence of the records of these mortgages; that there were existing encumbrances on the lands, that he had them then in mind, and knew that the plaintiff’s agent’s request referred to these encumbrances ; that the plaintiff’s agent acted upon all this in making the loan and taking his mortgage, and this was so understood by Aikens at the time. Now arises the only important question in this case. Was it the official duty of the town clerk, under these circumstances, to have produced and shown to the plaintiff’s agent, the records of these three mortgages, and was his omission to do so, an official neglect or default. For any falsehood or deceit perpetrated by him upon the plaintiff, outside of his official duty, the plaintiff’s remedy, if he — 500 — has any, is by suit against the clerk personally and in his private character. The statute (see Comp. Stat. p. 117, sec. 36,), among other things, provides “ that any town clerk shall be liable to any party injured, if he shall, on a proper request, refuse to show any record, or any files in his office.” Now was this request of the plaintiff’s agent upon the town clerk to show these records, a proper request, and was what was done by the town clerk, a sufficient compliance with that request; or was it such a refusal as the statute intends ? It is apparent that what is a proper request, must depend much upon the particular circumstances of each individual case, and must always be more a question of fact than of law; and so as to the duty of the clerk, and what will be a fair and reasonable compliance with the duty, cast upon him by the statute, must depend much upon the nature of the call upon him, and to some extent upon the information and knowledge he may have of any particular matter inquired after. It is scarcely possible to lay down any rule to govern eases of this kind, in terms less general than the statute itself. When a town clerk is called upon to show the record of a particular deed by name, it could scarcely be doubted but that it would be his duty to produce and show to the party, the identical record itself, and that on such request, it would be no sufficient compliance for the town clerk to produce all the records of the town and tell the party he might see it, provided he could find it. So on the other hand, a town clerk can not, and ought not to be required to know, or keep in mind, all the records in his office, nor can he be required to make general search of the records for persons, where no specific record is called for, so that if a town clerk is called upon and inquired of, whether there are any encumbrances upon a lot of land named, but no particular record is inquired for and the town clerk has no knowledge whether there are any encumbrances or not, and so informs the inquirer, it could not reasonably be claimed that the town clerk must search the entire records to give the information asked. It would be a fair and reasonable fulfilment of his duty to furnish the party with a fair opportunity to examine the records and see for himself. But without further — 501 — discussion of the general question: was the request made by the plaintiff’s agent in this case, a proper request ? lie was there for the very purpose of examining the records of titles of these lands, to see if the plaintiff could safely loan his. money on the security of them. He had, in the presence of the town chirk, searched the records and found no encumbrances ; he could not inquire for the records of particular and specific encumbrances, for the very object of his inquiry was to ascertain whether there were any, or not. It seems to us, if a case could be made where a request would be reasonable and proper, it is here presented, and that the form of the request, to show any encumbrance he lenew of upon the land, was the only effectual request that could be made under the circumstances. Did the town clerk sufficiently comply with this request of the plaintiff’s agent ? It is not questioned but that he had produced for the inspection of the plaintiff’s agent, all the books of record in which these mortgages were recorded, and it is claimed this was all he was bound to do. But before this inquiry and request were made of him, the records had been examined by the plaintiff’s agent, and the records of these mortgages not found, and, still unsatisfied, he makes this specific request upon the town clerk. He knew the purpose of the inquiry, the existence of the record of the encumbrances, and that these were the very encumbrances called for by Cutts ; but instead of producing them and- showing them to him, he denied there were any. It seems to us, that under all these circumstances, the request was equivalent to a request to produce the record of a specific deed, or deeds; and that it was the duty of the town clerk to have acceded to the request. To hold this general production of the books (which had already been fruitlessly searched) a sufficient showing of these records, in our judgment, would be a perversion, not only of the spirit, but of the language of the statute. The statute is One of extensive interest to all classes of men, and should receive such a liberal and fair interpretation, as to fully realize to the public at large, the fair performance of their duty by these town officers, and the beneficial results intended to arise therefrom. The case of Lyman v. Town of Windsor & Edgerton, 24 Vt. — 502 — 575, seems a full authority for this view of the case. That case came before the court upon a demurrer to the plaintiff’s declaration. In the second count of it (which the court held good), it was alleged by the plaintiff, that at the time of his negotiation with Edgerton (the town clerk) for the purchase of certain lands in Windsor, he inquired of Edgerton whether there was any encumbrance of record upon the land which he was about to purchase, and if there was, to show the record of it to the plaintiff, but that Edger-ton refused to show the record of it to the plaintiff, and did not disclose, but concealed the fact that there was an encumbrance on the premises. Royce, Ch. J., in the judgment given in that case, says, “ and since we must suppose Mr. Edgerton to have been fully aware of the encumbrance, and record of it (which fact is moreover expressly charged on this count, and others), his neglect and refusal to show the record, upon a request, so manifestly timely and reasonable, could be nothing less than a default in official duty, unless he disclosed the existence of the encumbrance, or put the plaintiff in a way to find the record of it by examination.” This same case being sent down, was subsequently tried on the merits before a jury, and was again before this court upon exceptions, at the March Term, 1856, and we have been furnished with the manuscript opinion of the court, as delivered by Isham, J.* It appears from this report that while the plaintiff Lyman, and Edgerton, were examining the land, during their negotiation, Lyman said to Edgerton, “ you are town clerk and can tell me, is there any claim upon this property ?” and that Edgerton said there was not, and that Lyman relied upon this false assurance in making the purchase. He never went to the clerk’s office, or examined the records at all, or even requested to examine them, nor was there any neglect or refusal to show them to him on request. The court held, and as we think, with entire correctness, that though Edgerton had grossly deceived and defrauded the plaintiff, he had not been guilty of any official neglect or default, for which the town were answerable; that his mere false statements about what appeared on the records, or the fraudulent concealment of his knowledge of what was there contained, would not make the town — 503 — liable, when there was no attempt to examine the records, and no request made upon the clerk to show or exhibit them. The opinion is long and able, and the; general subject of the duties and liabilities of town clerks under the statute, and of towns for their defaults, is learnedly discussed,'and some general expressions used by the Judge, are much relied Upon by the defendants, and we think that some expressions used, as applied to the general subject, are more restrictive .of the liability of town clerks than the statute would justify, but, when considered in reference to the special state of facts before the court, there is nothing in the opinion that conflicts with the views now entertained. The general doctrine of that case, that a town can not be made liable for mere false statements of the town clerk, seems to have been carefully observed by the county court on the trial of this case. The defendants also claim that the mortgage, taken by the plaintiff’s agent, referred to a deed, which, if examined, would have led back to such an examination as would have discovered the two old mortgages. It is a sufficient answer to that suggestion, that the search of the records, and failure to discover the mortgages, the inquiry of the town clerk and his answer, and failure to produce, had all taken place before the mortgage was written, and the fears and suspicions of the agent had been quieted, so that he supposed there was no further necessity to make inquiry. There does not appear to be any ground of objection to the charge, upon the theory that the mortgage of Aikens to Southgate was not indexed, and the plaintiff misled by that. The charge in that respect is fully sustained by the case of Lyman v. Windsor and Edgerton. We deem the case to have been correctly tried, and the judg’ ment of the county court is affirmed. Footnotes [*] See 29 Vt. 305.