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 .
99. Oconto v. Jerrad, 46 Wis. 317, 50 N. W. 591; St. Croix Land & Lumber Co. v. Ritchie, 73 Wis. 409, 41 N. W. 345, 1064.
1. Ante, Sec. 566 (j) note 88.
2. See Amos v. Givens, 179 Ala. 605, 60 So. 829; Davis v. Whit-aker, 114 N. C. 279, 41 Am. St. Rep. 793, 19 S. E. 699; Herndon v Ogg, 119 Ky. 814, 84 S. W. 754.
3. Ante, Sec. 566(j), note 90.
4. Barney v. Mccarty, 15 Iowa, 510, 83 Am. Dec. 427; Koch v. West, 118 Iowa, 468, 96 Am. St. Rep. 394, 92 N. W. 663; Prouty v. Marshall, 225 Pa. 570, 25 L. R. A. (N. S.) 1211, 74 Atl, 550; Ritchie v. Griffiths, 1 Wash. 429, 12 L. R. A. 384, 22 Am. St. Rep.
155, 25 Pac. 341; Lombard v. Culbertson, 59 Wis. 433, 18 N. W. 399.
5. Chatham v. Bradford, 50 Ga. 327, 15 Am. Rep. 692; Agurs v. Belcher & Creswell, 111 La. 378, 100 Am. St. Rep. 485, 35 So. 607; Bishop v. Schneider, 46 Mo. 472, 2 Am. Rep. 533; Mutual Life Ins Co. of New York v. Dake, 87 N. Y. 257; Green v. Garrington, 16 Ohio St. 548, 91 Am. Dec. 103; Stockwell v. Mchenry, 107 Pa. St. 237, 52 Am. Rep. 475; Armstrong v. Austin, 45 S. C. 69, 29 L. R. A. 772, 22 S. E. 763; Curtis v. Lyman, 24 Vt. 338, 58 Am. Dec. 176.
The recording acts usually in terms require the record of an instrument for the benefit of a subsequent purchaser or incumbrancer only. Consequently, one who has previously acquired an interest in the land, or who is a party to the instrument itself, is not charged with notice of any facts by the record.6 For instance, the record of a conveyance does not charge the grantor therein with notice that the grantee, after its execution, fraudulently inserted an additional provision therein,7 nor does it charge the rightful owner of the property with notice of an adverse claim thereto on the part of the grantor and grantee.8 And it appears to be well recognized that one having a debt secured by mortgage on land is not, by the record of a subsequent conveyance or mortgage of part of the mortgaged land, charged with notice thereof, so as to be precluded from releasing another part of the land to the detriment of the subsequent grantee or mortgagee.9
The purchaser of an equitable title, it seems evident, cannot be in a better position as regards a prior instrument than if he acquired a legal title, and consequently he takes subject to a prior conveyance or in
6. Karns v. Olney, 80 Cal. 90, 13 Am. St. Rep. 101, 22 Pac. 57; Lowden v. Wilson, 233 111. 340, 84 N. E. 245; Annan v. Hays, 85 Md. 505, 37 Atl. 20; Corey v. Smalley, 106 Mich. 257, 58 Am. St. Rep. 474, 64 N. W. 13; Lausman v. Drahos, 8 Neb. 457; Stuyvesant v. Hall, 2 Barb. Ch. (N. Y.) 151; First Nat. Bank of Dickinson v. Big Bend Land Co., 38 N. D. 33, 164 N. W. 322; Stivens v. Summers, 68 Ohio St. 421, 67 N. E. 884.
7. Davis v. Monroe, 187 Pa. 212, 67 Am. St. Rep. 581, 41 Atl. 44.
8. Holley v. Hawley, 39 Vt.
525, 94 Am. Dec. 350; Bradtl v. Sharkey, 58 Ore. 153, 113 Pac. 653.
9. Birnie v. Main, 29 Ark. 591; Woodward v. Brown, 119 Cal. 283, 51 Pac. 2, 542, 63 Am. St. Rep. 168; Lewis v. Hinman, 56 Conn. 55, 13 Atl. 143; Boone v. Clark, 129 111. 446, 5 L. R. A. 276, 21 N. E. 850; George v. Wood, 9 Allen, 80, 85 Am. Dec. 741; Howard Insurance Co. v. Halsey, 8 N. Y. 271, 59 Am. Dec. 478; Lynchburg Perpetual Bldg. Ass'n v Fellers, 96 Va. 337, 70 Am. St. Rep. 851, 31 S. E. 505. So, a judgment lienor may release part of his lien without first examincumbrance duly recorded to the same extent as the purchaser of the legal title. In case the prior conveyance involved a disposition of the legal title, the grantor has nothing left of which to dispose, and in case it involved a disposition of the equitable title only, it would be entitled to priority as being first in order of time.10
- (m) Persons entitled to assert failure to record.
The statute in a number of the states provides that an unrecorded conveyance shall be void as against a subsequent purchaser without notice "whose conveyance is first recorded," thus making the question of priority depend to a considerable extent upon priority of recording.11 In the absence of such a clause, it has usually been held that the later purchaser may, without recording his conveyance, assert priority over an earlier unrecorded conveyance of which he has no notice.12 The statutory clause referred to, by which the priority of a subsequent conveyance over an earlier unrecorded conveyance is made dependent upon the earlier record of the subsequent conveyance, has been referred to13 as not in accord with the general policy of the recording laws, which is to protect a subsequent purchaser who takes for value and without notice as against the prior ing the records to see how it will affect other persons. Taylor's Ex'rs v. Maris, 5 Rawle (Pa.) 51.
10. See Digman v. Mccollum, 47 Mo. 372. And ante, Sec. 566(c).
11. 1 Stimson's Am. St. Law, Sec. 1611. See Simmons v. Stum, 101 111. 454; Clahaugh v. Byerly, 7 Gill (Md.) 354, 48 Am. Dec. 575; Drake v. Mclean, 47 Mich. 102, 10 N. W. 126: Westbrook v. Glea-son, 79 N. Y. 23; Pennsylvania Salt Mfg. Co. v. Neel, 54 Pa. St. 9.
12. Steele v. Spencer, 1 Pet. (U. S.) 552, 7 L. Ed. 259; Miller v. Merine, 43 Fed. 261; Coster's Ex'rs v. Bank of Georgia, 24 Ala.
37; Mcguire v. Barker. 61 Ga. 339; Sanborn v. Adair, 29 N. J. Eq. 338; Swanstrom v. Washington Trust Co., 4] Wash. 561; Webb, Record of Title, Sec. 13, 166. But Houlahan v. Finance Consol. Min. Co., 34 Colo. 365, 82 Pac. 484; Brookfield v. Goodrich, 32 111. 363; Simmons v. Stum, 101 111. 454 are to the effect that even though the statute does not in terms require the later conveyance to be first recorded thin is necessary in order that it bo given priority.
13. Webb, Record of Title, Sec.Sec. 13-15, 165-167.
Unrecorded conveyance, it being said that "where, through the neglect of the first grantee to record his deed, a subsequent party has been led to part with a valuable consideration, a race for registry between the two does not afford a proper criterion by which their rights should be determined." There is considerable force in this view, but as a practical matter a "race for registry" is not likely to occur, since ordinarily each party is ignorant of the conveyance to the other, and the subsequent purchaser can ordinarily protect himself against the possible subsequent record of a prior conveyance by promptly recording his own conveyance. There does not seem to be any particular injustice in confining the benefit of the recording acts to those subsequent purchasers who act promptly in placing their conveyances or contracts upon the records, although such a provision involves, to some extent, a departure from the theory that a purchaser is to be protected from a prior unrecorded conveyance because he is in effect a purchaser without notice thereof. Such a provision has a beneficial operation as encouraging the prompt record of conveyances, since no grantee can feel assured that a prior conveyance, unknown to him, may not be filed for record after the time of his purchase, and before he files his own, unless he does this immediately.