Woodruff v. Phillips

Manning J.: The statute requires the mortgage, or a true copy thereof, to be filed in the office of the township or city clerk of the township or city in which the mortgagor resides: Comp. B. § 3191. And it makes it the duty of the township or city clerk, on the payment of his fee, to indorse thereon the time of receiving the same, and to deposit such instrument or copy in his office, to be kept for the insj>ection of all persons interested: § 3192. He is also required to write in a book to be provided by him for that purpose, the names of all the parties to such instrument, arranging the names of the mortgagors alphabetically, and to note therein the time of filing each instrument or copy: § 3193. .The mortgage is to cease to be valid as against the creditors of the mortgagor, and subsequent purchasers and mortgagees in good faith, after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of the year, the mortgagee, his agent or attorney, shall make and annex to the instrument or copy on file an affidavit setting forth the interest the mortgagee continues to have by virtue of said mortgage in the property therein mentioned, <fcc. The mortgage in question was duly filed on the first day of November 1860, at which time all of the requirements of the statute appear to have been complied with. On 15th December following, Harvey, the mortgagee, applied to the clerk for the mortgage, who handed it to him, and [505] be took it away, and the clerk made the following entry opposite the names of the mortgagor and mortgagee and the entry of the filing of the mortgage in the book required to be kept by him for that purpose, viz: “-This mortgage delivered up to James B. Harvey.” The mortgage’ was afterwards returned. On the l’lth of the same month Harvey again applied for the mortgage. It was handed to him, and he again took it from the office, and in about twenty minutes returned it, after having released all the property mentioned in the mortgage except the wagon in question. On the 9th March 1861, some two or three days before Hess purchased the wagon of G. W. Phillips, the mortgagor, and sold it to A. J. Phillips, the defendant in error, he and A. J. Phillips called at the office of the clerk and inquired if there was a chattel mortgage on file from G. W. Phillips. The clerk informed them that there had been such a mortgage on file, but that it had been taken away by Harvey. Hess replied he was not satisfied with that, and that he wished to look at the record of chattel mortgages and see for himself. The clerk thereupon exhibited the book containing the names of the mortgagor and mortgagee, and the aforesaid entry made by him when the mortgage was first delivered to Harvey. No further search was made for the mortgage, which at the time was with other mortgages on file in the office. There is no evidence Harvey had any knowledge of the memorandum. Hess and the defendant in error acted on a memorandum made by the clerk, without authority of law, or the knowledge or assent of Harvey. It may be hard the defendant in error, under such circumstances, should lose the wagon. But it would be equally hard to visit the accidental consequences of an unofficial act of the clerk on Harvey, who had done all the law required, and all an honest man could do, to secure his property. Why should he suffer for an unauthorized memorandum or entry of the clerk ? He had no knowledge of it, and the clerk was [506] not' authorized by law to make it. A man cannot be deprived of his rights against law without his consent. All are chargeable with a knowledge of the law, and if the defendant acted in ignorance of it, the consequences must fall upon himself. The memorandum was no safer basis of action than the information previously given by the clerk. Having refused to rely on the latter, it is a little strange he should have given credence to the former when the file of mortgages was within his reach. But it is objected that in taking the mortgage from the clerk’s office, and afterwards returning it without re-filing it — that is, without the clerk’s endorsing upon it the time of its return as an original filing, and entering anew the names of the parties and the time of re-filing in the book of mortgagors and mortgagees — the benefit of the statute was lost, for a want of compliance with its provisions. The objection is more specious than sound. It assumes what is not true in fact, that the same mortgage may be filed more than once, and of course any number of times. The statute makes no provision for more than one filing, but in express terms provides that the mortgage shall cease to be valid as to creditors and subsequent purchasers and mortgagees in one year from the filing, unless an affidavit is made and annexed to the mortgage, stating the mortgagee’s interest in the property, within thirty days next preceding the expiration of the year. If the mortgage could be withdrawn and filed anew, there would be no occasion for the affidavit: and the law requiring it to be made and annexed to the mortgage, to continue the benefit of the statute beyond the year-, could be easily evaded. The clerk had no business, after the mortgage had been properly filed, to re-deliver it to Harvey. The law provides for certified copies, but makes no provision whatever for the clerk to part with the instrument itself to any one. It is a public record, and belongs- to the office. [507] If defendant had called to see the mortgage while it was out of the office, or if Harvey had given his assent to the memorandum that misled defendant, the case would so far differ from the one before us as possibly to require a different decision. We however give no opinion on that point, as it is not before us. The judgment must be reversed, and judgment on the facts found by the Court be entered for the plaintiff in error, with costs in both Courts. Martin Ch. J. and Campbell J. concurred.