$24. Design of this Chapter.

The scope of the registry system, as already stated, has been greatly extended, until it now usually embraces. all instruments relating to real property, and in many of the states a considerable part of those affecting personal property, especially conditional sales and chattel mortgages thereof.

It will be advisable here to take a

general view of the instruments entitled to record, and to notice such distinguishing features and peculiarities of each as do not, so far as the registry laws are concerned, pertain to them in common. Some important statutory features and distinctions can be better presented here than elsewhere, and it is believed that by this course a general idea of the subject of registration will be attained such as will prove advantageous in its further consideration. The instruments entitled to record may be classed generally, and for the purposes of this chapter, into conveyances of the legal title, conveyances of equitable title, conveyances affecting personal property, and special statutory instruments. In many of the states mortgages are still held to convey the legal estate, as at common law,1 although in a majority of them the rule now obtains that they convey only an equitable title. Formerly this constituted an important distinction, but since the registry laws have been nearly every where extended to embrace equitable as well as legal titles, it now makes but little difference, in this connection, whether mortgages be considered as conveying the one or the other kind of title. Those equitable interests that now present an exceptional feature in the law of registration are not such as

1 The states in which a mortgage conveys the legal title are: Alabama, Arkansas, Connecticut, Illinois, Maryland, Massachusetts, New Hampshire, Maine, New Jersey, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia and West Virginia. Cahoon v. Miers, 67 Md. 573; s. c. 11 Atl. Repr. 278; Darling v. Wilson, 60 N. H. 59; Grandin v. Hunt, 80 Ala. 116; Morgan v. Way, 16 Ohio, 469; 1 Jones on Mort. §§17-19.

As a general rule, a chattel mortgage conveys the legal title. Hill v. Merriman, 72 Wis. 483; Jackson v. Cunningham, 28 Mo. App. 354; Tabor v. Hamlin, 97 Mass. 489; s. c. 93 Am. Dec. 113; Lacey v. Gibony, 36 Mo. 320; s. c. SS Am. Dec. 145; Taunahill v. Tuttle, 3 Mich. 104; s. c. 61 Am. Dec. 480; Bryant v. Carsen, 3 Nev. 313; s. c. 93 Am. Dec. 403; Kellogg v. Olson, 34 Minn. 103; s. c. 24 N. W. Repr. 364.

In states other than those mentioned, a mortgage of real estate does not convey the legal title. Miller v. Shotwell, 38 La. Ann. 890; Barney v. H. B. Ins. Co., 110 N. Y. 1; Jones v. Jenkins, 83 Ky. 391; Fuller v. O'Neal, 69 Tex. 349; s. c. 5 Am. St. Rep. 59; 6 S. W. Repr. 181.

pertain to the ordinary form of mortgages and deeds of trust.1

$25. Patents.

A patent from the government is usually, in this country, the first instrument in the chain of title. Patents being in themselves instruments of a public nature, and a matter of record in the office from which they are issued, it is held, unless the terms of the statute are to the contrary, that they are not embraced among the conveyances required to be recorded in the county where the land lies. The original record in the general land office from which they are issued is notice to the world of their existence.3 Their registration in the county where the land is situate is usually permissible, and as it helps to render the local record complete, is advisable, though usually not absolutely necessary.⭑

$26. Deeds.

A warranty deed is the usual form of conveyance of title to real estate, and in relation to this form there is little that needs to be said in this connection. By statute in several of the states, an acknowledgment is made

1 See, ante, §§19, 20.

2 Curtis v. Hunting, 6 Iowa, 536; Moran v. Palmer, 13 Mich. 367; Bernstine v. Smith, 10 Kan. 60; Warvelle on Abstracts, 129; Franklin v. Kesler, 28 Tex. 138; Coles v. Berryhill, 37 Minn. 58; s. c. 33 N. W. Repr. 213. Where patent issued to an assignee, a subsequent purchaser was protected, though the transfer of the certificate proved a forgery. Austin v. Dean, 40 Mich. 386.

3 Evitts v. Roth, 61 Tex. 81; Stevens v. Geiser, 71 Tex. 140.

4 Rev. Stats. of Tex. 4329; Rev Stats. of Wis. (1878), §2235; Laws of New York (1845), p. 110; Gen. Stats. of Oregon (1872), ch. 6, §37; Rev. Stats. of Mo. (1879), §3826; Dassler's Comp. Laws of Kan., ch. 76, §1. Their registration may be held compulsory under some of the statutes. Rev. Stats. of Ohio (1880), §4115; Rev. Stats. of Ind. (1881), §470; Hittell's Cal. Codes (1876), §6160; Civ. Code of Dak. §647; Comp. Laws of Utah (1876), §619. So held in Coles v. Berryhill, 33 N. W. Repr. 213; s. c. 37 Minn. 58. The delivery of a patent is not essential. U. S. v. Schurz, 102 U. S. 378.

an essential part of the execution of deeds by sheriffs and others acting under judicial process, and without it, no title passes by the deed. Where this is the case, it is held that a subsequent act of the legislature validating imperfect acknowledgments and records, does not cure defective acknowledgment of a deed of this kind.1 Wherever creditors are not specifically mentioned by the terms of the statute as within the protection of the recording acts, it is usually held that an execution deed will not convey title as against an unrecorded bona fide deed from the debtor.2 This matter, as to which neither the statutes nor the decisions are uniform, is fully treated in a subsequent chapter, and has been already briefly alluded to in considering the rights of creditors under the recording laws.3

$27. Quit-claim Deeds.

It is held by a number of the courts that a grantee under a quit-claim deed is not a bona fide purchaser without notice; that the grantor does not thereby affirm the possession of any title, and the grantee takes subject to all equities good against his vendor; and the registry of such a deed does not, therefore, prevail against a prior unrecorded deed from the grantor. This doctrine is,

1 Ryan v. Carr, 46 Mo. 483; Curtis v. Millard. 14 Iowa, 128; Spoor v. Phillips, 27 Ala. 193.

2 Finch v. Winchelsea, 1 P. Wms. 277; Cover v. Black, 1 Pa. St. 493; Heistner v. Fortner, 2 Binn. 40; s. c. 4 Am. Dec. 417; Plant v. Smythe, 45 Cal. 161; Hackett v. Callender, 32 Vt. 97; 1 Devlin on Deeds, §634. 3 See $10, ante, and ch. 8, post, §§195-214.

4 Johnston v. Williams, 37 Kan. 179; s. c. 1 Am. St. Rep. 243; 14 Pac. Repr. 537; Dickerson v. Colgrove, 100 U. S. 578; Brown v. Jackson, 3 Wheat. 449; May v. Le Claire, 11 Wall. 217; Thorn v. Newsom, 64 Tex. 161; s. c. 53 Am. Rep. 747; Snow v. Lake, 20 Fla. 656; s. C. 51 Am. Rep. 625; Lumber Co. v. Hancock, 70 Tex. 312; Bragg v. Paulk, 42 Me. 502; Leland v. Isenbeck, 1 Idaho, 469; Fleetwood v. Brown, 109 Ind. 571; s. c. 11 N. E. Repr. 779; Smith v. The Bank, 21 Ala. 24; Raymond v. Morrison, 59 Iowa, 371; De Veaux v. Fosbender, 57 Mich. 579; Judge Cooley dissenting; post, §183.

To the rule that a quit-claim conveys only the interest of the grantor at the time, there are two exceptions: one, founded on the recording

however, squarely denied in other states, the courts of which hold that as a quit-claim is sufficient to pass the full legal title, the form of the conveyance is immaterial, and that there is no just reason why a purchaser by quit-claim is not entitled to the protection of the registry laws. A statute of Minnesota declared that a deed of quit-claim should be sufficient to pass all the interest which the grantor could lawfully convey by deed of bargain and sale. The courts of that state held that as the grantor could not legally convey what he had already sold to another, this statute would not change the rule that the grantee in such a deed was a purchaser with notice, and not protected by the recording acts.2 It is to be noticed that even where the rule obtains that a quitclaim purchaser is a purchaser with notice, the rule is limited to quit-claim deeds in the strict sense of that species of conveyances, and where the legal import is a quit-claim or deed of release of all one's right, title and interest, which is not intended and does not purport to convey an absolute right to land, as contradistinguished from a conveyance of the title or chance of title which the grantor may be supposed to have. If from the terms of the deed, the adequacy of the price paid, or other circumstances, it appears that the grantor intended to convey, and the grantee expected to be invested with, a acts, Allison v. Thomas, 72 Cal. 562; s. c. 1 Am. St. Rep. 89; 14 Pac. Repr. 309; and the other has been recognized in reference to sales made under execution, Id. Roberts v. Bourne, 23 Me. 165; s. c. 39 Am. Dec. 614; Ingalls v. Newhall, 139 Mass. 268.

1 Cutler v. James, 64 Wis. 173; s. c. 54 Am. Rep. 603; 24 N. W. Repr. 874; Fox v. Hall, 74 Mo. 315; s. c. 41 Am. Rep. 316; Craig v. Zimmerman, 87 Mo. 475; s. c. 56 Am. Rep. 466; Chapman v. Sims, 53 Miss. 163; Brown v. Banner, 97 Ill. 214; s. c. 37 Am. Rep. 105; Graff v. Middleton, 43 Cal. 341; Pastel v. Palmer, 71 Iowa, 157; s. c. 32 N. W. Repr. 257. See post, $183.

2 Martin v. Brown, 4 Minn. 282. See, under present statute, Strong v. Lynn (Minn.), 37 N. W. Repr. 448.