or on the margin, of the record of the mortgage.1 These statutes usually provide further that the discharge may also be made by the common form of a separate deed of release or quit-claim; a provision made necessary by the fact that it is often not practicable for the mortgagee to appear before the recorder to authorize the entry in shorter form. The California Code provides that the mortgagee, or his assignee, may acknowledge the satisfaction of the mortgage" before the recorder, who certifies the acknowledgment in the margin of the record.3 A mortgage had been given to secure several notes, the first of which was paid, and this entry made on the record: "Full payment and satisfaction of the within note. and mortgage hereby acknowledged." It was contended. that this was not a full discharge of the mortgage; that as the mortgage showed other notes, not then due, this entry showed them not paid; but the court held that the matter with respect to the payment of "the note" was not properly of record as part of the marginal entry, and that part of it was, therefore, not constructive notice.4 In North Carolina it is held that when the mortgage debt is settled, the mortgage is in equity no longer operative, though no satisfaction be entered of record.5

1 Code of Ala. §2222; Stimson's Am. Stat. Law, §1905. Usually the mortgagee must acknowledge satisfaction in the presence of the regis ter, or sign the entry in the record, which must be attested by the register. In South Carolina, satisfaction of a mortgage does not, as a deed, require two witnesses.

Ryan, 22 S. C. 339.

Gen. Stats., 1872, pp. 427-8; City Council v.

2 Rev. Laws of Vermont, 1880, §1952; Pub. Stats. of Mass., 1882, ch. 120, §§24, 26.

3 Civ. Code, §2938.

4 Beal v. Stevens, 72 Cal. 451; s. c. 14 Pac. Repr. 186. Where the mortgage was to secure the payment of an annuity to a minor, and the trustee wrongfully entered a discharge and satisfaction in full of it, a party subsequently dealing with the property was held chargeable with constructive notice that such release was unauthorized. McPherson v. Rollins, 107 N. Y. 317; 14 N. E. Repr. 411. See post, $175.

5 Walker v. Mebane, 90 N. C. 259.

T

$35. Deeds of Trust.

A deed of trust is technically a deed, and its execution and acknowledgment in such manner as is required by statute in case of deeds, is sufficient.1 A trustee in a deed of trust, unless a general trustee for the benefit of creditors, is a purchaser for value, and is not affected with any infirmity in the grantor's title of which he had not notice. It has been held in some Pennsylvania cases that a purchaser from a cestui que trust is affected with notice of outstanding latent equities, and cannot perfect his title by obtaining a conveyance from the trustee;3 but these decisions are against the weight and current of the authorities.1 The interest of a trustee is such as to disqualify him, as an officer, from taking the acknowledgment to the deed of trust.5 The record of a trust deed or mortgage, with power of sale, has been held to charge subsequent purchasers with notice of the fact that a sale has been made under the power, although the deed was unrecorded.

§36. Conveyances of Equitable Title.

As already stated, it was held in many early cases that the registry acts applied only to conveyances of the legal title, and that equitable interests were not included

1 Branch v. Atlantic Ry. Co.. 3 Woods, 481. A trust deed is but a mortgage with power of sale. McLane v. Paschal, 47 Tex. 364; post, $210. But this rule does not obtain in Louisiana. Thibodeaux v. Anderson. 34 La. Ann. 797.

2 Fargason v. Edrington, 49 Ark. 207, 214; s. c. 4 S. W. Repr. 763; Kesner v. Trigg, 98 U. S. 50; Wickham v. Lewis, 13 Gratt. 427; New Orleans, etc., Co. v. Montgomery, 5 Otto (95 U. S.), 18; post, §211.

3 Ingersoll v. Sergeant, 7 Barr. 340; 3 Harris, 343; Kramer v. Arthurs, 7 Barr. 161.

4 Sumner v. Vaugh, 56 Ill. 539; Zollman v. Moore, 21 Gratt. 313; Correy v. Caxton, 4 Binn. 140; Flagg v. Mann, 2 Sumn. 486, 518; Bellas v. McCarty, 10 Watts, 257.

& Jones v.

Porter, 59 Miss. 628; Brown v. Moore, 38 Tex. 645; Stevens v. Hampton, 46 Mo. 404; Darst v. Gale, 83 Ill. 136; Bennett v. Shipley, 82 Mo. 448. See post, §67.

6 Heaton v. Prather, 84 Ill. 330; Farrar v. Payne, 73 Ill. 82; See post, $210.

1 Ante, §20.

73

within them.1 Courts of equity, it was said, could afford proper relief to equitable claimants aside from the aid of the registry laws.2 The distinction, however, between courts of law and equity has been largely, and in some states entirely, abolished; and a growing theory of modern jurisprudence is that law and equity are, or ought to . be, the same. Salutary legislation is rightly directed to whatever subject matter it can properly affect, without distinction as to the forum or form of remedy, and no just reason can be shown for exempting any interest in real property from the operation of the recording acts, because of a technical difference of name. By force of statute and decision together, it is now settled as a rule almost without exception, that the registry laws apply to all conveyances affecting real estate, of whatever character.4

1 Morton v. Robards, 4 Dana, 258; Corn v. Sims, 3 Met. 391; Doswell v. Buchanan, 3 Leigh, 376; s. c. 23 Am. Dec. 280; Grimstone v. Carter, 3 Paige, 421; Briscoe v. Ashley, 24 Gratt. 454, 476; Morecock v. Dickens, Amb. 678; Swigert v. The Bank of Ky., 17 B. Mon. 268; Kelley v. Mills, 41 Miss. 267; Jaques v. Weeks, 7 Watts, 261; Laverty v. Moore, 32 Barb. 347; s. c. 33 N. Y. 658. See Preston v. Nash, 76 Va. 1, qualifying Doswell v. Buchanan, supra.

2 Grimstone v. Carter, supra.

3 The exceptions principally relate to wills, as to which see, post, $48; leases for a limited term of years, powers of attorney and executory contracts, as to which see Rev. Stats. of Ind., 1881, §2956; Stimson's Am. Stat. Law, §1551.

4 Herrington v. Williams, 31 Tex. 448; Smith v. Neilson, 13 Lea, 461; U. S. Ins. Co. v. Shriver, 3 Md. Ch. 381; Wilder v. Brooks, 10 Minn. 50; Fish v. Benson, 71 Cal. 428; s. c. 12 Pac. Repr. 454, and cases cited in notes to $20, ante. As to registry of a conveyance of an equitable title not protecting against a purchase of the legal title from one who appears by the record to be the real owner, see Tarbell v. West, 86 N. Y. 280; Carson v. Phelps, 40 Md. 73, and Irish v. Sharp, 89 Ill. 261. In New York, although an agreement to convey land is held not within the recording acts (Ludlow v. Van Ness, 8 Bosw. 178), yet where one is in possession under a written contract of this kind, its record is sufficient notice to subsequent grantees or incumbrancers of the character of his possession. Laverty v. Moore, 33 N. Y. (6 Tiff.), 658; s. c. 32 Barb. 347. So, it is held that the registry of a conveyance of an equitable title is notice to a subsequent purchaser of the same interest or title from the same grantor, but is not notice to a purchaser of the legal title from the

$37. Executory Contracts.

The law of registration is not uniform as to executory contracts. In a number of states they are, by the terms of the recording acts, excluded from their operation1; in others they are included, either specifically, or by the use of such terms as necessarily include them.2 Thus, in Texas, the statute provides for the registry of "all instruments relating to any lands," and this is held to include executory contracts. Unless their registration be provided for by statute, such contracts would gain nothing by being recorded.5 In Minnesota an executory contract is recordable, but priority in its record does not give it preference over a deed given before the execution of the contract.6

$38. Bonds for Title.

Bonds for title are usually within the recording acts.7 Although a species of executory contract, they are so nearly allied to conveyances of title as to come within person who appears by the record to be the real owner. Tarbell v. West, 86 N. Y. 280.

One who acquires the legal title with notice of the equitable rights of another, under a contract, takes subject to those rights. Hilton v. Young, 73 Cal. 196; s. c. 14 Pac. Repr. 684. An earlier mortgage on an equitable interest given preference over a later one, executed after the mortgagor had acquired the legal estate. Edwards v. McKernan, 55 Mich. 520; s. c. 22 N. W. Repr. 20; and see also, Putnam v. White, 76 Me. 551.

1 See statutes of Dakota, Indiana, Minnesoto, Montana, Nebraska, New York, Michigan, Wisconsin and Wyoming. Laverty v. Moore, 33 N. Y. 658.

2 Rev. Stats. Ind. (1881), $2957; Case v. Burnstead, 24 Ind. 429; and see statutes of Missouri and Arkansas. "Any instrument affecting the title to, or possession of, real property." Illinois, Kansas, California, Colorado. Allen v. Woodruff, 96 III. 11.

3 Rev. Stats of Texas, 4331, also 4333, 4334.

4 Ranney v. Hogan, 1 Tex. U. Cas. 283; Miller v. Alexander, 8 Tex. 45.

5 Messick v. Sunderland, 6 Cal. 297; Ludlow v. Van Ness, 8 Bosw. 175.

Thorson v. Perkins (Minn.), 40 N. W. Repr. 557.

7 McFarran v. Knox, 5 Cold. 217; Morgan v. Snell, 3 Baxt. 382; Schuster v. La Londe, 57 Tex. 28; Catlin v. Bennett 47 Tex. 165; Der Dellinger, 75 N. C. 300.

75

the law wherever its terms do not expressly forbid it.1 Where one bought land for which he received a bond for title, instead of a deed, conditioned that the legal title should be conveyed to him as soon as the land was paid for, which bond was duly recorded, and before paying for the land the purchaser mortgaged his interest, and subsequently the mortgagor, to meet the demands of his grantor, executed another mortgage to a different party, and with the proceeds paid for the land; it was held that the release of the vendor's lien enured to the benefit of the first mortgagee, and the second mortgagee, by the record of the title bond and the first mortgage, was charged with notice of the rights thereby secured.2

$39. Equitable Mortgages.

In Wisconsin it is held that the record of a mortgage of an equitable estate is notice to, and takes precedence of a deed to, any subsequent purchaser of the property.3 This is the rule generally, and what has been said with reference to equitable titles applies to equitable mortgages as well. 4 Such a mortgage, if first recorded, is usually preferred to a mortgage of the legal estate. The rule, however, is not universal that the record

1 Scarborough v. Arrant, 25 Tex. 129, 132. But an assignment of a bond held not recordable. Kelly v. Thompson, 2 Heisk. 281.

2 Alderson v. Ames, 6 Md. 52; Clamorgan v. Lane, 9 Mo. 446; Wade on Notice, §254; Todd v. Outlaw, 79 N. C. 236; Butler v. Maury, 10 Humph. (Tenn.), 420.

In Kentucky it is held that the registry acts relate to conveyances of the legal title only, and not to bonds or other evidences of mere equitable title. Corn v. Sims, 3 Met. 401, decided in 1860; Morton v. Robards, 4 Dana, 260; Nelson v. Boyce, 7 J. J. Marsh, 401.

3 Jarvis v. Dutcher, 16 Wis. 307; Edwards v. McKernan, 55 Mich. 520.

4 Ante, $36, and cases there cited; Hunt v. Johnson, 19 N. Y. 279; Gen. Ins. Co. v. U. S. Ins. Co., 10 Md. 517; s. c. 69 Am. Dec. 174; Bank of Greensboro v. Clapp, 76 N. C. 482; Putnam v. White, 76 Me. 551.

5 U. S. Ins. Co. v. Shriver, 3 Md. Ch. 381. See Edwards v. McKernan, 55 Mich. 520; s. c. 22 N. W. Repr. 20, in which the court were equally divided as to the priority accorded by the lower court to an equitable mortgage over a subsequent one of the legal estate.