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 .
That after the instrument has been recorded, the record is in some way destroved, as by fire, has been re-garded as not affecting the validity of the act of record, for the purpose of protecting the claimant thereunder as against a subsequent purchaser.76-77
74. Morse v. Curtis, 140 Mass. 11, 54 Am. Rep. 456, 2 N. E. 929. In Day v. Clark, 25 Vt. Vt. 397, the same result is attained on the theory that, as a subsequent purchaser with notice from a purchaser without notice takes free from any adverse claim, the last purchaser is, in this case, to be preferred, because he does not know that his grantor had actual notice of the unrecorded conveyance. Such a view, that a purchaser is protected unless he knows that his vendor had notice of an adverse claim, appears to find no support elsewhere. See also Bowman v. Holland, 116 Va. 805, 83 N. E. 393.
75. See Chapman & Co. v. Johnson, 142 Ala. 633, 4 Ann.
Cas. 559, 38 So. 797; Lewis v. Hinman, 56 Conn. 55, 13 Atl. 143; Greenfield v. Stout, 122 Ga. 303, 50 S. E. Ill; Tucker v. Shaw, 158 111. 326, 41 N. E. 914; Sinclair v. Slawson, 44 Mich. 123, 38 Am. Rep. 235, 6 N. W. 207; Deming v. Miles, 35 Neb. 739, 37 Am. St. Rep. 464, 53 N. W. 665: Davis v. Whitaker, 114 N. C. 279, 41 Am. St. Rep. 793, 19 S. E. 699; Fara-bee v. Mckerihan, 172 Pa. 234, 51 Am. St. Rep. 734, 33 Atl. 583; Throckmorton v. Price. 28 Tex. 605, 91 Am. Deo. 334. And see authorities cited post, Sec. 567(i), note 78.
76-77. Paxson v. Brown, 10 C. C. A. 135, 61 Fed. 874; Houston Oil Co. of Texas v. Wilhelm, 104 C. C. A. 618, 182 Fed. 474; Alvis
- (i) Time allowed for recording. The statute occasionally provides that the instrument shall be recorded or filed for record within a certain period after its delivery, or expressly allows such a period for recording. A requirement that the instrument shall be recorded within a specified time would ordinarily be satisfied by the filing of it for record within that time, the grantee not being in a position to control the time of actual recording by the official recorder.78 This would seem to be a reasonable construction to place upon such a provision, and usually the statute contains an express declaration that the instrument shall be regarded as recorded from the time at which it is filed or "lodged" for record, "or that it shall be effective as against subsequent purchasers from that time, thus indicating that the time of filing and not the time of actual recording is the important consideration.
A provision thus specifying the time within which the instrument must be recorded in order to make it: effective as against subsequent purchasers has ordinarily been construed as making the record of the instrument at any time within the period named equivalent to its record at the time of its delivery, so as to give it priority over a subsequent conveyance made to a bona fide purchaser within that period, even though this be first recorded.70 The record of an instrument after the v. Morrison, 63 111. 181, 14 Am. Rep. 117; Shannon v. Hall. 72 111. 354, 22 Am. Rep. 146; Hyatt v. Cochran, 69 Ind. 436; Thomas v. Hanson, 59 Minn. 274; Myers v. Buchanan, 46 Miss. 397; Geer v. Missouri Lumber Min. Co., 134 Mo. 85, 34 S. W. 1099, 56 Am. St. Rep. 489; Deming v. Miles, 35 Neb. 739, 37 Am. St. Rep. 464, 53 N. W. 665; Cooper v. Flesner, 24 Okla. 47, 23 L. R. A. (N. S.) 1180, 20 Ann. Cas. 29, 103 Pac. 1016; Houston v. Blythe, 71 Tex. 719, 10 S. W. 520; Armentrout v.
Gibbons, 30 Gratt. (Va.) 632.
78. ' Mcgregor v. Hall, 3 Stew. & P. 397; Dubose v. Young, 10
Ala. 365; Gill v. Fauntleroy's Heirs, 8 B. Mon. (Ky.) 177; Harrold v. Simonds & Bailey, 9 Mo. 326; Hughes v. Powers, 99 Tenn. 480, 4 S. W. 1. And see authorities cited ante. Sec. 567(h) note 75. But see Benson v. Green, 80 Ga. 230, 4 S. E. 851; Moore v. Collins, 15 N. C. 384.
79. Betz v. Mullin, 62 Ala. 365; White v. Interstate Bldg. Ass'n., 106 Ga. 146, 32 S. E. 26; Mcstatutory period can obviously not have such an effect of making the record relate back to the time of delivery,80 but for other purposes it is as effective as record within the period, that is, it operates as constructive notice to one purchasing after such record.81
As between two instruments, neither of which is recorded within the statutory time, the matter of priority would ordinarily be determined, it seems, as if there were no provision in the statute as to time.82 As between two instruments, of which the one first recorded was not recorded within the statutory time, and the other was recorded within such time, it was held, on a construction of the statute, that the one first recorded was entitled to priority.83
In the absence of a statutory provision as to the time of recording, the record of an instrument cannot relate back to the time of its delivery, so as to take priority over an intervening conveyance or incumbrance.84 If the record did so relate back, without any limitation as to the extent of the interval between the delivery and record of the conveyance, a subsequent
Carthy v. Seisler, 130 Ind. 63, 29 N. E. 407; Finley v. Spratt, 14 Bush (Ky.) 225 Claiborne v. Holmes, 51 Miss. 146; Fries v. Null, 154 Pa. 573, 26 Atl. 554 (dictum); Steele v. Mansell, 6 Rich. L. (S. C.) 543; Camp Mfg. Co. v. Carpenter, 112 Va. 79, 70 S. E. 497.
80. Maddox v. Wilson, 91 Ga. 39, 16 S. E. 213; Pollard v. Cocke, 19 Ala. 188; Schmidt v. Zahrndt, 148 Ind. 447, 47 N. E. 335; Littlefield v. Prince, 96 Me. 499, 52 Atl. 1010; Harding v. Allen, 70 Md. 395, 17 Atl. 377; Leger v. Doyle, 11 Rich. L. (S. C.) 109, 70 Am. Dec. 240.
81. Adair v. Davis, 71 Ga. 769; Mcvay v. English, 30 Kan. 368, 1 Pac. 795; Finley v. Spratt, 14
Bush (Ky.) 225; Claiborne v. Holmes, 51 Miss. 146; Sanborn v. Adair, 29 N. J. Eq. 338; North-rup v. Bremer, 8 Ohio, 392: Fleschner v Sumpter, 12 Ore. 161, 6 Pac. 506; Fries v. Null, 154 Pa. 573. 26 Atl. 554; Collins v. Aaron, 162 Pa. 539, 29 Atl. 724; Levi v. Gardner, 53 S. C. 24, 30 S. E. 617; Turner v. Cochran, 94 Tex. 480, 61 S. W. 923.