Hay v. Hill , 24 Wis. 235 ( 1869 )

Cole, J.

This case would come within the decision of Shove v. Larsen (22 Wis. 142) if the evidence had shown that the entry in the old index book had been made before the purchase by the defendant HUI, so as to affect him with constructive notice thereof. But it does not. Indeed, it seems impossible' to say, in the absence of all proof upon the point, when the entry was made. It clearly appears upon the face of the book not to have been made when it bears date. For if it had been entered when the mortgage was left for record, then it is obvious it would have been written upon the next ruled line in its order. Besides, the entry immediately below was of a subsequent date, thus showing, beyond all question, that it was there when this-interlineation was made. For it is conceded in the printed case — and the inspection of the original minute book, which was produced on the argument, showed that this concession was according to the fact — that this entry in that book ‘ ‘ was written with a different ink from the entry immediately before and after, and was interlined between the ruling, and was written in after the entry of the minutes immediately below it,” which, as we have said, was of a subsequent date. Now, the difference in the color of the ink and the character of the handwriting, but, above all, the fact that the subsequent entry was of a later date, shows, as clearly as any thing could, upon the very face of the record, that it was not made when the mortgage was' left to be recorded. It must liave been made at some subsequent day ; and tire very gist of the inquiry is, when was it made ? The fact that the mortgage was certified as properly recorded, is of no importance, so far as charging a subsequent purchaser with notice of its existence was concerned. It is only the entry in the original minute book, which correctly described the land embraced in the mortgage, which can be relied on for that purpose. And when it appears upon the face of the book itself, that it was not made when it bears date, how can we assume, for the purpose of affecting a subsequent purchaser with notice, that it was really made before his purchase % It seems to ns we can make no presumption that it did then exist, in the absence of all proof or explanation upon that point.

The counsel for the appellant claimed, that, as this is a public record —■ one over which the plaintiff had no control — he cannot be called upon, in the first instance, to explain it, the presumption being, that the officer whose duty it was to make the entry actually did make it at the time. * But how can such a presumption be indulged in, when, upon the face of the record itself, it satisfactorily appears that it was not made when it bears date 1 It seems to us that we cannot presume that the officer did his duty, and made the entry when the mortgage was left in his office, for the simple reason that such a presumption is effectually repelled by the record. And as the .time when .this entry was made is the very essence of the inquiry, so far as affecting a party with notice is concerned, it ought to appear that it was in existence when the defendant purchased the premises. Otherwise there was nothing to charge him with notice of the misdescription of the land in recording the mortgage at length.

Upon this point we were referred to quite a number of cases by the counsel for the appellant, which say that where material alterations and interlineations have been made in public records or official documents, the mere fact of such alterations furnishes no ground for presuming that there has been a fraudulent alteration, but is rather to be taken to be a correction by the officer according to the very truth of the matter. This is undoubtedly a very correct proposition of law, when applied to records which, upon their face, contain nothing inconsistent with the presumption that the officer has done Ms duty; but it has little or no application to the question we are considering. For here the material point of inquiry is, When was this entry made ? It appears clearly that it was not made when it bears date. This is evident from the face of the record. When, then, was it made ? Was it made a few days, a few weeks, a few months, or a few years, after the day it should have been written? No evidence upon the point was offered. And we do not feel authorized, for the purpose of affecting a subsequent purchaser with notice of its existence, to say that the officer must be presumed to have written the entry within a few days, rather than within a few years. It seems to us that it is not a case for indulging in presumptions as to when it was written, inasmuch as the record shows upon its face that it was not made when it bears date.

We think the judgment of the circuit court, holding that the defendant Hill was a tona fide purchaser of the premises for value, without notice of the plaintiff’s mortgage, must be affirmed.

By the Court. — Judgment affirmed.