Thomas v. Hanson

Canty, J. The land in controversy is situated within the limits of what was once Toombs county, in this state. In 1856 the land was patented to one Renville. May 7, 1860, he conveyed it by warranty deed to R. J. Mendenhall. The two main questions in the case are (1) whether on March 13, 1862, Toombs county was organized, and had a register of deeds; and (2) whether this deed was on that day recorded in his office. Sp. Laws 1858 ch. 64 (Comp. St. 1849-1858, p. 106), defines the boundaries of the county, and provides that “the same is hereby established as the county of Toombs.” Section 2 provides: “The governor shall appoint three suitable persons who shall constitute á board of county commissioners for said county, who shall hold their offices until the next general election or until their successors are duly elected and qualified; and the said board of county commissioners shall have power to appoint all other county officers in and for said county.” The trial court finds: “This deed, from an indorsement on the back thereof, purports to have been recorded on the 13th day of March, 1862, in the office of the register of deeds in and for the county of Toombs, in which county the said land was then situated. The certificate of registration on the back of said deed is in the words and figures following, to wit: “‘Office of Register of Deeds, County of Toombs, Minñ. “ ‘I hereby certify that the within deed was filed in this office for record on the thirteenth day of March, 1862, at 4 o’clock p. m., and was duly recorded in Book A, pages 96 and 97. “ ‘L. R. Bentley, Register of Deeds.’ “The official seal of said register is not attached to said certificate, and there is no evidence before me that said county of Toombs was ever organized, or that said Bentley was ever appointed to said [279] office, further than the certificate so appearing- on said deed, and the testimony of a witness to the effect that said Bentley kept his office at McCauleyville, in said county, instead of Breckenridge, the county seat of said county. And I find that whatever records were kept by said Bentley were so kept at said McCauleyville, in said county, and were wholly destroyed by fire at said place some time in the year 1862.” The trial court held that “there is nothing to show that Toombs county was ever organized and entitled to a register of deeds, or that Bentley was ever appointed,” and that such alleged record of this deed should not be held constructive notice to the defendant, who obtained a conveyance of the same premises from Renville, January 31, 1877. We cannot agree with the trial court. We are of the opinion that, by the act of 1858, the county was not merely established, but also organized, and the office of register of deeds created. While the first section of the act purports to establish the county merely, it seems to us that the second section organizes it, at least so far as to create the board of county commissioners and other county officers. While there is no proof that the governor ever appointed county commissioners, and that they appointed a register of deeds, or that one was subsequently elected, such proof is not necessary. For such purposes as this, proof that a person is acting as a public officer is sufficient proof that he is such officer. 1 Green!. Ev. §§ 83, 92. By Sp. Laws 18C3, ch. 13, the name of Toombs county was changed to Andy Johnson county. It was attached to Stearns county for judicial and recording purposes by Laws 1864, ch. 67, section 2 of which provides for recording in Stearns county deeds of land in Andy Johnson county, “whether executed prior or subsequent to the -passage of the act, with the same effect as a conveyance of land situated in the last-named county and shall from and after the date of such record constitute notice to purchasers and others to the same extent and with the same effect as if said conveyances, contracts, instruments or agreements were recorded in said county of Andy Johnson.” No provision is made for transcribing the records of Andy Johnson or Toombs county into those of Stearns county, or of ascertaining the contents of the burned records, and restoring them in [280] Stearns county., The fact that the. records of Toombs county may have been burned does not destroy their effect as constructive notice, and we cannot hold that, by the,, above-quoted language, it was the intention of the legislature to unseat or annul those records for the purpose of constructive notice thereafter, though it was the legislative intent to allow the recording or re-recording in Stearns county of deeds made prior thereto. By Laws 1867, ch. 113, Andy Johnson county was attached for judicial and recording purposes to Douglas county; and by Laws 1868, ch. 115, its name was changed to Wilkin county. By Laws 1872, ch. 83 Wilkin county was organized. It does not follow from this that Toombs county was not organized prior to March 13, 1862. By attaching the county first to Stearns, and afterwards to Douglas, whatever organization it once had was to some extent undone, and it becáme necessary to that extent, at least, to reorganize the county. In any event, the opinion of the legislature as to whether or not it was organized by the act of 1858 cannot control. Bingham v. Board Sup’rs, 8 Minn. 441 (Gil. 390). The failure of the register of deeds to affix his official seal to the certificate of registration on the back of the deed is cured by 1878, G. S. ch. 8, § 188. The register should have kept his office at the county seat, but his failure to do so does not render void the records of his office. These are all the points raised worthy of consideration, and the judgment appealed from is reversed. Gilfillan, C. J., absent on account of sickness, took no part. (Opinion published 61 N. W. 135.)