To entitle a mortgage or other conveyance to be admitted to record, the requirements of the statutes as to execution 302 and delivery must be complied with.303 But a conveyance may be recorded after the death of the grantor, if made effectual by delivery before his death.304 In most of the states before a conveyance can be recorded it must be acknowledged by the maker before an officer designated by statute.305 A conveyance must be recorded within the county where the land is situated.306 A power of attorney to
300 Although leasehold estates are treated as chattel interests, mortgages affecting them are recorded with mortgages of real property. Berry v. Insurance Co., 2 Johns. Ch. (N. Y.) 603; Breese v. Bange, 2 E. D. Smith (N. Y.) 474; Paine v. Mason, 7 Ohio St. 198. Mortgages of growing crops and of trees, as long as they are realty, are to be recorded with mortgages of real property. Jones v. Chamberlin, 5 Heisk. (Tenn.) 210. Powers of attorney are sometimes required to be recorded. 1 Stim. Am. St. Law, § 1624 (10).
30l See 1 Stim. Am. St. Law, § 1624; Howard v. Shaw, 10 Wash. 151, 38 Pac. 746; Larned v. Donovan, 84 Hun, 533, 32 N. Y. Supp. 731; Murphy v. Barnard, 162 Mass. 72, 38 N. E. 29; Bowling v. Cook, 39 Iowa, 200; Merrill v. Luce (S. D.) 61 N. W. 43; Stein v. Sullivan, 31 N. J. Eq. 409; Turpin v. Ogle, 4 111. App. 611. But see James v. Morey, 2 Cow. (N. Y.) 246. Question of priority of assignments of the same mortgage seldom arises, because the mortgage note and mortgage are usually delivered to the first assignee. 1 Jones, Mortg. (5th Ed.) § 483.
303 Sigourney v. Larned, 10 Pick. (Mass.) 72; Galpin v. Abbott, 6 Mich. 17; Fryer v. Rockefeller, 63 N. Y. 268; Green v. Drinker, 7 Watts & S. (Pa.) 440; Mckean & Elk Land Imp. Co. v. Mitchell, 35 Pa. St 269; Ely v. Wilcox, 20 Wis. 551; White v. Denman, 1 Ohio St. 110.
304 Gill v. Pinney's Adm'r, 12 Ohio St. 38; Haskell v. Bissell, 11 Conn. 174.
3051 stim. Am. St. Law, § 1570.
306 1 Stim. Am. St. Law, § 1614; Lewis v. Baird, 3 Mclean, 56, Fed. Cas. No. 8.316; St. John v. Conger, 40 111. 535; Stewart v. Mcsweeney, 14 Wis. 468. In New Hampshire, Rhode Island, and Connecticut, the town is the unit instead of the county. 2 Dembitz, Land Tit. 941. Where an instrument affects land lying in two or more counties, it must be recorded in each. Oberholtzer's Appeal, 124 Pa. St. 583, 17 Atl. 143, 144; 1 Stim. Am. St. Law, §§ 1614, 1627. But see, as to change of boundaries. Koerper v. Railway convey land may be recorded in any county in which the grantor may at the time or thereafter have land to convey (unless it is restricted to particular tracts); that is, in any county of the state. But it does not follow that, when recorded in one county, it will make a deed as to land in another county recordable; nor will it, at least in some states, and where the statute does not expressly authorize the recording of such instruments in every county, make a deed as to land in another county recordable, or even prove itself by the record.307 The notice takes effect from the time the instrument is filed for record,308 and the certificate of the recording officer is conclusive as to the time of such filing.309 If the instrument is erroneously recorded, it is, in some states, notice only of what appears on the record.310 But in other states the first grantee, having done all he could to secure a proper record, is not made to suffer by the recording officer's mistake.311 The officer is liable for damages suffered by the one or the other through negligence in recording.312 He may, however, correct errors in the record at any time,313 but notice of the instrument as corrected begins only from the time such corrections are made.314
When an instrument has been properly recorded, its priority is nowise affected by a destruction of the records.315
Co., 40 Minn. 132, 41 N. W. 65G; Milton v. Turner, 38 Tex. 81; Garrison v. Haydon, 1 J. J. Marsh. (Ky.) 222.
307 Muldrow v. Robison, 58 Mo. 331.
308 Haworth v. Taylor, 108 111. 275; Sinclair v. Slawson, 44 Mich. 123, 6 N. W. 207; Mutual Life Ins. Co. v. Dake, 87 N. Y. 257; Brooke's Appeal, 64 Pa. St. 127; Woodward v. Boro, 16 Lea (Tenn.) 678.
309 Tracy v. Jenks, 15 Pick. (Mass.) 465; Hatch v. Haskins, 17 Me. 391.
310 Frost v. Beekman, 1 Johns. Ch. (N. Y.) 288; s. c, appeal, 18 Johns. (N. Y.) 544; Miller v. Bradford, 12 Iowa, 14; Brydon v. Campbell, 40 Md. 331. Contra, Mims v. Mims, 35 Ala. 23, under a statute making conveyances "operative as a record" from the time of delivery to the officer.
311 Merreck v. Wallace, 19 111. 486; Tousley v. Tousley, 5 Ohio St 78. And see Sinclair v. Slawson, 44 Mich. 123, 6 N. W. 207.
312 l Jones, Mortg. (5th Ed.) § 579.
313 Sellers v. Sellers, 98 N. C. 13, 3 S. E. 917.
314 Chamberlain v. Bell, 7 Cal. 292.
315 Shannon v. Hall, 72 111. 354; Heaton v. Prather, 84 111. 330. See 1 Stim. Am. St Law, § 1620. But some statutes require a re-recording within a given time. Tolle v. Alley (Ky.) 24 S. W. 113. And see Hyatt v. Cochran, 69 Ind. 436.
In a few states, the index is made a part of the record, so that an instrument recorded, but not indexed, is not notice.316 In others the index is no part of the record.317
Of What Facts Record is Notice,
When an instrument is properly recorded, it is constructive notice of everything which could be learned by an actual examination of the record. Therefore purchasers are bound by recitals in the recorded deed,318 and a reference to a prior, unrecorded instrument gives notice of that instrument.319 There is notice, also, of anything as to which the record would put one on inquiry.320
To Whom Record is Notice.
Most of the recording laws provide that unrecorded instruments shall be void against subsequent purchasers and incumbrancers without notice, and for value, whose deeds or mortgages are recorded first.321 The effect of these statutes is that priority of record gives priority of title,322 and, when both instruments are unrecorded, priority is according to the time of execution.323 In a few states the subsequent conveyance has priority, although it is not first recorded,324 and in some states actual notice of a deed or mortgage does not make it valid against subsequent purchasers unless it has been recorded.325 In several states the statutes provide