records so as to obtain such information; the recording acts being thus in effect made to involve an application and extension of the pre-existing doctrine that a purchaser with uotice of a prior right takes subject to such right.

Though by some of the earlier decisions the record of an quitable title was not regarded as sufficient to affect a subsequent purchaser with notice thereof, the rule is now generally settled otherwise, sometimes by express statutory provision, and consequently a purchaser of a title, legal or equitable, takes subject to an instrument, creating or transferring an equity, which has been recorded."

7

In many states the statute requires that a power of attorney shall be recorded in order to render the record of a conveyance made under such power effective as notice to subsequent purchasers. In the absence of such statutory requirement there is no necessity, it seems, of recording the power, since the conveyance puts the purchaser on inquiry as to the authority of the agent or attorney.8 The revocation of a power of attorney is also frequently required to be recorded in order to be valid, if the power itself has been recorded."

The practical effect of the recording acts is that an in

$2 Pomeroy, Eq. Jur. § 649; 2 White & T. Lead. Cas. Eq. 203; Webb, Record of Title, § 4.

• Russell's Appeal, 15 Pa. St. 319, 6 Gray's Cas. 387; General Ins. Co. of Maryland v. United States Ins. Co. of Baltimore, 10 Md. 517, 69 Am. Dec. 174; Edwards v. McKernan, 55 Mich. 520; Wilder v. Brooks, 10 Minn. 50 (Gil. 32), 88 Am. Dec. 49; Herrington v. Williams, 31 Tex. 448; Hunt v. Johnson, 19 N. Y. 279; Tarbell v. West, 86 N. Y. 280; O'Neal v. Seixas, 85 Ala. 80; Fish v. Benson, 71 Cal. 428; Bailey v. Myrick, 50 Me. 171; Smith v. Neilson, 13 Lea (Tenn.) 461; Webb, Record of Title, § 36.

1 Stimson's Am. St. Law, § 1624(10), 1670.

See Anderson v. Dugas, 29 Ga. 440; Valentine v. Piper, 22 Pick. (Mass.) 85, 33 Am. Dec. 715; Wilson v. Troup, 2 Cow. (N. Y.) 195, 14 Am. Dec. 458.

1 Stimson's Am. St. Law, § 1673.

tending purchaser of land may, by reference to the record, determine whether his vendor has previously disposed of any interest in the land, and also ascertain both the person from whom his vendor obtained the land, and whether such person disposed of any interest to a person other than such vendor, and so, in the case of each of the successive owners of the land, determine whether, during the period of his ownership, he created any interest not vested in the present vendor. The names of such successive owners of the land constitute what is usually known as "the chain of title."

Since the recording acts have been construed as charging a purchaser with notice of a recorded instrument, on the theory that, if he exercised proper diligence, he would, by searching the records, discover the existence and terms of such instrument, he has, on the same theory, been held not to be charged with notice when his failure to discover the recorded instrument was not owing to lack of diligence. Accordingly, intending purchasers have been regarded as charged with notice, not of all instruments which appear on the record as affecting the land, but of those only which appear there as having been made by a person in the chain of title,—that is, if there be another and independent chain of title upon the records, a purchaser is not affected with notice of the instruments contained therein, since there is no clue calling his attention to such instruments. For instance, A. purchasing from B. is not affected with notice of a conveyance, previously recorded, from C. to D., unless B.'s title appears on the record to be derived through C.10

10 2 Pomeroy, Eq. Jur. §§ 658, 761; Lumpkin v. Adams, 74 Tex. 97; Blake v. Graham, 6 Ohio St. 580, 67 Am. Dec. 360; Hetherington v. Clark, 30 Pa. St. 393; City of Chicago v. Witt, 75 Ill. 211; Page v. Waring, 76 N. Y. 463; Roberts v. Bourne, 23 Me. 165, 39 Am. Dec. 614.

So, if a conveyance from A. is not recorded, the fact that a conveyance from the grantee therein to another is recorded will not

A purchaser is not, as a general rule, charged with notice of a conveyance which is of record, even though made by a person in the chain of title, unless it was made by such person after the time at which the records show him to have obtained the title,—that is, the purchaser is not bound to search the records to determine whether any particular person in the chain of title, previous to obtaining the title, had done any acts which would affect the title.11 In some states, however, an exception to this rule exists by reason of the application of the rule that an after-acquired title passes by estoppel, it being there held that, when one has made a conveyance which would pass an after-acquired title as against him, it will have the same effect as against a purchaser from him of such after-acquired title, who has no actual notice of the previous conveyance, such purchaser being thus in effect charged with notice of such conveyance by its presence on the records.12 But occasionally the rule as to the passing of an after-acquired title has not been applied as against a purchaser of such title without notice of the previous con

affect with notice a person who subsequently obtains a conveyance from the first grantor. Roberts v. Bourne, 28 Me. 165, 39 Am. Dec. 614; Frank v. Heidenheimer, 84 Tex. 642; Hetherington v. Clark, 30 Pa. St. 393. And so the record of a conveyance of an equitable title from one who has such title only, while notice to a subsequent purchaser of the same title from the same grantor, is not notice to one who purchases from the person who has the legal title. Tarbell v. West, 86 N. Y. 280. Compare Edwards v. McKernan, 55 Mich. 520.

11 Calder v. Chapman, 52 Pa. St. 359, 91 Am. Dec. 163, 6 Gray's Cas. 489; Bingham v. Kirkland, 34 N. J. Eq. 229; Farmers' Loan & Trust Co. v. Maltby, 8 Paige (N. Y.) 361; Page v. Waring, 76 N. Y. 463; Frank v. Heidenheimer, 84 Tex. 642; 2 Pomeroy, Eq. Jur. § 658, p. 914, note 1. See note to Ford v. Unity Church Soc. of St. Joseph, 23 L. R. A. 565.

12 White v. Patten, 24 Pick. (Mass.) 324, 6 Gray's Cas. 486; Ayer v. Philadelphia & Boston Brick Co., 159 Mass. 84; Knight v. Thayer, 125 Mass. 25; McCusker v. McEvey, 9 R. I. 528, 10 R. I. 606; Powers v. Patten, 71 Me. 583; Jarvis v. Alkens, 25 Vt. 635; Tefft v. Munson, 57 N. Y. 97.

veyance, it being regarded as contrary to the purpose and spirit of the recording acts to thus hold him bound, at his peril, to examine the records for conveyances outside of the chain of title, for the sake of protecting a previous purchaser who, through his negligent failure to examine the records, obtained a defective title.18

By statute in many of the states, a purchaser cannot assert his claim as against a prior unrecorded instrument unless he first record his own conveyance. Apart from such

a statutory provision, one may, without recording his conveyance, claim as a purchaser for value without notice as against the prior unrecorded instrument.15

477. Sufficiency of record.

In order that the record of an instrument shall operate as constructive notice to subsequent purchasers, the instrument must be such that its record is authorized. Consequently, if it is not duly executed,18 or if it is not acknowledged or certified as required by law, its record does not

13 Calder v. Chapman, 52 Pa. St. 359, 6 Gray's Cas. 489; Bingham v. Kirkland, 34 N. J. Eq. 229. See Rawle, Covenants, §§ 259-261; Way v. Arnold, 18 Ga. 181; Bennett v. Davis, 90 Me. 457; Salisbury Sav. Soc. v. Cutting, 50 Conn. 113, reporter's note; 2 Smith, Lead. Cas. 848.

141 Stimson's Am. St. Law, § 1611. See Simmons v. Stum, 101 Ill. 454; Clabaugh v. Byerly, 7 Gill (Md.) 354, 48 Am. Dec. 575; Pennsylvania Salt Mfg. Co. v. Neel, 54 Pa. St. 9; Westbrook v. Gleason, 79 N. Y. 23.

15 Coster's Ex'rs v. Bank of Georgia, 24 Ala. 37; Sanborn v. Adair, 29 N. J. Eq. 338; McGuire v. Barker, 61 Ga. 339; Steele's Lessee v. Spencer, 1 Pet. (U. S.) 552; Miller v. Merine (C. C.) 43 Fed. 261; Webb, Record of Title, §§ 13, 166.

10 Carter v. Champion, 8 Conn. 549, 21 Am. Dec. 695; Parret v. Shaubhut, 5 Minn. 323 (Gil. 258), 80 Am. Dec. 424; Van Thorniley v. Peters, 26 Ohio St. 471; Racouillat v. Sansevain, 32 Cal. 376; Pringle v. Dunn, 37 Wis. 449, 19 Am. Rep. 772.

17 Graves v. Graves, 6 Gray (Mass.) 391, 6 Gray's Cas. 401; Heister

operate as constructive notice to subsequent purchasers. Moreover, in order to give priority as against a subsequent purchaser, the instrument must describe the land with sufficient accuracy to enable one examining the record to identify the land.18

An index of the grantors and grantees as named in the recorded conveyance is ordinarily kept in the record office, and the statute frequently so requires.19 In some states the index is in effect part of the record, so that, although the conveyance is recorded, it is not notice to a subsequent purchaser unless it appears correctly on the index.20 In other states a purchaser is bound by the prior conveyance, even though it is not indexed, or is indexed under a wrong name.21

The courts of the different states are divided upon the question as to who must suffer the loss occasioned by an error made by the officer in recording a conveyance deposited with him for record. Some courts hold that a grantee, by lodging the instrument with the proper officer for record,

v. Fortner, 2 Binn. (Pa.) 40, 4 Am. Dec. 417, 6 Gray's Cas. 390; Fryer v. Rockefeller, 63 N. Y. 268; Fleschner v. Sumpter, 12 Or. 161; Raines v. Walker, 77 Va. 92; Bishop v. Schneider, 46 Mo. 472, 2 Am. Rep. 533; Girardin v. Lampe, 58 Wis. 267; Hayden v. Moffatt, 74 Tex. 647, 15 Am. St. Rep. 866; Herndon v. Kimball, 7 Ga. 432, 50 Am. Dec. 406; Cockey v. Milne's Lessee, 16 Md. 200.

18 Bright v. Buckman (C. C.) 39 Fed. 247; Rodgers v. Cavanaugh, 24 Ill. 583; Bailey v. Galpin, 40 Minn. 319; Banks v. Ammon, 27 Pa. St. 172; Chamberlain v. Bell, 7 Cal. 292, 68 Am. Dec. 260. See Carter v. Hawkins, 62 Tex. 393.

19 1 Stimson's Am. St. Law, 1620.

20 Barney v. McCarty, 15 Iowa, 510, 6 Gray's Cas. 413; Lombard v. Culbertson, 59 Wis. 433; Ritchle v. Griffiths, 1 Wash. St. 429, 22 Am. St. Rep. 155.

21 Curtis v. Lyman, 24 Vt. 338, 58 Am. Dec. 174, 6 Gray's Cas. 405; Mutual Life Ins. Co. of New York v. Dake, 87 N. Y. 257; Green ▼. Garrington, 16 Ohio St. 548, 91 Am. Dec. 103; Stockwell v. McHenry, 107 Pa. St. 237, 52 Am. Rep. 475; Bishop v. Schneider, 46 Mo. 472, 2 Am. Rep. 533; Chatham v. Bradford, 50 Ga. 327, 15 Am. Rep. 692; Davis v. Whitaker, 114 N. C. 279.