This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The rule first above referred to, that, as between conveyances of the legal title, the first in time must prevail, has been entirely changed by the recording acts, which exist in every state, and which provide in effect that a conveyance or mortgage of land, and frequently any other instrument affecting land, shall not, as against a subsequent conveyance or mortgage in favor of a purchaser for value, be valid, unless it is filed for record in a public record office. The requirement of record has almost invariably been regarded as intended for the protection of subsequent purchasers only, so that the failure to record the instrument in no way affects the passing of title as between the parties thereto.36 The
Cal. 139; Professor Ames' Essay, 1 Harv. Law Rev. at p. 5, Lectures on Legal History, 257.
34. St. Johnsbury v. Morrill, 55 Vt. 165. See United States v. Detroit Timber & Lumber Co., 131 Fed. 668. 678.
35. In Phillips v. Phillips. 4 De G. F. & J. 208, which is usually referred to as the leading case on the law of bona fide purchaser. Lord Westbury distinctly overruled the argument that the possession of the holder of the subsequent equity, the defendant, gave him any protection as against the prior equity. And see editorial note, 11 Columbia Law Rev. 555.
36. Western Tie & Timber Co. v. Campbell, 113 Ark. 570, Ann.
Cas. 1916C, 943, 169 S. W. 253; Warnock v. Harlow, 96 Cal. 298, 31 Am. St. Rep. 209, 31 Pac. 166; Licata v. De Corte, 50 Fla. 563, 39 So. 58; Lytle v. Black, 107 Ga. 386. 33 S. E. 414; Gibson v. Brown, 214 111. 330, 73 N. E. 578; Shirk v. Thomas, 121 Ind 147. 16 Am. St. Rep. 381, 22 N. E. 976; Smith v. Noble, 174 Ky. 151, 191 S. W. 641, Willet v. Andrews. 106 La. 319, 30 So. 883; Lawry v. Williams, 13 Me. 281; Palmer v. Paine, 9 Gray (Mass.) 56; Van Husan v. Heames, 96 Mich. 504. 56 N. W. 22; Mccamant v. Patterson, 39 Mo. 100; Ames v. Robert, 17 N. M. 609, 131 Pac. 994; Wood v. Chapin, 13 N. Y. 509, 67 Am. Dec. 62; Mcbrayer v Harrill. 152 N. C. 712, 68 S.
The construction placed by the courts upon the recording acts has been in effect to protect a subsequent purchaser as against a prior instrument, if be pays value in ignorance of such instrument, and to make the record of an instrument in accordance with the act equivalent to notice to the subsequent purchaser of the existence and contents of the instrument, irrespective of whether he actually examines the records so as to obtain such information.37a And the record is notice not only of the instrument and of the facts stated therein, but also of any other matters as to which the necessity of an inquiry is suggested by statements in the instrument.38 The practical effect of the acts is that an intending purchaser of land may, by reference to the
El 204; Mclaughlin v. Ihmsen, 85 Pa. St. 3G4; Wilkins v. Mc-corkle, 112 Tenn. 688, 80 S. W. 834; Raines v. Walker, 77 Va. 92; Whalon v. North Platte Canal & Colonization Co. 11 Wyo. 313, 71 Pac. 995.
In Maryland the legal title does not pass until recorded. Nickel V. Brown, 75 Md. 172, 23 Atl. 736; West v. Pusey, 113 Md. 569, 77 Atl. 973. And occasionally recording has been regarded as necesary to give validity to a particular class of conveyance, as one by a married woman, Rorer's Heirs v. Roanoke Nat. Rank, 83 Va. 589, 4 S. E. 820.
37. See article by Professor Wesley N. Hohfh Id, 26 Yale Law .lonrn. at p. 75
37a. 2 Pomeroy. En. Jur. Sec. 649; 2 White & T. Lead, Cas
Eq. Amer.notes, 203; Webb, Record of Title, Sec. 4.
38. Crawford v. Chicago. B. & T. R. Co., 112 111. 314; Mettart v. Allen, 139 Ind. 644, 39 N. E. 239; Loser v. Plainfield Sav. Bank, 149 Iowa, 672, 37 L. R. A. (N. S.) 1112, 128 N. W.1101 Taylor v. Mitchell, 58 Kan. 48 Pac. 859; Hickman v. Green, 123 Mo. 165, 29 L. R. A. 39, 22 S. W. 455, 27 S. W. 440; Carter v. Leonard, 65 Neb. 670, 91 N. W. 574; Sweet v. Henry. 175 X. Y. 268, 67 N. E. 574; Cook v. Caswell, 81 Tex. 678, 17 S. v. 385; Passumpsic Sav. Bank v. Buck, 71 Vt. 190, 44 Atl. 93; Planary v. Kane, 102 Va. 547, 46 S. E. 312, 681; Smith v. Owens, 63 W. Va. 60, 59 S. E. 762.
In Georgia the record of a voluntary deed is not effective to give priority as against a subsequent purchaser, it beging
-sary that he have notice record, determine whether his vendor has previously disposed of any interest in the land and also ascertain both the person from whom his vendor obtained the land, and whether such person had disposed of any interest to a person other than such vendor, and so, in the case of each of the successive owners of the land, determine whether, during the period of his ownership, he created any interest not vested in the present vendor.39 The series of successive convevances by virtue of which the vendor or another asserts ownership of the land is frequently referred to as his or the "chain of title," each conveyance constituting, figuratively speaking, one link in the chain.
- (b) Instruments capable of record. Since the effect of the record of an instrument as charging a subsequent purchaser with notice thereof is solely by reason of the statute to that effect, it is necessarily confined to such instruments as the statute authorizes to be recorded.40 And it is obviously in the case of such instruments only that the failure to record car. affect injuriously a person asserting a claim or benefit under the instrument.41 The statutes, however, especially the later ones, are usually quite inclusive in this regard; and the tendency of the courts is to give them an otherwise. Fowler v. Weldrip. 10 Ga. 350; Black v. Thornton. 31 Ga. 641; Avera v. Southern Mortg. Co., 147 Ga. 24, 92 S. E. 533.
39. A purchaser is bound to examine the records back to the time of the acquisition of title by his vendor, not merely to the time of the record of the conveyance by which the title was acquired. Higgins v. Dennis, 104 Iowa, 605, 74 N. W. 9.