Richardson v. Woolard

97 So. 808, 133 Miss. 417, 1923 Miss. LEXIS 156

• Court: Mississippi Supreme Court
• Decided: October 29, 1923
• Docket: No. 23396
• Status: Published

Opinions

.Cook, J.,

delivered tbe opinion of tbe court.

Tbe appellants filed a bill of complaint, seeking an injunction to restrain tbe appellee, chancery clerk of Bolivar county, from recording a deed of trust on land in a book in bis office commonly known as a loose-leaf record of land mortgages and deeds of trust, and a temporary injunction wás granted. The appellee, defendant in the court below, demurred to the bill, on the ground that the bill showed on its face that the record book described therein was a well-bound book of good papér, and that the use of such a book by the chancery clerk was a full compliance with the law with reference to such records. The cause having been heard on bill and demurrer and motion to dissolve the injunction, a decree was entered thereon dissolving the injunction and dismissing the bill, and from this decree this appeal was prosecuted.

The loose-leaf book upon which the chancery clerk proposed bo record the deed of trust is described in the bill of complaint as follows:

“Said loose-leaf book has six hundred loose sheets with three oblong holes on the inside of each sheet, which holes fit over metallic posts, and said sheets become firmly attached to the leather cover when locked, as stated below. After these sheets are placed over these posts, a. metallic rod is run through the holes in the posts, and at the end of this rod is a key-hole into which a key fits; and, by turning the key, the mechanism may be locked or unlocked at any time while the book is being filled with recording matter. The key is kept by the clerk, and the book cannot be opened without it. As each instrument which is to be recorded is filed, the clerk, under the clerk’s custom, unlocks the book, removes one of the blank sheets (the book being again locked-in the meantime, and the key removed and retained by the clerk), records the instrument on the blank sheet, then unlocks the book, places the sheet with the recorded instrument on it therein, locks the l]ook again, and removes the 'key. After all the sheets of the book are filled with recorded matter, the clerk unlocks the book by means of the aforesaid key, removes the aforesaid temporary rod, which temporary rod is only for use while filing the book, and inserts in the mechanism through the aforesaid posts another and permanent metallic rod, to which there is no key, and which locks automatically upon being inserted. When the temporary rod as aforesaid is inserted in the posts, and the key turned and removed by the clerk as aforesaid, said six hundred leaves are hereby firmly bound within the aforesaid leather covers, and cannot be removed until the said key is inserted and the mechanism thereby unlocked. When the permanent rod is inserted, it likewise binds the leather covers firmly to the sheets within, and can never be unlocked or the sheets removed.”

Section 2808, 'Code*of 1906 (section 2309, Hemingway’s Code) provides that “it shall be the duty of the clerk of the chancery court to whom any written instrument is delivered to be recorded, and which is properly recordable in his county, to record the same without delay in a well-bound book of good paper, to be provided by him for that purpose,” etc., and the only question presented for decision by this record is whether or not' the loose-leaf book described in the bill is the kind of book required by this statute to be used for recording deeds of trust and other such instruments.

The principal argument advanced against the right to use the loose-leaf book described in the bill is based upon the fact that, until the book is completely filled with recorded instruments, the custodian thereof may, by the use of a key, unlock the locking device with- which the book is bound together; and- then remove therefrom a- sheet or page of the book. In providing that it shall be the duty of the clerk to whom any written instrument is delivered to be recorded, and which is recordable in his county, to record the same in “a well-bound book” of good paper, to be provided by Mm for that purpose, the legislature had a twofold purpose. It was not the intention solely to prevent the leaves of the book containing recorded matter from being removed by some person with sinister design, hut it was also the purpose to provide a book of such durable, binding and material that the recorded instruments will be preserved from loss or destruction by use or decay. That the legislature recognized, that record books, although bound in the old style with glue or paste or by sewing and stitching ivith thread, may be injured or destroyed by long use or the ravages of time and decay, is shown by section 318, Code of 1906 (section 3691, Hemingway’s Code), which malees it the duty of the board of supervisors to have rebound all record books of conveyances and of last wills and testaments, of indexes thereto, and all other record books of the county that need td be rebound, and to have transcribed into new record books all conveyances and other instruments of record, and indexes thereto, that need to be transcribed for preservation. It can hardly be doubted that a book bound with metal in the manner described in the bill of complaint, when locked, is more durable than one bound in the old style, and it is averred in the bill that the book remains at all times locked, except* when opened temporarily by the clerk himself for the purpose of removing a blank page upon which it is desired to record an instrument. The clerk is the custodian of this book, and is responsible for its proper preservation, and the averments of the bill are that, the key to the locking device is kept by the clerk, and the book cannot be unlocked so as to release a sheet'without this key, and when an instrument which is to be recorded is filed, the clerk unlocks the book, removes one of the blank sheets (the book being again locked in the meantime, and the key removed and retained by the clerk), then records the instrument on the blank sheet, unlocks the book, replaces the sheet with the recorded instrument on it therein, again locks the book, and removes the key. When the clerk removes a sheet from this book for the purpose of transcribing thereon an instrument which has been filed for record, and which he is required to record, the recordation of such instrument is not completed until the sheet is replaced in its proper place in the book, and bound therein. The unrecorded instrument is filed with and instrusted to the clerk, and he is responsible for the preservation thereof from the- time it is filed. He is likewise the custodian of these record books, and is responsible for the preservation of them intact, and some trust and confidence must be reposed in him for the faithful discharge of these duties. It is hardly probable that a sheet could be removed from or substituted in the book described in the bill of complaint, except by the clerk or some one acting in collusion with him, and we do not think the danger of the spoliation of a record is any greater with the book here in question in use than it is with a book bound with glue or thread, or any other method of binding commonly in use. We are therefore of the opinion that the book here in question is a well-bound book within the meaning of the statute. In this view Judges Sykes and Smith concur, while Judges Anderson, Ethridge, and Holden dissent.

The decree of the court below will therefore be affirmed.

Affirmed.