under which a subsequent purchaser or mortgagee shall claim." This clause in the act of 1775 immediately followed the clause that provided that a prior unrecorded deed should be fraudulent and void as against a subsequent purchaser or mortgagee for valuable consideration. Since the decision of Fries v. Null, 154 Pa. 573, turned directly upon this clause which is omitted in the act of 1893, it would seem that the law as there stated has been changed and that a subsequent purchaser or mortgagee would now have the full ninety days in which to record. Still, the only recent case on the subject, Gillespie v. Buffalo R. & P. Rwy. Co., 204 Pa. 107 (1902), reaffirms with approval the doctrine of Fries v. Null, supra, but even this recent case cannot be regarded as conclusively settling the question, since the facts of case show that the deeds there in question were recorded in 1883, or ten years before the adoption of the act of 1893. Consequently, until the question is finally settled good practice requires us to observe the rule of Fries v. Null, 154 Pa. 573, and to see to it that our deeds are recorded as soon as possible after execution lest they be defeated by the prior recording of an unrecorded prior deed.

126. Time Within Which Mortgages Must be Recorded.

All mortgages except purchase money mortgages should be recorded immediately after execution, if they are to be a lien from that time. The Act of March 28, 1820 (7 Sm. L. 303), sets forth in effect that all mortgages and defeasible deeds in the nature of mortgages should have priority according to the date of recording the same without regard to the time of execution. And the recorder was required to indorse the time upon the mortgages or defeasible deeds when left for record and to number the same according to the time when left for record, and if two or more were left on the same day they should have priority, according to the time they were left for record, and no mortgages or defeasible deeds should be a lien until left for record. The meaning of this act requires but little explanation, and by it mortgages except purchase money mortgages, become a lien only from the time of recording. Title insurance. companies have adopted a method of requiring the mortgages they are asked to insure to be recorded for two days prior to settlement. The searches are then brought down to cover these two days so as to disclose the fact if any other mortgage or

lien has crept in ahead of the one they insure. While under this act of 1820 an unrecorded mortgage is not a lien as to creditors or subsequent mortgagees or purchasers, it is nevertheless a good lien as against the mortgagor. This act further provides that no mortgage given for the purchase money of the land should be affected by the act if the same be recorded within sixty days. And if so recorded within the sixty days it becomes a lien from date of its execution. But as set forth in paragraph 88 if two purchase money mortgages executed on the same day are recorded within the sixty days, both are equal in lien unless one be made expressly subject to the other (see Paragraph 92).

127. Defective Recording and Indexing. Result Thereof.

For recording to be effective it must be properly done. The instrument must not only be correctly transcribed in the proper book, but must be correctly indexed as well. The rule af law governing the question as to what book an instrument should be recorded has been stated as follows: "Where certain instruments of writing are not required by law to be recorded in a particular book, they may be recorded in any book kept by the recorder" (Glading v. Frick, 88 Pa. 460). Deeds and mortgages are required to be indexed in the deed book and mortgage book respectively. A list of all instruments which may be recorded and the acts of assembly relating thereto, will be found in paragraph 130 (infra). Before the Act of March 18, 1875, P. L. 32, a general index was not required by law and it was then held that "where an instrument was properly recorded but not indexed in a general index it was nevertheless effective, since the only index then required by law to be kept was index for each book" (Schell v. Stein, 76 Pa. 398). The Act of March 18, 1875, P. L. 32, however, requires the recorder to keep two general indexes, one for deeds and one for mortgages, and makes it his duty to index in the proper index every deed and mortgage left at his office for record. "Since this act, therefor, deeds and mortgages must be both indexed and transcribed properly, and failure to do either is such defective recording as to make it a nullity as to subsequent purchasers or mortgagees" (Pyles v. Brown, 189 Pa. 164).

Not only does omission to record and index constitute a defective record, but failure to index and transcribe correctly is equally defective. Thus where a mortgage was indexed and recorded under the name S. J. Marshall instead of L. J. Marshall the

Supreme Court said (Prouty v. Marshall, 225 Pa. 574 [1909]): "In this case the mortgage was neither recorded properly nor indexed properly; both recording and indexing were alike defective and each of the defects was fatal to the claim of the mortgagee." As a result of this development of the law a mortgagee or grantee ought to do more than merely leave the instrument for record, he ought to examine the record and see that no mistake has been made by the recorder, either in indexing or transcribing. Says the Supreme Court in the same case of Prouty v. Marshall, 225 Pa. 570: "The chief object to be obtained, by recording and indexing an instrument, affecting real estate, is to give notice of the incumbrance. It is therefore the duty of a person offering an instrument for record to see that it is properly recorded and properly indexed. If he fails to do so, he cannot shift the consequence upon an innocent purchaser."

The Recorder who makes a mistake in indexing or recording an instrument is liable for damages resulting therefrom and suit may be brought on his official bond (Act of March 18, 1875, P. L. 32, Sec. 2). To a certain extent this affords protection to a grantee or mortgagee whose instrument was improperly indexed, but since action must be commenced within seven years from the time the mistake was made (Commonwealth v. Donnelly Estate, 33 Pa. C. C. 601), the only complete protection is to follow the advice of the Supreme Court and personally examine both index and record to see that no mistake is made.

128. Recording of Forged Instruments.

The recording of an instrument gives it no greater validity as far as execution is concerned than it had before. Thus where a forged deed was recorded one who buys relying on the record takes no title. As said by the Supreme Court (Reck v. Clapp, 1 Pennypacker 344): "Of course a purchaser who examines the records is protected by them as far as they can protect him, but he necessarily takes the risk of having the actual state of title correspond to that which appears of record." Reliance on a forged deed, recorded on an absolutely false certificate of acknowledgment may bring loss on him who so relies, but neither such deed nor such certificate appended to it can ever effect the owner of the property (Smith v. Markland, 223 Pa. 605).

129. Method of Recording.

The method of recording a deed or other instrument is to take or send the instrument to the recorder of deeds office. The recording fee is then paid, and receipt for the instrument is issued by the recorder or his clerk. The instrument is left there and when copied into the book and properly indexed is returned to the owner upon surrender of the receipt. The instrument is stamped recorded, the moment it is received by the recorder. Its recording dates from the time it is left with the recorder and not from the time it is copied into the book.

130. What Other Instruments May Be Recorded.

From time to time the legislature has passed acts providing that other instruments besides deeds and mortgages may be recorded and when they are recorded they have all the advantages incidents and force of a public record such as being constructive notice to the world, receivable in evidence without formal proof,

etc.

The following instruments may be recorded:

Assignment of mortgages and letters of Attorney to satisfy mortgages, Act of April 9, 1849, P. L. 525, Sec. 14.

Assignments for benefit of creditors, Act of June 4, 1901, Sec. 10, P. L. 404.

Bankruptcy certificates, Act of May 2, 1907, P. L. 159. To be recorded in deed books and indexed as conveyances. The bankrupt as grantor and receiver or trustee (if any) as grantee.

Coroners' deeds, Act of March 14, 1846, P. L. 124, Sec. 1. County commissioners' deeds, Act of April 5, 1849, P. L. 344, Sec. 2.

Deeds of sheriffs, coroners, marshals and treasurers, made in pursuance of decree of court, Act of March 14, 1846, P. L. 124, Sec. I.

Deeds of trust where lands and tenements are conveyed, Act of May 6, 1854, P. L. 603, Sec. 1.

Discharges of commissioned or non-commissioned officers and privates, Act of April 8, 1868, P. L. 73, Sec. I.

Dower, releases of, Act of May 17, 1866, P. L. 1085.

Election of husband or wife to take either under will or intestate laws, Act of April 21, 1911, P. L. 79.

Exemplification of deed embracing land in two counties recorded in one county may be recorded in the other county in which the land lies, Act of January 26, 1870, P. L. 13, Sec. 1. Grant, bargain and sale, release or deed of conveyance or assurance of any lands, tenements or hereditaments, Act of December 14, 1854, P. L. (1855) 724, Sec. 3.

Letters of attorney to satisfy mortgages, Act of April 9, 1849, P. L. 525, Sec. 14.

Letters of attorney authorizing contracts, adjustments of accounts, sale of stocks and personal estate, receipt of moneys, discharges and acquittances of legacies or distributive shares, when executed out of state, Act of December 14, 1854, P. L. 724 (1855), Sec. 1. See also Act of May 17, 1866, P. L. 1085. Extended to affidavits before any officer of any state authorized to take affidavits, Act of August 10, 1864, P. L. 962.

Leases for more than twenty-one years, Act of March 18, 1775; I Smith's Laws 422, Sec. 3.

Marriage articles whereby title to land is affected are within the recording act, Lessee of Foster v. Whitehill, 2 Yeates 259.

Married women. All releases, contracts, letters of attorney and other instruments of writing which a married woman is or shall be authorized by law to make and execute without the joinder of her husband, and which have been or shall hereafter be so executed by her, may be recorded in the office for recording deeds in the proper county if the same shall have been acknowledged by her without her husband joining, or her signature thereto shall have been duly proved, Act of May 25, 1897, P. L. 83, Sec. I.

Map or plan of lots, where one or all the owners have died, may, after approval by the court, be recorded. The act does not affect adversely persons not parties to the proceedings, Act of June 6, 1893, P. L. 329.

Map or plan of subdivision of lands into building lots, making it the duty of owner to record, Act of April 28, 1899, P. L. 123. Mortgages or defeasible deeds in the nature thereof, Act of May 28, 1715; I Smith's Laws 94, Sec. 8. This section relates exclusively to mortgages and defeasible deeds, Burke v. Allen, 3 Yeates 351.

Marshals' deeds, Act of March 14, 1846, P. L. 124, Sec. 1.

Ordinance of any municipality vacating streets, lanes, alleys,. Act of May 23, 1907, P. L. 223.