provision for the ascertainment and collection of the compensation.10

By a number of decisions it is held that the owner of the land has a lien for the amount of the compensation, either by force of the specific statutory provisions, or by analogy to a vendor's lien for the purchase price.11 Such decisions Beem necessarily to imply that the ownership of the land has passed by the condemnation proceeding, since one cannot usually have a lien on his own land.

10 Sweet v. Rechel, 159 U. S. 380; Ballou v. Ballou, 78 N. Y. 325; City of Pittsburgh v. Scott, 1 Pa. St. 309.

11 Organ v. Memphis & Little Rock R. Co., 51 Ark. 235; Kittell v. Missisquoi R. Co., 56 Vt. 96; Bridgman v. St. Johnsbury & L. C. R. Co., 58 Vt. 198; Drury v. Midland R. Co., 127 Mass. 571; Lycoming Gas & Water Co. v. Moyer, 99 Pa. St. 615; In re New York, W. S. & B. Ry. Co., 94 N. Y. 287; Frelinghuysen v. Central R. Co. of New Jersey, 28 N. J. Eq. 388; Gillison v. Savannah & C. R. Co., 7 Rich. (S. C.) 173; Provolt v. Chicago, R. I. & P. R. Co., 69 Mo. 633; New Bedford R. Co. v. Old Colony R. Co., 120 Mass. 397; 2 Lewis, Eminent Domain, 620.

Real Prop.

(1078)

CHAPTER XXXI.

NOTICE, PRIORITY, AND RECORDING.

475. The equitable doctrines.

476. The recording acts.

477.

Sufficiency of record.

478. Persons affected with notice by record.

479. Notice as substitute for recording.

480. Notice from possession.

481. Notice from statements in instruments of title. 482.

Purchasers under particular classes of conveyances.

483. Purchasers for value.

484.

Purchasers with notice from purchasers without notice. 485. Purchasers without notice from purchasers with notice. 486. Purchasers at execution sales.

487. Lis pendens.

Any conflict arising in connection with particular land, as between persons claiming under different conveyances by the same person, is ordinarily determined by the doctrine of notice, one acquiring title for value being entitled to assert his claim as against a claim which had previously accrued in favor of another, provided he did not have notice of such prior claim, and not otherwise.

A subsequent purchaser may have actual notice of a prior instrument vesting rights in another, or he may have constructive notice thereof, by reason of the record of such instrument under the recording acts, from the possession of the land by one claiming under such instrument, or from any other facts reasonably calculated to put him on inquiry as to such adverse claim.

That the record of an instrument may affect a subsequent purchaser with notice, the record must be in conformity to law, and the instrument must usually have been acknowledged.

Notice to a subsequent purchaser sufficient to postpone his

claim to one under a prior instrument may arise from the fact that his agent has notice of such instrument.

One having constructive notice of an instrument by reason of its record is charged with notice of whatever is contained in such instrument, or is referred to therein.

In some states, but not in all, a subsequent purchaser cannot claim as against a prior instrument, although this be unrecorded, unless his own conveyance be recorded.

A purchaser under a quitclaim deed cannot, in some states, claim priority as against a prior conveyance, although the latter be unrecorded, and he has no notice thereof.

One who acquires rights in land otherwise than for a valuable consideration takes subject to all prior instruments affecting the land.

If one acquires land free from an adverse claim because without notice thereof, one to whom he sells the land takes it in the same condition, unless his vendor originally acquired the land from him.

By the doctrine of "lis pendens," one acquiring land, pending litigation in regard thereto, from one of the parties to the litigation, usually takes it subject to the results of the litigation.

475. The equitable doctrines.

Apart from the recording acts, hereafter to be discussed, and certain statutes in reference to fraudulent conveyances,' transfers of the legal title to land rank, between themselves. according to priority in time,—that is, if an owner of land transfers a legal estate to one person, a subsequent attempted transfer of a legal estate of the same or a less quantum to another person necessarily conveys nothing, because the transferrer has nothing to convey. Moreover, apart from statute, one who obtains the conveyance of the legal title for value, and without notice of a prior equity of any sort, takes

Post, 461, 462.

free from that equity, whether it be a trust, an equitable lien, or any other right enforceable in equity alone.2

As between interests or claims of a purely equitable character,—that is, enforceable in equity alone,—while, as a general rule, they will be ranked according to the time of accrual, this is by no means always so, equity frequently postponing an earlier to a later claim, the rule being that only as between equal equitable claims, or "equities," as they are usually called, will priority of time give priority of right. Consequently, the equity prior in time may be deferred from considerations of the respective natures of the two equities, as when a mere gift is postponed to a subsequent trust or lien created for a valuable consideration. Likewise, the equity prior in time may be postponed because the person entitled thereto was guilty of fraud or negligence. Finally, a court of equity may, under certain peculiar circumstances, refuse to enforce a claim, though prior in time, as against the holder of a title or claim subsequently obtained, on the ground that the holder of the latter is a "purchaser for value without notice," that is, that he obtained his right not only by paying value, but without notice of the prior equity.

While the absence of notice may have the effect of preventing the enforcement of an equity as against the holder of the subsequent equity, courts of equity have also adopted and unfailingly enforced the rule that, if the holder of the subsequent equity, even though he be a purchaser for value,

a 2 Pomeroy, Eq. Jur. § 767; Fahn v. Bleckley, 55 Ga. 81; Warnock ▼. Harlow, 96 Cal. 298, 31 Am. St. Rep. 209; Gray v. Coan, 40 Iowa, 327; Hoult v. Donahue, 21 W. Va. 294; Carlisle v. Jumper, 81 Ky. 282.

• Snell, Principles of Eq. (4th Ed.) 23-42; 2 Pomeroy, Eq. Jur. §§ 591-785. This latter work, containing, as it does, a most admirable discussion of the equitable doctrines above referred to, and also of their modification by the recording acts, has furnished much of the material for this chapter.

does, at the time of obtaining such equity, have notice of the prior equity, he takes subject thereto.

The equitable rule just referred to, by which one who takes an interest with notice of a prior equity takes subject thereto, is not confined to the case of a purchaser of an equity, but is also applied as against a purchaser of the legal title with notice of a prior equity,—that is, it is a general rule in equity that one who takes an interest with notice of an outstanding adverse interest takes subject thereto.

§ 476. The recording acts.

The rule above referred to, that, as between conveyances of the legal title, the first in time must prevail, has been entirely changed by the recording acts, which exist in every state, and which provide in effect that a conveyance or mortgage of land, and frequently any other instrument affecting land, shall not, as against a subsequent conveyance or mort gage in favor of a purchaser for value, be valid, unless it is filed for record in a public record office. Usually this requirement of record is for the protection of subsequent purchasers only, and the failure to record the instrument in no way affects the passing of the title as between the parties.*

The construction placed by the courts upon the recording acts has been in effect to make the record of an instrument in accordance with the act equivalent to notice, to every subsequent purchaser, of the existence and contents of the instrument, irrespective of whether he actually examines the

4 See 1 Stimson's Am. St. Law, § 1611 (B); Warnock v. Harlow, 96 Cal. 298, 31 Am. St. Rep. 209; Shirk v. Thomas, 121 Ind. 147, 16 Am. St. Rep. 381; Wood v. Chapin, 13 N. Y. 509, 67 Am. Dec. 62; McLaughlin v. Ihmsen, 85 Pa. St. 364.

In Maryland, the instrument must be recorded to pass title. Nickel v. Brown, 75 Md. 172. And so record may be required in order to give validity to a particular conveyance, as one by a married woman. Rorer's Heirs v. Roanoke Nat. Bank, 83 Va. 589.