a deed be properly handed to the recording officer and through his fault be recorded in the wrong book, its record is nevertheless constructive notice to subsequent dealers with the land.1 And in many jurisdictions, such as Massachusetts, Connecticut, and Illinois, this principle is extended to include all cases of negligence or error of the recording officer, in dealing with an instrument properly delivered to him for record. The grantee who so delivers it is protected in such jurisdictions, and the subsequent parties must look to the wrong-doing officer for the damages that they may thereby sustain.3 But, in many of the states, of which New York, Michigan, and California are illustrations, the result of the record of a deed in a wrong book only, whether it is ordered to be so dealt with or the error is due entirely to the fault of the recording officer, is to vitiate the record and make it ineffectual as constructive notice.4 tive Notice § 1123. Purposes and Effects of Record of Deeds ConstrucPriority of Right through Prior Record. - In most of the states, a twofold purpose, and two different results, are found associated with the recording statutes. The first of these is to make the recorded instrument constructive notice; and the second is to enable that one of two or more innocent purchasers for value, who first records his deed, to obtain priority thereby. A few words of explanation are required, as to each of these important results. First, constructive notice. The recording of a proper instrument, by virtue of these statutes, gives it the effect of notice to subsequent dealers with the property, even though they have no actual knowledge of its existence. They are bound to take note of it to be affected by it as an existing deed-regardless of such knowledge; and this is what is meant by its becoming v. Campbell, 40 Md. 331; Baker v. Bartlett, 18 Mont. 446; fourth note infra. 1 Nichols v. Reynolds, 1 R. I. 30; Wolf v. Hunter, 10 Ill. App. 32; Farabee v. McKerrihan, 172 Pa. St. 234; Durrence v. Northern Nat. Bank, 117 Ga. 385; Greenfield v. Stout, 122 Ga. 303; Amer. & Eng. Enc. of Law, vol. 24, p. 114. 2 Hayden v. Pierce, 165 Mass. 359; Chase v. Bennett, 58 N. H. 428; Lewis v. Hinman, 56 Conn. 55; Kiser v. Heuston, 38 Ill. 252; Amer. & Eng. Enc. of Law, vol. 24, p. 114. 3 Board of Comm's v. Babcock, 5 Or. 472; Mutual Life Ins. Co. v. Dake, 1 Abb. N. C. (N. Y.) 381, 87 N. Y. 257; 2 Devlin on Deeds, § 697. + Gillig v. Maass, 28 N. Y. 191; Howells v. Hettrick, 13 N. Y. App. Div. 366; Gordon v. Constantine Hydraulic Co., 117 Mich. 620; Cady v. Purser, 131 Cal. 552. 5 Birdsall v. Russel, 29 N. Y. 220, 249; Wallace v. Silsby, 42 N. J. L. 1; Shaw v. Poor, 23 Mass. 86; Words and Phrases Judicially Defined, vol. 2, p. 1472; Webb on Record of Title, §§ 152, 221; § 407, supra. constructive notice. In other words, it extends the commonlaw doctrine of notice, so as to deprive one of the position of an innocent purchaser or encumbrancer for value, by making him acquire the property subject to any instrument affecting it, that is properly recorded as prescribed by the statute. It was explained above that two or three states, such as Maryland and North Carolina, require a deed to be recorded, in order that it may operate between the parties thereto.2 But most of the statutes. make the recording acts entirely prospective in their operation; and by them the record of a deed gives constructive notice of it to subsequent purchasers or encumbrancers of the property, but not to persons already owning any interests therein. Thus, when A is buying land from B, A has constructive notice of the deed to B properly on record, and of that to B's grantor, and so on backward in the chain of title, and of any mortgages, long leases (usually for over three years), or covenants, which any of them have made and properly recorded; but when A's deed is put on record, it gives thereby in most states no constructive notice to mortgagees, lessees, or any other claimants, who have previously obtained their interests from B or his predecessors in title.4 Not only are purchasers of real property bound by constructive notice of deeds and instruments already recorded in their chain of title, but also by such unrecorded instruments, affecting the land purchased, as are clearly referred to by the duly recorded documents. Thus, when A is acquiring land any actual notice or knowledge of a defect or outstanding claim appertaining to that title. But if the judgment debtor himself hold his interest free and clear of a subsequently recorded claim or interest, the purchaser stands in his shoes and has a like clear interest. Howard Ins. Co. v. Halsey, 8 N. Y. 271; Vanorden v. Johnson, 14 N. J. Eq. 376; McAteer v. McMullen, 2 Pa. St. 32; Webb on Record of Title, § 163. 5 Northwestern Nat. Bank v. Freeman, 171 U. S. 620; Mettart v. Allen, 139 Ind. 644; McPherson v. Rollins, 107 N. Y. 316; Sweet v. Henry, 175 N. Y. 268; Gibert v. Peteler, 38 N. Y. 165; White v. Foster, 102 Mass. 375; Barbour v. Nichols, 3 R. I. 187; Hamilton v. Nutt, 34 Conn. 501. See Dingley v. Bon, 130 N. Y. 607; Oliphant v. Burns, 146 N. Y. 218. from B, and B's title comes through a deed on record, A has notice, not only of that deed, but also of any actually existing mortgage, lease, or restrictive covenant, mentioned on that record and affecting the land which A is purchasing. This has been heretofore explained, in the discussion of presumptive notice in connection with equitable estates. It is not carried to the extent of binding the purchaser, by reference in his chain of title to an obligation affecting another piece of land, nor by a reference in another chain of title to the land which he is acquiring. Thus, when A is purchasing Whiteacre from B, A has no constructive notice of an unrecorded deed of that land from X to Y, unless an instrument in B's chain of title refers to that deed, or unless B's chain of title is traced through Y or his predecessors in interest. And where, in partitioning property between A and B, it was agreed that A would pay off all of a mortgage on the entire land, and then B sold his part to C, and C conveyed it to D with warranty, it was held that D, on foreclosure of the mortgage, need not reveal the covenant between A and B, though it was duly recorded, because that covenant affected and bound the portion of the land which went to A and not that which was involved in B's title.5 Second, priority of right through prior record. The second important effect of properly recording an instrument is that he who so deals with it, if an innocent purchaser for value, may in most states thereby obtain priority over other instruments that are unrecorded. Thus, if A buy land, paying value in 1 Ibid.; Pleasants v. Blodgett, 39 Neb. 741. 2 § 407, supra. 8 Oliphant v. Burns, 146 N. Y. 218; Tarbell v. West, 86 N. Y. 280; Hetzel v. Barber, 69 N. Y. 1; Baker v. Griffin, 50 Miss. 158; Collins v. Aaron, 162 Pa. St. 539; Holmes v. Buckner, 67 Tex. 107; Kerfoot v. Cronin, 105 Ill. 609; Keller v. Nutz, 5 Serg. & R. (Pa.) 246; Bates v. Norcross, 31 Mass. 224; Wade, Law of Notice, $$ 313-315; Goodkind v. Bartlett, 153 Ill. 419; Drake v. Reggel, 10 Utah, 376; Wade, Law of Notice, §§ 313-315; Tenn. Coal Co. v. Gardner, 131 Ala. 599. 4 Ibid.; Le Neve v. Le Neve, 2 Lead. Cas. Eq. p. 45 et seq. 5 Jenks . Quinn, 137 N. Y. 223. Likewise, where a purchase money mortgage recited the deed given at the same time by the mortgagee to the mortgagor, and the mortgage was recorded but not the deed, this gave no constructive notice to a subsequent purchaser from the same grantor, because the mortgage was not in the chain of title appearing on record for such subsequent vendee. Todd v. Eighmie, 4 N. Y. App. Div. 9. 6 N. Y. L. 1909 ch. 52, § 291; 1 Stim. Amer. Stat. L. § 1611; Ten Eyck v. Witbeck, 135 N. Y. 40; Brown v. Chubb, 135 N. Y. 174; O'Brien v. Fleckenstein, 180 N. Y. 350; Gibson v. Thomas, 180 N. Y.483; Cressee v. Security Land I. Co., 35 Atl. Rep. 451 (N. J.); Amer. & Eng. Enc. of Law (2d ed.), pp. 119, 140. good faith, and without notice of B's prior purchase of the same land, A may perfect his own title by succeeding in recording his deed before that of B.1 The generally accepted requisites to his acquiring this advantage, as was explained above, are: he must take his conveyance, and must pay the purchase price in full, before he acquires any notice of B's deed or interest. It simply remains to be added, as a very important. outcome of the recording acts, that, when there are several persons who have acquired the same land independently from the same source of title, and all are innocent purchasers for value without notice, the first in right is he who first succeeds in putting his deed on record. In a few jurisdictions, somewhat anomalously, this important outcome of the recording laws is not provided for by the statutes, and it is held that an innocent purchaser for value without notice, even though he fail to record his deed, may have priority over a previous purchaser. 1 Ibid. 2 §§ 406-409, supra. 3 N. Y. L. 1909, ch. 52, § 291; Page v. Waring, 76 N. Y. 463; Hetzel v. Barber, 69 N. Y. 1; Collins v. Aaron, 162 Pa. St. 539. See Schutt v. Large, 6 Barb. (N. Y.) 373. 4 Ohio Laws of 1885, p. 230; 1 Stim. Amer. Stat. L. § 1611 (4). See Northrup's Lessee v. Brehmer, 8 Ohio, 392. |