notice of all instruments duly filed or matters properly entered of record there. It has been held, however, where the statute had provided that a transfer of land made before the issuance of patent might be recorded in the county where the land lay, as well as filed in the general land office in order that patent issue in the name of the assignee, that the filing of such transfer in the land office alone did not charge with constructive notice a subsequent purchaser under execution issued against the original enterer, or purchaser from the state, who was the grantor in the transfer.2 As between two purchasers of the same land from the government, the latter is chargeable with notice of any facts appearing by the records of the land office at which he purchases, going to show the title or claim of the first purchaser.3

$136. Books of Record.

The statutes of perhaps all the states prescribe the use of different books for recording different classes of instruments. The policy of the registry law is that persons who are to be affected with constructive notice should be able 1 Dodge v. Littler (Tex.), 11 S. W. Repr. 331; Martin v. Nash, 31 Miss. 324, citing 2 Fonb. Eq., bk. 3, ch. 3, §1, n. See Kerr v. Watts, 6 Wheat. 550.

2 Lewis v. Johnson, 68 Tex. 448; s. c. 4 S. W. Repr. 644. This case falls on debatable ground, and is distinguishable from the first two cases in the note above, especially the latter, only in that the Texas registry statutes certainly authorized the record of such transfer in the county where the land lay; a point not so clear as to the transfer in the other cases. Yet as the county records, in the Tex. case, showed nothing whatever in relation to the title of the land. the subsequent purchaser must, of necessity, have looked to the general land office to ascertain that title was in the judgment debtor, as in the Mississippi case. 3 Schnee v. Schnec, 23 Wis. 377; Moyer v. McCullough, 1 Ind. 211. 4 Besides separate books for absolute conveyances, and for mortgages and trust deeds, some of the statutes require them for personal property, as in Ga., S. C., Cal., Mo. and Wash. Ter.; for releases of mortgages and liens, as in Va. and W. Va.; for marriage contracts, as in Mo., Cal. and Wash. Ter.; for maps and plans, as in Ohio, Mich. and Kan.; for mechanics' liens, as in Neb., Cal., Wash., Utah and N. M.; and in a few states, as Ill., Minn., Cal. and Idaho, every class of instruments must be recorded in separate books.

to obtain actual knowledge by searching the records, and such a search would not likely prove successful if the instrument were recorded in a wrong book. A record will not operate as constructive notice, unless made in the proper book as required by statute. The decisions on this subject, however, like the statutes themselves, are not uniform. In some cases a liberal construction has been applied3 and established usage has been recognized in the matter. Thus where the statute required mortgages of real and of personal property to be recorded in separate books, it was held that a mortgage embracing both species of property in the same instrument need be recorded only in the book of real estate mortgages, it appearing that this was the usual custom; and a double record was said to be unreasonable.* Under a statute requiring mechanics' liens to be recorded in a book separate from absolute conveyances, such lien is well recorded in the book for mortgages. In those states where the statute and decisions attach the full effect of notice to the filing alone, it would seem to be immaterial how, or in what book, if any, the clerk records the instrument.6 Where the officer designedly copied a deed in an old, unused 11 Pom. Eq. Jur., §653.

2 Pringle v. Dunn, 37 Wis. 449; s. c. 19 Am. Rep. 772; Van Thorniley v. Peters, 26 O. St. 471; Colomer v. Morgan, 13 La. Ann. 202; Shaw v. Wilshire, 65 Me. 485; James v. Morey, 2 Cow. 246; Deane v. Hutchinson, 40 N. J. Eq. 83; Parsons v. Lent, 34 N. J. Eq., 67; Purdy v. Huntington, 42 N. Y. 343; s. c. 1 Am. St. Rep. 532.

3 Duplicate copies of deeds regularly deposited in the recorder's office, not bound into volumes, but classified and indorsed, held to constitute a book of record within the meaning of the statute. Mumford v. Wardwell, 6 Wall. 423.

The record is not defective because a part of it may be printed instead of written with ink. Maxwell v. Hartman, 50 Wis. 660.

4 Anthony v. Butler, 13 Pet. 423; and see also, Beals v. Hale, 4 How. 37. The record notice of a deed duly filed cannot be lost by its being transcribed in a wrong book. Cluder v. Thomas, 89 Pa. St. 343. The statute requiring separate books held only directory. Robertson v. Brown, 5 La. Ann. 154; Gillespie v. Cammack, 3 La. Ann. 248.

5 Quinn v. Logan, 67 Tex. 600.

6 Cluder v. Thomas, 89 Pa. St. 343; Swenson v. Bank, 9 Lea, 723. See ante, §§15-18; Lewis v. Klotz, 39 La. Ann. 259; 1 South. Repr. 539.

record book and neglected to index it, the record was held not to impart notice. Under an early Iowa statute the record of a quit-claim deed in a book labeled "mortgages, was held sufficient, it not appearing whether the book was used for mortgages only, or for both deeds and mortgages.

2

$137. Recording Deed which is in Reality a Mortgage. · Where a deed absolute on its face is in reality a mortgage, the defeasance being in parol, or in a separate instrument not recorded, the question has frequently arisen as to the effect of recording the conveyance in the registry of deeds. On this point there is a decided conflict in the adjudications of the several states; but the weight of reason, and perhaps also of decided cases, is in favor of the view that such record is valid and sufficient to protect the rights of the mortgagee or grantee in the conveyance. It is said that a party is not bound to search the record of deeds to be protected against a mortgage. To this it may be answered that a proper protection of the interests of one dealing with property demands that he should guard against a prior absolute conveyance of it even more than against an incumbrance on it; and so far as want of notice is concerned, such an one is not in a position to complain that the record of the deed has given him notice of too great an adverse interest.5 A deed absolute upon its face is in law a deed, whatever it may be in equity; its terms control as to the

1 Sawyer v. Adams, 8 Vt. 172; N. Y. Co. v. White, 17 N. Y. 469. 2 Switzer v. Knapps, 10 Iowa, 72; s. c. 74 Am. Dec. 375. A trust deed held properly recorded in the book of mortgages. Swenson v. Bank, 9 Lea, 713.

3 Mobile Bank v. Tishamingo, 62 Miss. 250; Haseltine v. Espey, 13 Oregon, 301; s. c. 10 Pac. Repr. 423; Young v. Thompson, 2 Kan. 83; Kemper v. Campbell, 44 O. St. 210; Ing v. Brown, 3 Md. Ch. 521: Harrison v. Phillips, 12 Mass. 456; Seymour v. Darrow, 31 Vt. 122; DeWolf v. Strader, 26 III. 231; Smith v. Smith, 13 O. St. 532; Gibson v. Seymour, 4 Vt. 518; Clemons v. Elder, 9 Iowa, 273; Gibson v. Hough, 60 Ga. 588, 593; Benton v. Nicholl, 24 Minn. 221; Grellet v. Heilshorn, 4 Nev. 526; Knowlton v. Walker, 13 Wis. 264; Ruggles v. Williams, 1 Head. 141.

4 Dey v. Dunham, 2 Johns. Ch., 182; Luch's Appeal, 44 Pa. St. 519. Ruggles v. Williams, 1 Head. 141; Young v. Thompson, 2 Kan. 83.

place where the recorder shall assign it for record, and as to the effect of the record; and although equity may convert an absolute instrument into a mortgage, it will not do so to the prejudice of the grantee, and hold the record of the instrument ineffectual upon technical grounds, or for the reason that it may operate to some extent as a fraud upon general creditors of one or both the parties.2

$138. Record of Mortgage as a Deed-Continued. The decisions holding that the record, as a deed, of the absolute conveyance is not valid, and not constructive notice of a mortgage, rest upon two distinct grounds: one being afforded by the terms of the particular statutes under construction, and the other being that such decision is demanded by a proper interpretation of the registry laws in their general intent and purpose as designed to afford a protection against fraud. The cases in New York, Pennsylvania and Louisiana may be said to rest principally on the former ground; while those in Connecticut and North Carolina are placed entirely upon the latter. The New York act under construction was a peculiar statute concerning mortgages, by which it was declared that every conveyance which appeared by any other instrument to have been intended as a security in the nature of a mortgage, though absolute in its terms, should be considered a mortgage and liable to be registered as other mortgages. In the Pennsyl

1 Haseltine v. Espey, 13 Or. 301; Nicklin v. Betts, 11 Or. 406; s. C. 50 Am. Rep. 472.

2 Humphries v. Bartee. 10 Sm. & Mar. 282; Hurd v. Brown, 37 Mich. 484; Kuhn v. Groves, 9 Iowa, 305.

8 Cordeviolle v. Dawson, 26 La. Ann. 534; Fisher v. Tunnard, 25 Id. 179; McCan v. Bradley, 38 La. Ann. 482. In the city and parish of New Orleans, the offices of recorder of deeds and recorder of mortgages are, it seems, distinct and separate offices. Succession of Vilabolos, 3 La. Ann. 477; Lee v. Darramon, 3 Rob. 160. And see, as to New York, Wagner v. Hodge, 34 Hun. 524.

4 Brown v. Dean, 3 Wend. 213; White v. Moore, 1 Paige, 551; Grimstone v. Carter, 3 Paige, 421; s. c. 24 Am. Dec. 230; Warner v. Winslow. 1 Sand. Ch. 430; Purdy v. Huntington, 42 N. Y. 343; s. c. 1 Am. St. Rep. 532; James v. Morey, 2 Cow. 246; s. c. 14 Am. Dec. 475.

vania case of Friedley v. Hamilton' there is a strong dissenting opinion by Judge Tod, and while the decision of the majority of the court is followed in subsequent cases, yet the cases in both of these states are all elsewhere declared to turn upon the peculiar phraseolegy of their statutes.2

$139. Continued.

In Connecticut the decision of the matter is put squarely on the ground that to permit the record of a deed absolute to give notice of a mortgage, or to protect the rights of the grantee as a mortgagee, would be contrary to the spirit and purpose of the registry laws; and it is said that such a course would not only destroy all the benefits of the recording system as respects mortgages, but would enable the parties, by a change in the form of the mortgage, to convert the system itself into an instrument of fraud.3 The object of registry, it is said in the North Carolina cases, is to give notice of the existence and extent of the incumbrances, and the true character of the deed must appear in the record to give it protection. Such an instrument, it is declared, works a fraud upon a double set of creditors; cred

In Dey v. Dunham, 2 Johns. Ch. 182, it is said: "This is the language of the statute concerning the registry of mortgages; and recording the deed, as a deed, was of no avail in this case." Yet it is to be noted that this case was afterwards reversed on this point in Dunham v. Dey, 15 Johns. 555.

1 17 Serg. & R. 70. For other cases in that state, see Calder v. Chapman, 52 Pa. St. 359; Edwards v. Trumbull, 50 Pa. St. 509; Carpman v. Baccastaw, 84 Pa. St. 363; Hendrickson's Appeal, 24 Id. 363; McLanahan v. Reside, 9 Watts, 508; s. c. 36 Am. Dec. 136; Luch's Appeal, 44 Pa. St. 519; Jaques v. Weeks, 7 Watts, 261.

2 Young v. Thompson, 2 Kan. 83. "We decline to adopt the views of the courts of that state (Pennsylvania), not only as opposed to the overwhelming weight of authority, but also because we think the rule as announced in that state clearly wrong." Cooper, J., in Mobile Bank v. Tishamingo, 62 Miss. 250.

3 Ives v. Stone, 51 Conn. 446; citing North v. Belden, 13 Conn. 376; Hart v. Chalker, 14 Id. 77; Stearns v. Porter, 46 Id. 313.

Gregory v. Perkins, 4 Dev. 50; and see also, Holcombe v. Ray, 1 Ired. L. 340; Dakes v. Jones, 6 Jones, 14; Gully v. May, 84 N. C. 434,

440.