dissenting.
We dissent for the following reasons among others.
I. Our system of registration of titles is wholly the creature of statute. The registering officer is purely a statutory officer. He has only statutory duties which of course he must perform carefully and faithfully. The statute requires the register of deeds to minute on the instrument to be recorded the day and time of day when received. R. S., ch. 7, § 15. It does not require him to minute such time, or any time, on the page where the instrument is eventually recorded. The majority opinion concedes this, but proceeds to add that duty to his statutory duties. This seems to us legislation, which the constitution forbids the court to undertake.
The Legislature has required the town clerk, as a registering officer of chattel mortgages, to note the time on the record as well as on the instrument. It. S., ch. 91, § 2. ft has made no such requirement of the register of deeds. There is no presumption that this omission *228in the case of the register of deeds was unintentional, but if it be a casus omissus and much inconvenience and loss must result unless the omission be supplied, it is for the Legislature, and not for the court, to supply it. Parsons v. Copeland, 33 Maine, 370, 375. A general custom of registers of deeds to note upon the page of the record the time when recorded is assumed without evidence, but such a custom, if it exists, cannot make a statute nor add to one. Suppose this register to be indicted for this omission, will the court convict and punish him criminally because of the custom of other registers, without any statute? Can other registers make a law to convict him?
II. The register of deeds was authorized by the statute to record this notice of foreclosure if filed within thirty days from its last publication. For him to record it if filed after that thirty days would be an unauthorized and unlawful act. DeWitt v. Moulton, 17 Maine, 418. The notice was recorded and there is nothing showing it to have been unlawfully recorded.
The ancient and favored rule is omnia rite acta praesumuntur. It has been repeatedly applied by this court to sustain interests otherwise imperilled by acts or omissions of public officers. Treat v. Orono, 26 Maine, 217; Shorey v. Hussey, 32 Maine, 579; Blanchard v. Dow, 32 Maine, 557; Pratt v. Pierce, 36 Maine, 448; McClinch v. Sturgis, 72 Maine, 468; Snow v. Weeks, 75 Maine, 105, 108; Maxcy v. Bowie, 96 Maine, 435. The majority of opinion, however, holds in effect that it must be presumed, not only prima facie but conclusively, that the record was unlawfully made, and that the register was guilty of an illegal act. No authority is cited in support, and we think none can be found.
III. The report of the case shows that the mortgagee in fact did all that the statute required .of him to perfectly foreclose the mortgage. He caused the proper notice to be published in the proper newspaper, and within thirty days after its last publication furnished to the register of deeds a copy thereof to be recorded, and the register “received” it for record within that time. There was nothing more for the mortgagee to do, or that he could do. The register *229Avas not liis agent. The State then took charge of the procedure through its oavu agent, or officer, the register. The report authorizes us to assume that the register minuted on the copy of notice furnished him, the time Avhen it Avas received, and hence Avhen to “be considered as recorded.” The only slip by anybody, according to the report, Avas the omission to also minute on the record the time Avhen received, if that be a slip. This slip Avas not that of the mortgagee nor of his agent, but solely that of the State’s officer, the register.
We think reason and authority both hold that the mortgagee having fully complied Avith the State’s requirements should not suffer from a subsequent omission of the State’s officer, but that the consequences should fall on the searcher, Avho after all only relies on such visible omission to establish his oAvn title. We are to assume, as above stated, that the register minuted upon the copy of the copy of the notice the time Avhen received for record. In Gillespie v. Rogers, 146 Mass. 610, 612, the court declared the 1¿av as folloAvs : “If the recording officer places upon it (the instrument to be recorded) his certificate that it has been so received, even though he afterwards fails in his duty, by recording it inaccurately, by omitting material portions of it, or even by altogether suppressing it from the records, yet in contemplation of laAV the whole Avorld has constructive notice of it, just the same as if it had been accurately copied in full upon the records. It is obvious that, under this rule, one searching the records may fail to find all that is necessary for his protection; but nevertheless he Avill be bound.” See cases cited in that opinion, especially Sykes v. Keating, 118 Mass. 517, 519; also see Monaghan v. Longfellow, 81 Maine, 278; Maxcy v. Bowie, 96 Maine, 435; Lewis v. Hinman, 56 Conn. 55; People v. Bristol, 35 Mich. 28; Nichols v. Reynolds, 1 R. I. 30; Chase v. Bennett, 58 N. H. 428; Mutual Life Ins. Co. v. Dake, 87 N. Y. 217; Bigelow v. Topliff, 25 Vt. 273; Steam Stone Cutter Co. v. Sears, 23 Fed. Rep. 313; Lytle v. Arkansas, 9 How. (U. S.) 314; 1 Devlin on Deeds, 686. All the above cases and many others sustain the doctrine that the person seasonably filing the instrument for record is protected, and the consequences of the recording officer’s subsequent omissions fall upon the searcher of the records. Only one case is cited in the *230majority opinion on this point, Hill v. McNichol, 76 Maine, 314, in which there was not an omission, something left out, as here, but a complete record apparently full and correct, with nothing to suggest to the searcher any error or incompleteness. In the case at bar, the incompleteness was apparent and it was also apparent that the incompleteness was the error of the register. Even if it could not be presumed that the record was in fact seasonably made nothing appearing to the contrary, the record was made and was visible. It put the searcher upon inquiry if he doubted whether seasonably made. He should not base his title on such an omission.
The effect of the majority opinion is to deny the citizen, without fault of his, an acknowledged legal right earned by his full performance of every legal duty imposed upon him, and though not necessary to protect the rights of innocent third parties. This seems to us an injustice which could be easily avoided by a reasonable application of approved legal principles.