CORRESPONDENCE.

JUDICIAL VERBOSITY.

Editor of the Central Law Journal:

While you are discussing the prolixity of opinions of the judges, allow me to point out the necessity of reform in one particular. The opinions of many judges are the reprint of the abstract filed by counsel. They recite the filing of the complaint in so many paragraphs; motions to strike out; demurrers; answers in so many paragraphs; motions again; demurrers; replies and demurrers! They then show a judgment, set out all the causes for a new trial, and the action of the court. Then we have the assignment of errors, and then the points made in the brief of counsel. Finally, we have a few lines of original matter determining, perhaps, but one point on which the case is decided.

How easy it would be to avoid all this verbiage, and save the profession the expense of one-half the reports by simply stating: The question in this case was whether a county is subject to garnishment; whether appeal lies under certain circumstances; whether the plea of the statutes of limitations is good on the facts stated, etc. The professional reader-and there are no unprofessional readers-does not care a straw about the history of the pleadings, except so far as it affects the point decided. Why shall we be bound to wade through this dreary recapitulation in order to arrive at a decision that such a suit will not lie without a demand, that on the facts equity will not enjoin, that a certain instruction is erroneous? The fact is, the judges work out their opinions laboriously in detail without grasping the case as an entirety. When they begin preparing their opinions, they have not formed their own opinion. They give us the memorandum they make in their labor, instead of the result of the labor coudensed into a judicial decision. Then, possibly, they have not the time to re-write, and so we get the undigested mass. Each judge should have a stenographer, who would save him the manual labor of writing. It would be immense economy to allow them to alter, prune and condense. Their labors are enormous, and in reading their opinions we are often driven to the charitable conclusion that they had not time to make them shorter.

ness,

NOTES.

*

-Just at the close of the late unpleasantwhen princely fortunes had been swept away, two distinguished lawyers in Alabama formed a partnership. One was an ex-judge, the other had been a member of the United States and Confederate Congresses, and neither of whose disabilities had then been removed. In discussing their changed financial status, and the probability

of building up a practice, and of obtaining pardons, one of them remarked: "Well, John, it seems now as if we would land either in the poor house or the penitentiary." A few days afterwards the new firm received for collection a claim for $4,000. After much difficulty a compromise was effected, by which one-half of the original amount was collected. A fee of $1,000 was retained, and as one of the partners was dividing this, the first fruits of their labor, with the other, he said: "Jim, this don't seem much like we are on our way to the poor-house, does it?" "No," replied Jim, "but d-d if it don't look like we had started to the other place.”—Southern Law Journal and Reporter.

-Judge Wylie, who is conducting the Star Route trial, has a high sense of the dignity of the court, and will brook no breach of decorum. But his strict discipline was forced to yield a little the other day—one of those blistering hot days that parboiled all Washington in its own perspiration. A sturdy Omaha granger appeared in the box as a witness, in his shirt sleeves. Bending his brows into a severe judicial frown, Judge Wylie demanded: "Sir, do you think that the weather is uncommonly warm?" "Ya-as, sir," responded the prince of the prairie, perfectly unabashed, "it's purty warm;" and the judge relapsed into indignant and disgusted silence.

-The Liquor Law of Russia is very comprehensive and easily understood. There is no “local option" about it, but the Czar decrees that there shall be no more than one drink shop in any Russian village, and where two or three villages are near together, the one drink shop shall suffice for all, and this shall be managed by a "man born and resident in the village," who shall be appointed by the common council and paid by salHe is to derive no pecuniary profit beyond his salary, is to sell also food and wares, and is liable to a fine, dismissal and even imprisonment if he allows any man or woman to get drunk on his premises. In a given contingency, if the population should become notoriously drunken and disorderly, the communal authorities are to interdict the sale of liquor entirely in that district or village, for as long a time as they shall see fit.

ary.

The Massachusetts House has passed a bill providing for the submission to the people next Fall of the restoration of the old prohibitory liquor law, and the Senate has passed a proposed constitutional amendment for biennial elections. The Connecticut House of Representatives adopted a constitutional amendment prohibiting the manufacture and sale of intoxicating liquors in that State. The measure now goes over to the next General Assembly, where it must pass both Houses by a two-thirds majority before being submitted to the people.-Public Opinion.

A judge has recently decided that a man's residence is where he gets his washing done. This is rough on the average bachelor,-New Or leans Picayune,

ST. LOUIS, AUGUST 18, 1882.

CURRENT TOPICS.

The American Bar Association, in its meeting last week, devoted some time to the discussion of the relative merits of the majority and minority reports respectively, of the special committee of the association, appointed to consider the remedies proposed for the delay incident to the determination of causes in the Federal Supreme Court. We have heretofore rehearsed the most salient points of the two reports (14 Cent. L. J. 381), and have stated our reasons for believing that that of the majority, embodying substantially the same plan as that contained in the measure known as Ex-justice Davis' bill, was best adapted to accomplish the result desired. After an active discussion, in which Mr. Hitchcock, of St. Louis, Mr. Bonney, of Chicago, and Mr. Preston, of Kentucky, were conspicuous advocates of the majority report, and Mr. Evarts, of New York, of that of the minority, a ballot was taken, which resulted in the favor of the majority plan by a vote of 37 to 29. This result indicates a very substantial difference of opinion in the body of the Association, which is to be regretted, inasmuch as it necessarily weakens the influence of the body in the practical work of securing from Congress the appropriate and necessary legislation. It is to be hoped that the advocates of the opposing plans may, in the course of the ensuing season, arrive at something approaching an understanding, and by that means be able to bring to bear upon the national legislature the united influence of the Association in securing the realization of a single definite plan. At the same time, it seems to us that the first concessions, at any rate, should come from those who are not only in the minority in the Association, but also appeared to be so, in the last session, in Congress.

Among other interesting matters considered by the Association was the report of the Committee on Jurisprudence and Law Reforms, in pursuance of resolutions referred Vol. 15-No. 7.

proposed the following:

Resolved, That this association recommends the passage by the legislatures of the several States and Territories of the act relating to acknowledgments of instruments affecting real estate in the form reported by the committee, and that under the direction of said committee the several local councils be, and they are hereby, requested to further by all proper means the passage of such act by their State legislatures.

Resolved, That in view of the frequent occurrence of cases of irregular and fraudulent practices in the conduct of suits for divorce, involving abuse of the process of the courts, breach of professional obligations and connivance at actual crime, the local councils of the association and the several State and local bar associations be respectfully requested, as far as possible, to expose such irregularities and frauds, and to secure the punishment of all parties concerned in them.

Resolved. That in view of the growing evil of hasty and ill-considered legislation, and of defective phraseology in the statute law, the association recommends the adoption by the several States of a permanent system by which the important duty of revising and maturing the acts introduced in the legislatures shall be intrusted to competent officers, either by the creation of special commissions or committees of revision,or by devolving the duty upon the Attorney-General of the State.

A convention of nisi prius judges is in prospect in this State. We believe that this prospect in this State. is something new, even in this land of conventions, where our first step towards the remedy of any given evils, is to assemble a large number of the persons, most interested and best informed on the subject, to talk about it, collectively. The convention in question will meet in response to the following circular from Hon. John L. Thomas, the judge of the twenty-sixth judicial circuit:

I and some of my brothers upon the bench have expressed a desire to meet all the nisi prius judges of the State. I suggest the consultation room of the judges in the court-house at St. Louis, and August 29, at 10 o'clock A. M., as the time and place when and where we can convene. The objects we have in view are: 1. To form each other's acquaintance.

2. To consult in reference to rules of practice and the various methods of transacting public business. 3. To consider such questions as are appropriate for us to consider under section 1066, Rev. Stat. 1879. 4. To determine whether it be advisable or expedient to organize permanently and meet at stated times in the future.

We confidently believe that much good may be accomplished by such a conference, that "legal reform" may be promoted and our judicial system elevated and improved. You are earnestly requested to attend, and we hope that you will take the same view of this matter as others take, and honor us with your counsel and advice. If it should be so you could not attend in person, we would be pleased to have you furnish the conference such written suggestions as you choose to

make touching the above topics or topics of a kindred nature. Please notify me whether you will be with us or not. JOHN L. THOMAS.

We hope that the meeting will be well attended. There is much good that can be accomplished by the interchange of ideas incident to such an occasion. We believe, too, that most of the judges would find in it an occasion of pleasant relaxation, of a kind much needed in the monotonous routine of their duties.

RECORD OF DEEDS, WHEN NOTICE, AND OF WHAT.

At common law no record was required of a deed; title was passed by the livery of seisin. By the statute of uses, deeds made under it were required to be enrolled. This enrollment is something distinct from the system of recording deeds universally adopted

in the United States.1 Enrollment is necessary to deeds under the English statute, but, as between parties, deeds of bargain and sales in the United States are generally good, although not recorded.2

Recording is, then, only necessary to give notice to third parties of the conveyance, and to preserve proof of it. As to notice to third persons, if actual notice exist, no record need be proved, but the deed is good as to such subsequent purchasers with notice.

What is actual notice is sometimes a matter of doubt. Whilst, in some States, the actual notice must be such as will prevent the grantee in a subsequent recorded deed from taking precedence of the grantee in a prior unrecorded one, on the ground that it would be fraud on the part of such grantee to purchase, attach or levy on the land to the prejudice of the first purchaser, generally whatever is sufficient to direct a prudent man's attention to the prior rights and equities of others, and enable him to ascertain them upon inquiry, will be sufficient to charge him with notice of such facts.3 But it is less to the

1 Martindale on Conveyancing, sec. 269.

2.In North Carolina, no conveyance shall be good unless the same shall be registered in the county where the land shall lie within two years after the date of said deed." Laws 1876-7, chap: 23, sec. 1.

3 Martindale on Conveyancing, sec. 281, and notes.

consideration of what is actual notice, than of what is the constructive notice arising from the record, and to what such notice extends, and whom it affects, and how it begins, and when, that the inquiry of this article is directed. And generally the notice is only of such things as appear properly by the record, so that if a deed be improperly recorded,it is not notice. And it is notice only of such things as appear by the record, and no others. Such is the ruling of Chancellor Kent in Frost v. Beckman.5 He held that the registry is notice of itself, and no more, and that the purchaser is not to be charged with notice of the contents of the mortgage any further than they may be contained in the registry. The purchaser is not bound to attend to the correctness of the register. It is the business of the mortgagee; and, if a mistake occurs to his prejudice, the consequences of it lie between him and the clerk, and not between him and the bona fide purchaser. "The registry is intended as the correct and sufficient

source of information; and it would be a doctrine productive of immense mischief to oblige the purchaser to look at his peril to the contents of every mortgage, and be bound by them, when different from the contents as declared in the registry. The registry might prove only a snare to the purchaser, and no person could be safe in his purchase without hunting out and inspecting the original mortgage, a task of great toil and difficulty. I am satisfied that this was not the intention, as it certainly is not the sound policy of the statute." This ruling has been generally followed.6 In Terrell v. Andrew County, the court say, "it is contended here on behalf of the county that, according to our statute, when a person files with the recorder an instrument, it imparts notice of its real con

4 Hainey v. Alberry, 73 Mo. 427, and cases cited; Dail v. Moore, 51 Mo. 589; Black v. Gregg, 58 Mo. 565; Stevens v. Hampton, 46 Mo. 404; Ryan v. Carr, 46 Mo. 483; Bishop v. Schneider, 46 Mo. 472; Martindale on Conveyancing, sec. 271, and notes and cases cited.

51 John. Ch., 288.

6 Sanger v. Craigne, 10 Vt. 555; Jennings v. Wood, 20 Ohio, 261; Shepherd v. Burkhalter, 13 Ga. 443; Terrell v. Andrew Co., 44 Mo. 309; Chamberlain v. Bell, 7 Cal. 292; Milller v. Bradford, 12 Iowa, 14; Baldwin v. Marshall, 2 Humph. 116; Brydon v. Campbell, 40 Md. 331; Breed v. Conley, 14 Iowa, 269; Gwynn v. Turner, 18 Iowa, 1; Gilchrist v. Gough, 63 Ind. 576, Chamberlain v. Bell, 7 Cal. 292; Barnard v. Campan, 29 Mich. 162; Digman v. McCollum, 47 Mo. 372. 7 Supra.

tents to all subsequent purchasers, regardless of any mistake that the recorder may commit in placing it on record." "According to the literal interpretation of the section, no notice is imparted till the instrument is actually placed on record, and then it relates back to the time of filing. It was, no doubt, the intention of the legislature to give a person filing an instrument or conveyance all the benefit of his diligence, and when he deposits the same with the recorder and has it placed on file, he has done all that he can do, and has complied with the requirements of the law. From that time it will give full notice to all subsequent purchasers and encumbrancers. A person in the examination of titles, first searches the records; and, if he finds nothing there, he looks to see if any instruments are filed and not recorded. If nothing is found, and he has no actual notice, so far as he is concerned the land is unencumbered. If he finds a conveyance, he goes no further; he never institutes an inquiry to find whether the deed is correctly recorded, or the contents literally transcribed. Indeed, to attempt to prosecute such a search would be idle and nugatory.

Hard and uncertain would be the fate of subsequent purchasers, if they could not rely upon the records, but must be made under the necessity, before they act, of tracing up the original deed to see that it is properly recorded. The statute says that when the deed is certified and recorded, it shall impart notice of the contents from the time of filing. Certainly, but this is to be understood in the sense that the deed is rightly recorded, and the contents correctly spread upon the record. It never was intended to impose upon the purchaser the burden of entering into a long and laborious search to find out whether the recorder had faithfully performed his duty."

This was a case where a mortgage for $400 was recorded as one for $200 only. It has been, however, held contra, that a party performs his duty by leaving his deed for record with the proper officer, and the mistake or faults of the officer do not affect his right.8 In this case there was a strong suspicion that the record had been tampered with, and it was held that the certificate of the recorder was proof that the deed had been recorded. So in Alabama under a statute making a con8 Merrick v. Wallace, 19 Ill. 486.

veyance operative as a record from the time it was left for registration, held that a mortgage was a valid lien for the whole amount, though incorrectly recorded for a smaller sum.9

It is held that the record of a deed is notice, whether indexed or not.10 In Sawyer v. Adams, the town clerk copied a deed delivered to him for record on a book which had ceased to be a book for recording for a number of years, and for the purpose of concealment and fraud, did not insert the names in the index. Held, the deed was not recorded. In Bishop v. Schneider, a distinction is drawn between this case and one where the deed was regularly spread upon the record, but simply not indexed; the court quoting from Curtis v. Lyman, 11 where it was held that the index was no part of the record, continues that "the proper office of the index is what its name imports-to point to the record-but that it forms and constitutes no part of the record. The statute states, without reserve or qualification, that when an instrument is filed with the recorder and transcribed on the record, it shall be considered as recorded from the time it was delivered. From that time forth it is constructive notice of what was actually copied. A subsequent section for the purpose of facilitating research, besides recording, devolves a separate, distinct and independent duty upon the recorder, and in the event of non-compliance with that duty, the party injured has his redress. The purchaser or grantee, when he has delivered his deed, and seen that it was correctly copied, has done all that the law requires of him for his protection; and if any other person is injured by the fault of the recorder in not making the proper index, he must pursue his remedy against that officer for the injury.”

But, though the index is generally not considered part of the record, the entry-books required to be kept, on which the names of grantors (or mortgagors), grantees (or mort

9 Mims v. Mims. 35 Ala. 23. See, also, Dubose v. Young, 10 Ala. 365; Bank of Kentucky v. Hagan, 1 A. K. Marsh, 306.

10 Bishop v. Schneider, 46 Mo. 472; Chatham v. Bradford, 50 Ga. 327; Musgrove v. Bouser, 5 Oreg. 313; Board, etc. v. Babcock, Id. 472; Curtis v. Lyman, 24 Vt. 338. But see Speer v. Evans, 47 Pa. St. 144; Barney v. McCarty, 15 Iowa, 522; Whalley v. Small, 25 Iowa, 188; Sawyer v. Adams, 8 Vt. 172.

u 24 Vt. 338.

gagees), date of reception, description of land, etc., are entered, under statutes providing that an instrument shall be considered as recorded at the time so noted, are so considered, and the purchaser takes with notice of such things as are properly placed on said entry books.12 In this case the name of the mortgagee was omitted from the record, but appeared on the entry-book. Held, "that this error did not defeat it as to subsequent purchasers, as the two books together supplied all necessary information." It is said in effect by the court, that the mortgage was recorded when noted in the entry-book, that some time must elapse between the entry and the actual copying of the instrument upon the record-book, and during such time the entry-book will constitute the record, not complete in itself, as not containing a particular description of the land, but directing the inquirer to the deed on file, the two together giving full information. They ask, when did it cease to be recorded? "Was it when a more complete record was attempted?" "No doubt the entry in the entry book loses its importance when the instrument entered is properly recorded, because from that time the completed record gives the fullest information, and it will be that to which the index will refer persons who are searching the records.

But it will remain a record nevertheless, and it may have its importance in some cases. Every man who finds a mortgage recorded, is notified by the date of the record, that there is a record of certain particulars respecting the mortgage in the entry-book, which he can at once refer to; and if any of those particulars chance to be omitted in the record-book of mortgages, he understands where he can obtain information concerning them." The case is contrasted with that of Jennings v. Wood, 13 in which the name of the grantor was omitted in the record, for the opinion continues, "for means of tracing the conveyances are lost when you do not find in the index as grantor or mortgagor, the name of the party in whom the title appears to stand." The case of Jennings v. Wood was one in which a deed was recorded as that of Samuel Granger, when it should have been Lemuel. Held, no notice to purchasers as

12 Sinclair v. Slawson, 11 C. L. J., 68.

13 20 Ohio, 261.

14

deed of Lemuel Granger. This case is not nconsistent with that of Gilchrist v. Gough,1 where, under a statute of the same character with the Michigan statute, the record of a mortgage for $5,000 was erroneously made as for $500, but the entry-book correctly stated it as being one for $5,000. It was held that the entry-book was notice only of such things as the statute in express terms required to be noted in it. Such entries were notice of the existence of the deed, its exact date of reception, 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 could be found of record, showed very clearly, the court thought, that it never was intended that the entry in the "entry-book" should be notice of the contents of such deed or instrument. They held, moreover, that actual knowledge of the mortgage being indexed as one for $5,000, did not put a person on inquiry. So it may not conflict with Terrell v. Andrew County, for in that case a mortgage for $400 was recorded as one for $200; and further, the Missouri statute differs from that of Michigan and Indiana, the latter saying that such instrument shall be deemed as recorded at the time so noted;" while the Missouri statute provides, Every such instrument in writing, certified and recorded in the manner hereinbefore prescribed, shall, from the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof," etc. The court, in Terrell v. Andrew County, saying that under it, it was the record that imparted notice which related back to the time of filing.

As to defects in deeds or their acknowledgment, in Missouri the court held in McClurg v. Phillips, 15 that an unsealed mortgage was properly recorded as an equitable mortgage.16 So as to official seals, the record need not show any copy of the seal or scroll as indicating the officer's seal, the statement in the certificate raising the presumption that the seal was attached. 17 On the other hand, "a notary's certificate is not rendered invalid by

14 63 Ind. 576.

15 57 Mo. 211.

16 See, too, Parkinson v. Caplinger, 65 Mo. 290. 17 Geary v. Kansas City, 61 Mo. 378; Grithin v. Shefaeld, 38 Miss. 359.