$151. Payment of Recording Fees.

2

A provision in the statute that "no deed shall be admitted to record until the tax is paid thereon," is merely directory. If the officer records the deed without the payment of the tax, the record is not invalid, but he assumes the tax.1 So, if he sees proper to waive his right to the prepayment of his fees, he must record the deed and look for payment to the person depositing it for record. A mortgagee cannot, in the absence of an agreement to that effect, hold the mortgagor liable for the payment of the fee for recording the mortgage, as its registration is solely for his benefit and protection. Records are subject to public inspection, but if the services of the officer are in any way required, he is entitled to charge a fee; hence it is held in Georgia that no one is entitled to examine the records and make abstracts without the payment of any fee.*

3

corded instrument is prima facie of the instrument, and conclusive evidence of its record. Rev. Stats., §4143. And usually so by decision. Fuller v. Cunningham, 105 Mass. 442; Head v. Goodwin, 37 Me. 181; ante, $140.

1 Lucas v. Claflin, 76 Va. 269; Hoffman v. Mackall, 5 O. St. 124; s. c. 64 Am. Dec. 637.

2 Ridley v. McGee, 2 Dev. 40; Bussing v. Crain, 8 B. Mon. 593; People v. Bristol, 35 Mich. 28; Dodge v. Potter, 18 Barb. 193.

3 Simon v. Sewell, 64 Ala. 261.

Where a deed has been filed and the recording fees paid, it will be presumed that the clerk did his duty and recorded it-the deed being lost and the record thereof buruel. Harrison v. McMurray (Tex.), 8S. W. Repr. 612; and see also, Perkins v. Strong, 22 Neb. 725.

For case where, because of non-payment of the tax, or fee, the record was held not to impart notice, see Phillips v. Clarke, 4 Met. 348; s. c. 83 Am. Dec. 471.

A deed lodged for record passes title, though not recorded because the fee is not paid. Knight v. Williams, 6 Bush, 51; s. c. 99 Am. Dec. 652. Where a deed is sent to the recorder without the fees, it is not "lodged for record." Dickerson v. Bowers, 42 N. J. Eq. 295; s. c. 11 Atl. Repr. 142; 7 Cent. Repr. 372.

A stipulation in the mortgage that the mortgagor binds himself to pay all costs of recording and foreclosure, is valid, and the lien is good for such costs. Boutwell v. Steiner, 84 Ala. 307; s. c. 5 Am. St. Rep.

375.

Buck v. Collins, 51 Ga. 391; s. c. 21 Am. Rep. 236.

CHAPTER 7.

THE EFFECT OF RECORD.

$152. Effect of the record-Constructive notice.

153.

Continued-Definitions and limitations.

154. Purchaser may rely on title as it appears of record.

155. Purchaser without notice may convey title to one with

notice.

156. When full record title does not protect purchaser in good faith.

157. Continued-The contrary view under which such purchaser is protected.

158. Break in the record title.

159. Continued-Actual notice as supplying the gap.

160. Record of mortgage before deed to mortgagor.

161. Continued-Exception created by estoppel.

162. Record is notice only to purchasers under same grantor. 163. Record does not charge prior parties.

164. Continued-Record of subsequent mortgage as notice to prior parties.

165. Priority in registration.

166. Priority in the record of conveyances from same grantor.

167. Priority-Continued.

168. Conveyances and records of same date.

169. Priority in record of liens.

170. Priority in record of mortgages.

171.

Continued-Record of mortgages.

172. Purchase money mortgages.

173.

Re-inscription of mortgages.

174. Assignment of mortgages.

175. Cancellation, release and discharge of mortgages.

176. Extent to which the record is notice.

177. Continued-Notice of matter of law. 178. Recitals charge constructive notice.

179. Notice from unusual recitals.

180. Imperfect and ambiguous recitals. 181. Recital to other instruments.

182. Recitals to matter of fact.

183. Quit-claim deed as charging with notice.

184. Purchaser from heir protected.

185. Registry of wife's separate property.

$186. Record of conveyances by the wife.

187. Second record not necessary.

188. Registry as affected by usage.

189. Record necessary to the validity of the instrument, when. 190. Unauthorized record made effective by subsequent matter of law or fact.

191. Unrecorded deed as affected by suit.

$152. Effect of the Record-Constructive Notice. The statutes usually provide that unrecorded conveyances and other instruments affecting title shall be void as against subsequent purchasers and incumbrancers without notice; but only a few of them expressly declare that registry shall constitute notice. The construction of the English and Irish registry acts has been that they were intended to give priority to conveyances according to the priority of their registry, but that registry did not, of itself alone, constitute or impart notice. At an early day the same view also prevailed to some extent in this country, but the doctrine that now universally obtains throughout the United States, is that a proper record is constructive and absolute notice, charging every person subsequently dealing with the property involved, whose duty it is to make examination of the records. The duty of examination proceeds on the theory

3

1 Ford v. White, 16 Beav. 120, and cases cited ante, §2. "The plain meaning of the statute," said Lord Redesdale, in Underwood v. Lord Courtown, 2 Sch. & Lef. 40, "is to give priority to instruments whether they convey a legal or equitable estate, according to the priority of their registry." The statutes of Pennsylvania, Maryland, Rhode Island and several other states are modeled on the statute of 27 Henry VIII, for the enrolment of bargains and sales, or that of 7 Anne, ch. 20, ante, §1. By the statutes of a majority of the states, however, it is not required that a subsequent conveyance, in order to claim preference, shall be first of record, and where this is not so nominated in the statute, the rule does not obtain, except as to certain classes of mortgages, that priority of right depends on priority of record. See ante, §§13-15; post, §§165–

167.

2 Doswell v. Buchanan, 3 Leigh, 365; s. c. 23 Am. Dec. 280, and cases cited ante, §3; post, $203.

Sowden v. Craig, 26 Iowa, 156; s. c. 96 Am. Dec. 125; Wells v. Smith, 2 Utah, 39; Parkist v. Alexander, 1 Johns. Ch., 394; Humphreys v. Newman, 51 Me. 40; Ogden v. Walters, 12 Kan. 282; ante, §4; 2 Pom. Eq. Jur., §665; 1 Jones on Mort., §557.

that the records are made for public information, and that one who willfully or negligently omits to inform himself of what they disclose, is in equity and reason as much chargeable with notice as though he knew. Where the letter of the law has not given this effect of notice to registration, the courts have done so by judicial construction, and they have declared, in reference to this most important consequence of recording, that the registry laws would be useless, unless subsequent purchasers were bound to take notice of an instrument previously and duly recorded.2

$153. Continued-Definitions and Limitations.

4

The constructive notice imparted by registry is absolute and conclusive; hence it will avail nothing, where a deed has been duly recorded, that a subsequent purchaser actually searched the records without finding it. That constructive notice which arises from matters of fact sufficient to put one on inquiry, is usually rebuttable. This latter character of notice, which is more properly implied or presumptive notice, will be treated under the head of Actual Notice, in a succeeding chapter.5 In their legal consequences and effect there is no difference between actual notice and constructive notice of either kind." The determination of

1 Acer v. Westcott, 46 N. Y. 384; s. c. 7 Am. Rep. 355; Cambridge Valley Bank v. Delano, 48 N. Y. 326; Wild v. Brooks, 10 Minn. 50; Wilson v. Hunter, 30 Ind. 466; ante, §4.

2 Voorhis v. Westervelt, 43 N. J. Eq. 642; s. c. 12 Atl. Repr. 533; 3 Am. St. Rep. 315; McPherson v. Rollins, 107 N. Y. 316; s. c. 1 Am. St. Rep. 826; 14 N. E. Repr. 411; Buchanan v. Int. Bank, 78 III. 500; Earle v. Fisk, 103 Mass. 491, 494; Hager v. Spect, 52 Cal. 579; Orvis v. Newell, 17 Conn. 97.

3 Edwards v. Barwise, 69 Tex. 84; s. c. 6 S. W. Repr. 677; Jordan v. Farnsworth, 15 Gray, 517; Clabaugh v. Byerly, 7 Gill. 354.

4 "The presumption is a mere inference of fact, and may be repelled by proof that the purchaser failed to discover the prior right, notwithstanding the exercise of proper diligence on his part." Selden, J., in Williamson v. Brown, 15 N. Y. 554; Wilson v. Wiliams, 25 Tex. 54; Wade on Not., §40; Story's Eq. Jur., §410a; post, §227.

5 Post, ch. 9, §§219-227.

6 Hill v. Epley, 31 Pa. St. 335; Schutt v. Large, 6 Barb. 373; Morrison v. Kelley, 22 Ill. 610; s. c. 94 Am. Dec. 169; Ellison v. Wilson, 36 Vt. 67.

the effect of the record when made involves the most important and difficult questions of registration. These questions arise not from exceptions to the rule that the record imparts absolute notice, but from difficulties to be found in making a proper application of the rule to specific cases and classes of instruments, and they grow largely out of peculiarities of the various instruments, deficiencies of description and recital therein, and the nature of their relations to other matters of record and in pais. Actual notice may be limited in its operation by the facts in a given matter, but the constructive notice of the record, being absolute and arbitrary, is not usually susceptible in its application to such limitations and qualifications as equity might suggest in that "apportionment of injuries" which has been said to be the object of the law. Ordinarily the record is notice, or it is nothing. Cases of this kind, where the rights of litigants are thus dependent on the application of an arbitrary rule, "are always very honorably labored by counsel at the bar, and determined with great anxiety by the court, as some of the parties must be shipwrecked in the event."

It may be stated, as a general rule, that constructive notice flowing exclusively from matters of record will not be construed to be more extensive than the facts stated in the record.3

$154. Purchaser May Rely on the Title as it Appears of Record.

The policy of the registry law is that the title and all that affects it should be disclosed by the public records, and upon the theory that it is thus shown, the rule obtains that a pur

1 Notice of a recorded instrument is notice of all legal incidents pertaining to it. N. Y. Life Ins. Co. v. Covert, 6 Abb. N. S. 154. And it will not avail a subsequent purchaser that a recorded mortgage appeared to be barred by limitation, where, in fact, though not shown by the record, it had been extended by virtue of a new promise extending the debt. Plant v. Shryock, 62 Miss. 821.

2 Lord Chancellor Northington, in Stanhope v. Varney, 2 Eden, 81. 3 Gale v. Morris, 29 N. J. Eq. 222; Brownback v. Ozias, 117 Pa. St. 87, 93; s. c. 11 Atl. Repr. 30; 9 Cent. Repr. 554.