Johnson v. Burden

-The opinion of the court was delivered by Steele, J. The deed through which the plaintiff claimed to have acquired the title of-James Stone and Arvilla Perkins was filed for record in the town clerk’s office, December 5th. 1866. The deed [571] under which the defendants claimed the same title from the same parties was filed for record December 3d, 1866. It thus appears by the certificate of the town clerk upon the deeds, and the fact is not disputed, that the defendants’ deed was filed for record two days earlier than the plaintiff’s, and the defendants, if nothing further was shown, would hold the title by yirtue of this priority. This result would not be changed, by proving that the plaintiff’s deed was in fact first spread upon the record. The deeds take precedence, not according to priority of record, but according to priority of filing and deposit for record in the proper office. While the deed is in the town clerk’s office on file for record it is open to examination and serves all the purposes of notice as well as if recorded. If, however, the grantee withdraws the' deed from the files of the town clerk and carries it away before it is in fact copied upon the book of records, there is nothing left in the office to indicate the conveyance. When the deed is’thus withdrawn its operation is postponed until it is returned. This is said by Williams, Ch. J., to have been decided in 1824, in Bush v. Cook. See Sawyer & Rogers v. Adams, 8 Vt. 176. The plaintiff claimed that on the same day when the defendants’ deed was filed for record, December 3d, 1866, and before it was actually recorded, the defendants withdrew it from the files and did not return it until after December 5th, 1866, on which day the plaintiff’s deed was filed. If this was so, it lost its priority and the plaintiff’s deed would take the precedence. But the defendants do not admit that they withdrew the deed before record, and they offer in evidence the records of the town clerk, upon which their deed appears with a proper certificate that it was actually recorded December 3d, 1866. The court then permitted the plaintiff, against objection, to introduce parol testimony to show that this certificate was incorrect. And the question arises whether the town clerk’s certificate was subject to this parol impeachment. This question was settled in Bartlett et ux v. Boyd, 34 Vt. 256. It was there held that the town clerk’s certificate was not conclusive but merely prima facie evidence open to contradiction by parol. A different rule prevails in many of the States with regard to the certificates of recorders of deeds, but it is a matter [572] mainly governed in each State by special statute, and the rale must of course vary as the statutes do. We think there was no error in receiving this testimony. Another question arises upon the instructions of the court to the jury. The plaintiff, who did recover six-ninths of the premises, would at the best have been entitled to recover no more than five-ninths if the defendants’ deed took the precedence, and the plaintiff failed to make out his title by possession. The court told the jury “ that if the deed was taken from the town clerk’s office, before it had been recorded, its operation would be postponed.” So far- the charge was correct. The court then added, ‘‘ that it was for the jury to settle and find from all the, evidence relating thereto, which deed was recorded first, in point of fact, and that the plaintiff, if otherwise entitled to recover, should recover the seizin and possession of five-ninths or six-ninths of the premises according as the jury should find the fact in reference to priority in recording the deeds.” This we think was not the true rule. If the jury found that the defendants withdrew their deed from the office before it was recorded, the question then became whether they returned it before the plaintiff’s deed was filed for record. If they withdrew it on the 3d of December and returned it on the 4th or on the 5th before the plaintiff left his deed, it would take priority even though not recorded iu fact until after the plaintiff’s deed. There is no rule that requires a deed which is once withdrawn to be actually recorded before it can be made again operative as a notice. On its return it stood no worse for having been in the office before, but precisely as if it then came to the hands of the clerk for the first time. See Sawyer & Rogers v. Adams, ubi supra. The only oral testimony on the part of the plaintiff upon this subject which is stated in the exceptions, is to the effect that the deed was taken away on the third and returned “ subsequently-” The only written testimony on which the plaintiff relies, is the date of the certificate of Fayette Stone’s acknowledgement of the deed, December 5th. Both classes of evidence are consistent with a return of the deed to the office at an earlier hour than the hour of the filing of the plaintiff’s deed, and still if the jury-found such was the case, they would under the charge be controlled [573] by the relative time of the actual recording of the two deeds. We «ire very much inclined to suspect that this apparent error is but a mistake in drawing the exceptions, and that the subject was properly explained to the jury, but we do not feel warranted in presuming upon such a suspicion so far as to base a decision upon it. It was urged that it should be presumed that the jury found the.case for the plaintiff upon the gropnd of adverse possession, and as no exceptions were taken on that branch of the case, the judgment should be affirmed irrespective of any error there may be "on the other branch. When the verdict is general the judgment must be reversed for any error which is Ihe subject of exception, unless it appears that both the verdict and the judgment would have been the same if there had been no error.. If the jury had fouud specially for the plaintiff, on the ground of adverse possession, then the exceptions on the other branch-of the case would have been Immaterial. We think it unnecessary to notice other points which are raised and which are not likely to become important in a new trial. Judgment reversed and case remanded.