Garrett v. Board of Commissioners , 1883 Ind. LEXIS 507 ( 1883 )

Hammond, J.

The appellant filed before the board of commissioners of Boone county an account for services while recorder of that county, in making two general indexes of deeds and mortgages which had been recorded by his predecessor in office. His account not being allowed, he appealed to the circuit court, where the case was tried by the court. There was a finding for the appellee, and, over the appellant’s motion for a new trial, judgment was rendered upon the finding.

The undisputed facts proved at the trial were as follows:

The appellant was recorder of Boone county, by appointment, from June 30th, 1879, to some time in October, 1880, He succeeded William F. Morgan, who died while in office. Morgan made no general index of deeds recorded by him in deed records numbered 25, 26, 27 and 28, nor any general index of mortgages recorded by him in mortgage records numbered 13, 14, 15 and 16, and there was no general index of the deeds or mortgages recorded as aforesaid when the appellant came into office. While the appellant was in office he made general indexes for said deeds and mortgages, being general index of deeds No. 7 and general index of mortgages No. 4. The appellant also made general indexes of all. deeds and mortgages recorded by himself while holding the office.

The following sections of acts of the Legislature of 1852 and 1855, being sections of the Revised Statutes of 1881, as below numbered, govern, we think, the case under consideration :

5938. “Each recorder in this State is hereby authorized and required, within a reasonable time after the passage of this act, to make out, where the same has not been done, a ■complete or general index to all the records'of deeds for real ■estate in his office. Such index shall be double, giving the name of each grantor and grantee alphabetically, a concise description of the premises, the date of the deed, together with the number or letter of the book, and the page in which ■each deed is recorded.”

5939. “ Each recorder is further authorized and required, as aforesaid, to make out a complete or general index to all the records of mortgages upon real estate in his office, in manner and form as pi’escribed in the foregoing section for ■deeds, excepting that the headings therein prescribed shall be so changed as to suit mortgages.”

5940. “After the completion of the indexes contemplated by the last two preceding sections, each recorder shall, from time to time, upon filling a record of deeds or mortgages, in-elude the same in the complete or general indexes as aforesaid.”

5941. “ The board doing county business shall allow the. recorder for making such complete or general indexes, fifteen cents for each hundred words contained in the same: Provided, however, That nothing in this section contained shall be construed to require the said board to make further allowances to any recorder on account of work done under the law hereby amended than was stipulated and agreed upon, or than what has been paid and accepted for such service.”

5942. “ After the completion of such indexes, it shall be-the duty of such recorder to keep up the same, in the manner aforesaid, as deeds and mortgages shall from time to time be recorded, without any compensation beyond or apart from the fees allowed by law for recording such deeds or mortgages.”

The above sections should be liberally construed. Sections 5938 and 5939 should be held as continuing in force and applying to any case where a recorder may find that any of his predecessors have failed to make or keep up the complete indexes mentioned, and, in such case, he is not only authorized but required to make the same out. The general indexes of deeds and mortgages are of great public importance. When made-out and kept up as required by law, they afford easy and con^venient access to the recorded deeds and mortgages of the-county. In certain cases, these general indexes are received as prima facie evidence of the execution and recording of the-deeds and mortgages as shown therein. Acts 1883, p. 132. It is the duty of a recorder to keep up the general indexes, of the deeds and mortgages recorded by him without any compensation other than that to which he is entitled as fees-for recording such deeds and mortgages. Board, etc., v. Sheets, 17 Ind. 22. If, however, from any cause, he fails to keep up such indexes, then his successor in office is required to discharge that duty at the expense of the county, his compensation being fifteen cents for each hundred words. The county is required by law, without any contract, to pay for such services, and, having paid for the same, may be reimbursed by suit on the official bond of the officer whose neglect of duty occasioned the expense. State v. Atkisson, 17 Ind. 26.

Filed Dec. 18, 1883. Petition for a rehearing overruled Jan. 9, 1884.

We think that the appellant was, under the evidence, entitled to recover, and that his motion for a new trial should have been granted.

Judgment reversed, at appellee’s costs, with instruction to the court below to sustain the appellant’s motion for a new trial.