#### John T. Lusk et al. v. Thomas Carlin, Governor of the State of Illinois, for the use of Bernard Cabrilliac.

Appeal from Madison.

I. Recorder of deeds — duty. It is not the duty of a recorder of deeds to examine his records and give information as to the legal effect of the conveyances of record in his office; but he is bound to search the records of his office, and give information of the fact whether there are on record deeds, mortgages, or writings concerning lands, and refer the party to them, so that he may be enabled to judge, for himself, or take .counsel, as to the manner in which the title is affected, or the estate encumbered by them. The search should be diligent and the information true. If he gives incorrect information, he is guilty of a breach of duty, for which an action may be maintained upon his official bond, (a)

The opinion of the court states the facts of this case. It was heard in the Madison circuit court, at the June term, 1843, before the Hon. James Semple and a jury. The jury found a verdict against the defendants, and assessed the damages at '$353.60.

J. Gillespie and John T. Stuart, for the appellants.

Wm. Martin, for the appellee.

(a)

Case Citing Text. Mortgage is prior lieu to judgment recovered after mortgage is recorded. Warner v. Helm, 1 Gilm. 220, 231.

Soates, Justice,

delivered the opinion of the court: This is on action of debt upon a recorder’s bond, given by Lusk, as principal, and Prickett, as surety.

After trial and verdict for the plaintiff below, the de- [* 396] fendants moved in arrest of judgment; which motion the ■ court denied, and rendered judgment for the plaintiff.

These decisions are assigned for error; and it is insisted that there is no cause of action set forth in the declaration.

The condition of the bond is, that Lusk, as recorder, should well and faithfully execute the duties of said office of recorder, and deliver up the records, and other writings belonging to the office, safe and undefaeed to his successor.

The declaration avers that Elijah Yoakum, being seized in fee of lot twenty-six (26), in De Bow’s addition to Upper Alton, in said county, conveyed the same in fee, for a valuable consideration, to one Anthony Paken, which conveyance was duly recorded by said Lusk. That said Paken re-conveyed the same to said Yoa-kum, by deed of mortgage to secure the payment of $299, and that said mortgage was duly recorded by said Lusk, as such recorder, on or about the 26th day of June, 1839; and that said mortgage had not, at the time of bringing this suit, been paid or satisfied in whole or in part.

The declaration further avers, that Bernard Cabrilliac, for whose *411use this suit is brought, on or about the first of July, 1840, being about to purchase said lot from said Paken, for $300, the full value thereof, called upon said Lusk, as such recorder, and so informed him, and applied to him to ascertain, and desired to know from him, whether there was any incumbrance on said lot, made and executed by said Paken, to any other person, before he, said Cabrilliac, should make his purchase or pay his money therefor. That, thereupon, said Lusk made an examination of the records of his office, and informed said Cabrilliac that there was no incumbrance of any kind upon said lot; for which examination Cabrilliac paid him the fee allowed by law. That thereupon Cabrilliac made the purchase of Paken, believing the information to be true, and -being induced thereby to purchase the same, and pay part of the purchase money. That afterwards, and before he paid the balance of the purchase money, he again called upon Lusk, to make another like examination of said record ; that Lusk did so, and informed him again, that there was no incumbrance, for which he again paid him; and thereupon he paid Paken the residue of the purchase money. The declaration avers that said mortgage from Paken to Yoakum had been duly recorded, before either of said examinations was made, and that Cabrilliac had no notice thereof directly or indirectly, and being still ignorant of said mortgage, he expended $100 in improvements on said lot. That the mortgage has since been foreclosed by scire facias, the lot with its improvements sold to satisfy the same, and that the whole is entirely lost to him, by reason that Paken is wholly insolvent. And so it avers that said Lusk has not faithfully executed the duties of his office, by making a faithful, diligent, attentive, correct, [*397] and true examination of the said records of his office ; but . by reason, and in consequence of the unfaithful, careless, inattentive, and incorrect manner of making the same, the said Cabrilliac has been¡ damaged $500.

The acts of the legislature, respecting the recording of deeds, mortgages, etc., and the duty of the recorder, provide, that deeds, mortgages, etc., shall be recorded in the county where the land lies (Gale’s Stat. 152, § 15), that such recording shall be deemed and taken to be notice to subsequent purchasers and creditors, from the date of such recording (Gale’s Stat. 157, § 1); that they shall take effect and be in force, from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers, without notice, and all such deeds and title papers shall be adjudged void, as to all such creditors and subsequent purchasers, without notice, until the same shall be filed for record in the county where the said lands may lie (Gale’s Stat. 664, § 5); and to that end, every recorder shall, keep a fair book, in which he shall immediately make entry of *412every deed or writing brought into his office to be recorded, mentioning therein the date, the parties, and the place where the lands, tenements, etc., conveyed are situate ; dating the entry on the day such deed, etc., was brought into his office, and shall record them in regular succession, according to priority of time in bringing them in. He shall also make and keep a complete alphabetical index to each record book, showing the page on which each instrument is recorded, with the names of the parties. Gale’s Stat. 556, § 7. And the law gives him, “ for' every search of record twelve and a half cents.” Gale’s Stat. 299.

It is contended that it is not the duty of the recorder to examine, and give information, whether land is encumbered, as it would frequently involve a question as to the legal effect of the conveyances of record. In this sense of an examination he is not bound to make it; but we are of opinion that he is bound to search, and give information of the fact, whether there are deeds, mortgages, or writings concerning the land, and refer the party to them, so that he may be enabled to judge for himself, or take counsel, as to the manner in which the title is affected, or the estate encumbered by them. The search should be diligent, and his information true, as for it he is entitled to compensation. And to this end, he is required to keep, not only a book of entries of the delivery of deeds into his office, but also to record them, according to priority of such delivery, and keep an alphabetical index. There is much reason for great strictness in the discharge of this duty, as well as diligence of search and true information. For the law deems the recording notice, and from the de- [* 398] livery the instrument takes effect as to purchasers and creditors. If the book of entries, and alphabetical index are correctly kept, the recorder, who is familiar with them, can make search with greatfacility and accuracy. To one unacquainted, and where the records are numerous, there would be great liability to mistakes, and particularly so, if unaided by the recorder; the whole scope and spirit of these provisions seem- to me to point out this service as an official duty of the recorder; and I think the fees, perquisites, and emoluments of his office a good, valuable, and continuing consideration to charge the surety in the bond, within the principle laid down in the case of The United States v. Linn et al. 15 Peters 311.

The judgment of the court below is affirmed with costs.

Thomas, Justice,

delivered the following dissenting opinion: I dissent from .the opinion just pronounced in this case.

The declaration in my opinion exhibits sufficient grounds for maintaining an action on the case against Lusk individually, for the negligent and unskillful manner in which he performed the task which Cabrilliac employed and paid him for executing, but *413I am very clear that it shows no breach of the condition of his official bond.

The bond is conditioned for the true and faithful execution of the duties of his office; and for untruly or unskillfully performing such duties or any of them, his surety is liable, but for nothing else. These duties are specifically, prescribed by law, and the apt, for the unskillful and negligent performance of which this action was instituted; is not embraced among them; it is not therefore one of these duties.

The ground, however, is assumed that inasmuch as the recorder is allowed by law fees for his search of record, and for his official certificate, the duty is therefore imposed on him by law, of performing these acts on application, and that, by reason of his refusing to do so, or doing so in an unskillful or negligent manner, the condition of his bond is broken. This doctrine is, in my judgment, incorrect. It subjects the surety to liabilities never contemplated by him, and by implication greatly increases his responsibility.

‘ By a parity of reasoning, the scope of official duty and of responsibility, on official bonds, might be indefinitely enlarged. It would invest probate justices of the-peace with equity powers, as fees were allowed to judges of probate for granting ne exeats and injunctions, and the same fees formerly allowed them are now given by law to probate justices; and yet no law confers such power on that officer. It would subject justices of the peace and their sureties, to actions on their official bonds for refusing to perform a marriage ceremony, and to grant a certificate thereof, because for such acts, fees are allowed by law. And by such a construction of the laws allowing justices of the [* 399] peace, clerks, etc., fees for taking acknowledgments of deeds, those officers, for refusing in any case to perform such act on application, would be liable as well to indictment for palpable omission of duty, as to action on their bonds.

In this view of the subject, I think that the law allowing a recorder fees for performing the act under consideration, maybe properly construed to confer on that officer the privilege of doing that act, but not impose it on him as an official duty.

When the law allowing recorders their fees was passed, those officers were required by law to procure at their own proper expense the books to be used in their offices for the purpose of recording deeds, etc., and they then were, and still are required by law to perform much labor in so preparing those books as to enable any person desiring to do so, easily to ascertain by examination, what entries in reference to particular real estates had been made therein. For such expenditure of time and money, no compensation was expressly allowed by law ; but in lieu thereof, it was deemed reasonable to permit the recorder to charge a specific *414fee for the privilege of searching the books thus purchased and prepared by him, by any person desiring to do so. All that a recorder is required to do in the premises therefore, is to furnish facilities for an examination of the books in his office. Every one is bound to take notice of the entries on these books, at his peril; the recorder is not required by law to examine and "certify as to those entries; and a prudent man would not rely on any such certificate.

A search of the record implies not only an inquiry into the fact whether any instrument, purporting to be a deed, mortgage, or other conveyance of land, is on the record, but also as to the legal effect of such instrument, if recorded. By reason of the unskillful performance of such duties, in some cases, a loss of many thousand dollars might result. It is to be supposed either that indemnity for such losses was intended to be secured by the penalty of $500 in the recorder’s official bonds, or that the sureties in such bonds, in the execution thereof, undertook to guaranty the competency of their principal, skillfully to perform the responsible duty of examining the books in their office, and determining the legal effect of all instruments therein recorded ? I think not.

My opinion is that the judgment of the court below should be reversed.

Lockwood, Browne and Treat, Justices, also dissented.

Judgment affirmed.