Terrell v. McLean , 130 Ga. 633 ( 1908 )

Evans, P. J.

(After stating the facts.)

1. The plaintiff submitted evidence tending to show that the lender would not have parted with his money but for his reliance upon the truth of the clerk’s certificate of registration. The plaintiff requested the court, in writing, to instruct the jury that ‘if they should believe from the evidence that the lender parted with his money to the clerk in reliance upon a certificate of the clerk, and that the loan would not have been consummated and tha money would not have been paid over but for the certificate, tha giving of the false certificate caused the injury and loss to tha plaintiff in the amount of the loan. The court refused to give this charge, but on the other' hand charged that before the plaintiff could recover for the failure of the clerk to put the deed on record and the giving of the false certificate, the misfeasance and default of the clerk must have resulted in damage, by putting Bidwell in a worse condition than he would have been if the deed had been recorded and the certificate had been true.

The contract of sureties upon an official bond is subject to only the strictest interpretation. The obligation is strictissimi juris, and nothing is to be taken by construction against the obligors. They have consented to be bound to a certain extent only, and their liability must be found within the terms of that consent. Mason v. Commissioners, 104 Ga. 35 (30 S. E. 513). The condition of the bond of the clerk of the superior court is that he shall faithfully discharge the duties of his office. -When it is sought to hold his securities liable for his misconduct and default, it must appear that the conduct of the officer, relied on to impose the liability, was not only a breach of his official duty for which the sureties were answerable according to the terms of the bond, but also that the plaintiff has sustained a los.s as a consequence of the officer’s dereliction of duty. There could not be a recovery of the full penal sum, because the amount stated in the bond is not intended as measure of liability, but is only a limitation of the amount for which the sureties must respond for the official misconduct of their principal. It is necessary, therefore, when the plaintiff sues for a loss occasioned by a breach of the clerk’s bond, that he shall show not only a breach, but also that the acts relied upon to constitute the breach resulted in damage to the plaintiff. “The measure of damages upon all official bonds for the misconduct of the officer, unless otherwise specially enacted, shall be the amount of injury actually sustained, including the reasonable expenses of the suit to the plaintiff, besides the costs of court.” Pol. Code, §264.

The insolvency of the clerk was not disputed. The sureties insisted that had the clerk not been guilty of any official misconduct, under the facts developed upon the trial, the plaintiff would have lost his debt in any event. It appeared, that sometime in the year 1892 McLean, the clerk, sold to'E. L. and C. Y. Davis the lot of land which he afterwards conveyed by security deed to Bid-well, and executed a deed to E. L. Davis to the southwest half of this lot on January 27, 1893, and to C. Y. Davis a deed to the northeast half on November 27, 1893; that both went into immediate possession of the land purchased, and, at the time the plaintiff made his loan to McLean, E. L. Davis was in actual occupation <of about thirty acres of the land embraced in his deed, and C. V.] TDavis was in actual possession of fifteen acres of the land embraced in her deed. The deeds from McLean to E. L. and C. V. Davis were not recorded at the time of' the negotiation of the loan by the plaintiff and at the time of the giving of the false certificate, but were subsequently recorded. It appeared that their possession had been continuous from the time of their purchase, up to the time of bringing this suit, and that they bona fide claimed the land under their respective deeds. There is no suggestion of fraud ■or collusion between McLean and the Davises. The sureties contend ■.that the possession of the Davises put the lender on notice that "the borrower had sold the land prior to the execution of the security, deed; the lender contends that the possession of the Davises ¡at the time he parted with his money could only be notice to him that they were claiming so much of the land as was in the actual ■possession of each, and that their possession was not notice that they claimed title to any land beyond their actual possession. Our Civil Code provides (§3931) that “possession of land is notice of whatever right or title the occupant has,” and (§3933) that “notice sufficient to excite attention and put a party on inquiry is notice of everything to which it is afterwards found such inquiry might have led. Ignorance of a fact, due to negligence, is equivalent to knowledge in fixing the rights of parties.” These sections would be given too narrow a construction if the scope of the notice .afforded by possession, or the duty of inquiry as to the possessor’s ’ title, were limited to such part as he actually occupies of a tract •of land claimed by him. The notice of the occupant’s title given by possession is analogous to the constructive notice afforded by the registration of the deed. It is incumbent upon one who purchases or contracts for a lien on land to inquire into the right of any person in possession thereof; and such possession charges the former with notice of whatever title or right the occupant really has.in the premises. Neal v. Jones, 100 Ga. 765 (28 S. E. 427). See discussion in Walker v. Neil, 117 Ga. 745 (45 S. E. 387) ; Phelan v. Brady, 119 N. Y. 585 (23 N. E. 1109, 8 L. R. A. 211). When one has paper title to a tract of land, and is in actual possession of only a part thereof, Ms constructive possession extends to the confines of the land as described in his paper title. The law construes the possession to extend to the boundaries-of the tract. Civil Code, §3586. If, for the purpose of acquiring title by prescription under color, the law extends the possession, to the limits of the color, as against the true owner, a fortiori,, where the owner of a tract of land sells it and the purchaser enters into possession and actually occupies and cultivates a portion of the land, such possession will be construed to extend to’ the limits of his deed, so as to charge a subsequent purchaser with notice of the possessor’s prior deed. The evidence being without; dispute that the purchasers from the clerk were in actual possession of a part of the land, with deeds to the whole lot which the' clerk subsequently conveyed to the plaintiff as security for his debt,, the title of such purchasers was superior to the security deed of' the plaintiff. And if the clerk had duly recorded the loan deed,, the plaintiff’s security would have been worthless, and he is in no worse plight because of the fraud which the clerk practiced upon, him. In other words, the security deed of the lender is postponed, to the prior deeds of the purchasers, and the loss of his security is not the proximate result of the clerk’s misconduct, but was occasioned by his own negligence in not availing himself of the notice which the possession of the prior purchasers imputed to him. It is clear, therefore, that the plaintiff, having sustained no actual, damage as the result of the clerk’s misfeasance, was not entitled to recover on the clerk’s official bond the money which he loaned: to the clerk. Judgment affirmed.

All the Justices concur.