Conn v. Hudson , 350 Pa. 626 ( 1944 )

We are here concerned only with the power of the recorder to change a writing on the margin of a mortgage record. Whether the balance due was $300 or $3000, or whether appellant was legally justified in relying upon the notation is irrelevant. Whether the recorder had authority to direct his clerk to strike out the words "the balance of $300", whether the advice of an attorney that a particular notation has erroneously been made upon a public record, is sufficient authority to empower the recorder to alter such notation, or whether the source of the power to authorize the same rests in the courts is the sole question. I am of opinion that the power to authorize the alteration rests exclusively in the courts.

The entry upon the margin was made by virtue of authority given by the Act of 1876, P. L. 18, 21 P.S. Section 624. That act imposes a duty upon the recorder of deeds "to enter, upon the margin of the record of any mortgages, the book and page wherein any assignment or assignments of the same are recorded, together with the date of such assignment . . ." If the recorder does more and enters the names of the parties to the assignment, it cannot be said that the names are not part of the record.

This Court has held that the proper procedure to correct clerical errors made upon public records is to petition a court of equity to direct that the record be changed to remedy whatever error may exist. In Altoona Trust Co. v. Fockler,311 Pa. 426, 435, Mr. Justice MAXEY, now Chief Justice, said, quoting from Mars Nat. Bank v. Hughes, 243 Pa. 223, 225: " 'For errors in the entry of the judgment, or for the correction of clerical mistakes, application should have been made to the court to correct the original judgment to conform to the facts . . .' " Designating the words as surplusage cannot affect the exclusive power of the courts. What has been entered upon public records should remain until removed at the direction of the proper authority. Not by voluntary action of the recorder upon suggestion of an attorney desiring a change so that the record may be used in future or impending litigation but only by judicial direction may such surplusage be removed. To hold otherwise, as the majority opinion does, will result in unreliable records, contrary to the intent and purpose of the recording acts, and a chaotic status of the entire recording system.

I would reverse the decree of the court below.