The opinion of the court was delivered by
Isham, J.
The questions in this case arise upon a motion in arrest of judgment for the insufficiency of the declaration, and upon exceptions allowed upon the trial of the case before the jury. The second count, on a former hearing of the ease, was adjudged sufficient upon general demurrer, and is now regarded as sufficient upon this motion in arrest. If the plaintiff is entitled to an affirmance of the judgment on the second count, the motion in arrest is obviated; but if otherwise, the questions in the case arise on that motion, whether the facts stated in either of the other counts are sufficient to sustain the action.
The action is brought on that provision of the statute which renders towns liable for damages which have accrued to any person by reason of the neglect or default of their town clerk. It [324]*324appears from the case that Edgerton was town clerk of Windsor, previous to its division by an act of the legislature, during the year 1835, and until March, 1839. In February, 1839, Edgerton and his wife conveyed to the plaintiff the premises referred to in the declaration by warranty deed. The same premises, it also appears, were included in a mortgage deed previously executed by them to George and Edward Curtis, which was recorded at length upon the town records; but no index was made to that record until long after the sale of the premises to the plaintiff. ' The complaint in the second count is that Edgerton neglected, while town clerk, to make an index to the record of that mortgage, and that he also, after a request had been made, neglected to show the record of it or to disclose to the plaintiff' its existence. In the case of Curtis v. Lyman, 24 Vt. 338, it was held, that this mortgage deed was sufficiently recorded to protect the title of the mortgagees, and that the plaintiff was charged with constructive notice of its existence, although in fact he had no actual knowledge of it until long after his purchase of the premises. In the cases of Hunter v. Windsor, 24 Vt. 327, and Lyman v. Windsor, 24 Vt. 580, it was held that it was the official duty of the town clerk to provide an index to that record, and to keep the same for inspection and use; and that, on request being made for that purpose, it was his duty also to submit the books of record in his office, and the index belonging to them, to the plaintiff’s examination; and that for any neglect in these particulars, the towns were responsible.
But to sustain an action of this character, it must appear that the neglect of the town clerk was the cause of the injury, and that the want of such an index, or his neglect to submit the records of his office to the plaintiff’s examination, is 'the reason why actual knowledge of the existence of the mortgage was not obtained. There is no ground of complaint for any neglect of official duty by the town clerk when that neglect in no way contributed to the injury which the plaintiff has sustained. The principle applies to this case as well as to others, that the injury must not result from the plaintiff’s negligence or want of proper diligence. In relation to the neglect of the town clerk to make an index to that mortgage deed, the court properly charged the jury that, “ as the plaintiff never examined the records, and was not [325]*325misled by that omission, they might -dismiss that from the case, and in their deliberations treat the case the same as if the index had been duly made.” The plaintiff having taken no exceptions to that charge that rule must be regarded as binding. The declaration contains no averment, nor Was there any pretense tbat an examination of the records was made or attempted. It cannot be said, therefore, that the want of an index was the reason why the plaintiff did not obtain actual -knowledge that such a mortgage had been given. For that reason the plaintiff can make no claim forth at neglect of official duty.
In relation to the neglect of Edgerton to submit to the plaintiff’s examination the records in his office, it may be observed that such a request is averred in this count; and if there had been any testimony proving that averment, the plaintiff would have been entitled to recover in this action. It does not appear from the ease that the question, whether a request was made to examine the records, was a matter submitted to the jury. The case, on all the counts, was made to rest on the false representations of Edger-ton that the premises were free from incumbrances •; for the coftrt instructed the jury that if the plaintiff omitted to make that examination of the records in consequence of the false information given by Edgerton, the want of such an examination would not preclude the plaintiff from a recovery. The effect of that charge is that, if those representations were made by Edgerton, it will dispense with the necessity of proving an examination of the records or of making any request for that purpose. But we think that doctrine cannot be sustained. So far as the townsof Windsor and West Windsor are concerned, no act of Edgerton will excuse the plaintiff from using those facilities, or complying with those requirements for which express provisions are made by statute ; and particularly it is necessary, in this case to prove such a request, as such is the averment in this count. It is not competent to prove an excuse for not making such -a request under an averment that an actual request was made.
But if we were to regard that question as submitted to the jury, and as now properly before us, the difficulty in the case is not avoided, as we think there is no evidence stated in the case tending to prove that, for the examination of the town records, a [326]*326request was ever made by the plaintiff previous to his purchase of the premises. It is insisted that the case shows that such a request was made, and that the observation made by the plaintiff* to Edgerton, during the examination of the premises, that “ You are town clerk and can tell me — is there any claim upon this property ? ” is evidence tending to prove that fact. But we do not feel at liberty to put that construction upon that inquiry. It was obviously not so intended by the plaintiff, nor could it have been so understood by Edgerton. The testimony of the plaintiff, given on the trial of this case before the jury which is detailed in tho exceptions, has, we think, put this matter at rest. He says, that “ he did not go to the office at all,” that “ he should have considered it an imposition upon Edgerton had he proposed going there to examine the records, and that he made the inquiry of him whether there was any claim upon the property to prevent going to look in the town clerk’s office. The plaintiff did not consider that he had made such a request and that the request had been denied ; and we should not regard that language as evidence of a fact which the plaintiff himself disclaims. It is an obvious case, in which not only a request, but an actual examination of the records was dispensed with, in the confidence placed by the plaintiff in the representations of Edgerton that the premises were free from incumbrances. It is true that the plaintiff has been injured in having been compelled to pay the Curtis mortgage; but that injury did not accrue from the neglect of the town clerk to make an index to that mortgage deed, nor, upon request, from the neglect of the town clerk to produce the records in his office for examination. On this count in the declaration, therefore, we think the plaintiff cannot recover, as he has failed to prove its material averments.
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The opinion of the court was delivered by
Isham, J.
The questions in this case arise upon a motion in arrest of judgment for the insufficiency of the declaration, and upon exceptions allowed upon the trial of the case before the jury. The second count, on a former hearing of the ease, was adjudged sufficient upon general demurrer, and is now regarded as sufficient upon this motion in arrest. If the plaintiff is entitled to an affirmance of the judgment on the second count, the motion in arrest is obviated; but if otherwise, the questions in the case arise on that motion, whether the facts stated in either of the other counts are sufficient to sustain the action.
The action is brought on that provision of the statute which renders towns liable for damages which have accrued to any person by reason of the neglect or default of their town clerk. It [324]*324appears from the case that Edgerton was town clerk of Windsor, previous to its division by an act of the legislature, during the year 1835, and until March, 1839. In February, 1839, Edgerton and his wife conveyed to the plaintiff the premises referred to in the declaration by warranty deed. The same premises, it also appears, were included in a mortgage deed previously executed by them to George and Edward Curtis, which was recorded at length upon the town records; but no index was made to that record until long after the sale of the premises to the plaintiff. ' The complaint in the second count is that Edgerton neglected, while town clerk, to make an index to the record of that mortgage, and that he also, after a request had been made, neglected to show the record of it or to disclose to the plaintiff' its existence. In the case of Curtis v. Lyman, 24 Vt. 338, it was held, that this mortgage deed was sufficiently recorded to protect the title of the mortgagees, and that the plaintiff was charged with constructive notice of its existence, although in fact he had no actual knowledge of it until long after his purchase of the premises. In the cases of Hunter v. Windsor, 24 Vt. 327, and Lyman v. Windsor, 24 Vt. 580, it was held that it was the official duty of the town clerk to provide an index to that record, and to keep the same for inspection and use; and that, on request being made for that purpose, it was his duty also to submit the books of record in his office, and the index belonging to them, to the plaintiff’s examination; and that for any neglect in these particulars, the towns were responsible.
But to sustain an action of this character, it must appear that the neglect of the town clerk was the cause of the injury, and that the want of such an index, or his neglect to submit the records of his office to the plaintiff’s examination, is 'the reason why actual knowledge of the existence of the mortgage was not obtained. There is no ground of complaint for any neglect of official duty by the town clerk when that neglect in no way contributed to the injury which the plaintiff has sustained. The principle applies to this case as well as to others, that the injury must not result from the plaintiff’s negligence or want of proper diligence. In relation to the neglect of the town clerk to make an index to that mortgage deed, the court properly charged the jury that, “ as the plaintiff never examined the records, and was not [325]*325misled by that omission, they might -dismiss that from the case, and in their deliberations treat the case the same as if the index had been duly made.” The plaintiff having taken no exceptions to that charge that rule must be regarded as binding. The declaration contains no averment, nor Was there any pretense tbat an examination of the records was made or attempted. It cannot be said, therefore, that the want of an index was the reason why the plaintiff did not obtain actual -knowledge that such a mortgage had been given. For that reason the plaintiff can make no claim forth at neglect of official duty.
In relation to the neglect of Edgerton to submit to the plaintiff’s examination the records in his office, it may be observed that such a request is averred in this count; and if there had been any testimony proving that averment, the plaintiff would have been entitled to recover in this action. It does not appear from the ease that the question, whether a request was made to examine the records, was a matter submitted to the jury. The case, on all the counts, was made to rest on the false representations of Edger-ton that the premises were free from incumbrances •; for the coftrt instructed the jury that if the plaintiff omitted to make that examination of the records in consequence of the false information given by Edgerton, the want of such an examination would not preclude the plaintiff from a recovery. The effect of that charge is that, if those representations were made by Edgerton, it will dispense with the necessity of proving an examination of the records or of making any request for that purpose. But we think that doctrine cannot be sustained. So far as the townsof Windsor and West Windsor are concerned, no act of Edgerton will excuse the plaintiff from using those facilities, or complying with those requirements for which express provisions are made by statute ; and particularly it is necessary, in this case to prove such a request, as such is the averment in this count. It is not competent to prove an excuse for not making such -a request under an averment that an actual request was made.
But if we were to regard that question as submitted to the jury, and as now properly before us, the difficulty in the case is not avoided, as we think there is no evidence stated in the case tending to prove that, for the examination of the town records, a [326]*326request was ever made by the plaintiff previous to his purchase of the premises. It is insisted that the case shows that such a request was made, and that the observation made by the plaintiff* to Edgerton, during the examination of the premises, that “ You are town clerk and can tell me — is there any claim upon this property ? ” is evidence tending to prove that fact. But we do not feel at liberty to put that construction upon that inquiry. It was obviously not so intended by the plaintiff, nor could it have been so understood by Edgerton. The testimony of the plaintiff, given on the trial of this case before the jury which is detailed in tho exceptions, has, we think, put this matter at rest. He says, that “ he did not go to the office at all,” that “ he should have considered it an imposition upon Edgerton had he proposed going there to examine the records, and that he made the inquiry of him whether there was any claim upon the property to prevent going to look in the town clerk’s office. The plaintiff did not consider that he had made such a request and that the request had been denied ; and we should not regard that language as evidence of a fact which the plaintiff himself disclaims. It is an obvious case, in which not only a request, but an actual examination of the records was dispensed with, in the confidence placed by the plaintiff in the representations of Edgerton that the premises were free from incumbrances. It is true that the plaintiff has been injured in having been compelled to pay the Curtis mortgage; but that injury did not accrue from the neglect of the town clerk to make an index to that mortgage deed, nor, upon request, from the neglect of the town clerk to produce the records in his office for examination. On this count in the declaration, therefore, we think the plaintiff cannot recover, as he has failed to prove its material averments.
The questions on the motion in arrest of judgment arise upon the first, third and fourth eounts. We are to regard the facts stated in each of these counts as having been found by the jury on competent testimony. The third count, in common with all the others, contains the averment that Edgerton neglected to make an index to the record of the Curtis mortgage. It is then stated that, with a view to mislead the plaintiff, and thereby prevent him from making an examination of the records in his office, he represented [327]*327that the premises were free from all incumbrances except a lease to Dunbar and White; and that, in consequence of that representation, the plaintiff was induced to and did purchase the premises without any further examination or inquiry. There is no averment in this count that there was any request by the plain*tiff, or refusal by the town clerk, to submit the records in his office to the plaintiff’s inspection. The fact that no such examination was made or requested, places the plaintiff in the same situation he would occupy if the Curtis mortgage had been recorded and an index to it duly made. The only inquiry, therefore, on this count, arises, whether the towns of Windsor and West Windsor are liable to the plaintiff, in this action, for those false representations of the town clerk, when in reliance upon them no examination of the records was made, in consequence of Which his injury has been sustained.
The statute provides that towns shall be liable to make good all damages which shall accrue by reason of the neglect or default of any town clerh, &c. To ascertain whether there has been any such neglect or default, it becomes material to ascertain the duties which are imposed upon the town clerk by law; for it is only for the neglect to perform official duties, or such as the statute requires, that towns are liable; Hathaway v. Goodrich, 5 Vt. 66; Davis v. Clements, 2 N. H. 390; People v. Schuyler, 5 Barb. S. C. 168. The statute (Slade’s Comp; 414,) provides that town clerks shall provide books, with an index for registering deeds and other evidences respecting titles to lands, and also for recording the proceedings of town meetings and such other acts and things as are by law required to be recorded ; and it is made his duty to record all such matters, to furnish copies of the same, duly attested by him, and on proper request, to show the records and files .in his office. These are the specific duties enumerated by statute, so far as they are material to be now considered. It will be observed that the powers and duties of the town clerk are confined to making truthful records of all matters left with him which by law are to be recorded, to duly exemplify copies of the same, and to keep and preserve them for public Use and inspection.
The intention of the legislature and the policy of the act are obvious; It was their intention to provide a feasible method, [328]*328wbicb should be certain, and as solemn in its character as record evidence, by which all persons who arc or may be interested in the title of real estate, may ascertain its true condition and the incum-brances resting upon it. These records alone, so far as the liability of towns is concerned, are made the organs of information in relation to such titles ; and purchasers, as well as those who are making advances upon its security, are bound to consult those records-for their information, and not the man who, for the time being, holds the office of town clerk. It is the manner in which those records are kept and preserved which determines and measures the liability of towns. If, for the protection and security of towns and persons interested, the law has provided certain facilities, ire the use of which actual knowledge of the title to real estate and its incumbrances may be obtained, it is reasonable to require that those facilities shall be used for that purpose, and that no liability shall rest upon the town if the party injured has neglected to improve them, or has relied for his security upon the covenants ire his deed, or the representations of the town clerk, or upon any source of information other than those records. If the plaintiff ire this case had examined the records, and for the want of an index had failed in obtaining actual knowledge of the existence of the Curtis mortgage, or if he had been refused the examination of them, the town would have been clearly liable. There would there have been' a neglect of official duty; the neglect of duties the performance of which was required by law. But in no case are the statements and representations of a town clerk regarded as official acts for which towns are liable, nor are they regarded as any evidence of what does or does not appear upon the records of the town.
In the ease of Hill v. Bellows, 15 Vt. 727, it was held that a certificate of a town clerk that a person had not conveyed land is not evidence of that fact. Williams, Ch. J., observed, “ The certificate of the town clerk is evidence of what is on record, but he is not a certifying officer as to what does not appear of record.” The certificate was not evidence in that case, because it was not an official act; and if not an official act it is not a matter for which in any way towns can be made liable. The intent with which such certificates or statements are made, does not affect the case. [329]*329A fraudulent intent will not render an act official, which otherwise would not be so. In Oakes v. Hill, 14 Pick. 448, it was observed that “ recording officers may make and verify copies of their records, and, in doing so, act under the obligation of their oath of office. Of the verity of such copies their certificates are evidence. Hut it is no part of their duty to certify facts, nor can their certificates he received as evidence of such facts.” If their certificates are not official acts, much less will be their verbal representations. In 1 Greenl. Ev., sec. 498, it is said, “ if the person was bound to record the fact, then the proper evidence is a copy of the record, duly authenticated: But as to matters which he is not hound to record, his certificate, being extra official, is merely the statement of a private person, and will, therefore he rejected; Jackson v. Miller, 6 Cow. 751, 261; Carter v. Stokes, 1 M. & S. 599. The statute does not make it the duty of town clerks to answer such interrogatories, nor are they, so far as the liability of towns is concerned, authorized to make any such representations or statements; it is no part of their official duty. They must, therefore, be regarded as the statements or representations of a private person, and for which towns are not responsible. We think the facts stated in this count are insufficient to sustain this action.
The first and fourth counts are for the-reasons which have been stated in connection with the third count, regarded insufficient. The first count contains the averment that Edgerton neglected to disclose to the plaintiff the existence of the mortgage previous to the purchase of the premises; and that is the gravamen of the count. The fourth count is similar to the first, with the additional allegation that the neglect to make that disclosure was with a fraudulent intent. If the representations of the town clerk cannot be regarded as official acts, his neglect to disclose facts within his knowledge cannot be regarded as such. The difficulty in sustaining these counts arises from the consideration that towns are liable only for some neglect or default in keeping the town records, and not for any representations of the town clerk, nor for his neglect to disclose facts within his personal knowledge. If the town clerk has made such representations, or has neglected to make such disclosures, they are personal considerations, the same as if done by any private individual; and for such matters towns are not [330]*330responsible. Whether an action could be sustained against Edger-ton for these statements, or for a fraudulent neglect to disclose the existence of that mortgage, is not a question arising in the case. It is sufficient to observe that the statute has imposed no such liability on towns. The fact that Edgerton was both grantor of the premises and town clerk we have not regarded as of any importance in the case, or as in any way affecting the legal principles involved in it. If that circumstance has any effect it should 'have led the plaintiff to place less confidence in such representations, and to the exercise of greater diligence in the examination of the records, and in the use of all those facilities which the law has provided for his security, as well as for the security of towns.
The result is that the judgment of the county court must be reversed, and a new trial granted.