And so, even, where the words "see record" were written in the column where the description of the land should have been placed. Whether this statutory indexing is absolutely essential to the record, depends much on the terms of the statutes. Usually its entire omission is fatal.2

1 White v. Hampton, 13 Iowa, 259. Where the deed was duly recorded but the index gave a wrong township, range and section number from the true description, the addition of the words, "For description see record." did not cure the error so as to enable the record to impart constructive notice. Breed v. Conley, 14 Iowa, 269; s. c. 81 Am. Dec. 485.

Where the property was correctly described in the index, but through mistake in copying, there was an erroneous description of it in the record of the deed, the mistake was held immaterial as the index imparted the proper notice. Shove v. Larsen, 22 Wis. 142, citing Flowers v. Wilkes, 1 Swan, 408; Merrick v. Wallace, 19 Ill. 486.

The recorder omitted the name of the mortgagee in transcribing the instrument, but it appeared in the entry book, and the record was held to impart constructive notice. Sinclair v. Slawson, 44 Mich. 123; s. c. 38 Am. Rep. 235. A mortgage by husband and wife, of lands of the wife, was indexed under the name of the husband alone, and held sufficient. Jones v. Berkshire, 15 Iowa, 248. But where the deed conveyed two tracts, and only one was mentioned in the index, the record was notice only of that one. Noyes v. Horr, 13 Iowa, 570. A mortgagee from one whose deed recites a prior mortgage, is charged with notice of such prior mortgage, though it be not indexed. Eina Life Ins. Co. v. Bishop, 69 Iowa, 645; s. c. 29 N. W. Repr. 761.

In Texas a recorded abstract of judgment is not notice until indexed as required for such abstracts, although as to instruments generally the rule prevails in that state that they operate as notice from their filing for record. Rev. Stats., arts. 3157-3159; Belbaze v. Ratto, 69 Tex. 636; Miller v. Koertge, 70 Tex. 162; s. c. 7 S. W. Repr. 691.

2 Hendley v. Howe, 22 Me. 560; Holmes v. Sprowl, 31 Me. 73; Miller v. Koertge, 70 Tex. 162. But see Smith v. Waggoner 50 Wis. 155; 9 Am. Law Rec. 358.

An omission to enter the description of the land under the appropriate head in the index, held to be cured by transcribing the deed in full in the records. St. Croix Land Co. v. Ritchie (Wis.), 41 N. W. Repr. 345; Oconto v. Jerrard, 46 Wis. 317; except where there are no entries at all in the index. Lombard v. Culberson, 59 Wis. 537; s. c. 18 N. W. Repr. 399. In the absence of proof, it will be presumed that the transcribing and indexing were done at the same time. Lane v. Duchac, (Wis.), 41 N. W. Repr. 962. See further as to indexing, Paige v. Lindsey, 69 Iowa, 593; s. c. 29 N. W. Repr. 615. Where a chattel mortgage was filed, but was not indexed until the next day, an intervening attachment lien took precedence. Hibbard v. Zenor (Iowa), 39 N. W. Repr. 714; Code of Iowa, §1925.

As a rule, delivery of a deed or other instrument is essential to its valid registration,' for the reason that until delivery the deed is incomplete, and its record cannot impart constructive notice of a change of ownership that has not occurred. The record of a deed without any knowledge of it on the part of the grantee is not equivalent to delivery, unless it be shown that on being informed of it he assented to it, in which case the record will be notice from the time of such assent, or from the time of the delivery of the instrument to the grantee, if delivered subsequent to its record.5 In some cases of mortgages given to secure a pre-existing debt, the assent of the mortgagee has been presumed, and the record held, as against other cred

1 Weber v. Christen, 121 Ill. 91; s. c. 2 Am. St. Rep. 68; 11 N. E. Repr. 793; Sampson v. Thornton, 3 Metc. 275; Jackson v. Phipps, 12 Johns. 418.

2 Parker v. Hill, 8 Metc. 447; Wade on Not.. §141; Fitzgerald v. Goff, 99 Ind. 28; Wood v. Ingraham, 3 Strobh. Eq. 105; s. c. 51 Am. Dec. 671; Woodbury v. Fisher, 20 Ind. 387; s. c. 83 Am. Dec. 325.

Where the deed of a father to his son remained in the house of both for seven years, and was recorded after the father's death, held not good against creditors of the father's estate, or purchasers at the adininistrator's sale, without proof of actual delivery in the father's lifetime. Lank v. Hiles, 4 Houst. (Del.), 87; and to same effect, Peterson v. Kilgore, 58 Tex. 88; Durand's Appeal, 116 Pa. St. 93; s. c. 8 Atl. Repr. 922. A delivery to a third person, to be recorded after the death of the grantor, has been held sufficient. Hinson v. Bailey, 73 Iowa, 544; s. c. 5 Am. St. Rep. 700; 35 N. W. Repr. 626; Smiley v. Smiley, 114 Ind. 258; s. c. 16 N. E. Repr. 585; but see Scott v. Scott, 95 Mo. 300; s. c. S S. W. Repr. 161.

3 Day v. Griffith, 15 Iowa, 104; Weber v. Christen, supra; National Bank v. Morse, 73 Iowa, 174; s. c. 5 Am. St. Rep. 670; 34 N. W. Repr. 803; Woodbury v. Fisher, supra; Herbert v. Herbert, Breese, 354; s. o. 12 Am. Dec. 192; Parmelee v. Simpson, 5 Wall. 81.

Recording is prima facie delivery. Stevens v. Castel, 63 Mich. 111; Tobin v. Bass, 85 Mo. 654; Deere v. Nelson, 73 Iowa, 186; Standiford v. Standiford (Mo.), 10 S. W. Repr. 836; Patrick v. Howard, 47 Mich. 40; Conlan v. Grace (Minn.), 30 N. W. Repr. 880; Millaudan v. Allord, 2 La. Ann. 551. And may sufficiently indicate the intent of the grantor. Love v. Francis. 63 Mich. 181. Contra, recording is not sufficient. McGraw v. McGraw, 79 Me. 257. See cases in last note to this section.

♦ Parker v. Hill, 8 Metc. (49 Mass.), 447; Farmer's Bank v. Drury, 38 Vt. 426; and cases supra.

Jones v. Roberts, 65 Me. 273; Carnall v. Duvall, 22 Ark. 136.

itors, to be effectual from its date. Possession by the grantee of an acknowledged deed is prima facie evidence of delivery, and in the absence of proof, it will be presumed to have been delivered at the date of its execution and acknowledgment. Where the date of the deed is prior to that of the acknowledgment, the presumption of delivery, in some states, still attaches to the date of the instrument, while in others it is presumed to have been delivered at the date of acknowledgment.5 If there are conditions precedent to be performed before the sale is to be complete and binding on the grantee, the record of the

1 Merrills v. Swift, 18 Conn. 257; Ensworth v. King, 50 Mo. 447; Millaudan v. Allord, 2 La. 551; Hill v. Barlow, 6 Rob. 142. This law, however, is doubted. See Jones on Mort., §540; Johnson v. Farley, 45 N. H. 505; Jones on Chat. Mort., $$104-113.

Where a mortgagor delivered the mortgage to the register to be recorded on the happening of a certain contingency which never arose, but the register recorded it, and returned it to the mortgagor, who wrote to the mortgagee that he had secured the debt by mortgage as agreed, and afterwards, on being declared a bankrupt, scheduled the mortgage to the secured creditor, a finding of a delivery of the mortgage was sustained. Nazro v. Ware, 38 Minn. 443; s. c. 33 N. W. Repr. 359, citing Conlan v. Grace, 36 Minn. 281; s. c. 30 N. W. Repr. 880.

2 Scott v. Scott, 95 Mo. 300; s. c. 8 S. W. Repr. 161; Reed v. Douthit, 62 Ill. 348; Tuttle v. Turner, 28 Tex. 759; Kedder v. Stevens, 60 Cal. 414; Houston v. Stanton, 11 Ala. 412; Billings v. Stark, 15 Fla. 297; Boody v. Davis, 20 N. H. 140; s. c. 51 Am. Dec. 210; Brittain v. Work, 13 Neb. 347.

Purdy v. Coar, 109 N. Y. 369; s. c. 4 Am. St. Rep. 491; Bruce v. Slemp, 82 Va. 352; Alexander v. DeKernel, 81 Ky. 345; Hardin v. Osborne. 60 Ill. 93; Raines v. Walker, 77 Va. 92; McConnell v. Brown, Litt. Sel. Cas. 462; Burke v. Adams, 80 Mo. 504; s. c. 50 Am. Rep. 510; Speed v. Brooks, 7 J. J. Marsh. 119; Windom v. Schappeil (Minn.), 38 N. W. Repr. 757; Ellsworth v. Cent. Ry. Co., 34 N. J. L. 93.

Darst v. Bates, 51 Ill. 439; Harden v. Crate, 78 Ill. 573; Ward v. Dougherty, 75 Cal. 240; People v. Snyder, 41 N. Y. 402; and see Breckenridge v. Todd, 3 Mon. 52; s. c. 16 Am. Dec. 83; 1 Dev. on Deeds, $265; Hardy v. Norfolk. 80 Va. 404, citing Raines v. Walker, 77 Va. 92; Harman v. Oberdorfer, 33 Gratt. 497; Chaffe v. Halpin, 62 Miss. 1.

5 Blanchard v. Tyler, 12 Mich. 339; Clark v. Akers, 16 Kan. 166; Loomis v. Pingree, 43 Me. 299; Fontaine v. Boatmen's Bank, 57 Mo. 553.

Where the date of the acknowledgment was long prior to the date of the deed, it was presumed that the officer certified the date correctly as required by the statute. Cover v. Manaway, 115 Pa. St. 338; s. c. 2 Am. St. Rep. 552.

deed, even with the grantee's knowledge thereof, has been held ineffectual where there was a failure of the required conditions. The recording of a deed is not equivalent to delivery, but, like possession of it, is prima facie evidence of that fact, subject to be overcome by contrary proof.2

$145. Attesting Witnesses.

In a number of states attesting witnesses are essential to a deed or mortgage, even though it be acknowledged.3 Where this is the case, or where by the terms of the statute witnesses are made a pre-requisite to registry, the record of a deed without the required number of witnesses will not impart constructive notice, even though the defect be not apparent on the face of the instrument, as where one of the two witnesses was disqualified because she was the wife of the grantor.5 The record will not be aided by the fact 1 Leppoc v. Union Bank, 32 Md. 136, cited at length in 1 Dev. on Deeds. $293.

2 Peterson v. Kilgore, 58 Tex. 88; Fletcher v. Horne, 75 Ga. 134; Moody v. Dryden, 72 Iowa, 461; Younge v. Gilbeau, 3 Wall. 636; Metcalfe v. Brandon, 60 Miss. 685; Knolls v. Barnhart, 71 N. Y. 474. Recording is equivalent to delivery in the absence of fraud in the grantor. Levy v. Cox, 22 Fla. 546, 580; Hammell v. Hammell, 19 Ohio, 17; Jefferson Co. v. Heil, 81 Ky. 513.

3 Under Rev. Stats. of La., §§596-603, acts acknowledged before a Louisiana commissioner have no effect, unless the acknowledgment take place before two competent witnesses. Leibe v. Hebersmith, 39 La. Ann. 1050; s. c. 3 South. Repr. 283.

Under Comp. Laws of Utah, p. 255, §9, an acknowledged deed without witnesses does not convey title. Tarpey v. Desert Salt Co., 14 Pac. Repr. 338, citing U. S. v. Crosby, 7 Cranch, 115; Townsend v. Little, 109 U. S. 512; Kingsley v. Holbrook, 45 N. H. 320; Crane v. Reeder, 21 Mich. 60; Winsted v. Spencer, 26 Conn. 195. Where two attesting witnesses were required, and only one signed in the usual place, but an additional witness signed, with the grantor, a memorandum of the insertion of an omitted word, this was held sufficient. Culbertson v. Witbeck Co., 127 U. S. 326; s. c. 8 Sup. Ct. Repr. 1136.

4 Gardner v. Moore, 51 Ga. 268; Morrill v. Morrill, 60 Vt. 74; Galpin v. Abbott, 6 Mich. 17; Ross v. Worthington, 11 Minn. 438; s. c. 88 Am. Dec. 95; Thompson v. Morgan, 6 Minn. 292; White v. Denman, 16 Ohio, 59; s. c. 1 O. St. 110; Frostburg v. Brace, 51 Md. 508; Harper v. Barsh. 10 Rich. Eq. 149; N. Y. Life Ins. Co. v. Staats, 21 Barb. 570; Potter v. Strausky, 48 Wis. 235; Hastings v. Cutler, 24 N. H. 481; Batte v. Stone, 4 Yerg. 168.

5 Carter v. Campion, 8 Conn. 549.

that the instrument is properly indexed where the lack of witnesses is not contradictory of any of the recitals in the index. The rule has also been applied to a case where the deed in fact had the requisite number of witnesses, but the record, through mistake in copying, failed to show that fact.2

$146. Sealing and Signing.

3

In a majority of the states the use of private seals has been wholly dispensed with by statute. Where it is required that an instrument shall be under the seal of the grantor or maker, it has been held that the record of a deed without the seal is of no effect. The courts, however, are not disposed to attach such effect to the omission of the mere formality of a scrawl that now usually constitutes the seal; and upon the ground that equitable titles are embraced within the registry acts, and that an instrument without seal conveys the equitable title, the record in such cases has been sustained.4

If the record show the deed to be without signature, it will be ineffectual, though the instrument was in fact prop

1 Pringle v. Dunn, 37 Wis. 449; s. c. 19 Am. Rep. 772, citing Bishop v. Schneider, 46 Mo. 472; s. c. 2 Am. Rep. 533.

2 Parrett v. Shaubhut, 5 Minn. 323; s. c. 80 Am. Dec. 424. The later statute of 1872 is different. Moreland v. Laurence, 23 Minn. 84. In Alabama, a deed without either witnesses or acknowledgment is void. Hendon v. White, 52 Ala. 597, citing French v. French, 3 N. H. 234; Clark v. Graham, 6 Wheat. 577. See McGowan v. Reid, 27; S. Car. 162. 3 Racouillat v. Sausevain, 32 Cal. 376; Racouillat v. Rene, Id. 450. See Wallace v. Moody, 26 Cal. 387.

Where a sheriff's deed was signed, acknowledged and recorded, without sealing, its subsequent sealing, without re-acknowledgment, was held not to make it available to protect the purchaser under it in an action brought for the land. Lessee of Merritt v. Home, 5 O. St. 307.

If the instrument was properly sealed when executed, the subsequent detachment of the seal does not invalidate it, unless it be proved that the seal was detached before the instrument reached the clerk's office for record. Van Riswick v. Goodhue, 50 Md. 57.

4 McClurg v. Phillips, 57 Mo. 214; Portwood v. Outton, 3 B. Mon. 247; Harrington v. Fortner, 58 Mo. 468; Brydon v. Campbell, 40 Md. 331; Wade on Notice, §140.