Benton v. Nicoll

Cornell, J. It is distinctly averred in the answer that Gordon Jackins, under whom both parties claim title, was, “before and on the tenth day of October, 1855, the owner in fee simple and in possession of the real estate mentioned and described in plaintiff’s complaint. ” This fully answers the first and second points made .by appellant. The reception of the exemplified copy of the duplicate receipt worked no prejudice, even if erroneous, as the fact sought to be proved thereby stood admitted upon the pleadings. It also follows, from this admitted fact of title, that Clendennin became seized of an estate in fee in the lands in question, upon the execution of the deed to him from Jackins ; and his power of attorney gave full authority to convey the same. It is apparent, upon the face of the bond from Ely to Jackins, and from the recitals therein contained, that the deed from the latter to the former was given and received merely as security for a loan of money, and that the bond itself was executed as a part of the same transaction, and intended as a defeasance providing for a reconveyance of the estate upon payment of the loan. In equity, both together constituted a mortgage, and such was their legal effect, not only as between the parties themselves, but as to all persons affected with notice thereof. Holton v. Meighen, 15 Minn. 69; Fisk v. Stewart, supra, 97. Waiving the point urged by respondent, that the answer substantially admits notice, the question is presented whether they were ever so recorded and indexed under the registry acts as to convey to defendant constructive notice of their character and contents. At the time they were recorded three separate sets of record books were kept — one for deeds, one for mortgages, and one for all other instruments; and [228] three separate and corresponding sets of indexes- were also kept and used. The deed from Jackins to Ely was recorded-in a book of deeds, and indexed as such. The bond from Ely to Jackins was recorded in a book then kept for the record of all miscellaneous instruments, other than deeds and mortgages, and marked, on the outside, “A of Bonds.” It was indexed in an alphabetical index which was then kept and used for indexing all such miscellaneous instruments. This index, though kept separately, was bound together in one volume, with said book of bonds, to the forepart of which it was attached. It is contended by appellant that, to give constructive notice of the operative effect of such deed and. bond as a mortgage, they should have been recorded and; indexed together, as a mortgage, in the appropriate books kept for that purpose; and, further, that the record of the bond-in this case was no notice for any purpose, because it was not properly indexed in a separate book kept for indexing bonds, alone. The statutes then in force, so far as they bear upon, the question under consideration, are as follows: “The register of deeds of the several counties of this territory shall keep suitable books, and shall record, at large and in full, word for word, any and all instruments left with him for record, keeping separate books of deeds, mortgages, and- other instruments. He shall also keep separate books of an alphabetical index, wherein he shall record, under the proper letters of the alphabet, the name of each grantor and grantee in any deed, mortgage or other instrument left with him for record.” Rev. St. c. 8, art. 2, § 5, as amended by Session Laws of 1854, c. 21, § 4. “Every conveyance of real estate not recorded as provided by law shall be void as against subsequent purchasers in good faith, and for a valuable consideration, of the samó real estate, or any portion thereof, whose conveyance shall be first duly recorded.” Rev. St. c. 46, § 24. “When a deed purports to be an absolute conveyance in terms, but is made, or intended to be made, defeasible by force of a deed of defeasance, or other instrument, for that229 [purpose, the original conveyance shall not be thereby defeated W affected as against any person other than the maker of the jdefeasance, or his heirs or devisees, or persons having actual ¡notice thereof, unless the instrument of defeasance shall have ¡been recorded in the registry of deeds of the county where the lands lie. ” Section 27, same chapter. The meaning of the first above quoted section is plain and jobvious. By it the register was required to keep three separate and distinct sets of record books — one for recording deeds, 'one for mortgages, and another for all other instruments; and lalso three separate and corresponding sets of alphabetical ¡index books. He was not required to keep a separate index for >eaeh class of instruments embraced under the last head. One ■^was sufficient. It was to be kept separate and distinct from “everything else, but this did not require it to be kept in a ■separate volume. It might, as in the case at bar, be ¡bound in the same volume with one of the books of miscellaneous records to which it referred. The object of the statute, both in the classification it required and the indexes it ■directed to be kept, was to facilitate searches. This was fully 'accomplished by preserving a separate classification and indexing in the manner indicated by the statute; but whether ¡the index was bound in a separate volume or together with ■one of the record books to which it referred, was wholly immaterial as affecting this result. In determining the character of the instrument, for the purpose of recording it, the register was to be governed by what it purported to be upon its face; if a deed it was to be recorded ■and indexed as such, and if neither a deed nor mortgage in jterms, it was to be treated as “another instrument,” and .recorded among the miscellaneous records, and indexed accordingly. The deed from Jackins to Ely was an absolute conveyance in terms, and was properly recorded as such. The bond back, :in and of itself considered, was neither a deed nor mortgage, either in terms or effect, and hence it was properly treated [230] as a bond for the purpose of recording it. What legal effect the one had upon the other was a judicial question the register was not called upon to determine. That depended upon the instruments themselves, and the circumstances under which they were executed, and not upon the record of them.. In searching the title in this case for encumbrances, it was as easy to consult the index for miscellaneous records as that kept for mortgages, and no prudent man would have omitted either. If defendant had done both he would have learned all the facts affecting such title as fully as though both instruments had been recorded together on the same page. Morever the last above quoted section clearly recognizes by implication the propriety of recording as a deed an instrument w'hich is an absolute conveyance in terms, although the same is made or intended to be made defeasible by force of a deed of defeasance or other instrument for that purpose, by expressly declaring that “the original conveyance shall not be thereby defeated or affected as against any persons without actual notice of the defeasance, unless the latter is recorded in the registry of deeds of the county where the lands lie. ” This repels the inference that the statute contemplated the recording of snch a conveyance or deed in a book kept for mortgages, for such a record would furnish no constructive notice whatever to any one of its existence and character as an absolute and indefeasible conveyance. This section does not specify in what set of books, kept by the register, the instrument of defeasance is to be recorded. That is left to be determined, then, by the section hereinbefore considered. The case of Dey v. Dunham, 2 John. Ch. 188, cited by appellant, is not in point. The views there expressed by Chancellor Kent, which seem to have been followed by the courts of that state, (White v. Moore, 1 Paige, 551; James v. Morey, 2 Cow. 316,) although the decision itself was reversed in Dunham v. Dey, 15 John. 555, related to a statute concerning the registry of mortgages alone. It provided that no mortgage nor any deed, conveyance or writing, in'the [231] nature of a mortgage, should defeat or prejudice the title or interest of any bona fide purchaser, unless the same was duly registered in the manner therein provided; and that if there was a separate written defeasance, that should also be recorded to protect the instrument as a mortgage. The only claim set up in that case, under the deed, was that of a mortgage. There was no written defeasance in fact or of record, prior to the time when the bona fide purchaser’s right and title accrued; and it was in reference to this state of facts that the chancellor held that both the deed and defeasance should have been recorded together as a mortgage, to protect it as such. It was not intimated that it could have any operative effect as a deed under any circumstances. The registry statutes under consideration in this case treat of conveyances in general, and are clearly different in their provisions. It follows from these views that the defendant herein was affected with constructive notice of the real nature of the transaction between Jackins and Ely, and the character of the deed from the former to the latter; and in respect to his claim of title under the Ely deed, he stands in no different or better position than that of his grantor, Baker. Upon the facts found, Ely’s only interest in the property at the time of his quit-claim to Baker was that of a mortgagee after condition broken, who had neither foreclosed nor made any entry. He had then no conveyable interest or estate in the premises, and his quit-claim to Baker passed no title. Hill v. Edwards, 11 Minn. 10, (29;) Everest v. Ferris, 16 Minn. 31. The quit-claim deed from Clendennin to Baker passed no title or estate in the premises in question, because of his prior conveyance to Parsons. If the transaction between Baker and Ely operated as a transfer or assignment of the mortgage held by the latter, instead of a payment - and satisfaction of the mortgage debt, lit is clear that Baker’s subsequent conveyance of that portion 'of the mortgaged premises not embraced in the deed to Par [232] sons had the effect of releasing the premises in question from the lien of the mortgage, as the portion so conveyed had become the primary security for the mortgage debt, and was of sufficient value to satisfy it. Johnson v. Williams, 4 Minn. 183, (260.) It is equally clear, as well upon the evidence as the findings, that the Parsons’ mortgage was never in fact assigned to Mendenhall, the defendant’s grantor, nor intended to be; that Steele, the original mortgagee, remained the legal owner of the mortgage, and of the debt thereby secured, till after the commencement of this action, and long after the statute of limitations had run against it. Neither defendant nor any of his grantors had ever entered into or claimed to hold possession under this mortgage, but held adversely thereto. Under these circumstances he acquired no rights under the assignment from Steele, as the right of foreclosure and of entry had become barred by the statute. Archambau v. Green, 21 Minn. 520. Order affirmed.