
    *Samuel Ramsey v. Zachariah Riley, Recorder of Miami County.
    To maintain suit against a recorder, for recording a forged receipt for money due on a mortgage, it must he shown that he knew the character of the instrument, and, with corrupt intent, entered it upon record.
    This is an action on the case from Miami county.
    The plaintiff counted “ that heretofore, to wit, on November 2, a. d. 1835, at the county of Miami aforesaid, one Ishmael Waller-ton, being indebted to one Ziba Wallerton, in the sum of $500, executed and delivered to the said Ziba Wallerton a mortgage deed of the following described lot or parcel of land, to wit,” etc.; “which mortgage deed was duly executed and conditioned to be void on the payment of the said sum of $500, with six per cent, interest thereon, from the 1st day of April next after the date of the said mortgage, for which sum a promissory note was given by the said Ishmael to the said Ziba; which mortgage deed, being duly executed and acknowledged by the said Ishmael, and by him delivered to the said Ziba, was by the said Ziba lodged for record in the of-' fice of the recorder of deeds of Miami county, on November 3,1835, at nine o’clock in the forenoon, and was duly recorded among said records by the defendant, ho then and there being recorder of the said county, on the 6th day of November, in the year last aforesaid. And afterward, to wit, on October 2, in the year of our Lord 1837, the defendant then being recorder of deeds for the county of Miami, without any competent authority, at the instance of the said Ishmael Wallerton, entered on the margin of the record of the said deed of mortgage a receipt purporting to be signed by the said Ziba Wallerton and by him, acknowledging the receipt of $540, *being the principal and interest due on said mortgage; which receipt, as entered on the margin of the record as aforesaid, and the entry thereof by the defendant, recorder as aforesaid, is as follows, to wit:
    “‘Received of Ishmael Wallerton the sum.of $540, being the principal and interest on mortgage or bond, entered in the office of Miami county, Ohio, Septomber'29,1837. Entered October 2,1837.
    “ ‘ Z. Riley, Recorder Miami County.' ”
    “ Which receipt was false and forged, never given by the said Ziba Wallerton, nor by him authorized to be entered on the margin of the record as aforesaid. And afterward, to wit, on April 3,1838, the said Ishmael Wallerton-proposed to sell and convey the said tract or par.cel of land to the plaintiff; and the plaintiff, to ascertain whether the said mortgage had been paid, and whether the said parcel of land was free from any incumbrance, applied to the defendant as recorder as aforesaid, at his office in Troy, in said county of Miami, who informed the plaintiff that the said mortgage money had been paid to the said Ziba by the said Ishmael, and then and there showed the plaintiff the entry of this receipt on the margin of the record of the said mortgage, so by him made as aforesaid. Whereupon the plaintiff, in full faith that the said mortgage money had been fully paid, and that the said tract of land was free and clear of incumbrance, then and there purchased the same of the said Ishmael Wallerton, for the price and consideration of $1,150, which the plaintiff paid to the said Ishmael, and received from him a deed of bargain and sale of said land. And the plaintiff avers that the money secured by the said mortgage, and to be paid by the said Ishmael to the said Ziba, had not been paid; that the receipt before specified was false, forged, and fraudulent; that since the purchase of the said land by the plaintiff, the same has been decreed to be sold, in a suit in chancery by the said Ziba Wallerton, instituted on the said mortgage, beforo the court of common picas of Miami county; and, by virtue of said decree, actually sold, so that by the sheer negligence and carelessness of the ^defendant as recorder as aforesaid, in entering the said false and forged receipt on the margin of the said record as aforesaid, the plaintiff has been deprived of a good title to said land, and lost the full. consideration paid therofor, as aforesaid, to his damage,” etc.
    The defendant demurs.
    Crane and Thomas, for defendant, in support of demurrer:
    The declaration in this case confounds misfeasance and negligence.
    The declaration does not charge the defendant with acting willfully and maliciously, or fraudulently, with a knowledge of the forgery. The charge is, for recording a receipt “ without any competent authority;” in other words, with a mistake as to the law, whether the writing in question was one required by law to be recorded. If such mistake was made, the defendant, acting bona fide, is not responsible to the plaintiff for its consequences. The recorder is a public officer, sworn to discharge his duties “ according to the best of his abilities and understanding.” It is his duty to record “all deeds, mortgages, and other instruments of writing, required by law to bo recorded, and which shall be presented to him for that purpose.” Swan’s Stat. 778. He has no option to act, or not; ho must record all writings presented to him, required by law to be recorded, and consequently must judge whether the paper presented be one of that-description.
    In Harman v. Tappenden, 1 East, 555, it was held that an action does not lie against individuals for acts erroneously done by them in a corporate capacity, from which detriment happens to the plaintiff, without, proof of malice. Lawrence, J., said, 562, “there is no instance of an action of this sort maintained, for an act arising merely from error of judgment.”
    In Drewe v. Coulton, 1 East, 563, note a, Wilson, J., says: “ Thia is in the nature of an action for misbehavior by a public officer in his duty. Now I think that it can not be ^called a misbehavior unless maliciously and willfully done, and that the action will not lie for a mistake in law. The case of the Bridgemaster is in point. Buller’s N. P. 63. In all the eases put, the misbehavior must be willlul; and by willful, I understand contrary to a man’s own conviction. In very few instances is an officer answerable for what he does to the best of his judgment, in cases where he is compelled to act. But the action lies where the officer has an option whether he will act or not.” This was an action against a return* ing officer; but the principles laid down apply with equal or greater strength to the present case.
    The mistake of the defendant was not as to the law, but as to the fact of the genuineness of the receipt. By the very terms of a mortgage to secure the payment of money, upon performance of the condition the estate of the mortgagor becomes indefensable. Hill v. Webb, 8 Ohio, 224 A receipt showing such performance of the condition, is a writing “required by law to be recorded,” and when presented to the recorder it would bo his duty to record it. The declaration in this case does not show that the condition of defeasance was broken; and, if it had been, the payment of the money due operates as a release ; and any genuine instrument of writing showing such payment, is a proper subject of record. The recorder can incur no responsibility by being imposed on by a forged writing, which, if genuine, would have operated as a release of the mortgage. The place where the record is made, whether on the margin ortho body of the book, is immaterial; if the writing is the proper subject of record, the margin is preferable, as' more convenient for reference.
    The damages which the plaintiff alleges he has sustained, are not the legal and natural consequences of the unauthorized act imputed to the defendant. The receipt being forged, was null and void, and did not operate as a release. The plaintiff, because ho supposed the receipt genuine, and therefore purchased and paid for the land, can not resort to the defendant for the loss which ho has sustained by an imposition practiced on them both'. He had equal, in fact greater, means and %tronger’motives than the defendant, to ascertain the genuineness of this writing. His misfortune is not the legal and natural consequence of the defendant’s act, but an indirect and remote result of his subsequent purchase and payment. It was his act which gave force and efficacy to tho fraud of the mortgagor. Butler v. Kent, 19 Johns. 228.
    If these positions are correct, the declaration does not show a right of action against the defendant.
    The declaration states that, since the purchase by plaintiff, the land has been decreed to be sold, in a suit in chancery by the mortgagee, and actually sold, and from thence infers the loss and damage of plaintiff. The damages are not stated with sufficient distinctness. For aught that appears, the premises may have'sold for a sum sufficient to' pay the mortgage money, and reimburse the plaintiff the amount of his purchase money.
    Odlin & Schenck, Grovenor & Burgess, contra:
    The statute, Svvan’s Stat. 270, requires the receipt to be entered “on the mortgage,” or “on the record of the mortgage,” in the second section. The recorder shall record the satisfaction made on said mortgage, or permit the mortgagee to enter therein the satisfaction of said mortgage. The statute then seems to be guarded to prevent fraud. In the first requirement there is tho possession of tho mortgage itself, which is a strong security that the person holding it is the mortgagee. The second requires his personal presence, to receipt tho mortgage on the margin of the record ;• these are the only modes in which this statutory release can be made; neither of them have been complied with by the defendant; and the only question is, is he liable for permitting to be entered upon his records an illegal receipt, and representing the mortgage to be satisfied, and thereby deceiving the plaintiff? etc.
    The defendant, as recorder of the county of Miami, receives certain fees for the performance of his official duties. Those duties are clearly defined, and among them is that duty to reject from record any receipt as satisfaction which is not either *written upon the mortgage, or signed on the margin by the mortgagee. By permitting this false receipt to appear upon his records, the plaintiff has suffered special damage in the loss of the consideration money of the land.
    If a mandatory should gratuitously undertake to carry or to pay, or transmit money for a mandator to a particular place, to bo paid on a particular day, and the money should be delivered to him for that purpose, he would be bound by his receipt of the money to carry, pay, or transmit the money accordingly, and if he should omit so to do, he would be responsible for his negligence to the mandatory. Upon the same ground, if a bank should gratuitously undertake to collect the money on a note when due, upon the note being indorsed in blank, and left in the bank, and the bank should neglect to present the same duly for payment, or should neglect to give due notice to tho indorsers of the dishonor, etc., it would be responsible. Story on Bailments, 180, 182; Hough v. Young, 1 Ohio, 504.
    Where a person is clothed with authority as a public agent, it can not be' presumed that the government meant to justify, or even to excuse his violations of his proper duty, under color of that authority. Story on Agency, 328.
    It is claimed in this case, by counsel for the demurrant, that unless the record of release is operative, the act of entering it was null and void, and tho plaintiff was as much bound to know the effect of it as the defendant, and that, in that view of the case, the only condition upon which the defendant could be made liable would be, that he placed the writing upon record to mislead purchasers, which is not claimed.
    To this we reply, that the mode of release is directed by the statute; and, in the language of Story on Bailments, 181, “if he who undertakes the business of another is capable of managing it, and neglects to do so with due care, he is responsible; if he is not capable,' he is still responsible, for he ought not to have engaged to do that which he could not perform.” The law intended to protect the public is yet to be executed by the officer, that it may bo efficient for good; and it will hardly do to say that the public should know the requirements of the ^statute, and thereby protect themselves from the consequence of a paper illegally admitted to record, as an excuse for the officer. Fees are given by statute, Swan’s Stat. 398, to recorders for searches made.
    There is a case in 11 Wend. 546, where a justice of the peace gave erroneous information as to the amount of judgment beforo him, by means whereof an appeal was. lost, in consequence of a variance between the amount in the bond of the judgment, and the amount of judgment as returned in the appeal. In that case the court say, case will not lie without fraud or evil intent. That case is plainly distinguishable from this, and the reasoning of the court shows it. It is not the official duty of a justice of the peace to give the amount and date of a judgment, to enable parties to appeal. The court there say: “The justice in this case is the supposed friend; he is under no obligation, except that of courtesy, to give the information. It is not imposed by statute; he receives no compensation for it, and therefore should not be responsible for unintentionable error.” In this case it is the duty of the officer, by statute, to see that no improper release is placod upon the record. It is true he can not be required to judge of the genuineness of a paper proper for record; but this was a paper improper to bo recorded. By that improper record the plaintiff has been deceived. Had he exercised the cafe and diligence which public policy, and the public interest should alike demand of him, the statute duty would have been complied with, and the paper would not have been there to deceive the inquirer.
    This rule of liability, on the ground of public policy, attaches to many of the occupations of life, and why not to the discharge of official ministerial duties ?
    Counsel for the defendant rely upon the fact, that it is the duty of the recorder to record all deeds, etc., required by law to be recorded, etc.; that he has no option, except to determine whether it is a paper required by law to be recorded, and that this determination being of a judicial character, he is not responsible for ignorance of law; and, to sustain this position, *the case of Harman v. Tappenden, 1 East, 555, is cited. That was a case in which the “ plaintiff had broken a by-law, for which he had incurred certain penalties, and, happening to be present in court, he was called upon to show cause why he should not pay the forfeiture ; to which, not making any answer, but refusing to pay, the court proceeded, taking the case pro confesso, without any proof, to call upon him to show cause why he should not be disfranchised; and they accordingly made the order.” The court say: “This was undoubtedly irregular, but it was nothing more than a mistake, and there was no good ground to impute any malicious motives to the persons making the order ” (against whom the suit was brought), and therefore did not sustain the action. The case of Drewe v. Coulton, 1 East, 555, was, as has been stated by defendant’s counsel, an action against a returning officer for refusing a vote.
    Now, it séems to us, that these cases are plainly distinguishable from the case before us. There was no judicial act, as we understand it, to be done. The statute is directory and explicit; he acts but ministerially in carrying out its provisions. “He shall record the satisfaction made on the mortgage,” “ or permit the mortgagee to enter it on the record.” Swan’s Stat. 270. Now these are the only facts upon which the record can be made; and in disposing of the question, it is but simply to do what the statute directs, without possibility of error or doubt. The act so done will release the mortgage. The plaintiff, finding the receipt upon record, and being told the mortgage was discharged, had a right to consider it so done. The direction to the officer was, to protect him from fraud. Had that officer followed the plain directions of the statute, he would have been protected. The plaintiff finds the receipt upon record. If he is presumed to know the law, how does ho reason? This receipt on the margin is a copy of the receipt indorsed on the mortgage, and the £>ossession of the mortgage is my security that it was done by the proper person, or it was done by the mortgagee in person; and the fact that it is all in the same handwriting may well be, for it may ’tall be written by the mortgagor. Not so with the recorder; he is aware, and knows, that he has not pursued the plain direction of the statute; that he has recorded a mere loose receipt, presented by, he knows not whom, and by this utter carelessness and disregard of those directions to him as an officer, the plaintiff is injured.
    We do not suppose that the case of Hill v. Webb, 8 Ohio, 224, aids the defendant. It is true that any evidence, parol or written, which shows payment of a mortgage upon competent proof, will discharge the mortgage. Prior to the existence of this statute, we suppose, the only efficient record of discharge was a release— a perfect release — signed and acknowledged with all the formality of a deed. A mere receipt was not a paper for record, as in itself, discharging the mortgage, but for proof. However that may be, the statute had now rightly defined and set bounds to its operation.
    It is further claimed that the damages are not the legal and natural consequence of the unauthorized act, and that, therefore, the plaintiff can not recover. 19 Johns. 228.
    The caso in 19 Johns. 228, was an action brought to recover against the conductors of a lottery, for so carelessly, etc., managing the same that the public lost all confidence, etc., by which the price of tickets were reduced, the plaintiff having a large amount to retail.
    The court, in that case, determined the injury to be a public injury common to all the holders of tickets, and, if existing at all, to find its remedy in the bond given by the managers under the statute, and too remote, uncertain, and vague, to be the foundation of an action.
    We suppose, in this case, the damages to have been as direct as they well could be in any case, as consequential upon the act of defendant; The title is found to be unincumbered by the wrongful act of the recorder, and the plaintiff purchases and loses his money. It is true that it was his act of payment that fixed the damages; but it is equally true that it was this improper record that led to that payment.-
   *Read, J.

This action is brought against the defendant, as recorder of Miami county, for entering of record a forged receipt of money due on a mortgage, which misled the plaintiff into the belief that such mortgage was satisfied. And he, in consequence thereof, made purchase of the mortgage premises, which were afterward sold to satisfy the mortgage.

There is no averment in the declaration that the recorder had knowledge that such receipt was a forgery, or in any way acted maliciously or corruptly.

There is, therefore, nothing in this case to take it out of the operation of the ordinary rule, that an officer acting within the scope of his duty, is only responsible for an injury resulting from a corrupt motive. It is the duty of the recorder to enter of record all deeds, mortgages, and other instruments of writing, required by law to be recorded, and which are presented to him for that purpose. Swan’s Stat. 778. It is not his duty to determine the validity of such instruments as may be presented for record, or to ascertain whether they be genuino or forged. But even if it were, and he should act honestly and fairly, according to the best of his ability, he would not be responsible. Yet, undoubtedly, if regardless of his duty, he should willfully and maliciously, with full knowledge, enter a false and forged instrument upon record, whereby some person was misled and injured, he would be responsible.

In this case it is not pretended that the recorder had any knowledge that .the receipt was forged, or that he acted from corrupt, motive. In this view the declaration discloses no cause of action,, and the demurrer is well taken.

But it is said the receipt is not such an instrument of writing as the recorder was by law authorized to record, and therefore-he is liable. If this were so, and the recorder exercised his judgment in good faith, according to the best of his abilities, ho would not bo responsible. Besides, if the instrument is not such as th:elaw authorizes to bo recorded, the act of recording is a nullity,, and the plaintiff should have disregarded it.

*But, under our statute, the entry of a receipt of the mortgage money, upon the mortgage or upon the record, is a satisfaction of the mortgage, and operates its release. Swan’s Stat. 270..

Such a receipt would be put, of course, in the hands of the mortgagor, whose interest it is to have the mortgage released, and he-might present it for record. The receipt for the mortgage money is, within itself, authority to enter satisfaction of the mortgage, and the mortgagor has the right to present it for record.

Hence, in no aspect of the case made in the declaration, is the-plaintiff entitled to recover.

Demurrer sustained, and judgment for defendant.  