Smith v. Smith

13 Ohio St. 532, 13 Ohio St. (N.S.) 532

• Court: Ohio Supreme Court
• Decided: December 15, 1862
• Status: Published

Opinion

Suture, O.J.

There is nothing in the agreed statement of facts, or in the proof before us, to impair the validity of the notes and mortgage relied upon by the plaintiff, at the time of their execution to the testator, John Smith; nor is there anything to invalidate the claim of the defendants, Samuel Plumb and Ralph Plumb, to the character of bona fide purchasers and grantees of the land from Alexander M. Smith, without any actual notice of the prior mortgage to John Smith. There is, therefore, only one question presented to our consideration upon which the merits of the case is made to depend, viz : Was the delivery of the mortgage by John Smith to the recorder, and his recording it in the book of deeds, and so indexing the same, and indorsing and returning, the deed to the mortgagee, sufficient to make the mortgage operative upon the premises, as against the grantees, Samuel Plumb and Ralph Plumb ?

Previous to the act of February 22, 1831, the law regulating the execution and recording of mortgages and deeds in this state was the same.

The territorial act of June 18,1795, the-first statute in this state relating to deeds and mortgages, required the same to be recorded within twelve months after execution, and provided that, in default of such recording, the same should be adjudged fraudulent and void “ as against any subsequent purchaser or mortgagee, for valuable consideration; unless such deed or conveyance be recorded, as aforesaid, before the proving and recording of the deed of conveyance under which such subsequent purchaser or mortgagee shall claim.” Territorial Laws, ch. 53, sec. 8.

This provision was amended by the statute of January 20,1802, so as to require deeds and conveyances executed without the territory to be recorded within one year from their execution, and deeds and conveyances executed within the territory to be recorded within six months from the exe cution, and providing that in default of suck recording, the same should be deemed fraudulent against any subsequent bona fide purchaser or purchasers, without knowledge of the existence of such former deed or conveyance. Ter. Laws, ch. 161, sec. 3.

And this territorial act was but slightly altered by the state law of January 12, 1805, which revised and superseded it. The act of 1805, fixes the same limit for recording conveyances, and only differs in the phraseology so as to make its provisions more clearly embrace mortgages. This act provides that “ if any deed or conveyance of lands, tenements or hereditaments, made and executed, whereby the same shall be affected in law, or in any manner incumbered, shall not be acknowledged or proved, and recorded within the respective terms allowed by this act, the same shall be deemed fraudulent against any subsequent bona fide purchaser or purchasers without the knowledge of the existence of such former deed or conveyance.”

The revisory act, upon the same subject, passed January 30, 1818, 1042, sec. 4 and 5, required “ all deeds, mortgages and other instruments of writing,” executed within the state, for the conveyance or incumbrance of lands within the state, to be “ recorded within six months from the date of the same, within the county,” etc. — providing that if the same should not be so recorded within the 'time limited, the same should be considered “ fraudulent against any subsequent bona fide purchaser or purchasers without knowledge of such former conveyance ;” provided such deed or mortgage might be recorded at any time after the time so limited, and take effect from the time of recording — and that deeds executed without the state should take effect from the time of their being so recorded.

The same provisions were re-enacted in the revisory act upon the same subject, February 24, 1820 (Chase St. 1140, secs. 4 and 5), and the same remained in force until repealed and superseded by the act of February 22, 1831, entitled “ an act to provide for the proof, acknowledgment and re cording of deeds and other instruments of writing.”

While this act leaves the law unchanged, as to other deeds of conveyance, it is provided by section 7, “ that all mortgages executed agreeably to the provisions of this act shall be recorded in the office of the recorder of the county in which such mortgaged premises are situated, and shall take effect from the time when the same are recorded ; and if two or more mortgages are presented for record on the same day they shall take effect from the order of presentation for record ; the first presented shall be the first recorded, and the first recorded shall have preference.”

The mortgage, regarded as a contract beween the parties, would be, at common law, of full force and effect between the parties, as soon as executed.- And so, too, under the preceding statutes of this state, the mortgage, as soon as executed, was of full force between the parties; and it was only by respect to public policy, that the legislature saw fit to enact that, as to third persons who purchased the premises in good faith without any knowledge of the mortgage, after the expiration of six months, and a neglect of the mortgagee to have the same recorded, the mortgage should not be set up by such delinquent mortgagee to the prejudice of thebonafide subsequent purchaser.

Now, inasmuch as this section 7, of the act of 1831, operates to change the common law rule and the former statute rule perjudicially to rights otherwise belonging to the mortgagee, the rule of interpreting statutes, applicable in such cases, requires that the statute should have a restricted interpretation ; that it should not be extended beyond the clear and obvious meaning of its words.

The recording of the mortgage, as provided for by this statute, clearly appears to have been made agreeably to the language of section 7, and acccording to the provision of this statute, the mortgage, from and after July 11, 1855, the day it was recorded, was entitled to full force and effect as a valid mortgage. And if this act of 1831, were the only statutory provision bearing upon the question, there could be no, reasonable doubt as to the sufficiency of the recording. But while the act of 1831, it is conceded, has remained since its enactment unrepealed and in force, its provisions have been qualified by subsequent legislation upon the same subject. There are two other acts of the legislature, enacted subsequently to the act of 1881, in relation to the record of mortgages, to which our attention has been particularly called by counsel.

The act of March 16, 1888, entitled “ an act declaratory of the laws upon the subject of mortgages,” after reciting, in the preamble, that doubts had arisen under the act of 1831, “ whether deeds of mortgage take effect from the time the same are delivered to the recorder of the proper county for record, or from the time the same are actually copied into the book of records,” for the purpose of removing such doubts, by section 1, it is “ declared and enacted that mortgage deeds do and shall take effect and have preference from the time the same are delivered to the recorder of the proper county, to be by him entered on record, anything in the before recited act to the contrary notwithstanding.” Curwen’s St. 429.

Again, on the 25th of March, 1851, in the act entitled “ an act supplementary to the several acts in relation to the recording deeds, mortgages and other instruments of writing,” it is provided as follows :

“ Sec. 1. That all deeds, powers of attorney, and other instruments of writing whatever, other than mortgages, deeds of trust in the nature of mortgages, and powers of attorney for the execution of mortgages, or for the execution of deeds of trust in the nature of mortgages, shall be recorded in the set of record books denominated ‘ Record of Deeds;’ and all mortgages, deeds of trust in the nature of mortgages, and powers of attorney for the execution of mortgages, or such deeds of trust as aforesaid, shall be recorded in the set of record books denominated ‘ Record of Mortgages,’ anything in any act to the contrary notwithstanding.” Cur-wen’s St. 1663.

It is insisted, on the part of the defendants, that this provision of the statute of 1851, is not only to be regarded as supplementary to act of 1881, but is also to be regarded as supplementary to section 7 of that act, and requires that the mortgage deed so recorded on the 11th of July, 1855, should • have been recorded in the “ Record of Mortgages,” in order to bring it within the purview of the statute requiring it to be recorded to give it validity as a mortgage.

On behalf the plaintiff, it is insisted that, by the provisions of the act of 1838, the delivery of the deed of mortgage by the mortgagee to the recorder, for record, gave it validity as a mortgage; and that the same, by force of the statute, took effect and had preference from the time of such delivery to the recorder; and that the subsequent return of the mortgage by the recorder to the mortgagee, could not destroy the efficacy of the mortgage so made, by the statute, to depend upon its delivery to the recorder.

This construction of the declaratory act of 1838, seems, to a majority of the members of this court, inadmissible. The object of this declaratory act, appears to us to have been merely to give a fair and reasonable construction to the acts of 1831, relating to the recording of mortgages. And if section 7 of that act “ to provide for the recording of deeds and other instruments ” had been fairly construed, with the act prescribing the duties of recorders, passed at the same session of the legislature, the declaratory act would have been, probably, unnecessary. The act of February 25, 1831, providing for the election and prescribing the duties of county recorders, required the recorder to record all deeds, mortgages, etc., required by law to be recorded, which should be presented to him for that purpose, in regular succession, according to the priority of presentation; and, if a mortgage, it is provided that “ the precise time of the day on which the same was presented shall also be recorded;” and it is provided by section 5, “ that upon the presentation of any deed or other instrument of writing for record, the recorder shall indorse thereon the date of its presentation,” etc. Chase’s St. 1842.

Now, by the well recognized rule that all acts in pan materia, relating to, or parts of the same subject matter, are to be taken together as if one law, it would seem that there was due to section 7 of the act relating to the recording of deeds, precisely the same meaning before as after the passage of the declaratory act of 1838. For, by taking into consideration the two acts of 1831, in relation to the recording of mortgages, we find the provisions upon the subject, taken together, to be as follows: The recorder is required, as to every deed and mortgage, to first u indorse thereon,” when delivered to him, the time when the same is presented to him for record; and then to copy such deed or mortgage, and the indorsement of the time when received, into a record book, in the precise order in which received. The official act of the recorder, therefore, commences with receiving the mortgage, and indorsing thereon the date of its presentation; and his official act is only consummated upon fully completing the record, indexing the same, and indorsing upon the mortgage the time when, and the place where, recorded, as required by the statute. While, therefore, the provision of section 7 is, that mortgages shall be recorded, “ and shall take effect from the time when the same are recorded,” the provisions of the two acts render it reasonably certain, that the delivery of the mortgage is to be regarded such an inchoate compliance, as to entitle the mortgagee, upon full compliance with the requisition of the statute, by a recording of the mortgage, to the effect of the same, by relation, as a perfect mortgage, at the time of its being so delivered to the recorder for record.

It is not claimed, that independent of the declaratory act, a bare delivery of the mortgage for record would give it validity, so that, if withdrawn by the mortgagee before recorded, the mortgage would be vailid without being recorded. And it seems to me that it may well be doubted whether the declaratory act of 1838 has, in any respect, changed the law, so as to dispense with recording, in order to give effect to the mortgage. But we deem it unnecessary to decide this question in the present case.

It remains, therefore, only to consider the character and effect of the supplementary act of 1851. That act, as we have seen, is entitled “ an act supplementary to the several acts in relation to the recording of deeds, mortgages and other instruments of writingand its provisions, requiring absolute deeds of conveyance to be recorded in one set of books, and conditional and trust deeds in another, as 'well as its title, show the act to have been not only not merely supplemental to section 7, as is claimed, but not even more appropriately supplemental to the whole act of February 22, 1831, than the act of February 25, 1831. Indeed, the act of February 25,1831, is the act‘which particularly prescribes the duty of the recorder, as to the order and manner and place of recording deeds and mortgages. It requires him to record the deeds and mortgages “in a fair and legible handwriting, in books to be by him provided tor that purpose.” And this supplemental act, in addition to those requirements, makes it the duty of the recorder, after so providing the books, to divide them into two sets, one to be appropriated for the recording of deeds, and the other for the recording of mortgages, and to record each kind of deeds in the appropriate set of books, as well as “ in a fair and legible hand,” and “ in regular succession.” There is, moreover, nothing in the provisions of the supplemental act prescribing any act for the mortgagee, or imposing any additional duty upon him. And the existing laws imposed upon the recorder the duty of recording the mortgages in the books to be by himself furnished, at the time of the passage of the supplemental act, so directing one set of the books to be exclusively appropriated for that purpose. Nor does any provision of either act require, or even authorize, the mortgagee to interfere with the recorder in the discharge of his duties.

Again, the object of the statutes requiring the mortgage to be recorded, evidently was to afford reasonable means of notice to third persons. All the statutes of this state upon the subject preceding the revisory act of 1831, contained in the same section, the same provision for the recording of deeds and mortgages ; and made them both alike, on neglect of being recorded within the time limited, void only “ against subsequent bona fide purchasers, or mortgagees,” without knoioledge “ of such former conveyance.” The same language is used in the revisory act of 1831, at the close of section 8, limiting the time of recording deeds and other instruments of writing. But in this act of 1831, two sections are used instead of one, as in the preceding act; and the provision limiting the effect of failure to record, to persons “ without knowledge ” of the instrument, is omitted in section 7, treating of mortgages, and only added at the close of section 8, after limiting the time of recording all instruments to be recorded, as in the former acts where all were embraced in the same section. Notwithstanding this change of phraseology, it certainly would have been no violation of the rules of interpreting statutes, to have held unrecorded mortgages under the act of 1831, as void only against subsequent bona ■fide purchasers, without knowledge of such mortgage. But even under the more strict and long established construction given to section 7 of the act of 1831, it is still true of the acts of 1831, 1838 and 1851, that the object of each and all of them is to give notice to third persons.

In the present instance, however, it appears that agreeably to the requisitions of section 7 of the act of February 22, 1831, the mortgage was recorded; and the provision of that act is, that “the mortgage” shall take effect from the time the same is recorded. It was recorded in a book and indexed in an index of the records of the proper county, a book and an index into which, every one, referring to' the records of the county, must necessarily look, as well as into the record of mortgages, in order to ascertain the character of the title to lands in that county. And especially is this so, since deeds absolute on their face and intended as mortgages by the parties, or so made as to be regarded as mortgages by the courts, are not unfrequently or -improperly recorded in the record books denominated “ record of deeds.” Indeed, this supplemental act of 1851, affords no additional means of notice to third persons; it is, at most, only an act affording additional facilities for a more ready reference to the record of any particular deed or mortgage, than was had while deeds and mortgages were recorded and indexed promiscuously, in the same volume.

All these considerations, and others which might be mentioned, as well as a proper regard to the rules of interpretation peculiarly applicable to the statutes under consideration, constrain us to regard the supplementary act of 1851, as merely directory to the recorder. The recording of the mortgage, therefore, by the language of the statute, and, we think, by its true spirit, gives to this recorded mortgage full effect and validity from and after the time of its delivery to the recorder for record.

The decree must be entered accordingly, for the plaintiff.

Peor, Gholson and Brenkerhoee, JJ., concurred; Scott, J., dissented.