instrument relating to lands and proper to be recorded.1 In some states debtors are allowed a time for the redemption of lands sold at tax sales, and also those sold under execution and other judicial process, and deeds do not issue immediately upon such sales, but a certificate of sale is issued to the purchaser. A duplicate of this certificate is recorded in the registry of deeds, and the certificate, duplicate or record of same, is by law made evidence of the facts therein stated. Such certificates may be assigned, but it has been held that the assignee takes subject to every equity, and cannot be regarded as an innocent purchaser, entitled to protection as such, until he is clothed with a legal title by the sheriff's deed. The statutes of Colorado expressly requiring that the word "Homestead" should be entered of record on the margin of the recorded title of the homestead before the benefit of the statute can be had, it was held that no room was left for construction, and that actual notice could not be deemed an equivalent, as against a creditor seeking to recover or subject the homestead.*

$49. Plats.

The statutes usually provide for recording plats of towns. and cities, and sometimes also, plats of subdivisions of lands

i Peterson v.Lowry, 48 Tex. 408. A parol partition is not affected by the registry laws, and a subsequent levy upon lands other than those allotted to the defendant, is of no effect. Aycock v. Kimbrough, 71 Tex. 330.

2 Rev. Code of Iowa (1873), §3101; Gen. Stats. of Minn., ch. 8, §190; Vaughn v. Ely, 4 Barb. 156; Everston v. Sawyer, 2 Wend. 507; Gossard v. Ferguson, 54 Ind. 519; Gardner v. Eberheart, 82 Ill. 316; Lasell v. Powell, 7 Coldw. 277; Evans v. Ashley, 8 Mo. 177.

3 Warvelle on Abstracts, 436; citing Roberts v. McClelland, 82 Ill. 538; Reynolds v. Harris, 14 Cal. 667; Messerschmidt v. Baker, 22 Minu. 81; Potts v. Davenport, 79 Ill. 455; Swink v. Thompson, 31 Mo. 336.

In Texas purchase money notes given for land are entitled to record if acknowledged. Saunders v. Hartwell, 61 Tex. 680.

Goodwin v. Col. M. Inv. Co., 110 U. S. 1. The constitutions of Nevada and Louisiana provide that laws shall be enacted requiring homesteads to be recorded, and legislation on this subject can be found in nearly all the statutes. A provision authorizing the record of a designation of the homestead (Rev. Stats. of Tex. §2344; Rev. Code of Iowa, $1999), is usually only a matter of privilege and convenience, designed to give notice to creditors, and to save the expense of a designation by order of court, which might otherwise become necessary.

92

generally.1 These plats are ordinarily recorded along with the registry of deeds, and the requirements of the statute in relation to them, are usually indispensably requisite to a valid registration. When duly executed, acknowledged and recorded, certified copies thereof may be used in evidence to the same extent, and with like effect, as in cases of deeds. The record of such plat is in effect a dedication of the streets and alleys marked thereon to public use; and by some of the statutes such record is further made to operate as a conveyance of all the portions marked on the plat to the public, or to any society, corporation or body politic. Aside from the statute, the reservation to public use of portions of the premises shown on a plat by which sale is made, will create a servitude by estoppel in favor of purchasers of adjoining lots. The fee, however, will at com

1 Rev. Code of Iowa (1873), §559; Rev. Stats. of Wis. (1878), p. 645; Rev. Stats of Ill. (1874), p. 771; Satchell v. Doram, 4 O. St. 542. Record of a town plat not necessary to its validity, where the statute in reference to it is only directory. Commissioners v. Wood, 10 Pa. St. 93; s. c. 49 Am. Dec. 582.

2 Warvelle on Abstracts, 147. A map pasted between the leaves of the record book, or recorded in pencil, is not duly recorded. Caldwell v. Center, 30 Cal. 539; s. c. 89 Am. Dec. 131.

3 Bissell v. N. Y. Cent. Ry. Co., 23 N. Y. 61; s. c. 26 Barb. 63; Rees v. Chicago. 38 Ill. 322; Irwin v. Dixon, 9 How. 30; Godfrey v. City of Alton, 12 Ill. 29; Dillon on Municipal Corp. $498; Price v. Meth. Church, 4 O. St. 515, 542; Mauderschid v. Dubuque, 29 Iowa, 73; Banks v. Ogden, 2 Wall. 57.

4 Lebanon v. Warren Co., 9 Ohio, 80; and see statutes cited in first note to this section; Brown v. Manning, 6 Ohio, 298; Lake View v. LeBahn, 120 Ill. 92.

5 Harrison v. Boring, 44 Tex. 256; Bissell v. N. Y. Ry. Co., supra; Lake View v. LeBahn, 120 Ill. 92; In re Pearl Street, 111 Pa. St. 565; Point Pleasant v. Cranmer, 40 N. J. Eq. 81; In re Brooklyn Street, 118 Pa. St. 640; s. c. 4 Am. St. Rep. 618; Maywood v. Maywood, 118 Ill. 61; Banks v. Ogden, 69 U. S. (2 Wall.), 57; New Orleans v. U. S. 10 Pet. (35 U. S.), 498; Smith v. Portland, 30 Fed. Repr. 734; Shellhouse v. State, 110 Ind. 509; Lockland v. Smiley, 23 O. St. 94; Ragan v. MeCoy, 29 Mo. 356; Bartlett v. Bangor, 67 Me. 460; Commonwealth v. Moorehead, 118 Pa. St. 344; s. c. 4 Am. St. Rep. 599; Weeping Water v. Reed, 21 Neb. 261; s. c. 31 N. W. Repr. 797; Morgan v. Chicago, 96 U. S. 716; Abbott v. Cottage City, 143 Mass. 521; Trerice v. Barteau, 54 Wis. 99; San Leandro v. LeBreton, 72 Cal. 170; Oswald v. Grenet, 22 Tex. 94; Lamar Co. v. Clements, 49 Tex. 354.

mon law remain in the original proprietor, burdened with the servitude; but the effect of the statutes is usually to pass the fee to the municipality or other body. If a deed gives no other description of the land than the lot or block of a survey or subdivision, the authentic plat of such surIvey is as much a part of the deed as if set out in it; and a reference to a plat is as effective by way of estoppel as express words of grant or covenant.2 A reference to a plat by lot and block has been held entitled to a more controlling influence than a special description by metes and bounds, which followed the reference and limited the area to less than the lot referred to in the plat.3 Where a private plat is referred to, but not recorded with the deed, it is not notice.⭑

The rule of estoppel, however, is often denied as against married women. McBeth v. Trabue, 69 Mo. 642, 657; Todd v. Pittsburg, 19 O. St. 514; Bradstreet v. Pratt, 17 Wend. 44.

1 Manly v. Gibson, 13 Ill. 308; Ry. Co. v. Joliet, 79 Ill. 25; Gridly v. Hopkins, 84 Ill. 528.

2 Dolde v. Vodicka, 49 Mo. 100; Powers v. Jackson, 50 Cal. 429.

8 Rutherford v. Tracy, 48 Mo. 325; Warvelle on Abstracts, 145. Where the number of the block was wrongly given, but there were other descriptive recitals in the deed which, if followed up, would show the error, such error was held immaterial. Briggs v. Ripley (Minn.), 3 N. W. Repr. 120; and see Subert v. Rosser, 24 Minn. 155; Schweiss v. Woodruff (Mich.), 41 N. W. Repr. 511.

"If the description in the deeds was sufficiently certain, by a reference to the plat on record, to identify and locate the lots, the title passed to the grantees, whether the plat conformed to the acts of the legislature or not. This is all that is material so far as the plat is concerned"-both parties claiming under the same survey of the town (Chicago), and by reference to the same plat. The original plat had been introduced in evidence below, to prove that the plat as recorded did not correctly show the lines. This was held error, as the deeds of both parties referred to the recorded plat. The remedy for an error of description was in chancery to reform the deed, while this was an action of ejectment. Jones v. Johnston, 18 How. 150.

4 Shirras v. Craig, 3 Cranch, 34.

In Texas there is no statutory provision as to recording plats, but if duly acknowledged, it is believed that they are admissible to record under article 4331 of the Revised Statutes (1879), as “instruments of writing concerning lands and tenements;" and a reference in a deed to a plat or map, whether recorded or not, is a good descriptive call, on the principle that "that is certain which can be made certain." See Oswald v. Grenet, 22 Tex. 94.

$50. Record of Wills.

By reference to the statute of 7 Anne, ch. 20, quoted in the first section of this work, it will be seen that wills are included with other conveyances of real estate in that act. By the registry act for the East Riding of Yorkshire, it is provided that where there is an impediment to the registration of the will within the time prescribed, the registration of a memorial of such impediment will preserve the rights of devisees as though the will itself had been registered, until such time as the impediment is removed.1 And by 37 and 38 Vict, ch. 78, for Middesex and Yorkshire, it is provided that where a will has not been registered within the time allowed, a conveyance by the devisee shall take precedence, if first registered, over one from the testator's heir-at-law. A will by which lands are devised, though differing from a deed in its manner of probate and in other features, is yet a written conveyance of real estate, and it is consistent with the policy and harmony of the system of registration that wills should be placed, as by these English statutes, within the registry acts. While in a number of the American states, wills are required to be recorded with other conveyances,2 in a great majority of

In Iowa, where there is a statutory provision for recording plats, the court said: "Without such recorded plat there was one link wanting in plaintiff's recorded chain of title. The only means of supplying this defect in their record title was to take possession of the property, or otherwise bring actual or constructive notice of the missing link to the defendant." Stewart v. Huff, 19 Iowa, 557. See as to plats, Deery v. Cray. 10 Wall. 263, 272.

1 Under this statute it was held that a devisee loses his priority as against a subsequent registered mortgagee for value, unless he registers a memorial of the will, or of the impediment which prevents its registration, within six months of the decease of the devisor, even although he is ignorant of the existence of the will until after the expiration of the six months-a failure to discover the will being such impediment as was contemplated by the act. Chadwick v. Turner, 11 Jur. N. S. 333; 34 Beav. 634. See Wyatt v. Barwell, 19 Ves. 435; Hall's Lessee v. Ashby, 9 Ohio, 96.

2 Rev. Stats. of Wisconsin (1878), $2296; Hurd's Rev. Stats. of Ill. ch. 30, $33; Gen. Stats of Minn., ch. 47, §35; Gen. Stats. of Colo.

them legislation and decision, as to the record of wills, seem to have proceeded on the theory that their registration is not needed under, nor contemplated by, the recording acts, and that their record in the court where probated, is sufficient notice of their existence and contents. The probate of a will is in the nature of a proceeding in rem such as is held to charge every one with notice thereof.1

$51. Record of Wills-Continued.

When the lands devised by will lie in the county where the will is probated, the American theory and practice is not open to very serious objection; although, even in such case, it would be well to require a record of the will along with that of other conveyances, in order that the chain of title might be made to fully appear in the office where title is recorded. But where the will conveys lands situated in other and perhaps distant counties, a failure to require the will to be recorded in such other counties, leaves a hiatus in the record title of such lands, existing under circumstances that offer full opportunity for the frauds and evils that registration is designed to prevent. Some of the statutory provisions authorizing the recording of a certified copy of a will, not being mandatory in terms, nor found in the recording acts proper, are only permissive in their nature, and do (1883), $230; Rev. Stats. of Maine (1883), ch. 7, §16; and see statutes of New York, Vermont, Nebraska, California, Idaho, Michigan and Arizona. In Alabama, wills creating estates in remainder or reversion, are void as against creditors of the tenants for life, in possession, unless recorded within five years. Rev. Code, §1560.

1 Hall v. Hall, 47 Ala. 290; Lalanne v. Moreau, 13 La. 431; Hodges v. Bauchman, 8 Yerg. 186; Scott v. Calvit, 3 How. (Miss.), 158; State v. McGlynn, 20 Cal. 271; 3 Redmon on Wills, 63; Steele v. Renn, 50 Tex. 468, 481; Orr v. O'Brien, 55 Tex. 149; Freeman on Judgments, §608; and see Wharton's Confl. of Laws, $645; Story's Confl. of Laws, $474; Kerr v. Moore, 9 Wheat. 565; Leitch v. Wells, 48 N. Y. 585; Jackson v. Warren, 32 Ill. 331; Grignon's Lessee v. Astor, 2 How. 319; McPherson v. Cunliff, 11 Serg. & R. 422.

As to the application to wills, in England, of the doctrine of tacking, see O'Hara on Wills, 185. As to when a registered will is not notice, see Woods v. Farmere, 7 Watts, 382.