Camp v. Celtic Land & Improvement Co.

Sykes, P. J., delivered the opinion of the court. In this case the appellee (complainant in the chancery court) seeks to confirm its title to certain lands described in the bill. The chain of title of complainant is shown by exhibits to- the bill. A demurrer was interposed by the defendant in the lower court, which was overruled, and, the defendant declining to plead, a final decree was rendered ' in favor of complainant, from which decree this appeal is here prosecuted. The ground of the demurrer is that the complainant by its deraignment of title fails to show a good title in itself. In bills to confirm title and remove cloud from title the complainant must show a good title in himself; otherwise his bill is subject to demurrer. Russell v. Hickory, 116 Miss. 46, 76 So. 825; Chiles v. Gallagher, 67 Miss. 419, 7 So. 208. In its chain of title the appellee shows a deed of trust upon these lands to secure the payment of certain creditors of an insolvent concern. This deed of trust does not make the parties of the first part liable for the' indebtedness, but merely makes the property liable therefor. It is contended by the appellee that this is not a deed of trust which must be recorded in the “records of mortgages and deeds of trust on land” referred to in section 2809, [429] Code of 1906 (section 2310, Hemingway’s Code), because the makers of this instrument owed no money to the beneficiaries. We are not called upon to pass upon this question because the demurrer was properly sustained. The real question in the case, and upon which we base our decision, is this: The deed of trust provided, among other things, for the appointment of a substituted trustee in case the trustee therein named declined or refused to act. The trustee declined to act and a substituted trustee ivas duly appointed. This appointment of the trustee was recorded in the deed records of the county, but was not recorded in the “records of mortgages and deeds of trusts on land,” under section 2809 of the Code, supra. It is the contention of the appellant, and very forcefully argued by counsel, that, since section 2773, Code of 1906 (section 2277, Hemingway’s Code), makes void sales of land under deeds of trust by substituted trustees, unless the substitution shall appear of record in the office of the chancery clerk of the county where the land is situated, and unless it shall so appear by being actually spread at large upon the record before the first advertisement or notice of sale shall have been posted or published, the filing for record or lodging with the clerk not being sufficient, the record referred to in that section necessarily means the record wherein this appointment of a substituted trustee is properly recorded, and that the proper record is that of “records of mortgages and deeds of trust on land; ’ ’ that this is the proper record, because -it is so expressly provided by section 2809. This section expressly provides that mortgages and deeds of trust and all instruments of Avrit-ing whereby a trustee is substituted under a deed of trust shall be recorded in books other than those in Avhich other instruments relating to land or records are recorded. In this case the appointment of the substituted trustee was recorded in a book Avhere deeds relating to land were recorded, or in a deed book record of the county. It is therefore necessary to consider in detail the exact meaning of these two sections (2773 and 2809.) [430] Chapter 96, Laws of 1896, provided that sales under deeds of trust by substituted trustees were void unless the Avriting appointing the substituted trustee appeared of record in the office of the chancery clerk. Under this act the court held sales void where the written appointment of a substituted trustee was not of record in the office of the chancery clerk. In these two cases this appointment had not been filed with the chancery clerk when the sales were made. White v. Jenkins, 79 Miss. 57, 28 So. 570; Shipp v. Bldg. & Loan Ass'n, 81 Miss. 17, 32 So. 904. In the case of Brown v. Mortgage Co., 86 Miss. 388, 38 So. 312, the appointment of a substituted trustee was filed with the chancery clerk before the sale, but was not actually recorded upon his records at the time the sale took place. The court held this was a recording within the language of the statute. After this decision the law was amended as it now appears in section 2773, which now requires this substitution to be “actually spread at large upon the record.” Consequently this language is plain and unambiguous, and requires the appointment of a substituted trustee to be actually spread upon the record kept in the office of the chancery clerk. Beginning with section 2805 and ending with section 2815 there are certain duties required of a chancery clerk in recording instruments in the public records of his office. In these sections he is required to keep certain books, and record deeds and certain instruments relating to land in books, and in other books he is required to record mortgages and deeds of trust relating to lands; he is also required to keep a chattel record book. He is required to keep direct and reverse indexes. Section 2815 provides for a penalty in case of failure to properly keep these records. It is unquestionably true that under section 2809 the proper place for this substitution to have been recorded was in the records of mortgages and deeds of trust on land. It was recorded, however, upon another land record. [431] Prior to the enactment of chapter 96, Laws of-1896, it was not necessary that the appointment of a substituted trustee be recorded. Section 2778, unless complied with, invalidates sales by a substituted trustee, and for that reason should be strictly construed.. This section does not 'a express language require this recordation in the record of mortgages and deeds of trust, but only requires it to be recorded upon the record. Since it relates to land we think it means that it be recorded in a land record. Section 2809 deals more explicitly with the records that are to be kept by the chancery clerk; under that, preceding, and subsequent sections he is required to keep at least two land records and a chattel record. The objects and purposes of these recording statutes are to charge the people generally with notice of the contents of the records, and are also to have these records, in order that by the exercise of proper care and diligence by an examination of them they may obtain actual knowledge of their contents. In this case any one who desired to investigate the title to the land in question, and who exercised reasonable diligence in doing so, would not only examine the records of mortgages and deeds of trust, but would also examine all other land records in the office. He would, therefore, have found actually spread upon the land records this substitution; it could not have escaped him. Consequently there was a substantial compliance with section 2773 in this case. To hold otherwise would be to invalidate all land sales where the clerk had erroneously recorded this substitution in any other land record than that required by section 2809. It would further invalidate these sales where a clerk had failed to keep a separate book for the recording of mortgages and deeds of trust. In our judgment such was not the intent and purpose of the legislature when section 2773 was enacted. The learned Chancellor so held, and the decree is affirmed. Affirmed.