Whitacre v. Martin , 51 Minn. 421 ( 1892 )

Collins, J.

Although several assignments of error are made by ■counsel for appellant in this case, they raise practically but one question, which is as to the recording of a certified copy of the judgment decree introduced in evidence by the respondents. If this copy was of record in the office of the register of deeds for Bamsey county, in which was situated the real property herein involved, on the day that the register certified in his indorsement on the instrument itself, —October 8, 1883, — the respondents, being bona fide purchasers, were protected by the provisions of Laws 1887, eh. 61.

To establish the fact of this record the respondents introduced in evidence the original certified copy of the decree, on which the register of deeds had indorsed in due form that it was filed for record in his office on the day last mentioned, and was duly recorded in Book 120 of Deeds, pages 203-205.- They also introduced in evidence the record itself, as found in the Book of Deeds before mentioned, including the entry provided for in the last paragraph of 1878 G. S. ch. 8, § 177, from which it appeared that the instrument was recorded on October 8, 1883, at 11 o’clock a. m. This was followed by the introduction of certain portions of the grantees’ and grantors’ reception, books kept in the register’s office as required by the provisions of the first paragraph of said section 177. These reception-books were not objected to, and the only points made in respect to-their insufficiency as proof for any purpose-are that, as the judgment was against other defendants than Whitacre, the present plaintiff, and was only indexed against him in the reception books, the decree was not properly entered or recorded as against him; and, further, that in these reception books, under the heading “Description of Property,” nothing appeared but the words “See record.” As to the first objection it is sufficient to say that the judgment decree was -duly indexed and entered as against the plaintiff herein, Whitacre. Other defendants, against whom the judgment was rendered, might take advantage, probably, of the omission to index and enter under the initial letters- of their surnames, as required by the terms of section 177, supra, but the omission was of no avail to him.

The second objection mentioned may be disposed of by calling attention to the fact that, in the form prescribed for a division of each page of the reception' books into seven columns, there is no provision for a column to be headed “Description of Property,” as assumed by appellant’s attorney. It was therefore of no consequence that under such a heading nothing appeared but the words “See record.” " In this connection, however, it may be well to call attention to the following authorities: Bostwick v. Powers, 12 Iowa, 456; Barney v. Little, 15 Iowa, 527; Oconto Co. v. Jerrard, 46 Wis. 317, (50 N. W. Rep. 591;) St. Croix Land & Lumber Co. v. Ritchie, 73 Wis. 409, (41 N. W. Rep. 345, 1064;) Lane v. Duchac, 73 Wis. 646, (41 N. W. Rep. 962;) American Emigrant Co. v. Call, 22 Fed. Rep. 765.

The counsel for appellant devoted much time to the fact, assigned! as error, that he was not allowed to show upon the trial that the register of deeds, when making the entry immediately following the record as to the time of the recording, omitted therefrom the year, and that the figures “1883” were inserted, and interpolated after this action was commenced. His claim was, and it seems to have been well founded, that for more than seven years after October 8, 1883, the year in which the copy was recorded at length did not appear in the entry before referred to, and was then improperly written in the same. There has been no suggestion that the certified copy was not actually recorded on the day it was received for record as shown by the reception books, or “indexes,” as these books are frequently called, and, nothiug appearing to the contrary, the presumption is that the reception and record were contemporaneous acts, and that the .copy was recorded at length on the day it was received for that purpose in the register’s office. Oconto Co. v. Jerrard and St. Croix Land & Lumber Co. v. Ritchie, supra. The entries in the reception books, were certain and complete, clearly establishing the fact that the instrument was filed for record October 8, 1883, at 11 a. m., and was recorded in Book 120, on page 203. This was followed by the introduction of the record itself, in corroboration of the entries just referred to. The fact was established without reference to the entry in which appellant’s counsel claims there was an omission, and hence .the court was right in refusing his,offer to prove that the year of the record had not appeared therein until within a few months prior to the trial. To adopt the views of counsel would require us to hold that, although there is evidence of the very highest character elsewhere in the records, the fact of the recording of an instrument and the time it was recorded can only be shown by means of a single entry, which, in the nature of things, cannot be made until the recording has been completed, and consequently — in point of time — after such completion. The entries required by law to be made in the reception books, and the transcribing of the instrument into the record book, constitute the full record, and are sufficient evidence of the fact of the record and the time when made. Proof of either cannot be .made to wholly depend upon a subsequent entry.

We have made no allusion to the effect of the introduction in evidence of several pages of the book immediately preceding and succeeding the pages on which the copy was recorded, as before stated, because the case, as presented to us, fails to disclose the contents of these pages. We are not advised as to the materiality or relevancy of this evidence.

Order affirmed.

(Opinion published 53 BT. W. Rep. 806.)