Gilchrist v. Gough et al.

than three years, shall be recorded in the recorder's office of the county where such land shall be situated; and every conveyance or lease, not so recorded in forty-five days from the execution thereof, shall be fraudulent and void as against any subsequent purchaser, lessee or mortgagee in good faith and for a valuable consideration. 1 R. S. 1876, p. 365. The mortgage to the appellant, described in his complaint, was not recorded in the recorder's office of Henry county, until long after the expiration of the time, then ninety days, within which the statute required that it should be recorded. It has been repeatedly decided by this court, however, that the record of a conveyance, not recorded within the period of time limited by the statute, but after the expiration of that time, would constitute notice to all purchasers after the conveyance had been placed upon record. Meni v. Rathbone, 21 Ind. 454; Runyan v. McClellan, 24 Ind. 165; Trisler v. Trisler, 38 Ind. 282; Brannon v. May, 42 Ind. 92.

It will be seen from our statement of the facts of this case, that the appellant's mortgage was recorded in the proper recorder's office, more than two years before either of the two mortgages held by the appellee Hoffman had been executed. It is not questioned, therefore, that the record of the appellant's mortgage constituted notice to the appellee Hoffman, at the time he took his said two mortgages on the same real estate covered by the appellant's mortgage. Such record of said mortgage, however, was only notice, whether actual or constructive, of the existence and record of the mortgage and of the contents of such record. This proposition is so manifestly true and correct, that the appellant's counsel, as we understand them, do not call it in question. It is claimed, however, as will be seen from the second question, above set out, of the appellant's attorneys, that, where a mortgage has been properly filed for record in the recorder's office, and properly entered in

Gilchrist v. Gough et al.

the "entry book" of said office, but has been afterward, by mistake, erroneously recorded, without any fault of the mortgagee, such mortgage would take priority over a subsequent bona fide mortgage upon a valuable consideration, without notice.

It seems to us that the second question, as stated by counsel, does not accurately present the precise point intended to be presented thereby. The position of the appellant's attorneys on the point under consideration, if we correctly understand them, is this: Where a mortgage has been properly filed for record, and properly entered in the "entry book of the proper recorder's office, and afterward, by mistake and without any fault of the mortgagee, has been erroneously recorded, every subsequent bona fide purchaser or mortgagee, for a valuable consideration, is affected by law with notice of the actual contents of the mortgage itself, without regard to the contents of the record of the mortgage. In support of this position, counsel rely upon the provisions of section 29 of the act before referred to, concerning real property and the alienation thereof, which section reads as follows:

"SEC. 29. Every recorder of deeds shall keep a book, each page of which shall be divided into five columns, headed as follows, to wit:

"And the recorder shall enter in said book, all deeds and other instruments left with him to be recorded; noting in the first column the day and hour of receiving such deed or instrument, and the other particulars in the appropriate column; and every such deed or instrument shall be deemed as recorded at the time so noted." 1 R. S. 1876, p. 367.

Gilchrist v. Gough et al.

It seems to us, that this section of the statute does not sustain the position of the appellant's attorneys, as we understand their position. It is true, that, under this section, every deed or instrument left with the proper recorder for record, "shall be deemed as recorded" at the day and hour the recorder shall enter the same in the "entry book" of such recorder's office. The record made in this "entry book," under the law, is notice only of those matters which the statute requires shall be entered in the different columns of said book. It is not, and was not intended to be, notice of any act, matter or thing of which the statute does not, in express terms, require an entry to be made in the appropriate column of said "entry book." The entries there made of the matters specified in the statute are notice of those matters, and no others, to all parties interested. They are notice of the existence of the deed or other instrument, of the exact date of its reception for record, of the parties thereto, grantors and grantees, and of the description of the lands to be affected thereby; but the fact, that an entry must also be made of the volume and page where such deed or other instrument will be found of record, shows very clearly, we think, that it never was intended that these entries in the "entry book" should be notice of the contents of such deed or instrument.

The appellant's counsel, in support of their position, have cited the case of Kessler v. The State, ex rel., etc., 24 Ind. 313. That was a suit on the official bond of Kessler, the recorder of Tipton county, to recover damages for an alleged failure to discharge his official duty. The breach assigned was, that the recorder had wholly failed to record a certain chattel mortgage, which had been left with him for record, by means whereof the mortgagee had lost his mortgage debt. The appellee's relator had judgment below, and on appeal to this court, the record showing that the recorder had made the proper entries in relation to said mortgage, in the "en

Gilchrist v. Gough et al.

try book" of his office, the judgment was reversed. The decision was founded upon said section 29, before cited, of the act concerning real property and the alienation thereof. The section cited was not applicable to a mortgage of chattels, and the decision of the court in that case can not be sustained. The case cited is overruled.

There is a wide and marked difference, however, between a case where there has been no record made of a mortgage, other than the proper entries in relation thereto, in the "entry book" of the proper office, and the case where, as in the case at bar, the mortgage has been recorded, but, by mistake of the recorder, and without any fault of the mortgagee, it has been erroneously recorded. The former case is not presented by the record of this cause, and we need not and do not decide what would be the effect of the entries in the "entry book" of the appellant's mortgage, if no other record of said mortgage had been made in the proper recorder's office.

In the entries in the "entry book" in the recorder's office of Henry county, in relation to the appellant's mortgage, reference is made, in the appropriate column, to the volume and page where said mortgage was recorded. It was there recorded, by the recorder's mistake and without the appellant's fault, as a mortgage for five hundred dollars, instead of for five thousand dollars as in the original mortgage. There was nothing in the entries in the "entry book," in relation to said mortgage, to indicate that it had been given for any other or different sum than the sum of five hundred dollars, as expressed in the record of said mortgage.

The record of the mortgage alone affected the appellee Hoffman with notice of the mortgage, and of the contents of such record. As to Hoffman, who was, as we have seen, a mortgagee in good faith and for a valuable

Gilchrist v. Gough et al.

consideration, it seems clear to us, that the record of the appellant's mortgage was notice only to the extent of five hundred dollars, the sum expressed in such record, and interest thereon. In support of this conclusion, and for the benefit of those who may wish to examine them, we cite in this connection the following authorities, for which we are indebted to the industry of the learned attorneys of the appellee Hoffman: Frost v. Beekman, 1 Johns. Ch. 288; Beekman v. Frost, 18 Johns. 544: The New York Life Ins. Co. v. White, 17 N. Y. 469; Jennings v. Wood, 20 Ohio, 261; Brown v. Kirkman, 1 Ohio State, 116; Sawyer v. Adams, 8 Vt. 172; Sanger v. Crague, 10 Vt. 555; Luch's Appeal, 44 Pa. State, 519; Speer v. Evans, 47 Pa. State, 141; Schell v. Stein, 76 Pa. State, 398; Miller v. Bradford, 12 Iowa, 14; Barney v. McCarty, 15 Iowa, 510; Lally v. Holland, 1 Swan, 396; Shepherd v. Burkhalter, 13 Ga. 443; Chamberlain v. Bell, 7 Cal. 292; Barnard v. Campau, 29 Mich. 162; Terrell v. Andrew County, 44 Mo. 309; Brydon v. Campbell, 40 Md. 331.

3. The third question, stated by the appellant's counsel as involved in the record of this cause, was this: "Was the actual knowledge that the mortgage was indexed as one for $5,000.00, sufficient to put the subsequent mortgagee, on inquiry, and charge him with notice of the mistake in the record and of the true amount of the mortgage."

We have two statutes in this State, which provide for indexes to the records of the recorder's office in each county. In section 1 of an act authorizing recorders to make out complete or general indexes, etc., approved February 16th, 1852, it is provided, that "Such index shall be double, giving the name of each grantor and grantee alphabetically, a concise description of the premises, the date of the deed, together with the number or letter of the book, and the page in which each deed is recorded." 1 R. S. 1876, p. 757.