acts were local in operation and confined to particular counties, called “recording counties." 78

It is erroneous to suppose that the registration of conveyances in public offices was peculiar to America. Deeds of bargain and sale were required to be enrolled in the King's courts of record at Westminster by the "Statute of Inrolments." 79 In 1704, Yorkshire, in England, was made a recording county,80 and four years later the great county of Middlesex followed.81 The decisions of the English courts on the effect of these several acts were subsequently very influential in America.82

Section, Supra. As the present section of this act now incorporates a number of sections formerly in the Revised Statutes the decisions bearing upon it are those which were formerly rendered upon the component sections. It is, therefore, necessary to arrange the notes of such decisions in the old order, in conjunction with the appropriate sections of the Revised Statutes.

1 Revised Statutes, 736, Section 114. Referring to I Revised Statutes, 736, section 114, above set forth, as now part of this act, it has been held that every instrument, except a will, in the execution of a power, was a conveyance which must be recorded to protect the estate conveyed against subsequent bona fide purchasers or grantees.83 A recorded power of attorney to convey lands remains in force as to purchaser, in good faith without notice, from the attorney, though the grantor meanwhile conveys the lands by unrecorded deed.84

I Revised Statutes, 736, Section 36. Having reference to 1 Revised Statutes, 736, section 36, now incorporated in this section, the term "real property" or "real estate" includes terms of years beyond

78 See Ist edition of the Revised Statutes, appendix to vol. 3 (pp. 25, 42) for the laws of this State enacted prior to the Revised Statutes. The Colonial laws were all repealed in 1828, Laws of 1828-9, chap. 21, 8 4.

79 27 Hen. VIII, chap. 16; Van Cortlandt v. Tozer, 17 Wend. 338,

344; et supra, pp. 801, 826.

80 2 & 3 Anne, chap. 4. 817 Anne, chap. 20.

82 Jackson v. Burgott, 10 Johns. 457; Dunham v. Dey, 15 id. 555:

Hurst v. Hurst, 2 Wash. Cir. Ct. 69, 74; Lamont v. Cheshire, 65 N. Y. 30, 40.

83 Jackson v. Edwards, 7 Paige, 386, 402; 22 Wend. 498; Belmont v. O'Brien, 12 N. Y. 394, 404; Belden v. Meeker, 47 id. 307; Decker v. Boice, 83 id. 215; Frear v. Sweet, 118 id. 454.

84 Gratz v. Land & River Imp. Co., 82 Fed. 381; and see § 326, Real Prop. Law, and Williams v. Birbeck. Hoff. Ch. 359.

three.85 But while chattels real are personal property, they are not within the purview of the chattel mortgage statutes requiring filing and refiling to preserve the lien as against creditors.86 The Revised Statutes in parts adopted the meaning of the common-law "estates in lands" by including terms of years.87

1 Revised Statutes, 762, Section 37. Referring to 1 Revised Statutes, 762, section 37, above set forth, and now incorporated in this section, the term "purchaser" has been authoritatively decided to include a vendee, in a contract of sale, who has paid the purchase money;88 also, a person who acquires a subsequent mortgage on the faith of a prior "satisfaction-piece," and an assignee of a mortgage.89

1 Revised Statutes, 762, Section 38. Referring to 1 Revised Statutes, 762, section 38, above set forth, the term "conveyance" has been held to include a mortgage;90 an assignment of mortgage;91 a satisfaction of a mortgage ;92 a covenant touching an easement,98 but not a power to assign mortgages or convey.94

85 The Mayor, etc. v. Mabie, 13 N. Y. 151, 158; Ely v. Schofield, 35 Barb. 330, 334; Broman v. Young, 35 Hun, 173, 180; Jokinsky v. Miller, 44 Misc. Rep. 239; Westchester T. Co. v. Hobby Bottling Co., 102 App. Div. 464; People ex rel. Elias Brewing Co. v. Gass, 53 Misc. Rep. 363; 120 App. Div. 147; cf. Westervelt v. The People, 20 Wend. 416.

86 Laws of 1833, chap. 279; Laws of 1892, chap. 677; Booth v. Kehoe, 71 N. Y. 341; State Trust Co. v. Casino Co., 19 App. Div. 344.

87 Supra, pp. 156, 210; Despard v. Churchill, 53 N. Y. 192, 199.

88 Warner v. Winslow, I Sandf. Ch. 430, 438; cf. Boyd v. Schlesinger, 59 N. Y. 301; Hunt v. Johnson, 19 id.

279.

89 Van Keuren v. Corkins, 6 T. & C. 355; Clark v. Clark, 28 Hun, 510; Weaver v. Edwards, 39 id. 233, 235; Larned v. Donovan, 84 id. 533; Decker v. Boice, 83 N. Y. 215, 220; Bacon v. Van Schoonhoven, 87 id. 446; Frear v. Sweet, 118 id. 454;

Douglass v. Miller, 102 App. Div. 94, 96; Gibson v. Thomas, 85 id. 243; 180 N. Y. 483; and see under next section, "purchaser" pp. 938, 946, infra.

90 Decker v. Boice, 83 N. Y. 215; Larned v. Donovan, 84 Hun, 533. 91 Vanderkampf V. Shelton, II Paige, 28; Larned v. Donovan, 84 Hun, 533; Belden v. Meeker, 47 N. Y. 307; The Bank for Savings v. Frank, 45 N. Y. Super. Ct. 404; Briggs v. Thompson, 86 Hun, 607; Davies v. Jones, 29 Misc. Rep. 253; Syracuse Savings Bank v. Merrick, 96 App. Div. 581; revd., 182 N. Y. 387; Gibson v. Thomas, 180 id. 483; and see below, p. 941.

92 Bacon v. Van Schoonhoven, 87 N. Y. 446; Frear v. Sweet, 118 id. 454; Briggs v. Thompson, 86 Hun, 607.

93 Bradley v. Walker, 138 N. Y. 291; and see below, 291, Real Prop. Law.

94 Williams v. Birbeck, Hoff. Ch. 359.

I Revised Statutes, 762, Section 39. Referring to I Revised Statutes, 762, section 39, above set forth, see the case of Boyd v. Schlesinger.9

95

I Revised Statutes, 763, Section 42. Referring to I Revised Statutes, 763, section 42, above set forth, the reader will observe that it was taken from an earlier statute,96 which omitted, however, "original leases in fee." 97 These perpetual leases were probably originally excepted because they were thought to be of lands situated within the precincts of manors, and consequently enrolled in the manor records.98

Recording Officer. This section, in connection with the "General Construction Law," defines "recording officer." 99

95 59 N. Y. 301.

96 Laws of 1823, p. 413, § 5.

97 Note of Revisers to 1 R. S. 763, $42.

98 See above, pp. 190-200.

99 See 290, supra, and § 42, chap. 22, Consolidated Laws of 1909.

§ 291. Recording of conveyances. A conveyance of real property, within the state, on being duly acknowledged by the person executing the same, or proved as required by this chapter, and such acknowledgment or proof duly certified when required by this chapter, may be recorded in the office of the clerk of the county where such real property is situated, and such county clerk shall, upon the request of any party, on tender of the lawful fees therefor, record the same in his said office. Every such conveyance not so recorded is void as against any subsequent purchaser in good faith and for a valuable consideration, from the same vendor, his heirs or devisees, of the same real property or any portion thereof, whose conveyance is first duly recorded.

Formerly section 241, Real Prop. Law of 1896, chapter XLVI, General Laws:

8241. Recording of conveyances.-A conveyance of real property, within the state, on being duly knowledged by the person executing the same, or proved as required by this chapter, and such acknowledgment or proof duly certified when required by this chapter, may be recorded in the office of the clerk of the county where such real property is situated. Every such conveyance not so recorded is void as against any subsequent purchaser in good faith and for a valuable consideration, from the same vendor, his heirs or devisees, of the same real property or any portion thereof, whose conveyance is first duly recorded.1

Section 241 was formerly 1 Revised Statutes, 756, section 1:

81. Every conveyance of real estate, within this state, hereafter made, shall be recorded in the office of the clerk of the county where such real estate shall be situated; and every such conveyance not so recorded, shall be void as against any subsequent purchaser, in good faith and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.2

Comment. It will be observed that section 291 of the Consolidated Laws incorporates with former section 241 of the old Real Property Law of 1896 two lines taken from chapter 572, Laws of 1896, as follows: "and such county clerk shall, upon the request of any party, on tender of the lawful fees therefor, record the same in his said office." With this exception the Consolidated Laws make no change in the re-enacted section.

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

2 Repealed, chap. 547, Laws of 1896.

1 Revised Statutes, 756, Section 1. I Revised Statutes, 756, section 1, above set forth, was the result of many earlier laws on the same subject.3 The legal effect of recording conveyances is entirely due to statutes.1

What Recorded Instruments Operate as Notice. The record of a conveyance or mortgage by one having title at the time operates as notice to all subsequent bona fide purchasers for value.5 But the record of an instrument which does not create, alien, mortgage or assign some interest or estate in real property does not so operate. The record of a conveyance by one having no title is ordinarily a nullity, and so is the record of a deed by one out of possession when property is adversely possessed, and the record of a paper not required to be recorded by law, or the record of a forged deed.10

Effect of Record. The notice given by recording is not retrospective, and does not affect prior titles.11

Object of this Section. The statute is said to have been made to protect innocent purchasers against the frauds of sellers; to prevent those who once had title to land from making successive sales, and thereby defrauding one or more of the purchasers.12 It applies

31 R. L. 369, 372; Laws of 1819, p. 269; Laws of 1821, p. 127; Laws of 1822, pp. 261, 284; Laws of 1823, p. 412; notes of Revisers to 1 R. S. part 2, chap. 3.

4 Felix v. Devlin, 90 App. Div. 103. Jackson v. Post, 15 Wend. 588; Raynor v. Wilson, 6 Hill, 469; Purdy v. Huntington, 42 N. Y. 334; Briggs v. Davis, 20 id. 15; Young v. Guy, 87 id. 457, 462; Ackerman v. Hunsicker, 85 id. 43; Tarbell v. West, 86 id. 280, 288; McPherson v. Rollins, 107 id. 316; Cambridge Bank v. Delano, 48 id. 326; Feist v. Block, 115 App. Div. 211, 213; Maurer v. Friedman, 125 id. 754; cf. Schutt v. Large, 6 Barb.

373.

6 Ludlow v. Van Ness, 8 Bosw. 178; Gillig v. Maas, 28 N. Y. 191, 213; Dillaye v. Commercial Bank, 51 id. 345: Dunlop v. Avery, 89 id. 592; Bradley v. Walker, 138 id. 291; Ewards v. Meader, 33 N. Y. St. Rep. 126: Oliphant v. Burns, 146 N. Y.

218, 233; cf. Grandin v. Hernandez, 29 Hun, 399; Heilbrun v. Hammond, 13 id. 474; Wilcox v. Drought, 71 App. Div. 402; Tarbell v. West, 86 N. Y. 280; Dana v. Jones, 91 App. Div. 496, 500.

7 Tefft v. Munson, 57 N. Y. 97; Oliphant v. Burns, 146 id. 218, 233. 8 Green v. Horn, 128 App. Div. 686; 260, Real Prop. Law.

9 Williams v. Birbeck, Hoff. Ch. 359; Davidson v. Crook, 45 App. Div. 616.

52.

10 Marden v. Dorthy, 160 N. Y. 39.

11 Howard Ins. Co. v. Halsey, 8 N. Y. 271; Stuyvesant v. Hone, I Sandf. Ch. 419; affd., 2 Barb. Ch. 151; Pettus v. McGowan, 37 Hun, 409; Felix v. Devlin, 90 App. Div. 103.

12 Jackson v. Post. 15 Wend. 588, 504; Raynor v. Wilson, 6 Hill, 469; Weideman v. Zielinska, 102 App. Div. 163, 166.