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in which they are kept or indexed, is wholly impertinent, and, therefore, deceptive and liable to lead to error."1

$159. Continued Actual Notice as Supplying the Gap. The rule just stated rests in part also upon the further consideration that where there is a break in the record title, it does not necessarily appear that a subsequent deed has any connection with the title under examination; it may, for aught that is disclosed by it, emanate from a stranger, and pertain to a different claim or source of title. Where, however, enough is brought to the knowledge of the subsequent purchaser to put him on inquiry as to the missing link, or the connection of title, the record of the subsequent deed is effectual. The actual reading of the record of a subsequent deed containing recitals that refer to the unrecorded conveyance, will suffice to put on notice, but the mere registry of a subsequent deed with such recitals therein has usually been held not sufficient to charge constructive notice. For the reason, perhaps, that this rule in

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Fallass v. Pierce, 30 Wis. 442.

Chicago v. Witt, 75 Ill. 211; Clark v. Holland, 72 Iowa, 34; s. c. 33 N. W. Repr. 350; Crane v. Turner, 67 N. Y. (7 Hun.), 437; Doolittle v. Cook, 75 Ill. 354.

3 See cases above, and Mills v. Smith, 4 Biss. 442; Musgrove v. Bosner, 5 Or. 313; s. c. 20 Am. Rep. 737; Musick v. Barney, 49 Mo. 458; Hastings v. Cutler, 24 N. H. (4 Fost.), 483; Walter v. Hartwig, 106 Ind. 123; s. c. 3 West. Repr. 881; 6 N. E. Repr. 5; Gilbert v. Jess, 31 Wis. Contra, Kerns v. Swope, 2 Watts, 75.

110.

4 Word v. Box, 66 Tex. 596; Wade on Notice, §210, citing Losey v. Simpson, 11 N. J. Eq. (3 Stockt. Ch.), 246; Keller v. Nutz, 5 Serg. & R. 246; Maul v. Rider, 59 Pa. St. 167; Long v. Dollarhide, 24 Cal. 218; Fenno v. Sayre, 3 Ala. 458; Tilton v. Hunter, 24 Me. 29; Ely v. Wilcox, 20 Wis. 530; s. c. 91 Am. Dec. 436.

E. T. W. conveyed land to his wife Evaline W., but the deed was not recorded until after the land had been bought at sheriff's sale, under execution against E. T. W. by R., who had actual notice, and had also been conveyed by R. to B., who was without actual notice of the outstanding deed. Mrs. E. W. having died, G., one of her children, conveyed to H., the deed reciting that the part conveyed was inherited by G. from Mrs. E. W., wife of E. T. W., who inherited the land from his father; and this deed was recorded prior to the purchase by B. Held, that it showed on its face no connection with any other conveyance leading up to the common source, and its registry was not constructive

reference to a break in the recorded title rests upon a somewhat narrow ground, its application in this last particular has not been uniform.1

$160. Record of Mortgage Before Deed to Mortgagor. For the reason also of a want of connection in the recorded chain of title, the record of a mortgage before that of a deed conveying the premises to the mortgagor, is usually held not to impart notice. Thus, if one conveys land by deed, and the grantee makes a mortgage back to secure the purchase money, the deed being unrecorded, the record of the mortgage is not notice of the existence of the deed. So, after the record of the deed, a subsequent purchaser from the grantee therein, it has been held, is not chargeable with notice of the prior recorded mortgage for the reason that he would not be bound to search for incumbrances by his vendor prior to the time such vendor acquired the title as shown by the record. If, however, a subsequent purchaser has actual notice of a mortgageable notice to B.; and that one actually reading the recital, would naturally conclude that the title in Mrs. W. was claimed by reason of her being the wife of E. T. W., and not that her husband had conveyed the property to her. Holmes v. Buckner, 67 Tex. 107; s. c. 2 S. W. Repr. 452. 1 See Digman v. McCollum, 47 Mo. 372, 376; Hamilton v. Boggess, 63 Mo. 233; Wade on Notice, §211. Possession is such actual notice as will supply a break in the record. Glendenning v. Bell, 70 Tex. 632; s. c. 8 S. W. Repr. 324.

2 Bingham v. Kirtland, 34 N. J. Eq. 229; Boyd v. Mundorf, 30 N. J. Eq. (3 Stew.), 540; Davis v. Lutkieweis, 72 Iowa, 254; s. c. 33 N. W. Repr. 670; Dusenburg v. Hurlburt, 59 N. Y. 541; Veazie v. Parker, 23 Me. 170; Pierce v. Taylor, Id. 246.

A mortgage for the purchase money, recorded with the deed of purchase, has priority of a mortgage executed by the purchaser before he concluded the purchase, to secure a loan with which to make the cash payment, though this mortgage be recorded before the mortgage to the vendor. Turk v. Funk, 68 Mo. 18; s. c. 30 Am. Rep. 771; City Nat. Bank's Appeal, 91 Pa. St. 163; 1 Jones on Mort., $466; post, §172.

3 Farmer's Loan Co. v. Maltby, 8 Paige, 361; Calder v. Chapman, 52 Pa. St. 369; Faircloth v. Jordan, 18 Ga. 350; Wing v. McDowell, Walk. (Mich.), 175; Page v. Waring, 76 N. Y. 463, 468; Buckingham v. Hanna, 2 O. St. 551; Doswell v. Buchanan, 3 Leigh, 365; s. c. 23 Am. Dec. 280; Code of Va. (1887), §2473; Hetzel v. Barber, 69 N. Y. 1; Losey v. Simpson, 11 N. J. Eq. 246.

estate in one whose title is not of record, he will be bound to search for incumbrances against that title.1

$161. Continued-Exception Created by Estoppel. The application of the doctrine of estoppel in connection with recording presents an exception to the rule stated in the preceding section. Under the law of estoppel a conveyance, whether by deed or mortgage, with covenants of warranty, and in some of the states without such covenants, carries an after-acquired title. As soon as the grantor in such conveyance acquires the title, it vests at once in his grantee by virtue of the estoppel, and where he has made more than one conveyance of the premises, it enures to the benefit of the grantee in the first conveyance made by him. When, therefore, he has mortgaged the

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1 The notice may arise from possession under a parol contract of purchase, or from actual knowledge of a recital in the deed that the grantor had been in possession for several months prior to the deed, under such contract of purchase. Crane v. Turner, 67 N. Y. (7 Hun.), 437. So where a mortgage back to the grantor has been given and placed of record, the deed of purchase, however, not being recorded, if this record is actually known to a subsequent purchaser from such grantor, this is sufficient to put him on inquiry, and to suggest that such grantor has already parted with the title. Clark v. Holland, 72 Iowa, 34; s. c. 33 N. W. Repr. 350. And see cases in last note to $159, ante.

A mortgage dated and acknowledged Sept. 17, 1880, and recorded Oct. 15, 1880, held constructive notice to subsequent purchasers, although the mortgagor's deed to the premises was in fact (and this also appeared from the county records) dated Sept. 30, 1880, and was recorded Nov. 24, 1880. Semon v. Terhune, 40 N. J. Eq. 364; s. c. 2 Atl. Repr. 18; and this said by the court not to be in conflict with Losey v Simpson, 3 Stockt. (11 N. J. Eq.), 246, and Spielman v. Kliest, 9 Stew. (36 N. J. Eq.), 199.

2 Gibson v. Chouteau, 39 Mo. 536; Frink v. Dowdall, 14 Ill. 304; Cocke v. Brogan, 5 Ark. 693; Vallejo v. Viele, 48 Cal. 572.

8 Bigelow on Est., 285, et seq.; Merritt v. Harris, 102 Mass. 326; Humphreys v. Newman, 51 Me. 40; Wark v. Willard, 13 N. H. 389; Brown v. McCormick, 6 Watts, 60; White v. Patten, 24 Pick. 324; Goodel v. Burnett, 22 Wis. 565.

Jarvis v. Aikens, 25 Vt. 685; Cole v. Raymond, 9 Gray, 217; Farmer's Loan Co. v. Maltby, 8 Paige, 361; Potts v. Dowdall, 3 Houst. 369; Doyle v. Peerless Co., 44 Barb. 239; McCusker v. McEvey, 9 R. I. 525; Kimball v. Blaisdell, 5 N. H. 533; s. c. 22 Am. Dec. 476; McCarty v. Mann, 19 Wall. 20.

The doctrine that an after-acquired title vests in the subsequent grantee, eo instanti and by virtue of the estoppel alone, does not univer

premises before acquiring the title, a purchaser from him after he acquires title, will take subject to the mortgage, and since this imposes on such purchaser the duty of searching for the mortgage, it follows that he is, in effect, charged with constructive notice by its record. Thus, where A., having no title, executed a mortgage to B., which was recorded, and then A., after the record of a deed of the premises to himself, conveyed to C., who was without actual notice of the mortgage, it was held that the record of the mortgage was notice to C., and that under the recording laws B. was entitled to priority.1 If at the time of the mortgage to B., and up to that of the conveyance to C., the title had been vested in A., defective only in that the deed to himself was not recorded, B. would have been "shipwrecked in the event;" but since his grantor's title, at the date of his mortgage, was wholly defective instead of only partly so, B. prevails. This unreasonable state of the law results from the want of merit in the rule that a purchaser is not bound to look back of the date of the conveyance to his grantor, as it may be shown of record; by reason of which the rule is subordinated to the operation of any other principle, whether of law or equity, that conflicts with it. In the case stated, it was the duty of C. to examine the records for conveyances from A., and prudence would dictate that while engaged in the examination, it would be well for him to make it full. As said by the court of Missouri in a case nearly similar, "if he had searched the records as a prudent man should, he must have sally obtain, aside from any effect of the registry acts. See Bigelow on Estoppel, supra, and cases reviewed by him.

Teft v. Munson, 57 N. Y. 97. This well considered case, with dissenting opinion, is cited in Wade on Notice, $216; in Pom. Eq. Jur., $658, and quite at length in 1 Dev. on Deeds, §721. In support of its decision, see Salisbury v. Cutting, 50 Conn. 113; Semon v. Terhune, 40 N. J. Eq., 364, and cases in next notes above and below.

Under 1 Rev. Stats. of N. Y., §137, art. 4, an after-acquired title does not enure to the benefit of a grantee whose deed is unacknowledged and unattested. Chamberlain v. Spargur, 86 N. Y. 603

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acquired actual knowledge of the deed (mortgage), and its contents as shown by the records. If he neglected this reasonable precautionary search, the consequences of that neglect he must bear. It would be unjust to visit them upon an innocent third party.1

$162. Record is Notice Only to Purchasers Under Same Grantor.

The record is constructive notice only to those claiming under the grantor in the conveyance, and in the same line of title. This rule, more than all others, limits the effect of the record as notice to "all the world," yet the limitation in this instance is not a merely artificial and arbitrary one, but arises from the nature and reason of the matter.3 The registry of a deed is for the purpose of giving public

1 Digman v. McCollum, 47 Mo. 372. This was a case wherein a party, before title had vested in himself, and while having only a bond for a deed, assigned the bond, and an assignee of the bond gave a deed of trust of his interest in the premises, which was recorded prior to the record of title to the first assignor, and its record held to charge constructive notice. The case is cited at length in 1 Dev. on Deeds, $723, and note. Since the extension of the registry acts to embrace equitable as well as legal titles, the reason of the rule exempting a purchaser from examining the records, as to his grantor, back of the date of his grantor's deed, no longer exists to the same extent as formerly. See ante, $$19, 22.

2 Holmes v. Buckner, 67 Tex. 107; s. c. 2 S. W. Repr. 452; Traphagen v. Irwin, 18 Neb. 195; s. c. 24 N. W. Repr. 684; Huber v. Bossart, 70 Iowa, 718; Kerfoot v. Cronin, 105 Ill. 609; Word v. Box, 66 Tex. 596; Tarbell v. West, 86 N. Y. 280; Satterfield v. Malone, 35 Fed. Repr. 445; James v. Brown, 11 Mich. 25; Gillett v. Gaffney, 3 Colo. 351; Baker v. Griffin, 50 Miss. 158; Halstead v. Bank of Ky., 4 J. J. Marsh. 558; Dolin v. Gardner, 15 Ala. 758; Corbin v. Sullivan, 47 Ind. 356; Hager v. Spect, 52 Cal. 579; Odle v. Odle, 73 Mo. 289; Straight v. Harris, 14 Wis. 509. 3 Ante. $$21, 22. For other cases supporting the text, see Wood v. Farmere, 7 Watts, 282: s. c. 32 Am. Dec. 772; Crockett v. Maguire, 10 Mo. 34 (cited fully in Wade on Notice, §213); Wheelwright v. DePeyster, 4 Edw. Ch. 232; s. c. 3 Am. Dec. 345; Roberts v. Bourne, 23 Me. 165; s. c. 39 Am. Dec. 614; Birnie v. Main, 29 Ark. 591; Hill v. McCarter, 27 N. J. Eq. 41; Howard Ins. Co. v. Halsey, 8 N. Y. 271; s. c. 59 Am. Dec. 478; Blake v. Graham, 6 O. St. 580; s. c. 67 Am. Dec. 360; Whittington v. Wright, 9 Ga. 23; Maul v. Rider, 59 Pa. St. 167; Bates v. Norcross, 14 Pick. 224; Lightner v. Mooney, 10 Watts, 407; Murray v. Ballon, 1 Johns. Ch. 566; Jenkins v. Adams, 71 Tex. 1; Iglehart v. Crane, 42 Ill. 261; Calder v. Chapman, 52 Pa. St. 359; Tyler v. Hammond, 28 Mass. (11 Pick.) 193.

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