HOUGHTON v. SMITH, 258 Mich. 405 (1932)

242 N.W. 769

HOUGHTON v. SMITH.

Docket No. 77, Calendar No. 36,128.Supreme Court of Michigan.Submitted April 22, 1932.
Decided June 6, 1932.

Appeal from Wayne; Miller (Guy A.), J. Submitted April 22, 1932. (Docket No. 77, Calendar No. 36,128.) Decided June 6, 1932.

Four bills by George Houghton and another against Ernest F. Smith, trustee, to discharge lien of mortgage in excess of amount recorded. Cases consolidated before trial. Decree for plaintiffs. Defendant appeals. Affirmed.

Sempliner, Dewey, Stanton Bushnell (Arthur F. Neef and D. Neil Reid, of counsel), for plaintiffs.

Max M. Braun, for defendant.

Page 406

CLARK, C.J.

Plaintiffs purchased land incumbered by recorded mortgage. The mortgage purported to secure a series of notes in the total sum of $3,600, and a second series in the total sum of nearly $800. Before recording, the mortgagee presented the mortgage to the county treasurer, and, upon payment of $18, mortgage tax of 50 cents for each $100 (1 Comp. Laws 1929, § 3641), the treasurer indorsed upon the mortgage his certificate that the amount secured by the mortgage was $3,600, and that he had received $18 in full for tax thereon.

Plaintiffs, alleging that they are charged by the record with constructive notice of an incumbrance of $3,600, and no more, filed bill to be relieved of mortgage of record in excess of that amount, and had decree. Defendant has appealed.

Because of difference in statutes, cases cited from other jurisdictions are not in point. Our statute, 1 Comp. Laws 1929, § 3642, provides in part:

“The tax imposed by this act shall be paid to and collected by the treasurer of the county where such mortgage is first presented for record, in the manner following: Before said mortgage is received by the register of deeds for recording it shall be presented to the county treasurer who shall as one of his official duties compute and collect the taxes due thereon as provided by this act, and shall certify on said mortgage the amount secured thereby and the amount of taxes received by him. Said certificate shall be recorded by the register of deeds as a part of the record of said mortgage.”

It is true that the statute is a revenue measure, but it contains other features to make itself effective. To coerce payment, privilege of recording is denied until tax is paid, and to prevent evasion and to secure payment in full, constructive notice by

Page 407

recording is limited to amount on which tax is paid, and this latter conclusion is indicated by requirement that treasurer shall certify amount secured by the mortgage and that certificate must be recorded with mortgage.

We are not concerned here with contract relations between parties to the mortgage, nor with actual notice, but solely with constructive notice.

It is urged that one ought not to be prejudiced by error of treasurer in making computation. It is most improbable that one seeking to pay all that he ought to pay will be refused. In that improbable event, he has his remedy. The failure here is chargeable to the mortgagee, not to the treasurer.

Another question is attempted, but it was decided correctly by the trial judge and calls for no discussion.

Affirmed.

McDONALD, POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred.