Schell v. Stein , 76 Pa. 398 ( 1874 )

Chief Justice Agnew

delivered the opinion of the court, November 9th 1874.

The question presented by the record in this case is, whether a deed regularly acknowledged or proved, and recorded in the proper book, and indexed in the separate index appropriated to the book, but not in the general index of all the deed books, is not defectively recorded. If it be, the conceded principle is, that a deed defectively registered is a nullity as to subsequent purchasers or mortgagees. There is no law which requires the recorder to keep a general index to all the deed or mortgage books in his office. That it is a great convenience, and in the populous counties of the state has become a necessity, is evident, but it is the province of the legislature, and not of this court, to make this convenience or the necessity the subject of law. The registration of deeds is purely a system of legal institution, and not of common right or abstract justice. At common law in England, there was no system of registration, and the rule between claimants of the same title was found in the maxim, “prior in tempore potior est in jure.” In this state the system has been o'ne of growth. The original Act of 1715 did not even require the record to be a book. The recorder was to provide parchment or good large books, and his certificate was to give the number of the book or roll. No provision was made for indexing until the Act of 1827, which was applicable to other offices as well as that of the recorder. But so early as 1775, the law required a bond of the recorder with sufficient sureties, which was to be held for the use of “ parties that shall be damnified or aggrieved ” in the same manner as sheriff’s bonds. The duty of searches is that of the officer, not of parties, and he must see to it that no mistakes are made in searching. The Act of 1827 imposed no duties as to indexes, except to have one for each and every book. If greater convenience induces the recorder to keep a general index, to save the handling of different books, and he omits to index a deed in it; and thereby overlooks a deed regularly recorded and duly indexed in the proper book, his certificate makes him liable to the party who is injured by it. But surely the one who has had his deed duly acknowledged or proved, recorded in the proper book, and certified under the hand and seal of office of the recorder in due form, has done all the law requires of him. On what principle of law or sound reason shall he be required to supervise the officer’s gratuitous indexing of deeds in an index not required by law ? He is not to be presumed to be familiar, and as a fact, nine out of ten persons are not familiar with the system of the office. All the citizen can be bound to know, is the law, and he is warned by no law that there must be kept a general index. Whether his title cam be taken from him, by the omission to enter his recorded and certified deed in the particular index, may admit of question, but we give-no opinion on this point.

Luch’s Appeal, 8 Wright 519, has no bearing upon this case. That was a very peculiar case, where a most unusual instrument was recorded in a book of miscellanies, and then sought to be supported as a recorded mortgage. In Northampton county there was an actual and customary division of record books into several kinds, one being devoted specially to mortgages, and it was held that the anomalous paper in the book of miscellanies was not sufficient as the record of a mortgage. In that case, the authority of which it is not intended to deny, Justice Read went into a discussion to show the necessity of a division of the record books according to the leading kinds of recordable deeds. In a populous city such as that of Philadelphia or Allentown, a custom so proper may be considered as having ripened into law, without questioning the custom in the more rural districts, of recording all kinds together, asserted to be the legal rule, -by Chief Justice Gibson in McLanahan v. Reeside, 9 Watts 511. But a division of the different kinds of deeds by recording them.in different and appropriate books, whereby every one is led to confine his search to the books in which the kind he is searching for is contained, is no ground for holding that a title shall be lost to an owner whose deed is recorded and indexed in the proper book, merely because the recorder has not gratuitously indexed it in a general index of all the books.

In the case of Speer v. Evans, 11 Wright 141, there had been a total omission to index the mortgage according to the requirement of the Act of 1827. That case is entirely distinguishable from this, and renders it unnecessary that we should either affirm or deny the opinion expressed by Chief Justice Woodward as to the omission to index the deed at all.

Judgment affirmed.