Barrett v. Prentiss

[300] The opinion of the court was delivered by Taut, J. There are two questions made in this case. I. "Was the deed in question duly recorded? It was spread upon the records, but not indexed. Does the fact that it was not indexed render the record invalid? We think not. This was so decided in Curtis v. Lyman, 24 Vt. 338; and the rule there laid down is not affected by the statute, passed since that decision, requiring a general index to be kept by the town clerk. The recording of two deeds of a later date on the preceding pages, was not such an irregularity as to render the record null. Such instances undoubtedly often occur; a recorder may turn over two leaves at once and have a deed recorded before he discovers the error, and then fills the intervening pages with deeds of a later date, or he may have several unrecorded deeds, and a deed of the latest date being called for he records that one first and the deed of the earliest date afterwards. Had the deed in question been recorded on page 6L4 instead of 616, there is no probability that such fact would have aided in its discovery. The deed was duly recorded. II. Was the claim barred by lapse of time ? The payment was made by Prentiss, the maker of the mortgage and notes, after he had sold and quit possession of the premises. He was liable upon the notes as maker; and a payment made by him, we hold, would rebut the presumption that the mortgage debt had been paid, not only as to him, but as to all who were grantees under him, they having taken their interest with constructive notice of the mortgage. Hughes v. Edwards, 9 Wheat. 489. Decree affirmed and cause remanded.