Record (Lat. recordari, Fr. recorder, to remember). I. An official contemporaneous memorandum in writing, drawn up by the proper officer of a court of justice, and containing a summary statement of the proceedings in an action at law brought before that court. This statement comprises a short history of the case and the proceedings consequent thereon; as the nature of the action, the names of the parties and the time of their appearance in court, and the acts of the court itself during the progress of the pleadings, arranged in the order of their occurrence, and sometimes connected by peculiar entries called continuances, the whole concluding with the judgment of the court with respect to the question at issue. These continuances were adjournments of the case from one day or term to another, which the law allowed for certain purposes, and which were entered with the pleadings and other proceedings on the roll or record, and gave the whole a complete and connected form. These records were always written upon rolls of parchment, which indeed was an essential characteristic of a record. In the United States paper is universally used as a substitute for parchment, and the roll form has consequently been abolished, but otherwise the forms of the English records have been generally adopted.
Records in this technical sense are peculiar to the common law; and as they form the only strict and proper proof of the proceedings of the courts in which they are preserved, they are regarded with particular consideration, and are generally a proof of such a high and absolute nature as to admit of no contradiction. In Sir Edward Coke's words, they "import in themselves such uncontrollable credit and verity, as they admit of no averment, plea, or proof to the contrary." The existence of a record can only be tried by itself; that is, if in any action the existence of any matter on record is alleged, and the adverse party pleads nul tiel record, or that there is no such record, the issue arising thereon is determined merely by the inspection of the record itself by the court, without witnesses or jury, because no issue can be joined upon it to be tried by a jury as upon matters of fact; and the record is conclusive proof without further evidence. The peculiar privilege of some courts to have these memorials has of itself created the great leading distinction, equally recognized in English and American law, between courts of record and courts not of record. Though courts not of record may keep minutes or memorials of their proceedings, such minutes are not properly records.
Legally, the term records applies to the rolls of such only as are courts of record, and not to the rolls of inferior or any other courts which proceed not secundum legem et consuetudinem Anglioe, or according to the laws and customs of England. During that term of the court in which any judicial act is to be done, or before the case pending is concluded, the record is said to remain in the breast of the judges of the court, and in their remembrance, and therefore it may be altered during that term in such manner as the judges shall direct. But as soon as that term is ended the record is closed, and it is then said to admit of no change, alteration, or proof to the contrary. But some courts claim and exercise the right to make amendments therein whenever the record is found not to conform to the facts. - The practice of recording is said to be of Norman origin. It existed in the French law, generally, as early as the time of the conquest, if not earlier, and in the same form as that which it bore in Normandy. In the Assises de Jérusalem, which was a code of feudal jurisprudence compiled as early as 1099, and intended for the kingdom of Jerusalem then newly established, litigants were directed to collect as many of their own friends as possible in court, and request them to attend to what was said, so that they might retain and record it properly at the time of judgment or trial.
They were further directed, if there should be an adjournment or further day appointed for the hearing, that both plaintiff and defendant should put down in writing the nature of the claim and other particulars, in order that they might testify to them at the adjourned meeting if necessary, and thereby assist or confirm the recollection of the judges. This practice finally became developed, from the mere private memoranda of the pleaders, into an official contemporaneous minute of the proceedings. "Whether this change," says Mr. Stephens, "had fully taken place at the date of Glanvil's treatise (in the reign of Henry II.), that work does not enable us accurately to decide. However, we find, at least very shortly after that period, the practice of recording, in the present sense of the term, was in full operation." Next to Domesday Book, which, though not a legislative record, has all the validity of one, is the "Exchequer Register" (Pipe Roll) of 31 Henry I. The series of legal records in the court of king's bench, now extant, reach from the reign of Richard I. to the present day.
The peculiar construction of the record, showing as it did every proceeding in the action precisely as it took place, gave it at a very early period the highest authority as a judicial memorial; and its importance in this particular led to a suitable degree of care in framing and preserving it. Its language gradually reached the highest degree of precision and uniformity, and the whole instrument settled at last into a fixed form of expression, which neither admitted of nor required any variation. When written pleadings took the place of oral, they were framed in the same manner as they had previously appeared on the record, and were in fact simply extracts from it, the same concise and technical forms of expression being always used. From this arose a leading principle of practice, viz., that every proceeding in an action intended or required to appear on the record, must be framed in the language of the record, and with the same exactness as the record itself. Two other circumstances united to give the record the unchangeable character which has accompanied it down to modern times, and almost to the present day.
One was, that it was kept in Latin, a language which admitted of no variation; and the other was its inviolable character, which preserved it from the slightest alteration after being once made up. The substitution of the English for the Latin language, and of ordinary writing for the "ancient and immutable court hand," took place in the reign of George II., and was considered by competent judges of that time as a dangerous innovation. It has been certainly followed by other important alterations and modifications, which have greatly impaired the original character of the record as a complete and immutable memorial of all the proceedings in an action. The old continuances and the formal commencements and conclusions of the pleadings are now omitted, the language of the pleadings themselves is greatly modified, and the present tendency undoubtedly is to deprive the record in a great measure of the high dignity and importance which it anciently possessed.
As The Title Record, Or Rather Evidence Of Title To Real Estate, by the record or register of title deeds, is of American origin. The usage has prevailed from the early settlement of New England, and is now universal throughout the United States. By the laws of Massachusetts in 1641 all deeds of conveyance, whether absolute or conditional, were required to be recorded, that "neither creditors might be defrauded nor courts troubled with vexatious suits and endless contentions." The statutes of the various states differ in some immaterial respects as to the time and manner of registry, and as to what deeds or instruments must be recorded; but the principle in all is the same, and all make such record absolutely necessary in order to complete the purchaser's title, and render it valid against creditors and subsequent bona fide purchasers. If the deed is not recorded, the sale is nevertheless good and the title passes as between the immediate parties and their heirs and devisees, but it is void as against subsequent bona fide purchasers and mortgagees whose deeds are first recorded.
In some of the states a specified time is allowed in which the deed may be recorded, but in general the grantee is left to put his conveyance on record whenever he sees fit, the risk of delay being that his title may be lost by another conveyance from his grantor to a bona fide purchaser. In 1830 the real property commissioners in England recommended the establishment in that country of a general registry of deeds and instruments relating to land, as contributing to the security of title and the cheapness and facility of transfers of land, and in 1862 such a registry was provided for; but hitherto it has not come into general use. Heritable but not leasehold property is recorded in Scotland in a public register, and the deed must be recorded within 60 days to render it valid against creditors and purchasers. A very simple system for the registration of land titles prevails in Australia, corresponding to the registration of vessels. - It has sometimes been a question whether notice of the transfer of property to a subsequent purchaser was equivalent to a record of the prior deed, and whether the deed of a subsequent purchaser with such notice, duly recorded, would be valid against the prior unrecorded conveyance.
The record of a title deed is not considered as conferring title in itself, but merely as evidence of notice or as constructive notice to the public of the title passed by the deed of conveyance of which it is an official and certified copy; and it is therefore a general rule that notice, actual or implied, to a subsequent purchaser of a prior conveyance, is as effectual to defeat his claim as a bona fide purchaser as a due record of such conveyance would be; for so long as he receives notice of the prior encumbrance, it makes no difference whether such notice is derived from a record or from any other authentic source, and he purchases thereafter at his peril. In other words, if he knows that the land he buys has already been conveyed to another person who has neglected to record the deed, he cannot claim the rights of a bona fide purchaser.