has duly deposited a deed with the proper officer for record, he has performed his whole duty, and consequently the subsequent mistake or neglect of the recorder will not affect him or invalidate his title.25 It would seem that the doctrine that a record, with no index or with an imperfect index, imports notice, ought to have the same controlling effect whether we are considering a question of tort or of title. Indeed, it must be, and is, one of the substantive questions which should be settled before it can be determined whether a tort has been committed. We state, with perfect confidence, what seems a sound and reasonable rule of law that the recorder is only liable to one who is injured by his acts of misfeasance or nonfeasance; that he is not to be regarded as the agent of a person lodging an instrument with him; and where his official delinquency consists in his failure to index the record of an instrument, the injured party is the person misled by the want of the index, and not the person whose deed has, in all other respects, been duly recorded.26 The following excel

25 Nichols v. Reynolds, 1 R. I. 30, 36 Am. Dec. 238; Cook v. Hall, 1 Gilm. (Ill.) 575; Merrick v. Wallace, 19 Ill. 486; Dubose v. Young, 10 Ala. 308; Beverley v. Ellis, 1 Rand. (Va.) 102; Franklin v. Cannon, 1 Root (Conn.), 500; Mims v. Mims, 35 Ala. 23; Throckmorton v. Price, 28 Tex. 605, 91 Am. Dec. 334; Glading v. Frick, 88 Pa. St. 460; Mangold v. Barlow, 61 Miss. 593, 48 Am. Rep. 84; Lee v. Bermingham, 30 Kan. 312, 1 Pac. 73; Sykes v. Keating, 118 Mass. 517; People v. Bristol, 35 Mich. 28; Perkins v. Strong, 22 Neb. 725, 36 N. W. 292; Marlet v. Hinman, 77 Wis. 136, 20 Am. St. Rep. 102, 45 N. W. 953.

...

26 Green v. Garrington, 16 Ohio St. 549, 91 Am. Dec. 103; Mangold v. Barlow, 61 Miss. 593, 48 Am. Rep. 84; Board etc. v. Babcock, 5 Or. 472; Reeder v. State ex rel. Harlan, 98 Ind. 114. "The index is for the benefit of the searcher, not for the holder of the deed. . . . . If the clerk fails in his duty, he injures those who desire to search. The duty is, therefore, to the searcher and to the public, and not to the holder of the deed": Chatham v. Bradford, 50 Ga. 327, 15 Am. Rep. 692.

....

lent presentation of the doctrine by the Mississippi supreme court with reference to the question is here set forth: "After the most careful consideration we range ourselves with the minority, and hold that a grantee fully acquits himself of all duty imposed by law when he lodges the instrument with the proper officer for record, and from that time it is notice to subsequent purchasers and creditors of what it contains, and not of what the recording officers may show it on the record. The clerk is not the agent of the grantee, and he is not responsible for his blunders. He has as much right to rely on the fidelity of the officer as has a subsequent purchaser. While his deed is in the clerk's office it shows its contents, and when it is withdrawn from the office it has annexed a certificate by the officer that it has been duly recorded. Either this may be relied on, or the grantee must compare the deed with the record to see if it is truly transcribed. This would be an unreasonable requirement. The first grantee, having done all that he is required to do to give notice of the instrument, may safely repose on the presumption that the recording officer has done his duty, and if subsequent purchasers or creditors suffer injury from official negligence or misconduct, they must seek redress from the party at fault, and cannot visit the loss on him who has done no wrong.

. . The state has established depositories for instruments to be recorded, and has prescribed the duties of recording officers. This is for the benefit and protection of subsequent purchasers from a grantor and his creditors. A grantee must have his deed put in a condition for being recorded, and must lodge it at the proper place for record. He is not a guarantor of compliance by the recording officer with the law as to recording. It is not for his bene

fit that the recording is to be done, but for others. The state has undertaken to have the recording done, and if one suffers from the negligence of the officer, he must seek redress from the officer."27

In closing the discussion as to the matter of indexing, we think that, under the statutes, there is a clear liability on the part of a recorder for the failure to index, or for an erroneous index if it misleads one to his injury with respect to the title. And this liability should extend to a purchaser in examining the records to ascertain the state of the title to property which he may be buying, or to one making a loan on property. We know that it is common practice for purchasers to rely on the record entirely in determining the condition of title, Strictly speaking, perhaps, the recorder only undertakes the duty of properly recording and indexing instruments filed with him, to the grantee or mortgagee-the one presenting it—and that there is only a relation of privity between them, and a subsequent purchaser or lienholder who may suffer injury by reason of the neglect in recording such instrument, not sustaining any relation to the recorder with respect to such instruments, would have to look to his grantor to repair the injury. But be that as it may, he owes a duty to everyone having occasion to examine and rely upon the record, and should, in the absence of a statute, be held liable for any injuries.28

§ 175. Recorder Continued-Certificate of Search.Some question has arisen as to whether or not it is a part of the official duty of a recorder of deeds to make a search and furnish a certificate of the state

27 Campbell, C. J., in Mangold v. Barlow, 61 Miss. 593, 48 Am. Rep. 84; Jones v. McNarrin, 68 Me. 334, 28 Am. Rep. 66.

28 Ante, note 26.

of title. This, perhaps, is regulated by statute in some states making it a part of his duty to make such search; and if so, then there is no question as to his liability. Even though there be no such statutes, a safe rule is, that when a recorder is called upon in his official capacity to make a search as to title, and under his official signature makes such a certificate, which is either falsely or negligently made, it is to be regarded as an official act, whether it is so specifically made or not. As has been well observed, the law does not intend to allow a man to remain as the custodian of the records of all the titles to the land in a county, and to give certificates under his official signature touching what the records contain or do not contain, unless such a search is to be regarded within the province of his duty, and for a false or erroneous certificate he is held liable.20 If he omits from his certificate of the state of the record a mortgage, 30 or an assessment lien,31 he becomes personally liable to the one for whom the certificate is made. It is considered, however, that only the one applying for and receiving such certificate has a right to rely upon it, and that the recorder's liability is limited to him, and that he is not responsible to his assigns or other persons who may have occasion to deal with the property.

32

§ 176. General Duties of Sheriffs and Constables.There is so much that might be written upon the duties and liabilities of the executive officers of courts, if the compass of this work would permit us

29 McCaraher v. Commonwealth, 5 Watts & S. 21, 39 Am. Dec. 106; State v. Leach, 60 Me. 58, 11 Am. Rep. 172; Peabody etc. Assn. v. Houseman, 89 Pa. St. 261, 33 Am. Rep. 757.

30 Smith v. Holmes, 54 Mich. 104, 19 N. W. 767.

31 Morange v. Mix, 44 N. Y. 315.

32 Houseman v. Girard Bldg. Assn., 81 Pa. St. 256, 262.

to enter into the detailed ramifications of the subject, but following the policy which we have endeavored to pursue throughout, we shall merely attempt to gather from the mass of cases the ruling general principles, and set them down concisely.

The same rules of law, practically, apply to both sheriff and constable. The first question which naturally presents itself is: What is expected of an officer when process is placed in his hands-what degree of care, skill, and prudence shall mark his conduct in the service of writs? This will depend upon a variety of circumstances and conditions, and upon different rules of law governing the execution of the various kinds of process. When a case is filed in court, there is a time fixed by law in all jurisdictions within which the officer must serve the process which will effect the appearance of the parties. If the conditions demand immediate action in order to effect the purpose of the plaintiff in the action, and the attention of the officer is called to the exigencies of the case the officer must act accordingly. In respect to the execution of process, the duties of the officer are well defined, the law in this being reasonable as it is in all other matters. It holds the officer to a strict performance of his duties; it tolerates no wanton disregard thereof, sanctions no negligence, requires no impossibilities, and imposes no unconscionable exactions.

Several statements of the duty are to be found in the books. For example, it is said that the duty of a sheriff when process is placed in his hands is to execute it with the utmost expedition, or as soon as the nature of the case will admit; that he "must serve all process promptly and unhesitatingly." But it would seem in this as in all other relations, except where life is at stake, that reasonable diligence is