“This cause comes to us as a certified question ... pursuant to Appellate Rule 15(O) which allows certification of a question of Indiana law to this Court when the question is determinative of the case and there is no clear controlling Indiana Supreme Court precedent.”
How later courts described this case
- “This cause comes to us as a certified question ... pursuant to Appellate Rule 15(O) which allows certification of a question of Indiana law to this Court when the question is determinative of the case and there is no clear controlling Indiana Supreme Court precedent.”
- stating the general rule
- responding to certified question from federal court
Written by the judges who cited it.
The opinion
PIVARNIK, Justice,
dissenting.
In Indiana, the Recorder is required to record certain documents which comply with specific formal requirements for the purpose of establishing priority of right. Ind.Code § 32-1-2-16 provides that every conveyance, mortgage, or lease for more than three years shall be recorded in the recorder's office and shall take priority according to the time of filing. The formal requirements are set out in succeeding statutes. Ind.Code § 82-1-2-18 provides that an instrument may not be recorded unless it is acknowledged by the grantor or *672 proved before any judge. Ind.Code § 33-16-2-4 provides the acknowledgment must bear a seal. Ind.Code § 86-2-11-14(a) provides a deed may not be recorded unless it has been duly endorsed by the auditor of the proper county as duly entered for taxation or not taxable. Finally, and most importantly to this Certified Question, Ind. Code § 36-2-11-15 (b) provides that a mortgage may be received for recordation only if the name of the person who prepared the instrument is indicated at the end of the document.
Although this Court has not ruled previously on the effect of failure to comply with the formal requirement of Ind.Code § 36-2-11-15(b), we have applied the general principle that if the document was not entitled to be recorded, its recording affords no constructive notice. In Reed v. Coale (1858), 4 Ind. 283 , this Court considered whether constructive notice resulted from the recording of a mortgage assignment when such an assignment was not recordable. This Court held:
There was no law authorizing the recording of assignments. The recording of an instrument operates as constructive notice of its contents only in those cases where such recording is authorized by law.
We are of opinion, therefore, that the record of the assignment was not notice to Reed, and that it was, consequently, competent for him to set up the second item as an offset.
Reed, 4 Ind. at 287 . Further, in Watkins v. Brunt (1876), 53 Ind. 208, 210 , this Court held "[i]t is conceded by the Appellees that the mortgage not having been acknowledged or proved, was not entitled to record in Morgan county, and the fact that it was so recorded is not notice to a subsequent purchaser in good faith...." See also Sinclair v. Gunzenhauser (1912), 179 Ind. 78 , 98 N.E. 37 , 100 N.E. 376 ; Reeves v. Hayes (1884), 95 Ind. 521 ; Lapping v. Duffy (1879), 65 Ind. 229 ; Etzler v. Evans (1878), 61 Ind. 56 . In a second appearance of Sinclair, in which the petition for rehearing was denied, this Court declared "... and it is held without deviation in this state that the record of an instrument not entitled to be recorded, as for want of acknowledgment, is not notice for any purpose, at least where not actually seen of record." Sinclair v. Gunzenhauser (1913), 179 Ind. 78, 135-36 , 100 N.E. 376 , 378. See also Rogers v. City of Evansville (1982), Ind.App., 487 N.E.2d 1019 , trans. denied; Haverell Distributors Inc., v. Haverell Manufacturing Corp. (1944), 115 Ind.App. 501 , 58 N.E.2d 372 , trans. denied; Starz v. Kirsch (1922), 78 Ind. App. 481 , 186 N.E. 36 ; Bledsoe v. Ross (1915), 59 Ind. App. 609 , 109 N.E. 53 , rek. denied; Guyer v. Union Trust Co. of Indianapolis (1914), 55 Ind.App. 472 , 104 N.E. 82 ; Kothe v. Krag-Reynolds Co. (1898), 20 Ind.App. 293 , 50 N.E. 594 .
The precise question certified to us was decided in United States v. Lake County Farm Bureau Cooperative Association, Inc. (N.D.Ind.1962), 205 F.Supp. 808 . The action was by a chattel mortgagee against the buyer of mortgaged property. The issue concerned Burns Indiana Statutes Annotated (pocket supplement) § 49-8249, which is the same statute before us now designated as Ind.Code § 86-2-11-15(b). The District Court held that the Indiana recorded chattel mortgage was not constructive notice to a person who bought mortgaged property, where it did not contain the name of the person who prepared the document, and the Indiana Statute required such notation before instruments could be accepted for recording. Judge George Beamer held that "... the filing of the mortgage in violation of the statute was a nullity and that no constructive notice of the Plaintiff's lien was thereby given to the Defendant." Id. at 810.
Appellant Halliburton argues that the only reason for the requirement of noting the preparer on the instrument is to guard against the unauthorized practice of law and that, therefore, to give the strict interpretation urged by Appellee Sandy Ridge would be impractical and unreasonably burdensome. It would be presumptuous of us, however, to attempt to determine the purpose of the legislation absent any ambiguities in its meaning. Where the intention of the Legislature is clear and unambiguous, *673 we are not at liberty to adopt a construction that fails to give effect to such intent. St. Germain v. State (1977), 267 Ind. 252 , 369 N.E.2d 931, 933 ; State v. LaPorte Superior Court No. 1 (1973), 259 Ind. 647 , 291 N.E.2d 355, 356 .
We further note that although chapter 11 was recently amended, no changes were made within § 36-2-11-15. Also significant is Ind.Code § 36-2-11-16, which provides additional requirements qualifying an instrument for recordation and which was amended in 1986. Section 836-2-11-16(f) states, "[aln instrument received and recorded by a county recorder is conclusively presumed to comply with this section." Ind.Code Ann. § 36-2-11-16(f) (West Supp. 1986). The Legislature has clearly demonstrated its intention that failure to comply with one or all of the requirements of § 36-2-11-16 will not invalidate the instrument for recordation. It is meaningful that a similar provision is absent from § 36-2-11-15, especially in light of the fact that the two sections are within chapter 11. The Legislature has drawn no distinction between the requirements, previously cited herein, that an instrument may not be recorded unless it is acknowledged, bears a seal, indicates payment of taxes, and bears on its face the name of the preparer. In contrast is § 36-2-11-16, which sets out additional requirements for recordation and further states that the instrument will be presumed to comply with the section if in fact received and recorded. The intention of the Legislature is clear and unambiguous here. This Court must give effect to such intent.
I would therefore answer the Certified Question in the negative.
GIVAN, J., concurs.