Sec. 25 was amended February, 1864 (Stats. 1864, 85), so as to read "and subsequent purchasers, mortgagees and lien holders shall be deemed to purchase and take with notice." What kind of lien holders? Was it the intention to protect encumbrancers and lien holders of all kinds against unrecorded deeds! It would seem so, yet the purpose is but half expressed. The new section (26) has not been amended so as to declare the further and final effect of want of recording as against lien holders. A lien holder is not a "purchaser," within Sec. 26, nor the lien a "conveyance," within Sec. 36. There is unnecessary incongruity in our .laws upon this subject. There are three classes protected against unrecorded instruments: 1. Purchasers and mortgagees in good faith, under Secs. 2. Lien holders (doubtful) under Sec. 25, as amended. Why should one effect be given to an unrecorded deed There is no good reason why all these transfers, whether of real or personal property, where certain evidences of them are required to be public in order to protect the public, should not have the same effect-all void against creditors, lien holders, mortgagees and purchasers, or all void as against any of them which might be specified. Uniformity is most desirable. In Virginia, and in some other States, an unrecorded deed is void as against creditors. We do not propose to change the law in this particular, but we do propose to give certainty by making an unrecorded instrument void as against subsequent purchasers and encumbrancers, and leave the Legislature to further consider the question of uniformity, as between transfers of real and personal property, as to unrecorded real instruments and undelivered personal property. The intention of this article is to make the public records the evidence of ownership of real property, and to protect, equally and by the same rules, purchasers and mortgagees in good faith and for value; also, creditors, after acquiring a specific lien by attachment or levy of execution, or a general lien by docketed judgment; also, mechanics' liens and others. SEC. 1213. Any person interested in real property may have an action in the District Court against any or all persons claiming right or title to such property in contravention of his claim of title, whether such claim arises from the effect of recording laws or otherwise, or whether he is in or out of possession of the property. In such case, the person in possession must be made a party. [New section.] NOTE. To be transferred to the Code of Civil Procedure. ARTICLE IV. In what office. Instrument, when deem. MODE OF RECORDING. SECTION 1217. In what office. 1218. Instrument, when deemed recorded. 1219. Books of record. 1220. Duties of Recorder. 1221. Transfers of vessels. SEC. 1217. Instruments entitled to be recorded under this chapter must be recorded by the County Recorder of the county in which the real property affected thereby is situated. SEC. 1218. N. Y. C. C., Sec. 512. An instrument is deemed recorded when ed recorded. duly acknowledged or proved, certified and deposited in the Recorder's office, with the proper officer, and by him filed for record, by noting thereon such filing, with the minute, hour, day and year thereof, and subscribing the Books of record. Duties of Transfers of vessels. same. [New section.] Based on "Recorder of County," Secs. 16, 17. SEC. 1219. Grants, absolute in terms, and not intended as mortgages, or as securities in the nature of mortgages, are to be recorded in one set of books, and mortgages and securities in another. N. Y. C. C., Sec. 513. SEC. 1220. The duties of County Recorders, in respect to recording instruments, are prescribed by the POLITICAL CODE. SEC. 1221. The mode of recording transfers of ships registered under the laws of the United States, is regu lated by Acts of Congress. N. Y. C. C., Sec. 515; Stats. 1868, 111. CHAPTER V. UNLAWFUL TRANSFERS. SECTION 1227. Certain instruments void against purchasers, etc. mutual. 1229. Power to revoke, when deemed executed. 1230. Same. 1231. Other provisions. instruments void against purchasers, etc. SEC. 1227. Every instrument, other than a will, affect- Certain ing an estate in real property, including every charge upon real property, or upon its rents or profits, made with intent to defraud prior or subsequent purchasers thereof, or encumbrancers thereon, is void as against every purchaser or encumbrancer, for value, of the same property, or the rents or profits thereof. N. Y. C. C., Sec. 535; "Fraudulent Conveyances and SEC. 1228. No instrument is to be avoided under the last section, in favor of a subsequent purchaser or encumbrancer having notice thereof at the time his purchase was made or his lien acquired, unless the person in whose favor the instrument was made was privy to the fraud intended. N. Y. C. C., Sec. 536; "Fraudulent Conveyances and SEC. 1229. Where a power to revoke or modify an instrument affecting the title to, or the enjoyment of, an estate in real property, is reserved to the grantor, or given to any other person, a subsequent grant of or charge upon the estate, by the person having the power of revocation, in favor of a purchaser or encumbrancer for value, operates as a revocation of the original instrument, to the extent of the power, in favor of such purchaser or encumbrancer. N. Y. C. C., Sec. 537; "Fraudulent Conveyances and SEC. 1230. Where a person having a power of revocation, within the provisions of the last section, is not entitled to execute it until after the time at which he makes such a grant or charge as is described in that section, the Other provisions. power is deemed to be executed as soon as he is entitled N. Y. C. C., Sec. 538; "Fraudulent Conveyances and SEC. 1231. Other provisions concerning unlawful transfers are contained in Part II, Division Fourth, of this Code, concerning the special relations of debtor and cred itor. N. Y. C. C., Sec. 541. TITLE V. HOMESTEADS. CHAPTER I. GENERAL PROVISIONS RELATING TO HOMESTEADS. Homestead, what consti exemption. CHAPTER I. GENERAL PROVISIONS RELATING TO HOMESTEADS. SECTION 1237. Homestead, what constitutes, and its exemption. 1239. Debts from which homestead is not exempt. 1240. Conveyances, mortgages, etc., how executed, acknowledged and recorded. 1241. Homestead, how abandoned. 1242. Proceedings when homestead is claimed to exceed the amount of exemption. 1243. How property disposed of on report of appraisers. 1244. Fees, when the claimant to pay and when the judgment creditor. 1245. Official duties, how enforced. 1246. Who may acquire homesteads, and of what value. SEC. 1237. The homestead consists of a quantity of tutes and its land or town lots, with the dwelling house or portion of a dwelling house thereon, and its appurtenances, selected and recorded as in this Title provided, and is not subject to sale under execution or any final process from any Court for any debt or liability contracted or incurred by the party entitled thereto, and who selected and recorded Const., Art. XI, Sec. 15; Stats. 1851, 296, Sec. 1; 1860, SEC. 1238. The homestead may be selected by, or ad. measured to, the claimant, from any property, the title to which is vested in the claimant or husband of the claimant, or from community property of the husband and wife, or from any property owned by the claimant or husband of the claimant, as joint tenant, tenant in common or coparcener, to the extent of such interest, when the claimant, or the claimant's husband, is in exclusive. occupation of such property or the portion claimed as a homestead. Being selected and recorded as a homestead does not in any manner affect or prevent partition of the property among the owners in any method authorized by law. Stats. 1867-8, 116, Secs. 1, 3. SEC. 1239. The homestead is liable for and subject to sale under execution or other process, for the payment of the debts and liabilities following, to wit: 1. Mechanics', laborers' and vendors' liens, legally obtained. 2. Mortgages for the purchase money. 3. Mortgages for money loaned, when executed and acknowledged by the busband and wife, and recorded as provided in this chapter. 4. Mortgages executed and acknowledged by the debtor alone, who has no wife, or whose wife was a non-resident of the State at the time, or before, the homestead was recorded. 5. A judgment rendered and recorded against a debtor before he recorded his homestead. 6. A debt or liability contracted or assumed before filing his homestead, by one being neither a husband nor wife, nor the head of a family. [New section.] SEC. 1240 Stats. 1851, 296, Sec. 2; 1860, 89, Sec. 9; 1860, 311, Sec. 2; 1862, 519, Sec. 2; Sears vs. Dixon, 33 Cal., 326; No alienation, sale, conveyance, or mortgage upon the homestead, is valid or effectual for any pur Homestead, property from what may be taken. Debts from which home stead is not exempt. |