theory of the legislation, and the courts, as a rule, have in their judicial interpretation of it sought to give effect to this general design. The purpose of registry has been by the courts declared to be: (1) to preserve the muniments themselves of titles; (2) to perpetuate the evidence of their voluntary execution; and (3) to give the community notice of the changes in the ownership of property; and the laws to effectuate these objects are said to be founded on large grounds of public policy.2

$5. Conflict of Decisions.

Yet while this general theory and intent substantially prevails in the legislation and judicial decision of all the states, there is a noticeable want of harmony in many important particulars, and as to a few of even the leading principles, there is a positive conflict that will be difficult to reconcile without the aid of further legislation, based upon a somewhat broader statesmanship and a more thorough comprehension of the subject than seems to have yet prevailed in some localities.3 Each state has, as a rule, legisMcCabe v. Grey, 20 Cal. 509; Grant v. Bissett, 1 Caines Cas. 112; Jackson v. Given, 8 Johns. 137; Jackson v. Van Valkenburgh, 8 Cow. 260; Cook v. Travis, 20 N. Y. 400; Taylor v. Thomas, 5 N. J. Eq. 331; Buchanan v. International Bank, 75 Ill. 500; Earle v. Fisk, 103 Mass. 491, 494; Routh v. Spencer, 38 Ind. 393; Holbrook v. Dickinson, 56 Ill. 497; Hogden v. Guttery, 58 Ind. 431; Harrington v. Allen, 48 Miss. 493. 1 See Philbrook v. Delano, 29 Me. 414; Bayley v. Greenleaf, 7 Wheat. 46; Barrett v. Barrett, 31 Tex. 344; Acer v. Westcott, 46 N. Y. 384; s. c. 7 Am. Rep. 355; Sowden v. Craig, 26 Iowa, 156; s. c. 96 Am. Dec.

125.

2 Yerger v. Young, 9 Yerg. 37; Ruggles v. Williams, 1 Head, 141; Sanders v. Harris, 5 Humph. 343.

3 In construing the registry acts, two different considerations have contended for the mastery; sometimes the one prevailing, and sometimes the other. The first is, that these acts are intended to prevent fraud, are beneficial in their operation, and hence are to be liberally construed. This view is sustained by the cases cited in the preceding section. The other view is that these acts are in derogation of the common law, are purely statutory in all their features, and are to receive a strict construction-such an one as demands an almost literal compliance with the statute. See Hawkins v. Burress, 1 Har. & J. 513; Boykin v. Rain. 28 Ala. 332; s. c. 65 Am. Dec. 349; Hitz v. Jenks, 123 U.

lated upon the subject without reference to the laws of other states, and with the result that scarcely any two of the recording acts are alike. Since registration is a matter dependent entirely upon the statute, the force and effect of a difference in the statutory terms employed is greater than it would otherwise be; and to this diversity is due in a large measure the confusion and the apparent conflict of decision that may be found. In the exposition and application of the principles of registration much of this conflict of decision is apparent rather than real; and it may be further remarked that, aside from differences in the specific terms of the statutes; this conflict among the courts may be largely attributed to a general difference in the structure and scope of the several statutory systems, such as to influence a difference in the rules of construction to be applied. A knowledge of the statutes, at least as to their leading features of similarity and dissimilarity, is essentially necessary to a proper understanding of the American law of registration.1

$6. Leading and Similar Features.

In every state, as already mentioned, registration is held to impart constructive and absolute notice of the contents of instruments authorized by law to be recorded. This leading principle of the American registry law proceeds on the theory that one who willfully omits to inform himself of what the public records place within reach of his S. 298; s. c. 8 Sup. Ct. Repr. 143; Wetmore v. Laird, 5 Biss. 160; Merritt v. Yates, 71 Ill. 639; Dewey v. Campau, 4 Mich. 565; Rice v. Peacock, 37 Tex. 392.

1 See 2 Pomeroy's Eq. Juris. §646, and notes thereto; also Stimson's Am. Stat. Law, §§1570-1632, and the last chapter of this work. Some of the most essential differences in the law relate to the rights of creditors, to conveyances by married women, the doctrine of actual notice, and to priority in registration.

2 Edwards v. Barwise, 69 Tex. 84; s. c. 6 S. W. Repr. 677; Stevenson v. Morse, 17 N. H. 532; Van Rensellaer v. Clark, 17 Wend. 25; Thomas v. Kennedy, 24 Iowa, 397; Shore v. Lascar, 22 Wis. 142; Irvin v. Smith, 17 Ohio, 226; Cushing v. Ayer, 25 Me. 383; James v. Morey, 2 Cow. 216.

knowledge, is not less chargeable with notice than if he knew. He should not be allowed to profess ignorance of a deed duly registered, and whether he examines the registry or not, the presumption against his good faith is equally strong. The rule was established on this basis in some of the states by judicial decision and in others by legislation.1 So, in all the states, with but limited exception, actual notice, meaning here notice other than that imparted by the record, supplies the place of registration, although, as will be seen hereafter, there is some conflict and confusion as to the character and extent of the notice that will suffice for this purpose.2 It is also the universal rule that, although the language of the statute may be permissive only, registration, as relating to real estate, is held to be mandatory in the sense that a failure to record gives to subsequent parties dealing with the property in good faith a superior right. The few limitations of this rule, relating to special classes of instruments, and the rule as relating to personal property, will be noticed hereafter. In all the states the record of an instrument affecting land must be made in the county where the land lies, excepting that in some of the western states having counties yet unorganized, special provision is made for such counties.5 Everywhere a subsequent purchaser for valuable consideration and without notice is protected by the registry acts; but as to creditors and other classes the rule is not so universal. These are all the leading principles in reference to which it can be said that the laws

12 Lead. Eq. Cas. (4 Am. ed.) 203; Martin v. Sale, 1 Bailey's Eq. 1; Mann v. Martin, 4 Md. 124; Parkhurst v. Alexander, 1 Johns. Ch. 394; Keiser v. Houston, 38 Ill. 252.

2 See, post, ch. IX; Wade on Notice, $$1-10; 2 Devlin on Deeds, $$725-728; 2 Pomeroy's Eq. Juris. §§592–595.

The rule that actual notice supplies registry does not obtain in Louisiana. Payne v. Pavey, 29 La. Ann. 116, 117; and as to mortgages, this is the case in several other states. See, post, §§214-17.

3 Neslin v. Wells, 14 Otto (104 U. S.) 428.

4 See, post, $39, and ch. X.

5 Stimson's Am. Stat. Law, $1614; Adams v. Hayden, 60 Tex. 223; 2 Sayles' Tex. Stats. §4333; post, ch. VI; also note on p. 16.

of the states are substantially in accord with each other. In other respects the statutes and decisions are not always in harmony, though in some instances there is a decided weight of authority and precedent one way or the other.

§7. Time Allowed for Recording.

The statutes of several states and territories provide in effect that instruments recorded within a specified time after their execution shall have priority over any instrument of later date.1 In such cases the record, when made within the prescribed time, relates back to the date or delivery of the instrument, and gives priority over a subsequent instrument, though it may already be on record.2 The instrument, when recorded after the prescribed time, operates as notice only from the date of the filing and recording. Mortgages, if accorded the privilege of time at all, usually have a more limited period than is prescribed for deeds. The period of time within which deeds may be recorded varies from five days in Oregon,5 to one year in Georgia and other states, and formerly two years in North Carolina. This difference, and the further fact that in more than two-thirds of the states no such provision as to time exists at all, indicates at once what a fuller consideration demonstrates to be true, namely: that this privilege is a feature pertaining to the law of registration, having no substantial basis of merit

1 See, in chapter 11, post, the statutory laws of Alabama, Georgia, Indiana, Kentucky, Maryland, New Jersey, Oregon, Pennsylvania, South Carolina and Virginia.

2 Betz v. Mulin, 62 Ala. 365; King v. Fraser, 23 S. Car. 543; Dale v. Arnold, 2 Bibb. 605; McConnell v. Brown, Lit. Select Cases, 462; Breckinridge v. Todd, 3 Mon. 54; Claiborne v. Holmes, 51 Miss. 146; Phelps v. Barnhart, 88 N. C. 333.

3 Anderson v. Dugas, 29 Ga. 440; Hand v. McKinney, 25 Ga. 648; Meni v. Rathbone, 21 Ind. 454; Steele v. Mansell, 6 Rich. 437; Mallory v. Stodder, 6 Ala. 801. This rule does not always hold good as to chattel mortgages. Briggs v. Fleming, 112 Ind. 313; S. Car. 14 N. E. Repr. 86; Si ner v. Bible, 43 Ind. 230; Drew v. Streeter, 137 Mass. 460; post, $254.

✦ See, post, §29, and statutory provisions in the last chapter. * Gen'l Laws of Oregon (1872), ch. 6, §26.

• Code of Georgia (1882), art. 2705.

underlying it. A century since such provision doubtless had some justification in certain localities, arising from the want of public mails and other facilities for early communication, and it is now perhaps suffered to remain on the statutes in deference to ancient custom. It operates as a practical cessation and withdrawal of the protection afforded to third parties by the registry laws for the period of time prescribed, and as this period begins from the date of an instrument that is entirely unknown to a bona fide subsequent purchaser or incumbrancer, it follows that, however clear the record may be at the time his right accrues, his purchase, though made upon valuable consideration and without any notice whatever, is liable until the expiration of the prescribed and, to him, unknown period of time, to be supplanted and overridden by another and secret conveyance, of which he had neither actual nor constructive notice. In certain localities, and as to a limited class of instruments, a privilege or preference for record of the entire day upon which the instrument was executed, is extended by statute, and such statutes have a substantial reason in their favor. This subject is presented in detail in a succeeding chapter.2

§8. Acknowledgment as a Prerequisite to Registry. Heretofore the law has been almost without exception that an acknowledgment has been required to entitle a deed to be recorded.3 Latterly, however, the rule has been

1 17 Biennial Laws of Del., 213, §4.

2 Chap. 5. In Louisiana, a mechanic's lien or other privilege, as against a mortgage already of record, must be recorded on the day the contract is entered into, in order to have preference; Gay v. Bovard, 27 La. Ann. 290; but record of the privilege at any time is good as against a mortgage subsequently recorded. McIlvaine v. Legare, 34 La. Ann. 923; and against third parties without lien. Succession of Clay, 34 Id. 1131.

3 Craddock v. Merrill, 2 Tex. 495; Bank v. Neal, 28 W. Va. 744; Taylor v. Harrison, 47 Tex. 454; s. c. 26 Am. Rep. 304; Stevens v. Hampton, 46 Mo. 404; Work v. Harper, 24 Miss. 517; White v. Denman, 1 0. St. 110; Dussaume v. Burnett, 5 Iowa, 95; Greenwood v. Jenswold, 69 Iowa; 53; s. c. 28 N. W. Repr. 433; Hitz v. Jenks, 123 U. S.