authorized in writing,58 or by a will.59 Whether a writing without a seal is a "deed" is very questionable. A seal was, formerly, also necessary to pass an estate of freehold.60 After 1892, a scroll, or the letters L. S., became a sufficient sealing.61 The former Real Property Law dispensed with a seal on a conveyance of a freehold. But the common law is not otherwise abrogated. 62 The consideration need not be expressed in a deed;63 although it may be necessary to support such deed.

A lease is a conveyance.65

64

Priority of Record, Refers to Conveyances of Same Estate. It is only when two conveyances purport to convey the same property, that the subsequent grantee obtains a priority over the former one, by reason of a priority of record of his deed.66

Effect of Actual Notice. Priority of record is of no avail in favor of one who has actual notice at the time he took title of an unregistered mortgage.67 Whatever is sufficient to put the purchaser upon inquiry is, in general, equivalent to actual notice.68 Thus actual open and visible possession is sufficient to make it a pur

58 243, Real Prop. Law, supra. 59 2 R. S. 135, § 7; 8 266 Real Prop. Law; Strough v. Wilder, 119 N. Y. 530, 535.

60 2 R. S. 738, § 137; Morse v. Salisbury, 48 N. Y. 636; Todd v. Union Dime Institution, 118 id. 337; 128 id. 636; cf. Grandin v. Hernandez, 29 Hun, 399; Todd v. Eighmie, 4 App. Div. 9.

61 Chap. 677, § 13, Laws of 1892. 62 §§ 242, 243, supra, and notes of Commissioners of Statutory Revision, Appendix II, on §§ 207, 208.

63 Cunningham v. Freeborn, II Wend. 240, 248; cf. Meriam v. Harsen, 2 Barb. Ch. 232, 267.

64 See " Consideration," supra, p. 818; Moser v. Moore, 23 App. Div. 91; Schott v. Burton, 13 Barb. 173; Corwin v. Corwin, 6 N. Y. 342; Wood v. Chapin, 13 id. 509, 517; Ten Eyck v. Witbeck, 135 id. 40; Jackson v. Cadwell, I Cow. 622; and see Morris v. Ward, 36 N. Y. 587; Gray v. Barton, 55 id. 68; Adee v. Hallett,

3 App. Div. 308; Anderson v. Blood, 86 Hun, 244.

65 Stoltz v. Tuska, 76 App. Div.

137, 141.

66 Treadwell v. Inslee, 120 N. Y. 458.

67 Butler v. Viele, 44 Barb. 166; Lamont v. Cheshire, 65 N. Y. 30, 40, 41; Dingley v. Bon, 130 id. 607; Constant v. University of Rochester, 133 id. 640; Dunham v. Dey, 15 Johns. 555. And see La Neve v. La Neve (A. D. 1747), reported 3 Atk. 646, 1 Ves. 64 and 2 White & Tudor, Lead. Cas. in Eq. for the general principle.

68 Williamson v. Brown, 15 N. Y. 354; Baker v. Bliss, 39 id. 70; Acer v. Wescott, 46 id. 384; Reed v. Gannon, 90 id. 345; Page v. Waring, 76 id. 463; Dingley v. Bon, 130 id. 607; Curtis v. Moore, 152 id. 159, 163; Lyon v. Morgan, 143 id. 505, 509; Cambridge Valley Bank v. Delano, 48 id. 326.

chaser's duty to inquire as to the title of possessor; 69 but not when possession is of unimproved land.70 Such possession to be notice must not be consistent with the apparent title of record. Proof of actual notice as against a prior recorded deed must be extremely clear.72 Notice to an attorney may, or may not, be notice to the principal, according to the nature and duration of the agency.73 A purchaser is chargeable with notice of every fact affecting title, discoverable from the examination of a deed in the chain of title.74 The legal title to an estate prevails as against a latent equity.75 But an assignee of a bond and mortgage takes subject to latent equities not only of the obligor but of third persons represented by the mortgagor. The nonproduction of a bond may be operative to put a purchaser of a mortgage on inquiry, but when the mortgage itself is delivered for value to a bank, which records the assignment before a prior assignment to the holder of the bond, the record title prevails."

76

A Subsequent Purchaser for a Valuable Consideration. A subsequent purchaser for a valuable consideration, under this act, is one who

€9 Phelan v. Brady, 119 N. Y. 587; Holland v. Brown, 140 id. 344; Ward v. Met. Ry. Co., 152 id. 39; Raynor v. Timerson, 54 id. 639; Tuttle v. Jackson, 6 Wend. 213; Wright v. Douglass, 10 Barb. 97; Troup v. 'urlbut, id. 354; Williams v. BirLeck, Hoff. Ch. 359; Bank of Orleans v. Flagg, 3 Barb. Ch. 316; Marden v. Dorthy, 160 N. Y. 39, 52; Gibson v. Thomas, 180 id. at p. 493. See for constructive notice by possession, note 2 White & Tudor, Lead. Cas. in Eq. 63, and extent of the notice; Cornell v. Maltby, 165 N. Y. 557; Schneider v. Mali, 84 App. Div. 1; cf. Laverty v. Moore, 33 N. Y. 658. 70 Brown v. Volkening, 64 N. Y. 76; Holland v. Brown, 140 id. 344; cf. Mut. Life Ins. Co. v. Dake, I Abb. N. C. 381, 391.

71 Brown v. Volkening, 64 N. Y. 82; Pope v. Allen, 90 id. 298; Minton v. N. Y. El. R. R. Co., 130 id. 332; Gibson v. Thomas, 85 App. Div. 243. 72 Riley v. Hoyt, 29 Hun, 114; Phillips v. Owen, 99 App. Div. 18.

73 Constant v. University of Rochester, III N. Y. 604; 133 id. 640; Slattery v. Schwannecke, 118 id. 543; Ingalls v. Morgan, 10 id. 178; Denton v. Ontario County Bank, 150 id. 126, 137; La Neve v. La Neve, 2 White & Tudor, Lead. Cas. in Eq. 26, and note, id. 69.

74 Cambridge Bank v. Delano, 48 N. Y. 326; Acer v. Wescott, 46 id. 384; McPherson v. Rollins, 107 id. 316, 322; Bentley v. Gardner, 45 App. Div. 216, 222; Schnitzer v. Bernstein, 119 id. 47.

75 Lyon v. Morgan, 143 N. Y. 505, 509; Rexford v. Rexford, 7 Lans. 6; cf. Heilbrun v. Hammond, 13 Hun,

474.

76 Supra, p. 942; The Trustees of Union College v. Wheeler, 61 N. Y. 88.

77 Syracuse Savings Bank v. Merrick, 96 App. Div. 581, 592; cf. Curtis v. Moore, 152 N. Y. 159.

79 "6

surrenders, or parts with value,78 without notice of an unrecorded conveyance, and who first records his own conveyance." Valuable consideration" in the statute means the same as in the law of negotiable paper.80 A nominal consideration is not enough.81 No one who has not given a new consideration at the time, or relinquished something, can, therefore, be considered a purchaser for value within the act.S 82 But where a deed expresses a valuable consideration, and acknowledges the payment thereof by the grantee, it affords prima facie evidence that he was a purchaser in good faith within the Recording Act, and no proof of actual payment is necessary;83 and the burden of proof to the contrary rests on a senior purchaser whose deed is unrecorded.84

85

Index. The indexing is no part of the record. The conveyance takes effect from the date of filing. But recording an instrument in the wrong book is not effectual as constructive notice.86

Acknowledgments. What constitutes due acknowledgment or proof, entitling a conveyance to be recorded under this section, is treated of under subsequent sections of this article.87

78 Cary v. White, 52 N. Y. 138; De Lancey v. Stearns, 66 id. 157; Westbrook v. Gleason, 89 id. 641; Woodburn v. Chamberlin, 17 Barb. 446; Bank for Savings v. Frank, 45 N. Y. Super. Ct. (J. & S.) 404, 410; Constant v. Am. Bap. Assn., 53 id. 170; Weaver v. Edwards, 39 Hun, 233; cf. Webster v. Van Steenbergh, 46 Barb. 211; Schutt v. Large, 6 id. 373; Merritt v. North R. R. Co., 12 id. 605; Paul v. Paul, 23 N. Y. St. Rep. 370; Macauley v. Smith, 28 Abb. N. C. 276.

79 Westbrook v. Gleason, 79 N. Y. 23; Clark v. Mackin, 95 id. 346, 351; Purdy v. Huntington, 42 id. 334; Van Keuren v. Corkins, 66 id. 77; Heilbrun v. Hammond, 13 Hun, 474, 480; Breed v. National Bank, 57 App. Div. 468, 473; Fries v. N. Y. & Harlem R. R. Co., id. 577; cf. O'Brien v. Fleckenstein, 86 id. 140; affd., 180 N. Y. 350.

80 Pickett v. Barron, 29 Barb. 505; Merritt v. North R. R. Co., 12 id. 605; Harris v. Norton, 16 id. 264.

81 Ten Eyck v. Witbeck, 135 N. Y. 40; s. c., 29 Abb. N. C. 314.

82 Pickett v. Barron, 9 Barb. 505; De Lancey v. Stearns, 66 N. Y. 157; Union Dime Sav. Inst. v. Duryea, 67 id. 84, 87; Young v. Guy, 87 id. 457; Douglas v. Taylor, 102 App. Div. 94; and see cases under § 290, Real Prop. Law; Howells v. Hettrick, 160 N. Y. 308; Wilcox v. Drought, 71 App. Div. 402; O'Brien v. Fleckenstein, 86 id. 140; affd., 180 N. Y. 350; cf. Webster v. Van Steenbergh, 46 Barb. 211; Paul v. Paul, 23 N. Y. St. Rep. 370.

83 Ward v. Isbill, 73 Hun, 552. 84 Gratz v. Land & River Imp. Co., 82 Fed. 381.

85 Mut. Life Ins. Co. v. Dake, 87 N. Y. 257; Bedford v. Tupper, 30 Hun, 174.

86 Abraham v. Mayer, 7 Misc. Rep.

250.

87 §§ 292, 304.

Conveyance when not Void Unless Recorded. Unless an instrument, operative as a conveyance of land, or of some interest therein is recorded, it is void under this section only in the instances specified therein,88 but not as between the parties,89 or as to those affected by notice.90 Recording Acts do not usually affect the fundamental principles of equity.91

Deeds Recorded by Whom. the grantee, and proof delivery.92

Deeds are presumed to be recorded by of record is presumptive evidence of

Record of Equitable Title. How far the record of an equitable title is operative as notice is often a question of difficulty.93 It certainly is notice to a subsequent purchaser of the same title from the same grantor, but it is not notice to a purchaser of the legal title from the person who appears by the record to be the real owner. 94

Notice of Trust. A deed to John Doe, Trustee " puts purchaser on notice that John Doe is not the beneficial owner.95

88 241, Real Prop. Law; Breed v. National Bank, 57 App. Div. 468, 473; Martindale v. Western N. Y. & P. R. R. Co., 45 id. 328; Felix v. Devlin, 90 id. 103.

89 Stuyvesant v. Hall, 2 Barb. Ch. 151; Raynor v. Wilson, 6 Hill, 469; Whitlock v. Gould, 30 Misc. Rep. 521; Breed v. National Bank, 57 App. Div. 468, 473.

90 Supra, p. 947.

91 Duchess of Chandos v. Brownlow, 2 Ridgeway, 428.

92 Supra, p. 822.

93 Dana v. Jones, 91 App. Div. 496; Ball v. Ball, 97 App. Div. 347, 351.

94 Tarbell v. West, 86 N. Y. 280; Matthews v. Damainville, 43 Misc. Rep. 546.

Sternfels v. Watson, 139 Fed. Rep. 505; cf. Title Guarantee & Trust Co. v. Fallon, 101 id. 187.

§ 292. By whom conveyance must be acknowledged or proved. Except as otherwise provided by this article, such acknowledgment can be made only by the person who executed the conveyance, and such proof can be made only by some other person, who was a witness of its execution, and at the same time subscribed his name to the conveyance as a witness.

Formerly section 242, Real Property Law of 1896, chapter XLVI, General Laws:

242. By whom conveyance must be acknowledged or proved. Except as otherwise provided by this article, such acknowledgment can be made only by the person who executed the conveyance, and such proof can be made only by some other person, who was a witness of its execution, and at the same time subscribed his name to the conveyance as a witness.98

Section 242 was formerly 1 Revised Statutes, 756, section 4:

4. To entitle any conveyance hereafter made, to be recorded by any county clerk, it shall be acknowledged by the party or parties executing the same, or shall be proved by a subscribing witness thereto, before, etc.,

Early Statutes. The earlier statutes of this State on the subject of acknowledgments of deeds are collated in an appendix to volume 3, Ist edition, of the Revised Statutes. The colonial laws on the same subject are given in this writer's "History of the Law of Real Property in New York." 99

Recording Officers Prohibited. A recording officer was prohibited by the Revised Statutes from recording any conveyance unless the same was acknowledged.99 The Penal Law now makes it a misdemeanor to record a conveyance which does not contain a certificate of its proof or acknowledgment.1

Acknowledgments and Proof. The acknowledgment must be made by the person executing the conveyance,2 or else the deed must be

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

97 The balance of 1 R. S. 756, § 4, is set out verbatim under §§ 298, 299, Real Prop. Law, and need not be repeated here. 1 R. S. 756, § 4, is repealed by chap. 547, Laws of 1896.

98 Baker, Voorhis & Co., A. D.

1895. See its index under "Acknowledgments."

99 I R. S. 762, § 34.

1 Penal Code, § 164, now 8 1862, Penal Law of 1909.

2 Lovett v. The Steam, etc., Association, 6 Paige, 54, 60; Irving v. Campbell, 121 N. Y. 353; McKay v. Lasher, id. 477.