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 ▼. 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.1

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,16 or if it is not acknowledged or certified as required by law,17 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, 87 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.

22

acquits himself of all responsibility as to the actual recording, and that from that time it is notice to subsequent purchasers of what it contains, and not of what the recording officer may make it show on the record. 23 Other courts hold that subsequent purchasers are bound only by what the record shows, and that the grantee in a conveyance, in order to absolutely guard against mistakes by the recorder, which will jeopardize his rights as against subsequent purchasers, must ascertain that the recording is correctly done."a

§ 478. Persons affected with notice by record.

The recording acts usually in terms require the record of an instrument for the benefit of a subsequent purchaser or incumbrancer only. Consequently, one who has previously acquired an interest in the land, or who is a party to the instrument itself, is not charged with notice of any facts by the record.24 So, a mortgagee of the land need not, except for the purpose of foreclosure, examine the records subse

22 Mangold v. Barlow, 61 Miss. 593, 48 Am. Rep. 84; Mims v. Mims, 35 Ala. 23, 6 Gray's Cas. 409; Merrick v. Wallace, 19 Ill. 486; Lewis v. Hinman, 56 Conn. 55; Gillespie v. Rogers, 146 Mass. 610; Schell v. Stein, 76 Pa. St. 398; Wood's Appeal, 82 Pa. St. 116.

28 Frost v. Beekman, 1 Johns. Ch. (N. Y.) 288, 6 Gray's Cas. 403; Beekman v. Frost, 18 Johns. (N. Y.) 544; New York Life Ins. Co. v. White, 17 N. Y. 469; Miller v. Bradford, 12 Iowa, 14, 6 Gray's Cas. 410; Barnard v. Campau, 29 Mich. 162; Jennings' Lessee v. Wood, 20 Ohio, 261; Sawyer v. Adams, 8 Vt. 172, 30 Am. Dec. 459; Pringle v. Dunn, 37 Wis. 449, 19 Am. Rep. 772; Shepherd v. Burkhalter, 13 Ga. 443, 58 Am. Dec. 523; Gilchrist v. Gough, 63 Ind. 576, 30 Am. Rep. 250; Ritchie v. Griffiths, 1 Wash. St. 429, 22 Am. St. Rep. 155. But as to New York, see Mutual Life Ins. Co. of New York v. Dake, 87 N. Y. 257.

24 Webb, Record of Title, § 163; 2 Pomeroy, Eq. Jur. § 657; Stuyvesant v. Hone, 1 Sandf. Ch. (N. Y.) 419; Stuyvesant v. Hall, 2 Barb. Ch. (N. Y.) 151; Davis v. Monroe, 187 Pa. St. 212, 67 Am. St. Rep. 581; Karns v. Olney, 80 Cal. 90, 13 Am. St. Rep. 101; Corey v. Smalley, 106 Mich. 257, 58 Am. St. Rep. 474; Holley v. Hawley, 39 Vt. 525, 94 Am. Dec. 350.

quent to his mortgage before taking any action in connection with his mortgage. 25

479. Notice as substitute for recording.

The statutes requiring a record of a conveyance in order to make it effective as against a subsequent purchaser have almost invariably been construed as not applying in favor of one who has notice of a prior unrecorded conveyance.26 This seems to be merely a logical result of the construction put upon the recording acts as making record of an instrument equivalent to notice thereof on the part of a subsequent purchaser, since this construction implies that notice otherwise obtained will have the same effect.2 27 In many cases, however, the rule that notice otherwise obtained is sufficient, though the prior instrument was not recorded, is based upon the theory that the taking of a conveyance with the purpose of impairing prior rights of which he has notice constitutes a fraud, this view being adopted from the decisions of the English courts in connection with the local registration acts of that country.28 In many of the statutes it is expressly provided that the conveyance must be recorded only as against

25 George v. Wood, 9 Allen (Mass.) 80, 6 Gray's Cas. 492; Woodward v. Brown, 119 Cal. 283, 63 Am. St. Rep. 108; Heaton v. Prather, 84 Ill. 330; Birnie v. Main, 29 Ark. 591. See post, § 536. So, a Judgment lienor may release part of his lien without first examining the records to see how it will affect other persons. Taylor's Ex'rs v. Maris, 5 Rawle (Pa.) 51.

26 2 Pomeroy, Eq. Jur. § 649; Webb, Record of Title, § 201; 2 White & T. Lead. Cas. Eq. 213; Lamont v. Cheshire, 65 N. Y. 30.

In two states the statute has been construed as so absolutely requiring the record of a mortgage as to make it invalid even as against a subsequent purchaser having actual notice thereof. May. ham v. Coombs, 14 Ohio, 428, 6 Gray's Cas. 441; Home Building & Loan Ass'n of Columbus v. Clark, 43 Ohio St. 427; Quinnerly v. Quinnerly, 114 N. C. 145.

27 2 Pomeroy, Eq. Jur. § 665.

28 2 Pomeroy, Eq. Jur. §§ 659, 660; 2 White & T. Lead. Cas. Eq. 213.