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different on this point from the general tenor of those statutes that do not require the subsequent deed to be first recorded. The court in construing this statute say: "The prior deed not being recorded, the statute avoids it in terms as against all subsequent purchasers for valuable consideration without notice, whether their titles be recorded or not." It will be observed that this decision is based upon a construction of the terms of the statute, which, aside from any consideration of the equities of the parties, are held to determine the question in favor of the junior purchaser. The Supreme Court of Alabama, in construing a statute similar to that of Ohio, thus state the same conclusion more fully: "This act of 18231 makes no requirement of the subsequent mortgagee that he must record his mortgage or stand in the same predicament as the first mortgagee with his unrecorded mortgage. The act simply declares the unregistered deed to be void against the subsequent mortgage, bona fide and upon valuable consideration, where such mortgage is contracted without notice of the prior incumbrance. The second mortgagee, in not recording his mortgage, runs the risk simply of being overridden by some subsequent mortgagee or incumbrancer, and in that case the statute would declare the nullity of his mortgage, and prefer the subsequent one, as it prefers his to the previous one. A different rule would prevail if the statute gave the preference to the mortgage first recorded; but that is not so, nor does the act require the second mortgage to be registered at all, but it pronounces the second mortgage, in its execution and delivery, if executed and received in ignorance of the first mortgage, its superior."2

statute the rule could be different; and to the same effect see Galway v. Malchow. 7 Neb. 285.

1 Clay's Dig. of Ala. 154, §18.

2 Coster's Executors v. Bank of Ga., supra; and to same effect, Sanborn v. Adair, 29 N. J. Eq. 338; post, $166.

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$14. Continued-Equity of the Matter.

The Supreme Court of Texas say that, in a matter of this kind, if the statute does not expressly determine the question, the court will decide it upon the very equity of the case presented. This equity is clearly held to be in favor of the subsequent purchaser, who by reason of the neglect of the prior purchaser, and upon the faith of a record showing no adverse conveyance or incumbrance, has parted with a valuable consideration. The first purchaser is in default; the equities of the parties are not equal; and the case is not one where the maxim prior in tempore, potior in jure applies. It is the parting with a consideration, the payment of value without notice, that gives and fixes the equity of the subsequent purchaser; and this cannot be afterwards taken away by the act of the party in default, in subsequently recording his prior deed. Such record comes too late to serve as notice to the junior purchaser; even actual notice, it has been held, could not then deprive him of his equities; nor does the record of the second deed serve any purpose as notice to the first purchaser.5 There are cases, however, in which the equities of the transaction are such that precedence may properly be given to him who is first on record. These instances occur most frequently in connection with mortgages given to secure

1 Johnson v. Newman, 43 Tex. 628; Swigert v. Bank of Ky., 17 B. Mon. 268.

2 See, as supporting the foregoing equitable principles, though not in all cases directly on this point of record priority, Boggs v. Varner, 6 Watts & S. 469, 474; Garland v. Harrison, 17 Mo. 282; Ozias v. Bromback, 117 Pa. St. 87, 93; s. c. 11 Atl. Repr. 301; Neslin v. Wells, 104 U. S. 428; Williams v. Beard, 1 S. Car. 309; Ely v. Wilcox. 20 Wis. 523; s. c. 91 Am. Dec. 436; Bellas v. McCarty, 10 Watts, 13; Fisher v. Knox, 11 Pa. St. 622; Wheaton v. Dyer, 15 Conn. 307; Jerrard v. Saunders, 2 Ves. Jr., 454.

3 Ranney v. Hogan, 1 Tex. Un. Cas. 253.

4 Stanhope v. Varney, 2 Eden, 81; Youst v. Martin, 3 Serg. & R. 423, 430; Elsey v. Lutzens, 8 Hare, 159.

5 Martin v. Williams, 27 Ga. 406; Jackson v. Post, 9 Cow. 120; Van Rensaeller v. Clark, 17 Wend. 25.

6 See Choteau v. Jones, 11 Ill. 300.

antecedent indebtedness. Where each of two mortgages, given to different parties, is to secure indebtedness incurred in each case before the execution of either one of them, neither one, while unrecorded, can claim a higher equity than the other; and in such case, even actual notice given to the second mortgagee before his mortgage is taken, cannot deprive him of the preference acquired under the statute by a first record. 2

$15. Continued-The Contrary Doctrine as to Priority of Record.

. There are but few, if any, decisions to be found, which, in the absence of a statute requiring it, hold that the subsequent deed must be first of record. A question may suggest itself here as to why so considerable a number of the statutes should contain a provision so clearly at variance with the equity and justice of the matter to which it relates. The early English register acts were framed with the sole view of securing an early record of conveyances after they were executed. They did not declare that the record should impart notice, nor was it then contemplated that actual notice should destroy or affect the precedence given to priority in record, as afterwards held by the courts of equity. The object of the statutes at that time was simply to secure a prompt record of conveyances, and in order to attain this object, it declared that they should be adjudged void as against any subsequent purchaser or mortgagee for valuable consideration, unless registered before the record of the conveyance to the subsequent purchaser or mortgagee. As the record was not to impart construc

1 Davidson v. Cowan, 1 Dev. Eq. 470; Muse v. Letterman, 13 Serg. & R. 167; National Bank v. Whitney, 103 U. S. 99; Routh v. Spencer, 38 Ind. 393; post, §§169–172.

2 Moore v. Thomas, 1 Or. 201; Bank v. Manufacturing Co., 96 N. C. 298; s. c. 3 S. E. Repr. 363.

3 The following cases are only seemingly to the contrary: Cabeen v. Breckinridge, 48 Ill. 91; Stebbins v. Duncan, 108 U. S. 32.

Act of 7th Anne, ch. 20, quoted in §1, ante; post, §166.

tive notice, it follows that an advantage of priority was the sole inducement that could then be held out to secure compliance with the law. In that stage of the law there belonged to the bare fact of early record an importance to which, by reason of the changes that have since occurred, it is not now justly entitled. A too literal copying of the early statutes has, doubtless, occasioned that feature of the modern legislation which still renders the rights of a bong` fide subsequent purchaser dependent upon priority of record; but since the equitable doctrine that actual notice shall supply the want of registration, and that the equities of the transaction shall control the bare fact of priority of record, has been universally assented to and adopted as part of the law of registration, it should have a consistent application; and bare priority of record should not dominate the equities of the matter in one instance, and yet be subordinated to them in another; and where, after a subsequent purchaser has parted with a valuable consideration, actual notice to him of a prior deed comes too late, the technical notice constructively imparted by registration should not be given a greater effect.1

$16. Filing and Mistake in Recording-Effect as to Notice.

It is the law of perhaps every state, that a deed duly recorded operates as notice from the time it was filed for record. The record, when correctly made, is properly held to relate back to the time of filing, for the reason that

1 Mr. Sugden says, it is the policy of the law to encourage prompt registration by requiring that the deed shall be put upon the registry under penalty that if not found thereon, the subsequent purchaser without notice shall gain the priority by the earlier record of his deed. 2 Sug. on Vendors, 214. Where the statute is so framed as to make registry essential to title passing, and actual notice is rejected entirely, priority of record must of course control. See, post, §§217, 218; Bank v. Clapp, 76 N. C. 482; Thompson v. Bullock, 1 Bay, 367.

2 Leslie v. Hinson, 83 Ala. 266; Kessler v. State, 24 Ind. 213; Horseley v. Garth, 2 Gratt. 471; s. c. 44 Am. Dec. 293; Brook's Appeal, 64 Pa. St. 127.

between the date of filing and that of the transcribing, the instrument itself remains in the recorder's office subject to public inspection. After the record is made, however, the original instrument is usually taken out, and to the record alone the public must look for information. Sometimes, through a mistake in copying, the record speaks a language different from the original, as, in wrongly describing the property, or stating a different amount of mortgage indebtedness; and the question then arises whether such a record will charge a subsequent party with notice of the true contents of the original. There is considerable diversity in the statutory language bearing on this point, and aside from any difference of terms used in the various registry acts, there is a direct conflict of opinion as to the correct rule of construction in such cases. Some of the statutes expressly provide that a deed "shall be considered as recorded from the time it is delivered to the clerk for record;" in others, the language is that the deed "shall take effect and be in force as to subsequent purchasers from and after the filing of the same for record." Where the statute uses the language quoted above, or direct terms of similar import, the courts hold, as a rule, though not with entire uniformity, that the grantee in a deed which has been filed, but erroneously transcribed in the record book, or even not recorded at all, is not affected by the error or failure to record, since the statute gives to the filing alone the full effect of notice. In Mims v. Mims,

1 Fouche v. Swan, 80 Ala. 153; Case v. Hargadine, 43 Ark. 144; Glading v. Frick, 88 Pa. St. 460; Bradford v. Tupper, 30 Hun. 174; Woodward v. Boro, 16 Lea (84 Tenn.), 678; Nichols v. McReynolds, 1 R. I. 30; s. c. 36 Am. Dec. 238; Steam Co. v. Sears, 23 Fed. Rep. 313; Hine v. Roberts, 8 Conn. 347; Swenson v. Bank, 9 Lea, 723; Ferris v. Smith, 24 Vt. 27; Marbury v. Madison, 1 Cranch, 137; Mangold v. Barlow, 61 Miss. 593; s. c. 48 Am. Rep. 84; Oats v. Walls, 28 Ark. 244; Perkins v. Strong, 22 Neb. 725; Gillespie v. Rogers, 146 Mass. 310, 612; Tracy v. Jenks, 15 Pick. 465; Kiser v. Heuston, 38 III. 252; Merrick v. Wallace, 19 Ill. 486; Wood's Appeal. 82 Pa. St. 110; s. c. 13 Am. Law Reg. 255; Lee v. Birmingham, 30 Kan. 312; s. c. 1 Pac. Repr. 73; Flowers v. Wilkes, 1 Swan, 408; Converse v. Porter, 45 N. H.

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