Potter v. Dooley

The opinion of the court was delivered by Redfield, J. John Dooley executed a mortgage on the 10th day of May, 1869, to Hazael Wiley, C. 0. Wiley and George 0. Wiley, of certain lands in Stamford in this State, and a portion of them was situate across the State line in Massachusetts. After the notes had become due and paid in part, the mortgage and notes were assigned and transferred to the orator. Before said assignment on the 25th of November, 1872, Peter Dooley conveyed by deed certain lands in Stamford to the defendant, and in said deed were written the words, “ and an undivided half of the tract I purchased of Hazael Wiley.” The deed was recorded in the town clerk’s office of Stamford, and in the record the words above quoted were omitted. After the assignment to the orator, and after the title had become absolute in the orator against John Dooley by foreclosure of this mortgage, and while this suit was on trial, said deed to the defendant was again recorded, and the omitted words included in the record. It is not claimed that the orator had actual notice that the defendant’s deed covered any portion of the land included in the orator’s mortgage. I. The decree against John Dooley concludes him of all equity in the premises, and we think all equities of those who claim under John Dooley by an unrecorded deed, of -which the orator had no notice. It is claimed that defendant’s deed was placed on file for record which was constructive notice to the orator. It is true while the deed remained on file it is notice for a reasonable time, until the deed may be spread on the records. But after .the deed is recorded, though erroneously, and the deed and its filing taken from the office of the clerk, the record is the only thing in the office that can give notice to those who may be dealing with the title. And no scrutiny of the records and files in the town clerk’s office would [517] indicate that the defendant had any claim or title to the land included in the orator’s mortgages. The orator, having extinguished the title of John Dooley by a judicial decree against him, stands with the same rights he would if that title had been extinguished by a deed from John Dooley. The filing of a deed for record is the incipient record, and operative from the date of filing; but after the full record is made the deed is no longer a part of the files but belongs to the party. II. The sale of the land by the constable of Stamford to Wilmarth for taxes is invalid. No grand list of the town of Stamford was offered in evidence, or shown in the case. The grand list of the several towns is the basis of taxation, and an indispensable requisite to justify the sale of property for taxes ; even if the listers are not under the sanction of an oath in making up the list and the valuation of property, the grand list is invalid, and the taxes assessed thereon are void. Houghton v. Hall, 47 Vt. 333 ; Tunbridge v. Smith, 48 Vt. 648. There are other obvious omissions of statute requirements in the sale of this land for taxes. The collector’s deed, therefore, to Wilmarth conveyed no title. III. The defendant contends that the orator is without right by reason of the contract of May 10th, 1869, between the original parties to the mortgage in regard to delivering the mortgage as an escrow, until the land was measured and the incumbrances .cleared away. It might be doubtful whether any one but Peter Dooley could insist upon the conditions of said contract; and it has been judicially determined as to him, that the conditions of said contracts have been complied with ; and as we have before said, all equities arising from an unrecorded deed or other contract with Peter Dooley, the mortgagor, are concluded by the decree against him. The result is that the decree of the Court of Chancery is affirmed, and cause remanded.