State ex rel. Ballinger v. Deacon

The opinion of the court was delivered by Depue, J. The rule to show cause is for a peremptory mandamus commanding the defendant, as clerk, to certify in accordance with the above requisition for a search. The relator will not be entitled to a mandamus, because of the omission of the clerk to set out, in full, the description contained in the Vansciver deed, for he offered to copy the [562] description, verbatim et literatim, of any deed he should be referred to, and no request was made of him that he should furnish the description in any of the deeds mentioned in his search. Pn all other respects, his certificate complies with the requisition. The requisition called for any conveyances of record of all that lot, &c.—describing it—made by Samuel N. Ware and the other persons named. The Vansciver deed and the other deeds mentioned in' the certificate conveyed part of those premises, and it is shown that no deed made by either of those persons embraced any other part of the said lands. The reason assigned by the clerk for refusing to make any certificate with respect to the title to the premises described in the requisition, other than he had made, was that he was not referred to any deed of record describing the premises as described in the requisition.. In his letter to the attorneys, of June 17th, 1881, he says: “In respect to your description of property, if you will refer me to the book and page where the said description is recorded, I will cheerfully write it out, verbatim et literatim, at the head of the search, but, as I do not find any deed in the chain of title to the property now owned by Britton, which exactly answers said description, I decline to certify to anything not contained in said deeds. The search covers all the property handed down from owner to owner to Britton— nothing more, nothing less. If you will call for any of those deeds, by book and page, I can make a satisfactory search.” The relator’s attorneys, by letter of June 18th, 1881, responded as follows: “As to the description of the property searched against, it is our province to frame it. If you find no deeds conveying it, or any of it, all you can do is to say so, or, if otherwise, say what part you find conveyed, or rather set out what each deed conveys. It will follow that the balance is not conveyed by the parties searched against.” It appears by the depositions, that there is no deed on record containing' the exact description of the lands as described in [563] the relator’s requisition, nor any from which such description can readily be ascertained. -It was suggested, but not proved, that the land described in the order for search was part of a tract of forty-nine and four-hundredths acres conveyed by John Dainty and wife to Edmund Morris, bearing date April, 1848; and in the deed from Vansciver to Morris, it is recited that the premises conveyed by the last-mentioned deed were part and parcel of a large tract containing forty-nine and four-hundredths acres, conveyed by Dainty to Morris by the deed of April, 1848, but the clerk’s attention was not called to the Dainty deed, and no part of the lands conveyed by it were conveyed to Ware, or any of the persons succeeding to his title, except the part conveyed by the Vansciver deed. We think the defendant was not in default in the performance of his duty, in complying with the order for a search. The clerk, when he is called upon to make a search, is entitled to have such information—either by the names of parties or by reference to the records in his office—as will enable him, by examining the indices or the record to which he is referred, to ascertain the premises in relation to which he is required to make a search. A party desiring a search cannot carve out a description of lands at his will, and require the services of the clerk to ascertain the condition of the title. He must furnish the clerk with such information, as to the state of the title, as will enable him to ascertain the present status of the title by a simple inspection of the records. Nor is the clerk required, upon a call for a search by such a description, to certify that he can find no deeds on record conveying the premises described, for the premises may be embraced in the general description in some deed on record, and he is under no obligatipn to employ a surveyor, or to make inquiries or examinations outside of his office, to ascertain facts which do not appear distinctly by his records. He may decline to make such a search until he is furnished with the information that will enable him to find and identify the premises by his records. Nor is he under obligation to certify that a description he [564] certifies from the record includes part only of the premises described in the order for the search. If he gives the description as it is on the record, with all its qualifications and recitals, it is the province of counsel to advise as to whether the description covers the entire premises. The rule to show cause should be discharged, with costs.