Speer v. Evans ( 1864 )

The opinion of the court was delivered, by

Woodward, C. J.

This was not the case of an unrecorded mortgage. It was duly recorded, and as between the parties thereto, the mortgagors and mortgagees, was in all respects a valid and effectual mortgage. But it was not duly indexed, and not, therefore, constructive notice to third parties. As a guide to inquirers, the index is an indispensable part of the recording, and without it, the record affects no party with notice.

As the sole purpose of the index is to enable those who are affected with constructive notice of the mortgage to obtain actual notice of it, no man to whom actual notice has been brought home by other means, has the right to complain of the want of an index. Eor it never can be a subject of just complaint, that he who was entitled by law only to constructive notice has received more than his due — all that the registry, duly indexed and actually searched, could have given him.

The question of actual notice to Speer was very fairly submitted to the jury upon competent evidence, and the event was made to depend wholly upon the finding of that fact. The only legal conclusion which such a record requires us to declare is, that actual is equivalent to constructive notice. We so decide, and as this makes an end of the cause, it is unnecessary to discuss all the collateral questions suggested in the assignments of error and in the argument.

The judgment is affirmed.

Agnew, J., was absent at Nisi Prius when this case was argued.