Bishop v. Schneider. liability for a neglect or refusal to obey that duty, but they do not make what has previously been done void. In the case of Terrell et al. v. Andrew County, 44 Mo. 309, the mortgage was given for four hundred dollars, and the recorder, in recording the same, by mistake inserted two hundred dollars in the record instead of four hundred dollars, showing an incumbrance for the former instead of for the latter sum; and it was decided that notice of the contents of instruments was imparted after filing only where they were correctly spread upon the record, and not otherwise. And in conformity with that view the subsequent purchaser had notice of a subsisting incumbrance for two hundred dollars, and no more. So, in Beckman v. Frost, 18 Johns. 544, the registry of a mortgage of $3,000 as a mortgage of $300 was considered as notice only of an incumbrance for the sum stated in the record. In such cases the purchaser may be wholly free from fault or negligence. He may deliver his deed to the proper officer, and it may be returned to him as recorded, but, through accident or design, it is not truly recorded. Subsequent purchasers or creditors, having no other means of knowing of the contents of the deed than by resorting to the records, cannot be considered as having notice of any other conveyance than such as appeared on the record. Where a 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 or alphabet, it was held that the deed was not recorded, and was no notice to after-purchasers. Sawyer v. Adams, 8 Vt. 172. In the case just mentioned, the mortgage, which was made by the clerk as grantor, was copied on the back leaf of a volume of records in which there had been no deeds recorded for upward of twelve years, and a number of new books had been used for the purpose of recording. It was a plain and palpable fraud, as the book was not at that time a book used for recording. Under a statute essentially similar to ours in all its provisions and regulations, it was held that where the mortgagee left his mortgage with the clerk for record, and the clerk recorded the same at length, and so certified upon the mortgage, but made no index of the said mortgage, that the mortgage was properly recorded within the meaning of the statute, and that the index constituted no part of Bishop v. Schneider. the record, and that the mortgage became an incumbrance upon the land from the time it was transcribed upon the record. Curtis v. Lyman, 24 Vt. 338. The result of the doctrine insisted upon by the counsel for the plaintiff in error is to superadd or provide an additional requisite to the record of conveyances; in other words, no record is to be considered of any validity till an index is duly made out and entered. But no such language is, however, found in the statute, nor do we think any intention to ingraft such additional requisite upon a deed can be fairly implied from the language used. The general nature, object and scope of the whole act, taken together, is to point out the duty of the clerk, not only in the making of a proper record of conveyances, but also in furnishing facilities for their discovery, examination and use, by all persons interested in them; and to secure the due performance of these duties the clerk is made liable to the party injured for the neglect of them. The index, which it is the duty of the clerk to make out and preserve in a book for that purpose, seems to be one of the facilities to be used in making search for the record, but not a part of the record itself. It is his duty to have an index and to enter upon it a proper reference to every record of a conveyance, and for any neglect to do so he is liable to the party aggrieved for double the amount of damages sustained. But it is not certain that any one will be injured by the neglect, and therefore the record itself should not be held void. The purchaser may take his deed, relying solely upon the representations or covenants of his grantor, without desiring to examine the records. An index or the want of it would obviously be of no importance to him. So if, without making any search, or causing any to be made, a person should rely alone upon the representations of the clerk that the title was clear, and these representations should be knowingly false, could it with reasonable propriety and fairness be said that he was injured by want of an index? Yet in these cases, if the argument advanced be correct, though no one is injured by the failure of the clerk to perform his duty as tc indexing, and though the purchaser has had his deed correctly transcribed and spread upon the record, still the recording should be held void. In my opinion, the proper office of the index is what its name imports to point to the record-but that it forms and consti VOL. II.-68 Bishop v. Schneider. tutes 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 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. Assuming, then, that the recording of the mortgage was good under the law, the next inquiry is whether it was such an instrument as would impart constructive notice by registration. It purported to convey certain lands lying in Jefferson county, and the acknowledgment was taken before a justice of the peace in Franklin county. The statute (R. C. 1855, p. 358, § 17) provides that the proof or acknowledgment of every conveyance or instrument in writing, affecting any real estate in law or equity, shall be taken by some one of the following courts or officers: first, if acknowledged or proved within this state, by some court having a seal, or some judge, justice, or clerk thereof, notary public, or some justice of the peace of the county in which the real estate conveyed or affected is situated, etc. Section 40 of the same act, relating to conveyances, declares that every instrument in writing that conveys any real estate, or whereby any real estate may be affected in law or equity, proved or acknowledged and certified in the manner before prescribed, shall be recorded in the office of the recorder of the county in which such real estate is situated. And section 41 provides that every such instrument in writing, certified and recorded in the manner before precribed, shall, from the time of filing the same with the recorder for ecord, impart notice to all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed, in law and equity, to purchase with notice. Where it is provided by the statute that, in order to the registration or recording of a conveyance, the deed shall be acknowledged Bishop v. Schneider. before some officer, and a certificate thereof entered upon the deed, if the deed is recorded without the prescribed acknowledgment, the recording or registration will not be constructive notice to any one. Work v. Harper, 24 Miss. 517; White v. Denman, 1 Ohio St. 110; Blood v. Blood, 23 Pick. 80; 2 Washb. Real Prop. (3d ed.) 139. In the present case the justice in Franklin county had no authority to take and certify the acknowledgment of an instrument conveying lands in Jefferson county, and the acknowledgment, therefore, was a nullity, and the mortgage, although recorded, imparted no constructive notice. But it is contended here, and the court below seem to have taken the same view, that our statute concerning evidence has cured the defect so as to make the record give the requisite notice. In support of this position that section is quoted which provides as follows: "The records heretofore made by the recorder of the proper county, by copying from any deed of conveyance, deed of trust, mortgage, will or copy of a will or other instrument of writing, that has neither been proven nor acknowledged, or which has been proven or acknowledged, but not according to the law in force at the time the same was done, shall, from and after the passage of this act, impart notice to all persons of the contents of such instruments, and all subsequent purchasers and mortgagees shall be deemed to purchase with notice thereof. R. C. 1855, p. 731, § 46; Wagn. Stat. 595, § 35. This section was first passed in 1847, thence inserted in the revision of 1855, and continued in the statutes of 1865. If it has the effect ascribed to it, it, in a great measure, nullifies and renders nugatory the law on this subject of conveyances, so far as acknowledgment, certifying and recording are concerned. If the deed imparts notice without being acknowledged, or not acknowledged or proved according to law, then every instrument which the recorder may place upon the record is sufficient, although it is wholly wanting in the absolute requirements of the statute. It is hardly to be supposed that the legislature intended by this section to repeal, nullify and render nugatory the whole law in reference to the essential elements of acknowledgments and recording. But when we look at the history of the enactment, its scope and tenor, we find clearly that no such intention prevailed. The section was embodied originally in the somewhat famous limitation act, and was approved February 2, 1847. The act is entitled "An act to quiet vexatious Bishop v. Schneider. land litigations," and was designed, in connection with the period of limitation, which was therein inserted, to put a speedy termination to controversies arising out of defects in conveyances which were made anterior to that period, and which were often informally executed. The section was imported and reënacted literally in the statutes of 1855, and thence continued in the revision of 1865. Full force and effect was given to the section in the case of Allen v Moss, 27 Mo. 354; but that was a case where the deed had been executed, acknowledged and recorded prior to the taking effect of the code of 1855. The word "heretofore" is the controlling one in the section, and shows that the act was intended to apply exclusively and solely to prior conveyances. The provision, then, applies to all conveyances made previous to the taking effect of the statutes of 1855, and no further. It derives no additional force or power from being found in the statutes of 1865, for it is the same identical section that existed in the former statutes; and where that is the case, the general statutes enact that the provisions of the general statutes, so far as they are the same as those of existing laws, shall be construed as a continuation of such laws, and not as new enactments. Wagn. Stat. 897, § 5. For these reasons, as the mortgage was made and acknowledged subsequent to the adoption of the statute of 1855, I am of the opinion that it did not come within the provisions of the saving clause of the section, and that the court erred in its rulings as to this point. One question remains to be disposed of. Schneider, in his answer, states, that he purchased the property at trustees' sale; but there is no averment that he paid any valuable consideration for it, or that he has parted with any thing in consequence of the purchase; nor is there any evidence in the record showing that fact. The very point was decided in Chouteau v. Burlando, 20 Mo. 482, and it was there held that a defective acknowledgment could only be taken advantage of by a purchaser for a valuable consideration. In all cases the purchaser must show that he paid the purchase-money before he is entitled to relief on account of not having notice. See Halsa v. Halsa, 8 Mo. 303; Paul v. Fulton, 25 id. 156; Chouteau v. Burlando, supra; Aubuchon et al. v. Bender et al., 44 Mo. 560; Jewett v. Palmer, 7 Johns. Ch. 65; Wormley v. Wormley, 8 Wheat. 421. Although the ruling of the court as to the mortgage imparting notice was erroneous, yet we cannot see that the defendant was |