Burchard, Wilson & Co. v. Town of Fair Haven

— 331 — The opinion of the court was delivered by Ross, J. These cases present substantially the same question, and for that reason are considered together. The plaintiffs in each suit sued out a writ of attachment against one Wood, who owned real estate in the village of Fair Haven of sufficient value above the incumbrances to satisfy the judgments which were after-wards obtained by the plaintiffs in the suits. The writs were served by a deputy sheriff, who lodged for record with the clerk of the town, copies, with his return thereon properly made and attested, to attach Wood’s real estate, and who completed their service on Wood. The town clerk did not safely keep the copies, nor make any record of the attachments ; and shortly 'after the copies were lost or taken from the office, and no trace of the attachments left there. Intervening the attachments and the renditions of judgment, Wood sold and conveyed the real estate attached, to bona-fide purchasers for value, who had no notice of the attachments, and who caused their conveyances to be duly recorded. The plaintiffs, without having levied upon and set off the real estate attached, in satisfaction of the executions issued on the judgments obtained by them, brought these suits against the town to recover damages claimed to have been sustained by them through the neglect of the town clerk to record the attachments. It is found that Wood had no other property from which the plaintiffs could obtain satisfaction of their judgments. If the attachments, although through the neglect of the town clerk no evidence of them existed in his office, were a subsisting lien on the real estate attached, against the subsequent bona-fide purchasers, the plaintiffs should have set off the real estate attached on the executions, arid so have obtained satisfaction of their judgments. If the judgments could have been thus satisfied, the plaintiffs have failed to obtain payment through their own neglect to pursue the remedy given by law, and not through the neglect of the town clerk to safely keep and record the copies of the writs of attachment. If, from this neglect of the town-clerk, the subsequent bona-fide purchasers will hold the real estate against the attachments, the plaintiffs were excused from levying upon it, as the levies, if made, would have been wholly unavailing to satisfy — 332 — the judgments. The law never compels the performance of a needless and wholly useless act. If, on the facts found to exist in these cases, a levy of the plaintiffs’ executions on the real estate attached would have been wholly unavailing, the plaintiffs have suffered damages through the neglect of the town clerk, for which neglect the defendant is liable under the statute. Hence the cases present the question, whether an attachment of real estate, perfected so far as it is in the power of the plaintiff to perfect it, and of which all evidence has ceased to exist in the town clerk’s office wholly through the neglect of the town-clerk, prevails over the recorded deed of a bona-fide purchaser of such real, estate, who made his purchase during the existence of the attachment, and without any notice of it ? It is well settled, that a purchaser of real estate for value, and without notice of a prior conveyance, and who has his deed duly recorded, will hold the- same against a prior grantee who has failed to have his conveyance recorded, whether through his fault or that of the town clerk. This is so held because, by the provisions of the statute relating to the conveyance of and title to real estate, the true condition of the title is to bo shown by the land-records required by law to be kept for that purpose. Hence, purchasers have the right to rely implicitly upon such records. They are constructive notice to all the world of the condition of the title. Whoever, therefore, takes a conveyance of real estate, and neglects to have the same recorded, assumes the risk of losing all advantage to be derived from the same, if a recorded attachment or conveyance intervenes before he causes such conveyance to be recorded. The same public policy which requires that a deed shall be recorded, requires that an attachment of real estate, which may result in a change of its ownership, should also bo recorded. Hence, the statutes requiring both should be given like force, and receive similar construction. Prior to the statute of 1823, an attachment of real estate was effected by the officer’s leaving a copy of the writ with his return thereon with the town clerk at his office. All persons were required to take notice of an attachment so made. For greater security to dealers in real estate, the statute of 1823 made it the duty of the officer to cause — 333 — the substance of the writ and of his return to be recorded by the town clerk in a book to be kept for that purpose. It was also made the duty of the town clerk to make and safely keep a record of all such attachments. The object and effect of such recorded attachments was early announced by this court. In Huntington v. Cobleigh, 5 Vt. 49, the court, while considering the neglect of a town clerk to record an attachment under the statute of 1823, say: “ It may then be inquired what is to be the effect if the town clerk neglects his duty in this particular. Since .the statute of 1823, the records of these attachments are to be made in a book kept for the purpose. To this book persons are to resort who wish to obtain information whether any land has been attached ; and if a creditor or person desirous of purchasing finds no such record on inquiry, he may safely attach or purchase, unless he has other notice that an attachment has been made. Under the former law, lie was compelled -to take notice of an attachment when a copy was left. But under this statute, he has no constructive notice unless the substance is recorded; but he may still, be affected by actual notice of an attachment.” The principles thus announced are the same that have long been applied to the case of an unrecorded deed. No reason has been suggested or occurs^ why a purchaser who pays his money for a conveyance of land which fails to be recorded through the neglect or default of the town clerk, should receive less favorable consideration, or be held under more strict rules in regard to securing the record of his deed, than a creditor who attempts to acquire title by the prosecution of legal proceedings. If a purchaser, because his deed is unrecorded through the neglect of the town clerk, must lose the benefit of his purchase against a subsequent bona-fide purchaser who has his conveyance recorded, the right acquired by an attachment that for like reason fails to be recorded, should yield to the recorded deed of a bona-fide purchaser who purchases unaffected with notice of such attachment. The same cause — the neglect of the town clerk, occasions the loss in both cases. If the former must pursue the town clerk, or. the town which is made responsible for his neglects of duty, for compensation for his loss, the latter ought equally to be remitted to that — 334 — remedy. Neither the town clerk nor the town has any right to complain if the same legal principles and remedies are applied in both cases. The defendant relies principally upon some portions of the opinion in Braley v. French, 28 Vt. 546. In that case, the officer made a legal attachment of the land in controversy, but before the town clerk had recorded the substance of the copy of the writ that the officer had left with him, the officer withdrew it from the office without authority from the plaintiff in the writ. The subsequent purchaser had actual notice of the attachment, and of the withdrawal of the copy by the officer. The court properly held that the officer had no authority by virtue of his office, to vacate an attachment once made by him, and that, as the subsequent purchaser had actual notice of his proceedings, the attaching-creditor could hold the land. Judge Isham, in the opinion of the court delivered by him, remarks: “ There would be no injustice either, if the defendant had received his conveyance in ignorance of that attachment, or of the plaintiff’s lien. In that event, the question would simply be, which of these parties should have their remedy against the town clerk for his neglect to make a record of that attachment. As the plaintiff "first acquired a lien upon these premises, and as that lien has ripened into a valid title to the land, we think it must prevail against the defendant’s deeds, particularly as the conveyance was taken by the defendant with notice in fact of the right and lien of the plaintiff upon the premises.” The defendant insists that this language implies that such an attachment and lien would prevail over the recorded deed of a subsequent bona-fide purchaser without notice. It is to be observed that the learned judge did not attempt to decide which of the parties would be entitled to maintain an action against the town clerk. No such question was before the court for decision in that case. Pushed to the limit claimed .for it by the defendant, it would destroy all reliance upon the records required by law to be kept for showing the true condition of the title to real estate. We do not think that the learned judge held, or intended to be understood as announcing, any such doctrine. In Lyman v. Edgerton, 29 Vt. 306, having under consideration the statutes relat — 335 — ing to such records, he says: “The intention of the Legislature and the policy of the act are obvious. It was their intention to provide a feasible method that should be certain, and as solemn in its character as record evidence, by which all persons who are or may be interested in the title of real estate, may ascertain its true condition, and the incumbrances resting upon it. These records alone, so far as the liability of the town is concerned, are made the organs of information in relation to such titles, and purchasers, as well as those who are mating advances upon its security, are bound to consult those records for their information, and not the man who, for the time being, holds the office of town clerk.” All the requirements of the statutes relating to the recording of conveyances and attachments of real estate, look to the fmmishing thereby of safe and reliable information of the condition of the title thereto, to all who may have occasion to become purchasers thereof. Such purchasers, relying upon such records, have the right to such title as the records disclose. If the records do not disclose the true state of the title, through the neglect of the town clerk, and a prior purchaser or attaching creditor thereby loses his title or lien upon such real estate, the statute clearly makes the town clerk, and, through him, the town for which he acts, liable for the loss thus sustained. Judgment affirmed in both cases.