Sec. 566.

Priorities apart from recording acts.


As between legal interests.


As between legal and equitable interests.


As between equitable interests.

Sec. 567.

The recording acts.


General considerations.


Instruments capable of record.


Unauthorized record of instrument.


Instruments not in chain of title.


Instruments executed prior to acquisition of



Instruments executed after apparently parting

with title.


Instruments recorded after parting with title.

' (h)

What constitutes recording. -


Time allowed for recording.


Mistakes by recording officer.


Index to records.


Persons affected with notice by record.


Persons entitled to assert failure to record.

Sec. 568.

Notice as substitute, for recording.


Information putting on inquiry.


Notice to agent.


Notice from possession.


General considerations.


Character of the possession.


Possession consistent with record title.


Cotenant in possession.


Joint possession or occupation.


Possession by tenant under lease.


Continued possession by grantor.



Notice from statements in instruments of title.


Actual and constructive notice.


Purchasers for value.


Valuable consideration.


Pre-existing debt.


Adequacy of consideration.


Notice before payment.


Notice after part payment.


Payment by note.


Payment without acquiring legal title.



Purchasers with notice from purchasers without notice.


Purchasers without notice from purchasers with notice.


Purchasers at execution sales.


Burden of proof.


Lis pendens.

Sec. 586. Priorities apart from recording acts - (a)

As between legal interests. "At common law, the title of a purchaser ordinarily depends, first, upon the title of his vendor, secondly, upon whether the vendor has transferred his title to the purchaser. If the vendor had no title, or if his title was defective, it is not material that the purchaser paid the full value of the property, and supposed he was acquiring a perfect title."1 Were the rule otherwise, it is evident, any owner of property could be divested of his rights by a nominal sale of the property to an innocent purchaser by one having no rights therein.

Applying this rule, it follows that if B claiming under a purported conveyance from A, has no title because the signature on such conveyance was forged, one claiming under a conveyance from B can assert no title, even though he paid value under the suppose tion that he was acquiring title by B's conveyance2

1. Langdell, Equity Pleading, Sec. 139. To the same effect, see Bispham, Equity, Sec. 261; 2 White sada, 54 Ga. 74: John v. Hatfield, 84 Ind. 75; Vanhoose v. Fairchild, 145 Ky. 700, 141 S. W 75: Plattsmouth First Nat. Bank v. Gibson, Co Neb. 767, 84 N. \V. 259; Mcgregor v. Putney, 75 X. H. 113 71 Atl. 226 Smith v. Markland, 223 Pa, 605, 72 Atl. 1047; Jarman v. Farley, 7 l.lea (Tenn.) 141; Mortimer v.jack

6 Tudor's Leading Cas. in Eq. (4tli Am. Ed.) Judges' Hares

3, at p. 46; Vattier v. Hinde,

7 Pet. (Tj. S.) 252, 8 L. Ed. 675; [owa Land & Trust Co. v. U. S. 217 Fed. 11, L33 C. C. A. 1: United States v. Southern Co., 18 Fed. 273; Winters v. Powell, 180 Ala. 425, 61 So. 96; Bird v. Jo

37 Ark. 195; Compton v.

Son, - . Tex. Civ. App.-155 S. W. 341.

2. Sampeyreac v. United States

Likewise, since a conveyance which has not been delivered is a nullity, one claiming under the grantee therein, though a purchaser for value without notice, cannot, apart from estoppel, assert any title as against the original grantor named,3-4 and the same principle has been applied in connection with a conveyance delivered in escrow, which was handed by the depositary to the grantee before the satisfaction of the condition.5 Since, as just indicated, one who has no title cannot transfer title to another, one who has transferred his legal estate to one person cannot thereafter detract from the effectiveness of such transfer by undertaking to transfer it to another. And it is immaterial that the later grantee pays value under the supposition that he is acquiring the property, that is, that he is a bona fide purchaser for value." And as one who has divested himself of his title cannot convey that title to another, so one claiming under him cannot do so. In other words, apart from statute, transfers of the legal title to land rank, between themselves, according to priority in time. The very considerable departure from this rule, resulting from the statutory provisions for the recording of conveyances, will be subsequently discussed.

- (b) As between legal and equitable interests.

As between a legal and an equitable interest in the same property, courts of equity have favored the former, and have in effect regarded the holder of the legal title as the actual owner, against whom an equitable interest can be asserted only under particular conditions.'5

7 Pet. (U. S.) 222, 8 L. Ed. 665; Bird v. Jones, 37 Ark. 195; Mcginn v. Tobey, 62 Mich. 252, 4 Am. St. Rep. 848, 28 N. W. 818; Gross v. Watts, 206 Mo. 373, 121 Am. St. Rep. 662, 104 S. W. 30; Lee v. Parker, 171 N. C. 144, 88 S. E. 217; Smith v. Markland, 223 Pa. 605, 132 Am. St. Rep. 747, 72 Atl. 1047.

3-4. Ante, Sec. 461. And see Lee v. Parker, 171 N. C. 144, 88 S. E. 217.

5. Ante, Sec. 462.

6. The clearest elementary treatment of this subject is perhaps to be found in Prof. Mait-land's Lectures in Equity, p. 120 et scq.

As between a legal title to property and an equitable interest therein or claim thereto, the legal title, if earlier in point of time, takes priority, that is, as one who has transferred his legal title cannot affect his grantee by subsequently attempting to transfer the legal title to another, so he cannot affect his grantee by subsequently attempting to create an equitable interest in another, even though such other pays value without notice of the prior transfer of the legal title.7

If the equitable interest or claim is first created, the question whether one who subsequently acquires the legal title takes free from the equitable interest or claim. will ordinarily depend on whether he is a purchaser for value without notice thereof, courts of equity refusing to enforce the prior equity as against such a purchaser.8

7. That the defense of bona fide purchase for value is not available against a prior legal title see Williams v. Lambe, 3 Bro. C. C. 264: Finch v. Shaw. 5 H. L. Cas. 905: Collins v. Archer, l.russ. & My. 284; Duncan Town-site Co. v. Lane, 245 U. S. 308, 62 L. Ed. 309: Hurst v. Mcneil, 1 Wash. (U. S.) 70; Curts v. Cisna, 7 Biss. (U. S.) 260; United States v. Southern Co., 18 Fed. 273; Hooper v. Savannah & M. R. Co.. 69 Ala. 529; Daniel v. Hollingshead, 16 Ga. 190; Jenkins v. Bodley, Smeies & M. Ch. (Miss.) 338; Jones v. Zollicoffer. 4 X. C. 645. X. C. Terra R. 212. 7 Am. Dec. 708; Elstner v. Fife, 32 Ohio St. 358; Blake v. Hey-ward. Bail Eq. (S. C.) 220. Brown v. Wood, 6 Rich. Eq. (S. C.) 155.

The defense of bona fide purchaser for value was, however, available, under the former chancery practice, as against a prior legal title, when the plaintiff was invoking the auxiliary, as distinct from the concurrent or exclusive, jurisdiction of a court of equity. Langdell, Equity Pleading, Sec. 144; White & Tudor's Leading Cas. in Eq. (8th Ed.) 168, 172; 13 Halsbury's Laws of England, 77.