Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-02-23


TO CLAIM THAT IT WAS A LIEN
PRIOR TO THE LATER DATE.
The appellant loaned Brown 81 600.
ana he gave Il deed of trust on a lot of
iand To secure the loan. This deed hav
ing been properly executed and de-
liNered to appellants attorney the lat
Ter gave it To the clerk of the court
ior rccordation and paid the recordins
TAX ana fees. and the clerk endorsed
on II, "A. H.. March 13. 1891" ON the
s'tiilc day the attorney wrote the an
PcfIdHt that thc decd was admitted ia
record and that as soon as IL was
COPIED on the record he would forward
H. subsequently, he told the clerk not
/" record the deed until he told him 10
10 So ana on June %. 1891, he ordered
~ recorded. The deputy clerk then ran
March 10, 1891" ana wrote obovn ,i,on,
June ~ 1891" ana the deed wos iran
scrIpeu IN inc proper deed book. Brown
III the meantime had made anothcr Ionn
on the same lot for 81 500. tho rerord
showing no lien thereon. ana the dead
securing 1t was admitted To record June
~ ISL The notes secured by the
lu ueed were assigned to the APP
ptheeS. the lower court decrced i'm "a
v,or of the holders of said notes ana
me bank appealed.
nc court says Which of the deeds
.,"S priority Is the first question Ia hn
,uecided; The deed securing the bank
iu.rs Guy executed ana properly nc-
M WTieoGed Tor record. it was the duty
VI w clerk, upon its delivery to hin,
on March Is, 1891. with the amount IF
nc TAX ana recording fee to admit il tc,
record This he did. Its admission In
t,ecoru was an official act performed by
nm and having been performed il
Nus NOT within his power to undo II.
a az Jouiu no more recall his official act
s.uih'''ihE 1t to record than he couId
nave eNpunSed its recordation from thn
uceu book II 1t had been actually iran
SCrlped. The bank was entitled IN lie
tI"h against purchasers and creditors
from me time of the admission of the
uScu l" record. and the subsequent act
81 IN" clerk in attempting to change
the time of its admission 10 record .,
me request OF the attorney. was inef
i.rtuil and could not affect the lion
, 49,, ana there acquired by the bank.
ne Hen OF its deed of trust. therefore
LOOK elect from March -. 1891. while
mat OF lucretia j. Harnbercer only
commenced on June 10 1SeI ~, hoim ,a
.nc udte oi the admission of her deed Of
u uSi 10 record. Iut whether tho b,n,,
- against The appclees who are as
s!Ehees OF the Harnbcrger debt con
I."!ii, me benefit of its lien as of March
49, 1871 IS another question. and is To
soiEeu by me application of other
pi'HcIpIef. The asSignces contend thot
the appellant hank having allowed ,ba
rurLc record. showing that lis deed was
'"t recorded until The 23d OF Junc- 1891
80 remain 50 without taking any sinns
~ nave IL corrected. is estopped TO
h., .i,, o'h1fNlSe' as against them. they
having relied upon the recorded tiila
ga a oh.
81 trust securing the bank was win
4raWh by its attorney on the I'm of
reDrnary. 1892. ana sent by him to the
pank' ! ne bank therefore had It's deed
vi trust IN lis possession nearly cigh-
Ieeh months prior to the assignment of
ny i,"' nperSer lien to the appellees
ne deed had upon ii the following Of
neal ii,,,. endorsement of the clerk
ne ioreSoing deed of trust was re-
celVcd IN the clerks Office of Page Coun-
~ Court June 80 1891 and admitted tn
record Test, y. Brooddus. c. c." Ii
opus appears that the bank, from the
tine OF the receipt of its deed of trust
had in its possession the pIain means
OF knowing when its deed OF trus. pur
ported To have been admitted to record
IL showed that II did not purpovt to
nave been admitted to record ON the
i"th OF March. 1891. as the bank had
been Informed by its attorney. 1t is
- w 'i'"t the pItSluent or the bank
denies actual notice of this fact until
about the time of the institution of his
suit. but having in his possession the
deed itself with the official certificate of
the clerk endorsed thereon. as to the
time 1t was admitted to record kno,vl
edge thereof will be imputed TO the
bank. Ii was the duty of the bank If
II would claim the benefit of the trua
date of the admission of its deed TO
record, within a reasonable time after
the receipt of its deed showing tho
state of the record. to take the proper
steps To have it corrected in accordanca
with the actual fact. The failure IA do
so was gross negligence. by its negli-
gent conduct the bank thereby repre-
scented to the world that the admission
or its deed to record as IL appeared nm
on the public record of titles was true
II is now estopped from asserting the
contrary. Where one OF two innocent
persons must suffer Il loss. ii must he
borne by that one of them who by his
conduct-acts romissions-has render
ed the injury possible. The neglect OF the
bank TO perform its duty to the public
and have the record of the admission
of its deed 10 record corrected could but
have the effect Ia mislead purchasers