Upton v. Slater

[374] 'The opinion of the court was delivered by ' Trenchard, J. This suit was brought in the District Court by the plaintiff to recover damages against John J. Slater, the county cleric ,of Passaic county, and his sureties, on tiie theory that the clerk had negligently failed to properly index a mortgage delivered to him to. be recorded, and that ihe-plaintiff, relying upon the index, had in good faith purchased property covered by the mortgage, and was afterward compelled to pay such mortgage. The appeal brings up for review the judgment rendered by the judge, sitting without a jury, in favor of the defendants. We see no reason for disturbing this judgment. Wc assume, for the purpose of this case, that failure of the county clerk to index the mortgage was a breach of his official duty. But liability for such a breach of official duty inures only in favor of one who> was prejudiced by the breach thereof. 34 Cyc. 1022. See, also, Appleby v. State, 16 Vroom 161. The implication arising from the record before us is that the plaintiff .had. actual notice of the mortgage when he purchased the property. He, therefore, was not damnified by the failure to index the mortgage. ■ . We llave pointed out that the case was tried before the judge, without a. jury'. The state of -the ease was not agreed on by the parties or their attorneys, nor was it settled by the judge, as is permitted by Pamph. L. 1902, p. 566; but rather the transcript of the proceedings and testimony at 'the trial is certified to this court by the judge as the state of the case pursuant to Pamph. L. 1905, p. 259. The judge made no finding of fact with respect to actual notice of the existence of the mortgage. From the testimony of the plaintiff himself at the trial it was clearly open to the judge to conclude that before and at the time the plaintiff purchased the property he had actual notice of the existence of the mortgage thereon. It is true that there Was other testimony from which a contrary conclusion might have been reached. But on. ap [375] peal, where opposite conclusions might have been drawn from the testimony, that conclusion which is essential to support the judgment will be taken as found. Such a determination of a question of fact is final between the parties when there is legal evidence to support it. Backes v. Movsovich, 53 Vroom 44. The judgment of the court below will be affirmed.