35 Ala. 23, the court say that the statute making a conveyance "operative as a record" from the time of its delivery for record, relieves them from examining the cases cited by counsel which hold that the record imparts notice only of what it contains.

3

In Throckmorton v. Price, 28 Tex. 605 (s. c. 91 Am. Dec. 334), where a trust deed had been duly filed and left with the recorder, but through oversight had not been transcribed, it was held that a subsequent purchaser was chargeable with constructive notice of it, although he had vainly inquired of the recorder for instruments affecting the land; the decision being put on the ground that the statute, in declaring that a deed "shall be considered as recorded from the time it was deposited for record" and filed by the clerk, gave the full effect of notice to the filing. Apparently in direct conflict with this, however, is the decision in Taylor v. Harrison, 47 Tex. 454 (s. c. 26 Am. Rep. 304), a case wherein the recorder, through oversight in transcribing a deed duly filed, neglected to copy the certificate of acknowledgment; and in which it was held that the deed "was not properly recorded, and creditors and subsequent purchasers are not chargeable with notice of it by reason of such defective record.” How a failure to copy the certificate could destroy the notice imparted by the filing, when an entire failure to record the deed would not have that effect, is not explained. And in a later case the court answer an objection made because of an error in copying the deed on the record, not by saying it was unnecessary that there should be any record at all, but by holding the error to be not misleading in its character and

400; Payne v. Pavey, 29 La. Ann. 116; Freiberg v. Magale, 70 Tex. 116, 118; s. c. 7 S. W. Repr. 684.

1 Code of Ala. §1539; Code of 1886, §1793.

2 Rev. Stats., of Tex., art. 4299; Paschal's Dig., art. 5014; O. & W. Dig.. art. 1709.

3 Rev. Stats. art. 4334; Paschal's Dig., art. 4994.

effect. An explanation of this apparent conflict might be that in the first case the deed was still on the unrecorded file in the recorder's office, and thus itself served as a record at the time the subsequent deed was made; while in the other cases the deeds had doubtless been removed, and the grantees having chosen to take them out, or to have the notice imparted by them merged into that of the record, must be held to have elected to stand by the record as made. This is the only theory in such cases consistent with the policy of the registry laws, and the well established rule that a purchaser may rely upon the title as it appears of record.2

1 Woodson v. Allen, 54 Tex. 551. The case of Crews v. Taylor, 56 Tex. 461, in which a mortgage, on file but not copied on the record, was held to impart notice, is similar in its facts in this particular, to that of Throckmorton v. Price, 28 Tex. 605; s. c. 91 Am. Dec. 334, and is decided in accordance with it.

2 Jones on Mort.. $549; Hill v. MeNichol, 76 Me. 314; Hart v. Farmer's Bank, 33 Vt. 252; Newhall v. Burt, 7 Pick. 157; Mills v. Comstock, 5 Johns. Ch. 314; Columbia Bank v. Jacobs, 10 Mich. 349. If the mortgage and annexed schedule are both left with the recorder, they are sufficient notice to the public while they remain unrecorded; but after the mortgage alone has been spread upon the record, that is the only record which the law recognizes. Sawyer v. Penuell, 19 Me. 167.

It is the duty of the person filing an instrument to see that the statutes as to its record are complied with, and the loss, if any, falls on him and his assignees. Barney v. McCarty, 15 Iowa. 515; s. c. 83 Am. Dec. 427; citing Bradford v. Miller, 12 Iowa, 14. He has the opportunity of preventing an error which the subsequent party has no opportunity to detect. Succession of Falconer, 4 Rob. 7.

A deed erroneously transcribed is notice only of what appears on the record, although it be left on the file. After its record, the deed itself is no longer notice. Potter v. Dooley, 55 Vt. 512.

The cases cited in note, ante, p. 41, holding that the instrument imparts notice from the time of filing, do not recognize the limitation suggested, viz: that the rule should apply only until the deed is actually recorded, and that afterwards the record should impart notice only of what appears on it; but where the filing is held to charge notice, it would seem that the rule is that it is immaterial how or where the instrument is recorded; it may be recorded in a wrong book. Swenson v. Bank, 9 Lea, 723; Head v. Goodwin, 37 Me. 181; Lewis v. Klote, 39 La. Ann. 259; s. c. 1 South. Repr. 539.

Priority in filing is not affected by a different priority in recording. Johnson v. Burden, 40 Vt. 567; s. c. 94 Am. Dec. 436.

$17. Continued-Imperfect Record is not Notice. The Supreme Court of Iowa, however, has put a different construction on language as express in its import as that just under consideration. There the provision was that a deed "shall, from the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof;" and it was held that the statute was intended simply to fix the time from which notice was to commence, and not to make such filing on depositing notice of the contents after the same was recorded; and that after that date, the record itself was the constructive notice of its contents.1 Under a statute of Missouri, providing that every instrument "certified and recorded in the manner prescribed, shall, from the time of filing the same with the recorder, impart notice," etc., it was held by the Supreme Court of that state that, according to the literal interpretation of the statute, no notice was imparted until the instrument was actually placed on record, and then it related back to the time of its filing; and that the statute, in saying that when a deed is certified and recorded, it shall impart notice of the contents from the time of filing, was to be understood in the sense that the deed was rightly recorded, and the contents correctly spread upon the record. The greater weight of reason, if not of authority, seems to be in favor of this view of the law, that the record cannot impart notice of what it does not contain; and that because of the relation back to the filing, the constructive notice imparted by the record cannot properly be held to extend beyond, or differ from, that which would be afforded by an actual reading of the record.3

1 Miller v. Bradford, 12 Iowa, 14; and see Barney v. McCarty, 15 Iowa, 515; Thorp v. Merrill, 21 Minn. 336.

2 Terrell v. Andrew County, 44 Mo. 309.

8 Schell v. Stein, 76 Pa. St. 398; s. c. 18 Am. Rep. 416; Gilchrist v. Gough, 63 Ind. 576; s. c. 30 Am. Rep. 250; Disque v. Wright, 49 Iowa, 538; Wait v. Smith, 92 Ill. 385; Burke v. Anderson, 40 Ga. 535; Frost v. Beekman, 18 Johns. 544; Succession of Falconer, 4 Rob. 7; Ford v. James, 4 Keyes, 300; Lally v. Holland, 1 Swan, 396; Bryden v. Camp

$18. Continued-Reason of the Rule.

A comparison of the statutes demonstrates that the difference in their terms is not such as to justify the wider difference in the decisions of the courts on this point. The conflict of opinion is chiefly due to an inability to agree upon a correct rule of construction.1 A solution of the

question has been sought by reference to the liability of the recorder for the mistake or neglect.1. Under his official bond he is liable to the party injured, and it is said that the subsequent purchaser, or party misled by the record, is the party injured. This conclusion is deduced from the consideration that the registry laws are designed for the protection of subsequent parties, since, at common law, the first grantee would be protected and retain his title. whether his deed was recorded or not. But it may be urged with equal if not greater force, that since the registry laws are designed for the benefit of the subsequent purchaser, they ought for that very reason to operate primarily and directly in his favor, by giving him th superior right to the property involved, and not secondarily, by conferring a right of action for damages against the recorder and his bondsmen. It is conceded that the equities of the parties bell, 40 Md. 331; Crosby v. Vleet, 3 N. J. Law, 86; Jennings v. Wood, 20 Ohio. 261; Hughes v. Debnamy, 8 Jones, 127; Wyatt v. Barwell, 19 Ves. 439; Peck v. Mallams, 10 N. Y. 509; Miller v. Ware, 31 Iowa, 524; Taylor v. Hotchkiss, 2 La. Ann. 917; Barnard v. Campau, 29 Mich. 162; Shepherd v. Burkhalter, 13 Ga. 443; s. c. 58 Am. Dec. 523; Jones v. McNarrin, 68 Me. 334; s. c. 28 Am. Rep. 66; Potter v. Dooley, 55 Vt. 512; Smith v. Lowry, 113 Ind. 37; s. c. 15 N. E. Repr. 17; 14 West Repr. 621; Stead v. Grosfield (Mich.) 34 N. W. Repr. 871; 4 West. Repr. 494; Hill v. McNicol, 76 Me. 314; Ins. Co. v. Scales, 27 Wis. 640; Parrot v. Shaubhut, 5 Minn. 223; Scott v. Hickman. Hemp. 275; Baldwin v. Marshall, 2 Humph. 116; Jones on Mort., §§551, 582; 2 Pom. Eq. Jur., §654; Bank v. Carpenter, 7 Ohio, 68; Stedman v. Perkins, 42 Me. 130.

2

1 Wade on Notice, §§150-162; 1 Devlin on Deeds, $697.

2 Upon general principles of law, the recorder is liable to any third party for damages resulting from his negligence, Crews v. Taylor, 56 Tex. 465; Giffin v. Barr, 60 Vt. 599; Fox v. Thibault, 33 La. Ann. 32. Being liable to any person injured, the question of his liability can afford no proper test by which to determine who is the party injured. See Fogarty v. Finlay, 10 Cal. 239; s. c. 70 Am. Dec. 214.

are equal. The first grantee has deposited his deed for record as required by law, and the second has examined the record as required by law. In deciding which of two innocent parties shall primarily bear the loss resulting from the act or omission of the clerk, it is proper to consider what line of construction will best promote the public interests and subserve the policy of the law. That the law, in a case of equal equities, should elect upon rather technical grounds to maintain the sufficiency of a record which, through error in transcribing, is false in fact, is a matter not calculated to commend it to the favorable consideration of enlightened minds, nor to inspire public confidence in the registry acts as affording a just protection to purchasers in good faith. "The recording acts," said Chief Justice Waite, "are intended for the security of titles and the prevention of frauds. They are to be construed liberally to that end. As the record, when made, is constructive notice to all having the legal right to rely upon it for protection, public policy requires that it shall import as near absolute verity as is consistent with a due regard to the rights of the parties interested."1

$19. Extension of the Registry Acts-What Interests and Instruments Now Embraced.

In some of the early English and American cases it was held that the object of the registry acts was to protect bona fide purchasers against a previous conveyance of the legal estate, or some part thereof, and that the conveyance of an equity was not within the acts, and would not operate as notice if registered. It is now, however, almost univer

1 National Bank of Fredericksburg v. Conway, 1 Hughes (Cir. Ct. for Va.), 37; 9 Myers' Federal Decisions, §82. See, also, Hart v. Farmer's Bank, 33 Vt. 253, and other cases cited in note 2, p. 43. The purpose of the law is to secure a permanent record of instruments, to which record the public must look. Filing is but a preliminary step, and should not be given the controlling effect, nor be held to dispense with the record altogether. 2 Doswell v. Buchanan, 3 Leigh, 362; s. c. 23 Am. Dec. 280; Grimstone v. Carter, 3 Paige, 421; Kelly v. Mills, 41 Miss. 267; Swigert v.