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 .
40. Williams v. Smith, 128 Ga. 306, 57 S. E. 801; Mack v. Mcintosh, 181 111. 633, 54 N. E.
1019; Sjoblom v. Mark, 103 Minn. 193, 15 L. R. A. (N. S.) 1129, 14 Ann. Cas. 125, 114 N. W. 746; Riddle v. Fellows, 42 N. H. 309; Sexton v. Elizabeth City, 169 N. C. 385, 86 S. E. 344; Burnham v. Chandler, 15 Tex. 441; Pringle v. Dunn, 37 Wis. 449, 19 Am. Rep. 772; Prentice v. Duluth Storage & Forwarding Co., 58 Fed. 437, 7 C. C. A. 293.
41. Brown v. Butler, 87 Va. 621, 13 S. E. 71; Hutchinson v. Bramhall, 42 N. J. Eq. 372, 7 Atl. 873.
Efficient operation, by regarding them as authorizing the record of almost every instrument of a character to affect the title to land. And so, though by some of the earlier decisions the record of an equitable title was not regarded as sufficient to affect a subsequent purchaser with notice thereof, the rule is now generally settled otherwise, sometimes by express statutory provision, and consequently the purchaser takes subject to an instrument, creating or transferring an equity, which has been recorded.42 A written contract for the sale of land, of which specific performance would be decreed, is ordinarily regarded as within the recording acts, sometimes by reason of its express mention.43 But occasionally the record of such a contract has been regarded as nugatory because unauthorized by the statute.44 In so far as an equity is of a character which
42. O'neal v. Seixas, 85 Ala. 80; Fish v. Benson, 71 Cal. 428, 12 Pac. 454; Bailey v. Myrick, 50 Me. 171; General Ins Co. of Maryland v. United States Ins. Co. of Baltimore, 10 Md. 517, 69 Am. Dec. 174; Edwards v. Mc-kernan, 55 Mich. 520, 22 N. W. 20; Wilder v. Brooks, 10 Minn. 50, 88 Am. Dec. 49; Hunt v. Johnson, 19 N. Y. 279; Tarbell v. West, 86 N. Y. 280; Russell's Appeal, 15 Pa. 319; Smith v. Neilson, 13 Lea (Tenn.) 461; Herrington v. Williams, 31 Tex. 448.
A restrictive covenant, not contained in an instrument of conveyance, has in one state been held not to be entitled to record. Sjoblom v. Mark, 103 Minn. 193, 15 L. R. A. (N. S.) 1129, 14 Ann. Cas. 125, 114 N. W. 746. Contra, Wootton v. Seltzer, 83 N. J. Eq. 163, 90 Atl. 701, 84 N. J. Eq. 207, 93 Atl. 1087; Bradley v Walker, 138 N. Y. 291, .",3 N. E. 1079
43. De Wolf v. Pratt, 42 I11. 198; Case v. Bumstead, 24 Ind. 429; Chesbrough v. Vizard Investment Co., 156 Ky. 149, 160 S. W. 725 (option contract); Bailey v. Coffin, 115 Me. 495, 99 Atl. 447 (as creating trust) ; South Baltimore Harbor & Improvement Co. of Anne Arundel County v. Smith, 85 Md. 537, 37 Atl. 27; Weisberger v. Wisner, 55 Mich. 246, 21 N. W. 331; Thorsen v. Perkins, 39 Minn. 420, 40 N. W. 557; Mcbee v. O'con-nell, 16 N. M. 469, 120 Pac. 734; Kirven v. Wilds, 98 S. C. 463, 82 S. E. 673; Camp Mfg. Co. v. Carpenter, 112 Va. 79, 70 S. E. 497; Bernard v. Benson, 58 Wash. 191, 137 Am. St. Rep. 1051, 108 Pac. 439; Conaway v. Sweeney, 24 W. Va. 643. An assignment of the contract of sale has also been regarded as within the statute. Salisbury v. La Fitto, 57 Colo. 358, 141 Pac. 484
44. Kendrick v. Colyar. 143 Ala. 597. 42 So. 110; Churchill does not admit of record, such as a resulting trust, an equity to reform an instrument, or to set aside an instrument, the fact that the equity does not appear of record can obviously not affect the right to assert it as against a subsequent purchaser. A subsequent purchaser acquiring the legal title for value, however, if without notice of the equity, would take free therefrom.
Leases, other than those for brief periods, are ordinarily within the recording laws, so that the record thereof will operate as notice to a subsequent purchase]-, and the failure to record it may render it nugatory as to such purchaser.45
In many states the statute requires that a power of attorney shall be recorded in order to render the record of a conveyance made under such power effective as notice to subsequent purchasers.46 In the absence of such statutory requirement there is no necessity, it seems, of recording the power, since the conveyance puts the purchaser on inquiry as to the authority of the agent or attorney.47 The revocation of a power of attorney is also frequently required to be recorded in order to be valid, if the power itself has been recorded.48
- (c) Unauthorized record of instrument. In order that the record of an instrument shall operate as constructive notice to subsequent purchasers, the form of the instrument must be such that its record is authorized. Consequently, if it is not duly executed,49 or v. Little, 23 Ohio St. 301; First Nat. Bank of Stevens Point v. Chafee, 98 Wis. 42, 73 N. W. 318.
45. Jones v. Marks, 47 Cal. 242; Commercial Bank v. Pritch-ard, 126 Cal. 600, 59 Pac. 130; Kronfeld v. Missal, 87 Conn. 491, 89 Atl. 95; Toupin v. Peabody 162 Mass. 473, 39 N. E. 280; Lucas v. Sunbury & E. R. Co., 32 Pa. St. 458; Bova v. Norigian. 28 R. 1. 319, 67 Atl. 326.
46. 1 Stimson's Am. St. Law, S 1624(10), 1670.
47. See Anderson v. Dugas, 29 Ga. 440; Valentine v. Piper, 22 Pick. (Mass.) 85, 33 Am. Dec. 715; Wilson v. Troup, 2 Cow. (N. Y.) 195, 14 Am. Dec. 458.
48. 1 Stimson's Am. St. Law, 8 1673.
49. Racouillat v. Sansevain, 32 Cal. 376; Carter v. Champion, 8 Conn. 549, 21 Am. Dec. 695; Parret v. Shaubhut. 5 Minn. 323 if it is not acknowledged or certified as required law,50 its record does nut operate as constructive noti to subsequent purchasers. Moreover, in order to give priority as against a subsequent purchaser, the instru nient must describe the land with sufficient accuracy to enable one examining the record to identify the land.51 The view has usually been accepted that if a subsequent purchaser actually sees the record of a prior instrument, although it was not entitled to be recorded, he is to be regarded as charged with notice thereof.52
(Gil. 258), 80 Am. Dec. 424; Rainey v. Lamb Hardwood Lumber Co., 91 Miss. 690, 45 So. 367; Van Thorniley v. Peters, 26 Ohio St. 471; Pringle v. Dunn, 37 Wis. 449, 19 Am. Rep. 772.