Appleby v. State

The opinion of the court was delivered by Depue, J.

The bill of exceptions and assignment of errors, *164 taken in connection with the pleadings and facts agreed upon, present two questions only.

First. Whether the sureties on the clerk’s official bond are liable to the prosecutors for any injury they may have sustained from his wrongful entry of the cancellation of the mortgage. The condition of the bond is an undertaking that the clerk “ shall, in all things touching and concerning his said office, well and truly, faithfully and impartially, execute and perform the same, as well with respect to all persons concerned as to the State of New Jersey.” By the law of this state, the clerk is the keeper of the registry of mortgages. The seventeenth section of the act concerning mortgages provides that the clerk of the Court of Common Pleas shall provide fit books for the registering of all mortgages of lands in his county, to which books the statute declares that “ every person shall have access at proper seasons, and may search the same, paying the fees allowed by law.” Rev., p. 705; Lum v. McCarty, 10 Vroom 287 , 289. In these books, on a margin to be left for that purpose, the clerk is required, on the production to him of a proper voucher of redemption, payment or satisfaction of any registered mortgage, to enter a minute of the redemption, payment or satisfaction thereof, which minute is made an absolute bar to and discharge of the mortgage. Rev., p. , § 23. The entry of satisfaction of a mortgage, as well as the registration of it, is part of the official duties of the clerk, and the sureties on the bond of a clerk, conditioned as this bond is, for the faithful performance of the dunes of his office, are liable for misfeasance as well as nonfeasance in his official duties. Brandt on Suretyship, § 453.

The plaintiff in error contends that the liability of the clerk for a wrongful entry of this kind will arise only in favor of persons who have some sort of a contract with the clerk to search or to make a certificate of title. The theory on which this proposition rests is that the duty of the clerk in the premises arises only from contract. If this theory be sound, a person injured as the prosecutors were would be wholly remediless if the clerk by whom the wrongful entry was made was *165 out of office at the time the search or certificate of title was required. Kahl v. Love, 8 Vroom 5 ; Savings Bank v. Ward, 100 U. S. 195 ; Commonwealth v. Kellogg, 6 Phil. Rep. 90 , and Houseman v. Girard Association, 81 Penna. 256, were cited to support this view of the case. In Kahl v. Love the action failed because the' officer was neither authorized nor required to perform the duty on which the action was grounded. In Savings Bank v. Ward the duty arose solely from a contract, and the person suing was no party to the contract. A duty the breach of which is an actionable wrong, may arise from a contract, or be imposed by positive law, independent of contract. In the first case the party to the contract only can sue. Alton v. Mid. R. Co., 19 C. B. (N. S.) 213; in the other ease any person injure^ may sue if he be one of the class of persons for whose benefit the duty is imposed. Cattell v. L. & N. W. R. Co., 16 C. B. 984. In Com. v. Kellogg , at Nisi Prius, it was held that the liability of a clerk on a certificate of title was only to the party ordering and paying for the search, and not to his assigns or alienee. But in Houseman v. Girard Ass’n, in the Supreme Court of Pennsylvania, the clerk was held liable in damages for omitting from his certificate of search an unsatisfied mortgage appearing on the records, where the certificate was obtained at the request of the plaintiff, who proposed to make a loan on the premises, but was ordered of the clerk and paid for by the owner, who effected the loan.

It is . possible that where the gravamen of the complaint is that a certificate of search obtained from the clerk is in itself incorrect, the liability of the clerk for omissions or untrue statements in the certificate may arise from his employment to make the search, and will extend only in favor of the person with whom he was in privity by his contract. But in the case before us the duty in question is entirely independent of a contract. It - results from the official position of the clerk, and the character of the public duties he is required to perform.

Under the law of this state the duties of the clerk with respect to the registration and cancellation of mortgages are *166 imposed by statute. These duties relate to entries in public records. These records are kept for the information of the public. Every person has a right of access to these records for the information they contain. The statute declares that the registry of a mortgage shall be notice of the mortgage. It also declares that the minute of the redemption, payment and discharge of a mortgage, made by the clerk, shall be a full and absolute bar to and discharge of the registry and the mortgage. It protects a mortgagee from the unauthorized destruction of his security by making it a condition precedent to the right of the clerk to enter satisfaction, that the mortgage canceled, or with a receipt thereon, signed by the mortgagee or his executors, administrators or assigns, shall be produced to the clerk as his warrant for entering the satisfaction of record. For the protection, also, of persons having occasion to examine the records to ascertain the condition of the title, it is made the duty of the clerk to enter satisfaction only on that evidence which is the most satisfactory proof that the mortgage in fact, is satisfied. Persons examining the records, and finding a cancellation of a mortgage entered of record by the clerk, have a right to assume that the cancellation was lawfully made, and may rely upon and act upon the information obtained from the inspection of the record. The duty of the clerk with respect to such entries in the records of his office being a public duty, if there has been a breach of it, he will be liable to any one who may have suffered damages from his neglect or default — the action being founded, not on contract, but on the breach of duty. Add. on Torts 14, 15; Whart. on Neg., §§ 285, 443. And this liability will extend also to the sureties on his official bond, whose undertaking is for his faithful performance of the duties of his office.

Second. It is insisted^ that there was error in the amount of damages awarded. The damages consisted of the sum paid by the prosecutors to satisfy the decree of foreclosure of the mortgage and interest. It is admitted by the statement of facts in the bill of exceptions that the prosecutors purchased the mortgaged premises at the sheriff’s sale, at their full *167 value. The amount they subsequently paid to relieve the property from the mortgage, represents the actual loss they, sustained in buying and paying for property which in fact was subject to the mortgage, but which they were induced to * buy at the price bid, by the belief that the mortgage was satisfied. These damages were a natural and proximate consequence of the wrongful act complained of, and were such as might reasonably be supposed to be a probable consequence thereof. Cuff v. N. & N. Y. R. R. Co., 6 Vroom 18 ; Crater v. Binninger, 4 Id. 513; Wolcott v. Mount, 7 Id. 262; D.,L. & W. Co. v. Salmon, 10 Id. 300, 308. Substantial damages equivalent to the actual loss were awarded on an analogous principle in Houseman v. Girard Ass’ n, supra.

There being no error apparent on the record, the judgment should be affirmed.

For affirmance — The Chancellor, Chiee Justice, Depue, Dixon, Magie, Parker, Reed, Yan Syckel, Clement, Cole, Green, Kirk, Paterson, Whitaker. 14.

For reversal — None.