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Show LEGAL ARGl.ME.VT. Tzp.p.iTop.r of Utah. Supreme Court, January. 1671. Before the Hon. J. B. McKean, Chief Janice, and Hon. C. M. Ha-rviey, Asociale Hou. O. F. ilrictviand, j Juiiice. Francis A. Hoffman Edwin D AVooi.ey, Kecorder of fcal: Lake County. PETITION TOR A MiypiMUB. Abstract -f thecal made by the Pc:i-UijiX Pc:i-UijiX antf Ajjidavit. 1. After stating that the plaintiff and defendant are citizens of" L'Laii, the petition peti-tion eayd that the deieodanc is the -Re-curder of iait Laiie County, and as such he has tue custody of sne county recoids, con5iting of Lhe records of dtt'ds, mortgages, mort-gages, etc. I: then says it is the duty of the defendant, de-fendant, as such Recorder, at all teason-aoie teason-aoie hours to keep the Kecorder'a urfiee open and tree lor examination of all peron wishing to examine the said records, re-cords, or to take notes and abatmcts from tue cauje. n. That the piaintifl' being desirous of tHtt ing abstract ol titles to real estate in the county of Salt Lake and Territory of U tah, for the purpose of using the : same in the business of examining titles and making reports thereon to all par- j tl a Liu i chii-iny lands and im nrnvcniHiiK in euid county, or loaning money on uch lands or improvements as turety, ml which your orator nad a legal riglit jeo to do, did, on the 14m day ot December, Decem-ber, lb.O, apply to the eaid defendant, E. D. ooliey, as Kecorder aforetsid, for j)ennis:ioii to examine the said records re-cords and take tUerefrom aotracts and notes of the conveyances tuerem recorded, re-corded, such application being during reasonable and Uusinese hour, LUe ea.d E D. W ooliey most wrongfully and illegally il-legally refu-ed to suifer and allow your onttor so to du. 4. And seeing that your orator has not mil, speedy and adequate remedy at law, your orator humbly prays tuat a Wiitol mandamus may iuu irom tms honorable Court, comLuauding tne said hUwin JJ. 'ooliey, as Kecorder as aforesaid, to sutler and permit your orator ora-tor during alt reasonable business hours to have iree and perfect access to tue records of his alorusuid oii;ce, and that your orator be allowed to exeiciae his legal rigut to examine. abstract and take notes ol all and any conveyances recorded record-ed in the aloresaid Kecorder' a ottiue, without hindrance, molestation or interference in-terference on the part of him the said Edwin U. W'ooltey, or any one acting by, through, or under him. After this statement follows a prayer iur pioce'ts, etc. ith this petition he files his own affidavit, af-fidavit, in which he says : lie is engaged in ttie real estate business busi-ness in said cult Lake Couuly, buj'ing and selling iho same on commission, and in lurnithing reliable information to jtarties wishing to invest tnereiu as to ut!'. 'i hat in pursuance of this business busi-ness it became necessary thai, no huuuid make an abstract from tue record books ol said county of the deeds, morttfttges, and nistrumeuLs of writing lor ready re-tcrence re-tcrence in tho oihce of deponent in said city. Tuat on the lutb day ui -"ovem-ber, IbVU, duriiiji oihce hours of that day, thisj deponent applied to Edwin D. ooliey, Kecorder of said county, at the oihce of said Kecorder in said city ol ijali Lake, to allow deponent to make an abstract of the dttds, morty ig'it and instruments of writing recorded in his ohice, which was roiUsed lor the reason that deponent was not interested in the property ol said co.inty ; that if deponent depon-ent wanted to buy or sell any real estate es-tate or Joan any money thereon, he would then give depoimnt information Ha to sued specillc property, and that he as the Kecorder was the custodian of the records and was entitled to fees in eacu and every case when information was 1 wanted, and that he expected a propr recompense from him for any and all information as to specilic property, inui be as such Kecorder was alone authorized au-thorized to giTe information in regard to real estate in this county, and denied ttie right of any individual to keep an abstract oLtieo in this courny ; and stated , tnat this deponent was trying to taae corn out of his ( W ool ley's) crib and put it into this deponent's. This deponent more. y desired tomakti abstract in pencil of said records during dur-ing orlico hours. To this there ws a demurrer tiled by the defendant. The causes of the demurrer were, viz. : 1. Hy law the said Francis A. Hoffman Hoff-man is n A entitled to examine and take abstracts Irom the records of deeds, mortgages, and other instruments of writing writ-ing in said ohice for tho purpose expressed ex-pressed in his petition and auidavit. 2. .Nor is he, this defendant, authorized author-ized or permitted by law to give or permit per-mit lo bo obtained by any person whatever, what-ever, abstracts of any of the records of deeds, mortgage?, or other instruments m writing in said ource, except u be to persons uaving an interest in some -pe u he part ihcreol, and then only to ouub f spec, lie pan on tue interest being miowii. o. The said Francis A. Hoffman has not averred tint no has any interest w;i:itever in a;iy specie part of tue records re-cords ol said otnee. The question arising from this statement state-ment is, w net li er Hie petitioner has : ade I sii U a . .t.-e as cu Lilies him lo toe reiiei i prayed iw. j 1; me law e;-:? a claimed by the pe- titioher in hi petition nd athJavit. it j . uiu.-t i'e conceded til at ttie writ ol man- i daiiuis out; lit to isje, as tin petitioner I Ua- been denied olio ot Ins ngtii. I KtMiioj tnis e.a.oi to it cc.uunij, i j-tr.ppd ol asa-uinp.ions, it i- t.us and ; Hotiai;,g ir."re t:;.-:. t;.;s. A I'cison ii"t '.a'iiig any real estate in me county, or any ou.er interest tuere.n. lias t : i o r;g:it to ea:ii;:,r t;.e reio:.;- ior me p.p-eoL" to t li -e; .-r n.ay va' si re io k no a . ,j uuve s:k1 ;,- :,a e g 'v a : ' :' ir :. 1'!j;i. is bis e.a.iil. Tins ir.voivi s tno "Qject, tl.e cor st.ru c-a:;.l c-a:;.l me trde mttr.; a:.,l in :i:r.rg ol me L- : -'ry L , ii'.-r .m .a-e 1 ncnt oi iue g' Ver. t m r. ..ttton to j mti .andea property oi itse! ;. a.i i oi tLe rinded pr.'terty jf lis c;l. 1- ts j not denied but thai if me pet.m.nr has I or even ciji.iUs to nave or i: teds to j ii.iV'1 ;i interest ;n a i-pev".: :ece ol ! p-a. e.-tato. so :ir as mat spev. :.c part i; c ;.or::.cU be a r:j,.; ;.j .- fr.ii t !". e rot.. 'i" j it- i.j.vh j Mi Dai dv es mat filjt La.r w;t;i ;t ;,,e mr-mer mr-mer r;:.t to txainir.e me r ec. .-.is a; to i.mos ;u wii.cii tie ::js no r ..: interest inter-est and : ."v.'tn 'm i ;u n-ura v l o . s a g'-tvd and wnonsa i-d or a t vc t.t.e ;r me purpos--. a ij res-i l .y huu-sO.f, huu-sO.f, of t-aii.g a 1"? tracts m p. ; . ;i cf th'1 record of Cli.n uiortcae. ,d omer in tr d ment-s ot nntittg to .e n. tn to use me Mie in Lis Ln-me- - f ex-vni.n-ing the tities, a-d txaKtc j reports mert on pi ail parU?- tf.rou- of pnrchascg , ianis ar.d in. 7 rove me Tats in a:: crtmty i or loaninj n.or&y on sue security; :nd: j placing himself in a condition ar.d i; i a coraditii. n in which if ne is ec:;:.v-d be placed, every other pers' in m or o: of tah is also ettiiifd to he pl-.ce.l .-use .-use the information ihus gained to pr iuo:e iitigiition, eg-nder strife, and render unstable the laud titles o: the couutry concerning whose actual condition condi-tion he has no right nor business to know ? Wnat right, I ask, baa he or any other person to learn from a publie priTate record the eituation of a man a? to pr-jpertv. woen tuat man does not owe him and doee not wish any pecuniary pecu-niary aid or assistance irom him ? I-not I-not that inquiring into matters which do not concern him ? as i; or c. uia it have been the design of tnese iaw to lay open & source of informati,M. wnich would enable any person to I00K into the pecuniary condition of each and every ev-ery other peraon in reiatioa to nis lauded esta' ? 1 ct such must be the Case i: what the petitioner claims to be law is actually the law. But, as before said, thi question involves in-volves tne true intent and meaning 01 our Registry Laics. There uave been Registry Laws in the New England States and m some otners from tnu earliest settlements in most-states most-states until the present lime. See 4 Kent Com. pp. 10s lo 174, 4ob tJ 4o,.,. 'l iliiliard un Jdortgages, pp. o4 442. '4 Vasnburn on Ke-.l -estate, up. to 07. The purposes of this record, says Mr. Washuuru, 'I vol., p. Olio, art; cnicny to 1 give notice to all persons having occasion occa-sion te ascer.aiu whether tueru nas been any prior conveyance or incumbrance of any real estate, which must, as 1 tuink, oe understood by tne word occasion occa-sion tti intercut in the particular land, and cannot by any fair and reasonable intendment be extended ao as to inctudc 1 tne rignt of emending the examination to any laud wnutever wherein the person per-son nas no interest or does not desire to ObLain an interest. Chancellor Kent, in his Com., 4 vol., 11 ed., marginal p.Tj'j and note, informs us wnat the -Hassaouuseits law a Aid tne object and intent of tue law was in these words: that "neituer creaitors muy be defrauded nor coarts troubled witu vexatious vex-atious suits aud endless contentions." it tho docinue, now lor the hist time in tins Territory sougut to be introduced and enforced oyjuuicial authority, prevail, pre-vail, it wih wanton y eipos'j tile priaLe as well ail the public concerns of tue lauded interest ol tue Territory, and wid lead to litigation, injustice, and Iiatid, wiihoLit auy corresponding bcnelit. See 4 Kent, p. 4'ji, note 1. it ougut nut, tnereiore, to prevail, unless on examination examin-ation 01 the statutes it is found to be a mandate of law. Tne Acti of L'tah relating to this sub-,jeci,tiiough sub-,jeci,tiiough limited, bear a Cise analogy Lg inu statutes of the talui. The lirst Act was ajtproved March I'd, I80O, under tne provisional governmeiu of the State of JJeseret. See L tan Laws, p. HI ; wmch provides for the election o. a l.ecorder 111 each county, his 011 i.u anu bunds, and lor the procuiemeut n OjuK; lor records, it men says he snail record therein all traiisiers and conveyuneu ui iand ur leuemeuts, and ail oiner instruments instru-ments of writings aud documents suitable, suita-ble, necessary and proper to be recorded record-ed ; town and cay putts, plats of an surveys of lands, roads and public works within their respectiye couiuie. sec 5 says ; "The booKs of record snail be indexjd in alphabetical order and free to the examination of all persons. Un the same day there was anotner law approved, relating to a Surveyur-Gene-rai, which autuonzed him wuen elected and qualihed to survey lauds, keep an oliiuo aud a record, but it is silent as to the right of examination. I will here reuiarK. that at the date of these two acts the land 10 be surveyed belonged to the United States; therefore the only right which could aocrue from thte surveys and records was a mere possessory possess-ory rigut, and that only to the extent w'-jicu the state as it then existed could lawlully give. It is farther to be remarked re-marked taat the Constitution and Laws of the Cmted states were not extended over this .territory until the iUh of September Sep-tember following, bee Organic Act, Sec. 17. Bdtthla does not settle the meaning of the words in oe. 5 of tho Act above quoted, viz.: "The nook 5 of record snail beree;) to "the examination of nd persons, mis language, it is conceded, conced-ed, is broad enougu to include within its meaning the plaintiff, lor all persons may include loreiguers as well as citi-zeni, citi-zeni, and may also inciu le disinterested as well as nuerestwd persons. But this Act doe not, ei.hcr in terms or in spirit, permit any pen on tu jo there at all Uu-inei hours', in all days, and without molestation or hindrance on the part of the Kecorder, make abstracts in pencil of all deeds and mortgages found of record for the puruuse of &c, S:c. I add for tho purposo of furnishing sucu person a slock in trade for his business. bus-iness. I now h-.k; Is it reasonable to suppose the Legislature, in the language u-ed, intended by the term "all persons ' to include persons having no intere-t ' whatever in tne Kecord '.' As a general rule, we are not m a Id to or take Irom the term of an At tT t'ie purpose of hmiuag r extend.:..; its meaning, so a to include or exclude objects ob-jects not contained 111 tne tair and rt-a-sonabie meann.g or i iiport of tne language lan-guage used ; but tin-, 1 1 K a . 1 ot a r r n . lis mill lat ion. lu tne K'-ii-try-Acts of some ot the States, we u..d an unregistert-d deed is void a- aujtin-t a at r''Ci?-.r j-,,- a . i"'.---:o teu wiinQ it 1- read, y per ceived Is tm-ad enoiikTii l: toe a l - a pdrclia-er m O-il 7. a l:aj.j...ti urcijaser. lo obvtaC t ; a 1 -. tne c 'un-have 'un-have decided that me At n.--;.t a b-'.a c pu cr.a-er, ms tu. - 1. 1.; a p ir- h-t-e'r 1:1 bad ia.ta. a-? : 1 rve t. r-H".d r-H".d note " at. o h:.l t'-i.,,;. nti--trere l .t d. 1 nis is - A' a -eat 1 of e..n-trd.t; A,., .y t;. m m- A ; boiorc us iad wt . e : j to i. ; i t . . ?'aii'j 6 :ui il " .'i.-i'lLt."!. J" lev L and r. l de- r y. ;..e r z t- : t . I saa.i ha - t:.e ry r., . . .... : 1 by 1;.. l':...t i. a r. -x..... a;.d l-Jik'1 ao-"."a :." . 1 mtere-t 1:1. Tt-.s v.ew 1- ,t - -( f.y ccr.-.deri:.g tr.e r.a .;r- a .d . . 1 t jee records . It 1. Tey are . : ., L.e,.m--m-y kept p-rELt to a .a. p L.1C .a:. is. j Next me k-ej.::-.,i:c' ' lr.iiVid da.s La e .:.e r 1 .. 1 . v . 1. . ' f.t.es au 1 tr.e.r !' -.- -" -.. : . . m thcm. i-i i m y :.y aab.ic iir. oer-y L..t ; ?- t.. . : su:l.o ei:.i t;.ey a."1- r .;.tr : ; y a ; pu tj.ic otf..- r. ! Jan. ar..-me: Ac: p-'-i : see I tab La-, vl. 1. p 'm re. ;;.fe-I ;;.fe-I to coimiy u:T'-jv.:s. A .ur.g .t-. pr-. ior.8 we n-l me -.:y -"y r r..--t j keep a record 1 f t:s d.-reyi, b;a i:e ire-rormii ar lo bo cn f-n f : "taid record shall :e co-:-- t. me sprc-'.ioii sprc-'.ioii of any person ha.v;-g a:i -rr :ha.rein." whlvn snow- that mc Le.s- to the "interest ' of me at p :a:.t. It is furtxer to be re:r.s.riei tn.; these surreys are to be recorded in the county records, and t therefore are a part of thena. Is it not, then, a fair and ;u; conclusion, from thee two en act me r. is, that :he Legislature intendt-d to conrlne the right of exancinati. n to persons ns,v-mg ns,v-mg an interest in the land me record of woich i to be exaru'Ced. Acain I rind, on examination t-f these Law, that the Kecoraer is not autn"r-ized autn"r-ized nor re-qu.r-d to give cert.rled copies of these rtcurai. He is not, mercfoie. permitted to disclose their contents so ar at least as individual interest is concerned. con-cerned. But judgments are lien on iand claims and improvements on land, and therefore persons having unsatished j jdgments against persons wno own land claims hare a right as against judgment judg-ment debtors, but aot as to other lanus. See Laws of ltr-J7, p. 'S'2: Code, p -I, sec. 217. By sec. oi of tne Code, it ;s provided pro-vided that "a copy of any record, document, docu-ment, or paper, in the custody of any public orheer of this Territory, certihed under the official eal or verihed by the oath of sucq officer to be a true, fail, and correct copy of the original in his custody, may be read in evidence in anv action or uroceedins in the court? of this Territory, in Iiko mannrr and with like effect as tue origiual could bo if produced. Here we rind tue Kecorder may certify to the records in his office, but is 01 ly when they are needed as evidence ev-idence in courts, not for the uurpose of creating a capital stock in tradu. 1 here remark that the Kecorder i not entitled to a salary but is eniiucd to fees. 1 have before referred lo tne general gen-eral usages of the States on ttie subject of Kegistry laws. 1 now call attention to tne United t tales laws. .Nut mat any of them furnish au unquaiihed guide for a constriction of me L'tah taws, butastheyare aimiagou-, and their object being tue same tney afford lis an aid. April Ho, lM2,Sec. 2, Statutes at Large, p. ,71'.i; Congress established a genera! Land Uilice, with a Cominis-iouer and a goodly number of urner officers and Clerks; and after providing for a seal and t n e rece 1 v 1 n g and k ee ui u c.-. rt .. i n re-cords, re-cords, books and papers relating to luud-, mid for ttie issuing of land warrants war-rants and latent, a I'd reeui uiiig the same; it provided th t copies of any records, re-cords, books or papers belonging to said uiftve, issued under the signature ui said Commissioner aud the seal of said otiioe, snail be evidence in all ca-es in wuieii the original record books or paperseouid be evidence. i'liu-- we see tuis is analogous analo-gous to ours, that it li.ey are lo be issued is-sued i.i ! y-.ufic-:, eve. In Secuou ti of 6;,id net it is j.ro ided thatlUesnid L'oijiini'-iuner sh:nl, when required by the fre-ideiu ol 1 United S.a.us, or eittier .n.'u-e of C-etgi e-s. give sudi. intoruiaiion fMicerm me ,,'ub-lie ,,'ub-lie lauds and the Im-ine ' '1 - euli .-u a afill be, if ir-.et, o' . 1 by wtio.u di- reete'l' Ly t lie e u rt - .'f la w or by tne President of the L: nifd Slates or either house of Congress? Tne section answers for itself without com ment from me. These laws oi the Un.ied St ur- li!.o the laws ol L Lah, make thee records public private records. Notliing WLuld strpriso me more than to bu lniormed auihoriiiv.lv that the Supremo Court of the I'liiid State- had issued a iicremptory mandamus airaiiut the Commissioner of the General Land Office, who has some tifty or sixty clerk-u.ider clerk-u.ider hini, commanding h.m to permit a named person, at nil reasonable bu-i-ness hours of each laboring day of the week, to have lull, perfect aud complete access to the books, records and papers ofhii office, without molestation, hindrance hin-drance or interference on the part of the Commi sioner, for the purpose of making mak-ing pencil abstracts from me books, re-, re-, cords and papers of the office, to enable him to carry on his business of huyintr and s.elling real estate in tho Cnited States. Yet such on a proper applicai tion would be the case if tho law of the United State! gave tho right, as such nitiat be the construction on th1 law of Congress, which as be 'ore snid is liko our own. if the plaintiff hus by the law of Utah the right he now claim. Sxow & llocic mV A. MlNKR. r a'Vttorneys for ileiendi.r.t. |
