certificate of the

§ 318. Certificate to be recorded. The acknowledgment or proof of the execution of an instrument, and the certificate authenticating the signature or seal of the officer so certifying, or both, if required, must be recorded together with the instrument so acknowledged or proved; otherwise neither the record of the instrument nor a transcript thereof can be read in evidence.

Formerly section 267, Real Property Law of 1896, chapter XLVI, General Laws:

267. Certificate to be recorded. The certificate of the acknowledgment or proof of the execution of an instrument, and the certificate authenticating the signature or seal of the officer so certifying, or both, if required, must be recorded together with the instrument so acknowledged or proved; otherwise neither the record of the instrument nor a transcript thereof can be read in evidence.6%

Section 267 was formerly 1 Revised Statutes, 759, section 20:

§ 20. The certificate of the proof or acknowledgment of every conveyance, and the certificate of the genuineness of the signature of any judge or commissioner, in the cases where such last mentioned certificate is required, shall be recorded, together with the conveyance, so proved or acknowledged; and unless the said certificates be so recorded, neither the record of such conveyance, nor the transcript thereof, shall be read, or received in evidence.7

Observation on Section. This section not only furnishes a mandate to the recording officer to record the certificates on conveyances, but it also prescribes the penalty for a failure to record certificates on such conveyances, viz., that it disentitles the record to be read in evidence.

How far the omission to record a certificate may destroy the effect of a deed, otherwise duly recorded and indexed, as constructive notice to subsequent purchasers, presents quite a different question, and one that ought not to be speedily dismissed as adjudicated.8

A conveyance, which is improperly executed, although valid inter partes and in fact recorded, has been held to be inoperative as notice, so strict is the statute.

6% Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

7 Cf. Laws of 1818, p. 44, § 5; 1 R. S. 759, § 20; repealed by chap. 547, Laws of 1896.

8 Dingley v. Bon, 130 N. Y. 607: but see above, pp. 939, 987, 988; Armstrong v. Combs, 15 App. Div. 246; 8291, Real Prop. Law.

9 Irving v. Campbell, 121 N. Y. 353; 8 291, Real Prop. Law, supra.

§ 319. Time of recording. The recording officer must make an entry in the record, immediately after the copy of every instrument recorded by him, stating the hour, day, month and year, when it was recorded, and must indorse upon every such instrument a certificate, stating the time as aforesaid, when, and the book and page where, the same was recorded.

Formerly section 268, Real Property Law of 1896, chapter XLVI, General Laws:

§ 268. Time of recording. The recording officer must make an entry in the record, immediately after the copy of every instrument recorded by him, stating the hour, day, month and year, when it was recorded, and must indorse upon every such instrument a certificate, stating the time as aforesaid, when, and the book and page where, the same was recorded.10

Section 268 was formerly 1 Revised Statutes, 760, section 25:

25. The recording officer shall make an entry in the record, immediately after the copy of every conveyance recorded, specifying the time of the day, month and year, when the said conveyance was recorded, and shall indorse upon every conveyance recorded by him, a certificate, stating the time as aforesaid, when, and the book and page where, the same was recorded.11

Comment. This legislation is supplemental to that which affords priority of rights to those who obtain priority of record. That priority of record confers priority of lien is, however, subject to many exceptions before denoted, under the various sections of this article.

Instruments Simultaneously Executed. Instruments executed at the same time, intended to be equal liens, obtain no preference over one another by reason of priority of record.12

Purchase-Money Mortgages. Even a purchase-money mortgage may not prevail over a conveyance first recorded.13

The former understanding, that the law does not take notice of fractions of days, although equity may, is entirely abrogated by the Recording Acts, and in many instances a few seconds priority of record will now confer priority of right on a bona fide purchaser for value, in all the courts of the State.

10 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

11 Cf. I R. L. 370, § 5; 1 R. S. 760, 25, is repealed by chap. 547, Laws of 1896.

12 Supra, p. 943; Greene v. Warnick, 64 N. Y. 220.

13 Supra, pp. 941, 942; Lane v. Nickerson, 17 Hun, 148.

§ 320. Certain deeds deemed mortgages. A deed conveying real property, which, by any other written instrument, appears to be intended only as a security in the nature of a mortgage, although an absolute conveyance in terms, must be considered a mortgage; and the person for whose benefit such deed is made, derives no advantage from the recording thereof, unless every writing, operating as a defeasance of the same, or explanatory of its being desired to have the effect only of a mortgage, or conditional deed, is also recorded therewith, and at the same time.

Formerly section 269, Real Property Law of 1896, chapter XLVI, General Laws:

§ 269. Certain deeds deemed mortgages.- A deed conveying real property, which, by any other written instrument, appears to be intended only as a security in the nature of a mortgage, although an absolute conveyance in terms, must be considered a mortgage; and the person for whose benefit such deed is made, derives no advantage from the recording thereof, unless every writing, operating as a defeasance of the same, or explanatory of its being desired to have the effect only of a mortgage, or conditional deed, is also recorded therewith, and at the same time.14

Section 269 was formerly 1 Revised Statutes, 756, section 3:

§ 3. Every deed conveying real estate, which, by any other instrument in writing, shall appear to have been intended, only, as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage; and the person for whose benefit, such deed shall be made, shall not derive any advantage from the recording thereof, unless every writing, operating as a defeasance of the same, or explanatory of its being designed to have the effect only of a mortgage, or conditional deed, be also recorded therewith, and at the same time.15

Note on this Enactment. The substance of this section dates from the year 1774.16 A similar provision was enacted in 1801 - “An act concerning Mortgages "17— and re-enacted in 1813.18 Thence it passed into the Revised Statutes,19 and finally into the 269th section of the Real Property Law of 1896.

14 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

15 Repealed, chap. 547, Laws of 1896.

16 Chap. 39, Laws of 1774.

17 Chap. 156, Laws of 1801; 1 K. &

R. 480, 3. See Clute v. Robinson, 2 Johns. 595, on this act.

181 R. L. 372, § 3; Laws of 1822, p. 262, § 3. See White v. Moore, 1 Paige, 551, 553; Brown v. Dean, 3 Wend. 208, on this act.

19 I R. S. 756, § 3.

Record must Follow Statute.

As registration or recording is notice only by virtue of some statute, the statute must be strictly followed to be effective.20

Effect of Deed, Absolute on its Face, Inter Partes and as to Third Persons. If an absolute conveyance is intended as security, it is a mortgage, nevertheless.21 And this fact may, in some instances, be proved by oral evidence,22 notwithstanding the instrument is recorded as a deed. But where a deed, absolute on its face, is accompanied by a separate defeasance or by some conditional bye-agreement, showing that the deed was intended as security, both must be recorded as a mortgage to protect the holders of such security against the claim of subsequent bona fide purchasers from the mortgagor.23 But not every such conditional agreement is a defeasance, which brings a deed within this section, and requires both to be recorded as a mortgage.24

The Record of an Agreement. The prior record of an agreement operating as an estoppel will not always prevail over a subsequent mortgage from the same person who made the agreement.25

20 James v. Morey, 2 Cow. 246, revg. James v. Johnson, 6 Johns. Ch. 417; Irving v. Campbell, 121 N. Y. 353.

21 Clark v. Henry, 2 Cow. 324; Dey v. Dunham, 2 Johns. Ch. 182, 189; Kraemer v. Adelsberger, 122 N. Y. 467; Weed v. Stevenson, Clarke Ch. 166; Mooney v. Byrne, 163 N. Y. 86; Reich v. Dyer, 91 App. Div. 240; 180 N. Y. 107, 113; Faulkner v. Cody, 45 Misc. Rep. 64; Bradt v. McClenahan, 118 App. Div. 768; Graves Elevator Co. v. Seitz, 54 Misc. Rep. 552; Conover v. Palmer, 123 App. Div. 817; Dickinson v. Oliver, 195 N. Y. 238.

22 Cook v. Eaton, 16 Barb. 439; Ensign v. Ensign, 120 N. Y. 655; Horn v. Keteltas, 46 id. 605; Spencer v. Richmond, 4 App. Div. 481; Farmers & Mechanics' Bank v. Smith 61 id. 315; Murray v. Sweasy, 69 id. 45, 51,

23 Grimstone v. Carter, 3 Paige, 421; Stoddard v. Rotton, 5 Bosw. 378; The Bank for Savings v. Frank, 45 N. Y. Super. Ct. 404; Warner v. Winslow, I Sandf. Ch. 430; Weed v. Stevenson, Clarke Ch. 166; Purdy v. Huntington, 42 N. Y. 334, 343; Westfall V. Westfall, 16 Hun, 541; Howells v. Hettrick, 13 App. Div. 266; Abraham v. Mayer, 7 Misc. Rep. 250; Hoschke v. Hoschke, 42 id. 125; and see cases cited, supra, under 8 315, Real Prop. Law.

Record of Assignment of Mortgage. An assignment of a mortgage need not be recorded as against a subsequent purchaser of the premises, but only as against a subsequent purchaser of the mortgage itself.20

26 Supra, p. 941; Curtis v. Moore, 152 N. Y. 159; Gibson v. Thomas,

85 App. Div. 243; 180 N. Y. 483; and infra, p. 1027.