itors of the grantee, who is thereby falsely held out to be the real and absolute owner; and creditors of the grantor, whose ownership and interest is thereby covered up and hidden.1

3

It is appropriate for the legislature to enact such provisions as may be deemed necessary to effectually guard the registry system against being made in any way auxiliary to fraud; and this has been done in several instances by a proviso that the record of the deed absolute shall be of no effect unless the defeasance is also recorded;2 and even by requiring the condition of defeasance to be embodied in the conveyance itself. However laudable the desire of the courts to prevent fraud, it cannot justify them in annulling the ordinary effect of the record as imparting notice of whatever appears on it; and in making its effect dependent on whether or not, as may be developed by subsequent proof, there is fraud, actual or constructive, in the instrument recorded. If fraud is permitted to vitiate not only the deed, but also the record thereof as imparting notice, it will be difficult to consistently maintain the rule that a subsequent innocent purchaser from a fraudulent grantee is to be protected by the operation of the recording acts. The character of absolute instruments, where they are intended or held to operate as a security, is often ascertained and determined after more or less litigation; and to apply the consequences of want of notice to a failure to register them as mortgages, would, as a rule, shock the conscience of any court.4

1 Byrd v. Wilkinson, 4 Leigh, 266; Stearns v. Porter, 46 Conn. 313. 2 This is the case in New York. Bank's Rev. Stats., pt. 2. ch. 2, §3; Maryland, Rev. Code of 1878, art. 66, §42; Delaware, Rev. Code, ch. 83, $18; Dakota, Civ. Code, §1740; also in Nebraska, New Jersey and California.

8 This is the case in New Hampshire. Gen. Laws of 1878, ch. 136, §2. 4 Kemper v. Campbell, 44 O. St. 210; s. c. 3 West. Repr. 620. In this case it was held that a deed absolute on its face, but in reality intended as only a security, was properly recorded as a deed; and in addition, that where recorded at any time within the six months allowed for the recording of deeds, it related back to the date of the instrument, al

.

140. Filing for Record.

The effect of notice as given by some of the statutes to the mere act of filing or depositing an instrument for record, has been already considered.1 The deposit of a conveyance with the recorder, with instructions not to place it on record until further directions, is not a filing for record; and when the instrument is recorded, its registry will date from the time of such last instructions, and not from the time it was delivered to the officer. If recorded before such instructions are received, the record is not notice. The certificate or indorsement of the recorder is usually held sufficient and conclusive proof of the fact and date of filing, but not that the instrument was actually transcribed on the records. If the recorder though no such privilege is allowed in that state to mortgages proper. Said Minshall, J.: "Transactions which in equity are construed as mortgages, arise under a great variety of forms, to many of which, if not all, it would be difficult to apply the statutes applicable to the registration of mortgages proper.”

Under the New York Acts of 1883, ch. 279, a bill of sale duly filed has been held good as a mortgage, although the agreement that it should be a mortgage was in parol. Preston v. Southwick, 42 Hun. 291, Landon, J., dissenting.

In Georgia a deed absolute, although intended to secure a debt, and though there be a bond to re-convey, is not considered a mortgage, but passes the legal title; hence could be properly recorded only as a deed. Keith v. Catchings, 64 Ga. 773; Thaxton v. Roberts, 66 Ga. 704.

The Maryland statute requires an affidavit of bona fides to the record of mortgages, and the court held this to apply only to purely technical mortgages, not to deeds of trust nor to equitable mortgages. "A deed absolute on its face," said Eccleston, J., "if intended to be a mortgage, will be so declared by a court of equity, and I presume it will not be said that if such a deed is without the oath, it will be void under the act." Charles v. Claggett, 3 Md. 82; Carson v. Phelps, 40 Md. 73.

1 See ante, §§16-18.

2 Town v. Griffith, 17 N. H. 165; Brigham v. Brown, 44 Mich. 59; Worcester Bank v. Cheeney, 87 Ill. 602.

3 Haworth v. Taylor, 108 III. 275.

4 Where a deed was found in the register's office indorsed, "Registered April 28th, 1795," this was held prima facie evidence that it was filed for record at that date, although the clerk's name was not appended to such indorsement. Parker v. Phillips, 9 Cow. 94. The omission of the clerk to enter the fact of the record on the instrument will not invalidate or affect its registry. Grice v. Haskins, 77 Ga. 700. An instrument is notice from the time of its deposit, though the recorder neglects to mark it "filed." Houghton v. Burnham, 22 Wis. 301.

has failed to note the time at which the instrument was received, or the entry in the index book shows upon its face that it was not made at the time of such reception for record, parol evidence is admissible to show the true date.1

$141. Filing and Withdrawal.

Where a deed has been filed for record, but is subsequently withdrawn from the office before it is recorded, the effect of the filing, and the priority it might have given, is destroyed. Where a party tiled his deed and afterwards withdrew it to be canceled and substituted by another deed of the same property, and then filed the new deed on the afternoon of the next day, it was held to have no priority over another deed of the property to another person filed in the forenoon just preceding.3 It is immaterial for what purpose the deed is withdrawn.4

The record is the instrument of notice to subsequent purchasers, of the state of the title, and to permit it in any manner to be affected by parol or extraneous evidence would not only destroy its value for that purpose, but would convert it into an instrument for deception." Hatch v. Haskins, 17 Me. 391. For further cases supporting the text, see Ames v. Phelps, 18 Pick. 314; Worcester Bank v. Cheeney, 87 Ill. 602; Fuller v. Cunningham, 105 Mass, 442; N. Y. Life Ins. Co. v. White, 17 N. Y. 469; Bullock v. Wallingford, 55 N. H. 619; Dubose v. Young, 10 Ala. 365; Thorp.v. Merrill, 21 Minn. 336; Wing v. Hall, 47 Vt. 182; Head v. Goodwin, 37 Me. 181.

1 Metts v. Bright, 4 Dev. & Bat. 173; s. c. 32 Am. Dec. 683; Hay v. Hill, 24 Wis. 285; Boyce v. Stanton, 15 Lea (83 Tenn.), 346; and even to show when a deed was recorded. Horsley v. Garth. 2 Gratt. 471; s. c. 44 Am. Dec. 393; Gorham v. Summers, 25 Minn. 81.

2 Johnson v. Borden, 40 Vt. 567; s. c. 94 Am. Dec. 436; Kiser v. Henston, 38 Ill. 252; Hickman v. Perrin, 6 Cold. 135.

Clamorgan v. Lane, 9 Mo. 446. In Ohio it has been held that where the mortgagee withdraws a chattel mortgage from the recorder's office for a temporary purpose, the mortgage does not lose its lien thereby, nor will it be prejudiced by a levy made during such withdrawal of the same. Wilson v. Leslie, 20 Ohio, 161.

4 Worcester Bank v. Cheeney, 87 Ill. 602. But if such mortgage be withdrawn from the files wrongfully and without the mortgagee's authority, his lien is not affected and remains good against an attachment, especially where the attaching creditor had actual knowledge of the lien. Swift v. Hall, 23 Wis. 532. So where a mortgage was withdrawn and afterwards returned, but the clerk failed to make an entry, the mortgagee's lien was held not prejudiced by a levy made after such return, though the creditor did not know of it. Woodruff v. Phillips, 10 Mich. 500.

$142. Indexing.

The statutes usually provide that recorders shall keep proper alphabetical indexes of all instruments filed with them for record; the requirement sometimes including a general index besides those to be kept with each separate book or class of books. Where the statute did not require a general index, but the recorder kept one in accordance with custom, it was held that his failure to enter a conveyance in such general index was not a matter of which a subsequent purchaser could avail himself to avoid the effect of record notice of the instrument.1 The index is for the convenience of persons searching the records, but is not an essential part of the record, and while a failure to properly index an instrument may lay the officer liable to damages for such neglect,3 it does not vitiate the notice imparted by the record. The preponderance of decision and of reason is in favor of this view; but a contrary rule, based principally on the terms of the statute, prevails in several states, wherein it is held that the record is not complete so as to

1 Schell v. Stein, 76 Pa. St. 398; Nichol v. Henry, 89 Ind. 54. The volume index may be kept separate, or bound in with the record book of which it is an index. Benton v. Nicholl, 24 Minn. 221.

2 Chatham v. Bradford, 50 Ga. 327. A general index only, held sufficient. Oconto v. Jerrard, 46 Wis. 317.

3 Bishop v. Schneider, 46 Mo. 472; s. c. 2 Am. Rep. 533; Musgrove v. Bosner, 5 Or. 313.

Barrett v. Prentiss, 57 Vt. 297; Board v. Babcock, 5 Or. 472; Mutual Life Ins. Co. v. Dake, 1 Abb. N. C. 381; Bishop v. Schneider, supra; Green v. Carrington, 16 O. St. 548; s. c. 91 Am. Dec. 103; Chatham v. Bradford, supra; Gilchrist v. Gough, 63 Ind. 576; Lincoln v. Hass, 10 Neb. 581; Wade on Notice, §§164-169; Stockwell v. McHenry, 107 Pa. St. 237; s. c. 52 Am. Rep. 475; Swan v. Vogel, 31 La. Ann. 38; Semon v. Terhune, 40 N. J. Eq. 364, 367; Ely v. Wilcox, 20 Wis. 523; s. c. 91 Am. Dec. 436; Bedford v. Lupper, 30 Hun. 174; Devlin on Deeds, §§692-696.

"Every consideration of the subject and construction of the statute, founded on the convenience or inconvenience, real or supposed, of searching the records in the manner in which they are kept or indexed, is wholly impertinent, and, therefore, deceptive and liable to lead to error." Dixon, C. J., in Fallas v. Pierce, 30 Wis. 442. Arguments ab inconvenienti are out of place where the language of the law makes it plain. Inconveniences will result whichever way the question is decided. Mutual Life Ins. Co. v. Dake, supra.

impart constructive notice, until all the requirements of the law are fulfilled.

$143. Special Statutory Index.

Some of the statutes provide for an index so full in its details as to give, in addition to names and dates, a substantial description of the nature of the instrument and of the property conveyed by it. A deed by mistake gave a wrong description of the property, but contained recitals sufficient to put a party on inquiry as to the mistake. The index, giving the erroneous description briefly, did not, of course, contain these recitals, and it was held that a subsequent purchaser was not charged with notice by the recitals, because not bound to go beyond the index. But where the record of the deed discloses a defect in the instrument not contradicted by or opposed to the index entries, as want of two witnesses where these are essential, it cannot be maintained that the index alone sufficiently imparts proper constructive notice, and such record is ineffectual. A description of the property in the appropriate column of the index as "certain lots of land," has been held sufficient.5

3

1 Barney v. McCarty, 15 Iowa, 510; s. c. 83 Am. Dec. 427; Barney v. Little. Id. 527; Sawyer v. Adams, 8 Vt. 172; Guinn v. Turner, 18 Iowa, 1; Speer v. Evans, 47 Pa. St. 141. In this last case the decision of the point was not necessary in the case. See also, Gillig v. Maas, 28 N. Y. 191. A purchaser is not bound to look beyond the index for a recorded incumbrance. So held as to a mortgage by Furman indexed as Freeman. Howe v. Thayer, 49 Iowa, 154.

2 Rev. Code of Iowa (1873), §1943; Rev. Stats. of Wisconsin (1878), §§759, 760; Oconto v. Jerrard, 46 Wis. 317.

3 Scales v. Wilsey, 11 Iowa, 261; and see also, Howe v. Thayer, supra; Breed v. Conley, 14 Iowa, 269; s. c. 81 Am. Dec. 485.

Pringle v. Dunn, 37 Wis. 449; s. c. 19 Am. Rep. 772; Shepherd v. Burkhalter, 13 Ga. 443; Brown v. Kirkman, 1 O. St. 116; Oconto v. Jerrard, 46 Wis. 317. And so, where the certificate of acknowledgment is defective, indexing does not suffice to charge notice. Greenwood v. Jenswald, 69 Iowa, 53. See also, Peters v. Ham, 62 Iowa, 656. Where the index is defective, there is no constructive notice until the deed is actually transcribed; but the presumption is that both were done at cas same time. Oconto v. Jerrard, 46 Wis. 317.

Bostwick v. Powers, 12 lowa, 456.