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 .
82. Mcguire v. Barker, 61 Ga. 339; Fleschner v. Sumpter, 12 Ore. 161, 6 Pac. 506; Souder v. Morrow, 33 Pa. 83; Collins v. Aaron, 162 Pa. 539, 29 Atl. 724.
83. Fries v. Null, 154 Pa. 573, 26 Atl. 554, 158 Pa. 15, 27 Atl. 867.
84. See Sigourney v. Lamed, 10 Pick. (Mass.) 72.
Purchaser would never be protected against a prior unrecorded conveyance. In one state, however, it has been held that, although there is no statutory provision as to the time of record, the record will relate back to the time of delivery if the recording occurs within a "reasonable" time.85 In one state it has been decided that, although the statute in terms invalidates an unrecorded conveyance only as against a subsequent purchaser whose conveyance shall first be duly recorded, a delay in recording an instrument may operate by way of estoppel to prevent the beneficiary thereunder from as serting it as against a subsequent purchaser whose conveyance is not first recorded.86 This view appears not to have been asserted elsewhere, though there are numerous decisions to the effect that the failure to record may operate by way of estoppel in favor of creditors of the grantor who give credit to him on the assumption that he is still the owner of the land.86a the recording officer may make it show on the rec-ord.88-89 This view is usually based upon the language of the recording statute of the particular state, providing in effect that a conveyance shall be operative as a record, or as against a subsequent purchaser, from the time that it is filed or deposited for record. Other courts hold that subsequent purchasers are bound only by what the records show, and that the grantee in a conveyance, in order absolutely to guard against mistakes by the recorder, and to insure the preservation of his rights as against subsequent purchasers, must ascertain that the recording' is correctlv done.90 This latter view is usually based on the theory that che recording officer is to be regarded, in respect to the record of any particular instrument, as the agent of the beneficiary under the instrument, and that the latter is in a position, by the exercise of a considerable degree of diligence, to ascertain whether the officer has correctly performed his duty, which a subsequent purchaser, even by the exercise of the greatest diligence, could not possibly do. This view has occasionally been adopted even when the statute in terms provided that the instrument shall operate as notice from the time of its filing for record.91
Cord the instrument, being in effect liable to be postponed to a subsequent conveyance to another executed immediately after his own conveyance, during the interval of time, perhaps, necessary for the transmission of his own instrument to the record office, such grantee is evidently not fully protected.
The question of the effect of a delay in recording presents obvious difficulties from a practical point of view. A statute which allows a grantee, by recording his conveyance at any time within a certain period, thereby to obtain priority over an intervening purchaser who took in ignorance of the prior conveyance and had no means of discovering its existence, must frequently work hardship, and prevents a purchaser from relying with any sense of absolute security upon the title as it appears of record. On the other hand, if a grantee is allowed no time within which he may re85. Goodsell v. Sullivan, 40 Conn. 83; Hartford Building & Loan Ass'n v. Goldreyer, 71 Conn. 95, 41 Atl. 659.
86. Marling v. Nommensen, 127 Wis. 363, 5 L. R. A. (N. S.) 412, 115 Am. St. Rep. 1017. 7 Ann. Cas. 364, 106 N. W. 844. See, as to the effect of a failure for twenty-two years to record or to make claim as constituting laches,
Kappes v. Rutherford Park Ass'n, 60 N. J. Eq. 129. See also Long-worth v. Chase, 1 Mclean, (U. S.) 282. And compare Mintz v. Russ, 161 N. C. 538, 77 S. E. 851 That a delay of several years in recording does not involve an "abandonment" of one's title, see Bond v. Wilson, 129 N. C. 325, 40 S. E. 179. 86a. Ante, Sec. 546.
The statutory provisions as to the time for recording, construed, as they have been, as allowing the grantee to postpone recording for a certain period without thereby endangering his right of priority, seem to be of questionable expediency. A greater degree of justice is likely to be attained by the statutes which, not naming any time for recording, afford protection as against a subsequent purchase only if the prior conveyance is recorded before the subsequent purchase occurs. Under such a statute no doubt a purchaser who exercises the greatest possible promptitude in recording his conveyance may occasionally be postponed by reason of the immediately previous record of a conveyance to another, but this is not apt to occur, and if it does occur, he is in a position immediately to learn thereof and to take measures accordingly, while when a certain period is allowed for recording, a purchaser although he has recorded his conveyance, must wait until the statutory period has expired before he can rest assured that he has obtained the title which he undertook to purchase.87
- (j) Mistakes by recording officer. The courts of the different states are divided upon the question as to who must suffer the loss occasioned by an error made by the officer in recording a conveyance deposited with him for record. Some courts hold that a grantee, by lodging the instrument with the proper officer for record, acquits himself of all responsibility as to the actual recording, and that from that time it is notice to subsequent purchasers of what it contains, and not of what
87. See Webb, Record of Title, Sec. 7.
88-89. Mims v. Mims, 35 Ala. 23; Chapman & Co. v. Johnson, 142 Ala. 633, 4 Ann. Cas. 559, 38 So. 797; Carter v. Tennessee Coal & Iron & Ry. Co., 180 Ala. 367, 61 So. 65 (deed lost in record office); Case v. Hargadine, 43 Ark 144; Lewis v. Hinman, 56 Conn. 55, 13 Atl. 143; Merrick v. Wallace, 19 111. 486; Tucker v. Shaw, 158 111. 326, 41 N. E. 914; Zeiner v. Edgar Zinc Co., 79 Kan. 406, 99 Pac. 614; Gillespie v. Rogers, 146 Mass. 610, 16 N. E. 711; Mangold v. Barlow, 61 Miss. 593, 48 Am. Rep. 84; Sinclair v. Slawson, 44 Mich. 123, 38 Am. Rep. 235; 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; Ferabee v.