Armstrong v. Austin , 45 S.C. 69 ( 1895 )

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

The only question presented by this appeal is whether the mortgage sought to be foreclosed in this action was duly recorded so as to affect the defendant, a subsequent purchaser of the mortgaged premises, with constructive notice of said mortgage.

In the complaint it is alleged, “that said mortgage was duly proved and, on the 13th day of February, A. D. 1872, recorded in the clerk’s office for Kershaw County, in the mortgage book No. 2, pages 356 and 357.” To this allegation the defendant, in his answer, responded as follows: “This defendant avers that he was a purchaser of a part of the said tract of land for a valuable consideration, without legal notice of any prior encumbrance on the same, the proper index in the office of the register of mesne conveyance for Kershaw County relating to real estate not showing that any mortgage .on said tract of land had been recorded in the proper books of said office. This defendant, therefore, denies that the mortgage set forth in the complaint was properly or duly recorded in the office of the clerk for Kershaw County, and that he had legal notice of the same.” The case was referred to the master, who made his report, sustaining the validity of the mortgage, and recommending that the mortgaged premises be sold and the proceeds applied to the payment of the mortgage debt, the amount of which was ascertained in his report. To this report the defendant excepted, upon the grounds set out in the “Case,” and the case was heard by his Honor, Judge Benet, upon the report and exceptions thereto, who rendered judgment, overruling the master and dismissing the complaint.

From that judgment plaintiff appeals, upon the several grounds set out in the record. We think it due to thé parties, as well as to the Circuit Judge, that the report of the master, together with the exceptions thereto, as well as the decree of the Circuit Judge and the grounds of appeal therefrom, should be incorporated in the report of the case.

1 It is very obvious that, if the case should be made to turn upon the only issue (so far as this appeal is concerned) presented by the pleadings, the only question to be decided would be, whether the failure to index (if, indeed, there was such failure) would be fatal to the validity of the recording of the mortgage so far as to affect subsequent purchasers with constructive notice thereof. For, in the complaint, it is distinctly alleged that the mortgage was duty recorded on the day of its date, and that allegation is not denied in the answer, except in the form above quoted, which is based solely upon the ground of the failure to index, as the defendant says that he, “therefore,” denies that the mortgage was duly recorded — that is, for that reason alone is the validity of the recording denied. So that our first inquiry is, whether the alleged failure to index is fatal to the validity of recording. So far as we are informed, we have no direct decision upon that question in the State. We must, therefore, resort to the aid of reason and authorities elsewhere. In the first place, it will be observed that statutes requiring mortgages and like papers to be recorded, so as to operate as notice to subsequent cseditors or purchasers, contain no provision requiring such records to be indexed. That requirement is found in another statute prescribing the duties of registers of mesne conveyances and clerks of court in the counties where such clerks are ex officio registers. It would, therefore, seem that when a paper required to be recorded, in order to operate as notice, has been spread upon the books of the proper office, all the requirements of the statute have been complied with; and the fact that the clerk or register has failed to comply with the provisions of another staUUe requiring such officer to keep an index of such books, should not affect' the validity or effect of the record. There is nothing in the statute making the indexing any part of the recording; and, therefore, the failure of the officer to perform a duty imposed upon him by a separate statutory provision, while it may subject him to an action, at the instance of a party who may suffer by his default, yet it can not affect the validity or effect of the recording. In support of these views, we have been able to find two cases from other States in which the point has been distinctly decided: Bishop v. Schneider, 46 Mo., 472; 2 Am. Rep., 533; and Chatham v. Bradford, 50 Ga., 327; 15 Am. Rep., 692. So that we think that, even if the record of the mortgage in question was not indexed, it would still, if properly recorded, operate as constructive notice.

2 But we do not think that it has been made to appear in this case that the record of this mortgage was never indexed. The master certainly does not find that as one of the facts of the case. All that he says upon the subject is: “I have made diligent search for the index to book 2 of liens and mortgages (the book in which the endorsement on the original mortgage shows it was recorded), but cannot find it.” It may be, for all that appears, that there was such an index, which has either been lost or misplaced.

While, as we have said, this disposes of the only issue, so far as the present appeal is concerned, which is raised by the pleadings, yet as other objections were made to the record of the mortgage, which, though overruled by the master, were sustained by the Circuit Judge, we will proceed to consider them.

3 The first of these objections seems to be that the mortgage was not recorded in the proper book. The certificate which is endorsed upon the mortgage, which was received in evidence without objection, is, after a statement of the names of the parties, and the nature of the paper, in the following form: “Filed Feb. 13th, 1872. Recorded, same day in lien and mortgage book No. 2, pages 356 and 357. Examined and certified by me,” and signed “C. Shiver, Clerk.” This objection was overruled by the master but sustained by the Circuit Judge. Sec. 1 of chap. CXX. of the Rev. Stat. 1872, p. 548-9, only required that a mortgage of personal property should be recorded in the office of the register of mesne conveyances, without specifying in what book such record should be made, except that in the county of Richland such a mortgage must be recorded in the office of the Secretary of State; and by sec. 2 of chap. 82 of the Rev. Stat. of 1872, p. 422, a mortgage of real estate was only required to be recorded in'the. office of register of mesne conveyances, without specifying in what book such record should be made. This was the law at the time of this transaction, and by that law must its validity be tested. It was not until ten years after-wards, when the law was amended by the act of 1882, 17 Stat., 1053, by requiring mortgages of real and personal estate to be recorded in different books. It seems to us, therefore, that this being a mixed mortgage, covering both real and personal property, was recorded in the proper book under the law as it then stood.

4 5 The next objection was that the mortgage was not properly probated and could not, therefore, be properly recorded. There is no doubt under the express terms of the statute, sec. 5, chap. 23, Rev. Stat. of 1872, p. 188, that no paper can be properly recorded until its execution “shall first be proved by affidavit of a subscribing witness taken before some officer competent to administer an oath” — Woolfolk v. Graniteville Manf. Co., 22 S. C., 332. The affidavit to prove the execution of this mortgage and endorsed thereon purports to have been'made by one of the subscribing witnesses in the usual form, and sworn to before “C. Shiver, Clerk,” but the affiant does not appear to have signed the affidavit. This does not invalidate the affidavit, as may be seen by reference to 1 Am. & Eng. Encyclopedia of Raw, p. 311, and the cases there cited, as well as the case of Fuller v. Missroon, 35 S. C., 314, unless there is a statute or rule of court requiring the signature of the affiant; and no statute or rule of court has been brought to our attention, making such requirement. The affidavit endorsed on the mortgage was sufficient to warrant its record, as the clerk before whom it was taken is, certainly, an officer competent to administer an oath — indeed, is expressly made so by sec. 15, of chap. 22, Rev. Stat. of 1872, p. 180. This objection cannot, therefore, be sustained. The Circuit Judge bases his conclusion, in part, at least, upon a point not raised before the master, and, so far as appears, not touched upon in the argument before him on the exceptions to the master’s report, and the point, therefore, was not properly before him. Griffin v. Griffin, 20 S. C., 486. It may be that if the point referred to — that is, the supposed variance in the handwriting of the signature, “C. Shiver, Clerk,” to the certificate of the record of the mortgage, and that of the same signature to the affidavit proving the execution of the mortgage — such apparent variance might have been fully explained. But this point was not only not made before the master or passed upon by him, but, on the contrary, the mortgage, with these endorsements thereon, was received in evidence without objection. At all events, we think it clear, under the case just cited, that there was error in considering a point not'raised before the master nor passed upon by him, and not raised by any exception to the master’s report.

We are of the opinion, therefore, that the judgment of the Circuit Court should be reversed; but, as there is one issue raised by the pleadings' — that of payment of the mortgage debt — which was not determined by the Circuit Judge, as, under the view which he took of the case, it was not necessary for him to do, the case must go back to the Circuit Court for the determination of that issue, and for such further proceedings as may be necessary, under the views herein announced, in case the issue of payment should be determined adversely to the defendant.

The judgment of this Court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to the Circuit Court for such further proceedings as may be necessary, under the views herein set forth.