of an equitable mortgage is notice to a purchaser of the land from the holder of the legal title.1 Equitable mortgages arising by deposit of title deeds, as being contrary to the statute of frauds and to the spirit and operation of our American registry system, are not usually, though sometimes, recognized in this country.2

$40. Personal Property.

The general principles of the doctrine of notice by registration apply to personal property substantially as to real estate, wherever the law requires the record of instruments relating to personal property.3 In determining, however, what instruments are required to be recorded, the rule as to real and as to personal property is different. The settled construction is that the law contemplates and requires the record of all conveyances affecting real estate, and the application of this rule serves, in a large measure, to relieve this question of its difficulties, so far as real property is concerned. Thus, although the language of the statute as to the record of this latter class of instruments may be only permissive, yet it is held that they are thereby required to be recorded, and are brought fully within the consequences that attach to a failure to register. But this construction will not be applied with reference to personal property, for the reason that as to it the general rule does

1 Tarbell v. West, 86 N. Y. 280: Halsteads v. Bank of Ky., 4 J. J. Marsh. 554; Irish v. Sharp, 89 Ill. 261; 1 Jones on Mortgages, $469. 2 Gale v. Morris, 29 N. J. Eq. 222; Hutzler v. Phillips, 26 S. Car. 136; s. c. 1 S. E. Repr. 502; Jarvis v. Dutcher, supra.

3 Wade on Notice, §§67, 68; Reed v. Gannon, 50 N. Y. 345; Parker v. Middlebrook, 24 Conn. 207; Saltus v. Everett, 20 Wend. 267; Crocker v. Crocker, 31 N. Y. 507. This is more especially true as to actual notice of an outstanding title or equity charging a subsequent purchaser. Greeneaux v. Wheeler, 6 Tex. 515; McAnely v. Chapman, 18 Tex. 198; Wooster v. Sherwood, 25 N. Y. 278; Allen v. McCalla, 25 Iowa, 464; s. C. 96 Am. Dec. 64.

4 Pepper's Appeal, 77 Pa. St. 373. See Wells v. Smith, 2 Utah, 39, with dissenting opinion by Judge Emerson, citing Boyd v. Schlossinger, 59 N. Y. 301; Cook v. McChristian, 4 Cal. 23; Farmer's Bk. v. Bronson, 14 Mich. 361.

not obtain that the law contemplates the record of every instrument affecting its title. Thus, the Texas statute author. izes (or permits) the record of "any instrument of writing concerning any lands or tenements, or goods or chattels, or movable property of any description;" yet it is not held in that state that the failure to record a bill of sale of personal property will defeat the owner's title as against a subsequent purchaser; nor does this permissive statute give the effect of constructive notice to the record of instruments affecting personal property not otherwise, or elsewhere in the statutes, required to be recorded.2 In Georgia the statutes have, from an early period, permitted the record of instruments relating to personalty; but the correct rule of judicial interpretation as to such permissive record is that which is now legislatively declared in the code of that state in this language: "Deeds and bills of sale to personalty may be recorded in the office of the clerk of the Superior Court of the county where the maker resides. Such record being permissive and not compulsory, is not constructive or implied notice to any one; it is otherwise where the law requires the record to be made, and it is properly made. "3 The tendency of modern legislation is to extend the law of record to personal property. Many circumstances arise under which a record of its title or transfer, and of liens and claims affecting it, will materially serve the interests of commerce, and the ends of justice as well. These circumstances relate more especially to chattel mortgages and other liens, conditional sales and assignments for the benefit of creditors. The registry statutes relating to personalty are usually, and often materially, different from those pertaining to realty, and for this reason the subject of per

1 Rev. Stats. §4331; Shifflet v. Morelle, 68 Tex. 382; s. c. 4 S. W. Repr. 843.

2 Chandler v. Burnham, 15 Tex. 441; Johnson v. Brown, 25 Tex. Sup. 126; Pegram v. Owens, 64 Tex. 475; and see Ex parte Fitz, 2 Lowell, 519; Shiflet v. Morelle, 68 Tex. 382.

3 Code of Ga., 1882, §2710.

sonal property presents a distinct branch of the law of record.1

$41. Chattel Mortgages.

As to chattel mortgages, registration is intended to take the place of the delivery and possession of the property required at common law. Under nearly all the statutes registration alone, without delivery or change of possession, is sufficient; and under perhaps all of them possession alone will suffice; and defects in the record of a chattel mortgage have been held cured by a subsequent delivery of the property.5 The validity of the instrument, or the lien of a chattel mortgage, as between the parties thereto, and as to third parties with actual notice of it, depends upon registration to a larger extent, and under a greater number of statutes, than does the validity and lien of real estate mortgages and deeds. In a number of the states actual notice will not supply the place of registry of a chattel mortgage as against any person; in others it will suffice as

1 See post, ch. 10. The Virginia statute does not authorize the record of sales or transfers of choses in action. Gordon v. Rixley, 76 Va. 694, 701. Under the Tennessee statute recording is, as to personal property, permissive only, yet such record charges constructive notice. Parker v. Hall, 2 Head. 641.

2 Russell v. Fillmore, 15 Vt. 130; Gass v. Hampton, 16 Nev. 189: Jones on Chattel Mortgages, §176; 2 Hilliard on Mortgages, p. 468, and cases there cited; Bullock v. Williams, 16 Pick. 33; Cotton v. Marsh, 3 Wis. 221.

3 See post, $254; Horton v. Williams, 21 Minn. 187; Comp. Stats. of Neb., p. 287, §11; Burley v. Marsh, 11 Neb. 291; and statutory laws in ch. 11. post.

4 In some of the states, as Utah and Louisiana, there are no statutory provisions as to chattel mortgages; and possession is, of course, essential to a chattel mortgage in the one, and a pledge in the other. The present Constitution of Louisiana, art. 177, provides that privileges, or liens, on movable property shall exist without registration for the same, except as the legislature may prescribe. Mullen v. His Creditors, 39 La. 397; s. c. 2 South. Repr. 45. In other states, as Pennsylvania, California and Nevada, the statutes provide for chattel mortgages on certain kinds of property only. Tregear v. Etiwanda Co., 76 Cal. 537.

5 Morrow v. Reed, 30 Wis. 81; Chipron v. Feikert, 68 Ill. 284; Brown v. Webb, 20 Ohio, 389; Jones on Chattel Mortgages, $178.

Rev. Stats. of Me., 1871, ch. 91, §§1, 2; Sheldon v. Conner, 48 Me. 584; Rev. Stats. of Mo., 1879, §2503; Rawlins v. Bean, 80 Mo. 614; Rev.

against subsequent purchasers, but not as against any creditor. Under some statutes, if a chattel mortgage is not recorded within the time limited by statute, the record is not constructive notice for any purpose; while under others the rule as to deeds prevails, and such record will be good from the time it is made. The general rule obtains that these mortgages are good as between the parties without record, or with defective record. The place of

their record is usually where the mortgagor resides; sometimes also the county where the property is situate; and in case of its removal, the mortgage is generally required to be recorded in the county to which the property is removed.5

$42. Abstracts of Judgments.

To the end that notice may be more clearly given of judicial proceedings and action thereunder affecting.property, many of the statutes make special provision for the recording of certain matters of this kind, some of the more important of which will be here noticed.

Stats. of Wis., 1878, ch. 105, §2313; Donaldson v. Johnson, 2 Chand. 160; Rev. Stats. of Ill., 1880. ch. 95, §1; Dowell v. Stewart, 83 Ill. 538; Rev. Stats. of Ind., 1876, p. 505, §10; Kennedy v. Shaw, 38 Ind. 474; Public Stats. of Mass., 1882, ch. 192; Bingham v. Jordan, 1 Alien, 373; s. c. 79 Am. Dec. 750; Gassner v. Patterson, 23 Cal. 299; Wilson v. Miller, 75 Mo. 41; Hughes v. Menifee, 29 Mo. App. 192; Howard v. Chase, 104 Mass. 251; Lockwood v. Slavin, 26 Ind. 135; post. $269.

1 Brothers v. Mundell, 60 Tex. 240; Keller v. Smalley, 63 Tex. 519; People v. Bristol, 35 Mich. 31; Braley v. Bymes, 25 Minn. 297; Sayre v. Hewes, 32 N. J. Eq. 652; Farmer's Loan Co. v. Hendrickson, 25 Barb. 484. This is the rule in Kansas, Tennessee, Kentucky and some other states. Post, §270.

2 Sidener v. Bible, 43 Ind. 230; McCord v. Cooper, 30 Ind. 9; post, $255.

3 Hardaway v. Semmes, 24 Ga. 305; Johnson v. Patterson, 2 Woods, 443.

4 Stewart v. Platt, 101 U. S. 731; Badger v. Batavia M. Co., 70 Ill. 302; Johnson v. Jeffries, 30 Mo. 423; Jones on Chattel Mortgages, $237, and cases there cited; post, $254.

5 Post, §§261-264; Rev. Stats. of Texas, §4341, and statutes in Appendix. For cases as to the place of record, where the mortgagors are a firm whose members reside in different counties, see post, §264; Stewart v. Platt, 101 U. S. 731; Hubbardson Lumber Co. v. Covert, 35 Mich. 254; Morrill v. Sanford, 49 Me. 566; Rich v. Roberts, 48 Me. 548; Briggs v. Leitelt, 41 Mich. 79. 80

Usually judgments do not become liens upon real estate, at least as against subsequent purchasers without notice, until docketed.1 It would be specially inconvenient to permit judgments of justices of the peace, scattered throughout the county, to operate as liens without being docketed, or enrolled at the county seat, in some record kept there for public inspection. For reasons of convenience and certainty the statutes in many instances go beyond the ordinary docketing, and provide that before the lien of any judgment shall attach, a certified copy, or an abstract thereof, shall be filed with the recorder of deeds for the county in which the lands to be affected are situated.8 Under the policy of these statutes, such record is usually held essential to the existence of the lien, and its place cannot be supplied by actual notice of the judgment.

5

Even the indexing is, by some of the statutes, made essentially necessary. Where the judgment of a lower court was affirmed on appeal, with costs and damages, such costs and damages were held not to constitute a lien until docketed

1 Freeman on Judgments, $343, citing Foster v. Chapman, 4 McCord, 291; Close v. Close, 28 N. J. Eq. 472; contra, Renick v. Ludington, 14 W. Va. 367. The rule would not apply at common law, if the purchaser had actual notice of the judgment; Davis v. Strathmore, 16 Ves. 419; Proctor v. Cooper, 2 Drew. 1.

2 For statutes requiring abstracts of such judgments to be furnished to the county recorder, see Rev. Stats. of Tex. $3156; C. C. P. of Cal. §§897-900; Civil Code of La. §§3322-3, 3329. A judgment of the Circuit Court of the United States is a lien from its rendition over lands of the defendant within the district over which the court has jurisdiction, and the statute of Florida requiring judgments to be recorded in the county where the land lies, has no application to such judgment. Doyle v. Wade (Fla.), 1 South. Repr. 576.

3 Rev. Laws of Vt., 1880, $770; Rev. Stats. of Wis. $2236; Taylor v. Hotchkiss, 2 La. Ann. 917; Rev. Stats. of Mich. §6650; Civ. Code of Dak. §647; Rev. Stats. of Tex. §§3153-3163; Chaffe v. Walker, 39 La. Ann. 35; s. c. 1 South. Repr. 290.

Shaw v. Neale, 6 H. L. Cas. 581; Pomeroy's Eq. Jur. §§641-642. Metz v. State Bank, 7 Neb. 165. Indexing was not essential under the former statutes of Texas; Schleicher v. Markword, 61 Tex. 99; but is so now; Rev. Stats. $3159; Belbaze v. Ratto, 69 Tex. 636. It is held not necessary to the creation of a docket lien, in Virginia; Old Dominion Granite Co. v. Clarke, 28 Gratt. 617.