Page v. Rogers ( 1866 )

Curret, C. J., concurring specially:

When the sale was made to William P. Rogers, the statute required the Sheriff, upon a sale of real property under execution, to deliver to the purchaser a certificate of the sale, and also to file with the Recorder of the proper county a duplicate of such certificate. (Prac. Act of 1851, Sec. 229.) The Act did not provide what the Recorder should do with such duplicate, other than may be implied from the word “ file.” But the Act concerning County Recorders supplied the omission by making it the duty of Recorders to hold the custody of and safely keep and preserve all papers deposited in their offices. The Recorder in the case before us did have the custody of and did safely keep and preserve the certificate of the sale made to Rogers, and in that respect the requirement of the law was fulfilled, and I do not understand that any Court can properly say in what special manner he was bound to safely keep and preserve such certificates. I agree with my brother Sawyer, that the design of the statute requiring a duplicate certificate in such cases to be filed in the Recorder’s office, was to impart notice of the sale to all persons who might be or become concerned to know of it, and also agree that if it became notice it remained notice to subsequent purchasers of the sale already made, and that in this case Hibberd, the subsequent purchaser, had to a legal intent notice of the prior sale to and purchase by Rogers.

I therefore unite with Justices Sawyer and Sanderson in a judgment reversing the judgment of the District Court and in directing that Court to render judgment on the findings in favor of the plaintiff for the recovery of the premises.