We have confined our consideration of this case to the questions argued by the appellant, namely, those relating to the charge for recording deeds, and those for searches. The fee provided by statute for recording instruments of all kinds is ten cents for each folio (2 R. S., 639, § 30), and the taking any greater fee or reward for such service is a misdemeanor. (Id., 650, §§ 5-7.) It clearly appears that there was an overcharge in this particular, and the referee properly disallowed the same. Any agreement in violation of the statutes cited would be void. Nor can the statutes be evaded by means of an account stated, for that would be only evidence of an illegal agreement, which the court cannot sanction or tolerate. With respect to the fees for searches the law is not so clear. We agree with the referee, that the fees of county clerks for searches, not required in foreclosure cases, are governed by the Revised Statutes, and not by the act of 1840 (chap. 342), as was held, by the late Supreme Court, in Trustees v. Van Horn (3 Den., 171). The title of a statute, though forming no part of it, may be resorted to fbr the purpose of limiting itá application. (Bishop v. Barton, 9 S. C. [2 Hun], 436, and cases cited ; Jones v. Sheldon, 50 N. Y., 477.) The title of the act of 1840 shows that the intept of the legislature in enacting the statute of 1840 was merely to accomplish a reduction of the expenses of foreclosing mortgages, and its operation should-be restricted accordingly.
The provisions of the Revised Statutes on this subject give to a county clerk “ for searching the records in his office, or the records of mortgages deposited in his office by loan officers and commissioners of loans, or the dockets of judgments, for each year, five cents. We are of opinion that the just interpretation of this language is, that it entitles the clerk to charge for each year embraced in every record which he is authorized to keep, and which he is required to search. It is his duty to provide different sets of books for the recording of deeds and mortgages and other papers, documents, etc. (1 R. S., 756, § 2, 376, § 53.) The right to receive a fee for performing any service carries with it the corresponding duty of performing the service on payment of the fee, and this duty is now enjoined upon the clerk by statute. (Laws of 1847, chap. 470, § 40 ; 4 Edm. Stat., 588.) The duty is “ to search records when
It was suggested, on the argument, that the construction we have put upon the statute might lead to an abuse of it by the clerk’s multiplying the books in which records are kept; as, for example, by keeping a record of warranty deeds, another of quit-claim deeds, and so on. But such an apprehension is not well founded. There can be only one record of deeds, mortgages and other homogeneous instruments, no matter in how many books they may be contained.
The judgment must be reversed, and a new trial granted, with costs to abide the event.
Ordered accordingly.