QJornfll Ham ^rljonl IGtbtary Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018815997 A treatise: ON THE LAW OF RECORD OF TITLE Of Real and Personal Property, WITH APPENDES: GIVING THE STATUTORY PROVISIONS OF THE SEVERAL STATES RELATING THERETO, AND APPROVED FORMS FOR ACKNOWLEDG- MENTS IN EACH STATE, BY BRITAIN R. WEBB, Author of "A Treatise on the Texas Criminal Law," Etc. ST. LOUIS, MO.: THE GILBERT BOOK CO. 1890. Entered according to Act of Congress in tlie Tear 1S90, by THE GILBERT BOOK CO., In the office of tlie Librarian of Congress, at Wasliington. Kf loll TO THE HONORABLE JAMES S. HOGG, ATTORKEY-GENERAL OF THE STATE OF TEXAS, IN TESTIMONY OP THE HIGH REGARD IN WHICH HIS WORTH AS A M^M AND HIS SERVICES AS AN OFFICER ARE HELD, THIS WORK IS INSCRIBED BY THE AUTHOR. PRBFACK. The matter of Registration of Title has been heretofore treated only as a branch of the general law of real and per- sonal property, of conveyances, and of the doctrine of no- tice. With the growth of statutes and the multiplication of decisions, however, the subject has now reached an im- portance and bulk such as properly demands for it a sep- arate work, and hence this book has been written. ■ The decisions arising under the recording acts have been well said to be "exceedingly numerous and often involving questions of great magnitude and importance." The stat- utes are being constantly extended, altered and modified by the legislatures of nearly fifty states and territories, and upon these numerous statutes, more or less variant from each other, many courts are adjudicating, so that to the growing diversities of legislation are added the increasing diversities of judicial decision; and with the result that out of the very large number of cases that have accumulated, conflicting, and apparently conflicting, opinions can now be arrayed on either side of nearly all the numerous questions that reasonably arise. It is true that a common purpose and design pervades all of these registry acts, and that this conflict of decision is often more apparent than real, and can in many instances be reconciled by a careful comparison of differences in the underlying statutes, yet this helps but little to relieve the VI PREFACE. matter of practical difficulty, as such investigation requires time and labor, and a readier access to the statutes and re- ports of the various states than attorneys ordinarily possess. It is a matter of regret that there is to be found among the statutes of the several states as needless and vexatious a diversity as exists in respect to their registry laws, and one of the incentives to this work has been the hope that a collation and comparison of the decisions and statutes on the subject, such as is here presented, may aid to some ex- tent in bringing about greater uniformity in our laws relat- ing to the record of title. Throughout the woik those stat- utes and decisions that tend toward simplicity and uniform- ity are pointed out as presenting the better law, whether supported or not by the greater weight of precedent. The design of the work has been to state only general principles in the text, as far as this was practicable; and in the notes to give points of illustration and minor qual- ification, and decisions resting principally on special pro- vision or phraseology of statute. It may be thought that in some instances the citations of cases in the notes are needlessly full ; but there are many states, and each lawyer or judge will prefer to find, in rela- tion to any point worth examining, proper reference to at least one or two decisions by the courts of his own state. Care has been taken to avoid citing on any one point a needless number of cases from the same state. The paral- lel references to the American Decisions, the American Ee- ports and the current series of the Reporter system, it is hoped will prove a convenience to the profession, and add to the practical usefulness of the work. B. R. W. Baird, Tex., Jan'y 1st, 1890. TABLE OF CONTENTS. Ch. 1. — History and General Principles of Rkgistration. Secs. 1. The Early English and American Statutes 1—3 2. The American Theory and Conflict of Decisions. .4-5 3. Leading and Similar Features *> 4. Dissimilar Provisions 7-18 7. Time Allowed for Record. 8, 9. Acknowledgments. .10. Creditors. 11. The Lex Situs. 12. Actual JiTotice. 13-15. Subsequent Deed to be First Recorded. 16-18. Filing and Mistake in Recording. 5. Extension of the Law of Registry 19, 20 20. Vendor's Lien as Affected by Registry. 6. Record is Notice to All the World 21, 22 22. Limitations of the Rule. 7. Validating Acts 23 Ch. 2. — Of the Instrujients Entitled to Record. 1. Conveyances of the Legal Title 24-35 25. Patents. 26, 27. Deeds and Quit-claims. 28, 29. Leases and Powers of Attorney. 30-32. Mortgages and Defeasances. ' 33-35. Assignments, Releases and Trust Deeds. 2. Conveyances of Equitable Title 36-39 37. Executory Contracts. 38. Bonds for Title. 39. Equitable Mortgages. VII VIJI TABLE OF CONTENTS. Secs. 3. Conveyances of Personal Property 40, 41 41. Chattel Mortgages. 4. Special Statutory Instruments 42-47 42. Abstracts of Judgments. 43. Notices of Lis Pendens. 44. Attachment and Execution Liens. 45-47. Mechanics' Liens. 5. Miscellaneous Matters 48-51 49. Town Plats. 50, 51. Record of Wills. Ch. 3. — Acknowledgment. 1. Purpose and Effect of Acknowledgment 52-56 53, 54. Where and for What Not Required. 55, 56. Requisite to Record and as Proof of Execution. 2. By Whom to be Made 57-(iO 58. By One of Several Grantors. , 59, 60. By Agents and Officers of Corporations. 3. Before What Officers to be Made 61-68 61-64. Deputies, Ex-officio and De-facto Officers. * 65, 66. Local Jurisdiction and Presumptions. 67, 68. Disqualification by Interest and Relationship. 4. The Certificate of Acknowledgment 69-86 70-72. Caption and Statement of Official Capacity. 73, 74. Official Seal, and How Shown. 75. Certificates of Magistracy and Conformity. 76, 77. Identity of Grantor, and How Stated. 7S. Stating Grantor's Name. 79, 80. Substantial Compliance with Statute. 81, 82. Omissions, Material and Clerical. 83. Surplusage. 84, 85. Date and Signature. 5. When and of. What Certificate Conclusive 87-90 88, 89. How Far Conclusive — ^Fraud. 90. Evidence Necessary to Overcome the Certificate. 6. Amendment and Other Matters 91-97 92, 93. Amending Certificate — Married Women. 94. Correction of Certificate by the Courts. 95. Acknowledgment of Ancient Deeds. 96. Testimonios and Public Acts of Sale. 97. Validating Statutes. table of contents. ix Ch. 4. — Acknowledgment by Married Women. Secs. 1. Theory and Distinctive Features of tlie Law.. 98-102 99-100. Distinctive Features and Modern Ctianges. 101, 102. Early and Later Theories of the Law. 2. Tile Statutory Requisites 103-110 104, 105. The Separate Examination. 106, 107. Explanation of the Deed. 108, 109. The Voluntary Execution. 110. The Wish Not to Ketract. 3. Matters Relating to the Certificate 111-115 111. Substantial Compliance. 112. Joint Certificates. 113. Identity of the Wife. 114. Community Property. 115. Eelinquishment of Dower. 4. Aclsnowledgment as Affected by Disabilities of the Wife 116-121 116, 117. Deed with Blanljs— Wife's Power of Attorney. 118. Wife Acting as Feme Sole. 119. Ee-acknowledgment and Ratification. 120. Validating Deeds of Married Women. 121. Impeachment of the Certificate. Ch. 5. — Proof by Witnesses. 1. Statutory Features 122-124 122. Proof Without Aid of Statute. 123. General Features of ihe Statutes. 124. Statutory Provisions. 2. Matters Affecting the Witness 125-127 125. Witnesses of Grantor's Selection. 126. Proof by One when Statute Requires Xwo. 127. Disqualifications of Witness. 3. Matters Affecting the Certificate 128, 129 128. The Afiidavit and Certainty Required. 129. Other Statutory Matters. 4. Proof of Handwriting 130 x table of contents. Ch. 6. Of the Time, Place and Other Incidents OF Eecokd. Secs. 1. Of the Allowance of Time for Record 131-133 131. Time of Eecord, Generally. 132, 133. Statutory Time of Kecord. 2. Of the Place of Record 134, 135 135. Records In the General Land Offices. 3. Of the Books of Record 136-139 137-189. Kecord of Mortgage in Book of Deeds. 4. Of Filing and Indexing 140-143 111. Filing and Withdrawing. 142, 143. Indexing. 5. Miscellaneous Matters 144-151 144. Delivery of the Deed. 145. Witnesses Necessary to Kecord, when. 146. Sealing and Signing. 147. Description of the Property. 148. Recording Officers. 149. Schedules, Memoranda, etc. 150. Manner of Kecord. 151. Payment of Recording Fees. Ch. 7. — The Effect of Record. 1. Constructive Notice by the Record 152-157 152. Effect of the Record. 153. Definitions and Limitations. 154. Purchaser Under Kecord Title Without Notice Protected. 155. And May Convey to One Having Actual Notice. 156, 157. When Record Title Does Not Protect. 2. Break in the Record Title 158-161 1.59. Actual Notice as Supplying the Gap. 160. Record of Mortgage Before that of Deed to Mortgagor. 161. Exceptions Created hy Estoppel. 3. Limitations of Rule that Record is Notice. . .162-164 162. Notice Only to Purchasers Under Same Grantor. 163, 1G4. Not Notice to Prior Parties. table of contents. xi Secs. 4. Priority in Registration 165-170 166, 167. In Kecord of Conveyances from Same Grantor. 168. In Conveyances of Same Date. 169. Priority in the Record of Liens. 170. Priority in Kecord of Mortgages. 5. Record of Mortorages 171-175 172. Purcliase Money Mortgages. 173, 174. Re-inscriptionand Assignment of Mortgages. 175. Cancellation and Discbarge of Mortgages. 6. Extent to whicli Record is Notice 176-191 177. Kecord as Notice of Matter of Law. 178, 179. Recitals as Charging Notice. 180. Imperfect and Ambiguous Kecltals. 181, 182. Recital to Other Instruments and to Mat- ters of Fact. 183. Quit-claim Deed as Charging Notice. 184. Purchaser from Heir Protected. 185. Registry of Wife's Separate Property. 186. Kecord of Conveyances by the Wife. 187. Second Record Not Necessary. 188. Registry as Affected by Usage. 189. Record as Necessary to Validity of In- strument. 190. Unauthorized Kecord Made Effectual by Subsequent Matters. 191. Unrecorded Deeds as Affected by Suits. Ch. 8. — Creditors and Subsequent Purchasers. 1. Creditors at Common Law and Under the Statutes 192-196 192. Rights of Creditors at Common TiSlw and in Equity. 193, 194. Creditors Under the Statutes. 195, 196. Must be Lien Creditors of the Grantor. 2. Notice to Creditors and Purcliasers 197-200 198. Notice Good if Before Judgment Obtained. 199, 200. Notice to Purchaser Effectual, when. 3. Purchaser Under the Recording Acts 201-203 202. Bona Fide Purchaser Defined. 203. Purchaser of the Legal Title. ;^jj TABLE OF CONTENTS. Secs. 4. What is Valuable Consideration 204-208 206, 207. Part Payment and Antecedent Debt. 208. Extension of Time and the Lilse. 5. Other Classes of Purchasers 209-214 209. Mortgagee a Purotiaser. 210. Trustee a Purchaser, when. 211. Assignee for Benefit of Creditors Not a Purchaser. 212. Purchaser at Execution Sale Protected. 213. Purchaser at Banlsrupt Sale Not Protected. 214. Purchaser of Same Property from Same Grantor. Ch. 9. — Actual Notice. 1. Origin and Extent of the Equitable Doctrine. . 215-222 215, 216. History and Prevalence of the Rule. 217, 21S. Exceptions to the Pule. 219, 220. The Several Kinds and Degrees of Actual Notice. 221. Constructive and Implied Notice. 222. Statutory Distinctions as to Actu.al Notice. 2. Putting on Inquiry 223-227 224. Sources of Information. 225. Vague Statements and Rumors. '226. Inquiry to be Prosecuted. 227. Presumption of Notice Rebuttable. 3. Possession as Notice 228-237 229. Exceptions to the Rule. 230, 231. Grantor Remaining in Possession. 232. Possession Referred to Recorded lltle. 233, 234. Possession to be Open, Notorious and Actual. 235, 236. Joint Possession — Tenants in Common. 237. Possession Must be Existing and Con- tinuous. 4. Notice to Agent is Notice to Principal 238-244 239. Scope of the Rule — Partners, etc. 240. Character of the Agency. 241. Notice in Same Transaction. 242. Notice to an Agent for Both Parties. 243. Where Agent is Guilty of Fraud. 244. Notice to Officers and Agents of Corporations. tablk of contents. xiii Ch. 10. — Personal Property. Secs. 1. General Principles 245 , 246 246. Statutory and Other Distinctions. 2. Possession as Notice 247-251 248. As Affording Protection to Subsequent Pur- chaser. 249. Conditional Sales — General Eule. 250. Continued — Subsequent Purchaser Pro- tected. 251. Statutory Registry of Conditional Sales. 3. Chattel Mortgages 252-274 253, 254. Description of Property, Filing, etc. 255, 256. Time of Kecord — Withdrawal from Files. 257-260. Ke-fillng and Affidavit of Renewal. 261, 262. Place of Record— Non-residents. 263, 264. Residence of Corporation and of Partner- ship. 265, 266. Removal of Property and Re-record. 267, 268. Removal— Comity of States— iex Situs. 269, 270. Actual Notice— Creditors, How Affected. 271. Affidavit of Good Faith. 272. Recorder's Certificate of Filing. 273, 274. Mortgages of Growing Crops. 4. Conveyances and Mortgages of Vessels 275, 276 276. Federal and State Laws on the Subject. Ch. 11. — Statutory Provisions of the Several States. Table of Cases. Index. RKCORD OF TITLK. CHAPTER 1. HISTORY AND GEISTERAL PRINCIPLES OF REGISTRATION. §1. The early English statutes. 2. Extent of the English statutes and doctrine. 3. Early American statutes. 4. The American theory. 5. Conflict of decisions. 6. Leading and similar features. 7. Time allowed for recording. 8. Acknowledgmeut as a prerequisite to registry. 9. Acknowledgments of married women. 10. Rights of creditors. 11. Lex situs — Comity of states. 12. Actual notice as supplying registry. 13. Subsequent deed required to he first of record. 14. Continued — Equity of the matter. 15. Continued — The contrary doctrine. 16. Filing, and mistake in recording. 17. Continued — Record does not impart the notice. 18. Continued — Reason of the rule. 19. Extension of the law of registration. 20. Vendor's lien as affected by registry laws. 21. Record'potice "to all the world." 22. Continued — Limitations of the rule. 23. Validating acts. §1. The Early English Statutes. At common law there was no obligation to put upon rec- ord a conveyance affecting the title to land.^ The earliest English statute having any relation to the matter is that of 1 Auhuchan v. Bender, 44 Mo. 564; Clark v. White, 12 Pet. 178. (2— Reg. of Title.) 17 Ch. l.J HISTORY, ETC., Or BEGISTKATION. [§2. 27 Henry VIII, ch. 16, providing for the enrollment of bar- gains and sales. This statute was designed to give to pur- chases the notoriety formerly attained by livery of seizin, and was essential to the validity of the deeds. ^ It was not, however, a statute of registration, although declared to be analogous to it,* and has not prevailed in this country.* The statute of 7th Anne, chap. 20, for the county of Mid- dlesex, is one of the earliest of the registry acts. It pro- vided ^ "That a memorial of all deeds and conveyances which, after the 27th of September, 1709, shall be made and executed, and of all wills and devises in writing, whereby any honours, manors, lands, &c., in the county of Middlesex, may be any way affected in law or equity, may be registered in such manner as is after directed ; and that every such deed or conveyance that shall, at any time af- ter, &c., be made and executed, shall be adjudged fraud- ulent and void against any subsequent purchaser or mort- sasee for valuable consideration, unless such memorial be registered as by this act is directed, before the registering of the memorial of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim," &c.* §2. Extent of the English Statutes and Doctrine. It will be observed that the foregoing act does not by its terms give to the registration of conveyances the force and effect of notice, nor does the doctrine of constructive notice, as imparted from the record alone, even yet obtain in Eng- land,^ although in Ireland the rule is different under a sep- 1 3 Wash, on Keal Prop. (3d ed.) 281 ; Pyle v. Manlding, 7 J. J. Marsh. 204. 2 LeNeve v. LeXeve, Amb. 436; s. C. 1 Ves. 64; 3 Atk. 646. 3 Chandler V. Chandler, 55 Oal. 267; Welsh v. Foster, 12 Mass. 96; Given V. Doe, 7 Blaokf . 210. ^ LeNeve v. LeNeve, supra; s. c. in 2 Bq. Lead. Cas. (White & Tu- dor), 4 Am. ed. 113-117. 5 Moreoock V. Dickens, Amb. 678; Underwood v. Lord Courtown, 2 Soh. & L. 40; Bushell v. Bushell, 1 Id. 90; Wiseman v. Westland, 1 Younge & J. 117; Ford v. White, 16 Beaver, 120; Hodgson v. Dean 2 Sim. & St. 221. 18 Ch. 1.] HISTORY, ETC., OF REGISTRATION. [§3. arate and somewhat different aict.^ Neither does the Eng- lish act declare that the subsequent purchaser , shall lie a purchaser without notice, but the doctrine that actual notice should be equivalent to registry was engrafted on the stat- ute by the courts of equity at an early date, and is now of almost* universal application.^ The registry laws of Eng- land relating to deeds are even yet very limited in local application, extending only to three or four counties.^ The transfer of lands in England is less frequent than here, and the landholders of that kingdom have so far successfully resisted a general introduction of any system of recording conveyances, doubtless from a desire to withdraw settle- ments and domestic arrangements from public view.* The registry acts of Great Britain are so essentially different from ours in their scope and operation that the decisions of the English courts, except as to the equity doctrine of no- tice in fact, actual or implied, shed but little light on the subject of this work. §3. Early American Statutes. In the United States the system of registration flourishes in its fullest vigor, and its history in this country antedates even the statute of 7th Anne. The usage of recording 1 Bushell v. Bushell, 1 Sch. & L. 90, 103; In re Driscoll, 1 I. K. Eq. 285 ; Latouche v. Lord Dunsany, 1 Dr. & War. 459 ; Drew v. Norbury, 3 Jo. & Lat. 267; Wade on Notice. §107. 2 Mackreth v. Symmons, 15 Ves. 349 ; Potter v. Sanders, 6 Hare, 1 ; Blades v. Blades, 1 Eq. Cas. Abr. 358, pi. 12; LeNeve v. LeNeve, svpra; Story's Eq. Juris. §398; 2 Pomeroy's Eq. Juris. §591; Wade on Notice, §§48-50; 2 Devlin on Deeds, §725; White v. Foster, 102 Mass. 375; Bon- ner V. Stephens. 60 Tex. 616; Dunham v. Dey, 15 Johns. 555; s. C. 8 Am. Dec. 282; Mayhee v. Moore, 90 Mo. 340; s. c. 2 S. W. Kepr. 471; Hilton V. Young, 73 Cal. 684; s. c. 14 Pac. Kepr. 684; Otis v. Payne, 86 Tenn. 663; Marler v. Lee, 2 Utah, 460; Strohm v. Good, 113 Ind. 93; post, §§215-244. s 4 Kent's Com. (12 ed.) *459. The English Kegistry Acts are: For Middlesex, 7 Anne, ch. 20; West Riding of Yorlishire, 5 Anne, ch. 18; East Biding of Yorkshire and Kingston on Hull, 6 Anne, ch. 35 ; North fliding of Yorkshire, 8 George 11, ch. 6; Irish Act, 6 Anne, ch. 2. < 3 Washburn on Eeal Prop. (3 ed.) 281. 19 Ch. 1.] HISTORY, ETC., OF REGISTKATION. [§4. deeds prevailed in New England from its earliest settlement. In Plymouth colony conveyances were by law required lo be recorded as early as 1636; in. Massachusetts in 1641 ;i in Connecticut, 1639 ;2 in New Jersey, 1676 ;=* in North Car- olina,'' Maryland and Pennsylvania, 1715; in Georgia, 1755 ;5 in Virginia'' from the earliest period. '^ The^scope and operation of the law of record has been constantly ex- tended by legislative enactment so as to embrace nearly every species of pro{)erty, and especially every kind of written instrument relating to real estate; while the courts, as a rule, have steadily favored the policy of the law, de- claring that the registry acts impose no hardship, operate alike on all, make titles secure, and prevent frauds and litigation.^ §4. The American Tlieory. The doctrine that actual notice shall supply the place of registration is now expressly declared in nearly all of the state statutes; but even where this is not the case, the courts almost universally recognize the rule as law.^ In all the states registration is held to impart constructive and absolute notice of the contents of every instrument that is ' Holmes' Annals, i. 261. 2 Trumbull's History of Conn. 111. 3 Learning & Spicer's New Jersey Collections, 153; Read v. Eichman, 1 Green, 49. * Hogan V. Strayhorn, 65 N. C. 279. As to New York, see Hunt v. Thompson, 19 N. Y. 279; Jaelfson v. Chamberlain, 8 Wend. 620. 5 Delanoey v. MoKean, 1 Wash C. Ct. 525; Cobb's Dig. Laws of Ga. (1851), p. 159. 6 Baylies' Hist. Memoirs, i. 112, 239. ' 4 Kent's Com. (12th ed.) *456, notes. 8 Moore v. Thomas, 1 Or. 201 ; Parkhurst v. Alexander, 1 Johns. Ch. 394; Fort v. Buroh, 6 Barb. 60; Kelly v. Calhoun. 95 U. S. 710; Nat'l Bank v. Conway, 1 Hughes C. Ct. 37; Kenyon v. Stewart, 44 Pa. St. 179; Tarpley v. Hamer, 9 Sni. & M. 310. » Wyatt V. Barwell, 19 Ves. 439; Strohm v. Good, 113 Ind. 93; Ford V. White, 16 Beav. 120; White v. Foster, 102 Mass. 375; Smith v. Prof- latt, 82 Va. 832, S51 ; Brown v. Hanauer. 48 Ark. 277; Maupron v. Em- mons, 47 Mo. 304; Leinraan's Estate, 32 Md. 325; }}ost, oh. ix. Actual notice does not supply registry in Louisiana. Payne v. Pavey, 29 La. Ann. 116; Tulane v. Levinson, 2 La. Ann. 787. 20 Ch. 1.] HISTORY, ETC., OF RKGISTRATION. [S^- properly recortled, to every person subsequently dealing with the property, who^ie duty it is to examine the record.^ The comparatively low value of land in this country, ils frequent transfers, and the often widely scattered situations of its owners, have all tended strongly from the beginning towards a system of public records as the full and authentic source of information of title ; and since inconsistent methods cannot exist together to advantage, our whole system of land titles and conveyancing has now for many years rested upon the plan and policy of registration.^ Having become the dominant idea and prevailing practice, all other methods and theories in conflict with it have been dispensed with, or properly subordinated to it; its -usefulness has been aug- mented, and its scope broadened and extended to include every species of property and interest to which the system of registry can be applied consistently with the principles of equity and a satisfactory transaction of practical business. To effectuate its purposes, the policy of the law is to compel the registration of every instrument and interest that can properly be recorded, for the protection of the rights not only of the party recording, but also the interests of all other persons subsequently dealing, or about to deal, with the property;^ and it is also its policy that such other per- sons shall have the right to rely upon the records as con- taining a full exhibit of every existing and outstanding estate, title or interest in the property that could affect their rights as bona fide purchasers thereof.* This is the 1 Blatchley v. Osborne, 33 Conn. 226 ; Buchanan v. Int. Bank, 78 111. 500; Parkhurst v. Alexander, 1 Johns. Ch.394; Schuttv. Large, 6 Barb. 373; 1 Story's Eq. Jui-is. §403; Wells v. Smith, 2 Utah, 39. 2 "Wombl.e v. Battle, 1 Ired. Eq. 186. 8 U. S. Ins. Co. V. Shriver, 3 Md. Ch. 381; Digman v. McCoUum, 47 Mo. 372; Bellas v. McCarty, 10 Watts, 13; Wells v. Smith, 2 Utah. 39; McPherson v. Rollins, 107 N.Y. 316; s. C. 1 Am. St. Rep. 826; U X.E. Repr. 411 ; Voorhis v. Westervelt, 43 ST. J. Eq. 642 ; s. C. 3 Am. St. Rep. 315; 12 Atl. Repr. 533; post, §152. < 2 Pomeroy's Eq. Juris. §649; Barrett v. Barrett, 31 Tex. 348; Ohio L. Ins. Co. V. Ledyard, 8 Ala. 866; Peychaud v. Citizens Bank, 21 La. Ann. 262; Harang v. Plattsmier, Id. 426; Bird v. Deanison, 7 Cal. 297; 21 Ch. l.J HISTORY, ETC., OF REGISTRATION. [§5- theory of the legislation, and the courts, as a rule, have in their judicial interpretation of it sought to give effect to this general design.^ The purpose of registry has been by the courts declared to be: (1) to preserve the muniments them- selves of titles; (2) to perpetuate the evidence of their vol- untary execution; and (3) to give the community notice of the changes in the ownership of property ; and the laws to effectuate these objects are said to be founded on large grounds of public policy.^ §5. Conflict of Decisions. Yet while this general theory and intent substantially prevails in the legislation and judicial decision of all the states, there is a noticeable want of harmony in many im- portant particulars, and as to a few of even the leading principles, there is a positive conflict that will be difficult to reconcile without the aid of further legislation, based upon a somewhat broader statesmanship and a more thorough comprehension of the subject than seems to have yet pre- vailed in some localities.^ Each state has, as a rule, legis- McCabe v. Grey, 20 Cal. .509; Grant v. Bissett, 1 Gaines Gas. 112; Jack- son V. Given, 8 Johns. 137; .Jackson v. VaaValkenburgh, 8 Cow. 260; Cook V. Travis, 20 N". Y. 40;); Taylor v. Thomas, 5 X. J. Eq. 331; Buchanan v.Inleruatioual Bank, 75 111. 503; Earle v. Fisk, 103 Mass. 491, 494; Routh v. Spencer, 38 Ind. 393; Holhrook v. Dickinson, 56 111. 497; Hogden v. Guttery, 58 Ind. 431; Harrington v. Allen, 48 Miss. 493. 1 See Philbrook v. Delano, 29 Me. 414; Bayley v. Greenleaf, 7 Wheat. 46; Barrett v. Barrett, 31 Tex. 344; Acer v. Westcott, 46 N. Y. 384; s. C. 7 Am. Eep. 355; Sowden v. Craig, 26 Iowa, 156; s. C. 98 Am. Dec. 125. ^ Yerger v. Young, 9 Yerg. 37 ; Buggies v. Williams, 1 Head, 141 ; Sanders v. Harris, 5 Humph. 343. 3 In construing the registry acts, two different considerations have contended for the mastery; sometimes the one prevailing, and some- times the other. The first is, that these acts are intended to prevent fraud, are beneficial in their operation, and hence are to be liberally construed. This view is sustained by the cases cited in the preceding section. The other view is that these acts are in derogation of the com- mon law, are purely statutory in all their features, and are to receive a strict construction — such an one as demands an almost literal compli- ance with the statute. See Hawkins v. Burress, 1 Har. & ,J. 513; Boy- kin V. Rain, 28 Ala. 332; s. C. 65 Am. Dec. 349; Hitz v. Jenks,'l23 U. 22 Ch. 1.] HISTOEY, ETC., OF REGISTRATION. [§6. lated upon the subject without reference to the laws of other states, and with the result that scarcely any two of the recording acts are alike. Since registration is a matter dependent entirely upon the statute, the force and effect of a difference in the statutory terms employed is greater than it would otherwise be ; and to this diversity is due in a large measure the confusion and the apparent conflict of decision that may be found. In the exposition and application of the principles of registration much of this conflict of deci- sion is apparent rather than real; and it may be further remarked that, aside from differences in the specific terms of the statutes, this conflict among the courts may be largely attributed to a general difference in the structure and scope of the several statutory systems, such as to influ- ence a difference in the rules of construction to be applied. A knowledge of the statutes, at least as to their leading features of similarity and dissimilarity, is essentially neces- sary to a proper understanding of the American law of' registration.^ §6. Xjcading and Similar Features. In every state, as already mentioned, registration is held to impart constructive and absolute notice of the contents of instruments authorized by law to be recorded.'^ This leading principle of the American registry law proceeds on the theory that one who willfully omits to inform him- self of what the public records place within reach of his S. 298; S. C. 8 Sup. Ct. Kepr. 143; Wetmore v. Laird, 5 Biss. 160; Mer- rittv. Yates, 71 111. 639; Dewey v. Campau, 4 Mioh. 565; Kioe v. Pea- cock, 37 Tex. 892. 1 See 2 Pomeroy's Bq. Juris. §646, and notes thereto; also Stimson's Am. Stat. Law, §§1.570-1632, and the last chapter of this work. Some of the most essential differences in the law relate to the rights of cred- itors, to conveyances by mairied women, the doctrine of actual notice, and to priority in registration. 2 Edwards v. Barwise, 69 Tex. 84; s. C. 6 S. W. Kepr. 677; Steven- son V. Morse, 17 BT. H. 532; Van Kensellaer v. Clark, 17 Wend. 25; Thomas V. Kennedy, 24 Iowa, 397 ; Shore v. Lascar, 22 Wis. 142; Irvin V. Smith. 17 Ohio, 226; Gushing v. Ayer, 25 Me. 383; James v. Morey, 2 Cow. 216. 23 Ch. 1.] HISTORY, ETC., OF REGISTRATION. [§c. knowledge, is not less chargeable with notice than if he knew. He should not be allowed to profess ignorance of a deed duly registered, and whether he examines the registry or not, the presumption against his good faith is equally strong. The rule was established on this basis in some of the states by judicial decision and in others by legislation. ^ So, in all the states, with but limited exception, actual 'no- tice, meaning here notice other than that imparted by the record, supplies the place of registration, although, as will be seen hereafter, there is some conflict and confusion as to the character and extent of the notice that will suffice for this purpose. 2 It is also the universal rule that, although the language of the statute may be permissive only, regis- tration, as relating to real estate, is held to be mandatory in the sense that a failure to record gives to subsequent parties dealing with the property in good faith a superior right.3 The few limitations of this "rule, relating to special classes of instruments, and the rule as relating to personal property, will be noticed hereafter.* In all the states the record of an instrument affecting land must be made in the county where the land lies, excepting that in some of the western states having counties yet unorganized, special pro- vision is made for such counties. ^ Everywhere a subsequent purchaser for valuable consideration and without notice is protected by the registry acts ; but as to creditors and other classes the rule is not so universal. These are all the leading principles in reference to which it can be said that the laws 1 2 Lead. Eq. Cas. (4 Am. ed.) 203; Martin v. Sale, 1 Bailey's Eq. 1; Mann v. Martin, 4 Md. 124: Parkliuist v. Alexander, 1 Johns. Ch. 394; Keiser v. Houston, 38 111. 252. 2 See, post, ch. ix; Wade on aSTotice, §§1-10; 2 Devlin on Deeds, §§725-728; 2 Pomeroy's Eq. Juris. §§592-.595. The rule that actual notice supplies registry does not obtain in Lou- isiana. Payne v. Pavey, 29 La. Ann. 116, 117; and as to mortgages, this is the case in several other states. See, post, §§214-17. 3 Neslin v. Wells, 14 Otto (104 U. S.) 428. * See, post, §39, and ch. x. « Stimson's Am. Stat. Law. §1014; Adams v. Hayden, 60 Tex. 223; 2 Sayles' Tex. Stats. §4333; post,'c\i. vi; also note on p. 16. 24 t Ch. l.J HISTORY, ETC., OF KEGISTRATION. [§7. of the states are substantially in accord with each other. In other respects the statutes and decisions are not always in harmony, though in some instances there is a decided weight of authority and precedent one way or the other. §7. Time Allowed for Recording. The statutes of several states and territories provide in effect that instruments recorded within a specified time af- ter their execution shall have priority over any instrument of later date.^ In such cases the record, when made within the prescribed time, relates back to the date or delivery of the instrument, and gives priority over a subsequent instru- ment, though it may already be on record.^ The instrument, when recorded after the prescribed time, operates as notice only from the date of the filing and recording.^ Mortgages, if accorded the privilege of time at all, usually have a more limited period than is prescribed for deeds.* The period of time within which deeds may be recorded varies from five days in Oregon,^ to one year in Georgia^ and other states, and formerly two years in Norih Carolina. This difference, and the further fact that in more than two-thirds of the states no such provision as to time exists at all, indicates at once what a fuller consideration demonstrates to be true, namely: that this privilege is a feature pertaining to the law of ^registration, having no substantial basis of merit ^ See, in chapter 11, post, the statutory laws of Alabama, Georgia, Indiana, Kentncky, Maryland, New Jersey, Oregon, Pennsylvania, South Carolina and Virginia. 2 Betz V. Mulin, 62 Ala. 365; King v. Fraser, 23 S. Car. 543; Dale v. Arnold, 2 Bibb. 605; McConnell v. Brown, Lit. Select Cases, 462; Breckinridge V. Todd, 3 Mon. 54; Claiborne v. Holmes, 51 Miss. 146; Phelps V. Barnhart, 88 N. C. 333. ^ Anderson v. Dugas, 29 Ga. 440 ; Hand v. McKinney, 25 Ga. 648 ; Meni v. Kathbone, 21 Ind. 454; Steele v. Mansell, 6 Kich. 437; Mallory V. Stodder, 6 Ala. 801. This rule does not always hold good as to chattel mortgages. Briggs v. Fleming, 112 Ind. 313; S. Car. 14 N. E. Repr. 86; Si 3ner v. Bible, 43 Ind. 230; Drew v. Streeter, 137 Mass. 460; post, §254. * See, post, §29, and statutory provisions in the last chapter. « Gen'l Laws of Oregoa (1872), oh. 6, §26. « Code of Georgia (1882), art. 2705. 25 Ch. l.J HISTORY, ETC., OF REGISTRATION. [§8. underlying it. A century since such provision doubtless had some justification in certain localities, arising from the want of public mails and other facilities for early communi- cation, and it is now perhaps suffered to remain on the statutes in deference to ancient custom. It operates as a practical cessation and withdrawal of the protection af- forded to third parties by the registry laws for the period of time prescribed, and as this period begins from the date of an instrument that is entirely unknown to a bona fide subsequent purchaser or incumbrancer, it follows that, however clear the record may be at the time his right accrues, his purchase, though made upon valuable con- sideration and without any notice whatever, is liable until the expiration of the prescribed and, to him, unknown period of time, to be supplanted and overridden by another and secret conveyance, of which he had neither actual nor constructive notice. In certain localities, and as to a limited class of instruments, a privilege or preference for record of the entire day upon which the instrument was executed, is extended by statute, ^ and such statutes have a substantial reason in their favor. This subject is presented in detail in a succeeding chapter.^ §8. Acknowledgment as a Prerequisite to Registry. Heretofore the law has been almost without exception that an acknowledgment has been required to entitle a deed to be recorded. 5 Latterly, however, the rule has been 1 17 Biennial Laws of Del., 213, §4; 2 Chap. 5. Ill Louisiana, a mechanic's lien or other privilege, as against a mortf^age already of record, must be recorded on the day the contract is entered into, in order to have preference; Gay v. Bovard, 27 La. Ann. 290; hut record of the privilege at any time is good as against a mortgage subsequently recorded. Mcllvaine v. Legare, 34 La. Ann. 923; and against third parties without lien. Succession of Clay, 34 7(i. 1131. 3 Craddock v. Merrill. 2 Tex. 495; Bank v. ISTeal, 28 W. Va. 744; Taylor v. Harrison, 47 Tex. 454; s. c. 26 Am. Eep. 304; Stevens v! Hampton, 46 Mo. 404; Work v. Harper, 24 Miss. 517; White v. Den- man. 1 O.St. nO; Dussanme v. Burnett, 5 Iowa. 95; Greenwood v' Jens- wold, 69 Iowa, 53; s. c. 28 N. W. Repr. 433; Hitz v. Jenks 123 U S 26 Ch. 1.] HISTORY, ETC., OF KEGISTKATION. [§8. broken in upon by statute ia several instances. A con- fusion of statutes, as to the officers authorized to talje aclcnowledgments, together with the requirement that the certificate thereof shall comply almost literally with various forms prescribed, has served in a multitude of instances to defeat the' record, and, as to married women, to defeat the conveyances, as well as the record ;i and has brought up for adjudication much the larger number of cases on regis- tration that have been before the courts. That an undue importance and consequence has been attached to this matter of acknowledgment cannot be gainsaid. It is even yet usually cumbered with a number and extent of require- mfints which, while serving no substantial purpose, occasion in a large proportion of cases an entire failure to accomplish the object for which the recording laws are designed. A change, however, is already being made in this matter, and now the statutes of several states dispense with the acknowledgment &s a prerequisite to registration, or to the effect of the record as imparting notice.^ In a yet larger number of states the matter- of acknowledgments has been much simplified, the separate examination of married women has been dispensed with, and the general form of certificate has been much improved. Thus, in more than one juris- diction, it is now provided by statute that a certificate of 298; S. C. 8 Sup. Ct. Kepr. 143; Sohultz v. Moore, 1 McLean, 520; Bar- ney V. Sutton, 2 Watts, 31; Hastings v. Vaughan, 5 Cal. 315; Johns v. Scott. 5 Md. »1; Pope v. Henry, 24 Vt. 560; Chouteau v. Jones, 11 111. 300; Fleming v. Ervin, 6 W. Va. 215; Ely v. Wilcox, 20 Wis. 523; s. C. 91 Am. Dec. 433; Stevens v. Morse, 47 N. H. 532; Hodgson v. Butts, 3 Cranch, 140; Summer v. Rhodes, 14 Conn. 135; Heister v. Fortner, 2 Binn. 40; Brown v. Lunt, 37 Me. 423; Edwards v. Brinker, 9 Dana, 69; Pringle v. Dunn, 37 Wis. 449; s. c. 19 Am. Eep. 772. 1 See, infra, §9, and ch. 4. 2 Hurd's Eev. Stats, of 111. (1883), ch. 30, §31; Genl. Stats, of Col- orado (1883), §217; Kev. Stats, of Conn. (1875), title 18, ch. 6, §13; Code of Wash. Ter. (1881), Art. 2323; Code of Ala., art. 2153; Simp- son v. Muadee, 3 Kan. 172. See Meskerman v. Day, 35 Kan. 46; s. C. lOPac. Eepr. 14; Sanford v. Weeks, 38 Kan. 319; s. C. 16 Pac. Kepr. 465; Dinkius v. Moore, 17 Ga. 64; Code of La., §2253; Stallcup v. Py- ron, 33 La. Ann. 1249; Stebbins v. DLincan, 108 U. S. 32; Howell's An- notated Stats, of Mich., art. 5727. 27 Ch. 1.] HISTORY, ETC., OF KEGISTKATION. [§9. acknowledgment is sufficient if it states that the grantor in the instrument, whether a married woman or otherwise, appeared before the proper officer and "acknowledged the same."i Where registration is invoked as a substitute for proof of the execution of the instrument as at common law and in suits before the courts, an acknowledgment is •with more reason demanded, and for this purpose is yet re- quired in those states that have dispensed with it, so far as notice by the record is concerned.^ §9. Acknowledgments of Married Women. At common law the civil existence of the wife was con- sidered as merged in that of the husband, and her freedom of will as having, therefore, measurably ceased to exist, and hence a process by fine and recovery in the courts was deemed necessary to secure such an expression of her will as would render a conveyance by her the act of herself and not of the husband alone. ^ This theory has been continued in the modern law and practice by substituting a privy examination for the process by fine and recovery,* and until a recent period such privy examination, with certifi- cate thereof, has been almost universally required in the American states.^ It has been, and is yet, the estab^ lished construction of the courts, that unless the law as to the acknowledgment of married women is strictly com- plied with, and the certificate shows this to have been done, the title does not pass, even as between the parties to the 1 Rev. Stats. Wisconsin (1878), §2217. Tliis is the form in W. Va., except for married women. Kelly's Rev. Stats. (1878), cti. 65, §3. 2 See autliorities in note 2 on preceding page. 3 3 "Wash, on Real Prop. 281; 2 Kent's Com. 129, 132, 163; Martin v. Dwelly, 6 Wend. 9 ; s. C. 21 Am. Dec. 245; Butler v. Buckingham, 5 Day, 492; s. c. 5 Am. Dec. 174. 4 Morris v. Sargent, IS Iowa, 199; Proffat on ISTotaries, 40; Martin v. Dwelly, supra; Hitz v. Jenks, 123 U. S. 298. » Schley v. Pullman Oar Co., 120 U. S. 575; Davis v. Agnew, 67 Tex. 206; s. C. 2 S. W. Repr. 43, 370; Pickens v. Kniseley, 29 W. Va. 1; s. C. 6 Am. St. Rep^622;Mariner v. Saunders, 5 Gilm. 113; Johnson v. Bryan, 62 Tex. 623; Bsene v. Randall, 23 Ala. oil; Thompson v. Phelps 6 Dana, 390; Matthews v. Puffur, 19 N". H. 348. ' Ch. 1.] HISTORY, ETC., OF KEGISTKATION. [§9. instrument;! so that a defect in the acknowledgment in such cases invalidates not only the record but the convey- ance itself. Theie is considerable diversity among the statutes as to the specific things requisite to a valid ac- knowledgment by a married woman, and this subject occu- pies a prominent part in the law of registration, as will be seen by reference to a subsequent chapter devoted to the matter.^ Its importance, however, is a waning one, as the statutory law is undergoing a steady change in this respect. Already, by the statutes of one-half the states, the sepa- rate examination has been dispensed with, and a married woman can now convey as if she were sole.^ However much of benefit may have accrued to the wife by reason of the fine and recovery or privy examination in times when husbands, as those of the Sabine women, were such vi et armis, and maintained marital authority with a strong hand, it is yet believed that the malign influence of the husband as it exists in modern times, is of such insidious character as that it cannot be successfully countervailed by the formality of a separate examinatiort by a merely minis- terial officer; and however commendable it may be as an abstract theory, that the law should desire to protect the wife against the protector of her own choice, yet as a mat- ter of fact, the modern instances in which any actual pro- tection or benefit has been afforded to her by reason of the separate acknowledgment, are exceedingly rare; while those instances in which defects in the acknowledgments of mar- ried women have been availed of as a means for the perpe- 1 Davis v. Agnew, 67 Tex. 207; Mason v. Brook, 12 111. 273; Dugger V. Collins, 69 Ala. 324; Hoskinson v. Adkins, 77 Mo. 537; Hogan v. Hogan, S9 111. 427; Harrisonburg B'k v. Paul, 75 Va. 594; s. C. 40 Am. Kep. 740; Gaffney v. Peeler, 21 S. Car. 55; Leonis v. Lazzarovich, 55 Cal. 52; Stilwell v. Adams, 29 Ark. 346; Clayton v. Kose, 87 N. C. 106. 2 Post, ch. IV, §§98-121. ' A list of the states requiring or dispensing with separate acknowl- edgment is given in chapter 4, §100, wher^ the matter is treated fully. See Knight v. Paxton, 124 U. S. 552; Bradshaw v. Atkins, 110 111. 323, 329. 29 Ch. 1.] HISTORY, ETC., OF REGISTUATION. L§^^- tration of fraud, are unfoi-tuimtely neither rare nor un- common. §10. Eights of Creditors. There is great diversity among the statutes as to the pro- tection afforded or denied to creditors by the registry laws. In some states an unregistered deed is declared void as against "creditors;''^ in others, as against "judgment creditors; "2 in others, as against "all creditors ;"3 while in a considerable n'lmber, creditors are not mentioned in the statutes at all,* and unrecorded conveyances are held valid as at common law against even judgment and attaching creditors. 5 Unless the words of the statute are so broad as to manifestly include creditors at large, only those .are regarded as creditors who obtain a lien by judgment, attach- ment or otherwise, before an antecedent deed or mortgage 1 Kev. Stats, of S. 0. (1S73), p. 422, §1. To the same effect are the statutes of ISTorth Carolina and Dist. of Columbia. 2 Rev. Code of Ala. (1867), p. 364. §1557. To the same effect are the statutes of New Jersey, Minnesota, Arkansas and Colorado. 8 Rev. Stats, of Tex.. §4332; Rev. Code of Miss. (ISSO), §1212; and similar to these are the statutes of Illinois, West Virginia, Florida, Ne- braska, Delaware, Kentucky and Tennessee. Under Code of Va. (1873), ch. 114, §5, unrecorded contracts for the sale of real estate are void as to creditors with or without notice. Dobyns v. Waring, 82 Va. 159, citing M.arsh v. Chambers, 30 Gratt. 299; Guerrantv. Anderson, 4 Rand. 208; Floyd v. Harding, 28 Gratt. 401. 411. * Rev. Code of Iowa (1873), §1941. This is also the case in Wyom- ing, (Rev. Slats, of 1887. §17), aad in Ohio, New York, Nevada, New jNlexico, Montana, Idaho, Missouri, Arizona. Georgia, Indiana, Michigan, Dakota, California, Oregon, Pennsylvania, Utah, Washington Territory and Wisconsin. In Maryland and Massachusetts the creditors specified are "subsequent creditors;" and in Delaware -'subsequent fair cred- itors." Rev. Code of Del., p. 504, §17. In several of the states, as Rhode Island, Kansas, Vermont, Connecticut and Maine, the statutes are so worded as to declare an unrecorded deed valid only as between the par- ties and their heirs, and void as to all third parties without notice. ^ Norton v. Williams, 9 Iowa, 528; Hoag v. Howard, 55 Cal. 564; Heister V. Fortner, 2 Biun. 40; s. C. 4 Am. Dec. 417; Hart v. Farmer's Bank, 33 Vt. 252; Reed v. Ownby, 44 Mo. 204; Cover v. Black, 1 Fa. St. 49;',; Rogers V. Gibson, 4 Yeates. Ill; Jackson v. Dubois, 4 Johns. 216; Holden v. Garrett, 23 Kau. 9S; Orth v. Jennings. 8 Blackf. 420. This is the rule at common law. Blankeuship v. Douglass, 36 Tex. 228; S. C. 82 Am. Dec. 608; Finch v. Winchelsea, 1 P. Wms. 277. 30 Ch. l.J HISTORY, ETC., OF REGISTRATION. [§10. is recorded.! The general rule obtains that mortgagees are purchasers,^ but that creditors cannot be regarded as such,'^ and hence must be named in the statute. In those states where the rights of creditors are recognized, interesting questions have arisen as to the effect of notice of an unre- corded conveyance by the debtor where the notice is given to the creditor before his lien attaches to the property, and also where it is given to a subsequent purchaser of the prop- erty at or before a sale of it made in satisfaction of the credit- or's lien ; and as to these questions there is a direct con- flict of opinion among the courts which no comparison of statutes and decisions, and no course of reasoning and de- duction therefrom can reconcile or harmonize.* The ten- dency of modern legislation, especially in reference to mortgages, is to extend the rights of creditors as against unrecorded instruments. The matter is more fully dis- cussed in a subsequent chapter. 1 Ayres V. Duprey, 27 Tex. 594; s. c. 86 Am. Dec. 657; Martin v. Dryden, 1 Gilm. 177; Massey v. Westoott, 40 111. 160. ^ Seevers v. Delashmut, 11 Iowa, 174; s. C. 77 Am. Dec. 139; Farga- son V. Edrington, 49 Ark. 207, 214; s. c. 4S. W. Eepr. 763; Willoughby V. 'Wnioiighby, 1 Tei-m, 763; Boyd v. Beck, 29 Ala. 713; Dickerson v. Tlllingliast, 1 Paige, 214; s. C. 2.t Am. Dec. biS; Porter v. Green, 4 "Clarke, 571; Jordan v. McNeil, 25 Kan. 459. 3 Heister v. Fortner, 2 Binn. 40; Twelves v. Williams, 3 Whart. 485; Eamsay's Appeal, 2 Watts, 232; White v. Denman, 1 O. St. 112; Harrall v. Gray, 10 Neb. 18B; s. c. 4 N. W. Eepr. 1040; Greenleaf v. Edes, 2 Minn. 264; Evans v. McGlasson, 18 Iowa, 150; Sappington v. OescMl, 49 Mo. 244. ^ Notice of an unrecorded deed comes too late alter the judgment lien has attached. Grace v. Wade, 45 Tex. 523; Fash v. Kavesaes, 32 Ala. 45; DeVandell v. Hamilton, 27 Ala. 156; Butler v. Maury, 10 Humph. 420; Uhler v. Hutchinson, 23 Pa. St. 110; Hulings v. Guth- rie, 4 Barr, 123; Smith v. Jordan. 25 Ga. 687; Nugent v. Priebatsch, 61 Miss. 402; Gal way v. Malchow, 7 Neb. 28."); Wood v. Chapin, 18 N. T. 509; s. C. 67 Am. Dec. 62; Massey v. Westoott, 40 111. 160; Vreeland v. Olaflin, 24 N. J. Eq. 113; Anderson v. Nagle, 12 W. Va. 98; Young v. Devries, 31 Gratt. 304; Humphries v. Merrill, 52 Miss. 92. But the rule is different In other states; Hoy v. Allen, 27 Iowa, 208; Schmidt v. Hoyt, 1 Edw. Ch. 652; Morton v. Kobards, 4 Dana, 258; Sigworth v. Meriam, 66 Iowa, 477; S. C. 24 N. W. Kepr. 4; N. W. Co. v. Mahaffey, 36 Kan. 152; Burn v. Burn, 3 Ves. 582; Wilcoxen v. Miller, 49 Cal. 193; Schroeder v. Gurney, 73 N. Y. 430. 31 Ch. l.J HISTORY, ETC., OF EEGISTEATION. [§11- §11. Lex Situs— Comity of States. Where an instrument affecting real property situated in one state is executed in another, the general rule is that it must be executed in conformity with the law of the situs of the property, which controls as to what officers are authorized to take the acknowledgment or proof, and as to the manner of the taking and certifying thereto.^ In this matter, h )wever, as in others just mentioned, the law is undergoing a gradual change ; the statutes of ten of the states now recognizing as sufficient a conveyance duly acknowledged and certified in accordance with the law of the state where it is executed.^ In several other states the principle of comity is recognized in a more limited degree; thus, four of them, while requiring their own form of acknowledgment and certificate, recognize the authority to take the acknowledgment of any and all officers author- ized so to do by the law of the place where it is taken.' By the law of one state, at least, an acknowledgment taken in a foreign country is sufficient, if in accordance with the law of that country, although it would not be sufficient when so taken in a sister state.* By the law of 1 Whart. on Conflict ol Laws, §275; Kerr v. Mooa, 9 Wheat. 565; U. S. V. Fox, 94 IT. S. 31S; Goddard v. Sawyer, 9 Alleu, 78; ISTicholson v, Leavite, 4 Sand. "2.i-2; Donaldson v. Phelps, 18 Pa. St. 170; Lewis v. Barry, 72 Pa. St. 18; Whart. oq Ev., §1052. See TUlotson v. Pritch- ard, 60 Vt. 94; Eggleston v. Bradford, 10 Ohio, 312, 315. 2 Eev. Stats. Wyomiag (1887), §11. The other states are Florida, Illinois, Moore v. Nelson, 3 McLean, 383; Louisiana, Michigan, Root v. Brotherson, 4 McLean, 230; Nebraska, Ohio, Bailey v. Bailey, 8 Ohio, 239; Oregon and Wisconsin; Foster v. Dennison, 9 Ohio, 121; Ed- ward V. Flaanagan, 104 U. S. 562; Allen v. Parish, 3 Ohio, 107. 8 Laws of New York (1867), ch. .^57. To same effect are the statutes of Pennsylvania, Vermont and Washiagton Territory. In all these oases a certificate of magistracy is required to accompany that of the acknowledgment. 4 Gen. Stats, of Minn. (1878). ch. 40, §10. In South Carolina the proof for record required in the state will not apply where the deed is proved out of the state. Wollolk v. Graniteville Co., 22 S. 0. 332. This is also the case in North Carolina, Starke v. Etheridge, 71 N. C. 210. By the statutes of Wyoming, a conveyance may be acknowledged in another state according to the law of such state, but if in a forei"'n country, it must be according to the laws of Wyoming; Kev. Stats. (1887), §§11-13. 32 Ch. l.J HISrOKY, ETC., OF KEGISTRATION. [§11- North Carolina, until within a recent period, it seems that an acknowledgment taken in another state would not be recognized, unless the authority of the officer emanated directly from North Carolina, either by appointment from the governor, as commissioner of deeds for the state, or by virtue of a commission issued directly to some person, em- powering him to take the acknowledgment of the particular deed desired to be probated in North Carolina. ^ It is to be observed that when a statutb designates, for purposes of acknowledgment, a certain class of officers within and of another state, in so doing it recognizes the laws of such other state, since in determining whether a given officer is ^ such as he purports to be, duly qualified and acting within his local jurisdiction, resort must be had to the laws of his own state, upon which his authority is dependent, and by which it must be determined. The acknowledgment of a deed is an act largely personal in its character, and if the laws of another state are to be recognized in the matter at all, they might be fully recognized as well. Otherwise, to be entirely consistent, the former North Carolina rule should prevail. When it is considered that the several states are but parts of one government, separated neither by walls nor by diversity of languages, but only by intangible' lines across which the business of the country flows without let or hindrance, and further that endless confusion and mistakes grow out of the exaction by one state that officers in another state shall use forms and methods with which they are not familiar, it will be seen that the' better reason is with the statutes that hold as sufficient an acknowledg- 1 Actsl87&-7, ch. 161; Code of 1883, sec. 1258. Where the rule of comity prevails, the acknowledgment of a married woman in another state, taken as if sole, will be recognized, though tlie state so recogniz- ing it may at home require a separate examination. Foster v. Deuni- son, 9 Ohio, 121, 125. So, as to the competency and number of wit- nesses, if the deed is valid where executed, it will be recognized as suffi- cient. Tillotson V. Pritohard, 60 Vt. 94; s. C. 14 Atl. Kepr. 302; Eggle- Bton v. Bradford, 10 Ohio, 312, 315. (3— Reg. of Title.) 33 Ch. l.J HISTOBr, ETC., OF REGISTRATION. [§12. ment made and certified ia accordance with the law of the place where taken. §12. Actual Notice as Supplying Registratiou, In maay of tlie states it is declared by statute that the subsequent purchaser who is protected against an un- recorded conveyance must be a purchaser in good faith, or "without notice;" and following the doctrine of equity as laid down in the early English case of LeNeve v. LeNeve, the courts usually hold this to be the law, even where the statute is silent on the matter of notice. ^ By some of the statutes the subsequent purchaser must be without knowl- edge, or without "actual notice."^ Partly owing to this 1 Fiirgason v. Edrington, 49 Ark. 207; Smith v. Proffat, 82 Va. 832, 851; s. c. 1 S. E. Repr. 67; Effln2;ei- v. Hall, 81 Va. 94; Strohm v. Good, 113 Ind. 93; s. C. 14 N. E. Repr. 901; Petry v. Ambrosher, 100 Ind. SIO; Jlanaudus v. Mann, 14 Or. 450; s. C. 13 Pac. Repr. 449; Blalook V. Xewhill, 78 Ga. 245; Tuttle v. Jackson, 6 Wend. 213; Brit- ton's Appeal, 45 Pa. St. 172; Butler v. Viele, 44 Barb. 160; Underwood V. Ogden. 6 B. Mon. 606; Ayres v. Diiprey, 27 Tex. 594; s. c. 86 Am. Dec. 657; Morris v. White. 36 N. J. Eq. 324; Maxwell v. Brooks, ,54 Ind, 98; Bell V. Thomas, 2 Iowa, 381; Xeison v. Duan, 15 Ala. .501; Musgrove v. Bonser, 5 Or. 313; Morrill v. Morrill. 53 Vt. 74; Harrington v. Allen, 48 Miss. 493; Beat v. Gordon, 55 Me. 482; White v. Foster, 102 Mass. 375; Owens V. Miller, 29 Md. 141; Gilbert v. Jess, 31 Wis. 110; Tucker v. Tilton, 55 X. H. 223; and cases cited post, §217. The policy of the rule was questioned in some of the early English cases, and a disposition manifested to restrict it to cases where the no- tice was so direct and full as to render a subsequent purchase .an act of positive fraud; 2 White & Tudor's Lead. Eq. Cases (4 Am. ed.), 217-219; Wyatt V. Barwell, 19 Ves. 435; Jelland v. Stainbridge, 3 Ves. Jr. 478; Hine V. Dodd, 2 Atk. 275; Davis v. Strathmore, 16 Ves. 419; Ford v. White, 16 Beav. 123; and this is substantially the law .as itnovv exists in North Carolina, where record is essential to the conveyance of the legal title, and actual notice is given but a very limited effect. Fleming v. Burgin, 2 Ired. Eq. 584; Robinson v. Willoughby, 70 N. 0. 358; Banli V. Mfg. Co., 96 N". C. 298; S. C. 3 S. E. Repr. 363. The doctrine of actual notice is rejected in Louisiana entirely. Harang v. Plattsmier, 21 La. Ann. 416; Tulane v. Levison, 2 Id. 787: Payne v. P.avey, 29 Id. 116; Berwin v. Weiss, 2S Id. 303. In Arkansas and Ohio actual notice is unavailing to supply the wanl of record as to mortgages. Home Build. Ass'cn v. Chirk, 43 O.St. 427: Dodd V. Parker, 40 Ark. 526; Fry v. Martin, 33 Ark. 203; Bercaw v Cockerill, 20 Ohio St. 163; M.ayhew v. Combs, 14 Ohio, 428; excepting chattel mortgages; Paine v. Mason, 7 O. St. 199. 2 The states whose statutes declare that the subsequent purchasei protected against an unrecorded instrument must be without "actual' 34 Cll. 1.] HISTORY, ETC., OP REttlSTRATION. [§12. variance of terms, and, in a large measure, to a different construction by the courts as to the character of notice requisite to charge a second purchaser, there is quite a con- flict of law and decision on this matter. ^ It mio;ht, with reason, be held that "actual notice," as used in this connection, means any sand every kind of notice, direct or implied, arising from a matter of fact, as contra- distinguished from the constructive notice imparted as a legal presumption by the record. It is, however, held in several states to mean little less than actual personal knowledge, and to require a character of notice so direct and complete in its nature as that no part of it shall be implied or constructively imputed to the party charged, by reason of facts brought to his attention sufficient to have put a reasonable man upon inquiry.^ Possession, for instance, is in some states held insufficient, of itself alone, to give actual notice of title in the occupant, although it is a fact well calculated in its nature to put upon inquiry.^ In a majority of the states a much more liberal rule prevails, and any fact which ought properly to charge the conscience, and to put a prudent man upon further investigation that, if prosecuted, would lead to knowledge of an unrecorded in- strument, will charge him with notice of it.* notice, are Arkansas, Indiana, Kaasas, Maine, Tennessee, Massachu- setts, Utah, Missouri, Wisconsin and New Mexico Territory. In Ohio, the subsequpnt purchaser must be one having "no knowledge" of the former conveyance. In some states "actual" notice is required as to mortgages, though not as to deeds. Civ. Code of Cal. §§1107, 1214, 2950; Eev. Code of Dak. (1877), §1741a. ^ See, post, ch. ix, where this subject is treated in detail. ^ See cases cited above, and Jackson v. Van Valkenburgh, 8 Cow. 260; Williamson V. Brown, 15 >r. Y. 354, 357; Wilson v. McCullough, 23 Pa. St. 440; s. C. 62 Am. Dec. 347; Flagg v. Mann, 2 Sumner, 486; Dey V. Dunham, 2 Johns. 168; The G-en. Life Ins. Co. v. The U. S. Life Ins. Co., 10 Md. 517; s. c. 49 Am. Dec. 174. 5 Harral v. Laverty, 50 Conn. 46; Beal v. Gordon, 55 Me. 482; Pom- ei'oy v. Stevens, 11 Mete. 244; Mara v. Pierce, 9 Gray (75 Mass.), 306; Hari'is v. Arnold, 1 E. I. 125; Lamb v. Pierce, 113 Mass. 72. * The general rule is that possession is notice. Craig v. Cartwright, Co Tex. 414; Vaughan v. .Tracy, 22 Mo. 405; s. O. 69 Am. Dec. 471; Burt V. Cassety, 12 Ala. 734; Davis v. Hopkins, 15 111. 519; Kogers v. 35 Ch. 1.] HISTORY, ETC., OF REGIStRATION. [§13. §13. Subsequent Deed Eequircd to Ijc First of Record. The statutes of nearly one-third of the slates and terri- tories provide that an unregistered conveyance shall be void as against a subsequent piirch.i-^er in good faith "whose conveyance shall be first recorded. "^ Where the statute does not by such express terms make the rights of the subsequent purchaser depend on priority of record, such priority, or the want of it, is imma'erial; and the courts have almost uniformly held that a subsequent con- veyance for valuable consideration, taken without notice of a prior unrecorded one, prevails over such prior instrument, whether the later one be first recorded or not.^ Where, through the neglect of the first grantor 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 criteri m by which their rights should be determined. In Steele v. Spencer, 1 Pet. 552, the Supreme Court of the United States had under consideration a regis- ter act of Ohio, which declared that any deed not recorded as required by that act "shall be fraudulent as against any subsequent 6ona _7?cZe purchaser for valuable consideration, without notice of such deed" — language not substantially Jones. 8 N". H. 264; Havens v. Bliss, 26 N. J. Eq. 363, and cases cited, post, §219. 1 California, Dakota, Idabo, Maryland, Michigan, Minnesota, Mon- tana, Nebraslia. Nevada, New York, Oregon, Pennsylvania, Tennessee, Utab. Wisconsin and Wyoming. In New York, previous to the giving of preference by statute to priority of record, it was held that a bona fide pur- chaser was protected against a prior mortgage, although the mortgage was first recorded. Hawley v. Bennett, 5 Paige, 104; Jackson v. Center, 19 Johns. 281. 2 Coster's Executors v. Bank of Ga., 24 Ala. 37; Steele v. Spencer, 1 Pet. 562; Northrup v. Bremer. 8 Ohio, 392; Ranney v. Hogan, 1 Tex. Un. Gas. 253; Wheaton v. Dyer, 15 Conn. 307; DeCoureey v. Collins, 21 N. J. Eq. 357; Sanborn v. Adair, 29 N.-.J. Eq. 338; Byrd v. Wilcox, 8 Baxt. 65, 68; Coleman v. Barklew, 3 Dutch. 357; Chaffee v. Hatpin, 62 Miss. 1; Gardner v. Earley, 72 Iowa, 518; s. c. 3-1 N. W. Kepr. 311; McGuire v. Barker, 61 Ga. 339. In Fallass v. Pierce. 30 Wis. 443, the matter is ably discussed by a divided court, and while the decision in that case is controlled by the express terms of the Wisconsin statute giving priority to the order of registry, it is admitted that but for the 36 Ch. 1.] HISTORY, ETC., OF REGISTRATION. f^^'^- different on this point from the general tenor of those statutes that do not require the subsequent deed to be fiist recorded. The court in construing this statute say: "The prior deed not being recorded, the statute avoids it in terms as against all subsequent purchasers for valuable considera- tion without notice, whether their titles be recorded or not." It will be observed that this decision is based upon a construction of the terms. of the statute, which, aside from any consideration of the equities of the parties, are held to determine the question in favor of the junior pur- chaser. The Supreme Court of Alabama, in construing a statute similar to that of Ohio, thus state the same conclu- sion more fully: "This act of 1823^ makes no requirement of the subsequent mortgagee that he must record his mort- ga,ge or stand in the same predicament as the first mort- gagee with his unrecorded mortgage. The act simply declares the unregistered deed to be void against the sub- sequent mortgage, bona fide and upon valuable considera- tion, where such mortgage is contracted without notice of the prior incumbrance. The second mortgagee, in not recording his mortgage, runs the risk simply of being overridden by some subsequent mortgagee or incumbrancer, and in that case the statute would declare the nullity of his mortgage, and prefer the subsequent one, as it prefers his to the previous one. A different rule would prevail if the statutfe gave the preference to the mortgage first recorded ; but that is not so, nor does the act require the second mortgage to be registered at all, but it pronounces the second mortgage, in its execution and delivery, if exe- cuted and received in ignorance of the first mortgage, its superior."^ statute the rule could be different; and to the same effect see Gal way V. Malchow. 7 Neb. 285. 1 Clay's Dig. of Ala. 154, §18. 2 Coster's Executors v. Baak of Ga., supra; and to same effect, San- born V. Adair, 29 N. J. Eq. 338; post, §166. 37 Ch. 1.1 HISTOET, ETC., OF REGISTRATION. [§14. §14. Continued— Equity of the Matter. The Supreme Court of Texas say that, in a matter of this kind, if the statute does not expressly determine the ques- tion, the court will decide it upon the very equity of the case presented.! This equity is clearly held to be in favor of the subsequent purchaser, who by reason of the neglect of the prior purchaser, and upon the faith of a record showing no adverse conveyance or incumbrance, has parted with a valuable consideration. The tirst purchaser is in de- fault; the equities of the parties are not equal; and the case is not one where the maxim joHor in tempore, jJotior in jure applies. It is the parting with a consideration, the payment of value without notice, that gives and fixes the equity of the subsequent purchaser;^ and this cannot be afterwards taken away by the act of the party in default, in subsequently recording his prior deed.-^ .Such record comes too late to serve as notice to the junior purchaser; even actual notice, it has been held, could not then deprive him of his equities;* nor does the record of the second deed serve any purpose as notice to the first purchaser.' There are cases, however, in which the equities of the transaction are such that precedence may properly be given to him who is first on record.® These instances occur most frequently in connection with mortgages given to secure 1 Johnson V. Newman, 43 Tex. 628; Swigert v. Bank of Ky., 17 E. Mon. 268. 2 See. as svipporting the foregoing equitable principles, though not in all cases directly on this point of record priority, Boggs v. Varner, 6 Watts & S. 469, 474; Garland v. Harrison, 17 Mo. 282; Ozias v. Bromback, 117 Pa. St. 87, 93; s. c. 11 Atl. Eepr. 301 ; Neslin v. Wells, 104 U. S. 428; Williams v. Beard, 1 S. Car. 309; Ely v. Wilcox, 20 Wis. 523; s. C. 91 Am. Dec. 436; Bellas v. JlcCarty, 10 Watts, 13; Fisher v. Knox, 11 Pa. St. 622; Wheatonv. Dyer, 15 Conn. 307; Jerrard >■. Saunders, 2 Ves. Jr., 4.54. 3 Kanney v. Hogan, 1 Tex. Un. Cas. 2.53. •1 Stanhope v. Varney, 2 Eden, 81 ; Youst v. Martin, 3 Serg. & E. 423, 430; Elsey v. Lutzens, 8 Hare, 159. 6 Martin v. Williams, 27 Ga. 406; Jackson v. Post, 9 Cow 120- Van Kensaeller v. Clark. 17 W6nd. 2.5. ' 8 See Choteau v. Jones, 11 111. 300. 38 Ch. l.J HISTORY, ETC., OF REGISTTATION. [§15. antecedent indebtedness. ^ Where each of two mortffao'es. given to different parties, is to secure indebtedneiss incurred in each case before the execution of either one of them, neither one, while unrecorded, can claim a higher equity than the other; and in such case, even actual notice given to the second mortgagee before his mortgage is taken, can- not deprive him of the preference acquired under the stat- ute by a first record.^ §15. Continued— The Contrary Doctrine as to Priority of Record. There are but few, if any, decisions to be found, which, in the absence of a statute requiring it, hold that the sub- sequent deed must be first of record.^ A question may suggest itself here as to why so considerable a number of the statutes should contain a provision so clearly at vari- ance with the equity and justice of the matter to which it relates. The early English register acts were framed with the sole view of securing an early record of conveyances after they were executed. They did not declare that the record should impart notice, nor was it then contemplated that actual notice should destroy or affect the precedence given to priority in record, as afterwards held by the courts of equity. The object of the statutes at that time was sim- ply to secure a prompt record of conveyances, and in order to attain this object, it declared that they should be ad- judged void as against any subsequent purchaser or mort- gagee for valuable consideration, unless registered before the record of the conveyance to the subsequent purchaser or mortgagee.* As the record was not to impart construc- 1 Davidgon v. Cowan, LDev. Eq. 470; Muse v. Leiternian, 13 Serg. & E. 167; National Bank v. Whitney, 103 U. S. 99; Kouth v. Spencer, 38 Ind. 393; post, §§169-172. 2 Moore v. Thomas, 1 Or. 201; Bank v. Manufacturing Co., 96 N. C. 29S; s. C. 3 S. E. Kepr. 363. 8 The following cases are only seemingly to the contrary : Cabeen v. Breckinridge, 48 111. 91 ; Srebbins y. Duncan, 108 U. S. 32. ^ Act of 7th Anne, ch. 20, quoted in §1, ante; post, §166. 39 Ch. l.J HISTOEY, ETC , OF REGISTRATION. [§16. tive notice, it follows that an advantage of priority was the sole inducement that could then be held out to secure com- pliance with the law. In that stage of the law there be- longed to the bare fact of early record an importance to which, by reason of the changes that have since occurred, it is not now justly entitled. A too literal copying of the early statutes has, doubtless, occasioned that feature of the modern legislation which still renders the rights of a bona fide subsequent purchaser dependent upon priority of rec- ord; but since the equitable doctrine that actual notice shall supply the want of registration, and that the equities of the transaction shall control the bare fact of priority of record, has been universally assented to and adopted as part of the law of registration, it should have a consistent application; and bare priority of record should not domi- nate the equities of the matter in one instance, and yet be subordinated to them in another; and where, after a sub- sequent purchaser has parted with a valuable consideration, actual notice to him of a prior deed comes too late, the technical notice constructively imparted by registration should not be given a greater effect. ^ §16. Filing and Mistake in Recording— Effect as to STotice. It is the law of perhaps every state, that a deed dulj' recorded operates as notice from the time it was filed for record.^ The record, when correctly made, is properly held to relate back to the time of filing, for the reason that ' Mr. Sugden says, it is the policy of the law to encourage prompt registration by requiring that the deed shall be put upon the registry under penalty that if not found thereon, the subsequent purchaser without notice shall gain the priority by the earlier record of his deed. 2 Sug. on Vendors, 214. Where the statute is so framed as to make registry essential to title passing, and actual notice is rejected entirely, priority of record must of course control., Se.e, post, §§217, 218; Bank v. Clapp,.76 N. C. 482; Thompson v. Bullock, 1 Bay, 367. 2 Leslie v. Hinson, 83 Ala. 266; Kessler v. State, 24 Ind. 213; Horse- ley V. Garth, 2 Gratt. 471; S. C. 44 Am. Dec. 293; Brook's Appeal, 64 Pa. St. 127. 40 I Ch. l.J HISTORY, ETC., OF REGISTRATION. [§^'5. between the date of filing and that of the tianscribing, the instrument itself remains in the recorders office subject to public inspection. After the record is made, however, the original instrument is usually taken out, and to the record alone the public must look for information. Sometimes, through a mistake in copying, the record speaks a language different from the original, as, in wrongly describing the property, or stating a different amount of mortgage in- debtedness; and the question then arises whether such a record will charge a subsequent party with notice' of /the true contents of llie original. There is considerable divers- ity in the stalutoiy language bearing on this point, and aside from any difference of terms used in the various reg- istry acts, there is a direct conflict of opinion as to the cor- rect I'ule of construction in such cases. Some of the stat- utes expressly provide that a deed "shall be considered as recorded from the time it is delivered to tbe clerk for record;" in others, the language is that the deed "shall take effect and be in force as to subsequent purchasers from and after the filing of the same for record." Where the statute uses (he language quoted above, or direct terms of similar import, the courts hold, as a rule, though not with entire uniformity, that the grantee in a deed which has been filed, but erroneously transcribed in the record book, or even not recorded at all, is not affected by the error or failure to record, since the statute gives to the filing alone the full effect of notice. ^ In Mims v. Mims, ' Fouche V. Swan, 80 Ala. 153; Qase v. Hargadine, 43 Ark. 144; Glading v. Frick, 88 Pa. St. 460; Bradford v. Tupper, 30 Hun. 174; Woodward v. Boro, 16 Lea (84 Tenn.), 678; Nichols v. McKeyaolds, 1 K. I. 30; s. C. 36 Am. Deo. 238; Steam Co. v. Sears, 23 Fed. Kep. 313; Hine v. Roberts, 8 Conn. 347; Svvenson v. Bank, 9 Lea, 723; Ferris v. Smith, 24 Vt. 27; Marbury v. Madison, 1 Cranoh, 137; Man- gold v. Barlow, 61 Miss. .593; s. C. 48 Am. Eep. 84; Oats v. Walls, 28 Ark. 244; Perkins v. Strong, 22 Neb. 725; Gillespie v. Rogers, 146 Mass. 610, 612; Tracy v. Jenks, 15 Pick. 46'>; Kiser v. Heuston, 38 111. 252 ;> Merrick v. Wallace, 19 111. 486; Wood's Appeal. 82 Pa. St. 110; s. c. 13 Am. Law Reg. 255; Lee v. Birmingham, 30 Kan. 312; S. C. 1 Pac. Kepr. 73; Flowers v. Wilkes, 1 Swan, 408; Converse v. Porter, 45 N. H. 41 Ch. l.J HISTORY, ETC., OF REGISTRATION. [§16- 35 Ala. 23, the court say that the statute making a convey- ance "operative as a record''^ from the time of its delivery for record, relieves them from examining the cases cited by counsel which hold that the record imparts notice only of what it contains. In Throckmorton v. Price, 28 Tex. 605 (s. c. 91 Am. Dec. ^34), where a trust deed had been duly tiled and left with the recorder, but through oversight had not been transcribed, it was held that a subsequent purchaser was chargeab'.e with constructive notice of it, although he had vainly inquired of the recorder for instruments affecting the land; the decision being put on the ground that the statute, in declaring that a deed "shall be considered as recorded from the time it was deposited for record"^ and filed by the clerk, 3 gave the full effect of notice to the filing. Appar- ently in direct conflict with this, however, is the deci- sion in Taylor v. Harrison, 47 Tex. 454 (s. c. 26 Am. Rep. 304), a case wherein the recorder, through oversight in transcribing a deed duly filed, neglected to copy the certificate of acknowledgment; and in which it was held that the deed "was not properly recorded, and creditors and subsequent purchasers are not chargeable with notice of it by reason of such defeclive record." How a failure to copy the certificate could destroy the notice imparted by the filing, when an entire failure to record the deed would not have that effect, is not explaiaod. And in a later case the court answer an objection made because of an error in copying the deed on the record, not by saying it was un- necessary that there should he any record at all, but by holding the error to be not misleading in its character and 400; Payne v. Pavey, 29 La. Ann. 116; Freiberg v. Magale, 70 Tex. 116, 118; s. c. 7S. W. Kepr. 684. 1 Code of Ala. §1539; Code of 1886. §1793. 2 Rev. Stats., of Tex., art. 4299; Pasctial's Dig., art. 5014; O. & W. Dig., art. 1709. 3 Rev. Stats. -art. 4334; Paschal's Dig., art. 4994. 42 Ch. 1.] HISTORY, ETC., OF REGISTRATION. [§16- effect. 1 An explanation of this apparent conflict might be that in the first case the deed was still on the un- recorded file in the recorder's office, and thus itself served as a record at the time the subsequent deed was made; while in the other cases the deeds had doubtless been removed, and the grantees having chosen to take them out, or to have the notice imparted by them merged into that of the record, must be held to have elected to stand by the record as made. This is the only theory in such cases con- sistent with the policy of the registry laws, and the well established rule that a purchaser may rely upon the title as it appears of record.^ ^ Woodson V. Allen, 54 Tex. 551. The case of Crews v. Taylor, 56 Tex. 461, in which a mortgage, on file but not copied on the record, was held to impart notice, is similar in its facts in this particular, to that of Throckmorton v. Price, 28 Tex. 605; s. C. 91 Am. Dec. 33-t, and is de- cided in accordance with it. 2 Jones on Mort.. §549; Hill v. Mcmchol, 76 Me. 314; Hart v. Farm- er's Bank, 33 Vt. 252; :N"ewhall v. Burt, 7 Pick. 157; Mills v. Oomsrock, 5 Johns. Ch. 314; Columbia Bank v. Jacobs, 10 Mich. 349. IE ttie mort- gage and annexed schedule are both left with the i-ecorder, they are sufficient notice to the public while they remain unrecorded; but after the mortifage alone has been spread upou the record, that is the only record which the law recognizes. Sawyer v. Pennell, 19 Me. 167. It is the duty of the person tiling an insti-iuneat to see that the stat- utes as to its record are complied with, and the loss, if any, falls ouhim and his assignees. Barney v. McCarty, 15 Iowa. 515; s. C. 83 Am. Dec. 427; citing Bradford v. Miller, 12 Iowa, 14. He has the opportunity of preventing an error which Ihe subsequent parfy has no opportunity to detect. Succession of Falconer, 4 Eob. 7. A deed erroneously transcribed is notice only of what appears on the record, although it be left on the file. After its record, the deed it- self is no longer notice. Potter v. Dooley, 55 Vt. 512. The cases cited in note, ante, p. 41, holding that the instrument imparts notice from the time of filing, do not recognize the limitation suggested, viz: that the rule should apply only until the deed is actually recorded, and that afterwards the record should impart notice only ot what ap- pears on it; but where the filing is held to charge notice, it wouldseera that the rule is that it is immaterial how or where the instrument is re- corded; it may be recorded in a wrong book. Swenson v. Bank, 9 Lea, 723; Head v. Goodwin, 37 Me. 181; Lewis v. Klote, 39 La. Ann. 259; s. C. 1 South. Repr. 539. Priority in filing is not affected by a different priority in recording. Johnson v. Burden, 40 Vt. 567; S. C. 94 Am. Dee. 436. 43 Ch. 1. ] HISTOKY, ETC., OF REGISTRATION. [§17. §17. Continued— Imperfect Record is not Kotlce. The Supreme Court of Iowa, however, has put a different construction on language as express in its import as that just under consideration. There the provision was that a deed "shall, from the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof;" and it was held that the statute was in- tended simply to fix the time from which notice was to commence, and not to make such filing on depositing notice of the contents after the same was recorded; and that after that date, the ref. J. Eq. 311; butseeProuty V. Clark, 73 Iowa, 55 ; S. 0. 34 N. W. Kepr. 614. . « Senter v. Lambeth, 59 Tex. 259; Filley v. Duncan, 1 Neb. 134; s. 0. 93 Am. Dec. 337; Miss. Valley Co. v. Ey. Co., 58 Miss. 854. See Lissa V. Posey, 64 Miss. 352. 7 Bailey v. Tindall, 59 Tex. 530; AValton v. Hargrove, 42 Miss. 18; s. C. 97 Am. Dec. 429; Wells v. Morrow, 38 Ala. 125; Pearce v. Foreman, 29 Ark. 563; iMst, §207. 8 Xeil V. Kinney, 10 O. St. 67. The rights of dower and of home- stead held subject to the lien. Fisher v. Johnson, 5 Ind. 492; McHendry V. Eeilly, 13 Cal. 75. Ch. 1.] HISTORY, ETC., OF EEGISTRATION. [§21. ciled with each other, constitute, as to that 'state, the law of this subject. 1 §21. Record is ISTotice to All tlie World. The expression that the record is "notice to all the world," or "to all persons," occurs frequently, both in the statutes and decisions. ^ While, 'in practical application, this is far from being the case, yet the expression neverthe- less embodies the true theory and idea of registration. The limitations of the rule that the record is notice to all the world, when properly considered, can scarcely be justly regarded as such. A very small part of the world has any concern with the property to which a given record relates. The record is notice to so many as are to be affected by it, or as can be properly affected by it, without giving to it an effect that does not naturally and rightfully belong to it. The restriction of its operation is a matter of fact rather than of law. The principal limitation is that the record is notice only to those claiming, under the same grantor, or in the same line of title, and not to persons claiming under a different adverse title. ^ The record of a deed is notice that the grantor in that deed has conveyed the property, and that a subsequent conveyance by that grantor of the same property or interest would be fraudulent and un- availing. This notice can justly have no relation to an ' In favor ol this secret lien the courts violate the established rule in Texas, that a judgment lien will be protected against an unrecorded title or equity, and that notice at a sale under the judgment comes too late if the creditor was without notice when his lien attached. Grace V. Wade, 45 Tex. 528; Seiiter v. Lambeth, 59 Tex. 259; and compare Sharp V. Fly, 9 Baxt. 4; Moore v. Holcombe, 3 Leigh, 397. ^ Kev. Stats, of Tex., 4342; Thompson & Steger's Stats, of Tenn., §2073; Maul v. Rider, 59 Pa. St. 167, 171. 3 Ely V. Wilcox, 20 Wis. 530; Losey v. Simpson, 3 Stock. Ch. 246; Word V. Box, 66 Tex. .596; Maul v. Rider, .j9 Pa. St. 167; Corbinv. Sul- livan, 47 lud. 356; Gillett v. Gaffney, 3 Col. 351; Baker v. Griffin, 50 Miss. 158; Leiby v. Wolf, 10 Obio, St. 80; Iglebart v. Craae, 42 111.261; Page V. AVariQg, 76 X. Y. 463; Dolin v. Gar luer, 15 Ala. 758; Stuy- vesant v. Hall. 2 Bark. Ch. 151 ; Birney v. Main, 29 Ark. 591 ; Brown v. Simmons, 44 X. 11. 475; Patty v. I\'ase, 8 Paige, 277; s. C. 35 Am. Dec. 683; Cooper v. Bigley, 13 Mich. 463. 52 Ch. 1.] HISTORY, ETC., OF REGISTRATION. [§22. entirely distinct title which the grantor did not purport to convey, and with which he had no connection; so that the notice cannot, in the nature of things, properly affect an adverse title having a different source, for in this latter case each title is as distinct as if it related to a different property. 1 If the nature of the case is such that third par- ties can pi'operiy be affected by the record, they will be charged with notice, though not claiming in the same line of title. Thus, under the statutes of some of the states, peaceable possession of land under a recorded deed, for a specified time (in Texas five years^), gives absolute title, though the grantor in the deed may have had no title what- ever, either of record or otherwise.^ The claim in such cases is usually adverse to every other person, including the legal or true owner, and the record of the deed of the occu- pying claimant operates as notice to all the world, and is effective against every character of adverse title not asserted by suit within the prescribed period.* §22. Continued— Limitations as to Notice. There are some other limitations of this doctrine of notice to all the world, of minor importance ; a few of them having proper occasion in matters coaaeoted with a just and effective operation of the system of registration, and others of them based on technical and trifling considera- tions, having no substantial merit whatever. They will be considered in detail hereafter; an instance of the latter class 1 The doctrine of bona fide purchasers without notics does; not apply as hetween holders of adverse titles. McArthur v. Thomas, 2 Ohio, 415, 420. 2 Kev. Stats, of Tex. 3193; Lambert v. Weir, 27 Tex. 359; Tourte- lotte V. Peafce (Neb.), 42 N. W. Repr. 915. 3 Flanagan v. Boggess, 43 Tex. 335; Hunton v. Nichols, 55 Tex. 217; Wofford V. McKinna, 23 Tex. 3;;. * But one claiming only by adverse possession and operation of the statutes of limitation, has no right, under the laws Of New Mexico (Comp. Laws, 2761-2763), to dispute the title of a holder of an unrecorded deed merely because it is unrecorded. Armijo v. Armijo, 13 Pacific Eepr. 92. > , 53 Ch. 1.] HISTORY, ETC., OF REGISTRATION. [§22. will suffice for illustration here. It is held in some states, and by the greater weight of authority, though denied in others, that a purchaser cannot, by the record, be charged with constructive notice of conveyances made by his grantor before such grantor acquired his written title as disclosed by the record. ^ This proceeds on the idea that one, in searching the records, ought not to be required to look back of the point where they show the title as vesting in a given person, for conveyances from that person, as it is not to be supposed that any one has mortgaged or conveyed property prior to acquiring his recorded con- veyance, and that such a requirement would be incon- venient, as the searcher would not know how far back to look.^ As a matter of fact, it is not unusual that equi- table interests in land, resting on executory contracts of sale and bonds for title, and even on verbal contracts with possession and improvements, are enjoyed, incumbered and transferred prior to the acquisition of a deed, and prior to the record of the written evidence of such equitable title, if any exists. As a matter of law, the searcher is presumed to know that a convej'ance or incumbrance of such equitable interest is authorized and recognized by law, and that, under the rules of law, a conveyance by the party, before he had any interest at all, might afterwards become opera- tive by estoppel as soon as the title had been acquired.^ Having to search the records a little further for a name already under examination, cannot ordinarily impose a very serious hardship, and it is to be regretted that courts should in 1 Ely V. Wilcox, 20 Wis. 523; Trull v. Bigelow, 16 Mass. 418; Somes V. Brewer, 2 Pick. 484; Day v. Clark, 25 Vt. 402; The State v. Bradish, 14 Mass. 291 ; Tarmer's Loan Co. v. Maltby, 8 Paige, 361 ; Doswell v. Buchanan, 3 Leigh, 365 (23 Am. Dec. 280) ; Calder v. Chapman, 52 Pa. St. 359; 1 Jones on Mortgages, §576; Losey v. Simpson, 11 N.' J. Eq. 246. The rule is denied in Digman v. McOollum, 47 Mo. 372; Tefft v. Munson, 57 N. Y. 101; and see Crane v. Turner, 67 JST. Y. 437. 2 The State v. Bradish, 14 Mass. 291. 8 White V. Patten, 24 Pick. 324; Wark v. Willard, 13 N. H. 389; Pike V. Gavin, 29 Me. 183 ; Jarvis v. Aiken, 25 Vt. 635 ; Doyle v. Peerless Co., 44 Barb. 239; Philly v. Sanders, 11 O. St. 490; post, 161. 54 Ch. 1,J HISTORY, ETC., OF REGISTEATION. [§23. any instance suffer the benefits of registration to be frittered away by considerations of this idnd.^ §23. "Validating- Acts. Numerous acts have been passed in all the states validat- ing the defective record of conveyances. f These various statutes have served to cure almost everyj kind of defect that could occur; as want of acknowledgment, of certifi- cate, of official seal, of the requisite number of witnesses, of certificates of conformity, and of authority in the officers taking the acknowledgment or recording the instrument. These acts have almost uniformly been held a valid exercise of legislative power. ^ Some interesting questions have • arisen in their construction and application. Thus, where acknowledgment is essential to render the deed operative between the parties to it, as in case of sheriff's deeds in Missouri, and of married women's deeds where a separate examination is required, defects in the acknowledgment in such cases, unless purely formal, are held not to be healed by statutes validating imperfect records.* Nor will the legis- ' The original ground of the rule seems to have been that any coq- veyance by a party before he had acquired the legal title, was but the conveyance ol an equitable interest, and not entitled to protection against a bona fide purchaser of the legal estate — a ground no longer tenable. See Lloyd v. Lloyd, 4 D. & W. 369; and also, po.'it, §89, note 7. 2 See Stimson's Am. Stat. Law, §§1585, 1626; liev. Stats, of Tex., 4356; Kev. Code of Iowa (1873), §§1966-1968; Cooley's Const. Lim. 462, 463. 8 Bishop V. Schneider, 46 Mo. 472; s. C. 2 Am. Kep. 533; Stevens v. Hampton, 46 Mo. 404; Kaverty v. Fridge, 3 McLean, 230; G-illespie v. Eeed, 3 McLean, 377. 883; Watson v. Mercer, 8 Pet. 88; Wallace v. Moody, 26 Cal. 387; Logan v. Williams, 76 111. 175; Tate v. Stoolzfoos, leSerg. &II. 35; s. C. 16 Am. Dec. 546; Buckley v. Earley, 72 Iowa, 289; Brown v. Simpson, 4 Kan. 76; Hughes V-. Cannon, 2 Humph. 589; Barton v. IVlorris, 15 Ohio, 408. * Kyan v. Carr, 46 Mo. 483 ; Elliott v. Pearsall, 1 McLean, 11 ; contra as to sheriff's deeds in Indiana; Doe v. Ifaylor, 2 Blackf. 32. Such acts held not to validate tax deeds in Iowa, Goodykootz v. Olsen, 54 Iowa, 174; and cannot impair vested rights; Brioton v. Seevers, 12 Iowa, 389; Carpenter V. Dexter, 8 Wall, 513; Logan v. Williams, 76 111. 175; nor cure defects in wife's acknowledgment; Alabama Ins. Co. v. Boykin, 38 Ala. 510; nor affect rights of third parties, Green v. Drinker, 7 Watts & S. 440; Gatewood v. Hart, 58 Mo. 261. See, post, §94. 55 Ch. 1.] HISTOET, ETC., OF KEGISTEATION. [§23. lative adoption of a given form of acknowledgment render valid one theretofore taken, though in the exact form after- wards adopted.! These validating acts strikingly illustrate the fact that registration is entirely and in every part the creature of the statute ; even its rules of construction and judicially engrafted principles being equally subject to legis- lative control.2 They also demonstrate that the numerous . preliminaries of record, the vexatious requirements and details as to acknowledgments and certificates thereof, are of no inherent value or substantial importance; since, if it can be properly declared, after a record has been made in a certain way, that it shall be sufficient, it could not be seriouslj' amiss to have previously authorized the form and method thus adopted. It may be further observed that im- provements in the registry laws are also of purely legisla- tive origin, and rarely seem to come from any suggestions of the courts that they are needed, or from any judicial criticism of the existing law as being unwise or impolitic. The statutes not infrequently give undue importance to to minor matters, but whatever magnitude they may ascribe to a given particular, the courts usually declare it to be at least that large, if not somewhat larger, and are content to enforce whatever policy may be indicated by the statute, doubtless from the consideration that the legislative de- partment is the exclusive source of the law on this sub- ject.* 1 Texas Land Co. v. Williams, 51 Tex. 51. 2 The legislature may postpone an elder grantee to a younger, if the prior deed be not recorded within the time limited, and this whether such deed be dated before or after the act. Jaclison v. Lamphire, 3 Pet. 280. The provision of the Constitution of Louisiana (1868), requiring existing tacit mortgages and privileges to be recorded, under penalty of ceasing to have effect as against third persons, does not impair the obli- gation of contracts. Vance v. Vance, 108 U. S. 514. 8 The courts at an early day engrafted on the law the doctrine that actual notice supplies registration; ante, §1 ; but judicial improvement of the law seems to have almost ceased with this effort. 56 Ch. 2. J INSTRUMENTS ENTITLED TO RECOED. [§24. CHAPTEK 2. OF THE INSTRUMENTS ENTITLED TO RECOED. P4. Object of this chapter. 25. Patents. 26. Deeds. 27. Quit-claims. 28. Leases. 29. Powers ol attorney. 30. Mortgages. 31. Continued. 32. Defeasances. 33. Assignments. 34. Releases and satisfaction of mortgages. 35. Trust deeds. 36. Equitable titles. 37. Executory contracts. , 38. Bonds for title. 39. Equitable mortgages. 40. Conveyances of personal property. 41. Chattel mortgages. 42. Abstracts of judgments. 43. Notices of lis pendens. 44. Attachment and execution liens. 45. Mechanic's liens. 46. Mechanic's liens — continued. 47. Continued. 48. Jliseellaneous matters. 49. I own plats. 50. Record of wills. 51. Continued. §24. Design of this Chapter. The scope of the registry system, as already stated, has been greatly extended, until it now usually embraces all instruments relating to real property, and in many of the states a considerable part of those affecting per- sonal property, especially conditional sales and chattel mortgages thereof. It will be advisable here to take a 57 Ch. 2.] INSTRUMENTS ENTITLED TO KECOED. [§24. general view of the instruments entitled to record, and to notice such distinguishing features and peculiarities of each as do not, so far as the registry laws are concerned, pertain to them in common. Some important statutory features and distinctions can be better presented here than elsewhere, and it is believed that by this course a general idea of the subject of registration will be attained tsuch as will prove advantageous in its further consider- ation. The instruments entitled to record may be classed generally, and for the purposes of this chapter, into conveyances of the legal title, conveyances of equitable title, conveyances affecting personal property, and special statutory instruments. In many of the states mortgages are still held to convey the legal estate, as at common law,^ although in a majority of them the rule now obtains that they convey only an equitable title. Formerly this constituted an important distinction, but since the regis- try laws have been nearly everywhere extended to em- brace equitable as well as legal titles, it now makes but little difference, in this connection, whether mortgages be considered as conveying the one or the other kind of ti- tle. Those equitable interests that now present an excep- tional feature in the law of registration are not such as 1 The states in which a mortgage conveys the legal title are: Ala- bama, Arkansas, Connecticut, Illinois, Maryland, Massachusetts, New Hampshire, Maine, New Jersey, North Carolina, Ohio, Pennsylvania, Khode Island, Tennessee, Vermont, Virginia and West Virginia. Cahoon V. Miers, 67 Md. 573; s. c. 11 Atl. Repr. 278; Darling v. Wilson, 60N.H. 59 ; Grandin v. Hunt, 80 Ala. 116 ; Morgan v. Way, 16 Ohio, 469 ; 1 Jones on Mort. §§17-19. As a general rule, a chattel mortgage conveys the legal title. Hill v. Merrimau, 72 Wis. 483; Jackson v. Cunningham, 28 Mo. App. 3,54- Ta- bor v. Hamlin, 97 Mass. 489; s. c. 93 Am. D.ec. 113; Lacey v. Gibony, 36 Mo. 320; S. C. 88 Am. Dec. 14,5; Taunahill v. Tiittle, 3 Mich. 104; s! C. 61 Am. Dec. 480; Bryant v. Carsen, 3 Nev. 313; s. c. 93 Am. o'eo! 403 ; Kellogg v. Olson, 34 Minn. 103 ; s. c. 24 N. W. Repr. 364. In stales other than those mentioned, a mortgage of real estate does not convey the legal title. Miller v. Shotwell, 38 La. Ann. 890; Barney V. H. B. Ins. Co., 110 N. Y. 1; Jones v. Jenkins, 83 Ky. 391 • Fuller v O'Neal, 69 Tex. 349; s. c. 5 Am. St. Rep. 59; 6 S. W. Repr. 181. 58 Ch. 2. ] INSTRUMENTS ENTITLED TO KECORD. [§§25,26. pertain to the ordinary form of mortgages and deeds of trust.^ §25. Patents. A patent from tlie government is usually, in this coun- try, the first instrument in the chain of title. Patents being in themselves instruments of a public nature, and a matter of record in the office from which they are issued, it is held, unless the terms of the statute are to the contrary, that they are not embraced among the con- veyances required to be recorded in the county where the land lies.^' The original record in the general land office from which they are issued is notice to the world of their existence.^ Their registration in the county where the land is situate is usually permissible, and as it helps to ren- der the local record complete, is advisable, though usu- ally not absolutely necessary.* §26. Deeds. A warranty deed is the usual form of conveyance of title to real estate, and in relation to this form there is little that needs to be said in this connection. By stat- ute in several of the states, an acknowledgment is made 1 See, ante, §§19, 20. 2 Curtis V. Hunting, 6 Iowa, 536 ; Moran v. Palmer, 13 Mich. 367 ; Bernstine V. Smith, 10 Kan. 60; Warvelle on Abstracts, 129; Franklin V. Kesler, 2S Tex. 13S; Coles v. Berryhill, 37 Minn. 58; s. c. 33 N. W. Kepr. 213. Wtiere patent issued to an assignee, a subsequent purchaser was protected, though the transfer of the certificate proved a forgery. Austin V. Dean, 40 Mich. 386. 3 Evitts V. Roth, 61 Tex. SI; Stevens v. Geiser, 71 Tex. 140. ' Kev. Stats, of Tex. 4329 ; Eev Stats, of Wis. (1878) , §2235 ; Laws of New York (1845), p. 110; Gen. Stats., of Oregon (1872), ch. 6, §37; Kev. Stats, of Mo. (1879), §3826; Dassler's Coiup. Laws of Kan., ch. 76, §1. Their registration may be held compulsory under some of the statutes. Eev. Stats, of Ohio (18S0), §4115; Eev. Stats, of Ind. (1881), §470; Hit- tell's Cal. Codes (1876), §6160; Civ. Code of Dak. §647; Comp. Laws of Utah (1876), §619. So held in Coles v. Berryhill, 33 N. W. Eepr. 213; s. c. 37 Minn. 58. The delivery of a patent is not essential. U. S. v. Schurz, 102 U. S. 378. 59 Cb. 2.] INSTRUMENTS ENTITLED TO RECORD. [§-'- an essential jDart of the execution of deeds by sheriffs and others acting under judicial process, and without it, no title passes by the deed. Where this is the case, it is held that a subsequent act of the legislature validating imperfect acknowledgments and records, does not cure defective acknowledgment of a deed of this kind.i Wher- ever creditors are not specifically meniioned by the terms of the statute as within the protection of the recording acts, it is usually held that an execution deed will not convey title as against an unrecorded 6oJia _7fcZe deed from the debtor. 2 This matter, as to which neither the stat- utes nor the decisions are uniform, is fully treated in a subsequent chapter, and has been already briefly alluded to in considering the rights of creditors under the record- ing laws.^ §27. Quit-claim Deeds. It is held by a number of the courts that a grantee under a quit-claim deed is not a bona fide purchaser without notice; that the grantor does not therebj^ affirm the possession of any title, and the grantee takes subject to all equities good against his vendor; and the registry of such a deed does not, therefore, prevail against a prior unrecorded deed from the grantor.* This doctrine is, 1 Ryan v. Carr, 40 Mo. 483; Curtis v. Millard. 14 Iowa, 128; Spoor v. Phillips, 27 Ala. 193. 2 Finch V. Winohelsea, 1 P. Wms. 277; Cover v. Black, 1 Pa. St. 493; Heistner v. Fortner. 2 Binn. 40; s. C. 4 Am. Dec. 417; Plant v. Smytbe, 45 Cal. 161 ; Hackett v. Callender, 32 Vt. 97 ; 1 Devlin on Deeds, §634. 3 tiee §10, ante, and ch. 8, post, §§195-214. * Johnston V. Williams, 37 Kan. 179; s. C. 1 Am. St. Kep. 243; 14 Pac. Repr. 537; Dickerson v. Colgrove, 100 U S. 578; Brown v. Jack- son. 3 Wheat. 449; May v. Le Claire, 11 Wall. 217; Thorn v. Newsom, 04 Tex. 161; s. c. 53 Am. Rep. 747; Snow v. Lake, 20 Fla. 656; S. O. 51 Am. Rep. 625; Lumber Co. v. Hancock, 70 Tex. 312; Bragg v. Paulk, 42 Me. 502; Leland v. Isenbeck, 1 Idaho, 469; Fleetwood v. Brown, 109 Ind. 571; S. C. 11 N. E. Repr. 779; Smith v. The Bank. 21 Al.a. 24; Ray- mond V. Morrison, 59 Iowa, 371; De Veaux v. Fosbender, 57 Mich. 579; Judge Cooley dissenting; post, §183. To the rule that a quit-claim conveys only the interest of the grantor at the time, there are two exceptions : one, founded on the recording 60 Cli. 2. J INSTRUMENTS ENTITLED TO EECORD. [§27. however, squarely denied in other states, the courts of which hold that as a quit-claim is sufficient to pass the full legal title, the form of the conveyance is immaterial, and that there is no just reason why a purchaser by quit-claim is not entitled to the protection of the registry laws.i A statute of Minnesota declared that a deed of quit-claim should be sufficient to pass all the interest which the grantor could lawfully convey by deed of bar- gain and sale. The courts of that state held that as the grantor could not legally convey what he had already sold to another, this statute would not change the rule that the grantee in such a deed was a purchaser with notice, and not protected by the recording acts.^ It is to be noticed that even where the rule obtains that a quit- claim purchaser is a purchaser with notice, the rule is limited to quit-claim deeds in the strict sense of that species of conveyances, and where the legal import is a quit-claim or deed of release of all one's right, title and interest, which is not intended and does not purport to convey an absolute right to land, as contradistinguished from a conveyance of the title or chance of title which the grantor may be supposed to have. If from the terms of the deed, the adequacy of the price paid; or other circumstances, it ai)pears that the grantor intended to convey, and the grantee expected to be invested with, a acts, Allison V. Thomas, 72 Cal. 562; s. 0. 1 Am. St. Rep. 89; U Pac. Kepr. 309 ; and the other has been recognized in reference to sales made under execution, Id. Roberts v. Bourne, 23 Me. 165; s. C. 39 Am. Dec. 614; Ingalls v. Newhall, 139 Mass. 268. i Cutler V. James, 6-tWis. 173; s. C. 54 Am.Kep. 603; '24 N. W. Eepr. 874; Fox v. Hall, 74 Mo. ^15; s. C. 41 Am. Rep. 316; Craig v. Zimmer- man, 87 Mo. 475; s. C. 56 Am. Rep. 466; Chapman v. Sims, 53 Miss. 163; Brown v. Banner, 97 114. 214; s. c. 37 Am. Rep. 105; Graff v. Middleton, 43 Cal. 341; Pastel v. Palmer, 71 Iowa, 157; S. 0. 32 N. W. Kepr. 257. See post, §183. 2 Martin v. Brown, 4 Minn. 282. See, under present statute, Strong V. Lynn (Minn.), 37 N. W. Repr. 448. 61 Ch. 2.] INSTRUMENTS ENTITLED TO RECORD. [§28. fee simple title or other particular estate, the purchaser will be entitled to protection.^ §28. Le^es. A lessee of real estate for a term of years is fully en- titled to the protection of the recording acts.^ Such leases are usually mentioned specifically in the statutes, the minimum statutory term varying from one to five years.s So the recording acts apply to mortgages of such leasehold estates as well as to mortgages of freehold es- tates.* Leasehold interests, and conveyances and mort- gages thereof, are not only within the terms, but also within the spirit and intent, of the recording acts, inasmuch as they are equally within the mischief they are intended to remedy; nor do such mortgages come unde'r the provi- sions relating to the recording of mortgages of personal property, as these latter have reference only to chattels personal.^ Actual notice will supply the want of registry of a lease as of a deed;^ and possession under the lease 1 Taylor V. Harrison, 47 Tex. 454; Harrison v. Boring, 44 Tex. 2.55; Comstock V. Smith, 13 Piclv. 116; Van Renssellaer v. Kearney, 11 How. 322; Sweet v. Green, 1 Paige Ch. 473; Flagg v. Mann, 2 Sumn. 426, 561. 2 Kecord v. Williams, 7 Wheat. 69; Bissell v. Nooney, 33 Conn. 4U; Jackson v. Dennison, 4 Wend. 558; Spielman v. Kliest, 36 N. J. Eq. 199; McCamant v. Patterson, 39 Mo. 100; Ludlow v. Kidd, 3 O. St. 541, 550. As to the effect and extent of notice from the record, see Libby v. Sta- ples, 39 Me. 166; Everman v. Kobb, 52 Jliss. 653. ' In a majori^ of the statutes, leases are specifically mentioned. See Stimson's Am. Stat. Law, §1624. * Decker V. Clarke, 26 N. J. Eq. 163; Paine v. Mason, 7 O. St. 198; Berry v. Mutual Life Ins. Co., 2 Johns. Ch. 603; Breese v. Bangs, 2 E. D. Smith, 474. See Williams v. Downing, 18 Pa. St. 60. " Decker v. Clarke, supra; Jones on Mortg., §471. It will be understood that the general rules stated in this section are subject to a number of exceptions, based upon particular statutes. Thus, in New Jersey, while the lessee who records his lease is given the full benefit of the registry system, yet it is held* that the act as to the registry of leases (Rev. Stats., p. 187, §19), is permissive only, and in- tended solely for the benefit of the lessee, whose rights remain as at common law, if he does not choose to avail himself of the privilege of registry. Hutchinson v. Bramhall, 15 Stew. Eq. (42 IST. J. Eq.), 372, reversing s. C. 40 IST. J. Eq. 83. 1= Weaver v. Coumbe, 15 Neb. 167 ; Latch v. Bright, 16 Grant's Ch. 613; Anderson v. Harris, 1 Bailey, 315; Corliss v. Corliss, 8 Vt. 475; Whittemore v. Smith, 50 Conn. 376. 62 Ch. 2.j INSTRUMENTS ENTITLED TO RECORD. [§29. is usually sufficient notice ;i but if the statute in terms requires actual notice, the mere constructive notice aris- ing from the lessee's possession has been held not suf- ficient.^ §29, Powers of Attorney. The record of a power of attorney, when the statute does not require it to be recorded, does not amount to constructive notice, as the law does not intend that to be known for the existence of which there is no legal ne- cessity.^ The record of a power of attorney is not es- 1 Beebe v. Coleman, 8 Paige. 392; Sheets v. Allen, 89 Pa. St. 47. See FeiTy V. Pfeiffer, 18 Wis. 510; Ala. Ins. Co. v. Oliver, 78 Ala. 158; Smith V. Simmons, 1 Root, 318. 2 Wilhelm v. Mertz, 4 Greene, 54; City Council v. Page, Spear's Eq. 159, 212; Lamb v. Pierce, 113 Mass. 72. See Brophy Co. v. B. & D. Co., 15 Nev. 101. If a statute prescribes that a lease for more than seven years shall not be valid unless recorded, an unrecorded one for ninety-nine years is not good for seven. Brohawn v. Van Xess, 1 Cr;mch C. Ct. 3fi6; Clif t v. Stockdon, 4Litt. 215. See Chapman v. Gray, 15 Mass. 439; Thomas v. Nelson, 69 N. Y. 118. The recording or non-recording of a lease only affects subsequent rights of parties claiming under or against a landlord without actual notice, and not its validity as between the parties thereto. 1 Taylor on Land. & Ten. (8th ed.), §171; Stearns v. Morse, 47 N. H. 572; Wood's L. & Ten. §222; Barnum v. Landon, 25 Conn. 137, 149; Baldwin v. Walker, 21 Conn. 168; Enos v. Cook, 65 Cal. 175; Brown v. Matthews, 3 La. Ann. 198; Galpin v. Abbott, 6 Mich. 17; Bridgman v. Wells, 13 Ohio, 43; Anderson v. Harris. 1 Bail. 315; Lake v. Campbell, 18 111. 106. But see Anderson v. Critcher, 11 Gill & J. 450; Polk v. Reynolds, 31 Md. 106. An unrecorded lease, accompanied by the lessee's possession, has been held to be valid in respect to a covenanted renewal of the lease, as between the lessee and a mortgagor of the lessor. Latch v. Bright, 16 Grant's Ch. 653. See Kingston Building Ass'n v. Kainsford, 10 U. C. Q. B. 236; Williams v. Downing, 18 Pa. St. 60. A deposit of the lease for record, and the clerk's indorsement thereon, is sufficient, although it be not, in fact, recorded in the proper book. Lewis V. Klotz, 39 La. Ann. 259; s. C. 1 South. Kepr. 539. As to record- ing an assignment of a lease, see Martindale v. Price, 14 Ind. 115. See, also, James v. Morey, 2 Cow. 246 ; Washburn v. Burnham, 63 IST. Y. 132; Booth V. Kehoe, 71 N. Y. 341. ' s Williams v. Burbeck, Hoff. (iST. Y.), 359; 1 Jones on Mortg. §547; James v. Morey, 2 Cow. 296; Benzein v. Lenoir, 1 Mur. (N. C), 194. 63 Ch. 2.] INSTRUMENTS ENTITLED TO RECORD. [§29. sential to the validity of a deed made by virtue of it;i nor, in the absence of a statute requiring it, is the rec- ord of the power necessary to render the record of such deed operative as noUce.^ So, also, in the absence of a statute, registry is not essential to the validity of a rev- ocation of a recorded power of attorney, and a deed made by virtue of a power which has been revoked, is valid, unless the grantee had notice, actual or constructive, of the revocation.3 From these considerations the necessity of legislative provision for the registry of powers of at- torney is apparent. They are now usually mentioned among the instruments authorized to be recorded, and in order to bring the matter more completely within the policy and protection of the law there are, in a number of the states, statutory provisions to the effect that a deed executed by virtue of a power of attorney shall not be valid, or that the record of it shall be of no effect, until the power shall be recorded,* and that no revoca- tion of a recorded power of attorney shall be effectual against third parties until such revocation is also re- corded where the power is of record. ^ When the stat- ute requires the power of attorney to be recorded, if this be not done, the record of a deed made by virtue of it will not operate as constructive notice.® Several of the 1 Anderson v. Dugas, 29 Ga. 440; Wofford v. MoKinna, 23 Tex. 46; s. C. 76 Am. Dec. 53. If required to be recorded with the deed, the power may be recorded before the deed made under it. Rosenthal v. Kuflin, 60 Md. 324. An unrecorded power of attorney held not admissi- ble in evidence. Watson v. Mercer, 27 Tex. 637. 2 Wilson V. Troup, 2 Cow. 19,5; Valentine v. Piper, 22 Pioli. 86; s. C. 33 Am. Deo. 715. 3 Hancock v. Byrne, 2 Dana, 40; 2 Kent's Corns. 644; Wiele v. XJ. S., 7 Ct. 01. 539. ■> Stimsou's Am. Stat. Law, §§1654, 1670; Hughes v. Wilkinson, 37 ]\nss. 4S2; Eager v. Spect. 52 Cal. 579; Lowry v. Harris, 12 Minn. 255; Herndon V. Bascom, 8 Dana, 113; Rev. Stats, of Ohio, 4132; Hagerman V. Sutton, (81 Mo. 519; s. C. 4 S. W. Repr. 73. * Special provision .as to recording a revocation of a power of attor- ney is to be found in the statutes of twenty-one states. See Stimson's Am. Stat. Law. §1673; Rev. Stat, of 0. 4109. « Graves v. Ward, 2 Duv. 301; Carnall v. Duval, 22 Ark. 136; Lowry v. Harris, 12 Minn. 255. 64 Ch. 2.] IKSXKUMENTS ENTITLED TO RECOKD. [§30. statutes provide that the acknowledgment of a deed made by an attorney under a power shall state that he sub- scribed both the name of his principal and his own name as attorney in fact.^ It is the common practice for an acknowledgment by an attorney, in states where no stat- ute requires it, to be in this form, or at least to declare that the attorney executed the instrument "in the ca- pacity therein set forth. "^ §30. Mortgages. The law of registration applies to mortgages as it does to deeds, except where the statute makes a difference, or the nature of the matter necessarily demands it.^ The temporary nature of the interests they convey, how- ever, and the necessity of provision for their transfer and release by record, together with their frequent use for commercial purposes, and the changes of the law as to the character of the mortgagee's estate, have induced much statutory legislation with reference to their regis- try, and many perplexing questions have arisen thereon. To prevent fraud and collusion in their use for the pur- pose of covering up property from creditors, it is required in a few instances that they shall be accompanied by an affidavit of the mortgagee to the effect that the consid- eration in -the mortgage is true and bona fide as therein set forth.* And in those states wherein time is given 1 Hittell's Cal. Codes, §6192; Civ. Code of Dak. §666; Flanagan v. Brown, 70 Cal. 254. 2 See.posf, §59. = 1 HlUiard on Mortgages, 711; Steflfian v. Bank, 69 Tex. 515; Seevera T. Delashmut, 11 Iowa, 174; s. O. 77 Am. Dec. 179; Johnson v. Stagg, 2 Johns. 510; Shannon v. Hall, 72 111. 354; Hickman v. Perrin, 6 Cald. (Tenn.), 135; Cook v. Parham, 63 Ala. 476; Van Aken v. Gleason, 34 Mich. 477; Salter v. Baker, 54 Cal. 140; Whelan v. McCreary, 64 Ala. 319; Chapman v. Miller, 130 Mass. 289. * Milholland v. Tiffany, 64 Md. 455; s. C. 2 Cent. Bepr. 632. Such an affidavit is required in Delaware, Maryland, Ohio, N"ew Hampshire, Vermont, California, Arizona and Idaho. In a few of them it is re- quired only as to chattel mortgages. See Jones on Chat. Morts., §§36, 37; post, §271. ■ (5— Keg. of Title.) 65 Ch. 2.] INSTRUMENTS ENTITLED TO KECOED. [§31- within which conveyances may be vecorcled with right of priority, a less time, if any at all, is usually allowed as to mortgages. In the absence of any statute affecting the matter, mortsa^es are, as between the parties there- to and as to third parties with notice thereof, good and effectual, and, of course, create a lien, without registry; but in a few of the states registration is made essential to the existence of the lien.^ §31. Mortgages, continued. A mortgage is an incumbrance to secure a debt, and the extent of the incumbrance is, of course, dependent on the amount of the debt; so that it is a matter materi- ally aifecting the rights of subsequent incumbrancers and purchasers of the property that the record shall distinctly and correctly show the amount of the mortgage indebt- edness. In a few cases the record of mortgages has been held to great strictness in this particular, but the tendency of the decisions is to hold that where the in- debtedness is so stated or made to appear that it can be ascertained or made certain by estimate, reasonable in- quiry, or reference to other records, it is sufficient.* Where, through mistake in transcribing, the record fails to show the proper and full amount of the debt, it is held in some states to be notice of a lien for only the amount mentioned in the record;^ and in other states, by virtue of the statutes as to tiling, the record is held to be notice of the full amount stated in the mortgage.''^ Several mortgages executed at the same time on the same 1 Dodd V. Parker, 40 Ark. 536. 540; Stansell v. Koberts, 13 Ohio, 148 Mayham v. Coombs, 14 O. 428; Taylor v. Doe, 13 How. 287; Kobinsoa V. Willoughby, 70 N. 0. 358; Fleming v. Burgen, 2 Ii-ed. Eq. 584 Wriglit V. Graham, 42 Ark. 141. 2 Youngs V. Wilson, 27 N. Y. 351; Lash v. Edgerton, 13 Minn. 210 Dean v. De Lezardi, 24 Miss. 424; Hinchraan v. Town, 10 Mich. 508. 3 Frost V. Beekman, 1 Johns. Ch. 2SS, and cases cited in notes to §17, ante. * Mims V. Mims, 35 Ala. 23 ; Bryden v. Campbell, 40 Md. 331, and cases cited in §§17 and 18, ante. 66 Ch. 2.j INSTRUMENTS ENTITLED TO RECORD. [§31. property, as to secure purchase money, are concurrent liens, whether in the hands of the mortgagee or his as- signees, and the record of one before the other is of no effect.^ Priority of mortgages is in some instances de- termined by priority of record, even in those states whose statutes do not determine precedence by the order of record.^ Aside from this statutory rule, priority may be determined by contract or understanding of the parties, by actual notice, and a variety of equitable consider- ations.^ Many of the statutes provide that mortgages shall be recorded in books liept separate from those for other instruments, and where this is the case, the record of a mortgage proper in the book for deeds is ineffect- ual, and this has been held in a number of instances even where the mortgage was in the form of a deed ab- solute, the condition of defeasance being in parol.* The current of authority and the better reason, however, sup- port the view that the record of the absolute instrument in the book of deeds sufficiently protects the rights of the grantee therein, although he be in fact only a mortgagee.^ 1 Gansen v. Tomlinson, 23 N". J. Eq. 405; Vredenburg v. Burnett, 31 N'. J. Eq. 229; Douglass v. Peele, Ciarke (N. Y.), 563; Stafford v. Van Renss.elaer, 9 Cow. 310; 1 Jones on Mortgages, §566; Howard v. Chase, 104 Mass. 249; Greene v. Waruick, 64 N. Y. 220. 2 Ante, §§13-13; post, §§165-168. As to priority by statute, see Moore V. Thomas, 1 Or. 201; Dungan v. Am. Life Ins. Co., 52 Pa. St. 253; Den V. Koberts, 4 N. J. L. 315; Mayham v. Coombs, 14 0. St. 110; Nat'l Bank v. Whitney, 103 U. S. 99 ; Burns v. Berry, 42 Mich. 176. 2 Howard V. Chase, 104 Mass. 249; Hendrickson's Appeal, 24 Pa. St. 363; Jones v. Phelps, 2 Bark. Ch. 440; Van Aken v. Gleason, 34 Mich. 477; Pomeroy v. Latting, 15 Gray, 435; Rhodes v. Canflield, 8 Paige, 545; 1 Jones on Mort. §§566-7. * Calder v. Chapman, 52 Pa. St. 359; McLanahan v. Keeside, 9 Watts, 508; s. 0.36 Am. Dec. 136; Friedley v. Hamilton, 17 Serg. & R. 70, Judge Tod dissenting; CordevioUe v. Dawson, 26 La,. Ann. 534; Fisher V. Tunnard, 25 Id. 179; Brown v. Dean, 3 Wend. 218; Grimstone v. Carter, 3 Paige, 421; s. C. 24 Am. Dec. 230; Dey v. Dunham, 2 Johns. Ch. 182; Warner v. Wiiislow. 1 Sand. Ch. 430; Ives v. Stone, 51 Conn. 446; Gully V. May, 84 N. c. 434. 440; Purdy v. Huntington, 42 N. Y. 343; s. 0. 1 Am. St. Rep. 532; Show v. Wiltshire, 65 Me. 485; Gregory V. Perkins, 4 Dev. 53. 5 Haseltine v. Espy, 13 Or. 301; Mobile Bank v. Tishamingo, 62 Miss. 250; Seymour v. Darrow, 31 Vt. 122; demons v. Elder, 9 Iowa, 273; 67 Ch. 2. J INSTRUMENTS ENTITLED TO EECORD. [§^2. §32. Defeasances. Frequently, where the mortgage consists of a deed ab- solute, with a separate defeasance, written or verbal, the question has arisen as to the effect of recording the deed alone, without any record of the defeasance; and it has been held in as many as five states^ that the record in such case is ineffectual for any purpose.^ The New York cases to this effect are based on the express terms of the statute of that state ; but the others are rested largely on the reason of the matter; it being contended that such a record is not notice of a deed, because the in- strument is not in reality a deed, nor is it notice of a mortgage, because the record does not show a mortgage. The current of authority, however, is that as a purchaser may rely upon the title as he finds it of record, the rights of the mortgagee in such case are fully protected, with- out a record of the defeasance.^ The record of the deed being notice of even a greater interest than the mort- gagee has, sufficiently protects him; and should the mort- gagor fail to record the defeasance, he is the one who must suffer the consequences, should any ensue.* An Grellett v. Heilshorn, 4 Nev. 526; Harrison v. Phillips, 12 Mass. 45G; DeWolf V. Strader, 26 111. 231; Young v. Thompson, 2 Kan. 83; Kem- per v. Campbell, 44 0. ISt. 210; Benton v. JSTicholl, 24 Minn. 221. See, post, §132, where this subject is more fully presented. In Smith v. Smith, 13 O. St. 532, the statute requiring mortgages and absolute conveyances to be recorded in separate books, was held to be merely directory, and not to vitiate the record if not made as directed. See, also, as to considerations determining the proper place of record, Beals v. Hale, 4 How. 37. 1 Pennsylvania, New York, Connecticut, North Carolina and Louisiana. 2 Hendrickson's Appeal, 24 Pa. St. 863; Luch's Appeal, U Id. 519; James v. Morey, 2 Cow. 246; s. C 14 Am. Dec. 475; Jaques v. Weeks, 7 Watts, 261; Edwards v. Trumbull, 50 Pa. St. 509; Jackson v. Van Val- kenburg, 8 Cow. 260 ; Holcombe v. Kay, 1 Ired. L. 340, and cases cited in the last note but one of the preceding section. 5 The cases are cited in the last note to the preceding section. * Cogan V. Cook, 22 Minn. 137 ; Bailey v. Myrick, 50 ile. 171 ; Tufts V. Tapley, 129 Mass. 380; Stoddard v. Rattan, 5 Bosw. 378; Fielder v. Darrin, 59 Barb. 651; Digby v. Jones, 67 Mo. 104; Pico v. Gallardo, 52 Cal. 206; Newberry v. Bulkley, 5 Day, 384; Columbia Bank v. Jacobs, 10 Mich. 349; s. c. 81 Am. Dec. 792. 68 Ch. 2. J INSTRUMENTS ENTITLED TO KECOED. [§33. objection to the prevailing rule, and the one most strongly insisted on in the North Carolina and Connecticut cases, is that it enables the mortgagor to collusively cover up his interest in the property, and also enables the mort- gagee to obtain credit on the strength of an apparent title that does not really exist. ^ To prevent such an ef- fect of the record, it has been enacted by statute in a number of the states that the mortgagee shall derive no benefit from the record of the deed, unless the defeas- ance is also recorded.^ In other states there is statutory provision that as to third parties the absolute conveyance is not defeated or affected, unless the defeasance is re- corded;^ although this would be the general rule without any statute to that effect. In at least one state it is required that the condition of defeasance must be embodied in the instrument of conveyance itself.* These statutes are of salutary effect, whether intended to protect the rights and interests of parties dealing either with the mortgagor or with the mortgagee. §33. Assignments of Mortgages. It has been held that the record of an assignment of a mortgage was not notice, unless expressly authorized by statute. 5 The contrary has also been held;^ but the 1 See, post, §§136-138; Ives v. Stone, 51 Conn. 44-6. 2 Kev. Code of Del. 1874, p. 504; Kev. Code of Md. 1878, art. 66, §42; Owens V. Miller, 29 Md. 144; Comp. Stats, of Neb. 1881, p. 390; 2 Kev. Stats, of N. Y. 1875, p. 1138; Kev. Stats, of JST. J., Mortgages, §21; 1 Jones on Mortg. §548. Since the act of 1881, a written defeasance signed by the grantee, but unacknowledged and unrecorded, though contemporaneous with the execution of the deed absolute, is not admissible in evidence to show it a mortgage, and actual notice of it is of no avail. Sankey v. Hawley, 118 Pa. St. 30, and ee Pancake v. Cauffman, 114 Id. 13. 8 Kev. Code of Dak. 1877, §1641 ; Civ. Code of Cal. §§2950, 2952; Code of Ala. §2168 ; Kev. Stats, of Wis. §2243 ; Rev. Stats, of Ind. §2932 ; and Statutes of Mass., Maine, Penn., Mich., Kan., Oregon and Wyoming. Jones V. Hudson, 23 S. Car. 494. * Gen. Laws of N. H. 1878, ch. 136. §2. « Gordon v. Rixley, 76 Va. 694, 701; Watson v. Dundee, 12 Or. 474; Oregon Trust Co. v. Shaw, 5 Saw. 336; Dixon v. Hunter, 57 Ind. 278; Reeves v. Hayes, 95 Ind. 521. « Pepper's Appeal, 77 Pa. St. 373; post, §§174, 209. 69 Ch. 2. J INSTRUMENTS ENTITLED TO RECORD. [§33. question is now settled by statute in a large number of the states. 1 The assignee is usually regarded as a pur- chaser entitled to the protection of the recording acts against a prior unrecorded mortgage of which his as- signor had actual notice, but of which he had none.^ Unless the assignment is recoiled, it is invalid against a subsequent purchase, without notice, of the mortgage from^ the mortgagee,^ but its record is not necessary as against a purchaser of the property from the mortgagor.* As aoainst such latter purchaser, the record of the mort- gage itself is notice, and a failure to record the assign- ment does not blot out the record of the mortgage.^ The record of an assignment is not notice of it to the mort- gagor, so as to invalidate payments subsequently made by him to the mortgagee.^ This rule is declared by 1 See Eev. Stats ol Ind. 18S1, §1093; Hittell's Cal. Codes, §7934; Civ. Code of Dak. §1735; Eev. Stats, of Tex. §4331; Eev. Code of Md. (1878), art. 44, §§37, 38; Belden v. Meeker, 47 2Sr. Y. 307; Bowling v. Cook, 39 Iowa, 200; Stein v. Sullivan, 31 N. J. Eq, 409; Smith v. Keohane, 6 Bradw. (Ill-), 586; post, §174; Jones on Mort. §472. 2 Westbrook v. Gleason, 79 N. Y. 23; Decker v. Boyce, 83 :N". Y. 215; 1 Jones on Mort. §275. One who, in good faith and. for value, takes an assignment of a re- corded mortgage, is not bound by a prior agreement that the mortgage should not be recorded, though its record was a fraud on other parties who relied i n such agreement. Cook v. Stone, 63 Iowa, 352. 3 Henderson V. Pilgrim, 22 Tex. 464; The Conn. Co. v. Talbot, 113 Ind. 373; James v. Johnson, 6 Johns. Ch. 417; Bowling v. Cook, 39 Iowa, 200; Bacon v. Van Schoonhoven, 19 Hun. 158; s. C. 87 N^. Y. 446. i Oregon Trust Co. v. Shaw, 5 Saw. 336; Campbell v. Vedder, 3 Keyes, 174. Under certain circumstances, however, a failure to record the assignment will subject the assignee to the equities of a junior mort- gagee. See Parmenter v. Oakley, 69 Iowa, 388; s. C. 28 N". W. Eepr. 653. And where the assignee had failed to record his assignment, and the mortgagee discharged the mortgage of record, the rights of an in- nocent purchaser of the property prevailed over those of the assignee. Ladd V. Campbell, 56 Vt. 529. See also, Daws v. Craig, 62 Iowa, 515; Clark V. Mackin, 30 Hun. 411; Girardin v. Lamp, 58 Wis. 267; and, contra, Bi'ayley v. Ellis, 71 Iowa, 155; s. C. 32 K. W. Eepr. 254. » Enos v.; Cook, 65 Cal. 175; s. c. 3 Pac. Eepr. 632; Sprague v. Eock- well, 51 Vt. 401; Bridges v. Bidwell, 20 Neb. 185; s. c. 29 JT. W. Eepr. 302; Viele v. Judson, 82 N. Y. 32; 1 Jones on Mort. §474. « Hubbard v. Turner, 2 McLean, 533; N. Y. Life Co. v. Smith, 2 Barb. Ch. 82; Murray v. Lylburn, 2 Johns. Ch. 443; Ely v. Schofield, 35 Barb. 330. ^q Ch. 2.j INSTRUMENTS ENTITLED TO RECORD. [§34. statute in a number of states,^ while in a few it is de- clared, to the contrary, that such record is notice to all persons, including the mortgagor.^ It is said that the reason of the rule is that the mortgagor should be saved the necessity of examining the records every time a pay- ment is to be made; a rather unsatisfactory one for an exception to a leading principle of registration, that a record authorized to be made, and duly made, is notice to the world. §34. Release and Discharge of Mortgages. A release of mortgaged premises is a conveyance af- fecting real estate, which must be recorded to be valid against a subsequent purchaser of the morlgage for value and without notice.^ In a majority of the states special provision is made by statute for enterihg satisfaction and discharge of mortgages; usually by an entry at the foot, Where the assignment was not recorded, and the mortgafiror made a part payment to the mortgagee, which was not credited, either on the notes or the mortgage, it was held that the rights of the assignee were not affected by such payment. Had the mortgagor demanded a proper credit of the payment, this would have disclosed that the notes and mortgage had been assigned. This case said not to conflict with the rule laid down in Bowling v. Cook, 39 Iowa, 200, and Carnog v. Fuller, 30 Id. 212; Brayley v. Ellis, 71 Iowa, 155; S. C. 32 N. W. Repr. 254. An assignment of a mortgage was written on the back of it, reciting that it was an assignment of "the within mortgage." It was recorded in the 'same volume with the mortgage, but on a different page, with cross-references from one to the other — and the record was held suffi- cient. Soule V. Oorbley (Mich.), 31 N. W. Kepr. 785; S West. Kepr. 151. For further cases on this subject, see post, §174. Though the statute provides for recording assignments of mortgages, yet an equitable assignment held not within nor affected by the statute. Byles V. Tome, 39 Md, 461; Kev. Code, art. 44, §§37, 38. An innocent assignee for value, ordinarily takes subject to the equities existing be- tween the mortgagor and mortgagee. Moffatt v. Hardin, 22 S. Car. 9. 1 Howell's Stals of Mich. §5687; Eev. Stats of Wisconsin, §2244: Gen. Stats, of Minn. 1878, oh. 40, §24; Stimson's Am. Stat. Law, §1870; Ely v. Scholield, 35 Barb. 330. 2 Bev. Stats, of Ind. 1881. §1094; Kev. Stats, of IST. J., 1877, Mortgages, ^32; Jones on Mortgages, §473. See post, §§174, 203, 209. 3 Mutual Life Ins. Co. v. Wilcox, 55 How. Pr. (N". Y.), 43; Blunt v. Morris, 123 Mass. 55; Jones v. Chamberlain, 5 Heisk. (Tenn.), 210; Palmer v. Bates, 22 Minn. 532. 71 Ch. 2. J INSTEUMENTS ENTITLED TO KECOED. [P4, or on the margin, of the record of the mortgage.^ These statutes usually provide further that the discharge may also be made by the common form of a separate deed of release or quit-claim ;2 a provision made necessary by the fact that it is often not practicable for the mortgagee to appear before the recorder to authorize the entry m shorter form. The California Code provides that the mortgagee, or his assignee, may "acknowledge the satis- faction of the mortgage" before the recorder, who cer- tifies the acknowledgment in the margin of the record.* A mortgage had been given to secure several notes, the first of which was paid, and this entry made on the rec- ord: "Full payment and satisfaction of the within note and mortgage hereby acknowledged." It was contended that this was not a full discharge of the mortgage; that as the mortgage showed other notes, not then due, this entry showed them not paid; but the court held that the matter with respect to the payment of "the note" was not properly of record as part of the marginal entry, and that part of it was, therefore, not constructive no- tice.* In North Carolina it is held that when the mort- gage debt is settled, the mortgage is in equity no longer operative, though no satisfaction be entered of record.^ 1 Code ol Ala. §2222; Stimson's Am. Stat. Law, §1905. Usually the mortgagee must acknowledge satisfaction in the presence of the regis- ter, or sign the entry in the record, which must be attested by the reg- ister. In South Carolina, satisfaction of a mortgage does not, as a deed, require two witnesses. Gen. Stats., 1872, pp. 427-8; City Council v. Kyan, 22 S. C. 339. 2 Kev. Laws of Vermont, 1880, §1952; Pub. Stats, of Mass., 1882, ch. 120, §§24, 26. 3 Civ. Code, §2938. * Beal V. Stevens, 72 Cal. 451; s. c. 14 Pac. Kepr. 186. Where the mortgage was to secure the payment of an annuity to a minor, and the trustee wrongfully entered a discharge and satisfaction in full of it, a party subsequently dealing with the property was held chargeable with constructive notice that such release was unauthorized. McPhersonv. Rollins, 107 N. Y. 317; 14 N. E. Repr. 411. See post, §175. 6 "Walker v. Mebane, 90 N. C. 259. 72 Ch. 2. J INSTRUMENTS ENTITLED TO RECOUD. [§§35, 36. i35. Deeds of Trust. A deed of trust is technically a deed, and its execu- tion and acknowledgment in such manner as is required by statute in case of deeds, is sufficient. ^ A trustee in a deed of trust, unless a general trustee for the benefit of creditors, "is a purchaser for value, and is not affected with any infii-niity in the grantor's title of which he had not notice.^ It has been held in some Pennsylvania cases that a purchaser from a cestui que trust is affected with notice of outstanding latent equities, and cannot perfect his title by obtaining a conveyance from the trustee;^ but these decisions are against the weight and current of the authorities.* The interest of a trustee is such as to disqualify him, as an officer, from taking the acknowl- edgment to the deed of trust. ^ The record of a trust deed or mortgage, with power of sale, has been held to charge subsequent purchasers with notice of the fact that a sale has been made under the power, although the deed was unrecorded.^ §36. Conveyances of Equitable Title. As already stated,'' it was held in many early cases that the registry acts applied only to conveyances of the le- gal title, and that equitable interests were not included 1 Branch v. Atlantic Ky. Co.. 3 Vi^oods, 481. A trust deed is but a mortgage witti power of sale. McLane v. Paschal, 47 Tex. 364; post, §210. But this rule does not obtain in Louisiana. Thibodeaux v. An- derson. 34 La. Ann. 797. 2 Fargai=on v. Edrington, 49 Ark. 207, 214; s. C. 4 S. W. Repr. 763; Kesner V. Trigg, 98 U. S. 50; Vi^ickham v. Lewis, 13 Gratt. 427; New Orleans, etc., Co. v. Montgomery, 5 Otto (95 U. S.), 18; post, §211. 8 IngersoU v. Sergeant, 7 Barr. 340; 3 Harris, 343; Kramer v. Arthurs, 7 Barr. 161. ■» Sumner V. Vaugh, 56 111. 539; Zollman v. Moore, 21 Gratt. 313; Correy v. Caxton, 4 Binn. 140; Tlagg v. Mann, 2 Sumn. 486, 518; Bellas ' V. McCarty, 10 Watts, 257. 5 Jones V. Porter, 59 Miss. 628 ; Brown v. Moore, 38 Tex. 645 ; Stevens V. Hampton, 46 Mo. 404; Darst v. Gale, 83 111. 136; Bennett v. Shipley, 82 Mo. 448. See pose, §67. 6 Heaton v. Prather, 84 111. 330; Farrar v. Payne, 73 111. 82; See post, §210. ' Ante, §20. 73 Ch. 2. J INSTRUMENTS ENTITLED TO KECOKD. [§36. within them.i Courts of equity, it was said, could afford proper relief to equitable claimanta aside from the aid of the registry laws.^ The distinction, however, between courts of law and equity has been largely, and in some states entirely, abolished ; and a growing theory of mod- ern jurisprudence is that law and equity are, or ought to be, the same. Salutary legislation is rightly directed to whatever subject matter it can properly affect, without distinction as to the forum or form of remedy, and no just reason can be shown for exempting any interest in real pi-operty from the operation of the recording acts, because of a technical difference of name. By force of statute and decision together, it is now settled as a rule almost without exception,^ that the registry laws apply to all conveyances affecting real estate, of whatever character.* 1 Morton v. Kobards, 4 Dana, 258; Corn v. Sims, 3 Met. 391; Doswell V. Buchanan, 3 Leigh. 376; s. C. 23 Am. Dec. 2S0; Grimstone v. Carter, 3 Paige, 421; Briscoe v. Ashley, 24 Gratt. 454, 476; Morecock v. Dick- ens, Amb. 678; Swigert v. The Bank of Ky.. 17 B. Mon. 268: Kelley v. Mills, 41 Miss. 267; Jaques v. Weeks, 7 Watts, 261; Laverty v. Moore, 32 Barb. 347; S. c. 33 N. Y. 6.58. See Preston v. Nash, 76 Va. 1, qualify- ing Doswell V. Buchanan, supra. ^ Grimstone v. Carter, supra. s The exceptions principally relate to wills, as to which see, post, §48; leases for a limited term of years, powers of attorney and executory contracts, as to which see Rev. Stats, of Ind., 1881, §2956; Stimson's Am. Stat. Law, §1551. * Herrington v. Williams, 31 Tex. 448; Smith v. Xeilson, 13 Lea, 461; U. S. Ins. Co. V. Shriver, 3 Md. Ch. 381 ; Wilder v. Brooks, 10 Minn. 50; Fish V. Benson, 71 Cal. 428; s. C. 12 Pac. Repr. 4.54, and cases cited In notes to §20, ante. As to registr3' of a conveyance of an equitable title not protecting against a purchase of the legal title from one who ap- pears by the record to be the real owner, see Tarbell v. West. 86 N. Y. 280; Carson v. Phelps, 40 Md. 73, and Irish v. Sharp, 89 111. 261. In New York, although an agreement to convey land is held not within the re- cording acts (Ludlow v. Van Ness, 8 Bosw. 178), yet where one is in possession under a written contract of this kind, its record is sufficient notice to subsequent grantees or incumbrancers of the character of his possession. Laverty v. Moore, 33 N. Y. (6 Tiff.), 658; s. c. 32 Barb. 347. So, it is held that the registry of a conveyance of an equitable title is notice to a subsequent purchaser of the same interest or title from the same grantor, but is not notice to a purchaser of the legal title from the 74 Ch. 2.J INSTRUMENTS ENTITLED TO RECORD. [§§37,38. §37. Executory Contracts. The law of registration is not uniform as to executory contracts. In a number of states they are, by4;he terms of the recording acts, excluded from their operation^ ; in otliers they are included, eiiher specifically, or by the use of such terms as necessarily include them.^ Thus, in Texas, the statute provides for the registry of "all in- struments relating to any lands, "^ and this is held to in- clude executory contracts.* Unless their registration be provided for by statute, such contracts would gain nothing by being recorded.^ In Minnesota an executory contract is recordable, but priority in its record does not give it preference over a deed given before the execution of the contract.^ §38. Bonds for Title. Bonds for title are usually within the recording acts.' Although a species of executory contract, they are so nearly allied to conveyances of title as to come within person who appears by the record to be the real owner. Tarbell v. West, 86 ^T. Y. 280. One who acquires the legal title with notice of the equitable rights of another, under a contract, takes subject to those rights. Hilton v. Young, 73 Cal. 196; s. C. 14 Pac. Kepr. 6S4. An earlier mortgage on an equitable interest given preference over a later one, executed after the mortgagor had acquired the legal estate. Edwards v. McKernan, .55 Mich. 520; S. C. 22 X. W. Kepr. 20; and see also, Putnam v. White, 76 Me. 551. ^ See statutes of Dakota, Indiana, Minnesoto, Montana, jSTebraska, New York, Michigan, Wisconsin and Wyoming. Laverty v. Moore, 33 N". Y. 658. 2 Kev. Stats. Ind. (ISSl), §2957; Case v. Burnstead, 24 Ind. 429; and see statutes of Missouri and Arkansas. "Any instrument affecting the title to, or possession of, real jjroperty." Illinois, Kansas, California, Colorado. Allen v. Woodruff, 96 111. 11. s Kev. Stats of Texa«, 4331, also 4333, 4334. * Kanney v. Hogan, 1 Tex. U. Cas. 283; Miller v. Alexander, 8 Tex. 45. 5 Messick V. Sunderland, 6 Cal. 297; Ludlow v. Van Ness, 8 Bosw. 175. 6 Thorson v. Perkins (Minn.), 40 N. W. Kepr. 557. ' McFarran V. Knox, 5 Cold. 217; Morgan v. Snell, 3 Baxt. 382; Schuster v. La Londe, 57 Tex. 2S ; Catlin v. Bennett 47 Tex. 165 ; Derr Dellinger, 75 1?. C. 300. yg Ch. 2.j INSTRUMENTS ENTITLED TO RECORD. [§39. the law wherever its terms do not expressly forbid it.^ Where one bought land for which he received a bond for title, instead of a deed, conditioned that the legal title should be conveyed to him as soon as the land was paid for, which bond was duly recorded, and before paying for the land the purchaser mortgaged his interest, and subsequently the mortgagor, to meet the demands of his grantor, executed another mortgage to a different party, and with the proceeds paid for the land ; it was held that the release of the vendor's lien enured to the benefit of the first mortgagee, and the second mortgagee, by the record of the title bond and the first mortgage, was charged with notice of the rights thereby secured.^ §39. Equitable Mortgages. In "Wisconsin it is held that the record of a mortsrao'e of an equitable estate is notice to, and takes precedence of a deed to, any subsequent purchaser of the property.* This is the rule generally, and what has been said with reference to equitable titles applies to equitable mort- gages as well.* Such a mortgage, if first recorded, is usually preferred to a mortgage of the legal estate.* The rule, however, is not universal that the record 1 Scarborough v. Arrant, 25 Tex. 129, 132. But an assignment of a bond held not recordable. Kelly v. Thompson, 2 Heisk. 2S1. 2 Alderson v. Ames, 6 Md. .52 ; Clamorgaa v. Lane, 9 Mo. 446; "Wade on Notice, §2.54; Todd v. Outlaw, 79 N. C. 236; Butler v. Maury, 10 Humph. (Tenn.), 420. In Kentucky it -is held that the registry acts relate to conveyances of the legal title only, and not to bonds or other evidences of mere equi- table title. Cornv. Sims, 3 Met. 401, decided in 1S60; Morton v. Eo- bards, 4 Dana, 260; Nelson v. Boyce, 7 J. J. Marsh, 401. 3 Jarvis v. Butcher, 16 Wis. 307; Edwards v. McKernan, 55 Mich. 520. * Ante, §36, and cases there cited; Hunt v. Johnson, 19 N. Y. 279- Gen. Ins. Co. v. U. S. Ins. Co., 10 Md. 517; s. c. 69 Am. Dec. 174; Bank of Greensboro v. Clapp, 76 N.C. 4S2; Putnam v. White, 76 Me. 551. 6 U. S. Ins. Co. V. Shriver, 3Md. Ch. 3S1. See Edwards v. McKer- nan, 55 Mich. 520; s. C. 22 N. W. Eepr. 20, in which the court were equally divided as to the priority accorded by the lower court to an equitable mortgage over a subsequent one of the legal estate. 76 Ch. 2. J INSTRUMENTS ENTITLED TO KECOKD. [§40. of an equitable mortgage is notice to a purchaser of the land from the holder of the legal title. ^ Equi- table mortgages arising by deposit of title deeds, as be- ing contrary to the statute of frauds and to the spirit and operation of our American registry system, are not usually, though sometimes, recognized in this country .^ §4:0. Personal Property. The general principles of the doctrine of notice by reg- istration apply to personal property substantially as to real estate, wherever the law requires the record of instruments relating to personal property.^ In determining, however, what instruments are required to be recorded, the rule as to real and as to personal property is different. The settled construction is that the law contemplates and requires the record of all conveyances affecting real estate, and the ap- plication of this rule serves, in a large measure, to relieve this question of its diiEculties, so far as real property is concerned. Thus, although the languaare of the statute as to the record of this latter class of instruments may be only permissive, yet it is held that they are thereby required to be recorded, and are brought fully within the conse- quences that attach to a failure to register.^ But this con- struction will not be applied with reference to personal property, for the reason that as to it the general rule does 1 Tarbell v. West, 86 K. Y. 2S0; Halsteads v. Bank of Ky., 4 J. J. Marsh. 554; Irish v. Sharp, 89 111. 261; 1 Jones on Mortgages, §469. 2 Gale V. Morris, 29 N". J. Eq. 222; Hutzler v. Phillips, 26 S. Car. 136; s. c. 1 S. E. Kepr. 502; Jarvis v. Dutcher, supra. 8 Wade on Notice, §§67, 68; Eeed v. Gannon, 50 IST. Y. 345; Parker V. Middlebrook, 24 Conn. 207 ; Saltus v. Everett, 20 Wend. 267 ; Crocker V. Crocker, 31 N. Y. 507. This is more especially true as to actual no- tice of an outstanding title or equity charging a subsequent purchaser. Greeneaux v. Wheeler, 6 Tex. 515; McAnely v. Chapman, 18 Tex. 198; Wooster V. Sherwood, 25 N". Y. 278; Allen v. MoCalla, 25 Iowa, 464; s. C. 96 Am; Dec. 64. *■ Pepper's Appeal, 77 Pa. St. 373. See Wells v. Smith, 2 Utah, 39, with dissenting opinion by Judge Emerson, citing Boyd v. Schlos- slnger, 59 N. Y. 301; Cook v. McChristian, 4 Cal. 23; Farmer's Bk. v. Bronson, 14 Mich. 361. 77 Oil. 2.] INSTRUMENTS ENTITLED TO RECORD. [§'*"• not obtain that the law contemplates the record of every in- strument affecting its title. Thus, the Texas statute author- izes (or permits) the record of "any instrument of writing concerning any lands or tenements, or goods or chattels, or movable property of any description;"^ yet it is not held in that state that the failure to record a bill of sale of personal property will defeat the owner's title as against a subse- quent purchaser ; nor does this permissive statute give the effect of constructive notice to the record of instruments affecting personal property not otherwise, or elsewhere in the statutes, required to be recorded.^ In Georgia the statutes have, from an early period, permitted the record of instruments relating to personalty ; but the correct rule of ju- dicial interpretation as to such permissive record is that which is now legislatively declared in the code of that state in this language: "Deeds and bills of sale to personalty may be recorded in the office of the clerk of the Superior Court of the county where the maker resides. Such record being permissive and not compulsory, is not constructive or im- plied notice to any one ; it is otherwise where the law re- quires the record to be made, and it is properly made."* The tendency of modern legislation is to extend the law of record to personal projoerty. Many circumstances arise un- der which a record of its title or transfer, and of liens and claims affecting it, will materially serve the interests of commerce, and the ends of justice as well. These circum- stances relate mi^re especially to chattel mortgages and other liens, conditional sales and assignments for the ben- efit of creditors. The registry statutes relating to person- alty are usually, and often materially, different from those pertaining to realty, and for this reason the subject of per- 1 Rev. Stats. §4331; Shifflet v. Morelle, 68 Tex. 382; s. C. 4 S. W. Repr. 843. 2 Chandler v. Burnham, 1.5 Tex. 441 ; Johnson v. Brown, 25 Tex. Sup. 126; Pegram v. Owens, 64 Tex. 475; and see Ex parte Pitz, 2 Lowell, 519 ; ShitHet v. Morelle, 68 Tex. 382. 8 Code of Ga., 1882, §2710. 78 Ch. 2.] INSTRUMENTS ENTITLED TO RECORD. [§41. sonal property presents a distinct branch of the law of record.^ §41. Chattel Mortgages. As to chattel mortgages, registration is intended to take the place of the delivery and possession of the property re- quired at common law.^ Under nearly all the statutes reg- istration alone, without delivery or change of possession, is sufficient;^ and under perhaps all of them possession alone will suffice;* and defects in the record of a chattel mort- gage have been held cured by a subsequent delivery of the property.^ The validity of the instrument, or the lien of a chattel mortgage, as between the parties thereto, and as to third parties with actual notice of it, depends upon registration to a larger extent, and under a greater number of statutes, than does the validity and lien of real estate mortgages and deeds. In a number of the states actual notice will not supply the place of registry of a chattel mortgage as against any person;^ in others it will suffice as 1 See post, ch. 10. The Virginia statute does not authorize the rec- ord of sales or transfers of choses in action. Gordon v. Rixley, 76 Va.' 694, 701. Under the Tennessee statute recording is, as to personal prop- erty, permissive only, yet such record charges constructive notice. Parker v. Hall, 2 Head. 641. 2 Eussell v. Fillmore, 1,5 Vt. 130; Gass v. Hampton, 16 Nev. 1S9; Jones on Chattel Mortgages, §176 ; 2 Hilliard on Mortgages, p. 46S, and cases there cited; Bullock v. Williams, 16 Pick. 33; Cotton v. Marsh, 3 Wis. 221. 8 See post, §254; Horton v. Williams, 21 Minn. 187; Comp. Stats, of Neb., p. 287, §11; Burley v. Marsh, 11 Neb. 291 j and statutory laws in ch. 11, post. * In some of the states, as Utah and Louisiana, there are no statutory provisions as to chattel mortgages; and possession is, of course, essen- tial to a chattel mortgage in the one, and a pledge in the other. The present Constitution of Louisiana, art. 177, provides that privileges, or liens, on movable property shall exist without registration for the same, except as the legislature may prescribe. Mullen v. His Creditors, 39 La. 397; S. C. 2 South. Repr. 45. In other states, as Pennsylvania, Cal- ifornia and Nevada, the statutes provide for chattel mortgages on cer- tain kinds of property only. Tregear v. Etiwanda Co., 76 Cal. 537. 5 Morrow v. Reed, 30 Wis. 81; Chipron v. Feikert, 68 111. 284; Brown V. Webb, 20 Ohio, 389; Jones on Chattel Mortgages, §178. ' Rev. Stats, of Me., 1871, ch. 91, §§1, 2; Sheldon v. Conner, 48 Me. 584; Rev. Stats, of Mo., 1879, §2503; Rawlins v. Bean, 80 Mo. 614; Rev. 79 Ch. 2.] INSTRUMENTS ENTITLED TO EECORD. [§42- against subsequent purchasers, but not as against any cred- itor.i Under sonae statutes, if a chattel mortgage is not recorded within the time limited by statute, the record is not constructive notice for any purpose;^ while under others the rule as to deeds prevails, and such record will be good from the time it is made.^ The general rule ob- tains that these mortgages are good as between the parties without record, or with defective record.* The place of their record is usually where the mortgagor resides; some- times also the county where the property is situate ; and in case of its removal, the mortgage is generally required to be recorded in the county to which the property is removed.* §42. Abstracts of Judgments. To the end that notice may be more clearly given of judi- cial proceedings and action thereunder affecting property, many of the statutes make special provision for the record- ing of certain matters of this kind, some of the more im- portant of which will be here noticed. Stats, of Wis., 1878, ch. 105, §2313; Donaldson v. Johnson, 2 Chand.160; Kev. Stats, of 111., 18S0. ch. 95, §1 ; Dowell v. Stewart, 83 111. 538; Eev. Stats, of Ind., 1876, p. 505, §10; Kennedy v. Shaw, 38 Ind. 474; Public Stats, of Mass., 1882, ch. 192; Bingham v. Jordan, 1 Allen, 373; S. C. 79 Am. Dec. 750; Gassner v. Patterson, 23 Cal. 299; Wilson v. Miller, 75 Mo. 41; Hughes v. Menifee, 29 Mo. App. 192; Howard v. Chase, 104 Mass. 251; Lockwood v. Slavin, 26 Ind. 135; post, §269. 1 Brothers v. Mundell, 00 Tex. 240; Keller v. Smalley, 63 Tex. 519; People V. Bristol, 35 Mich. 31; Braley v. Bymes, 26 Minn. 297; Sayrev. Hewes, 32 N. J. Eq. 652; Farmer's Loan Co. v. Hendrickson, 25 Barb. 484. This is the rule in Kansas, Tennessee, Kentucky and some other states. Post, §270. 2 Sidener v. Bible, 43 Ind. 230; McCord v. Cooper, 30 Ind. 9; post, §255. 8 Hardaway v. Semmes, 24 Ga. 305; Johnson v. Patterson, 2 Woods, 443. ^ Stewart v. Piatt, 101 U. S. 731; Badger v. Batavia M. Co., 70 111. 302; Johnson v. Jeffries, 30 Mo. 423; Jones on Chattel Mortgages, §237, a,nd cases there cited ; post, §254. ' « Post, §§261-264; Eev. Stats, of Texas, §4341, and statutes in Ap- pendix. For cases as to the place of record, where the mortgagors are a firm whose members reside in different counties, see post, §264; Stew- art v. Piatt, 101 U. S. 731; Hubbardsou Lumber Co. v. Covert, 35 Mich. 254; Morrill v. Sanford, 49 Me. 566; Rich v. Eoberts, 48 Me. 548; Briggg V. Leitelt, 41 Mich. 79. g^ Oh. 2. J INSTRUMENTS ENTITLED TO BECOED. [§^2. Usually judgments do not become liens .upon real estate, at least as against subsequent purchasers without notice, until docketed. 1 It would be specially inconvenient to per- mit judgments of justices of the peace, scattered throughout the county, to operate as liens without being docketed, or enrolled at the county seat, in some record kept there for public inspection.^ For reasons of convenience and cer- tainty the statutes in many instances go beyond the ordi- nary docketing, and provide that before the lien of any judgment shall attach, a certified copy, or an abstract thereof, shall be filed with the recorder of deeds for the county in which the lands to be affected are situated.* Under the policy of these statutes, such record is usually held essential to the existence of the lien, and its place can- not be supplied by actual notice of the judgment.* Even the indexing is, by some of the statutes, made essentially necessary. 5 Where the judgment of a lower court was af- firmed on appeal, with costs and damages, such costs and damages were held not to constitute a lien until docketed 1 Freeman on Judgments, §343, citing Foster v. Chapman. 4 Mc- Cord, 291 ; Close v. Close, 2S N. J. Eq. 472; contra, Eeniok v. Luding- ton, 14 W. Va. 367. The rule would not apply at common law, if the purchaser had actual notice of the judgment; Davis v. Strathmore, 16 Ves. 419; Proctor V. Cooper, 2 Drew. 1. ' For statutes requiring abstracts of such judgments to be furnished to the county recorder, see Eev. Stats, of Tex. §31.56; C. C. P. of Cal. §§897-900; Civil Code of La. §§3322-3, 3329. A judgment of the Circuit Court of the United States is a lien from its rendition over lands of the defendant within the district over which the court has jurisdiction, and the statute of Florida requiring judgments to be recorded in the county where the land lies, has no application to such judgment. Doyle v. TVade (Fla.), 1 South. Kepr. 576. ^ Eev. Laws of Vt., 1880, §770; Kev. Stats, of Wis. §2236; Taylor v. Hotchkiss, 2 La. Ann. 917; Eev. Stats, of Mich. §6650; Civ. Code of Dak. §647; Eev. Stats, of Tex. §§3153-3163; Chaffe v. Walker, 39 La. Ann. 35; s. c. 1 South. Eepr. 290. * Shaw V. Neale, 6 H. L. Cas. 581; Pomeroy's Eq. Jur. §§641-642. ' Metz V. State Bank, 7 Neb. 165. Indexing was not essential under the former statutes of Texas ; Schleicher v. Markword, 61 Tex. 99 ; but is so now; Eev. Stats. §3159; Belbaze v. Eatto, 69 Tex. 636. It is held not necessary to the creation of a docket lien, in Virginia ; Old Dominion Oranite Co. v. Clarke, 28 Gratt. 617. (6— Eeg. of Title.) 81 Ch. 2.] INSTRUMENTS ENTITLED TO RECORD. [§43. below. 1 Where the statute required that the docket "par- ticularly state and set forth the names of the parties," an entry of the firm names of the defendants, without their christian names, was held to create no lien.^ Mis-spelling the name will not vitiate, if identity of sound be preserved.* The general rule of equity jurisprudence that prior equi- table interests in rem, including unrecorded mortgages and equitable liens upon specific parcels of land, have priority over the general statutory lien of subsequently docketed judgments,* has been much broken in upon by the effect of these statutes of registration as applied to judgments.^ §43. Notices of Lis Pendens. The common law rule requiring purchasers at their peril to take notice of suits in the courts affecting the property, has always been regarded as a harsh one, especially in its application to bona fide purchasers for value, and has been tolerated only from a supposed necessity.^ In many states the harshness of the rule has been materially modified by statutes providing that the pendency of a suit shall not be notice to a stranger until a notice of Us pendens has been filed in the office of the recorder of deeds, or clerk of the county, where the land lies; and that one having no actual ' Hunt V. Grant, "19 Wend. 90. 2 The York Bank's Appeal, 36 Pa. St. 4.^8; Eidgway & Co.'s Appeal, 15 Pa. St. 177; but see contra^ Hibberd v. Smith, 50 Cal. 511. 3 Meyer v. Fegaly, 39 Pa. St. 4-29; Petrie v. Woodworth, 3 Cai. 219; Freeman on Judgments, §347. < Price V. Cole. 35 Tex. 461 ; Galway v. Malchow, 7 Neb. 285 ; Wil- coxen V. Miller, 49 Cal. 193; Wheeler v. Kirtland, 24 N. J. Eq. 552; Apperson v. Burgett, 33 Ark. 328; Greenleaf v. Edes, 2 Minn. 264; Kelly V. Mills, 41 Miss. 267; 2 Pom. Eq. Jur. §§721-724. « Grace V. Wade, 45 Tex. 522; overruling Price v. Cole, supra; Mil- ler v. Estill. 8 Yerg. 452; Smith v. Jordan, 25 Ga. 647; Uhler v. Hut- chinson, 23 Pa. St. 110 ; Barker v. Bell, 37 Ala. 354 ; Young v. Devries, 31 Gratt. 304; King v. Portis, 77 N. C. 25; Guiteau v. Wisely, 117 111. 433. Seeposi, ch. 8. The recording in another county of a judgment which has become dormant because of failure to issue execution within twelve months is of no effect. Clements v. Ewing, 71 Tex. 370. ' 6 Hayden V. Bucklin, 9 Paige, 672; Leitch v. Wells, 48 ST Y 585- Eichardsonv. White, 18 Cal. 102. ' -^^- J'- """r 82 Ch. 2. J INSTRUMENTS ENTITLED TO EECORD. [§43. notice may acquire a good title until such notice is filed. ^ Constructive notice is made by these statutes to depend upon the filing of the proper statutory notice. ^ , Where the terms of the statutes apply only to real estate, the rule as to suits concerning personal property remains unchanged, and as at common law.^ The general rules and limitations of the doctrine of lis pendens, as" to the commencement, continuance and termination of the suit, as to the identification of the subject matter, and as to the persons who are affected by it, apply to all cases coming within the statutory provisions.* Actual notice 1 Code of Va. (18S7), §3566; Dawson v. Meade, 71 Iowa, 295; Pub. Stats, of Mass., 18S2, ch. 126, §13; Eev. Stats, of Mich. §5765; Gen. Stats, of Minn., 1878, oh. 75, §34; Civ. Code of Proc. of Cal. §409; and statutes of N.Y.; Conn.; 111.; Iowa; Mo.; JSTev.; N". J. ; N. 0.;Ohio; Or.; Penn.; K. I.; S. C; W. Va. and Wis. Eev. Stats., §3187. ^ Jackson V. Davidson (Mich.), 32 ]Sr. W. Kepr.' 726; Richardson v. "White, supra; Lecamp v. Carnahan, 26 W. Va. 839; Kosenheim v. Hart- sook, 90 Mo. 357; 2 S. W. Eepr. 473. State statutes relating to lis pendens apply to suitors only in the state and not the Federal courts. Majors v. Oowell, 51 Cal. 478. Where a mortgage antedated the notice, it was held to have precedence, though not recorded until after the Us pendens notice was filed. Hammond V. Paxton, 58 Mich. 393; s. C. 25 N. W. Kepr. 831. The effect of the notice remains unchanged, although the lis pendens paper may have been lost from the tiles, or may have been, through no fault of the party filing it, improperly entered by the clerk. Heine v. Ellis, 49 Mich. 241. ■'' Allen V. Atchison, 26 Tex. 616; Leitch v. Wells, 48 N. T. 585. In some states the statutory notice is confined to certain kinds of personal property, as in Kansas (Dassler's Comp. Laws, p. 612, §81), and in Maine, N". H. ; Vt. and Mass. It is held in jSTorth Carolina that the statute (Battle's Eev., ch. xxiT, §90), does not apply to real property situate in the county where the suit is pending. Badger v. Daniel, 77 J7. C. 251 ; EoUins v. Henry, 78 N. C. 342; Todd V. Outlaw, 79 N. C. 235. The New York courts, however, place a different construction on a similar statute. Lament v. Chesire, 65 N. Y. 30. ■• See Brooks v.Davey, 109 N. Y. 495; s. c. 17N. E. Eepr.412; Briscoe V. Ashbey, 24 Graft. 471 ; Cirode v. Buchanan, 22 Gratt. 205; Davis v. Life Ins. Co., 84 111. 508; Dresser v. Wood, 15 Kan. 344; Drake v. Crowell, 40 N. J. L. 58; Brown v. Goodwin, 75 N. Y. 409; Eoach v. Riverside Co., 74 Cal. 263; White v. Perry, 14 W. Va. 66; Page v. War- ing, 76 N. Y. 463; Hall v. Gustin, .54 Mich. 624; s. c. 20 IST. W. Repr. 616; Mayberry V. Morris, 62 Ala. 113; Jones v. McNarrin, 68 Me. 334; S. C. 2a Am. Eep. 66; Fuller v. Scribner, 76 N. Y. 190; Tredway v. Mc- 83 Ch. 2.] IXSTKUMENTS ENTITLED TO EECOED. [§44. will supply the want of filing the notice required by the statute.^ §44. Attachment and Execution Liens. Some of the statutes provide for the recording of certif- icates of the levy of attachments, executions and other writs creating a lien on real estate.^ In those states where there are no statutory provisions for giving notice of lis pendens, some provision as to giving notice of tire liens cre- Donald, 51 Iowa, 663; Farmer's Bank v. Fletcher, 44 Id. 252; Head v. Fordyce, 17 Cal. 149; Mcllwrath v. HoUender, 73 Mo. 105; s. C. 39 Am. Eep. 487; Wade on JSTotioe. §§337-377; Jones on Mortg. §599; 2 Devlin on Deeds, §§803-805; 2 Pom. Kq. Juris. §§632-640. Notice of Us pendens held not affected by the fact ttat it was filed several days before the commencement of the suit. Houghton v. Mar- iner, 7 Wis. 244. Contra, the notice in such case is of no effect. Walker V.Hill, 22 N. J. Eq. 514; Dawson v. Mead, 71 Wis. 295; s. c. 37 X. W. Kepr. 274; Sherman v. B-emis, 58 Wis. 343. See Weeks v. Tomes, 16 Hun. 349. 1 Wisconsin Cent. Ky. v. Wis. River Land Co., 71 Wis." 94; s. 0. 36 K. W. Kepr. 837; Sharp v. Lumley, 34 Cal. 611; Baker v. Pierson, 5 Mich. 476; Sampson v. Ohleyer, 22 Cal. 200; Abadie v. Lobero, 36 Cal. 390; 2 Devlin on Deeds, §805. If the deed is made before, though recorded after, the filing of the lis pendens, it will prevail under Dak. Civ. Code of Proc. §101. Bate- man v. Backus (Dak.), 34 N". W. Repr.66, following Lament v. Cheshire, supra. 2 Laws of Texas, 1889, p. 80; Eev. Stats, of Conn. 1875, tit. 3, ch. 3, art. 3, §7; Gen. Laws of K. H., 1878, ch. 27, §7; Pub. Stats, of Mass., 1882, ch. 172, §3; Code of Ga. §2709, and statutes of Maine, Vermont, Michigan and Maryland. Where a copy of an attachment writ was left with the clerk, it was held to impart the notice, although he neglected to record It. Steam Co. v. Sears, 23 Fed. Eepr. 313; and also that such failure of the re- corder does not defeat the lien. Sykes v. Keating, 118 Mass. 517; Gen. Stats, of Mass., ch. 123, §§52, 56; contra, Benjamin v. Davis, 73 Iowa, 715, as to the notice. Actual knowledge of an attachment lien held sufficient to charge a subsequent purchaser. Leathwhite v. Bennett (K. J.), 11 Atl. Kepr. 29. The Michigan statute providing for the record of attachment liens, held not to give priority because of registry. Columbia Bank v. Jacobs, 10 Mich. 349; s. c. 81 Am. Dec. 792. Where the levy is not entered on the incumbrance book, it is not good against a subsequent purchaser without notice. Benjamin v. Davis, 73 Iowa, 715; s. c. 36 N. W. Repr. 717; Codeof Iowa, §3022; although'the fault was in the failure of the clerk to enter the notice of levy. Id, 84 Ch. 2.] INSTEUMEiVTS ENTITLED TO RECORD. [§45. ated by the levy of such writs would seem to be imper- atively required; since otherwise, in cases where the writs were sent from another county, there would be nothing whatever of record in the county where the land lay to give notice of the lien. §45. Meclianics' Liens. The statutes of nearly every state provide for the filing and recording of .mechanics' liens. ^ This lien is the creature of the statute, and does not exist until the stat- ute, including filing and record, has been complied with, unless the terms of the statute in some way recognize its existence independently of such record.^ This feature is important as affecting the question of whether actual notice can supply the place of record, or in any way charge the property in the hands of a subsequent pur- chaser who buys prior to the record of the lien. The fact that the mechanic is at work on the premises has been held in Kentucky not actual notice of his lien to a bona fide mortgagee, or purchaser, who buys during the time prescribed for the filing of the lien.^ The lien is subject to any prior lien that has already attached to the property;* but a prior mortgage, unrecorded at the date of 1 See Stimson's Am. Stat. Law, §§1900-1987. 2 Cameron V. Marshall, 65 Tex. 11; Conway v. Crook, 66 Md. 290; Spencer v. Barnett, 35 N. Y. (8 Tiff.), 96; Greene v. Ely, 2 Greene (Iowa). 508; Noll v. Swineford, 6 Pa. St. 187; Core v. Sellers, 27 Cal. 588; White Lake Co. v. Kussell (Neb.), 34 N. W. Eepr. 104; s. C. 22 Net). 126; 3 Am. St. Kep. 262; Shaw v. Allen, 24 Wis. 564; Green v. Green, 16 Ind. 253; S. C. 79 Am. Dec. 428. In Cameron v. Marshall, supra, the court say: "The lien has no existence without the record;" hut in Trammell v. Mount, 68 Tex. '211, it is said: "The registration does no more than preserve a lien which exists already." And see Huck V. Gaylord, 50 Tex. 582 ; Ferguson v. Ashbell, 53 Tex. 249. The lien must be indexed and docketed. Appeal of Cessna (Pa.), 10 Atlantic Eepr. 1. 3 Toughee v. Grigsby, 12 Bush. 75; Neeley v. Searight, 113 Ind. 316; S. C. 15 N. E. Kepr. 598; Gere v. Cashing, 5 Bush. 304; Shackelford v. Beck, 80 Va. 404. ^ Clark V. Butler, 32 N. J. Eq. 664; Campbell's Appeal, 36 Pa. St. 247 ; Lyle v. Ducomb, 5 Binn. 585 ; Norris' Appeal, 30 Pa. St. 122. That 85 Ch. 2.] INSTRUMENTS ENTITLED TO RECORD. [§45. filing the lien, or of the accrual of the mechanic's right thereto, will in most instances, be subordinated to the mechanic's lien.^ The statutes are so various in their terms and provisions that it is impossible to lay down o-eneral rules on this subject, and each decision must be understood as largely controlled by the statute on which it is based. Usually a time is prescribed within which the claim of lien must be filed for record,^ and a filing after that time has been held to confer no rights.^ The intent of the statute is held, in a majority of the cases, to be that without record the right to the lien shall cease after the specified time. When filed within the time, the lien is in many instances made to relate back to the date when the work was begun, or performed, or the material furnished, or to the date of the mechanic's con- tract, as the case may by statute be, and to take prece- dence over intervening liens and claims.* But, though o-iven preference by statute over a lien or mortgage, it has been held not to prevail over a sale for valuable con- sideration paid, although the sale be made within the the lien lias not preoedence of prior incumbrances is expressly declared in a number ol the statutes. Cothran's Rev. Stats of 111. (1SS3), oh. 82, §17; Florida Dig. (1881), ch. 143, §6; Code of Ga. (882), §1980; Pu.b. Stats, of Mass. (1882). ch. 191, §5; Gen. Stats, of S. C. (1S82), §2352. 1 Jones on Mortg., §479a, citing Davis v. BilsLand, 18 Wall. 659; Xeil- son V. Iowa East. Ry. Co.. 44 Iowa, 71; Dunklee v. Cr-ane, 103 Mass. 470. By a number of the statutes a lien-holder must have had no actual no- tice of the prior mortgage or incumbrance. Laws of x^. Y. (1878), p. 379. §84; Comp. Laws of N. M., 1884, §1523; Hittell's Codes of Cal. §11186; Civ. Code of Idaho, §819. 2 In a few states, as Miss., Mich., Maryland and Vermont, no time is specified. 3 Jenkins V. Nelson, 11 Mart. 437; Cameron v. Marshall, 65 Tex. 7- Wilson V. Rudd, 70 Wis. 98 ; s. c. 35 N". W. Repr. 321 , The record held ineffectual where it showed on its face to have been filed too late, al- though, in fact, it had been filed in time. Olson v. Heath, 37 Minn. 298 ; s. C. 33 N. W. Repr. 791. Contra, record after the time is valid. Nail V. Temple, 12 Iowa, 276. * Trammell v. Mount, 68 Tex. 211; s. c. 4 S. W. Repr. 377; Nail v. Temple, su/yra; Eq. Life Ins. Co. v. Slye, 45 Iowa, 615; Getchell v. Al- len, 34 Id. 559. 86 Ch. 2.] INSTRUMENTS ENTITLED TO EECOKD. [H^- time prescribed for filing tiie lien.^ A mortgagee who advances the consideration at the time the mortgage is taken, is everywhere regarded as a purchaser for value under the recording acts, and no distinction can be made in principle between his rights and those of any other purchaser as against the mechanic's lien.* §46. Mechanics' liiens— Continued. The statutory specification of a period of time within which the claim of lien may be filed seems to have re- ceived both a narrow and a liberal construction by the courts; the one proceeding largely on the theory that this is intended only to fix a point of time after which such filing will be of no avail. ^ The other construction is substantially the same that is given to the privilege of time allowed by some of the statutes for recording deeds and mortgages;'' and under this view it is held that when the claim is filed within the prescribed time, it relates back to the date of the contract, or commencement of the work, and takes precedence over intervening incum- brances, and also that when filed after the expiration of the statutory period, it is a valid lien from the date of * Odum V. Loomis, 1 Tex. Civ. App. §524 ; and see Fonshee v. Grigs- ty, 12 Bush. 75. 2 In Kansas (Comp. Laws, 1879, art. 27. c. SO), the mechanic's lien has preference "of all other liens and incumbrances" which may attach to the property subsequent to the commencement of the work or re- pairs; and "all other liens and incumbrances" have been held to include a conveyance of the property. Warden v. Sabins, 36 Kan. 165; s. C.12 Pac. Eepr. 520. The Texas Statute gives the mechanic's lien preference over "any prior lien or incumbrance or mortgage" upon the laud, not already existing at the time of the accrual of the mechanic's lieu. Rev. Stats., art. 3171, as amended by Act of March 28, 1885. In Coloiado the lien is superior to all after-acquired liens, and any prior liens of which the mechanic had no notice, actual or constructive. Tritch v. JSTorton, 10 Colo. 337. * See cases in not,e 3 on preceding page. Where the statute pro- vided that the claim of lien must be filed within thirty days after com- pletion of the building, a filing before completion was held premature. Eoylance v. San Luis Hotel, 74 Cal. 273; s. c. 20 Pac. Kepr. 7; Catlin v. Douglass, 33 Fed. Eepr. 569. * See post, ch. 6. 87 Ch. 2. J INSTRUMENTS ENTITLED TO RECORD. [§46. filing, and entitled to priority over incumbrances subse- quent to the date of record. ^ la accordance with the former line of construction, it is held that actual notice will not, as in the case of rights and equities evidenced by deeds and other written instruments, supply the want of registry in charging notice;^ aad under the latter con- struction actual notice is held sufficient.^ Except on the ground that record is essentially necessary to the exist- ence of the lien, and is that by which, both in law and equity, the lieti is created, it is difficult to perceive why the general principles of the registry laws should not apply equally to the record of mechanics' liens as to those of mortgage liens, just as far as the difference of circumstances and the rules of equity will permit.* Both a strict and a liberal construction will also be found to have been applied by the courts in determin- 1 The lien is good between ttie lien claimant and any incumbrancer whose right accrued during the time within which he i? protected and preferred under the law. By his laches he simply loses a preference or priority over parties whose rights have accrued subsequently to the time within which such statement is required to be tiled; and this, be- cause the law, after the expiration of the thirty days, no longer affects them with constructive notice. Xail v: Temple, 12 Iowa, 276. 2 Neeley v. Searight, 113 Ind. 316; s. C. In K. E. Repr. 598; Foushee V. Grigsby, 12 Bush. 75; Van Loan v. Heffner, 30 La. Ann. 1213. 8 Nail v. Temple, supra. * The lien exists alone by virtue of the statute; but such statutes are remedial, and are to receive a liberal construction. White Lake Co. v. Eussell, 22 Neb. 126; s. C. 34 N. W. Repr. 104; 3 Am. St. Kep. 562; and seeGetchell V. Moran, 12lilass.404; McPhee v. Litchfield, 145 Mass. 565; S. C. 1 Am. St. Rep. 482; Gale v. Blaikie, 129 Mas*. 206. Occasional repairs, made months after the completion of the build- ing, cannot be so added as to bring the claim of lien for the whole work within the statutory time. Davis v. Alvord, 94 U. S. 645. But work done from time to time, as ordered by the owner in the ordinary progress of erecting a building, is "continuous of that previously done," within the meaning of the Penn. Act of 1885, and the time for filing may be reckoned accordingly, although there was no contract for the whole work. Hofer's Appeal, 116 Pa. St. 360; S. C. 9 Atl. Repr. 441. Where suit to enforce the lien is begun within *the time allowed for filing the claim, such filing is not necessary, nor is the entry of any par- ticulars of the lien in the mechanic's lien book. Anderson v. Seamans, 49 Ark. 475; s. c. 6 S. W. Repr. 799. 88 Ch. 2.] INSTRUMENTS ENTITLED TO RECORD. [§47. ing what will constitute a sufEcient affidavit and state- ment of the claim required to be filed ;^ the tendency of the decisions on this point being in favor of holding a substantial compliance with the statute to be sufficient.'^ §47. Mechanics' Liens— Continued. It is held in Maryland that in order to give a mort- gage to secure future advances priority over a mechan- ic's lien, the mortgage must be first recorded.^ That the account and bill of particulars filed embraced other lots than that on which the building was erected, and on which the lien was claimed, held not to vitiate.* 1 See Odd Fellows v. Masser, 24 Pa. St. 507; s. c. 64 Am. Dec. 675. Signing the atKdavit held necessary in Maine, although the name be at the top of the account. Stratton v. Shoenhar (Me.), 10 Atl. Kepr. 446. Not neeessaiy in Oregon, and literal compliance with the statute not required. Ainslie v. Kohn, 16 Or. 363; s. C. 19 Pac. Kepr. 97; AVhittier V. Blakeley, 13 Or. 546; Kezartee v. Marks, 15 Or. 529; s. 0. 16 Pac. Kepr. 407. In Kansas the affidavit must be signed. Hentig v. Perry, 17 Pac. Kepr. 42; hut not the statement of claim also; Deatherage v. "Woods, 37 Kan. 59; s. C. 14 Pac. Kepr. 474. It may be made by one member for a Ann. Id. And may be made before the attorney for the claimant. McDonald v. Willis, 143 Mass. 452; s. C. 9 N. E. Kepr. 835. And omission of the ofiicer to append his jurat held not to vitiate. Jack- man V. Gloucester, 143 Mass. 380. For other cases, see Lindley v. Gross, 31 Ind. 106; s. c. 99 Am. Dec. 610; Kennedy v. House, 41 Pa. St. 39; s. C. 80 Am. Dec. 594; Brennan v. Swasey, 16 Cal. 140; S. C. 76 Am. Dec. 607. 2 A strict technical averment of ownership of the property not ex- acted. Hays V. Mercer, 22 Neb. 656; s. O. 35 N. W. Kepr. 894; but up- held though the affidavit is, on this point, "to the best of affiant's knowledge and belief," and the ownership is wrongly stated. MoPhee V. Brode'i-ick, 145 Mass. 565; s. C. 14 N". E. Kepr. 923; but see Morrison V. Phillips, 35 Minn. 192. Omission to state credits in the account, as required by the statute, held immaterial. McCormaok v. Phillips (Dak.)', 34 X. W. Kepr. 39 ; Whittier v. Blalceley, 13 Or. 546; s. 0. 11 Pac. Kepr. 305. A reasonably certain description of the property is sufficient. White V. Stanton, 111 Ind. 540; s. c. 13 N. E. Kepr. 48;" Smith v. Sarver (Pa.), 7 Atl. Kepr. 99 ; and is not void because including more land than is subject to the lien, if no fraudulent intent. White Lake Co. v. Kussell, supra; 34 IST. W. Kepr. 104. A liberal construction to be .applied. Mer- riman v. Bartlett, 34 Minn. 524; s. C. 26 N. W. Kepr. 728. 3 Brooks v. Lester, 38 Md. 65. * Lyon v. Logan, 68 Tex. 521. 89 Ch. 2.] INSTRUMENTS ENTITLED TO EECOKD. [§47. Such misdescriptions are immaterial.^ A description that would be adequate in a conveyance, or that can be ren- dered certain by the references, is suiEcient.^ But a claim of lien on one of two lots, is void for uncertainty;^ and so, where the account and the bill of particulars materially vary in the description.* It is immaterial that the lien was recorded in a book kept for the record of bills of sale, provided all such liens were recorded in that book;5 and where the statute required only that liens should be recorded in books kept separate from those for the record of deeds and other conveyances, it did not vitiate the record of the mechanic's lien that it was made in the mortgage book.^ The certificate of the recorder is sufficient prima facie proof of the filing and recording of the account and accompanying affidavit.'^ Where, after the lien is filed, a note was taken for the amount due, which note reserved a lien, but was not re- corded, it was held that the lien of record was not waived or affected.^ A bond by the mechanic, condi- tioned to do the work properly, and accepted by the other party, will ans\Yer for the written contract required to be recorded.^ Where the contract is verbal, a failure 1 Edwards v. Derrickson, 4 Dutch. 39; Shattuek v. Beardsley, 46 Conn. 386; Oster v. Robenean, 46 Mo. 595; White Lake Co. v. Kussell, 22 Neb. 126; s. C. 3 Am. St. Rep. 262. 2 Swopev. Stantzenberger, 59 Tex. 387; Stuart v. Broome, Id. 446; Gillespie v. Remington, 66 Tex. 109; Phillips on Mechanics' Liens, 379; Whitemark v. Noe, 3 Stark's Ch. 321; Merriman v. Bartletc, 34 Minn. 524; s. C. 26 JST. W. Repr. 728. ' Lyon V. Logan, 66 Tex. 57. * Adams v. Cook, 55 Tex. 161. ' Lyon V. Logan, 68 Tex. 621. 6 Quinn v. Logan, 67 Tex. 601; s. C. 4 S. W. Eepr. 247; Billings v. Martin (Me.), 10 Atl. Repr. 445. 7 Stuart V. Broome, 59 Tex. 466. 8 Pope V. Graham, 44 Tex. 196; Phillips on Mechanics' Liens, 276; Grant v. Strong, IS Wall. 623. JSTor is it affected by a removal of the indexed statemeat from the files of office. Bell v. Teao-ue CAla t 3 South. Eepr. 861. ° ^ "''' » Martin v. Roberts, 57 Tex. 564. 90 Ch. 2. J INSTRUMENTS ENTITLED TO KECORD. [§48. to record the bill of particulars is fatal to the lien.^ The contract required to be recorded is the one by vir- tue of which the work was done or material furnished, and not any subsequent contract relating to the matter.^ §48. Miscellaneous Instruments. Under New York Rev. Stats., §137, p. 738, declaring that grants in fee of freehold estates shall not take effect as against purchasers and incumbrancers unless acknowl- edged or attested, it has been held that a servitude was not an estate in lands within the meaning of that act.^ This, however, is not the general rule; the decision in that case proceeding upon the terms of the act under construction. Where a grantor conveyed land by deed in which no men- tion was made of a right-of-way that had been reserved by verbal agreement with the grantee, it was held that a jDur- chaser from the grantee, for valuable consideration and without actual notice of such reservation, took the land freed from the easement, because notice of the same had not been given by some conveyance thereof duly recorded.* So, the grant of a private right-of-way to an adjoining land- owner, is within the registry laws.' A certificate of division of partnership property, including lands, was held record- able as an instrument concerning lands ;'' and a written acknowledgment by the grantee of a land certificate already located, that he had previously sold and conveyed it, is an 1 Lyon V. Ozee, 66 Tex. 95. 2 Reese V. Corlew, 60 Tex. 70; Taylor v. Huok, 65 Tex. 238; Lee v. Phelps, 54 Tex. 368 ; Lyon v. Ozee, supra. But see Mundiu v. Berwin, 62 Tex. 341. 3 KeUis V. Munson, 24 Hun. 575; Nellis v. Muuson, 108 N. Y. 453; Snell V. Levitt, 110 N. Y. 595. For case holding that under this act a subsequent purchaser acquired the title although Jie bought with actual notice of a prior conveyance, and was not a purchaser for valuable con- sideration, see Chamberlain V. Spargur, 86 N. Y. 603; s. C. 22 Hun. 437. 1 Bush V. Golden, 17 Conn. 594. " Prescott v. Beyer, 34 Minn. 493; s. C. 26 N. W. Repr. 732; Worley V. State, 7 Lea, 382. ' Pegram v. Owens, 64 Tex. 475. 91 Ch. 2. J INSTRUMENTS ENTITLED TO RECORD. [§4:9- instrument relating to lands and proper to be recorded.^ In some states debtors are allowed a time for the redemption of lands sold at tax sales, and also those sold under execu- tion and other judicial process, and deeds do not issue imme- diately upon such sales, but a certificate of sale is issued to the purchaser. A duplicate of this certificate is recorded in the registry of deeds, and the certificate, duplicate or record of same, is by law made evidence of the facts therein stated. 2 Such certificates may be assigned, but it has been held that the assignee takes subject to every equity, and cannot be regarded as an innocent purchaser, entitled to protection as such, until he is clothed with a legal title by the sheriff's deed.^ The statutes of Colorado expressly requiring that the word "Homestead" should be entered of record on the margin of the recorded title of the homestead before the benefit of the statute can be had, it was held that no room was left for construction, and that actual notice could not be deemed an equivalent, as against a cred- itor seeking to recover or subject the homestead.* §49. Plats. The statutes usually provide for recording plats of towns and cities, and sometimes also, plats of subdivisions of lands ' Peterson v.Lowry,48 Tex. 408. A parol partition is not affected by the registry laws, and a subsequent levy upon lands other than those allotted to the defendant, is of no effect. Ayeoolv v. Kimbrough, 71 Tex. 330. - Eev. Code of Iowa (1873), §3101; Gen. Stats, of Minn., ch. 8, §iyO; Vaughn v. Ely, 4 Barb. 156; Everston v. Sawyer, 2 Wend. 507; Gossard V. Ferguson, 54 Ind. 519; Gardner v. Eberheart, 82 111. 316; Lasell v. Powell, 7 Coldw. 277; Evans v. Ashley, 8 Mo. 177. 2 Warvelle on Abstracts, 436 ; citing Roberts v. McClelland, 82 111. 538; Reynolds v. Harris, 14 Cal. 667; Messerschmidt v. Baker, 22 Minn. 81; Potts V. Davenport, 79 111. 455; Swiuk v. Thompson, 31 Mo. 336. In Texas purchase money notes given for land are entitled to record if acknowledged. Saunders v. Hartwell, 61 Tex. 680. ■• Goodwin V. Col. M. Inv. Co., 110 U. S. 1. The constitutions of Nevada and Louisiana provide that laws shall be enacted requiriug homesteads to be recorded, and legislation on this subject can be found in nearly all the statutes. A provision authorizing the record of a designation of the homestead (Rev. Stats. oE Tex. §2344; Rev. Code of Iowa. §1999). is nsuallv only a matter of privilege and convenience, designed to give notice to creditors, and to save the expense of a desig- nation by order of court, which might otherwise become necessary. 92 Ch. 2. J INSTRUMENTS ENTITLED TO RECORD. [H^- generally.^ These plats are ordinarily recorded along with the registry of deeds, and the requirements of the statute in relation to them, are usually indispensably requisite to a valid registration. When duly executed, acknowledged and recorded, certified copies thereof may be used in evidence to the same extent, and with like effect, as in cases of deeds. ^ The record of such plat is in effect a dedication of the streets and alleys marked thereon to public use;^ and by some of the statutes such record is further made to oper- ate as a conveyance of all the portions marked on the plat to the public, or to any society, corporation or body politic* Aside from the statute, the reservation to public use of portions of the premises shown on a plat by which sale is made, will create a servitude by estoppel in favor of pur- chasers of adjoining lots.^ The fee, however, will at com- ' Key. Code of Iowa (1873), §559; Rev. Stats, of Wis. (1878), p. 645; Eev. Stats of 111. (1874), p. 771 ; Satchell v. Doram, 4 O. St. 542. Record of a town plat not necessary to its validity, where the statute in refer- ence to it is only directory. Commissioners v. Wood, 10 Pa. St. 93; s. C. 49 Am. Dec. 582. 2 Warvelle on Abstracts, 147. A map pasted between the leaves of the record book, or recorded in pencil, is not duly recorded. Caldwell V. Center, 30 Cal. 539; S. C. 89 Am. Dec. 131. 8 Bissell V. N. Y. Cent. Ey. Co., 23 IST. Y. 61; s. C. 26 Barb. 63; Eees V. Chicago. 38 111. 322; Irwin v. Dixon, 9 How. 80; Godfrey v. City of Alton, 12 111. 29; Dillon on Municipal Corp. §498; Price v. Meth. Church, 4 0. St. 515, 542; Mauderschid' v. Dubuque, 29 Iowa, 73; Banks v. Ogden, 2 Wall. 57. ^ Lebanon v. Warren Co., 9 Ohio, 80; and see statutes cited in ilrst note to this section ; Brown v. Manning, 6 Ohio, 298 ; Lake View v. LeBahn, 120111. 92. 5 Harrison v. Boring, 44 Tex. 256; Bissell v. N". Y. Ry. Co., supra; Lake View v. LeBahn, 120 111. 92; In re Pearl Street, 111 Pa. St. 565; Point Pleasant v. Cranmer, 40 N. J. Eq. 81; In re Brooklyn Street, 118 Pa. St. 640; S. C. 4 Am. St. Rep. 618; Maywood v. Maywood, 118 111. 61; Banks V. Ogden, 69 U. S. (2 Wall.), 57; New Orleans v. U. S. 10 Pet. (35 U. S.), 498; Smith v. Portland, 30 Fed. Repr. 734; Shellhouse V. State, 110 Ind. 509; Lockland v. Smiley, 23 O. St. 94; Ragan y. Mc- Coy, 29 Mo. 350; Bartlett v. Bangor, 67 Me. 460; Commonwealth v. Moorehead, 118 Pa. St. 344; s. c. 4 Am. St. Rep. 599; Weeping Water T.Reed, 21 Neb. 261; s. C. 31 N. W. ilepr. 797; Morgan v. Chicago, 96 TJ. S. 716; Abbott V. Cottage City, 143 Mass. 521; Trerice v. Barteau, 54 Wis. 99; San Leandro v. LeBretou, 72 Cal. 170; Oswald v. Grenet, 22 Tex. 94; Lamar Co. v. Clements, 49 Tex. 354. 93 Ch. 2. J INSTRUMENTS ENTITLED TO RECORD. [§49. mon law remain in the original proprietor, burdened with the servitude ; but the effect of the statutes is usually to pass the fee to the municipality or other body.* If a deed gives no other description of the land than the lot or block of a survey or subdivision, the authentic plat of such sur- vey is as much a part of the deed as if set out in it ; and a reference to a plat is as effective by way of estoppel as express words of grant or covenant.'^ A reference to a plat by lot and block has been held entitled to a more controll- ing influence than a special description by metes and bounds, which followed the reference and limited the area to less than the lot referred to ,in the plat.^ Where a private plat is referred to, but not recorded with the deed, it is not notice.* The rule ol estoppel, however, is often denied as against married women. McBeth v. Trabue, 69 HIo. 642, 657; Todd v. Pittsburg, 19 O. St. 514; Bradstreet v. Pratt, 17 Wend. 44. 1 Manly v. Gibson, 13 111. 308; Ry. Co. v. Joliet, 79 111. 35; Gridly v. Hopkins, 84 111. 52S. 2 Dolde V. Vodicka, 49 Mo. 100; Powers v. Jackson, 50 Cal. 429. s Kutherford v. Tracy, 48 Mo. 325; Warvelle on Abstracts, 145. Where the number of the block was wrongly given, but there were other descriptive recitals in the deed which, if followed up, would show the error, such error was held immaterial. Briggs v. Ripley (Minn.), 3 N". W. Repr. 120; and see Subert v. Rosser, 24 Minn. 155; Schweiss v. Woodruff (Mich.). 41 oST. W. Repr. 511. "If the description in the deeds was sufficiently certain, by a refer- ence to the plat on record, to identify and locate the lots, the title passed to the grantees, whether the plat conformed to the acts of the legislature or not. This is all that is material so far as the plat is con- cerned" — both parties claiming under the same survey of the town (Chicago), and by reference to the same plat. The original plat had been introduced in evidence below, to prove that the plat as recorded did not correctly show the lines. This was held error, as the deeds of both parties referred to the recorded plat. The remedy for an error of description was in chancery to reform the deed, while this was an ac-, tion of ejectment. Jones v. Johnston, 18 How. 150. * Shirras v. Craig, 3 Cranch, 34. In Texas there is no statutory provision as to I'eoordlng plats, but if duly acknowledged, it is believed that they are admissible to record un- der article 4331 of the Revised Statutes (1879), as "instruments of writ- ing concerning lands and tenements;" and a reference in a deed to a plat or map, whether recorded or not, is a good descriptive call, on the principle that "that is certain which can be made certain." See Os- wald V. Grenet, 22 Tex. 94. 94 Ch. 2. J INSTRUMENTS ENTITLED TO RECORD. [§50. §50. Record of Wills. By reference to the statute of 7 Anne, ch. 20, quoted in the first section of this worli, it will be seen that wills are included with other conveyances of real estate in that act. By the registry act for the East Kiding of Yorkshire, it is provided that where there is an imped- iment to the registration of the will within the time pre- scribed, the registration of a memorial of such imped- iment will preserve the rights of devisees as though the will itself had been registered, until such time as the impediment is removed. i And by 37 and 38 Vict, ch. 78, for Middesex and Yorkshire, it is provided that where a will has not been registered within the time allowed, a conveyance by the devisee shall take precedence, if first registered, over one from the testator's heir-at-law. A will by which lands are devised, though differing from a deed in its manner of probate and in other features, is yet a written conveyance of real estate, and it is con- sistent with the policy and harmony of the system of registration that wills should be placed, as by these Eng- lish statutes, within the registry acts. While in a num- ber of the American states, wills are required to be re- corded with other conveyances,^ in a great majority of In Iowa, where there is a statutory provision for recording plats, the court said: "Without such recorded plat there was one link wanting in plaintiff's recorded chain of title. The only means of supplying this defect in their record title was to take possession of the property, or otherwise bring actual or constructive notice of the missing link to the defendant." Stewart v. Huff, 19 Iowa, 557. See as to plats, Deery v. Cray. 10 "Wall. 263, 272. 1 Under this statute it was held that a devisee loses his priority as against a subsequent registered mortgagee for value, unless he registers a memorial of the will, or of the impediment which prevents its reg- istration, within six months of the decease of the devisor, even al- though he is ignorant of the existence of the will until after the ex- piration of .the six months — a failure to discover the will being such im- pediment as was contemplated by the act. Chadwick v. Turner, 11 Jur. ISr. S. 333 ; 34 Beav. 634. See Wyatt v. Barwell, 19 Ves. 435 ; Hall's Lessee V. Ashby, 9 Ohio, 96. 2 Rev. Stats, of Wisconsin (1878), §2296; Hurd's Kev. Stats, of 111. ch. 30, §33; Gen. Stats of Minn., ch. 47,- §35; Gen. Stats, of Colo. Ch. 2.] INSTRUMENTS ENTITLED TO RECORD. [§^1. them legislation and decision, as to the record of wills, seem to have proceeded on the theory that their regis- tration is not needed under, nor contemplated by, the re- cording acts, and that their record in the court where probated, is sufficient notice of their existence and con- tents. The probate of a will is in the nature of a pro- ceeding in rem such as is held to charge every one with notice thereof.^ §51. Kecord of Wills— Continued. When the lands devised by will lie in the county where the will is probated, the American theory and practice is not open to very serious objection; although, even in such case, it would be well to require a record of the will along " with that of other conveyances, in order that the chain of title might be made to fully appear in the office where title is recorded. But where the will conveys lands situated in other and perhaps distant counties, a failure to require the will to be recorded in such other counties, leaves a hiatus in the record title of such lands, existing under circumstances that offer full opportunity for the frauds and evils that reg- istration is designed to jarevent. Some of the statutory provisions authorizing the recording of a certified copy of a will, not being mandatory in terms, nor found in the record- ing acts proper, are only permissive in their nature, and do (1883), §230; Rev. Stats, of Maine (1883), ch. 7, §16; and see statutes of New York, Vermont, Nebraska, California, Idalio, Michigan and Ari- zona. In Alabama, wills creating estates in remainder or reversion, are void as against creditors of the tenants for life, in possession, unless re- corded within five years. Eev. Code, §1560. 1 Hallv. Hall, 47 Ala. 290; Lalanne v. Moreau,13 La. 431; Hodges v. Bauchman, 8 Yerg. 186; Scott v. Calvit, 3 How. (Miss.), 158; State v. McGlynn, 20 Cal. 271; 3Redmonon Wills, 63; Steele v. Renn,50 Tex. 468, 481; Orr V. O'Brien, 55 Tex. 149; Freeman on Judgments, §608; and see Wharton's Conli. of Laws, §645; Story's Confl. of Laws, §47<4; Kerr v. Moore, 9 Wheat. 565; Leitch v. Wells, 48 N. Y. 585; Jackson v. War- ren, 82 111. 331 ; Grignon's Lessee v. Astor, 2 How. 319 ; McPherson v. Cunliff, 11 Serg. & R. 422. As to the application to wills, in England, of the doctrine of tack- ing, see O'Hara on Wills, 185. As to when a registered will is not no- tice, see Woods v. Farmere, 7 Watts, 382. 96 dh. 2.] INSTRUMENTS ENTITLED TO RECORD. [§51. not fully remedy the evil.^ In reference to the application of the lex loci rei sitm to wills executed in another state or county, and as to the recognition accorded to foreign pro- bates, the statutes of the various states are even more dis- cordant and conflicting than in relation to the acknowledg- ment and proof of deeds. ^ By a recent statute of Texas, where a will conveying lands in that state has been probated in another state, a certified copy of such will and its probate may be recorded by the register of deeds in the county where the land lies, without further proof or authentica- tion.^ This is, perhaps, the law in a few other states; and such a provision, it may be presumed, will ultimately become general, and be made as mandatory as any other record of title, whether the will has been probated in another state, or in a county., within the state, other than where the land lies. A purchaser from a devisee under a duly probated will is not affected by a subsequent setting aside of the will;* and the rule extends also to a purchaser under a sale by order ^ Kev. Stats, of Texas (1S79), §4876. 2 By the laws of Ehodle Island (Pub. Stats., ch. 183, §10), and of six- teen other states, no will executed out of the state is valid, uuless ex- ecuted according to the laws of the home state. In Oregon and Mis- souri, an exception is made in favor of wills conveying personalty. In Maine (Eev. Stats., ch. 64, §12), and thirteen other states, a will made out of the state but within the United States is valid, and will pass prop- erty in the state, if valid by the law of the state or territory where it is made; and in several states this is the case where the will is executed in a foreign country. In Iowa (Rev. Code, 1873, §2351), and eighteen other states, the probate of a will' in another state will be recognized, usually with little other requirement than that a copy of the will and certificate of its probate be filed in the proper court. s Laws of 1887, p. 38; Sayles' Tex. Civ. Stats., §548o. The probate of a will in one state is not notice in another state where the lands de- vised are situate, and an innocent purchaser of the lands will be pro- tected against the will where he purchases from the heirs in whom the apparent title is vested under the rules of descent. Staton v. Singleton (Tex.), 9S. W. Kepr. 876. * Fowlke v. Zimmerman, 14 "Wall. (81 U. S.), 113; Davis v. Gaines, 104 U. S. 386; Grignon's Lessee v. Astor, 2 How. (43 U. S.), 319; Waters V. Stickney, 12 Allen, 15; Knoblock v. Mueller, 17 N. E.Eep. (111.), 696; Williams on Executors (6 Am. ed.), 590 and notes; Steele v. Kenn, 50 Tex. 468. (7— Eeg. of Title.) 97 Ch. 2. J INSTRUMENTS ENTITLED TO KECORD. [§51. of a probate court. ^ But if such purchaser knew, or had good reason to believe, there was a later will, he is charge- able with actual notice, and is not protected.^ A will has been held not to prevail against an unrecorded deed, and the record (probate) of the will by one named therein as executor not to militate against his superior right to land of which he was in possession by virtue of an unrecorded con- tract with the testator.^ 1 Davis V. Gaines, supra; Allen v. Dundas, 3 T. K. 125; Lalanne v.- Moreau, 13 La. Ann. 431; McNutt v. Turner, 16 Wall. 352; Ballow v. Hudson, 13 Gratt. 672; Steele v. Eenn, 50 Tex. 468. 2 Myra Clark Gaines v. De LaCroix, 6 Wall. (73 IT. S.), 719, in which Judge Davis makes a very pointed application of the rule. " Woods V. Farmere, 7 Watts, 382; s. C. 32 Am. Dec. 772; Martin v. Jackson, 27 Pa. St. 509. In Hall's Lessee v. Ashby, 9 Ohio, 96; s. c. 34 Am. Dec. 424, Grimke, J., says it is impracticable to establish aregistry of wills similar to that of deeds, because the will is not committed to the devisee, but to the executor; and because it is impossible to fix an express period for registry in consequence of the absence, legal inca- pacity or future interest of the devisee — hence it was held in that case that the law did not require the registry of a foreign will. Where a will is probated within the state, a bona fide purchaser from the devisee will be protected against an unrecorded deed made by the testator in his lifetime. Lyon v. Gleason (Minn.) , 42 N. W. Kepr. 286. Ch. 3.j ACKNOWLEDGMENT. CHAPTBE 3. ACKNOWLEDGMENT. §52. Purpose of the acknowledgment. 53. Where acknowledgment not required. 54. For what not necessary. 55. Acknowledgment necessary to the record. 56. As proof of execution. 57. By whom to be made. 58. By one of sever*! grantors. 59. By agents and trustees. 60. On behalf of corporations. 61. Before whom to be made. 62. Deputies, magistrates, etc. 63. Ex-officio officers. 64. De-facto officers. 65. Local jurisdiction of the officer. 66. Presumptions as to jurisdiction and authority. 67. Disqualification of officer by interest. 68. Disqualification by relationship. 69. The certificate of acknowledgment. 70. Caption and locality. 71. Official capacity must appear. 72. Initial letters and abbreviations. 73. Using official seal. 74. Seal to be shown how. 75. Certificates of magistracy and conformity. 76. Identity of gi-antor. 77. The words of identity. 78. Stating grantor's name. 79. Substantial compliance sufficient. 80. Equivalent expressions. 81. Omission of material words. 82. Clerical omissions and mistakes. 83. Surplusage. 84. Dating the certificate. 85. Signature of the officer. 86. Certificate on same sheet with deed. 87. When and of what certificate is conclusive. 88. How far certificate is conclusive. 99 Ch. 3. J ACKNOWLEDGMENT. [§52. 89. Certificate impeacbable for fraud. 90. Evidence necessary to overcome the certificate. 91. Amendment of the certificate. 92. Continued. 93. Conlinued — Married women. 94. Correction by the courts. 95. Aclcnowledgmeut of ancient deeds. 96. Testimonios and public acts of sale. 97. Validating statutes. §52. Purpose of the Acknowledgment. Ackaowledgment or proof of a deed or other instrument authorized by law to be recorded, made before some desig- nated officer and duly certified, has hitherto been almost universally required by the statutes as a prerequisite to valid registration. 1 The object of the acknowledgment, it has been said, is to insure the authenticity of the instru- ment and to prevent one person from personating another.'' It would seem that this object is sufficiently attained by the statute of Georgia, in requiring that the execution of the deed be attested by two witnesses, one of whom shall be an officer; and such attestation, without any certificate of the officer, is all that is required, whether the deed be that of husband or wife.^ In Kansas it is sufficient that the officer certify that the grantor in the deed, being known to him as such, appeared before him "and duly acknowledged the 1 Hitz v. Jenks, 123 U. S. 298; s. C. 8 Sup. Ct. Repr. 143; Stevens v. Hampton, 46 Mo. 404; Schultz v. Moore, 1 McLean, 620; Barney v. Sut- ton, 2 Watts, 31; Hastings v. Vaughan, 5 Cal. 31.5; Johns v. Scott, 5 Md. 81; Taylor v. Harrison, 47 Tex. 454; s. 0. 26 Am. Eep. 304; Work V. Harper, 24 Miss. 517; White v. Denman, 1 O. St. 110. 2 McConnell v. Reed, 2 Scam. 371; Livingston v. Kettelle, 1 Glim. 116; s. O. 41 Am. Dec. 166. An acknowledgment estops the grantor from saying his signature wasforged. Chivington v. Colo, Co., 9 Colo 597; s. C. 14 Pac. Repr. 212. 3 Code of Ga. (1SS2), §2707; Dinkins v. Moore, 17 Ga. 64; and see ante, §8, note. Acknowledgment is not necessary in Louisiana and Alabama, except where recording is invoked to supply proof of the execution of the in- strument. The record imparts notice without it. Stallcup v. Pyron 33 La. Ann. 1249; Dyke v. Dyer, 14 Id. 701; Fairthorn v. Davis, 28 Id. 728- Allen V. Whetstone, 35 Id. 850; Code of La. §2253; Tranum v Wilkin- son, 81 Ala. 408. 100 Ch. 3. ] ACKNOWLEDGMENT. [§52. execution of the same.''^ Usually the statutes require much more than this, and because of errors and omissions in tak- ing the acknowledgment and in writing down in the certifi- cate all that is required, these provisions serve in a very large proportion of cases to defeat the record entirely. In a few instances the statutory forms have been cumbered with matter so entirely immaterial that its omission has been disregarded by the courts ; as in Alabama, where the prescribed form of certificate requires the statement that the deed was executed "on the day the same bears date;"^ and in Texas, where the certificate is required to state that the grantor executed the deed "for the purposes and considera- tion therein expressed."^ 1 Dassler's Comp. Laws of Kan. §1034. 2 Bradford v. Dawson, 2 Ala. 203 ; Hobson v. Kissam, 8 Ala. 357 ; Car- ter V. Chandron, 21 Ala. 72. In Mississippi the certificate must show the grantor's acknowledg- ment that he "delivered" the instrument. Buntyn v. yhippers' Co., (jS Miss. 94; which subsequent matter, though already acknowledo-ed may or may not occur. In Florida it is held that proof of the "execu- tion" of an instrument by a witness, includes proof of its delivery. Ed- Ward V. Thom. h South. Repr. 707. 3 Kev. Stats, of Tex. §4313; Monroe v. Arledge, 23 Tex. 478. In this case the court says : "The deed Itself must import a consideration, if none be expressed; and if one be expressed, it is not material that the one expressed be the one upon which It was actually made. This then is a formal part of the certificate, which, for the sake of regularity, should be inserted, but its omission does not invalidate the certificate." But the Arkansas court attaches some consequence to these words on the supposition that ".they must have been Intended to serve some proper purpose or they would not have been placed there." Griesler v. McKennon, 44 Ark. 517; Clapp v. Halliday, 48 Ark. 259; Little v. Dodge, 32 Ark. 453; Jacoway v. Gault, 20 Ai-k. 190; s. C. 73 Am. Dec. 494; and see, also, Currie v. Kerr, 11 Lea (Tena.), 138. A statute of California provided for the recording of sheriffs' certifi- cates of sale, but said nothing about their acknowledgment, and it was held that acknowledgment was not necessary. "Doubtless it would be within the power of the law makers," said Searle, J., "to provide that all instruments should be recorded so as to impart notice without the formality of proof or acknowledgment." Foorman v. Wallace, 75 Cil. 552, 557; s. C. 17 Fac. Repr. ()80; and for a similar decision requiringno acknowledgment for the record of assignments of mortgages, seeHonore v. Wilshire, 109 111. 103, 107. 101 Ch. 3.j ACKNOWLEDGMENT. ,[§53. §53. Where Acknowledgment Not Required. Within a few years past the statutory requirements as to acknowledgement have, in a number of states, been much simplified, and in several' states they have been dis- pensed with entirely, so far as notice by recording is con- cerned ; and registration has been authorized without any acknowledgment or proof whatever.^ This is more espec- ially true of the western states and territories whose codes and systems of laws have been but recently formulated and arranged. In South Carolina the statutes have never pro- vided for ackdowledgment, but only for proof by subscrib- ing witnesses.^ The proper acknowledgment of a deed is a statement by the grantor that he signed or executed it; and the various other matters found in the prescribed forms oi certificate (except as relating to married women) as a rule serve no useful purpose, and could in many instances be rejected as mere surplusage.^ There is no presumption of law that a man's act in signing a written instrument is invol- untary, and it should be presumed to be his "free and vol- untary act," even though this be not stated in the certifi- cate; just as it will be presumed that he executed it for the "uses and purposes therein mentioned and expressed," and not for some other supposable purpose.* ' Kev. Stats, of Conn. (1875), tit. 18, ch. 6, art. 1, §3; Code of Ala. (1876), §2153; Tranum v. Wilkinson, 81 Ala. 408; Gen. Stats, of Colo- rado (1883), §217; Code of W.ish. Ter. (1881), §2323; Kev. Stats, of 111. (Hurd, 1883), ch. 30, §31; Morrison v. Brown, 83 111. 562; Eeed v. Kemp, IB 111. 445; Stebbins v. Duncan, 108 U. S. 32; Stalloup v. Pyron, 33 La. Ann. 1249; Holladay v. Daily, 1 Colo. 460; Brown v. Simpson, 4 Kan. 76; ante, §8. 2 Gen. Stats. (1882), §§1775-1777. 5 In the various states, almost without exception, any deed may be authenticated for record on proof by a subscribing witness, and it is usually sufficient for the witness to state that he saw the grantor sub- scribe the Instrument. See posJ, ch. 5. The genuineness of the signa- ture is the fact to be established, whether by acknowledgment or proof. So, this is sufficient in the proof of the execution of the instrument at common law; that it was executed unwillingly, or under duress, or without consideration, being matters of defense. * In Webb v. Huff, 61 Tex. 677, the notary had omitted the words, "Given under my hand and seal," found in the statutory form; and it Is 102 Ch. 3. ] ACKNOWLEDGMENT. [§54. §54. For What Acknowledgment Not Necessary. As a general rule acknowledgment is not necessary to the validity and sufficiency of a deed or other written instru- ment, as between the parties to it; an unacknowledged deed being usually held to pass title equally with one duly acknowledged and certified. ^ Exceptions to this rule exist in a few instances where registration is held essential to the validity and operation of a deed or mortgage even as between the parties to it;^ and also as to certain classes of instruments, such as sheriffs' deeds, which by the terms of some of the statutes are not complete and operative until acknowledged. 3 The exception applies also to deeds by said in the opinion that while "these venerable words ought, no doubt, to be used by all notaries, yet their presence or absence does not affect the instrument, as it adds nothing to the officer's seal and signature for him to say 'this is my seal and this my signature,' or to use any equiv- alent words." Where the certificate did not state that the grantor executed the in- strument "freely and voluntarily," the court said that the voluntary ex- ecution of the instrument must be presumed, from the fact that he ac- knowledged that he "executed the same." Henderson v. Grewell, 8 Cal. .581. 1 Morse v. Beale, 68 Iowa, 463; s. C. 27 N. W. Eepr. 461; Stephens v. Williams, 46 Iowa, 540; Williams v. Jones, 95 N. 0. 504; Manaudas v. Mann, 14 Or. 450; Webb v. Chisholm, 24 S. C. 487; Klein v. Richard- son, 64 Miss. 41; Leinenkugel v. Kehl (Wis.), -10 N. W. Repr. 683; Brown v. Phil. Bank, 6 Serg. & R. 484; Hill v. Samuel. 21 Miss. 307; Jackson v. Allen, 30 Ark. 110; Stewart v. Matthews, 19 Fla. 752; Har- rison v. McWhirter, 12 Neb. 152; s. C. 10 N. W. Repr. 545; Wark v. Willard, 22 N. H. 468; Raines v. Walker, 77 Va. 92; Ricks v. Reed, 19 Cal. 551; Fletcher v. Ellison, 1 Tex. Un. Cas. 661; post, §189. In New York, under 1 Rev. Stats. §137, art. 4, an unacknowledged and unattested deed, purporting to convey a freehold estate, although de- livered, is absolutely void, and actual notice of its existence cannot af- fect a subsequent purchaser from the grantor. Chamberlain v. Spargur, 86 N. Y. 603. So, in Alabama, a deed without acknowledgment, and also without subscribing witnesses, is ineffectual as a transfer of land. Code of Ala. §§2145, 2146; Hendon v. White, 52 Ala, 597; Lord v. Fol- mar, 57 Ala. 615; Bank v. Jones, 59 Ala. 123. 2 Black V. Vaughan, 70 Tex. 47; S. C. 7 S. W. Repr. 604; Phifer v. Barnhart, 88 N. C. 333; Chamberlain v. Spargur, 86 KT. Y. 603; Nellis V. Munson, 108 K. Y". 453; s. C. 15 N. E. Repr. 739; Thomas v. Thomas, 10 Ired. 123. 3 Roads V. Symmes, 1 Ohio, 315; Ryan v. Oarr, 46 Mo. 483; Clarke v. Tucker, 6 Vt. 81 ; Adams v. Buchanan, 49 Mo. 64 ; DeHavens Appeal, 38 Pa. St. 373. 103 Ch. 3.] ACKNOWLEDGMENT. [§55, married women in states where a separate examination is required.^ In Alabama the statute requires a deed to be attested by witnesses, but provides that acknowledgment before an officer dispenses with the necessity of such attest- ation; and it is held that without either witnesses or ac- knowledgment, a deed is insufficient to convey title to land.^ In North Carolina a deed is held not to convey a perfect legal estate until duly registered.^ §55. Acknowledgment Necessary to the Record. As already stated, acknowledgment is in most states held necessary to a valid registry, and without it, or with defec- tive acknowledgment, the record will not impart construct- ive notice.* Where the acknowledgment is in due form, a latent defect, such as that the officer acted out of his juris- diction, will not prevent the record from imparting notice.* Numerous illustrations of the rule that a defective acknowl- edgment will not support the record, are given throughout the succeeding sections of this chapter. 1 Civ. Code of Cal. §1186. See post, chap. 4; Hitz v. Jenks, 123 U. S. 298. lu Arkimsa-;, siace the constitution of 1874, the wife's deed conveys title withoat acknowledgment, although acknowledgment is still requisite to recording. Criscoe v. Harabrick, 47 Ark. 235; s. c. 1 S. W. Kepr. 160. 2 Code of Ala. §§2144-2146; Stults v. Kohn, 64 Ala. 186. " Phifer v. Barnhart, 88 N. C. 333; Robinson v. Willoughby, supra. A deed is valid at common law between the parties, if signed, sealed and delivered, though not witnessed, acknowledged or recorded. Good- enough V. Warren, 5 Saw. 494, 498; Clarke v. White, 12 Pet. 178, 197. In Alabama, a deed without acknowledgment or witnesses does not convey the legal title, but may be enforced as an agreement to convey. Code §§214,5-6; Carpenter v. Hall, 83 Ala. 171; Evans v. Richardson, 7& Ala. 329; Lord v. Folmar. 57 Ala. 615. As to New York, see Nellis v Munson, lOS N. Y. 453, 457. ■•.Bank v. Neal, 28 W. Va. 744; Cox v. Wayt, 26 Id. 807; Pringle v. Dunn, 37 Wis. 449; s. c. 19 Am. Rep. 772; Bass v. Estill, 50 Miss. 300; Willard v. Cramer. 36 Iowa, 22;' Peters v. Cleuients, 46 Tex. 115; Crad- dock V. Merrill, 2 Tex. 494; Todd v. Outlaw, 79 N. C. 235; Greenwood v. Jenswold, 69 Iowa. 53; s. c. 28 X. W. Repr. 43.J; Irwin v. Welsh, 10 Neb- 479; Blood v. Blood, 23 Pick. 80; Herndon v. Kimball, 7 Ga. 472- and cases cilfd in note 1, §52. ante. ' = Titus v. .Johnson. 50 Tex. 224; Peterson v. Lowry, 48 Tex 408- Heilbrun v. Hammond, 13 Hun. 474; Stevens v. Hampton, 46 Mo 404 104 Ch. 3. J ACKNOWLEDGMENT. [§56. §56. Acknowledgment as Proof of Execution. Ap important effect given by most of the statutes to the probate of an instrument, or to its probate anrl record, is that this is made a substitute for the common law proof of the execution of the instrument when offered in evidence.^ This effect depends entirely upon the statute, and is usually made only prima facie proof, sufficient in cases where the genuineness of the instrument is not impeached by the other party under affidavit, but not otherwise.^ The ac- Objection that a mortgage of the property of two persons purporting to be partners, was executed by one of them only, and that there was no proof of partnership, held to be obviated by the act of the other party in aclinowledging before a notary public, that his oo-partner was authorized to exeuute the instrument. Haldeman v. Knight, Dallam (Tex.), 556. In Illinois, where the statute requires anaclinowledgment of a chattel mortgage talf orris, 5 Blackf. 479 ; Sheldon v. Stryker, 42 Barb. 284 ; Dorn v. Best, 15 Tex. 62; Mclntire v. Ward, 5 Binu. 296: Wise v. I'ostlewait. $ W. V. 452; Harrington v. Pish, 10 Mich. 415; Brunswick v. Brackett, 37 Minn. 54; s. c. 33 N". W. Repr. 214.' 2 "Instruments like this," said Judge Swayne, in Kelly v. Calhoun, 95 U. S. 710, "should be construed, if it can reasonably be done, iit re» magis valeat quam pereat. It should be the aim of the courts, in oases like this, to preserve and not to destroy. Sir Matthew Hale said they should be astute to find means to make acts effectual according to the honest intent of the parties." See for an application of the principle, Talbertv. Dull, 70 Tex. 675; s. C. 8 S. W. Repr. .i30. "It is against the spirit and genius of our government," said the Pennsylvania court, speaking of a certificate o£ acknowledgment made by a justice of the peace, "to extend nice technical objections to the acta 136 Ch. 3.] ACKNOWLEDGMENT. [§80. by the statute.^ There are some exceptions to this rule, however,^ and in no case will the entire omission of a dis- tinct and material fact be supplied by presumption.' The application of the rules as to substantial compliance is best shown by the illustrations given in the notes to these sec- tions. §80. Equivalent Expressions. If the certificate, instead of the statutory terms, use other words of equivalent import, it will not be invalidated thereby.* A literal compliance with the statute is not re- quired, and a deviation from its terms will not vitiate, pro- vided the certificate contains everything of substance pre- scribed by the law.^ Thus "executed" may be used for "signed, sealed and delivered," and the latter words will of magistrates who are called from the mass of the people to discharge duties without previous legal learning or expei'ience." Angler v. Schief- felin, 72 Pa. St. 106'; s. C. 13 Am. Kep. 659, citing Kigler v. Cloud, 2 Harris, 361. 1 Webb v. Huff, 61 Tex. 677, cited ante, §54, notes : Hobson v. Kis- sam, 8 Ala. 357. 2 Nothing will be presumed in favor of the certificate of acknowl- edgment. Wetmore v. Laird, 6 Biss. 160. What is written in the stat- ute, is written — and must ])e written in the certificate. Jaooway v. Gault,20Ark. 190; S. C. 73 Am. Dec. 494; Wright v. Graham, 42 Ark. 140; and for other cases requiring strict compliance, see Myers v. Boyd, 96 Pa. St. 427; Knighton v. Smith, 1 Or. 27U; Buell v. Irwin, 24 Mich. 145. Kogers v. Adams, 66 Ala. 600; Mount v. Kesterson, 6 Coldw. 452. 3 To certify that the grantor appeared before the officer and signed the deed, is not sufficient. McDaniel v. Needham, 61 Tex. 269; Kogers V. Adams, supra. < "Separate and apart," held equivalent to "privily." Combes v. Thoipas, 57 Tex. 321 ; and see Deery v. Cray, 5 Wall. 795, S06. Where the certificate stated that the grantors, naming them, were known to the officer to be the persons described in and who executed the same, instead of the "foregoing instrument," it was held sufficient; the certificate being attached to the deed, but not referring to it other- wise than by the words "the same." Smith v. Boyd, 101 N. Y. 473. Acknowledging the instrument -'to be their act and deed," held equiv- alent to stating that "they signed, sealed and delivered the same." Sharp V. Hainilton, 12 N. J. L. lOS; Parsons v. Boyd, 20 Ala. 112. s "Personally came," sufficiently imports that the party came before the officer. Schley v. Pull. Car Co., 120 U. S. 575; and so, "known to me to be the person who executed the foregoing instrument," held equiv- alent to "personally known to me to be the real person who, and in 137 Ch. 3.j ACKNOWLEDGMENT. [§81. suffice for the term "executed. "^ Even the word "ac- knowledged" may be supplied by other words; as where the certificate stated that the president of a corporation be- ■ing sworn, "deposes and says" that by authority of the board of trustees, etc., he did subscribe the deed.^ A num- ber of illustrations of the rule are given in the foot-notes.' §81. Omission of Material Words. The statutes require that the grantor acknowledge the ex- ecution of the instrument, aud a failure in the certificate to state this fact by the use of the word "acknowledged," or other words of equivalent import, is fatal error.* The cer- tificate must show that the grantor acknowledged that he executed the instrument; a statement that the grantor ac- knowledged that executed it, is insufficient.^ The omission of such formal expressions as "Given under my whose name such acknowledgment is proposed to be made." Id; Liv- ingston V. Kettelle. 1 Gilm. IIG; s. c. 41 Am. Dec. 166. "Voluntary act," will suffice for "voluntary act and deed." Spitz- nagle v. Vauhessch, 13 Xeb. 338. AVhere the certificate recited that a deputy county clerk, who had executed a tax-deed, acknowledged its execution by him "as such county clerk." it was held sufficient. Ward V. W.alters, 63 Wis. 39; s. c. 22 iST.'vV. Repr. 8-14. ' Smith v. Williams, 38 Miss. 48; Tubbs v. Gatewood, 28 Ark. 128- Stuart V. Dutton, 30 111. 91. ' 2 Chouteau v. Allen, 70 Mo. 290. But "stated," held not equivalent to "acknowledged." Dewey v. Campau, 4 Mich. 56.=). 3 "Acknowledged it," held sufficientlor "acknowledged theexecution of the annexed deed." Davar v. Cardwell, 27 Ind. 4. "Acknowledged the foregoing instrument to be his act and deed," held equivalent to "acknowledged that he signed, sealed and delivered the foregoing deed." Halls v. Thompson, 1 Sm. & M. (9 Miss.), 443; and see also, Pickens v. Knisely, 29 W. Va. 1 ; s. c. 6 Am. St. Rep. 622! Referring to the instrument as "the foregoing mortgage," wheu it is a deed, held not to vitiate. Ives v. Kimball, 1 Mich. 308. So, the use of "power or .allorney,"in place of "deed." Hurt v. McCartney, IS 111. 129. * McDaniel v. Needham, 61 Tex. 269; Stanton v. Button, 2 Conn. 527; Cabell v. Grubbs, 48 Mo. 3.53; Dewey v. Campau, 4 Mich. 565- Short V. Conlee, 28 111. 219; Bryan v. Ramirez, 8 Cal. 461; s. c. 6S Am! Dec. 340. But in Basshor v. Stewart, 54 Md. 376, the omission of "and acknowledged said mortgage," was held not fatal, although there were no other words in the certificate supplying their place. ^ Huff v. Webb, 64 Tex. 2S4; Buell v. Irwin, 24 Mich. 152. But see Musgrove v. Bosner, 5 Or. 313; s. c. 20 Am. Rep. 737. 138 Ch. 3.] ACKNOWLEDGMENT. [§82. hand and seal," "for the purposes and considerations therein expressed," and the like, is usually held immaterial on the ground that ttiey signify nothing, and therefore their presence or absence cannot add to or detract from the legal effect of the certificate.^ It is held, however, in other cases that the courts have no right to dispense with such ex- pressions, where prescribed by statute, because they may conceive them to be immaterial or meaningless.^ So, for a like reason, and upon the ground of a supposed difference between a man's deed and his voluntary deed, the omission of the word "voluntary" has been held fatal. ^ The omis- sion of the name of the grantor and of the words of iden- tity, has been already considered;* omissions relating to the separate acknowledgments of married women will be treated in another chapter.^ §82. Clerical Omissions and Mistakes. Errors and omissions of a manifestly clerical character are rarely held to vititate the certificate.^ Many of these arise from oversight in filling blanks in the printed forms of certificate; and while an omission to state who acknowl- edged the instrument, or that it was acknowledged, has usually been held fatal, almost every other character of omission in filling such blanks, has been treated as a cler- ical mistake such as did not destroy the validity of the » Webbv. Huff, 61 Tex. 677; Monroe v. Arledge, 23 Tex. 478; Hob- son V. Kissam. 8 Ala. 357. 2 Jacoway v. Gault, 20 Ark. 190; s. c. 73 Am. Dec. 494; Wetmore v. Laird, 5 Biss. 160. 3 Wickershara v. Keeves, 1 Iowa, 413; Spitznagle v. Vanhesscb, 13 Neb. 338; Newm.an v. Samuels, 17 Iowa, 528. But see, Henderson v. Grewell, 8 Cal. 581; ante, §50, notes. * §§73-75, ante. ^ Ch. 4, post. The omission of "sealed and delivered" in "signed, sealed and delivered," held fatal. Toulman v. Heidleberg, 32 Miss. 268. Compare, Barton v. Morris, 15 Ohio, 408; Smith v. Elliott, 39 Tex. 201; contra, Mullins v. "Weaver. 57 Tex. 5. 6 Quimby v.Boyd, 8 Colo. 194; s. c. 6 Pac. Eepr. 462. The use of "contract" for "retract" in the certificate to a wife's acknowledgment, held immaterial. Belcher v. Weaver, 46 Tex. 293; s. C. 26 Am. Kep. 267. So, the omission of. "sippeared" from its usual place. Scharfen- burg V. Bishop, 35 Iowa, 60. Cll. 3. ] ACKNOWLEDGMENT. [§83. record. 1 Where, through mistake in stating a wrong county in the caption, it appeared from the certificate that the officer did not have jurisdiction, evidence was admitted to show the mistake, and the certificate upheld.^ A sheriff's deed was executed by the officer who made the sale, but appeared to have been acknowledged by his predecessor who made the levy. The court declined to assume that this was a clerical error, and held the certificate defective.* Generally, where the defect can be reconciled, or does not, in a material' degree, render the certificate indefinite or iincertain, it will not invalidate.^ §83. Surplusage. Superfluous matter in the certificate will not vitiate it; as where, the statute not requiring it, the officer added in the certificate to a wife's acknowledgment, that she "wished 1 Omission of "his" before "free and voluntary act," held not to vitiate. Diokerson v. Davis, 12 Iowa, 353; and so, of "be" In "known to me to be," Johnson v. Badger Mill Co., 13, jSTev. 351; and so, of "known" in "the contents of said instrument being fully made kuowa to her," Hornbeck v. Building Association, 88 Pa. Stat. 64; and so, of "fully" in the same connection, Hartshorn v. Dawson, 79 111. 108; and of "are," after "who," Id; and of "before me," after the word "ac- knowledged," Gordon v. Leech, 81 Ky. 229, and after "appeared," achley V. Pull. Car Co., 120 U. S. 575. 2 Angier v. Schiefeelin, 72 Pa. Stat. 106; s. C. 13 Am. Kep. 659. 8 Lincoln v. Thompson, 75 Mo. 613; and see, Cavitt v. Archer, 52 Tex. 166. "The court cannot, by intendment or construction, fill a blank or supply a word." Stanton v. Button, 2 Conn. 527. ■* Ogden V. Walters, 12 Kan. 282. The certificate to a wife's deed stated that the contents of said husband, instead of "said deed," were fully made known to her; and It was held sufficient. Calumet Co. v. Eussell, 68 111. 426. A certificate that the grantors, well known to the oflicer, appeared, and that "they acknowledged that signed and executed the within - deed," omitting "they," was held suflacient in Musgrove v. Bosner, 5 Or. 313; s. C. 20 Am. Kep. 737. See, contra, Buell v. Irwin, 24 Mich. 152; Huff V. Webb, 64 Tex. 284. As to erasures and interlineations, see Bowlby v. Thunder, 3 Atl. Repr. (Pa.), 588; Devinney v. Reynolds, 1 Watts & S. (Pa.), 328. A deed purported to be executed by G. W. G. as attorney in fact for H. M. The certificate of proof for record by a subscribing witness was to the effect that he saw H. M. execute it as attorney in tact for G. W. G. The court refused to treat this as a clerical error. Cavitt v. Archer, 52 Tex. 166. 140 Ch. 3. J ACKNOWLEDGJIENT. [§84. not to retract it."^ Where the certificate is put in the form of an affidavit, the signature of the party and jurat of the officer will be regarded as mere surplusage.^ A certificate stated that yie deed was executed and proved or acknowledged accordino; to law. It was held that the words "or proved" were surplusage, there being nothing in the certificate to which they could be referred.' §84. Dating- the Certificate. An omission to date the certificate, or an error in its date, will not invalidate it.* A deed takes effect from its delivery;^ a date to it is not essential, and still less is it necessary to an acknowledgment.^ If there be no date to the certificate, the court will presume, in the absence of proof to the contrary, that the acknowledgment was taken at the time the deed bears date.' Where the statute required the certificate of acknowledgment to state the time when it was taken, and this was not done, the court held that by reference to the date of the instrument and its certificate of record, the date of the acknowledgment ^ Stuart V. Button. 39 111. 91; and see Draper v. Bryson, 17 Mo. 71; S. C. 57 Am. Deo. 257. 2 Whitney v. Arnold, 10 Cal. 531 ; Ingraham v. Grigg, 13 S. & M. (21 Miss.), 22; Chouteau v. Allen, 70 Mo. 290. But the signature and jurat alone, are not sufficient. Dugger v. Collins, 69 Ala. 324. 3 Nelson v. Graff, 44 Mich. 433. But where the proof for record was by a subscribing witness, and the certificate was that the witness saw the grantor sign, or heard him acknowledge that hg had signed the deed, it was held bad for uncertainty, Harvey v. Cummings, 68 Tex. 699; s. C. 5 S. W. Eepr. 513. For other cases of surplusage, see Chester v. Rumsey, 26 III. 97; Crowley v. Wallace, 12 Mo. 143; Tourville v. Pierson, 39 111. 446. * Webb V. Huff, 61 Tex. 677; Caruthers v. McLaran, 56 Miss. 371; Horsleyv. Garth, 2 Gratt. 471; s. O. 44 Am. Dec. 393; Yorty v. Paine. 62 Wis. 154; s. O. 22 N. W. Kepr. 137; Sidwell v. Birney, b9 Mo. 146; Brooks V. Chaplin, 3 Vt. 281 ; s. c. 23 Am. Dec. 209; Shields v. Nether- land, 5 Lea, 193; Trulock v. Peeples, 1 Ga. 3; Lea v. Polk, 21 How. 493; Kackleff v. Norton, 19 Me. 274; Irving v. Brownell, 11 111. 402; Hobson V. Kis?am, 8 Ala.' 327. ' Caruthers v. McLaran, supra. 6 3 Black. Com. 307; 1 Steph. Com., p. 459; Webb v. Huff,sMpTO. ' Trulock V. Peeples, 1 Ga. 3 ; and see Witkes v. Caulk, 5 Har. & J. 36. 141 Ch. 3. J ACKNOWLEDGMENT. [§§85, 86. was sufficiently determined ;i and where, under such a stat- ute, the date of the certificate was prior to that of the deed, it was presumed to be correct, and that the error was in the date of the deed.^ §85. Signature of the Oflacer. The officer must sign the certificate; it is not enough that he has written his name in the body of it.^ This construction arises in part from the sjjecific requirement of some of the statutes tliat the officer shall sign and seal the instrument; and in part from considerations of public policy growing out of the fact that these certificates, involving but a small fee to the officer, are often given on printed forms, in which the officer's name and title is written beforehand in the appropriate blanks, so that any other rule as to the signature would afford opportunities for fraud to be committed with comparative impunity.* The officer's title may be shown in connection with the signature, or in the body of the certificate.^'' §86. Certificate on Same Slieet with Deed. The Revised Statutes of Texas provide "that any officer taking the acknowledgment of a deed or other instrument ^ Kelley V. Rosenstock, 45 Md. 3S9. A deed was executed in 1S81, and the certificate of acknowledgment purported to bear date in 1S80. Held immaterial. Yorty v. Paine, 62 Wis. 154; s. c. 22 N. W. Kepr. 137. So, where the certificate of acknowledgment was dated April 21, and the deed April 23, of the same year. Hagenbuck v. Phillips, 112 Pa. St. 284; s. C. 6 Eastern Repr. S02; 3 Atl. Repr. 78y; and see Attaway v. Carter, 1 Tex. Un. Cas. 73, 77. 2 Cover V. Manaway, 115 Pa. St. 338; s. C. 8 Atl. Repr. 393; 2 Am. St. Rep. .552. Antedating the deed is of no avail. Simpson v. Lovering, 3 Bush. 458; s. c. 96 Am. Dec. 252. A discrepancy of dates is immate- rial. Sellers v. Sellers, 98 X. C. 13; s. c. 3 S. E. Repr. 917. 3 Marston v. Bl-adshaw, 18 Mich. 81 ; s. c. 100 Am. Dec. 152; Bigelow V. Booth, 39 Mich. 624: Jefferson v. Hell, 81 Ky. 513; Carlisle v. Car- lisle, 78 Ala. 542; Clark v. Wilson (111.), 19 K. E. Repr. 800. ■• Marston v. Bradshaw, supra. " See §68, ante. An alteration of a deed, after acknowledgment and before delivery, which restricts instead of enlarging the interest con- veyed, does not necessitate a new acknowledgment. Webb v Mulllns 78 Ala. 111. ■ ' 142 ^'h- 3. J ACKNOWLEDGMENT. [§87. of writing must place thereon his official certificate signed by him and given under his seal of office. "^ The codi- fiers in submitting the Revised Statutes to the legislature for adoption, stated in their accompanying report that their object in requiring the certificate to be placed on. the deed was to prevent affixing the certificate with mucilage, etc. 2 The Supreme Court of that state, however, held as sufficient a certificate so attached. The report of the codifiers, it is said in the decision, was not enacted as part of the revision, nor otherwise prescribed as a source from which to ascertain the legislative intent as expressed in the statutes ; but the legislature had prescribed certain rules of construction, and under them the usual meaning of the word "placed" could not be restricted so as to exclude attaching the certificate to the deed with mucilage in the common method.^ In Ohio the court reach a different con- clusion as to attaching the certificate, but under a statute somewhat more definite in its terms. There the require- ment was that Ihe officer should "certify the acknowledg- ment on the same sheet on which the deed is written or printed," and it was held that a certificate written on a separate paper and attached to the deed in the usual method was invalid. The object of the requirement, it was said, was to guard against fraud and mistake, and a certificate so attached was in violation of the plain terms and the meaning of the statute.* §87. Wlien and of what the Certificate is Oonclnsive. In all cases the certificate of acknowledgment is prima facie proof of its genuineness, and that the officer making it is such officer as he purports to be, and that the facts therein recited are true, if they are such facts as the officer ■ Art. 4311 . » 2 Sayles' Tex. Ann. Stats., p. 734. ^ Schramm v. Gentry, 63 Tex. 583. < Winkler v. Higgins, 9 O. St. 599. 143 Ch. 3. ] ACKNOWLEDGMENT. [§87. is by law required to certify.^ The least that can be claimed for it is that it is pri7na facie proof .^ Wheu, by whom and under what circumstances this presumption of law may be rebutted, and the recitals contradicted or dis- proved, will be found to ,depend on a variety of consid- erations. It is well settled that parol evidence will not be admitted to supply defects in the certificate so as to make a valid certificate out of that which is otherwise invalid. The certificate cannot rest partly in writing and partly ia parol. A limited number of cases holding that where the certificate does not show the official character of the officer, this may be shown by parol evidence, may be regarded as in the nature of an exception to this rule.* Also where the certificate is regular and sufficient on its face, it cannot be defeated on account of mere irregularity in the taking of the acknowledgment.^ Matters of no. greater weight and consequence than this, will not suffice to overcome the presumption of law in favor of an official act. The grantor whc has requested an officer to take and certify his acknowledgment, and who has made what he then un- derstood to be a proper acknowledgment, is estopped to deny his own act on account of irregularities in the form 1 People V. Snyder, 41 N. Y. 397, and cases cited, §63, ante; Wharton on Ev. 1052; Keen v. Coleman, 3 Wright, 299; Schrader v. Decker, 9 Pa. St. 14; s. c. 49 Am. Deo. 538; Miller v. Wentworth, 82 Pa. St. 280. A statement in the certificate that the grantor is ol age may be contra- dicted. Williams v. Baker, 71 Pa. St. 476. 2 Borland v. W'alrath, 33 Iowa, 130. 8 Sewall V. Haymaker, 127 U. S. 719; Ennor v. Thompson, 46 111. 214; Lindley v. Smith, 46 111. 523; Boss v. MoLung, 6 Pet. 283; Smith v. Allis, 52 Wis. 337; s. C. N. W. Repr. 155; Ins. Co. v. Nelsop, 103 U. S. 544; First. Nat'lBk. V.Paul, 75 Va. 694; s. c. 40 Am. Kep. 740; Jourdan V. Jourdan, 9 Serg. i& K. 268; s. C. 11 Am. Dec. 724; Watson v. Bailey, 1 Binn. 470; s. C. 2 Am. Deo. 462; Looney v. Adamson, 48 Tex. 619; Berry v. Donley, 26 Tex. 737, 747; Hitz v. Jenks, 123 U. S. 298. * Bennett v. Paine, 7 Watts, s. c. 32 Am. Dec. 765; and cases cited in note to §68, ante. i Miller v. Wentworth, 82 Pa. St. 280; Jamison v. Jamison, 3 Whart. 457; S. C. 31 Am. Dec. 536; Barnet v. Barnet, 15 Serg. & R. 72; Shields V. Netherland, 5 Lea, 103; Cos v. Gill, 83 Ky. 669; Harpending v. Wiley, 14 Bush. 380. 144 ■Ch. 3. J ACKNOWLEDGMENT. [§88. and details of taking, or even of certifying it. As to him it is sufficient if the law holds as done that which he at- tempted to do, and to have done.^ The rule as to irreg- ularities and estoppel is subject to some exception in the matter of the separate acknowledgment of married women. ^ In several states the certificate is by statute made prima ^ac2e evidence only ; and the influence of these statutes is shown in the admission. of parol evidence, without connect- ing the grantee with any fraud, to show for instance, that the deed of a married woman was not in fact explained to her by the officer.^ Owing to this difference in the statutes, and also to a difference in the courts, the decisions as to the -conclusiveness of the certificate are not uniform. §88. Continued— How far Certificate Conclusive. Regarded from the stand-point of reason and of public policy, it would seem that certificates of acknowledgment should in most respects be held as conclusive as judgments of a court, and upheld in substantially the same degree. Formerly acknowledgments were largely taken in open court,* and although, for the sake of convenience, this method has been changed, there has not necessarily been iiny change in the underlying principle of the matter. The ' Jackson v. Golden, 4 Cow. 266. 2 But a widow who has paid the interest upon a mortgage, will be deemed to have ratified it, .and will be estopped to deny that the requisite private examination was made. O'Keefe v. Handy, 31 La. Ann. S32; Eiggs v. Boylan, 4 Biss. 44.i. 3 Code of Wash. Ter. (1881), §2321; Hitz v. Jenks, 123 U. S. 298; Dodge V. Hollingshead, 6 Minn. 25; s. C. 80 Am. Dec. 433; Van Brack- lin V. Fonda, 12 Johns. 468; s. C. 7 Am. Deo. 339; Forgarty v. Finlay, 10 Cal. 239; s. C. 70 Am. Dec. 714; Hutchison v. Rust, 2 Gratt. 394; Ford V. Teal, 7 Bush, 158; Hughes v. Coleman, 10 Bush, 248; Rev. Stats. Ky.,1 Slanton, 282; Drury v. Foster, 2 Wall. 24; s. C. 1 Dill. 460; Landers v. Bolton, 26 Cal. 393; Comp. Laws of Utah, p. 255, §9; Tarpey V. Desert Salt Co., 14 Pac. Kepr. 338; Johnson v. Burdeu, 40 Vt. 567; s. C. 94 Am. Dec. 436. * Blauchard v. Taylor, 7 B. Mou. 647; Elliott v. Peirsoll, 1 Pet. 328. "The act is clothed with the same force and effect that was anciently produced by the court of record * * * and takes the place of the judgment of former times." Merritt v. Yates, 71 111. 6J9; s. C. 22 Am. JRep. 128; Sewell v. Haymaker, 127 U. S. 719. (10— Reg. of Title.) 145 Ch. 3. J ACKNOWLEDGMENT. [§89. certificate is a written declaration and determination, by an oflScer appointed by law, of matters within his jurisdiction to determine and certify. The officer acts under the sanc- tion of his oath and the penalties of his bond; he must not be directly interested in the matter, and in a certain sense, as repeatedly held by the courts, he acts in a judicial capac- ity.^ The integrity and conclusiveness of certificates of acknowledgment to deeds, is a matter on which the security of titles largely depends ; and while there is much differ- ence in the manner of impoachinga certificate and of attack- ing a judgment, an examination of the decided cases will show that in very many instances, the courts have required, in order to set aside or defeat a certificate, substantially the same character and degree of evidence as required to set aside a judgment. That the grantor did not in fact appear before the officer to make any acknowledgment is a matter that may always be shown, ^ for the reason that in such case the officer is without jurisdiction in the premises, as much so as a court would ordinarily be without jurisdiction where there are no parties properly before it. Like the deed itself, or a judgment, the certificate of acknowledg- ment may be shown a forgery by any person interested in the property, and is at all times open to attack on this ground, as well as upon the ground that no acknowledg- ment was in fact made or attempted.^ - §89. Certificate may be Impeached for Fraud. It has been stated, as a general proposition, that the certificate cannot be impeached for anythino- but 1 Kerr v. Russell, 69 111. 666; s. C. 18 Am. Rep. 634; Lickman v. Harding, 65 111. 505; Wasson v. Conner, 54 Miss. 352; Hector v. Glas- gow, 79 Pa. St. 79; s. c. 21 Am. Kep. 46; and cases cited in note 3, §65, ante. 2 Straiioh v. Hathaway, 101 111. 11; s. C. 40 Am. Rep. 193; Smith v. Ward, 2 Root, 378; s. O. 1 Am. Dec. 80; Michener v. Cavender, 38 Pa. St. 334; s. C. 80 Am. Deo. 486; Donahue v. Mills, 41 Ark. 421 : William- son V. Carskaddeu, 36 O. St. 664. » MoKinnon v. McLean, 2 Dev. & Bat. 79, and cases last cited above. 146 Ch. 3.] ACKNOWLEDGMENT. [§89. fraud. This must be understood as havina: no reference to proving the certificate a forgery, or to disproving the entire fact of acknowledgment; and the term fraud must be understood to include such matters of gross im- position, duress and gross concurrent mistake as consti- tute a species of legal fraud, though not within the ordi- nary meaning of the word.^ Expressions are to be found in the books that seem to make quite a 'distinction between cases where the certificate is sought to be impeached "as between the parties,"^ and cases where the property has passed to a subsequent vendee, but the distinction is one of fact rather than of law. The grantee in the deed, as a matter of fact, is more likely to be a participant in the fraud, and ti) have knowledge or notice of it, than a subsequent pur- chaser ; but if such knowledge or notice can be clearly brought home to the subsequent vendee, equity will not suf- fer him to occupy any better position in the matter than his vendor.^ If the grantee had no knowledge of any fraud, imposi- tion or collusion by which the acknowledgment was ob- tained, and there was nothing justly putting him on notice of it, he cannot be affected by it, and the certificate is con- clusive.* It does not devolve on him to see that the grantor 1 Williams V. Baker, 71 Pa. St. 476; Pereau v. Frederick, 17 Neb. 117; S. C. 22 N. W: Kepr. 2.3.5; Schrader v. Decker, 9 Barr, 14; s. C. 49 Am. Dec. 538; Whart. on Ev., §§1052, 495; Greeu v. Scranage, 19 Iowa, 461; s. C. 87 Am. Dec. 447; Central Bank v. Uopeland, 18 Md. 305; s. C. 81 Am. Dec. 597. 2 Williams v. Baker, supra; Homeopathic Co. v. Marshall, 32 N. J. Eq. 106; Whart. on Ev., §1052. 3 Ormsby v. Budd, 72 Iowa, 80; s. C. 33 N. W. Kepr. 457; McCanless V. Engle, 51 Pa. St. 309; White v. Graves, 107 Mass. 325; Michener v. Cavender, 38 Pa. St. 334; s. C. 80 Am. Dec. 486; Warren v. Hall, 53 Mich. 371 ; Somes v. Brewer, 2 Pick. 184. * Webb V. Buniey, 70 Tex. 322; s. C. 7 S. W. Repr. 841; Hartley v. Frosh, 6 Tex. 208; s. C. 55 Am. Dec. 772; Henderson v. Terry, 62 Tex. 281 ; McDannell v. Horrell, 1 Tex. Un. Cas. 521 ; Kerr v. Eussell, 69 111. 666; s. C. 18 Am. Eep. 634; Harkins v. Forsylhe. 11 Leigh, 294; Johns- ton V. Wallace, 53 Miss. 331; s. c. 24 Am. Kep. 699; Singer v. Kook, 84 Pa. St. 442; s. C. 24'Am. Kep. 204; Ridgley v. Howard, 3 H. & McH., 211; Hitz V. Jenks, 123 U. S. 298; Young v. Duvall, 109 U. S. 573, 577; 147 Ch. 3.] ACKNOWLEDGMENT. [§90. is not imposed on by third parties who may be interested in having the conveyance made; nor to see that the notary does his duty in making the privy examination of a married woman. 1 Bat if lie has linowledge of facts that ^h()uld put him on inquiry, and remains silent and inactive on the sub- ject, it is at his peril. ^ §90. The Evidence 3fecessary to Overcome the Cer- tificate. The certificate constitutes the evidence of the execution of the deed to which subsequent purchasers must ordinarily look, and upon which they must rely, and the proof of fraud to destroy it must be clear, cogent and convincing: a mere preponderance of evidence will not suffice.^ The Hall v. Patterson, 51 Pa. St. 2S9; Pouns v. Williams, 48 Tex. 141; Downing V. Blair, lo Ala. 21t); Meyer v. Gosser, 38 Ark. 377; Baldwin V. Snowden, 11 O. St. 2U3; s. C. 78 Am. Deo. 303; White v. Graves. 107 Mass. 325; s. c. 9 Am. Kep. :i8; Lane v. Schlemmer, 114 Ind. 296; s. C. 5 Am. St. Rep. G21; Eollins v. Menager. 22 W. Va. 461; Mays v. Hedges, 79 Ind. 288 ; Marsh v. Mitchell, 26 N. .J. Eq. 497 ; Shields v. Netherlands, 5 Lea, 193; Smith v. Allis, 52 Wis. 337; Johnson v. Van Velsor, 43 Mich. 208; s. c. 5 N. W. Eepr. 273; Moore v. Fuller, 6 Or. 272; Davis V. Kennedy, 38 Tex. 516; DeArnaz v. Escandon, 59 Cal.486. See, how- ever. Central Bank v. Copeland, 18 Md. 305; s. c. 81 Am. Deo. 597. 1- Pierce v. Fort, 60 Tex. 464; Henderson v. Smith, 23 W. Va. 829; s. C. 53 Am. Bep. 139. 2 Michener v. Cavender, 38 Pa. St. 334; s. c. SO Am. Dec. 486; Pierce V. Fort, swpra; Louden v. Blythe, 16 Pa. St. 532; s. C. 65 Am. Deo. 527; 27 Pa. St. 22; 67 Am. Dec. 442. 3 Barnett v. Preskauer, 62 Ala. 486; Jourdan v. Jourdari, 9Serg. &K. 268; s. c. 11 Am. Dec. 724; Ford v. Osborne, 45 O. St. 1; Sisters v. Catholic Bishop, 86 111. 171; Hughes v. Coleman, 10 Bush, 248; Marston V. Brittenham, 76 111. 611; Grotenkemper v. Carver, 9 Lea, 280; Bailey V. Landingham, 53 Iowa, 722; Riecke v. Westenhoff, 10 Mo. App. 358"; Young V. Duvall, 109 U. S. 573; Shelton y. Aultman, 82 Ala. 315. A simple majority of witnesses will not answer. Strauch v. Hath- away, 101 111. 11 ; s. C. 40 Am. Rep. 193. The evidence must be clear and convincing beyond a reasonable doubt. Russell v. Baptist Union, 73 111.337, 341; Cox v. Gill, 83 Ky. 669. For cases in which the evidence was held sufficient to overcome the certificate, see Borland v. Walrath, 33 Iowa, 130; Pickens v. Knisely, 29 W. Va. 1; s. C. 6 Am. St. Rep. 622; Lowell v. Wren, 80 111. 238, quoted at length in Devlin on Deeds, §533. See also, Webb v. Webb, 87 Mo. 540; s. C. 4 West Repr. 618; Michener v. Cavender, 38 Pa. St. 334; S. C. 80 Am. Dec. 486; Schrader v. Decker. 9 Barr, 14: s. C. 49 Am. Deo. 538. 148 Ch. 3. J ACKNOWLEDGMENT. [§90. officer who certified the acknowledgment will not be heard to stultify himself by testifying that he did not take it, or that it was not properly taken as stated in the certificate.^ His certificate is entitled to at least equal credibility with his oath, and public policy cannot permit testimony so dan- gerous to the titles of the country. When the certificate is attacked as a forgery or fabrication, it is not sufficient that the officer who purports to have signed it, does not remem- ber the transaction.^ The grantor is an interested witness, and his unsupported testimony is not sufficient to overcome the certificate;^ nor is the proof of any one witness, not supportedby corroborating circumstances.^ The improb- ability of misconduct in a reputable officer, who is not a party to the transaction, and who acts under oath, and is liable to indictment for the misconduct, as well as under his bond, is greater than is that of falsehood or error in an interested witness.^ Johnston v. Wallace, 53 Miss. 331; S. C. 24 Am. Rep. 699; Stone v. Montgomery, 35 Miss. 83; Higbtowerv. StifHer, 21 Md. 338; s. C.83 Am. Dec. 593; Kennedy v. Ten Broeck, 11' Bush, 260; Central Bank v. Cope- land, 18 Md. 305; s. C. 81 Am. Dec. 597; Harkins v. Forsythe, 11 Leigh, 294. By force of certain statutes, the evidence of the oflEicer is sometimes admitted to contradict the certificate. Garth v. Fort, 15 Lea, 683; Kil- hourn v. Fury, 26 O. St. 153. The notary is a competent witness for the purpose of showing that the deed was duly executed, when its execu- tion is denied. Jansen v. McCahill, 22 Cal. 563; s. c. 83 Am. Dec. 84, 593. 2 Wright V. Bundy, 11 Ind. 398; Tooker v. Sloan, 30 N. J. Eq. 394. That the otflcer is not certain that the person in whose name a deed is executed is the same person whose acknowledgment he took, and thinks such person was a smaller man, is not sufficient. Sisters v. Catholic Bishop, 86 111. 171. 3 Fitzgerald v. Fitzgerald, 100 111. 385; Canal Co. v. Russell, 68 111. 426; Llckman v. Harding, 65 111. 505; Homeopathic Co. v. Marshall, 32 N. J. Eq. (5 Stew.), 106. 4 Warrick v. Hull, 102 111. 280. And see, Strauch v. Hathaway, 101 111. 11; S. C. 40 Am. Rep. 193; Washburn v. Roescb, 13 111. App. 268; Young V. Duvall, 109 U. S. 573; Smith v. MoGuire, 67 Ala. 34; Tett v. Rogers, 12 Bush, 564. 5 Russell V. Baptist Union, 73 111. 341. The unsupported testimony of the wife is insufficient. Knowles v. KnowJes, 86 III. 1; Marston v. Brittenbam, 76 111. 611 ; and see also. Cover v. Manaway, 115 Pa. St. 338 ; 149 Ch. 3.J ACKNOWLEDGMENT. [§91- §91. Amendment of the Certificate. The riffht of an ofScer to amend his certificate of ac- kaowledgment after the deed has been recorded is affirmed and denied by something like an equal weight of authority in the decided cases. In Texas, California and some other states, there are statutory provisions to the effect that where an acknowledgment has been properly made but defectively certified, any person interested may have an action in the proper court to obtain a judgment correcting the certificate. 1 By the aid of such statutes a correction can be obtained when the officer neglects or refuses to make the proper certificate, or when by reason of death, removal or expiration of his term of office, the correction cannot be made by him. But the officer himself, it is held, may make the correction, or rather the correct certificate, at any time while he continues in office.^ He cannot, of course, correct the certificate, or give a new one, or perform any other official act in the premises after his term of office has expired.^ Where the officer neglected to sign the certifi- cate of a married woman's acknowledgment, and the deed had been recorded for ten months, it was held that, unless the rights of third persons had intervened, the proper cor- rection could be made, and at any time while he remained in office.* So, where the officer neglects to affix his seal;^ S. c. 2 Am. St. Eep. 5.=)2; Jarrell v. Jarrell, 27 W. Va. 743 ; Rust v. Goff, 94 Mo. 511; S. O. 13 West. Kepr. 60S; 7 S. W. Eepr. 418. 1 Kev. Stats, of Tex. (1879), §4353; Johnson v. Taylor, 60 Tex. 360; Civ. Code of Cal., §1202; Hutchinson v. Ainswovth, 63 Cal. 286. In Tennessee the officer may correct his certificate by making oath in open court. Brinkley v. Tomeny, 9 Baxt. 275; Fall v. Roper, 3 Head. 485; Vaughan v. Carlisle, 2 Lea, 525; Stroud v. McDanlel, 12 Lea, 617; Garth V. Fort, 15 Lea, 683. 2 Jordan v. Corey, 2 Ind. 385; s. C. 52 Am. Dec. 517; Wannal v. Kern, 51 Mo. 150; Balston V. Moore, S3 Ky. 571; Harmon v. Magee, 57 Miss. 410; Bowlby v. Thunder, 3 Atl. Eep. (Pa.), 588; Fall v. Roper, 3 Head. 485; Miller v. Powell, 53 Mo. 252; C. B. & Q. By. v. Lewis, 4 JST. W. Eepr. 842. 3 Gilbraith v. Gallivan, 78 Mo. 452. * Harmon v. Magee, supra. » StoU V. Harrison, 73 Ind. 20. See King v. Eussell, 40 Tex. 124. 150 Ch. 3.1 ACKNOWLEDGMENT. [§92. and to insert in the certificate that the married woman was examined without the presence of her husband. ^ . §92. Amendment of Certificate— Continued. The right of the officer to make any correction whatever has been strenuously denied,^ but the reasoning in support of the objection is not satisfactory. It is said that the of- ficer acts as under a special commission, and that when he has taken the acknowledgment and delivered the certificate, • his power over the subject is exhausted, just as that of a notary who has returned a deposition to a court. ^ But there is no special delegation of authority made, or neces- sary to be made, in order that an acknowledgment may be taken; no court to which the officer makes a return, and no analogy between the cases. It has also been said that if the officer has the right to amend the certificate by showing an acknowledgment, he has the right to contradict it by denying all acknowledgment.* This, however does not fol- low, and such a right is not claimed for the officer. He will not be heard in court, nor permitted out of court, to impeach his certificate showing an acknowledgment, by de- 1 Jordan v. Corey, supra. As to admitting the certificate in evidence, although the mistake has not been corrected, see Merchant's Banlc v. Harrison, 39 Mo. 433; Sharp V. Hamilton, 12 N". J. L. 109; Jforthrop v. Wright, 7 Hill, 47(3. 2 Wedel V. Harmon, 59 Cal. 507; First Nat'l Bank v. Paul, 75 Va. 594; s. C. 40 Am. Eep. 740; Merrit't v. Yates, 71 111. 639; s. c. 22 Am. Kep. 128; Boursv. Zachariah, 11 Cal. 2S1 ; s. C. 70 Am. Dec. 779; Elliott v.PeirsoU, 1 Pet. 328; Enterprise Transit Co. v. Sheedy, 103 Pa. St. 492; S. O. 49 Am. Rep. 130; McMullen v. Eagan, 21 W. Va. 233; Devlin on Deeds, §§539-546; O'Farrall v. Simplot, 4 Iowa, 381. 3 Bours V. Zachariah, supra. In this case the court advances one idea worthy of note here, viz : that the human memory is uncertain, and that the allowance of such amendments subjects the titles of the coun- try to the mercy of the officers' memories. But while memory allows facts to slip from its grasp, lapse of time does not usually generate a recollection of facts that did not occur. * Bours v. Zachariah, supra. The opinion in this case is quoted at length in 1 Devlin on Deeds, §542. "The clerk does not contradict his own certificate by showing he did something more than appears from the record" — hence such amendment allowed. Ealston v. Moore, 83 Ky. 671. 151 Ch. 3. J ACKNOWLEDGMENT. [§92, nyiag the truth of what he has certified. ^ The case i& where the certificate does not show au acknowledgment; where, being deficient in law, it fails of effect, and there i& nothing, legally, to be contradicted ; where it is apparent that the duty imposed upon the ofBoer by the request of the grantor acknowledging has not been properly dis- charged. That there is error in the certificate is patent, except on the theory that the grantor has fraudulently re- quested the ofiicer not to take his acknowledgment prop- erly, but to take an improper acknowledgment, or to cer- tify it insufliciently. Tlie rights of third persons that may have intervened a#e not to be affected by the amendment; and the right of any other person to object to a second or corrected certificate cannot properly be greater than his right to have objected to the issuance of a correct certificate in the first instance. Often the deed is attested by sub- scribing witnesses, and is delivered to the grantee unac- knowledged, and without the proof for record having yet been made. The grantee may have it proved for record at any time thereafter;^ and that he must apply to the oflacer a second time to get a proper certificate of the proof made out, and that he must have his deed recorded a second time in order to get a proper record of it, are matters with which the grantor has no concern. The presence, at the writing out of the certificate, of the person acknowledging or the witness proving the deed, is not required by law, and, therefore, no necessity exists for again bringing the party before the officer to repeat his former statement.^ A re- cording oiEcer, it is held, has the right to correct a mistake made by him in recording the deed,* and since all correc- ' Stone V. Montgomery, 35 Miss. 83, and other- cases cited in note 1, §90. ajite. ^ It is the duty of ihe purchaser, not of the vendor, to have the deed probnted. Carter v. Corley,-23 Ala. Q\'l. 3 Harmon v. jMao;ee, 57 Miss. 410. ^ Baldwin v. Maishajl. 2 Humph. 116; Chamherlain v. Bell, 7 CaU 292; s. c. 68 Am. Dec. 260. 152 Ch. 3. ] ACKNOWLEDGMENT. [§93. tions must be made subject to the rights of third persons that may in the meantime have accrued on the faith of the record as at first made, it would seem that the acknowledg- ing ofScer has an equal right to correct mistakes in his part of the record.^ §93. Amendment of Certificate— Married Women. ' In those states, about one-half in number, where a privy- examination of married women is required, if the defect in the certificate be that it fails to show the requisite separate examination and ccmsent of the wife, the objection to an amendment of such certificate presents at least a debatable question. The jarinciples of equity have been somewhat stretched in holding that a married wotnan who appears be- fore an officer and makes what she then understood to be a sufiicient acknowledoment, can afterwards take advantage ' Mr. Martindale in his worlt on Conveyancing (§292), doubts that a second.registi-alioD of the deed would be valid without legislative sanc- tion, because a question might arise as to which record is to be held as imparting the notice, and because the searcher, finding the first record, might not be bound to continue his search. He, therefore, suggests the record of a new deed. The searcher, however, would be no more likely to find the second deed than to find the second record of the first deed. •'Every consideration of the subject and construction of the statute founded in the convenience or incouveuience, real or supposed, of searching the records, * * * jg wholly impertinent." Dixon, C. J., in Fallas v. Pierce. 30 Wis. 442. One who searches and actually reads or sees the first record, although the acknowledgment to it be defective, would be thereby put on inquiry and charged with notice. Walter v. Hartwig, 108 Ind. 123; s. c. 3 West. Repr. 881; Musgrove v. Bosner, .5 Or. 313; s. C. 20 Am. Kep. 737; Hastings v. Cutler, 4 Foster, 481. The necessity for the new record is to chai-ge with constructive notice those who do not actually examine the records. A re-record of the deed, and not an alteration of the record as first made, is the proper practice, in order that the date of the correct record may clearly appear. A note should be made in the margin of the first record, showing where the new record may be found. King v. Bales, 44 Tnd. 219. Where the wife makes a new acknowledgment, unless the rights of third parties have intervened, it will relate back. Cahall v. Mutual Assoc 61 Ala. 232. But not as against such rights. Coal Creek Co. v. Heck, S3 Tenn. (15 Lea), 497, 513; Fall v. Koper, 3 Head. 486; Harrison V. Wade, 3 Cold. 505., In Tennessee it has been held that the deed of a woman, made while she was sole, cannot be recorded after her marriage without a separate acknowledgment. Johnson v. Walton, 1 Sneed, 258. 153 Ch. 3.] ACKNOWLEDGMENT. [§93. of the manner in which it was taken, and avoid her deed for want of a full complianoe with the particulars of the law in the matter of the acknowledgment ;i but no equity whatever exists in her favor where the acknowledgment was in fact properly made, and the defect is merely that the officer, through mistake or oversight, failed to certify it as required by law. In such latter case, the question is whether the wife actually made the proper acknowledgment. This fact the law requires to be shown by the certificate of the officer, and the objection is that having issued a certificate that fails to show it, he should not be permitted to give another and different one. It is not reasonable to presume that the of- ficer would have intentionally given a certificate that is a nullity, but rather that if the proposed acknowledgment had actually failed in any essential particular, he would have declined to certify an acknowledgment, and that the defect in the certificate is the result of clerical oversight. Nor is there, in reason, any stronger presumption in favor of the truth of the invalid and abortive certificate than in favor of an amended or second certificate, showing that that was properly done* which the grantor's appearance be- fore the officer evidently contemplated should be done. If the officer be false, both certificates are unreliable; but if he be truthful, as the law presumes, and as the parties must be held to have presumed when entrusting the business to him, the latter certificate must be held the correct oue.^ 1 That the feme covert received the purchase money,' used it ia im- proving her separate property, and had acquiesced in the sale by per- mitting her vendees to improve the land; held, not to estop her or her heirs from recovering the land, where the acknowledgment of her deed wa« not in compliance with the statute. Johnson v. Bryan, 62 Tex. 623 • Berry v. Donley, 26 Tex. 745; Coal Co. v. Pasco, 79 111. 170; Huffman v! Huffman, 118 Pa. St. 458; s. C. 10 Cent. Repr. 908. The privy examina- tion is now abolished by statute in Illinois and many other states. See post, ch. 4.' 2 Jackson V. Gilchrist, 15 Johns. 89. 3 The officer may be compelled by mandamus to execute a proper cer- tificate if the facts exist that warrant it. Wannall v. Kem, 51 Mo 151 In Elliott v. Piei-soU, 1 Pet. 328, the denial of the officer's right to amend seems to be placed, in part at least, on the ground that in this 154 Ch. 3.j ACKNOWLEDGMENT. [§94. §94. Correction of Certificates of Acknowledgment b.v the Courts. As already mentioned, there are in some states statutory provisions for correcting defective certificates of acknowl- edgment by special suit for that purpose. ^ These statutes usually provide only for cases where the acknowledgment was in fact properly taken. If not actually taken as re- quired by law, a court of equity has no power to correct the error, though it may have been the result of mistake.* And it is held generally that courts of equity have no power to correct any mistake of the officer in the certificate of ac- knowledgment,^ but there are decisions to the contrary where the mistake is of a formal character. Thus where the same person was commissioner of deeds for tvvo states, and described himself in the certificate as commissioner for the wrong slate, it was held that equity would relieve against the mistake.* matter he acts ministerially, and not judicially; while in AVedel v. Har- mon, 59 Cal. 507, the right is denied because he acts judicially, and not ministerially. , ^ Ante, §91 ; Johnson v. Taylor, 60 Tex. 360. So, where an instru- ment is entitled to be proved for record, an action may be had lor a judgment proving it. Kev. Stats, of Tex., §4354; and the cause of ac- tion under that statute held transitory and not local as to venue. Peg- ram V. Owens, 64 Tex. 475. In some states there are statutory provi- sions for compelling an acknowledgment, where the grantor refuses to make it; and for a provisional record of the deed, without acknowledg- ment, pending such proceedings, or pending proceedings for proof of the instrument. Gen. Laws of N. H. (1878), ch. 135, §11 ; Kev. Laws of Vermont (18s9), §1944; Stimsou's Am. Stat. Law, §§1631, 1632. 2 Proof that the wife in fact understood the character of the instru- ment signed by her; that she was not induced to sign it by the Influence of her husband; that she was not under his control, but was, rather than he, the business manager and trader in the marital partnership; tthat for a long time she continued satisfied with the conveyance, and hat the consideration for the land was used for the support of herself and family, held not to authorize a court to give effect to her deed where the separate examination was not had. Berry v. Donley, 26 Tex. 737. And see G-oss v. Furman, 21 Fla. 406; post, §§9S, 121; Huffman v. Huff- man, 118 Pa. St. 458; s. C. 12 AtL Kepr. 308. 3 Eyster V. Hathaway, 50 111. 521 ; s. C. 99 Am. Dec. 537; Shryer v. Nickell, 55 Mo. 264; McBride v. Wilkinson, 29 Ala. 662, and cases cited in note to Jordan v. Corey, 52 Am. Dec. 517. * Simpson v. Montgomery, 25 Ark. 365; s. C. 99 Am. Dec. 228. 155 Cil. 3.] ACKNOWLEDGMENT. [§'J5. §95. Acknowledgment of Ancient Deeds. For the acknowledgment and proof of ancient deeds the law does not require as strict a showing as in case of recent ones.' Thus where the certificate of acknowledgment to an ancient deed recited that the grantor and his wife came be- fore the officer to acknowledge the deed, it was held to im- port also that they did acknowledge it, and that it would be presumed that the wife was privily examined.^ Where the deed is thirty years old, it is admissible in evidence without proof of its execution;' the witnesses are presumed dead;^ and where the deed had been registered for twenty years on a defective certificate of acknowledgment, its probate was conclusively presumed to be proper. ^ The certificate of record endorsed on an ancient deed is sufficient evidence that it was recorded at the time stated therein.^ The pre- sumption of due execution does not attach where a certified copy is offered in evidence;^ at least not without proof of the antiquity of the record as well as of the deed, or other corroborating evidence of age.* • 1 Coulson V. Walton, 9 Pet. 62. The presumptions of regularity and due execution should be indulged "to repair the ravages ol time." Howard v. Colquhoun, 28 Tex. 134, 145. 2 Jaclison V. Gilchrist, 15 .Johns. 89. 3 Applei^ate V. Lexingtou, 117 U. b. 256; Harland v. Howard, 79 Ky. 373; Caruthers V. Eldredge, 12 Gratt. 670; King v. Merritt (Mich.), 34 jSf. W. Kepr. 6S9; Dodge v. Briggs, 27 Fed. Repr. 160; Woods v. Trans- portation _Oo. (Ala.), 3 South. Kepr. 475. < Winn V. Patterson, 9 Pet. 663; Barr v. Gratz, 4 Wheat. 215. « Stroud V. MoDauiel, 12 Lea, 617. See Ri'-rke v. Westenhoff, 10 Mo App. 358. The presumption will not be indulged where the deed is less than twenty years old. England v. Hatch, 80 Ala. 247. Lapse of time will not cure a defective certificate relatino- to trusts Fell V. Young, 63 111. 106. ° 6 Applegute V. Lexington Mining Co., supra; s. C. 6 Sup. Ct. Eepr. 742. ' Patterson v. Collier, 75 Ga. 419. s Brown v. Simpson, 67 Tex. 225; s. C. 2 S. W. Eepr. 644. Where a deed had been recorded in a wrong county, a copy of the record could, by a party who had seen the original, be made to serve as an examined or sworn copy; and it being shown that the officer who took the acknowledgment and the clerk who recorded it were dead and that the land had been claimed under the deed from its date (but 156 Ch. 3. J ACKNOWLKDGtMENT. [§96. §96. Protocols, Testimonlos, and Public Acts of Sale. The system of titles in the early history of Texas, under the Mexican government, was essentially different from that which now prevails, and was similar, in some of its features to that in force in Louisiana. The protocol, or register of title issued by a commissioner, alcalde, or other officer of the government, constituted an archive of his. of- fice. ^ These protocols were afterward required to be ar- chived in the general land office of Texas, and may be proved by a certified copy, without accounting for the tes- timonio,^ which is a second original, issued to the grantee.^ A testimonio, to be admitted to record, must have due authentication attached, such authentication being the ac- knowledgment of his signature by the officer issuing it.* Conveyances by public act before a judge or notary were included in the act of Dec. 20, 1836, and required to be proved and recorded.^ The omission to note the instru- mental witnesses in an act of sale passed before a notary in 1835, did not render the instrument void.^ The office of assisting witnesses was to give to the signature and seal of the judge or alcalde who acted in the place of a notary, the force and effect which the seal and signature of the notary would have without witnesses.^ Copies of notarial acts were under the Mexican law regarded as originals.^ Under without actual possession), and that taxes had been paid, it was held that the execution of the deed was silfficlently proved. Reid v. Howard, 9 S. W.Kepr. (Tex.), 106; and see Shinny. Hicks, 68 Tex. 277; S. O. 4 S. W. Repr. 486. i Paschal v. Perez, 7 Tex. 3.59. 2 Sheppard v. Harrison, 54 Tex. 91. 3 Blythe v. Houston, 46 Tex. 67; Titus v. Klmbro, 8 Tex. 210; Mc- Phaul V. Lapsley, 20 Wall. 264. * Wood V. Welder, 42 Tex. 397; Hutchins v. Bacon, 46 Tex. 409; Fulton V. Bayue, IS Tex. 50. And is admissible in evidence as a re- corded instrument under the statute. Gainer y. Cotton, 49 Tex. 101. 6 Watson V. Chalk, 11 Tex. 89. 6 Cowan V. Williams, 49 Tex. 381. 7 Martin v. Parker, 26 Tex. 253. The title was not invalid for want of the two witnesses of assistance. Clay v. Holbert, 14 Tex. 189; Wat- rous V. McGrew, 16 Tex. 50.3; Ruis v. Chambers, 15 Tex. 586. 8 Titus V. Kimbro, 8 Tex. 210. 157 Ch. 3. J ACKNOWLEDGMENT. [§97. the laws of Coahuila and Texas, in force in 1834, the signa- ture of an oflScer before whom an instrument was executed, though not necessary to its validity, was essential to its character as a public or authentic act, capable of making proof of itself, without extrinsic evidence.^ §97. "Validation of Acknowledgments. The subject of legislative validation of imperfect acknowl- edgments and records, has been already alluded to.^ Stat- utes of this kind intended to care formal defects and irregularities, are a constitutional exercise of legislative power, ^ though retrospective in operation.'*' They are not void as impairing the obligation of contracts,^ but are void in so far as they impair vested rights, or affect the rights of third persons not parties to the instrument validated.* 1 Andrews v. Marshall, 26 Tex. 212. The Act of 1839, In reference to recording, was applicable only to copies of instruments which at the date of the act remaiaed in the pub- lic archives, and did not permit inslruraents then in private hands to be recorded on the faith of certificates made by officers of the pre-existing government. Lambert v. Weir, 27 Tex. 359. For further cases on this subject, see Tbe State v. Sals, 47 Tex. 809; Byrne v. Fagan, 16 Tex. 891; Lee v. Wharton, 11 Tex. 61 ; Hatchett v. Connor, 30 Tex. 104; King v. Elson, 30 Tex. 24G; Beatty v. Whitaker, 23 Tex. 526; Beaumont v. Preston, G.") Tex. 448; Jones v. Monies, 15 Tex. 351; Cavazos v. Trevino, 35 Tex. 134; State v. Cardinas, 47 Tex. 251; Word v. McKinney, 25 Tex. 258; Edward v. James, 7 Tex. 375. In Louisiana not.arial titles were not required to be registered in the recorder's office prior to the Act of April 23d, 1853. Parish Board v. Edrington, 4 South. Repr. 574. 2 Ante, §22. Tbe statutes on the subject are numerous. See Stim- son's Am. Stat. Law, §§1,585. 1626, 6.511. 3 Cooley's Const. Lim., 402. 463; R.averty v. Fridge, 3 McLean, 230; Doe v. Nelson, Id. 383; Johnson v. Taylor, GO Tex. 860; tireeu v. Abra- ham. 48 Ark. 420; Green v. Weissenberg, 57 Pa. St. 433; s. c. 98 Am. Dec. 237; Baker v. Westcott (Tex.), 11 S. W. Kepr. 157; Jones v. Eich- ardson, 44 Ark. 865, 473. * Barton v. Morris, 15 Ohio, 408; Watson v. Mercer, 8 Pet. 88; Baxnet V. Barnet, 15 Si r,'. &, K. 72; s. c. 16 Am. Dec. 516; Hoskinson v. Adams, 77 Mo. 537; Howard v. Moox, 64 N. Y. 262; Foster v. Essex Bank, 16 Mass. 245; Buckley v. Earley, 72 Iowa, 550; S. c. 33 N. W. Repr. 769; Ross V. Worthington, 11 Minn. 488; s. C. 88 Am. Dec. 95. 5 Brinton v. Seevers, 12 Iowa, 89. 6 Cooley's Const. Lim., 472; Grove v. Todd, 41 Md. 633; s. C. 20 Am. Bep. 76; Thompson v. Morgan, 6 Minn. 292; Green v. Drinker, 7 Watts 158 Cll. 3.] ACKNOWLEDGMENT. [§97- The general rule is that statutes of this kind are remedial , and will be liberally construed. ^ Thus, although the statute only provided that deeds defectively recorded might be used in evidence, yet it was held to impart to the record the ef- fect of notice from the date of the statute. ^ In some in- stances, liowever, a stricter construction has been applied. Thus, a statute of North Carolina validating certain records of deeds "which shall have been proved by one or more of the subscribing witnesses thereto," was held not to embrace a deed acknowledged by the grantor.^ Subsequent pur- chasers are bound to take notice of the operation of a val- idating statute.^ Such a statute will not take effect upon an acknowledgment as to which there has already been a, judgment, lUthough the case be still pending on appeal;^ nor upon a judgment;® but it will operate upon an acknowl- edgment between the date of suit filed and the date of judg- ment.^ & S. 440; Kewman v. Samuels, 17 lOwa, 52S; Southard v. Cent. K. Co., 26 ]Sr. J. L. 13; Russell v. Eumsey-, 35 111. 362. A statute providing that deeds theretofore made by husband and wile should not be held defective, because of ' 'any informality or omission in the acknowledgment," was held unconstitutional. Alabama Ins. Co. V. Boykin. 3S Ala. 510. But where the certiticate stated that the wile was examined "separate" from her husband, instead of ''privily and apart," this was held cured by a validating statute. McDannell v. Hor- rell, 1 Tex. Un. Cas. 521. Even the explanation of the deed by the ofii- cer has been held but a matter of form. Cox v. Gill, 83 Ky. 669; Dentzel v. Waldie, 30 Cal. 193. 1 Butler y. Dunagan, 19 Tex. 565; Waters v. Spofford, 58 Tex. 115; Fogg V. Holcomb, 64 Iowa, 621 ; s. C. 21 IST. W. Kepr. Ill ; Carson v. Eaisback, 3 Wash. Ter. 16S; s. C. 13 Pac. Eepr. 618. 2 Fallass v. Pierce, 30 Wis. 442. 8 Denn v. Eeid, 10 Pet. 524. * Journeay v. Gibson, 56 Pa. St. 57. • Wright V. Graham, 42 Ark. 141; Gaines v. Catron, 1 Humph. 514; and see Gait v. Dibrell, 10 Yerg. 147. 6 Ealston v. Moore, 83 Ky. 571. ' Green V. Abraham, 43 Ark. 420; Johnson v. Eichardson, 44Ark. 365. For other cases on the subject of validation, see post, §120; Stroud v. McDaniel, 12 Lea, 617; Shonk v. Brown, 61 Pa. St. 3-20; Blount v. Janesville. 31 Wis. 648; Eich v. Flanders, 39 N. H. 304; Dengenhart v. Cracraft, 36 O. St. 549; Nolan v. Grant, 53 Iowa, 392; Dentzel v. Waldie, 30 Cal. 142; Webb v. Den, 17 How. 578. 159 Ch. 3. J ACKNOWLEDGMENT. [§97. Where eacb of two conflicting deeds of the same property was re- corded on a defective aclcnowledsnient. it was held that the effect of a subsequent validating act was to record both deeds at the same instant of time, and hence left them to operate a^ at common law. by which the one first executed would pass the title. Deininger v. McConnell,41 111. 228. But for case where, under the operation of a validating statute, a deed was held as having been properly acknowledged and recorded originally, see East v. Pugh, 71 Iowa, 162; s. C. 32 K. W. Eepr. 309. Defects of substance in the body of the deed, held not cured by a validat- ing statute. Arginsinger v. Cline, 69 Iowa, 435. The acknowledgment of a deed conveying land in Texas was made before a notary public in Ohio in 1841. At that date there was no law of Texas authorizing a notary public in one of the United States to take acknowledgment of deeds conveying lands in Texas. In 1874 an act was passed providing that instruments which had been properly ac- knowledged out of Texas, and in any state of the United States, before an officer authorized to take such acknowledgment by the laws existing at the date of the act, should be held to have been duly acljnowledged, and that if also registered, they should be considered duly registered with the "full effects and consequence of existing laws." Paschal's Dig., art. 7414a. By the law in force at the date of that act (1874), an acknowledgment taken before a notary public in another state was legal. Pasch. Dig., art. 7418. Held, that the validating act cured the original defect of want of power in the notary, and also made valid the original registration. Baker v. Westcott, 73 Tex. 129, 131 : s. C. 11 S. W. Kepr. 157. 160 ■Cb. 4. J ACKNOWLEDGMENT BY MARRIED WOMEN. [§98. CHAPTER 4. ACKN'OWLEDGMENT BY MAEKIED WOMEN. •§98. Acknowledgment of married women. 99. Distinctive features of the law. 100. Modern changes in the law. 101. Early and later theories of the law. 102. Continued — The modern view. 103. The statutory requisites. 104. The separate examination. 105. Certifying the privy examination. 106. Explanation of the deed. 107. Certifying the explanation. 108. The voluntary execution. 109. Certifying the voluntary execution. 110. The wish not to retract. 111. Substantial compliance. 112. Joint certificates. 113. Identity of the wife. 114. Community property. 115. Relinquishment of dower. 116. Acknowledging deed with blanks. 117. Wife's power of attorney. 118. Wife acting as feme sole. 119. Re-acknowledgment and ratification. 120. Validating deeds of married women. 121. Impeachment of certificate by the wife. §98. Acknowledgment of Married Women. The object of requiring a separate examiaation with cer- tificate thereof where a married woman acknowledges a deed, is said to be two-fold; not only to protect the wife from compulsion of the husband, or ignorance of the con- tents of the deed, but also to facilitate the conveyances of estates of married women,, and to secure and perpetuate evidence upon which innocent grantees as well as subse- quent purchasers may rely.^ The only mode by which a 1 Hitz V. Jenks, 123 U. S. 298; s. c. 8 Sup. Ct. Repr. 143, citing Laur- ence V. Heister, 8 Har. & J. 371, 377. (11— Reg. of Title.:) 161 Ch. 4. J ACKNOWLEDGMENT BY MARRIED WOMEN". [§99- feme covert could, at common law, convey her real estate, was bj uniting with her husband in levying a fine, which was a proceeding of record in a court. ^ The statutory pro- vision is said to be an enlargement and not a restraint of her powers at common law. It facilitates her conveyance, because it authorizes a less formal mode than was known to the common law. But without the statutory acknowledg- ment it is held that her deed does not pass the title, ^ nor convey even an equitable title. ^ §99. Distinctive Features of the Law. It will be seen at once that the law relating to the ac- knowledgment of married women is radically different from that pertaining to ordinary acknowledgments. The manner of acknowledgment is different, and far more so the legal effect of a failure to comply fully with the law. A mar- ried woman's deed cannot be proved by witnesses.* Stat- utes validating defective acknowledgments have been held not to cure defects pertaining to the separate examination, on the ground that the effect of such statutes would be to 1 Butler V. Biickingliam, 5 Day, 492; s. C. 5 Am. Dec. 174; Sewall v. Haymaker, 127 U. S. 719; Morris v. Sargent, 18 Iowa, 99; 2 Kent's Com. 151 ; Prewett v. Graves, 5 J. J. Marsh. 119. 2 Martin v. Dwelly, 6 Wend. 9; s. c. 21 Am. Dec. -245; Knight v. Pax- ton, 124 U. S. 5.02; Hogan v. Hogan, 89 111. 427; Kerr v. Eussell, 69111. 666; s. C. 18 Am. Pep. 634; Harrisonburg Bk. v. Paul, 75 Ya. 594; s. c. 40 Am. Bep. 740; Belcher v. Weaver, 46 Tex. 293; s. c. 26 Am. Pep. 267- Gaffney v. Peeler, 21 S. Car. 55; Wingo v. Parker, 19 S. Car. 13; Jeffer- son Co. v. Heil, 81 Ky. 229; Johnston v. Wallace, 53 Miss. 331; s. c. 24 Am. Rep. 699; Den v. Lewis, 8 Ired. 70; s. c. 47 Am. Dec. 338; Mason v. Brock, 12 111. 273; s. c. 52 Am. Dec. 490; Wambole v. Foote! 2 Dak. 1; s. C. 2 N. W. Eepr. 239; Grove v. Todd, 41 Md. 633; s. c. 20 Am. Pep. 76; Davis v. Agnew, 67 Tex. 206; s. c. 2 S. W. Repr. 43, 376; Gregory v. Ford, 5 B. Men. 471; Muir v. Galloway, 61 Cal. '498; Pikens v. Knisely, 29 W. Va. 1 ; s. c. 6 Am. St. Rep. 622. s Bagby v. Emberson, 79 Mo. 179; contra. Homeopathic Co. v. Mar- shall. 32 X. i. Eq. 106. In Virginia and Ohio her deed docs not con- vey title until recorded. Sewall v. Haymaker, 127 U. S. 719; Eorer v. Roanoke Bank. 83 Va. 589; s. c. 4. S. E. Repr. 720, 731; Harkins v! Forsythe, 9 Leigh, 301; Ludlow v. O'Keil, 29 0. St. 1813- Pickens v' Knisely, 29 W. Va. 1 ; s. C. 6 Am. St. Rep. 622. ' ■> Steele v. Lewis, 1 Mou. 49; Berry v. Donley, 26 Tex. 737 739- Simpson V. Simpson, 93 N". 0. 373; Dawson v. Shirley 6 Blackf 531 ' 162 Ch. 4. J ACKNOWLEDGMENT BY MAKEIED WOMEN. [§9!^. divest the title itself, and to impair vested rights.^ The presumptions of law and the rules of construction are dif- ferent. Thus, a grantor at whose instance the officer takes and certifies an acknowledgment is ordinarily estopped to deny his own act because of irregularities of manner.^ But a married woman cannot be presumed to appear before the officer for the purpose of making an acknowledgment, but rather to have the deed explained to her, after which she may, or may not, desire to acknowledge it. The courts have said that for them to hold a married woman estopped to deny her conveyance by reason of acts and conduct of hers, would be to practically supersede the legislative meth- od, and to allow her estate to be divested in a manner which the statute had not authorized.^ Therefore the doc- trine of estoppel cannot be invoked against her on such grounds as are ordinarily sufficient against persons sui juris, -^ and that she understood the deed perfectly, and signed it willingl}', and received and appropriated the pro- ceeds of sale, and jor a long time remained silent and ac- quiescent, knowingly permitting the vendee to make val- uable improvements on the land — has been held to fall short of that positive and affirmative fraud on her part by which she would be estopped.^ 1 Alabama Ins. Co. v. Boykin, 38 Ala. 510. A deed made by a woman while sole cannot be recorded after her marriage without a separate, privy acknowledgment. Johnson v. VValton, 1 Sneed, 258. 2 Jackson v. Golden, 4 Cow. 266. 2 Berry v. Donley, supra; Johnson v. Bryan, 62 Tex. 623; Oglesby Coal Co. V. Pasco, 79 111. 170; Drmy v. Foster, 2 Wall. 24. * Lowell V. Daniels, 2 Gray, 161; Williams v. Baker, 71 Pa. St. 476; Merriam v. Boston K. K., 117 Mass. 241; Eumfelt v. Clemens, 10 Wright, 455; McBeth v. Xrabue, 69 Mo. 642; Upshaw v. Gibson, 53 Miss. 341. 5 Berry V. Donley, sjipro; and see Huffman v. Huffman, 118'Pa. St. 458; s. C. 12 Atl. Kepr. 308. The leading doctrine that actual notice suijplies registration was by the courts of equity engraf led on tlie registry statute at an early day, not so much because the terms of the statute warranted the constiuc- tion given it — although the use of the word "secret"' in the act was availed of for that purpose — as because the principles of ef/iai!)/ demanded it. Le Neve v. Le Neve, 1 Ves. 64; atite, §1. The American courts are 163 Ch. 4. J ACKXOWLEDGJIENT BY MARRIED WOMEN. [§100. §100. Modern Changes in the Law. The malign influence of the husbaml, who seems by the law to be regarded as the principal and inveterate enemy of the wife, may be such as to justly entitle her to some measure of protection. Yet when that intended protection has been carried to the extent indicated — an extent repug- nant to equity, and such as affords a most inviting and con- venient occasion for the perpetration of fraud, ^ a change in the law may reasonably be expected to follow. What has been said in the preceding sections of this chapter must be understood as a statement of the law as it formerly existed, and as it now exists in only those states where a separate examination is still required. The law on this subject has been undergoing a steady legislative change, until now, in one-half the states and territories, a married woman may convey as if she were sole, and her acknowledgment may be much divided on the subject of the law of married women, and as to how far the powers of a court of equity may extend as against her. A recent eminent law writer states that the tendency of modern authority is strongly towards the enforcement of the ri#e of estoppel against married women as against persons sui juris; and that where statutes have enabled married women to enter irtto contracts as though single, there is no reason why estoppel should not apply to them without any limitation. 2 Pomeroy's Eq. Jurisprudence, §814, citing Dingens v. Clancey, 56 Barb. 566; Fryer v. Eishell, 84 Pa. St. 521; Towels v. Fisher, 77 N. C. 437; Godfrey v. Thornton, 46 Wis. 677; Hockett v. Baily. 86 111. 74; Bigelowv. Foss. 59 Me. 162; Frasier v. Gelston, 35 Md. 298; Brinker- hoff V. Brinkgrhoff, 23 N. J. Eq. 477, 483; Drake v. Glover, 30 Ala. 382; Connolly v. Branstler, 3 Bush, 702; McCaa v. Wolf, 42' Ala. 389; Couch V. Sutton, 1 Grant's Cas. 114; and see Homeopathic Co. v. Mar. shall, 32 N". .1. Eq. (5 Stew.), 106; Crenshaw v. .Julian, 26 S. Car. 283; s. 0. 4 Am. St. Rep. 719; 2 S. E. Repr. 133. 1 "1 am unwilling," said Judge Hitchcock, in an opinion holding that a certificate sufficiently showed the voluntary assent of the wife, although it did not use the statutory terms "to adopt any rule of con- struction, or to recognize as principle a law which will encourage any portion of the community, whether male or female, in fraud or dis- honesty." And continuing, he says that it would shake the titles to millions of property that had been acquired by fair and bona fide pur- chase, and in the conveyance of which the wife had done all that she could do to make it effective. Ruffner v. McLenan, 16 Ohio, 639. If all courts adopted such a rule of construction as was applied by the court in this case, the danger and opportunity of fraud would be greatly les- sened; but unfortunately a much narrower construction often prevails. 164 Ch. 4. J ACKNOWLEDGMENT BY MARRIED WOMEN. [§100. made in the ordinary form.^ At common law the civil dis- ability of a married woman was complete; she had no power to contract, and her civil existence was considered as merged in that of the husband. ^ She was presumed to be under his coercion and control, and it is more than prob- able that during the barbarism of centuries past this pre- sumption rested upon a very substantial basis of fact. It was appropriate at that time, and consistent with the state of affairs and of the law then existing, that for her protec- tion the courts should require that her conveyance should 1 In the following states and territories, a separate acknowledgment is not now required in conveying the wife's separate property. Alabama, §2158, Code of 1S76; Comp. Laws Ariz. Ter. (1877), §2246, (2); Miller V. Fish, 1 Ariz. 232 and 243; Colorado. §2278. Gen. Stats, of 1883; Con- necticut, Gen. Stats. 1888, §2796; Appeal of Spitz, 56 Conn. 184; 14 Atl. Kepr. 776; Dakota; Georgia, Brown v. Kimbrough, no Ga.41; Illinois, §19, ch. 30, Hurd's Rev. Stats, of 1883; Bradshaw v. Atkins, 110 111. 323, 329; Indiana, §2938, Rev. Stats, of 1881; Iowa, §1935, Rev. Code of 1873; Kansas; Maine, Allen v. Hooper, 50 Me. 371 ; Maryland, §79, ch. 44. Rev. Code of 1878; Morris v. Harris, 9 Gill, 19; Massachusetts, White V. Graves, 107 Mas?. 325; s. C. 9 Am. Rep. 38; Michigan, Wat- son V. Thurber, 11 Mich. 457; Minnesota; ^Mississippi. §1193, Code of 1880; Nebraska, Hale v. Christy, 8 Neb. 264; New Hampshire; New York, Cashman v. 5enry, 75 N. Y. 103; Utah; Vermont; Wisconsin, §2224, Rev. Stats. 1878; Hayes v.Frey, 54 Wis. 603; s. c. UN. W.Repr. 695; Wyoming, §2, Rev. Stats, of 1887, and South Carolina. In a few instances, such separate acknowledgment is required where theconvey- ance is of the homestead. Code of Ala., §2882; or of dower. Gen. Stats. of S. C. §1797. In three states that require a privy examination, it is also provided that acknowledgments taken without the state may be made and certified in accordance with the law of the state where taken. See ante, §9; post, §393. ^ "The doctrine of the incapacity of the feme covert, as it exists at common law, can claim such merit as, even in error and wrong, may be attributable to systematic consistency and uniformity. If it be irra- tional jind barbarous, it harmonizes and is in consonance with, and is the result of, rules equally unreasonable and equally tingt'd with the reading of the dark ages. It is the legitimate inference from the por- tentous doctrine, that during coverture the separate legal existence of the wife is extinguished ; or in other words, that her reason, faculties .and intelligence are entombed, while from her legal tomb her husband gains ^an accession of power, dignity, and rights." Jones v. Taylor, 7 Tex. 240, 246. And see, 2 Black. Com. 291, 292; Baxter v. Bodkin, 25 Ind. 172; Dow V. Jewell, 18 N. H. 340; Martin v. Dwelly, 6 Wend. 9; s. O. 21 Am. Dec. 245; Lowell v. Daniels, 2 Gray, 161; Davis v. Andrews, 30 Vt. 681 ; Lindlev v. Smith, 46 lU. 523; Thayer v. Torrey, 37 N. J. L. 339; Goff v. Roberts, 72 Mo. 570. 165 Ch. 4.] ACKNOWI^EDGJIENT BY MARRIED WOMEN. [§101. be by the process of fiae and recovery, involving a privy ex- amination as to her freedom of action. For the sake of convenience this privy examination is now authorized to be made by an officer out of court, instead of in court, as for- merly, but so slight a change of form does not justify the retention of tliis relic of barbaric ages at a time when it is no longer consistent with the wife's recognized civil status, and the rights of property to which she is under the law en- titled. The right of unrestricted acquisition, ownership and enjoyment of property, is separable from the right and power of its unrestricted disposition only by the arbi- trary force of law. §101. The Early and Later Theories of the Law. Aside from the almost entire removal of the disabilities of married women by the statutes of many of the states, the tendency of recent decisions of the courts is towards a much broader and more reasonable construction of the law on this subject than at first prevailed. From the absolute void of the wife's civil non-entity at common law,^ to an al- most full recognition of her natural right to own, enjoy and convey property as any other person, with the powers and liabilities logically incident to ownership, legislation and judicial decision have slowly and gradually advanced for more than a century past. The difficulties and inconsist- encies into which the courts have frequently fallen may be justly attributed to an undue conservatism leading them too often to look backward instead of forward, and thus to mis- construe the purpose and spirit of the advancing law. In the fine and recovery at common law, the title of the feme covert passed by virtue of the judgment of court ;^ the privy 1 2Blackstone's Com.'293; 2 Kent's Cora. 151; Morris v. Sargent, 18 Iowa, 90; Prewett v. Graves, 5 J. J. Marsh, 119; Jones v. Taylor, 7 Tex. 240. 2 "It Is the judgment of the court that gives life and effect to the fine; until the court acts, there is no right transferred; after it has acted, the right is V ested. The acknowledgment of the deed by a party is but ev- dence of that which was previously done, and from the doing of which, 166 Ch. 4.J ACKNOWIiEDGJIENT BY MARKIBD WOMEN. [§101. examination to guard her against the presumed coercion of the husband being but an incident of the proceeding. Af- terwards the statute abolished fines and recoveries,^ and con- ferred upon the wife the power to convey by deed, the title to be passed by virtue of that instrument instead of the judgment of the court. The incident of a privy examin- ation was, however, continued in force, the continued pro- tection of the wife being a matter distinct from, and not necessarily inconsistent with, the power to convey thus con- conferred upon her. Then the question came before the courts, in cases where there had been a failure to comply fully with the statute in respect to the privy examination, as to the force and effect to be given to this requirement.^ Looking back for a rule of construction to the law as it aforetime was, when the wife had no power to convey at all, the courts decided that the matter of the privy examin- ation was an absolute qualification and limitation of the stat- utory grant of power; an essential part of the transfer of title, and not an incident. They decided that the main de- sign of these enabling acts was to protect the property rights of the wife, rather than to confer upon her a power,* and not the acknowledgment of having done it, all its force and effect upon the party is produced." MUner v. Turner's HeifS, 4 Mon. 240, 246; and see Woodbourne v. Gorrell, 66 N. C. 82. 1 3 and 4 Wm. IV, oh. 74; 4 Kent's Com. 51, 52; Williams on Keal Prop., 213, 214; Martindale on Conv., §182. 2 "When the common law dogmas were to be invaded » * » the better policy would have been to abrogate the wife's common law in- capacities entirely * * * and to have carried the legal reform to its logical result. 3 Pomeroy's Eq. Juris., §1126. 2 Jones V. Orossthwaite, 17 Iowa, 393, citing Benton v. Beer, 35B.arb. 78; Howe v. Wildes, 34 Me. 586; Rodemeyer v. Rodman, 5 Iowa, 426; White V. Wager, 25 N. Y. 328. So, it has been held that the deed of a womiu made while sole can- not be recorded after her marriage without separate aclciiowledgment. Johnson v. Walton, 1 Sneed, 258; and the joinder of the husband at that time could as well have been also required, since the wife's deed, with- out his acknowledgment, is held ineffectual. Ludlow v. O'JTeil, 29 O. St. 181, and his acknowledgment cannot be made after her death, though the deed was delivered in her lifetime. Sewall v. Haymaker, 127U. S. 719; s. 0. 8Sup. Ct. Repr. 134S; Rorer v. Roanoke Bk., 83 Va. 589; s. c. 4S. E. Repr. 720. 167 Ch. 4. J ACKNOWLEDGMENT BY MARRIED WOMEN. [§101- although the protection of the court in the process of fine and recovery must have been more effectual than that af- forded by a privy examination before inferior and merely ministerial officers. They held that the privy examination and due certificate thereof were absolutely essential to the validity of the deed;i that these things were the essence and foundation of the deed;^ that it was not the fact of the privy examination merely, but the recording of the fact that made the deed effectual to pass the estate of a feme covert;^ that until her acknowledgment is duly made and certified, the title does not pass,* not even an equitable ti- tle ;^ that the instrument in such case is as destitute of vi- tality as so much blank paper,'' and that no acts of the wife in connection with such deed, not amounting to positive, af- firmative fraud on her part, can create an estoppel against her so as to give it effect.' Such strict construction does not, however, obtain in all cases. Thus the Gen. Stats, of Ky., ch. 81, §17, allow the certitioate of acknowledg- ment to be impeached for fraud, '-or mistake on the part of the officer;" and it was held that the mist.ike conteuiplated by the statute did not ap- ply to the form and manner of taking a married woman's acknowledg- ment, and the certificate being regular on its face, parol proof was not admissible to show that the husband was present,' and that the officer failed to explain the deed to the wife. Cox v. Gill, 83 Ky. 669. ' Goodenough v. Warren, 5 Saw. 494; McOormack v. Woods, 14 Bush, 78; Bank of Healdsburg V. Baillhache, 65 Cal. 406; S. C. 4 Pac. Kepr, 106; Davis v. Agnew. 67 Tex. 208; s. C. 2 S. W. Kepr. 43, 376. ^ Cross V. Evarts, 28 Tex. 502. " Elliott V. Peirsol, 1 Pet. 328, 339; Sewall v. Haymaker, 127 U. S> 719. * Mason v. Brock, 12 111. 273; s. o. 52 Am. Dec. 490; Looney v. Adam- son, 48 Tex. 621; Knight v. Paxton, 124 U. S. 552; Harkins v. Forsythe, 9 Leigh, 301; and numerous cases cited in note 2, §98, anti. ^ Bagby v. Emberson, 79 Mo. 139. ^ Mariner v. Saunders, 5 Gilm. 113; Drury v. Foster, 2 Wall. 24. ' Berry v. Donley. 26 Tex. 746; Lowells v. Daniels, 2 Gray, 161 ; Wil- liams V. Baker, 71 Pa. St. 476; Oglesby Coal Co. v. Pasco, 79 111. 164; Miller v. Shackelford, 3 Dana, 299; McBeth v. Trabue, 69 Mo. 642. An action of ejectment against a naked trespasser will be defeated by ,a defective married woman's acknowledgment in the owner's chain of title, and no proof of proper acknowledgment or execution of the deed-, even if available, can supply the defect. That such fatal effect should he given to an irregularity of this kind, does not seem to have been at first contemplated. See head-note to Fisk v. Miller, 13 Tex. 226; also 168 Ch. 4. J ACKNOWLEDGMENT BY MARRIED WOMEN. [§102. §102. Continued— The Modern View. The courts, however, in many cases where directly con- fronted with the injustice and absurdities arising from a practical application of these irrational doctrines, have re- volted at the consequences, and again and again have re- fused to stand by the logical results and effect of the rules declared, and thus have, involved themselves in numberless contradictions that judicial ingenuity cannot reconcile nor explain away. They have held that a wife's defectively acknowledged deed, otherwise styled blank paper, may by slight acts of her's as widow, be confirmed and so made ef- fectual to convey full title ;i that where the wife is a party litigant and fiiiis to make objection at the trial to the intro- duction in evidence of her defectively certified deed, that this blank paper will thereupon support a verdict for title in favor of the grantee ;^ that her bond for title without any privy examination whatever may be enforced by the courts;^ that such bond conveys an equitable title, that will in a proper state of facts prevail over the le- gal title;* that the statute does not declare void any other mode of conveyance by her than that prescribed;^ that she may be estopped by acts otherwise than af- firmatively fraudulent,*" and that her deed with defect- ive acknowledgment may be validated by subsequent McKinuey v. Matthews (Tex.), 6 S. yf.. Kepr. 793, and 10 N. E. Kepr. 647. ' OlKeefe v. Handy, 31 La. Ann. 832; Carter v. Strapham, Cowp.201; post, §119. 2 Urqiihart v. Womaek, 53 Tex. (il6. And oonstitutes color of title. Perry v. Perry, 99 N. 0. 270; 6 S. E. Eepr. 86. ' Clayton V. Frazier, 33 Tex. 92; and see Homeopathic Co. v. Mar- shall, 32^". J. Eq. (5 Stew.), 106. * Dalton V. Eust, 22 Tex. 134. « 5 Womack v. Woraack, 8 Tex. 397. ^ Dalton V. Rust, supra. The tendency of modern decision is to en- force estoppel against manied women as against persons sui juris, even independently of legislation freeing their estates from all interest and control of the husband. 2 Pomeroy's Eq. Juris., §814, citing Bigelowv. Farr, 59 Me. 162; Brinkerhoff v. Brinkerhoff, 23 N. J. Eq. 477; Drakev. Glover, 30 Ala. 38:i ; Connolly v. Branstler, 3 Bush, 702 ; McCulIough v. Wilson, 9 Harris, 436. 169 Ch. 4. J ACKNOWLEDGMENT BT MARRIED WOMEN. L? legislation without impairing vested rights, for the reason that these matters of the acknowledgment are but mere formalities.^ §103. The Statutory Requisites. The statutes that yet provide for a separate acknowledg- ment usually include these requisites— that the wife shall be examined separate and apart from her husband; that the in- strument shall be explained to her; that she shall acknowl- edge its voluntary execution; and that she- still assents to it, or does not wish to retract it. The statutes are not uni- form in requiring each and all of these, especially the last one. 2 These matters constitute the married woman's ac- knowledgment, as distinguished from ordinary acknowledg- ments; and the omission of any one of them, when re- quired by the statute, is fatal to the deed.^ In a few eases there has been shown a disposition on the part of the courts towards such a construction, in favor of the sufiBciency and legality of the acknowledgment, as might ordinarily prevail in other matters of this general character;* but it may be The mortgage of a married woman ■vvitliout any acknowledgment lias been enforced against her in equity. See Homeopathic Co. v. Marshall, 32 N. J. Eq. (5 Ste%v.), 106. 1 Dentzel v. Waldie, 30 Cal. 193; Watson v. Mercer, 8 Pet. 88; Bar- nettv. Barnett, 15 Serg. & E. 72; s. 0. 16 Am, Dec. 518; Mercer v. Wat- son, 1 Watts, 330; Dnlaney v. Tilghman, 6 Gill & J. 461 ; Lycoming v. _ Union Bank, 15 Pa. St. 171; Watson v. Bailey, 1 Binn. 476; Webb v. Den, 17 How. 577; Cox v. Gill, 83 Kj. 669; Goshorn v. Purcell, 11 0. St. 641 ; post, §120. 2 This last clause is found in the statutes of Rhode Island, Virginia, West Virginia, Texas, California, Nevada, Idaho, Montana, and District of Columbia. In Kentucky she "consents that the same may be re- corded." In Ohio she must be "still satisfied therewith as her act and deed." 3 Garrett n. Moss. 22 111. 363; Ward v. Mcintosh, 12 O. St. 231. ^ Martin v. Davidson, 3 Bush, 574; Gregory v. Ford, 5 B. Mon. 481; Stevens V. Doe, 6 Blackf. 475; Kuftner v. McLennan, 16 Ohio, 639; Cole- man v. Billings, 89 111. 183; Jordan v. Corey, 2 Ind. 3»5; s. C. 52 Am. Dec. 516; Allen v. Reynolds, 35 N. Y. (4 Jones), 297; Russell v. White- sides, 4 Scam. 7; Fleming v. Potter, 14 Ind. 486. "Though it is not ex- pressly stated in the certificate that the effect of the deed was explained to her, or that she declared that she had delivered it, or consented that it might be recorded, each of these facts is clearly implied from its state- 170 Ch. 4. ] ACKNOWLEDGMENT BY MARRIED WOMEN. [§104. regarded as the settled law, resulting as a logical sequence of the prevailing construction adopted by the courts, that a full and specific, though not always a literal, compliance with the statute will be required, both in the taking and in the certification of the acknowledgment. §104. The Separate Examination. The leading idea in the requirement that the wife shall be separately or privily examined, is that she shall be thereby removed from the presence and influence of the husband. He should be so far away that he cannot see or hear any indication of unwillingness on her part, '^ nor communicate to her by word, look or motion.^ But although the statute use the term "private examination," it does not necessa- rily exclude all other persons besides the husband. The examination is sufficiently private if he is excluded.* The officer must himself make the examination; he cannot do so by attorney.* In a case where it is necessary, however, the examination may be made through an interpreter, who ments." Martin v. Davidson, supra; and see also, Whiteliurst v. Hun- ter, 2 Hayw. 401. 1 McCandless v. Engie, 51 Pa. St. 309. 2 Belo V. Mayes, 79 Mo. 67. A certificate is not successfully impeached Ijy the testimony of the husband and wife that the husband remained in the clerk's offloe while the privy examination was taken, the husband stating that he does not remember whether he was out of hearing or not, and the wife being sjlent on this point, and siiying that she signed the deed and acknowl- edged it. G-rotenkemper V. Carver, 10 Lea, 280. Where the deed was read and explained to the husband and wife together, in a room four- teen feet square, after which the wife went out to get the notary a drink of water, and on her return he met her at the door, and standing just inside, asked her, as she was about to step in, if she signed freely, etc. ; held, not a private examination. Webb v. Webb, 87 Mo. 540. 2 Love V. Taylor, 26 Miss. 567; Dennis v. Tarpenny, 20 Barb. 371; Thayer v. Torrey, 37 N. J. L. 339. A contrary rule is announced in Warren v. Brown, 25 Miss. 66; s. C. 57 Am. Dec. 191, which is overruled by Love v. Taylor, supra. See 1 Devlin on Deeds, §§552, 553; Den v. Geiger, 4 Halst. 233; Nanty v. Bailey, 3 Dana, 111. * Dawson v. Shirley, 6 Blackf. 531. If the law require the examina- tion to be made by two officers, one alone is not sUflioient. Malloy v. Bruden, 88 N". C. 305. 171 Ch. 4. J ACKNOWLEDGMENT BY MARRIED WOMEN. [§1"5. should be sworn. i The examination and explanation of the deed must precede the acknowledgment.^ §105. Certifying the Privy Examination. Unless the certificate shows the separate examination, it is fatally defective.-' Some statutes require the examination to be "out of the presence" of the husband, and others, "out of the hearing;" and it is usually held that either of these expressions will, in the certificate, answer for the other ;^ and even the omission of these words has been held not to vitiate where the certificate stated the examination to have been separate and apart from, the husband.^ Where the statutory expression is "separate and apart" from the husband, the use of either one of these words has, in some instances, been held sufficient,^ and in others not sufficient.'^ ' Norton V. Meader, 4 Saw. 603; DeArnaz v. Escandon, 59 Cal. 486; Walter v. Weaver, 57 Tex. 569; Chestnut v. Shane, 16 Ohio, 599. Contra, Dewey v. Campau, 4 Mich. 565. 2 Watson V. Michael, 21 W. Va. 56S; Laidley v. Knight. 23 W. Va. 735. Signing and acknowledging a deed of her separate property by a married woman is not effectual to convey her title when her name does not appear in the hody of the instrument, .and there is nothing to show that the husband, who is the sole grantor, is a married man. Bradley v. Mo. P. Ky. Co., 91 Mo. 493; s. C. 4 S. W. Repr. 427. 3 Jourdan v. Jourdan, 9 Serg. & K. 268; s. c. 11 Am. Dec. 724; Wat- son V. Bailey, 1 Binn. 470; s. c. 2 Am. Dec. 462; Laughlin v. Tream, 14 W. Va. 322; Kendall v. Miller, 9 Cal. 591; Clayton v. Rose, 87 N. 0. 106; Edgerton v. Jones, 10 Minn. 427; Marsh v. Mitchell, 26 N. J. Eq. 497; Bagby v. Emberson, 79 Mo. 139; First Nat'l Bank v. Paul, 75 Va. 594; s. C. 40 Am. Rep. 740; Willis v. Gattman. 53 Miss. 721; Pratt v. Battels, 28 Vt. 685; Graham v. Long, 65 Pa. St. 386; Stillwell v. Adams, 29 Ark. 346; Hartley v. Ferrell, 9 Fla. 374; Harty v. Ladd, 3 Or. 353; Phillips v. Green, 3 A. K. Marsh. 7; s. C. 13 Am. Deo. 124. Under the Kentucky statute, where the acknowledgment is before a clerk in that state, the separate examination need not be certified. Dowell v. Mit- chell, 82 Ky. 47. * Deery v. Cray, 5 Wall. 795; Nippel v. Hammond, 4 Colo. 211. " Pardun v. Dobesberger, 3 Ind. 389; Webster v. Hall, 2 Har. & McH. 19; s. c. 1 Am. Dec. 370. 8 Belo V. Mayes, 79 Mo. 67. ^ Dewey v. Campau, 4 Mich. 565. But the word "apart" held not equivalent to "out of hearing." Butterfield v. Beale, 3 Ind. 203. 172 Ch. 4.] ACKNOWLEDGMENT BY MARRIED WOMEN. [§106. Where it is necessary, the explanation of the deed may be made through a sworn interpreter. §106. Explanation of the Deed. Thre object of requiring the officer to explain the contents of the instrument to the wife is to prevent the conveyance from being obtained by deceit or misrepresentation of the hus- band. ^ A full knowledge on her part of the contents of the deed is one of the principal objects to be attained by the private examination. If she is misinformed as to its con- tents, the conveyance is of no avail against her; and if the deed has been changed in an important particular after her acknowledgment has been taken, she cannot be compelled to abide by the altered instrument.^ It is not sufficient for the officer to merely read the deed to the woman. ^ The ex- planation has been held not necessary where it sufficiently and certainly appears to the officer that the wife already correctly understands the contents and effect of the instru- ment ;■* and where the statute does not require the officer himself to make the explanation, it will suffice that she is made acquainted with the contents by any person.^ It is held that by the terms of some of the statutes the explana- tion need not be private. Usually, however, this matter constitutes a part of the privy examination.® Statement in the certificate of a "private examination," held to suf- fice for "privily and apart from her husband." Skinner v. Fletcher, 1 Ired. 313. "Separate and apart," held to suffice for "privily and apart." Coombes v. Thomas, 57 Tex. 321. 1 Pease v. Barbiers, 10 Gal. 436; Hitz v. Jenks, 123 U. S. 298; Lang- ton v^arshall, 59 Tex. 296. 2 dWe V. Bammel, 62 Tet. 108; and see Eoney v. Moss, 76 Ala. 491. 3 Watson V. Michael, 21 W. Va. 568; Chestnut v. Shane, 16 Ohio, 599. * Drew v. Arnold, 85 Mo. 126; Chauvin v. Wagner, 18 Mo. 541; Mc- Intyre v. Ward, 5 Binn. 301; Talbot v. Simpson, 1 Pet. C. C. 188; Schley v. Pullman Co. 7 Supt. Ct. Kepr. 730; 120 U. S. 575. « Jansen v. McCahill, 22 Cal. 563; French Bank v. Beard, 54 Cal. 4S0. « Webb V. Webb, 87 Mo. 510; Ray v. Crouch, 10 Mo. App. 321 ; Moor- man v. Board, 11 Bush, 185. In Tennessee the statute requires the certificate of a married wom- an's acknowledgment to show that she executed the deed "under- 173 Ch. 4. ] ACKNOWLEDGMENT BY MAEKIED WOMEN. [§107. §107. Certifying the Explanation. The certificate is invalid if it fails to show the requisite explanation of the deed to the wife.i It is not sufficient for the officer to certify that she "declared that she fully under- stood the contents of said deed;" she might be mistaken in her understanding of it.^ Where the statute requires the officer to make the explanation, the certificate must show that it was made by him;^ otherwise it is sufficient to state generally that the explanation was made, or that the wife was made acquainted with the contents of the instrument.* A statement in the certificate that the officer made the wife acquainted with the contents of the instrument has re- cently been held sufficient in California, although the deed stated that it was subject to conditions contained in another instrument not signed by her, and not then executed, the contents whereof were unknown to the officer. ^ standingly," and that is an' indispensable requisite, though that pre- cise word need not be used. Anderson t. Bewley, 11 Heisk. 29; Wright V. Duffield, 2 Baxt. (oSTenn.), 218. Norton v. Header, 4 Lawy. 603, 625; Harrison v. Oakman, 56 Mich. 390; De Arnaz v. Escandon, 59 Gal. 486; Walter v. Weaver, .W Tex. 569; Chestnut v. Shane, 16 Ohio, 699; 1 Dev. on Deeds, §§537, 53S. 1 Boiling V. Teel, 76 Va. 487; Paine v. Baker, 15 R. I. 100; s. C. 1 N. Eng. Repr. 153; Ruleman v. Pritchett, 56 Tex. 482; Bateman's Petition, 11 R. I. 393; Barnet v. Barnet, 15 Serg. & R. 72; s. C. 16 Am. Dec. 516; Roney V. Moss, 76 Ala. 491; Burkitt v. Scarborough, 59 Tex. 495; Bagby V. Emberson, 79 Mo. 139; Hutchinson v. Ainswo'rth, 63 Cal. 286; John- son V. Bryan, 62 Tex. 623; O'Ferrall v. Simplot, 4 Iowa, 381. 2 Langton v. Marshall, 59 Tex. 296 ; but see contra, Thomas v. Meir, IS Mo. 573. 5 Rice V. Peacock, 37 Tex. 392. * Thomas v. Meir, szipra; Talbot v. Simpson, 1 Pet. O. Ct. 188; Kava- nah V. Day, 10 R. I. 393; Martin v. Davidson, 3 Bush. 572; Hughes v. Lane, 11 111. 123; Nippel v. Hammond, 4 Colo. 211. 5 Bull V. Coe (Cal.), 18 Pac. Repr. 808. Under some of the statutes it has been held not necessary for the officer to certify that he had made the explanation. Stevens v. Doe, 6 Blaokf. 475; Gregory v. Ford, 5 B. Mon. 471; Chestnut v. Shane, 16 Ohio, 599. Where the certificate showed that the explanation was before the privy examination, it was held fatally defective. Watson v. Michael, 21 W. Va. 568; Laidley v. Knight. 23 Id. 736. 174 Ch. 4. J ACKNOWLEDGMENT BY MARRIED WOMEN. [§108. §108. The Voluntary Execution. The separate examination is intended to secure to the wife the free exercise of her will in the execution or rejection of the deed.i Evidence of duress on the part of the husband, in order to successfully impeach a certificate showing a vol- untary execution, must be clear and well corroborated, es- pecially if it relate to matters occurring in the privacy of domestic life.^ A threat by the husband to poison him- self does not constilule duress;^ and it has been held that a threat to arrest the husband, who had committed a crime, is not duress as regards the wife.^ The voluntary assent must be affirmatively expressed. The several statutes use a greater variety of terms for the expression of the wife's consent than in relation to any other matter connected with her acknowledgment,^ and as a result a great number of cases have arisen in which the courts have been called on to construe equivalent expres- sions, and to determine what will constitute a substantial compliance with the statute on this point. Where the stat- ute uses an unnecessary number of words and terms of sim- Where the certificate stated that the contents of the deed "were made fully to her," the omission of "knowQ" was held not to vitiate. Horiibeolf v. Building Association, 88 Pa. St. 64. A statement in the certificate that the wife declared that she exe- cuted the deed freely and understandingly, held not to supply the want of explanation. Eulemau v. Pritchett, 56 Tex. 482. 1 Moorman v. Board, 11 Bush, 140; Mount v. Kesterson, 6 Coldw. 452. 2 Ins. Co. V. Nelson, 103 U. S. 544; Smith V. Allis, 52 Wis. 337; Smith V. McGuire, 67 Ala. 34. 8 Wright V. Remington, 41 N. J. L. 48; s. C. 32 Am. Eep. 180; but compare Eadie v. Slimmon, 26 N. Y. 9. * Compton v. Bunker Hill Bank, 96 111. 301 ; s. 0. 36 Am. Kep. 147. 5 The terms most commonly employed, are "willingly" (Tex.; Va. ; Wash. Ter. ; D. C.) ; "freely" (Dak.); '-freely, without fear, coercion or compulsion" (Oregon) ; "willingly, without compulsion or threats or fear of her husbands displeasure" (Del.); "of her own free will, without compulsion or undue influence of her husband" (Ark.) ; "of her own free will and accord, and without fear, constraints, or threats on the part of her husband" (Ala.); "freely and voluntarily" (Ky.; La.); "freely and voluntarily, without any compulsion or the illicit influence of her husband" (N. M.) ; "voluntarily" (Ohio) ; "her vol- untary act and deed" (E. I.). 175 Ch. 4. J ACKNOWLEDGMENT BY MARKIED WOMEN. [§109. ilai- import, as, "her voluntary act and deed, freely, with- out any fear, threats or compulsion of her said husband," the omission of one or more of the prescribed terms has usually been held not to vitiate, for the reason that the others sufficiently express the voluntary assent. ^ The de- cisions, however, are not uniform; and the omission of the words "fear" and "ill-usage," in such connection, has been held fatal on the ground that the courts have no right to dispense with what the statute has required.^ "Without fear, constraint or threat," has been held sufficient for "without fear, constraints or threats," as found in the Al- abama statute.^ §109. Certifying the Voluntary Execution. A failure to show the voluntary execution is fatal to the certificate.* It is not necessary, however, for the certificate to state that the wife comes before the officer voluntarily. ^ 1 Tubbs V. Gatewood, 26 Ark. 128; Webster v. Hall, 2 Har. & McH. 19; s. c. 1 Am. Dee. 370; Battin v. Biselow, 1 Pet. C. C. 452; Ruftuer Y. McLenan, 16 Ohio, 639; Dengenhart v. Cracralt, 36 O. St. 549; Den V. Geiger, 4 Halst. (9 N. J. L.),22o; Devlin on Deeds, §568; Brown v. Farron, 3 Ohio, 140; Goode v. Smith, 13 Cal. 81. 2 Laird v. Scott, 5 Heisk. 314; Hawkins v. Biirress, 1 Har. & J. 513; Boykin V. Rain, 28 Ala. 332; s. C. 65 Am. Dec. 349; Bright v. Boyd, 1 Story, 486; 1 Story Eq., §§97. 117; Alabama v. Boykin, 38 Ala. 510; Hol- lingsworth v. McDonald, 2 Har. & J. 230; s. C. 3 Am. Deo. 545; Hen- derson V. Rice, 1 Coldw. 223. Use of the words "freely and of her own accord," in lieu of "as her voluntary act and deed," held sufficient. Dundas v. Hitchcock, 12 , How. 256. Where the statute required that the acknowledgment should be that the wife executed the deed without fear or compulsion of her husband or any one else, the omission of the latter words was held fatal to the certificate. Bronson v. Cahill, 4 McL. 19. For cases of acknowledg- ments held not voluntary, see Edgerton v. Jones, 10 Minn. 427; Helm V. Helm, 11 Kan." 19; Anderson v. Anderson, 9 Kan. 112. See also post, §121. " Homer v. Schonfield, 84 Ala. 313; s. C. 4 South. Eepr. 105. * Chaffe V. Oliver, 39 Ark. 531; Leftwich v. Neal, 7 W. Va. 569; Bernard v. Elder, 50 Miss. 336; Pratt v. Battels, 28 Vt. 685; Bagby v. Emberson, 79 Mo. 139; Dennis v. Tarpenny, 20 Barb. 371; Belcher v. Weaver, 46 Tex. 293; s. c. 26 Am. Rep. 267; Blackburn v. Pennington, 8 B. Mon. 219. Garrett v. Moss, 22 111. 363 ; Kavanaugh v. Day, 10 R. 1. 393; Louden v. Blythe, 27 Pa. St. 22; s. c. 67 Am. Dec. 442. » Mlckel V. Gardner, 41 Ark. 491. 176 Ch.4. ] ACKNOWLEDGMENT BY MAERIED WOMEN. [§109. Where the statutory expression was, "of her own.free wi^l, without undue influence or compulsion of her husband," the omission of the words "of her own free will," was held immaterial on the ground that the wife's freedom from the •control of all other persons than the husband is j^resumed, and need not be shown, and the remainder of the expres- sion sufficiently negatived the undue influence of the hus- band. ^ As will be seen by reference to the cases cited in the notes, the courts have usually been liberal in the allow- ance of equivalent expressions in certifying the voluntary character of the wife's execution.^ Duress on the part of the husband cannot be shown as against a subsequent bona Jide purchaser of the property.^ 1 Tubbs V. Gatt'wood, 26 Ark. 128. Ttie Soutli Carolina form of cer- tificate for relinquishment of dower provides that the wife shall declare that she acts "freely, voluntarily and without compulsion, dread or fear ■of any person or persons whomsoever." The courts, it has been said, have no right to dispense with what the statute requires. Laird v. Scott, 5 Heisk. 314; Boykin v. Kain, 28 Ala. 332; s. C. 65 Am. Dec. 349; Henderson v. Kice, 1 Coldw. 223. 2 "Without auy fear, threats or compulsion," held equivalent to ■"freely and voluntarily." Allen v. Lenoir, 53 Miss. 321. Wnere the certificate read -'lott/tfear or compulsion of any one," instead of "with- out," this was held a patent clerical error and not to vitiate. King T. Merritt (Mich.), 34 N. W. Repr. 689. "Voluntarily consenting," held equivalent to "of her own free will and accord, without coercion or compulsion of her husband." Shaller -V. Brand, 6 Binn. 435; S. C. 6 Am. Dec. 489. Omission of "undue influence," held immaterial, where "freely and ■voluntarily and without fear or compulsion," is used. Goode v. Smith, 13 Cal. 81. Omission of "husband" from the phrase, "undue influence •of her husband," held a mere clerical error. Gorman v. Stanton, 5 Mo. App. 585. "Restraint" held equivalent to "constraint." Edmond- son V. Harris, 2 Tenn., ch. 427. But statement that there was a "satisfactory private examination," is not sufficient, Jones v. Lewis, 8 Ired. L. 70; nor that the wife "de- sired the acknowledgment to be certified," Bartlett v. Fleming, 3 W. Va. 163 ; and that she acknowledged the instrument to be her act and deed "in due form," does not supply the omission of "voluntarily." Lucas V. Cobbs, 1 Dev. & Bat. 228. "Without any bribe, threat or compulsion from her husband," held •equivalent to "willingly." Belcher v. Weaver, 46 Tex. 293; s. 0. 26 Am. Kep. 267. » Lane v. Schlemmer, 114 Ind. 296; s. C. 5 Am. St. Eep. 621; 15 N. E. Eepr. 464; Gardner v. .Case, 111 Ind. 494; s. C. 13 IST, E. Bepr. 36. (12— Eeg. of Title.) 177 Ch. 4.] ACKNOWLEDGMENT BY MARRIED WOMEN. [§110" • §110. The Wish not to Retract. The wife may have freely and voluntarily signed the in- strument, but the explanation of its effect, or some other circumstance, may induce her, at the last moment, to desire to withdraw her assent, and, therefore, a number of the statutes require that her continued assent shall be expressed by a statement that she does not wish to retract it, or words of similar import; and in such case, the omission of the re- quired expression will be fatal to the certificate. ^ In Ohio the certificate must state that she is "still satisfied" with the deed;2 in Kentucky, that she "consents that it may be recorded; "3 and in North Carolina, that she "doth now vol- untarily assent thereto."* These provisions are designed to confer upon the wife a locus penitentim — an opportunity to withdraw before she is irrevocably bound. As this right to retract is absolute and unqualified, the courts will not en- force a performance of her bond for title to convey land;* 1 Davis V. Agnew, 67 Tex. 206; s. C. 2 S. VV. Repr. 43, 376; LeBoiir- geoise v. McNamara, h Mo. App. 576; Landers v. Bolton. 26 Cal. f>i>i Linn V. Patton, 10 W. Va. 187; Burkett v. Scarborougli, Sfl Tex. 496 Bateraan's Petition, 11 R. I. .585; Grove v. Zumbro, 14 Gratt. 501 Hughes v. Lane, 11 111. 123; Laidley v. Cent. Land Co., 30 W. Va. 505 4 S. E. Repr. 705; Blair v. Sayre. 2 S. E. Repr. 97; 29 W. Va. 604 Churchill v. Moore, 1 R. I. 209; Raleman v. Pritchett, 56 Tex. 482 Boiling V. Teel. 76 Va. 487. 2 Ward v. Mcintosh, 12 0. St. 231, overruling Card v. Patterson, 5 0. St. 319. " Statement that the wife "is still satisfied therewith," held equiv- alent to the statutory expression that she "consen'ted that the deed might be recorded." Martin v. Davidson, 3 Bush, 574. * But the omission of the statutory words held immaterial where a voluntary execution was sufficiently stated. Etheridge v. Ferebee, 9 Ired. L. 312; Robbins v. Harris, 96 X. C. 557; s. C. 2 S. E. Repr. 70. The officer's certificate must contain his conclusion that the convey- ance is not unre;isi lable or injurious to her. Code, §1835; Sims v. Ray, 96 N. C. 87; s. c. 2 S. E. Repr. 443. 5 Cross V. Evarts, 28 Tex. 531; Warren v. Jones, 69 Tex. 462; Jones V. Goff, 63 Tex. 255. In Warren v. Jones, supra, the court holds' that a conveynnce made under a power of attorney from a married woman is binding on her, and attempts to draw a distinction between her right to retract under a bond for title, and under a power of attorney. The dis- tinction, however, is one without a substantial difference, a distinction of terms only ; and the decision is elsewhere in the opinion properly put on the ground of stare decisis. 178 Ch. 4.j ACKNOWLEDGMENT BY MARRIED WOMEN. [§111. and partly for this reason also, it is held in some instances that her conveyance made through a power of attorney is not binding.^ §111. Substantial Compliance. The rule that a substantial compliance with the statute is sufficient — that immaterial words may be omitted, and words of equivalent import to those of the statute may be used — obtains with reference to the certificate of a married woman's acknowledgment,^ and has been, perhaps, suffic- iently illustrated by the cases already cited in this chapter. By some of the courts the rule is applied without any ap- parent distinction between the certificate in these cases and those pertaining to ordinary acknowledgments; but with other courts there has been, in a few instances, a noticeable tendency towards a stricter construction of certificates of the wife's acknowledgment.^ Thus, in Blair v. iSayre, 29 W. Va. 604, it is held that a statement in the certificate that the wife acknowledged "that she had willingly ex- ecuted the same (deed) and does not wish to retract it," is not a substantial compliance with the statute which requires the certificate to show that "she acknowledged the same to be her act and deed, and declaied that she had willingly ex- ecuted the same, and does not wish to retract it." John- 1 See post, §117. 2 Martin v. Davidson, 3 Bush, 574; Pickens v. Kniseley, 29 W. Va. 1 ; Belcher v. Weaver, 46 Tex. 293; s. C. 26 Am. Eep. 267; Shields v. Netherlands, 5 Lea, 198; Campbell v. Mooa, 16 S. Car. 107; Kottmanv. Ayer. 1 Strobh. 552, 572; Gordon v. Leech, 81 Ky. 2-i9; Gates v. Hester, 81 Ala. 357; s. c. 1 South. Kepr. 84S. Where the question was whether an aclinowledgnient had in fact been properly made, it was said : "The law prescribes no set terms in which acknowledgments must be formulated. They are orally made. The officer must judge of their meaning and effect. Manner and gesture even may aid him in that, and he must judge whether the husband is far enough away to enable him to certify that the examination was privy." Donahue v. Mills. 41 Ark. 421. ° Wingo v. Parker, 19 S. Car. 13; Dewey v. Campau, 4 Mich. 365; Kice V. Peacock, 37 Tex. 392; Merritt v. Yates, 71 111. 636; S. C. 22 Am. Eep. 128; Manchester v. Hough, 5 Mason, 67; Laidley v. Cent. Land Co., 30 W. Va. 505; s. C. 4.S. E. Kepr. 705. 179 Ch. 4. J ACKNOWLEDGMENT BY MAllEIED WOMEN. [§ § 112, 113. son, C. J., delivering the opinion, says tliat the case of Belcher v. "Weaver, 4G Tex. 293, is precisely in point to the one at bar, but that the reasoning of the Texas court is en- tirely unsatisfactory — ^to him. §112. Joint Certiflcates. It is a common practice for the acknowledgment of both husband and wife to be certified in one certificate; the re- citals as to their appearance before the officer, their iden- tity, and the fact of acknowledgment being usually made as to both parties at one and the same time, followed by a sep- arate statement of the privy examination of the wife.^ In these joint certificates it is often the case that some of the words relating to the wife's acknowledgment are transposed out of the exact order and connection in which they occur in the statutes, but this has usually been held immaterial. Where the certificate stated that the husband and wife sev- erally acknowledged the instrument to be "their act and deed," and the words "act and deed" were not used again in the subsequent portion of the certificate relating to the wife's privy examination, it was held that the certifi- cate substantially showed that the wife in her separate ex- amination acknowledged the deed to be her act.^ §113. Identity of the Wife. It sometimes happens that in a joint certificate the words of identity, "known to me," etc., are used in connection with the name of the husband only, and are not repeated in con- nection with the wife's name in the subsequent part relating to her separate acknowledgment. Usually the wife's name is 1 See for examples, Belcher v. Weaver, 46 Tex. 293 ; s. C. 26 Am. Eep. 267; Stringer v. Swenson, 63 Tex. 7; Muir v. Gallaway, 61 Cal. 49S; Webster v. Hall, 2 Har. & McH. 19; s. c. 1 Am. Dec. 370. 2 Saylor v. Komanet, 52 Tex. 5G2. Omission to fill the blaniis in the latter part of a printed form of joint certificate, with the name of the wife, may be aided by reference to the previous portion where the parties are jointly mentioned. Donahue \. Mills, 41 Ark. 421. But compare Hartshorn v. Dawson, 79 111. 108; Mer- ritt V. Yates, 71 111. 636; s. c. 22 Am. Kep. 128. ISO Ch. 4. J ACKNOAVLEDGMENT BY MAREIED WOMEN. [§113. followed by the description, "wife of the said A." (the hus- band already mentioaed); yet still the questioa arises as to the omission in such case to state specifically that the wife is known to the officer. This point has been more than once before the Supreme Court of Illinois, and in that state the omission is held fatal. ^ In the case first presenting the question there is a dissenting opinion by Chief Justice Breese, holding that such certificate shows a substantial compliance with the law, and that the objection is too tech- nical to be permitted to defeat the right. ^ Under the liberal rule of construction that has usually been applied by the courts to the statement of identity, the certificates in these cases might properly have been held sufficient.^ In addition to the considerations ordinarily influencing the construction of the certificate of acknowledgment, it may be observed as a well known fact that an introduction by the husband at the time of acknowledgment usually constitutes the extent of the officer's acquaintanceship with the wife; and that under the customs and usages of our country he is not expected to question as to her family history, or to call for further proof of her marriage or identity.* In Tennessee the statute, aided by .the construction of the court, presents the proper form of certificate in such cases. There the ^ Coburnv. Herrington, 114 111. 104; Heinrich v. Simpson, 66 111. 57; Lindley v. Smith, 46 111. 524. ^ Lindley v. Smith, supra, cited fully in 1 Devlin on Deeds, §558. 3 See oases cited, ante §77, and Hiles v. La Flesh, 59 Wis. 465; S. C. 18 N. W. Kepr. 435. The words of identity in the Alabama statute (Code of Ala., §2822), are "known or made known to me to be the wife of the within named" grantor. A certificate reciting that -'A. H., wife of K. B. H., whose name is signed to the foregoing instrument, and. who is known to me, acknowledged," etc., was held to sufHoiently show that the wife was known to the officer, and known to be the wife of the grantor. Gates v. Hester, 81 Ala. 357; S. C. 1 South. Kepr. 84S. * The principle upon which the courts proceed is that the law does not mould the habits, the manners and the transactions of mankind, to in- flexible rules, but adapts itself to the business and the circumstances of the times, and keeps pace with the improvements of the age. Lyle v. Richards, 19 Serg. & K. 351. 181 Ch. 4. J ACKNOWLEDGMENT BY MAEEIED WOMEN. [§114. words of identity occur in the statutory form in this con- nection: And also appeared Mary Smith, wife of the said John Smith, with whom I am personally acquainted, etc., and it is held that the officer is not required to be personally acquainted with the wife, but only with the husband.^ §114. Community Property. In several states, especially Texas and California,"^ all property acquired during the existence of the marital rela- tion, except that acquired by gift, devise or descent, is community property of the husband and wife, and is sub- ject, unless it be the homestead, to disposition by the hus- band alone. ^ As the joinder of the wife in a conveyance of such property by the husband is not necessary, it follows that defects in her acknowledgment in such case are imma- terial, since her signature as well as acknowledgment can be dispensed with as surplusage.* Although the conveyance be 1 Bell V. Lyle, 10 Lea, 44. As the officer certifies in the preceding part of the certificate that he is acquainted with the husband, it is ev- ident that the court looked to the reason and spirit of the matter; as otherwise they might plausibly have held, and without doing serious violence to the rules of grammar, that the statute intended the words of identity in the latter part of the certificate to apply to the wife. 2 Rev. Stats, of Tex., §§2862-3; Civ. Code of Cal. §§162-4, 172; Ma- guire V. De Fremery, 76 Cal. 401 ; Morse v. Jones, 63 Cal. 12. The law of community property, derived mainly from the civil and Spanish law, prevails with some statutory differences in New Mexico, Arizona, Louisiana and Florida, and also in Nevada, Idaho and "Washington Ter- ritory. Comp. Laws Ariz., §1968; Charauleau v. Woffenden, 1 Ariz. 243; Eev. Civ. Code La., §§2332^; McCaffrey v. Benson, 40 La. 10; S. C. 3 South. Kepr. 398; Code of Wash. Ter., §2409; Lemon v. Waterman, 2 Wash. Ter. Eep. 485; s. c. 7 Pac. Repr. 899; Andrews v. Andrews, 3 Wash. Ter. 286; s. c. 14 Pac. Repr. 68; Ray v. Ray, 1 Idaho, 566; Laws of Nev., 1873, §§152, 156; Dominguez v. Lee, 17 La. 296. See also, Til- linghast v. Champlin, 4 R. I. 209, and cases in notes to §182, post. 3 Parker v. Coop, 60 Tex. 112; Parry v. Kelly, 52 Cal. 334; Tucker v. Case, 39 Tex. 102; Eslinger v. Eslinger, 47 Cal. 62; Succession of Dejan, 40 La. Ann. 437; S. c. 4 South. Repr. 89; Parker v. Chance, 11 Tex. 518; Smith V. Smith, 12 Cal. 216; s. O. 73 Am. Dec. 533; Huston v. Curl, 8 Tex. 239; s. C. 58 Am. Dec. 110; Peet v. Commerce Ry. Co., 70 Tex. 522; s. C. 8 S. W. Repr. 203; post, §182. ^ Tom V. Sayers, 64 Tex. 339; Pixley v. Huggins, 15 Cal. 127; Steph- ens V. Matthews, 69 Tex. 340; s. C. 6 S. W. Repr. 567. As against the title conveyed by an older unrecorded deed from the husband, the wife cannot be a honn fide purchaser from the husband 182 Ch. 4.] ACKNOWLEDGMENT BY MAKRIED WOMEN. [§114. made to the wife alone, and the property be in fact her separate property, yet if made during the marriage, the law, prima facie, presumes the property to be community, and a purchaser from the husband alone will be protected unless the recitals in the deed to the wife show it to be her sep- arate property, or there be other facts putting the pur- chaser upon actual notice of her title. ^ The presumption of community property may be countervailed by a recital in the deed that the premises are conveyed as and for the sep- arate property of the wife, or are paid for out of her sep- arate means, as such recital will charge subsequent pur- chasers dealing with the husband with notice of the wife's title.2 where the consideration of the deed to her is community property; nor can the husband in such case be the agent of the wife in malting a con- tract with himself resulting in such second deed. Pearce v. Jackson, 61 Tex. 642. 1 French v. Strumberg, 52 Tex. 109; Cooke v. Bremond. 27 Tex. 459; McComb V. Spangler, 71 Cal. 419; s. C. 12 Pac. Kepr. 347. Where the deed is to the husband alone, the legal title is in him, although the equitable title be in the community estate, and a purchaser from the husband, after the wife's death, without notice of her equitable title, will be protected. Edwards v. Brown, 68 Tex. 329; s. C. 5 S. W. Eepr. 87. The statute and decisions seem to be different in Louisiana as to the legal title. Civ. Code, art. 2371 ; Provost v. De la Houssaye, 5 La. Ann. 610. 611; Dominguez v. Lee, 17 La. 296. Where a wife abandoned by her husband, conveyed property, in his name, it was held under the facts and pleadings of the case that the registration of the deed from her was notice to a subsequent pur- chaser from the husband. Zimpleman v. Eobb, 53 Tex. 274. 2 Morrison v. Clark, 55 Tex. 437; Cline v. Upton, 56 Tex. 319; Kirk V. Navigation Co., 49 Tex. 215; Montgomery v. Noyes (Tex.), 11 S. W. Eepr. 138; post, §182. Actual notice of the wife's separate title will defeat the judgment lien of a creditor of the husband, if given before a sale of the property un- der the judgment. Bonner V. Stephens, 60 Tex. 618; Parker v. Coop, 60 Tex. 114; McKamey v. Thorp, 61 Tex. 649; Stoker v. Bailey, 62 Tex. 299; Ross v. Kornrumpf, 64 Tex. 390; though in Wallace v. Campbell, 64 Tex. 87, it seems to have been held that notice after the judgment lien attached came too late. The remark in Garner v. Thompson, 1 Tex. Law Eev., 2S6 (May, 1883), that a purchaser must take notice of the existence of the vendor's family and their rights to the land under our marital laws, held obiter dicta in Edwards v. Brown, 68 Tex. 329. See as to California, post, §182. 183 Ch. 4. ] ACKNOWLEDGMENT BY MARRIED WOMEN. [§11 ' §115. Kelinquislniient of Dower. Some of the statutes require that in order to bar a mar- ried woman's right of dower, an express relinquishment of dower shall be stated in the certificate of her acknowledg- ment; and where this is the case, the statute must be com- plied with, or the deed will not have that effect. The ac- knowledgment need not be in the very words of the stat- ute ;i but a certificate omitting this matter and showing only that the wife acknowledged the execution of the m- strument, is not sufficient-^ Where, in a conveyance of the wife's separate property, the certificate contained also the words appropriate to bar her dower, the super-added words were held not to restrict or impair the acknowledgment al- ready made, })at to show a mistaken intent to release her right of dower, in addition to the interest already conveyed,, and were treated as surplusage.^ A married woman's interest in land, inherited from the coramunitjr estate of her mother, cannot be transferred by a release of all interest in the community estate, execnted by her. to her father, lor value, but without privy acknowledgment or the joinder of her husband. Stephens- V. Shaw, 6S Tex. 261 ; s. c. 4 S. AV. Repr. 4.')8. 1 Dundas v. Hitchcock, 12 How. 256. 2 Lindley v. Smith, 46 111. 524; Thomas v. Meier, 18 Mo. 573; Becker V. Quigg, 54 HI. 390. 3 St'one V. Montgomery, 35 Jtiss. 83; Grapengether v. Fejevary, 9' Iowa. 163; s. c. 74 Am. Dec. 336. In Florida this principle of construc- tion has been carried further. Thus, where the certificate stated that the wife made herself party to the deed (of her separate property), "for the purpose of relinquishing her right of dower," she having no such right, present or prospective, thi-; was construed to be an acknowledg- ment of the due execution of the deed according to its language and im- port. Evans v. Summerlin, 19Fla. 858. Seecoiiij-a, Allendorf v. Gaugen- gihl, 146 Mass. .542; s. C. 16 N. E. Repr. 283; and as supporting the Florida case, Johnson v. Parker (Ark.), 11 S. W. Repr. 681. Where the statute provided that the wife, in order to relinquish dower, should acknowledge and s^lbscribe the deed before the officer, a certificate showing a proper acknowledgment, but failing to show that the relinquishment was subscribed before the officer, was held bad, Kay V. Jones, 7 J. J. Marsh. 38. See further as to relinquishments, Mosely v. Hankinson, 23 S. Car. 519; Lane v. Dolick, 6 McLean, 200; Sykes v. Sykes, 49 Miss. 190; Ford v. Gregory, 10 B. Mon. 177; Tomlin V. McOhow, 5 J. J. Marsh. 135; Leavitt v. Lamprey, 13 Pick. 3S3; Powell V. Monson, 3 JIason, 349; Lufkin v. Curtis, 13 Mass. 223; Stevena V. Owens, 25 Me. 94; Hall v. Savage, 4 Mason, 273; Duttou v. Stewart, 184 Ch.4. ] ACKNOWLEDGMENT BY MAEKIED WOMEN. [§§116, ll7. §116. Acknowledging- Deed with Blanks. In the case of Drury v. Foster,' the Supreme Court of the United States had occasion to pass on the validity of a mortgage of the wife's lands, signed by her and duly ac- knowledged, but in which there were blanks for the name of the mortgagee, and the amount of the mortgage debt, at the time of such execution by her. It was conceded that aside from the question raised by the blanks, the instrument was valid, and also that ordinarily parol authority is suffi- cient to authorize such blanks to be filled by an agent. But upon the ground that a married woman was disabled in law from delegating a person, either in writing or by parol, to fill up the blanks and deliver the mortgage, and that there could be no acknowledg-ment of the instrument within the requisitions of the statute until the blanks were tilled and the deed complete, it -was held that the mortgage was a nullity, and no better than so much blank paper; and further, that to hold the wife estopped by her acts, which included the receipt by the husband, as her agent, of the money advanced, would be to introduce into the law an en- tirely new system of conveyances of the real property of femes covert. The statutes of Minnesota, it was said, in re- quiring a separate and privy examination, disable the wife from executing or acknowledging a deed by procuration, and from making a power of attorney. 117. Wife's Power of Attorney. At common law the wife could not make a valid power of attorney to convey real property,^ and this is still the set- tled law in a number of the states.^ But by force of stat- 41 Ark. 101 ; Johmson v. Parker (Ark.), 11 S. W. Eepr. 681 ; Williams v.- Cudd, 26 S. Car. 213; s. C. 2 S. E. Kepr. 14; post, §120. 1 2 Wall. 24; s. c. 1 Dillon, 460. 2 Mays V. Frazee, 4 Litt. 391 ; Bank of L. v. Gray, 84 Ky. 565; S. C. 2 S. W. Eepr. 168; Field v. Moore, 19 Beav. 176. 3 Allen V. Hooper, 50 Me. 373; Holladay v. Daily, 19 Wall. 609; Sumner v. Conant, 10 Vt. 9; Boyd v. Turpin, 94 N. C. 137; Earle v. Earle, 1 Spen. 347; Caldwell's Appeal (Pa.), 7 Atl. Repr. 211; Elliott v. 185 Ch. 4. J ACKNOWLEDGMENT BY MAEEIED WOMEN. [§117- utes in some states, and of decision alone in a few others, the right of a wife to convey by power of attorney is now recogaized.i In Texas, although the statute requires a privy examination and expression of the wife's desire not to retract, in tlie acknowledgment of her conveyances, the courts have held, without any enabling act, that she may convey by power of attorney.^ On the ground that she has the right to retract until the conveyance is complete, they adhere, however, to the general doctrine that specific per- formance of her bond for title or other executory contract will not be enforced. ^ So, also, the Texas court has re- Teal, 5 Saw. 249; Kearney v. Macomb, 16 N. J.Eq. 189; Lewis v. Coxe, .T Harris, 401 ; Toulman v. Heidleberg, 32 Miss. 268; Glai-lje v. Reins, 12 Gratt. 103; Pilclii--r v. Smith, 2 Head. 209; Carr v. Williams, 10 Ohio, 310; Butt V. Broughton, 72 Ala. 294; Bank of Louisville v. Q-ray,84Ky. 565; S. C. 2 S. W. Repr. 168. 1 Civ. Code of Cal., §6094; Dow v. Gould, 31 Cal. 646; Rev. Stats, of Wis., §2222; Weisbrod v. Chicago, etc., 18 Wis. 41; Hardenburg v. Lar- kin, 47 >". Y. 113; Roarty v. Mitchell. 7 Gray, 243; Stats, of Fla., 1881, ch. 1.50, §11; Rev. Stats, of Ohio, 1880, §4108; Gen. Stats, of Ky., 1-881, ch. 24, §36; Rev. Stats, of Jto., 1879. §H7U; Howell's Stats, of Mich., 1882, §5725; Code of X. C, 188.!, §1257; Rev. Stats, of Ind., 1881, §2949; Gridly v. Wynant, 23 How. 503 ; Wilkinson v. Getty, 13 Iowa, 137 ; War- ren v. Jones, 69 Tex. 462; s. c. 6 S. W. Kepr. 775. 2 Patton v. King, 26 Tex. 685; s. C. 84 Am. Dec. 598; Cannon v. Boutwell, 53 Tex. 626; Warren v. Jones, snjjra. 3 Jones V. Goff , 63 Tex. 255 ; Burch v. Jones (Ky.) , 5 S. W. Repr. 408 ; Wright V. DutHeld, 2 Baxt. 218; Rockafellow v. Oliver, 41 Ark. 169; Warren v. Jones, 09 Tex. 462 ; Cross v. Evarts, 28 Tex. 531 ; Lane v. Mc- Keen, 15 Me. 304; Waterman on Specif. Perf., §127; Hord v. Taubman, 79 Mo. 101; Baldwin v. Snowden, 11 O. St. 203; Ackert v. Pultz, 7Barb. 8SG. Equity will not enforce a wife's contract to convey not acknowledged by her, although the purchaser has paid the consideration, and is in possession. Goss v. Furman, 21 Fla. 406, citing Bish. on Law of Mar. Worn., §601; Story Eq., 1391; 2 Kent, 168; Rooney v. Michael, 84 Ala. 585; s. C. 4 South. Repr. 421; Blythe v. Dargin, 68 Ala. 370. But see Homeopathic Co. v. Marshall, 32 N. J. Eq. 106. Where on an agreement to exchange lands the wife received the deed of the other party, and then refused to acknowledge a deed conveying her tract, the court would not compel her to acknowledge the deed, but divested her of the title to the tract received. Burns v. McGregor, 90 N. C. 222, citing Atkinson v. Richardson, 74 N. C. 4.55 ; Towles v. Fisher, 77 N. C. 437. Had it been a case of money paid by the purchaser, in- stead of land given, he would have been remediless. Scott v. Battle, 85 K. C. 184. 186 Ch. 4.] ACKNOWLEDGMENT BY MARKIED WOMEN. [§118. fused to recognize the wife's power of attorney as valid when it is made to the husband.^ §118. Wife Acting as Feme Sole.— Abandonment. The. general rule of the common law is that where the husband absolutely deserts his wife, or leaves the state with- out any intention of returning, or is civiliter mortuis, his wife is regarded as & feme sole, and may hold and convey property as such.^ It follows that her conveyance, in such case, may be made without privy examination; the theory of the law being that, as to her contracts, she has no hus- band, or is already separate and apart from him, so as to be freed from that presumed coercion against which the law ordinarily seeks to protect her. In a case where the hus- band was absent for five years, not contributing to the wife's support, so far as the evidence disclosed, although she visited him once or twice during the time, a deed by her alone, without privy examination, was upheld.^ While the A married woman signed and duly acknowledged a deed of her prop- erty, in which the grantee's name was left blank, and the consideration was recited at $1.,^00, that being the price at which she was willing to sell. Her husband, without consulting her as to taking a less price, ac- cepted $1,000 from a purchaser, tilled in the purchaser's name, and de- livered the deed. Ko question is made by the court as to the sufficiency of the parol authoriiy to the husband to till the blank with the grantee's name, but as he exceeded his authority in taking a less price, and as the purchaser was chargeable with notice of that authority by the recital in the deed of $1,500 as its consideration, it is held that no title passed. Cole Y. Bamme', 62 Tex. 108. 1 Conner v. Boutwell, 53 Tex. 627; Peak v. Brinson, 71 Tex. 310. 2 Wright V. Hays, 10 Tex. 130; Hector v. Knox, G3 Tex. 613; Wheat- on's Selwyn, tiile Baron and Feme; Gregory y. Paul. 15 M.'iss. 31; 17 Serg. & K. 130; Ann Berta Lodge v. Leverton, 42 Tex. 18; Clements v. Ewing, 71 Tex. 370; 2 "V^ernor, 104, 614. So held where a presumption of the husband's death existed. Rosenthal v. Mayhugh, 33 0. St. 155, and see Patterson v. Lawrence, 90 111. 174. 3 Wright V. Hays, supra. And so held in a case where the husband being arrested for a crime broke jail and escaped. Cheek y. Bellows, 17 Tex. 613. Again affirmed in FuUerton v. Doyle, 18 Tex. 4, where it is said that evidence as to the period of abandonment is not material except to show that the abandonment is not temporary in its characler; also in Kelley y. Whitmore, 41 Tex. 648. The wife, when abandoned, may con- vey her separate Broperty without the existence of any necessity for the 187 Ch. 4. J ACKNOWLEDGMENT BY MAKRIED WOMEN. [§119., current of decision justly supports this view of the law, there is at least one case of high authority to the contrary.^ Where a married woman holds herself out as unmarried for a long period of time, living apart from her husband, she will be held estopped by her conduct from calling to her aid the statutes relating to the acknowledgment of deeds, for the purpose of defeating her conveyance.^ §119. Ke-acknowledgment and Katiflcation. Where a deed is void as to the wife for want of proper acknowledgment, a re-acknowledgment by her after her discoverture will operate to give it full force and effect, and will relate back to the date of the original delivery, where the rights of third parties have not intervened.* sale; but, aJiter, it seems, as to community property. Clements v. Ew- ing, 71 Tex. 370. 1 Rhea v. Khenner, 1 Pet. 105; s. c. 7 Curtis. 478. where it is held that although the husband had been absent for five years, contributing nothing to the wife's support, and although she might contract debts as A feme sole, yet she could not convey real property without the joinder of the husband and the privy examination. 2 Reis V. Lawrence, 63 Cal. 129; s. C. Am. Rep. 83; Ogle v. Ogle, 41 O. St. 359; Hand v. Hand, 6S Cal. 135; s. C. 8 Pac. Repr. 705. But where the matter of estoppel is not involved, it is held that under Civ. Code Cal., §§1186, 1191, making a certificate of privy examination and explanation essential to the validity of the wife's deed, there is no ex- ception for the case of a married woman living separate from her hus- band, and a conveyance by such a woman, of land constituting her sep- arate estate, without such certificate, is void, and this result is not affected by §192, providing that a wife may convey her separate prop- erty without her husband's consent. Danglade v. Elias (Cal. 1889), 22 Pac. Repr. 69. A woman who is living apart from her husband under, a decree of separation is a, feme sole entitled to convey her property as such. Piper V. May. 51 Ind. 283; Delafleld v. Bradley, 108 N". Y. 524; s. C. 15 N. E. Repr. 428; 11 Cent. Repr. 315; Coleman v. Coleman, 37 La. Ann. 566. The rule is not applied where the husband is insane. Heidenheimer v. Thomas, 63 Tex. 287; and see, further, Richeson v. Simmons, 47 Mo. 20; Cullers v: Henry, 66 Tex. 497. In New Hampshire, six months' residence apart from the husband authorizes her to convey alone. Gen. Laws, 1878, ch. 183, §4. ' Riggs V. Boylan, 4 Biss. 445; Gahall v. Citizen's Association, 01 Ala. 233. But a deed not acknowledged by the wife until after suit filed for the land by the grantee, cannot be introduced in evidence. Carn v. Haisley, 22 Pla. 317, citing Hollingsworth v. Flint, 101 U. S. 591; Jones V. Lof tin, 16 Fla. 189. 188 Ch. 4. ] ACKNOWLEDGMENT BY MARRIED ,\VOMEN. [§119. After a conveyance by her of the property to a third person, a re-acknowledgment comes too late, as no title passed by the original instrument.^ So, the wife, after becoming sole, may ratify and make effectual the deed by re-delivering it, ^ or by such conduct and acquiescence on her part as will be held equivalent to an ex.press ratification.^ The courts, however, are not agreed as to the character and extent of the acts and proof necessary to constitute a sufficient ratifi- cation, as will appear by reference to the cases cited in the notes below.* 1 Durfee V. Garvey, 63 Cal. 406; Enterprise Co. v. Sheedy, 103 Pa. St. 492. ^ Smith V. Shackelford, 9 Dana, 476; Jordan v. Jordan, 9 Serg. & K. 268-,. s. C. 11 Am. Dec. 724; Newell v. Anderson. 7 O. St. 12. ^ Long acquiescence after discoverture held sufficient. Conklin y. Bush, 8 Pa. St. 517. So, payment by her, as widow, of the interest due ou a mortgage. O'Keefe v. Handy, 31 La. Ann. 832. Or receipt of pay- ment by hfer, as widow, for the land conveyed. Hodges v. Powell, 96 N. Car. 64; s. C. 2 S. E. Eepr. 182. The re-delivery may be proved by circumstances. Carter v. Strapham, Cowp. 201. See also, Spafford v. Warren, 47 Iowa, 47. * Evidence such as in the case above, held incompetent to establish a ratification. Price v. Hart, 29 Mo. 171. Proof that the widow knew of the defective acknowledgment, and said that she had confirmed the deed, held insufficient proof of a re-delivery, it not appearing that she knew an actual re-delivery was necessary. Smith v. Shackelford, 9 Dana, 476. Under the Ohio and Virginia statutes, a deed by husband and wife, conveying the wife's land, is inoperative to pass her title, unless the husband, she having duly acknowledged the deed, has, in her life-time, and by an acknowledgment in the form prescribed by law, signified his consent to such conveyance. His acknowledgment made after her death is of no effect. Sewall v. Haymaker, 8 Sup. Ct. Repr. 1348; s. c. 127 U. S. 719. So, in Alabama, where a married woman signed and acknowl- edged a deed of her land, but it was not signed and delivered by her husband until after a bill filed to subject the land to her debts, it was held that there was no alienation of the land until after suit begun. Code of Ala., §2348; Kooney v. Michael, 84 Ala. 585; s. C. 4 Soutb. Eepr. 421 ; Carn v. Haisley, 22 Fla. 317 ; Hollingsworth v. Flint, 101 U. S. 591. " Smith V. Head, 75 Ga. 755. Where the husband forged his wife's signature to a mortg'age, and procured a notary to give a false certificate of acknowledgment, and she afterwards w.^s induced bj' the notary to sign and acknowledge, before another notary, an instrument attempting to ratify the mortgage, it was held ineffectual, as criminal acts are incapable of ratification. Howell V. McCrie, 36 Kan. 636; s. C. 14 Pac. Kepr. 257, citing Workman v. Wright, 33 O. St. 405; s. C. 31 Am. Rep. 546. 189 Ch. 4.j ACKNOWLEDGMENT BY MARRIED WOMEN. [§120. 120. Validating Deeds of Married Women. Legislative acts validating conveyances of married women defective by reason of imperfect acknowledgment or cer- tificate thereof, have been constantly assailed as unconstitu- tional, because impairing vested rights, and in some m- stances the objection has prevailed ;i the position being that as title does not pass by the defective deed in such case, it is made to pass by virtue of the statute alone. Happily this view has not largely prevailed,^ and yet it must be con- fessed that it is in harmony with the general tenor of the decided law relating to the separate acknowledgments of married women. In many instances this curative legislation has been de- signed to remedy formal errors only, and to heal defects in the certificate only where the acknowledgment was in fact properly made.^ The courts in affirming the constitution- 1 Alabama Ins. Co. v. Boykin, 38 Ala. 510; s. C. 65 Am. Dec. 349; Elliott V. Peirsoll, 1 McLean, 11. 2 For cases sustaining the validity of these acts see ante.^ §97; Bar- nett V. Barnett, 15 Serg. & R. 72; s. c. 1(5 Am. Dec. 51S; Lycoming V. Union Bank, 15 Pa. >St. 171 ; Webb v. Den, 17 How. 577; Dulaney v. Tilgham, 6 Gill & .T. 461; W^atson v. Bailey, 1 Binn. 476; Johnson v. Kiohardson, 44 Ark. 365; Watson v. Mercer, 8 fet. 88. Deeds of married women take effect against intervening purchasers only when properly acknowledged and registered, and cannot relate back by amendment or validation so as to effect them. Coal Creek Co. V. Heck, 83 'I'enn. (15 Lea), 407, 513, citing Harrison v. Wade, 3 Cold. 565; Fall v. Eoper, 3 He.-id. 486. A wife joined with her husband in a conveyance of his separate real estate, but neither the deed nor the certificate of acknowledgment contained any word< relinquishing dower. An act validating acknowl- ments defective because of "any words omitted" therefrom was held to apply; it being presumed, as she had no other than a dower interest in the land, that she joined in the deed for the purpose of conveying it, and that the otlicer had omitted the appropriate words of relinquish- ment from his certificate of her acknowledgment in ordinary form. Johnson V. Parker (Ark.), 11 S. W. Repr. 681. 3 Chestnut v. Shane, 16 Ohio, 599; Cooley's Const. Lim.,463, 467; Hollingsworth v. McDonald. 2 Har. & J. 230; s. c. 3 Am. Dec. 540; McDannell v. Horrell. 1 Tex. Un. Cas. 521; Raverty v. Fridge, 3 McLean, 230; Johnson v. Taylor, 60 Tex. 360. This last case in- volved the constitutionality of an act providing for the correction of defective certificates by a suit in court for that purpose. In an able opinion by .Justice Stayton, it is said that the statute ap- plies in cases of married women's acknowledgments as in those of 190 Ch. 4. J ACK^'OWLEDGMENT BY MARRIED WOMEN. [§120. ality of these statutes have declared that the mere making of the certificate is a formal act which the legislature might have dispensed with in the first instance, and in the place of which it may afterwards substitute other evidence, without depriving any one not entitled to protection on equitable grounds, of any right in law or morals. ^ The courts, however, have gone further than this, and have held that although the acknowledgment may not in fact have been made in compliance with law, or may not have been made at all, and on account of this the deed mav not have passed the wife's title, yet that it is within the power of the legislature, by a subsequent statute, to validate the instru- ment and give effect to the intention of the parties.^ Such an act, said the Supreme Court of the United States, does not impair the obligation of any contract either in its terms or its principles. It supposes the titles, of femes covert to be good, however acquired, and provides that deeds of con- veyance made by them shall not be void because there is a defective acknowledgment of the deeds by which they have sought to transfer the title. So far then as it has any legal operation, it goes to confirm and not to impair the contract of the femes covert. It gives the very effect to other persons, citing Webb v. Den, 17 How. 578 ; ttiat the certifloate of the ofBcer is but a formal act to give evidence of the aclinowledg- ment actually made; that the rules of law pertaining to remedies and evidence do not ordinarily enter into nor form a part of any contract, nor can they be regarded as being of the essence of any right a party may seek to e'-force, citing Cooley's Const. Lim., 457; Sinithwick v. Smithwick. 49 N. Y. 517; Howard v. Most, 64 N. Y. 268; Hepburn v. Curts, 7 Watts, 301; that the statute does not attempt to create a right where none before existed, but simply permits parties to show by the judgment of a court that which, before the statute was enacted, could be shown only by the certificate of the oflicer; and that a deed will- ingly executed by a married woman, and properly acknowledged by her, Is not void because the officer has failed to make. a proper cer- tificate of the facts. ^ Johnson v. Taylor, supra; Cooley's Const. Lim., 463, 467, and cases there cited. 2 Barnett v. Barnett, 15 Serg. & K. 72; s. C. 16 Am. Dec. 518; Lane v. Nelson, 73 Pa. St. 407; Tate v. Stoolzfoos, 16 Serg. & R. 35; S. C. 16 Am. Dec. 546; Goshorn v. Puroell, 11 O. St. 641. ■ 191 Ch. 4.] ACKNOWLEDGMENT BT MARRIED WOMEN. [§120. their acts and contracts which they intended to give, and which, from mistake or accident, has not been effected. ^ Such an act, it has also been said, does not divest any vested right, but on the contrary gives proper effect to con- tracts made by the wife fairly and in good faith, by which she intended but failed to pass the title to another, merely because the proper legal forms were not observed. The legislative will which prescribed these forms may say that a non-compliance therewith shall be waived or excused.^ A very recent case before the Supreme Court of Arkansas il- lustrates that under the later decisions a liberal rule of con- struction will be applied to these validating acts even as against married women. The court say that when a wife joins her husband in a conveyance of his lands, she havino- only a dower interest therein, it will be assumed that she joined for the purpose of conveying that interest; and while, it seems, this presumption may not be sufficient to warrant the court in holding that such interest did pass, where neither the deed nor the certificate of her acknowl- edgment contained any words of relinquishment of dower, yet where the legislature afterwards passed a validating statute, healing acknowledgments defective because of "any words omitted" therefrom, the act was held to apply, and to make the acknowledgment effectual to convey the dower interest. In such case it will be presumed in law that the officer omitted from his certificate of her privy acknowledg- ment, complete in itself as a separate acknowledgment, 1 "Watson V. Mercer, 8 Pet. 88. 2 Dentzel v. Waldie. 30 Cal. 138. This was a case under a curative act validating deeds executed under powers of attorney made by mar- ried women, incapacitated as at common law from malting such a power. For other cases, see SEaxey v. Wise, 25 Ind. 1; Poster v. The Bank, 16 Mass. 245; Gibson v. Hibbard, 13 Mich. 217; Town of Danville v. Pace, 25 Gratt. 11; Underwood v. Lilly, 10 Serg. & R. 99; Blount v! The City of Janesville, 31 Wis. 648; Payne v. Treadwell, 16 Cal. 238; Johnson v. Richardson. 44 Ark. 365 ; Jouruay v. Gibson, 56 Pa. St. 60 ; Kearney v. Taylor, 15 How. 517. 192 Ch. 4. ] ACKNOWLEDGMENT BY MARRIED WOMEN. [§121. the additional words proper to relinquish the dower in- terest. ^ §121. Wife Impeacliing the Certificate. The extent to which a raarried woman will be permitted to impeach and deny the truth of a certificate showing a proper acknowledgment by her, has been already consid- ered, ^ and there is little more that need be added here. Where the statute either expressly or by construction makes the certificate prima facie evidence only, parol evidence is admitted, without connecting the grantee with fraud, to de- stroy the certificate by showing that there was no privy ex- amination, or'that the deed was not explained to the wife, or other want of compliance with the law.^ In the absence of such legislation, the general rule prevails that the certifi- cate can be impeached only for fraud of which the grantee lias knowledge or notice,* and that, as against a bona fide 1 Johnson v. Parker, 11 S. W. Eepr. 681, citing on the first point, Dutton V. Stewart, 41 Ark. 101. 2 Ante, §§87-90. In North Carolina the taking of a married woman's acknowledgment was formerly regarded as a judicial act, not open to collateral attack. Wright v. Player, 72 N. C. 94; Woodbourne v. Gorrell, 66 N. C. 82; but It Is now no longer regarded as judicial, and her acknowledgment may be impeached for duress. Thus, where a creditor sued out an arrest of the husband for debt, charging fraudulent representations, and the wife was induced thereby, at the importunity ■of the husband, to mortgage her land to secure bail, a verdict in her fa- vor was sustained. Ware v. Nesbit, 94 N. C. 664, citing Jones v. Go- hen, 82 N. C. 75. The burden of proof is on the wife, and the evidence must be clear and convincing. Ford v. Osborne, 45 O. St. 1; Kust v. ■ •Goff, 94 Mo. 511; s. C. 7 S. W. Kepr. 418; 13 West. Kepr. 608; Hitz v. Jenks, 123 U. S. 298; s. c. 8 Sup. Ct. Eepr. 143. 2 Drury v. Foster, 1 Dillon, 460; Dodge v. Hollingsworth, 6 Minn. ^5; s. c. SO Am. Deo. 433; Kust v. Goff, 94 Mo. 511; s. C. 7 S. W. Eepr. 418; Fogarty v. Pinley, 10 Cal. 239. s. C. 70 Am. Dec. 714; Van Bracklen y. Fonda, 12 Johns. 468; s. c. 7 Am. Dec. 339. And the cer- tificate permitted to be impeached by the officer who made it. Pickens V. Knisely, 29 W. Va. 1; s. C. 6 Am. St. Kep. 622; Mays v. Price, 95 Mo. 603; s. c. 8 S. W. Eepr. 731. But in O'Ferral v. Simplot, 4 Iowa, 381, it is said that w^here the statute says the certificate shall not be conclu- sive, this refers only to fraud, and without fraud the certificate is not amendable. * Shelton v. Aultman, 82 Ala. 316; White v. Graves, 107 Mass. 325; s. •C. 9 Am. Eep. 38; Miller v. Yturria, 69 Tex. 549; Hartley v. Frosh, 6 (13— Reg. of Title.) 193 Ch. 4. J ACKNOWLEDGJIENT BY MAREIED WOMEN. [§121. purchaser of the property the certificate is conclusive, un- less it be a forgery, or be given without any ackkowledw- ment whatever having been made or attempted by the wife.^ Tex. 208; s. C. 55 Am. Dec. 772; Singer v. Kook, S4 Pa. St. 442; s. c. 24 Am. Rep. 204; Kerrv. Eussell, 69 HI. 666; s. C. 18 Am. Eep. 634; Har- king V. Forsythe, 11 Leigh, 294; Webb v. Barney, 70 Tex. 322; Johnston V. Wallace, 53 Miss. 331; s. c. 24 Am. Kep. 699; Baldwin v. Snowden 110. St. 203; S. C. 78 Am. Dec. 303. But see Central Bk. v. Copeland' 18 Md. 305; s. C. 81 Am. Dec. 597. ' The testimony of the woman alone not sufficient evidence. John- son V. Van Velsor, 43 Mich. 208; s. C. 5 ]SI". W. Kepr. 273, citino- Moore V. Fuller, 6 Or. 272. The Matter of Wool, 36 Mich. 299. The proof must be veryclear. Herrickv. Musgrove, 67 Iowa, 63; Pickens v. Kniselv 29 W. Va. 1; s. c. 6 Am. St. Eep. 622. •^' An angry command by the husband to "dry up that crying and go write your name," not accompanied by threats of personal violence or any attempt to exercise it, is not sufficient proof of duress. Gab- bey V. Forgeous, 38 Kan. 62; s. C. 15 Pac. Repr. 866, citing Carpenter V. Carpenter, 30 Kan. 712. See as to duress of husband. Loudon v Blythe, 27 Pa. St. 22; s. c. 67 Am. Dec. 442; Tapley v. Tapley, 88 Am' Dec. 76; Green v. Scranage, 19 Iowa, 461; s. c. 87 Am. Dec. 447; Gard- ner v. Case, 111 Ind. 494; s. C. ISjST. E. Repr. 36. Where the wife, when asked if she executed the deed freely and voluntarily, said nothing, but laughed, and the certificate was in the usual form, it was held that this was but an irregularity, no imposition fraud, duress or coercion being shown; and as the grantee had no notice of the irregularity, he was protected. Miller v. Wentworth 82 Pa. St. 280. Where the husband stated to the officer in the wife's presence that she could not write, and asked the officer to sign for her, which was done, and she then acknowledged the deed, this was held sufficient Crum V. Brown, 63 Miss. 495; Jones v. Gurtie, 61 Miss. 423- M^irher v' Jarel, 33 Fed. Repr. 336. ' ^'^'"■"''^ ^• The certificate may be impeached where the consideration is so grossly inadequate and unreasonable as to excite suspicion of unfairness and undue influence, and put the purchaser on inquirv Webb v -Rnr T;J° ?". ''V '; *"• I \J- ""'P" '"• ^^ ^^^'^'•^ '^'^ grantee'knew of the husband's fraud. Warner v. Hall, 53 Mich. 371- Pa<'itip Co t Anglin, 82 Ala. 492; s. c. 1 South. Repr. 852. ' 1 In Smith V. Ward, 2 Root, 378; s. c. 1 Am. Dec. 80, It was held with dissenting opinion by Judge Boot, that parol evidence was ad- missible to show an alibi of the wife; and see also, Michener v Caven der. 38 Pa. St. 334; s. c. 80 Am. Dec. 486; Allen v. Lenoir 53 Miss sll" Pickens V. Knisely, 29 W. Va. 1; s. c. 6 Am. St. Eep 622 ' Where the wife gave verbal authority to a notary to certify her ac- knowledgment to a deed afterwards to be presented to him by her hus band, with her signature to it, she was not permitted to take advantaeo 194 ^ Ch. 4. J ACKNOWLEDGMENT BY MARRIED WOjMEN. [§121. of this irregularity, nor of fraud in regard to the contents of the deed practiced on her by her husband, as against parties who had advanced money in good faith on the deed. McHenry v. Day, 13 Iowa, 445. A decree setting aside a wife's deed in toto because of defective ac- knowledgment, and vesting her with all the rights of the grantee, held erroneous; the proper decree being simply to set aside the deed as to her. Mays v. Price, 95 Mo. 603; s. C. 8 S. W. Repr. 731. The deed holds for the husband's life interest. Barton v. itorris, I.t Ohio, 408, 422. Acknowledgment by Telephone. — -Where the certificate was in due form, proof that the separate acknowledgment of the wife was taken by tele- phone over a distance of three miles, no fraud, duress or mistake be- ing alleged, held not to invalidate. Banning v. Banning, 22 Fac. Kepr. 210. In Hayden v. Moffatt (Tex.), 12 S. W. Repr. 820, reported since this chapter was put in type, the officer, in his certificate of a married woman's acknowledgment, recited that -'this deed from N. B., and J. B., her husband, to S. T. was produced to me in my office this day and was acknowledged by the grantors to be their act and deed ; and said instru- ment of writing being shown and explained to Mrs. N. B., separate and apart from her husband, she acknowledged same freely and willingly, without fear or undue influence of her said husband, and desired the same certified and recorded. Held, defective: 1. In failing to certify the identity of Mrs. B. See aiKe, §§76, 77, 113. 2. In not showing that she was examined by the officer, and the deed explained to her bv him privily and apart from her husband. See ante, §§104,106. 3. In failing to show that she "declared she had willingly signed the deed for the purposes and considerations therein expressed." Rev. Stats, of Tex., §4313. She might, says the court, "acknowledge the same willingly," without having signed it willingly. It would seem from this that a lack of willingness .at the movement of signing cannot be remedied by a subsequent willingness. It is not decided whether, in such case, the wife could erase or cross out her name and willingly sign it again at the time of the acknowledgment. Compare Belcher v. Weaver, 46 Tex. 293 ; 26 Am. Bep. 267, and cases cited in §§108, 109, 111. 4. The conveyance (by a wife) depends on the proper acknowledg- ment of the execution of the deed, while the registration depends upon a proper certificate of the facts of acknowledgment. See §9S et seq. In Jones v. Robbins, (Tei.), 12 S. W. Repr. 824, the rule that the wife may convey her property, or even the homestead, through an agent authorized by power of attorney, is affirmed. See §117. Proof of the wife's signature and voluntary execution is unavailing. See §§99, 123. Where the subscribing witness who makes the proof for record is present at the execution of an instrument, it is not necessary that he should swear he signed at the request of the grantor, though otherwise if he was notso pi'esent; citing Rev. Stats., §4314, and following Dorn V. Bert, 15 Tex. 65; post, §125; and a statement that the grantor signed in the presence of the witness held equivalent to stating that the wit- ness saw the signing. 195 Ch. 5. J PROOF BY WITNESSES. [§122. CHArTER 5. PROOF BY WITNESSES. §122. Proof without aid of statute. 123. General features of the statutes. 124. statutory provisions. 125. Witnesses of grantor's selection. 126. Proof by one when statute requires two. 127. Wilne-s defined — When disqualified. 128. The certificate and uttidavit — Certainty required. 129. Other statutory matters. 130. Proof of handwriting. §122. Proof Without Aid of Statute. The practice of proving a deed for the purpose of having it recorded, grew up in New York in colonial times as a part of the common law of that state. ^ And in North Car- olina it has been held that where no statutory provision ex- isted for proof for registry by evidence of handwriting, re- course could be had to the common law mode of proof for the purpose of registry.^ Registration is usually considered as purely statutory, and these are perhaps the only in- stances in which the common law has been permitted to supply deficiencies in the statute. A resort to the common law in such case has been denied in other states, and with the better reason. "Apart from the express enactment of our statute," said Chief Justice Waldo, of Oregon, "we do not know what is intended by the expression 'proving a deed' for purposes of registration."^ The generally re- ceived doctrine is that the whole system of registry is arti- ^ Van Cortlandt v. Tozer, 17 Wend. 338; s. c. 20 Wend. 423. 2 Carrier v. Hampton, 11 Ired. 307. The statute has since supplied the deficiency. Love v. .Harbin, 87 N. C. 249; Black v. Justice, 86 N. O. 504; Davis v. Higgins, 91 N. C. 382. 3 Mclntyre v. Kainm, 12 Or. 253; s. C. 7 Pac. Repr. 27. 196 Ch. 5. J PROOF BY WITNESSES. [§123. ficial, and rests entirely on the terms of the statute; and that the proof of a deed for record is a distinctly different matter from its proof in evidence before a court.^ 123. General Features of the Statutes. In a few states there are no statutory provisions for mak- ing proof for record of a deed or other instrument, ^ the only mode of authentication being by acknowledgment of the maker; while in one state the statute makes no provi- sion for authentication in any other mode than on proof by subscribing witnesses.^ In a number of states such proof is authorized to a limited extent only, and is confined to cases where the grantor is dead or absent,'' or wliere the proof is to be made within the home slate ;5 and in several states such proof can be made only before a court. ^ In a majority of the states, however, a deed may, without any restrictions, be authenticated for registry by proof of a witness, or witnesses, as well as by acknowledgment. This proof of the instrument for record is a matter purely stat- utory, and is entirely distinct, and usually different, from the proof required to admit it in evidence in a court.'' Where the privy examination of a married woman is re- quired to her conveyance, it cannot be proved for record by a witness.* 1 Woolfolk V. Graniteville Co., 22 S. Car. 332; Cairrell v. Higgs, 1 Tex. Uu. Cas. 56; anie, §§1—1-, 22, and cases there cited. 2 Jfew Mexico. Wyoming and Connecticut. 3 Gen. Stats, of S. Car. (1882), §§768, 1777. This does not apply to releases by married women. * Comp. Laws ol Kan. (1879), ch. 22, §12. See also, in last chapter of this work, laws of Iowa, Miss., Maine, Vermont, Mass., Minn., Mich, and Wisconsin. 5 This seems to be the case in Delaware, Maine, Mich., Minn., Rhode Island, Vermont and Wisconsin. * Kansas, New Hampshire, Mass., Maine, Wisconsin, Mich, and Minn. ' Cairrell v. Higgs, 1 Tex. Un. Cas. 56. 8 Berry v. Donley, 26 Tex. 739; Martindale on Couv., §266; ante, §99; Steele v. Lewis, 1 Mon. 49; Groesbeck v. Bodman (Tex.), 11 S. W. Kepr. 322. 197 Ch. 5. J PROOF BY WITNESSES. [§124. §124. Statutory Provisions. , The statutes relating to proof for record by witnesses are even more variant and diversified than those pertaining to acknowledgments. The following are some of the features and provisions to be found among the codes and statutes of the different states — that the proof for registry may be made by one witness ;i that it must be made by two;^ that the witnesses must sign at the request of the grantor;^ and in the presence of the grantor and of each other ; * that the wit- nesses must know the grantor;^ and know hira to be 21 years old;^ that the witness must be known, or made known to the officer;^ the proof must be that the witness saw the grantor sign;^ that the grantor acknowledged to the witness that he had signed;^ that the witness saw him sign or heard him acknowledge ;!" that he saw the grantor sign and heard him acknowledge ;ii that he saw the grantor sign and deliver the deed j^^ that he witnessed the instrument on the day the same bears date.^* 1 Eev. Stats, of Tex. (1879), §4314; Eev. Stats, of Mo. (1S79), §682; Code of Ga. (1882), §2707; Rev. Stats, of Wis. (1878), §2228. This is the rule in the greater nuinber of states. 2 Code of Va. (1873), ch. 117, §3; Mil. & Ver. Code of Tenn. (1884), §§2850, 2862; West Va. and Ky. 3 Rev. Stats, of Tex. (1879), §4316; Comp. Laws of Utah (1876'). §641. ^ ^' < Code of Ala. (1876), §2159; Code of Miss. (1880), §1218: Allen v Holden, 32 Ga. 423. » Eev.Stats. of Tex. (1879), §4315; Comp. Laws of Utah (1876), §641; Mil. & Ver. Code of Tenn. (18S4), §2873; Crockett v.' Campbell, 2 Humph. 411. * Indiana; see last chapter of this work. ' Eev. Stats, of Mo. (1879), §682; Brogan v. Savage, 5 Sneed, 689; Comp. Laws of Ariz. (1877), §2257; Eev. Stats, of Tex. §4315. 8 Code of Ga. (1873), §2707; Gen. Stats, of S. Car. (1882), §1777. e Mil. & Ver. Code of Tenn., §2873. 10 Code of Miss. (1880), §1218; Eev. Stats, of Tex., §4316 " Gen. Stats, of Ky. (1873), ch. 24, §15; Comp. Laws of Utah (1876), §641. 12 Eushiu V. Shields, 11 Ga. 636; s. c. 56 Am. Dec. 436; Gen. Stats. of S. Car. (1882), §1777; Eaton v. Freeman, 63 Ga. 538. 13 Code of Ala. §2159; Tennessee. The statutory provisionte will more fully appear by reference to the forms of proof in Chapter 11 given under the head of each state. 198 Ch. 5.] PROOF BY WITNESSES. [§125. §135. Witnesses of Grantor's Selection. Quite a number of the statutes require the proof to show thattlie witness signed as such at the request of the grantor. Where the statute does not require this, it is not necessary to state it in the certificate;-' and even where the statute contained the provision, but prescribed no form of certifi- cate, the courts of one state have held, in the earlier cases, that the failure of the certificate to show the request was immaterial. In holding a certificate omitting this matter to be a substantial compliance with the law requiring the of- ficer to make a certificate of the proof, the learned judge delivering the opinion of the court concludes that "to re- quire more would seriously jeopardize the security of titles, and there can be no good reason assigned why more should be required.'"-^ It may be remarked that on this kind of reasoning the courts would be fully authorized to dispense with nearly, if not ail, the statutory law relating to authen- tication. In another and earlier case the same court ex- cused the omission on another and somewhat more ingeni- ous theory. The statute provided that the witness should state that he saw the grantor subscribe the deed, or that the grantor acknowledged in his presence that he had sub- scribed and executed the same, and that he had signed the same at the request of the grantor. The certificate stated only that the witness saw the grantor execute the deed; and the court held that the last provision of the statute, as to the request, had relation only to the next preceding clause, relating to cases where the grantor acknowledged to the witness that he had executed the deed, and was not intended to apply to cases where the witness saw the grantor sub- scribe.^ The alternative clauses were separated only by a comma — but the decision is fully justified by the sugges- ^ Carpenter v. Dexter, 8 Wall. 513. But otherwise if the statute re- quires it. Tate v. Lawrence, 11 Heisk. 503. 2 Been v. Willis, 21 Tex. 6i2. ' Corn V. Best, 15 Tex. 62. 199 Ch. 5.] PEOOr BY WITNESSES. . [§126. tion of Sir Matthew Hale, that courts "should be astute to find means to make acts effectual according to the honest intent of the parties. "^ It is evident, however, that these decisions are not in har- mony with the general construction of the registry laws; and the same court, in a later case, while again following them as to another certificate made under the same act of 1846, takes occasion to say that a stricter construction will be given to the present law.^ The registry system, in these instances, contemplates that the proof must be effected through instrumentalities of the grantor's own selection; and this would seem to be more a matter of substance than a majority of the statutory provisions relating to authenti- cation. A volunteer who may happen to witness the making and delivery of the deed, but whom the grantor has not called upon to attest it, is not.authorized to make the proof in relation thereto. It has been held that the signino- and delivery of a deed in the presence of an officer who certifies thereon to these facts, but whose certificate is defective for failing to state that the grantor acknowledged the deed, does not constitute such officer an attesting witness under the statute.^ §126. Proof by one Witness where Statute requires two. In a few instances the- statutes require the proof for authentication to be made by two witnesses, and in such 1 Eoe V. Tranmar, Willes, 682. 2 Downs V. Porter, .54 Tex. 69. 3 McDaniel v. Seedham, 61 Tex. 269. The contrary seems to have been beld under the Alabama statute. Rogers v. Adams, 66 Ala. 600. So, where a third party signed as a witness without request, but in the presence of both grantor and grantee, and the deed was delivered to and accepted by the grantee, this was heid sufficient. Clements v. Pearee, 63 Ala. 284; Code of Ala. (1876), §2145. And so, under the early Texas statutes, the officer before whom a deed was executed as a public act might prove it as a witness. McKissock v. Colquhoun, 18 Tex. 149. A deed was attested by one witness, and acknowledged before an of- ficer, who also, with the witness, signed a memorandum relative to an interlined word, and this w.as held a sutRcient. attestation by two wit- nesses. Culbertson V. \yhitbeok Co., 8 Sup. Ot. Eepr. 1136- s c 127 U. S. 326. 200 Ch. 5.] PROOF BY WITNESSES. [§126. case proof by one alone is not sufficient. ^ Where the stat- ute of conveyances requires two witnesses, and the statutes of registry provide that the deed may be proved for record by one of the subscribing witnesses, a question has arisen as to whether a deed with only one witness can be proved fpr record by the witness. When the statute re- quires a deed to be attested by witnesses to entitle it to reg- istration, or to render it a valid instrument, the want of such witnesses, or either of them, will vitiate the record of the deed.^ But where a deed without witnesses is sood be- tween the parties, and as to third parties with notice, ac- tual or constructive, and the number of witnesses is not di- rectly made a prerequisite to registry, if the statute pro- vide that proof for record by one witness shall be sufficient, it might reasonably seem that the absence of the name of a second witness, though two be required to attest, would be immaterial. One witness is sufficient at common law to es- tablish the deed in evidence before a court. The purpose of the statute in requiring the subscription of two witnesses, where it allows the proof for record to be made by one, is doubtless to guard against loss of the means of prnof by death or absence of one witness. Where, in such cases, the proof by one witness is offered, the name of the second witness on the instrument is,^?'o hacvice, entirely superflu- ous; and it may be fairly contended that the designation, in the statute, of the witness authorized to make the proof, as "one of the subscribing witnesses," should be regarded as an incidental description of no controlling significance. Proof for record by a sole subscribing witness has, on these considerations, been held sufficient; although it will be ad- ' Pyle V. Maulding, 7 J. J. Marsh. 204; Batte v. Stone, 4 Yerg. 168. ' Tringle v. Dunn, 37 Wis. 449; S. c. 19 Am. Kep. 772; Carter v. Champion, 8 Conn. 549; s. c. 21 Am. Dec. 69.5; White v. Denman, 16 Ohio, 59; Thompson V. Morgan, 6 Minn. 292; Frostburg Association v. Brace, 51 Md. 508; Hodgson v. Butts, 1 Cranch, 408; Gardner v. Moore, 51 Ga. 268; N. Y. Life Ins. Co. v. Staats, 21 Barb. 570; Van Thorniley v. Peters, 26 O. St. 471 ; post, §145. 201 Ch. 5. J PROOF BY WITNESSES. [§127. mitted that the decision is not in accord with the tenor of strict construction usually given to matters of this kind. §127. Witnesses Defined— TV^hen Disqualified. In Tennessee the words "subscribing witnesses" have been defined to mean that the persons who witness a deed must either have seen the maker sign, or heard him ac- knowledge his signature ; and they must themselves have sio-ned as witnesses in the presence of the maker, by his re- quest or assent, or if they signed as witnesses in his absence, they must have been specially requested by him to attest the instrument as witnesses.^ That an attesting witness is interested does not usually invalidate the record,^ especially if it be a subsequently acquired interest.* Under some of the statutes, however, the witness required to a deed must be without a direct, certain legal interest in the land.^ The 1 Coryelle v. Holmes, 3 Tex. Law .Jour. 481. Judge Quinan render- ino- the opinion siij-s: "And we are at a loss to conceive why other ■ proof should be required to register than to admit in evidence, or what additional efficacy it would impart to the notice which it was the pur- pose of the registry to effect, that the deed bore upon its face the attes- tation of a dozen dumb subscribing witnesses." The ruling as to this deed is affirmed in Holmes v. Coryelle, aS Tex. 6S5, and again followed in another case arising under the same statute, in Wilson v. Simpson, 68 Tex. 312. But as the decision in the first case was measurably rested on the phraseology of the statute under construction, and also on the effect of a subsequent validating statute, these oases cannot be regarded as settling the principle contended for. Proof by one witness is sufficient under the Miss, statute. Shirley v. Fearne, 33 Miss. 653; s. C. 69 Am. Deo. 375. So, though the statute requires two witnesses, proof by one is held sufficient where the statute is silent on this point. MoG-owan v. Eeid, 27 S. Car. 262. Where one of the two witnesses, though present at the execution of the deed, did not sign until long afterwards, this was held sufficient in equity. Young v. Young, 27 S. Oar. 201. 2 Tate V. Lawrence, 11 Heiak. 503, citing 2 Heisk. 405. 3 Jones V. Ruffin, 3 Dev. 404; Johnson v. Turner, 7 Ohio, 216; and see also McKinnon v. McLean, 2 Dev. & Bat. 79, 85; Welsh v. Lewis, 71 Ga. 387. ^ Oarter v. Oorley, 23 Ala. 612. A corporation mortgage may be proved for record by the president or secretary, if signed by them. For this purpose ihey may he regarded as subscribing witnesses. Coe V. N. J. Ky., 31 N. J. Eq. 105. » Morrill v. Morrill, 60 Vt. 74; Coleman v. State, 79 Ala. 49; Day v. Adams, 45 Vt. 510; Child v. Baker. 24 Neb. 188; S. C. SSN. W. Kepr. 769. 202 Ch. 5.] PROOF BY WITNESSES. [§128. test of competency is the ability of the witness at the time and place of attestation to testify as to the deed.'^ In most of the states the husband and wife are not competent as subscribing witnesses to each other's deed.^ An attesting witness is not thereby disqualified as an officer from taking the grantor's acknowledgment to the instrument.^ It has been held in North Carolina that where a deed is proved for recoi'd by an incompetept witness, the record nevertheless Imparts notice.* §128. The Certificate and Affidavit— Certainty Re- quired. It is not necessary that the witness should subscribe his name at the bottom of the officer's certificate of proof, as in case of a formal affidavit; nor that the officer should ap- pend a jurat. If this be done, however, it will not vitiate the certificate.^ A certificate that the instrument was "duly proven," is not sufficient;^ and so it will not suffice for the 1 Cairrell v. Higgs, 1 Tex. Un. Gas. 56; Tillotson v. Pritchard, 60 Vt. 94; Hordin v.Sparks, 70 Tex. 429; s. C. 7 S. W. Kepr. 769; Carter v. Campion, 8 Conn. 549. 2 Tillotsou V. Pritchavd, 60 Vt. 94. In this case the deed was exe- cuted in Minnesota where the wile was competent as an attesting wit- ness, and such attestation was held sufficient when questioned in the courts of Vermont, where she was not competent. 3 Conley V. Campbell, 78 Ga. 369; Baird v. Evans, 58 Ga. 350. For other Georgia cases as to attestation by witness and officer, see William- son V. Moore, 68 Ga. 585 ; .James v. Penny, 76 Ga. 797 ; Hearn v. Smith, 59 Ga. 704. 4 "The registration, no matter on what proof made, gives the notice designed for creditors and purchasers." Ruffin, C. J., in McKinnon V. McLean, 2 Dev. & Bat. 79, 85. It may be remarked that this kind of reasoning dispenses with probate and acknowledgment altogether. Where one of the two witnesses was the grantor's wife, the record was held of no effect, in Carter v. Campion, 8 Conn. 549; and see also, Winsted Sav. Bank v. Spencer, 26 Conn. 194. 5 Dana v. The U. S. Bank, 5 Watts & Serg. 223: Whitney v. Arnold, 10 Cal. 531. The certificate in this last case is given in full in 1 Dev- lin on Deeds, §513, note. 6 Fleming v. Keed, 37 Tex. 152; Ko.ss v. McLung, 6 Pet. 283. Ex- cept in North Carolina, where the certificate is not required to be re- corded where the proof is made before a home state officer or court. Starke v. Etheridge, 71 N. 0. 240; Love v. Harbin, 87 N. 0. 253. 203 Ch. 5.j PBOOF BY WITNESSES. [§12S. certificate to show only that the witnesses acknowledged or" proved their own subscription ;i nor will a bare statement that they saw the grantor's name subscribed for the pur- poses therein mentioned.^ A failure of the witness to state that he was a witness when the instrument shows him to be such, is immaterial. 3 Where the certificate of an ancient deed did not state that the witness was sworn, that matter was presumed.^ Where a witness who had signed by making his cross-mark, swore "to the best of his knowledge and The officer merely noted "jurat" opposite the name of the witness "as a memorial of the fact" that proof for record had been made by the Tvitness. The court, while conceding that it would be the better prac- tice to formally make out a certificate of the probate, held that to al- low the objection would shake the titles of a large portion of the land owners of the state owing to the untechnical form in which these pro- bates are usually made. Bynum, .T., in Starke v. Etheridge, supra. The certificate of probate was not required to be made out and re- corded in South Carolina prior to the act of 1872. Hillegas v. Hart- ley, 1 Hill Ch. 106; Monks v. Jenkins, 2 Hill Ch. 9; Lamar v. Eay- so'r, 7 Rich. 509; Wood v. Eeeves, 23 S. Car. 382. 1 McCorkle V. Amarini, 12 Ahi. 17. The certificate must show that the witness was sworn. Jackson v. Livingston, 6 Johns. 149; Jackson V. Osboru, 2 Wend. 55.t; Bradstreet v. Clarke, 12 Wend. 673; Norman V. Wells, 17 Wend. 137; Van Cortlandt v. Tozer, 17 Wend. 338; s. O. 20 Wend. 423; Mclntyre v. Kamm, 12 Or. 253; s. c. 7 Pao. Kepr. 27. In this last case it is said that the ruling in Hunt v. Johnson, 19 N. Y. 292, to the effect that it would be presumed that the witness was sworn, is not sound in principle, nor in accord with the practice in New York prior to the statute. For cases giving certificates of proof held sufficient, see Myrick v. McMillan, 13 Wis. 188, 191; Wilson v. McEwan, 7 Or. 87, 104; Talbert V. Dull, 70 Tex. 675; s. C. 8 S. W. Repr. 5':i0. The witnesses to u deed of confirmation need not swear that the grantor was the one who signed the deed intended to be confirmed. Crockett v. Campbell, 2 Humph. 411. Under former statutes of Virginia a. chattel mortgage, admitted to record on the oaths of only two subscribing witnesses was void even as against creditors with notice. Hodgson v. Butts, 3 Cranch, 140. In Florida proof by a subscribing witness to a mortgage, that he saw the mortgagor sign the instrument, and acknowledge that he did so, is not sufficient to authorize its admission to record. Edwards v. Thom (Fla.), 5 South. Repr. 707. 2 Fipp V. McGehee, 5 Port. 413. ^ Carpenter V. Dexter, 8 Wall. 513. ■" Hunt V. Thompson. 19 N. Y. 279. This case is justly critizei in Mclntyre v. Kamm, 12 Oregon, 253. The certificate must show the witness was sworn. See cases cited in note 1, ante. 204 Ch. 5. J PROOF BY WITNESSES. [§129. belief" that he signed the instrument as a witness, and that the grantor acknowledged that he signed it, this was held sufficient.! Proof that the witness saw a firm name signed without stating which member signed it, is not sufficient.^ Where the witness testified that he would not have attested the deed unless the grantor had acknowledged it, this was held sufficient proof of acknowledgment.^ A statement that the witness saw the grantor sign or heard him acknowl- edge, was held bad for uncertainty.'' Where the statement was that the grantor signed and delivered the instrument, and that the witness signed at his request, but there was no statement that he saw the grantor sign, it was held to suf- ficiently import that fact.^ A bare statement that the sig- nature of the grantor is in his handwriting is not usually sufficient, the witness' means of information should be stated.^ §129. Other Statutory Requisites. Where the statute requires the proof to show that the witness knew the grantor, a statement in the certificate that the witness saw the grantor sign the deed is not sufficient proof of identity.^ Unless the statute specifically requires 1 Stramler V. Coe, 15 Tex. 211. See post, §130. ^ Baldwin v. Richardson, 33 Tex. 16. 5 2 Wash. (Va.), 58. * Harvey v. Cummings, 68 Tex. 599; s. c. 5 S. W. Kepr. 513. The learned judges who so ably decided the earlier cases by this court, cited ante, §119, were no longer on the bench, elsewise a construction would certainly have been found whereby to make effectual the certificate in this last case. Compare this case with the one cited in the next note below where, in addition to the uncertainty as to which method af- forded the witness his means of knowledge, there was no direct affir- mation as to either method, and yet the certificate was sustained. « Stinnett v. House, 1 Tex. Un. Gas. 484. Discrepancy in the name of the witness as signed to the deed, and as stated in the certificate, held immaterial, see Waters v. Spofford, 58 Tex. 115; Page v. Arnim, 29 Tex. 53. ^ The proof should show upon what grounds the witness founds his opinion. Carrier v. *[ampton, 11 Ired. 307; Jackson v. Waldron, 13 Wend. 178. ' Jackson v. Gould, 7 Wend. 366; .Jackson v. Osborn, 2 Wend. 555; s. c. 20 Am. Dec. 649; Harrison v. Wade, 3 Cold. 505; Averill v. Wilson, 4 Barb. 183. 205 Ch. 5.] PEOOF BY WITNESSES. [§129. the officer to certify that the witness making the proof is personally known to him, this is not necessary j^ and where it is required, the precise language of the statute need not be used.2 What shall be sufficient proof that the person offer- ing himself is a subscribing witness, is left to the discretion of the officer. 3 The grantor's acknowledgment to a witness that he had executed the deed is equivalent to an original execution in the presence of the witness.* In Alabama it is held unnecessary that the proof show that the witness saw the instrument signed and delivered on the day the same hears date, although this latter is required by the statute.^ But the certificate must comply with the statute of that state in showing that the witnesses signed in the presence of the grantor and of each other. ^ Under an early Texas statute, proof by witnesses who were not subscribing wit- nesses, was held sufficient, although this was conceded to be a departure from the literal import of the terms of the stat- ute.'' Where the statute required the proof to show the de- livery of the deed as well as its signing and sealing by the grantor, an omission to state the delivery has been held fatal.8 1 Johnson v. Prewitt, 32 Mo. .553; Parker v. Phillips, 9 Cow. 94. Where the certificate did not show that the officer knew the witness, the court intended that he had satisfactory evidence of the person being the subscribing witness. Wood v. Harrow, 11 .Johns. 434 (A. D. 1808). 2 Sheldon v. Stryker, 42 Bai'b. 284; s. C. 27 How. 387. ' Kellogg V. Vickory, 1 Wend. 406. * Parker v. Phillips, 9 Cow. 94. It is not necessary that the grantor sign the deed in the presence of both the witnesses. Little v. White (S. Car.), 7 S. E. Eepr. 72. ^ Harbinson v. Harrell, 19 Ala. 763; Parsons v. Boyd. 20 Ala. 112. And see, as to a similar provision in the Tennessee statute. Lea v. Polk County, 21 How. 493. Such expressions are doubtless written in the statutes only for the sake of euphony. ^ Dolin V. Gardner, 15 Ala. 768. See further as to proof by witnes- ses, Simpson v. Simpson, 93 N. C. 373; Davis v. Higgius, 91 N. C. 382; Secrestv. Jones, 21 Tex. 121; Howard v. Colquhoun, 28 Tex. 134; Wa- ters v. Spofford, 68 Tex. 115. ? Paschal v. Perez, 7 Tex. 348; McKissiok v. Colquhoun, 18 Tex. 149, * Eushln V. Shields, 11 Ga. 636; s. c. 56 Am. Dec. 436; Eaton v. Freeman, 63 Ga. 538. So the proof must show the signing by the other witnesses, if that be required. Allen v. Holden, 32 Ga. 423. 206 Ch. 5. J PROOF BY WITNESSES. [§130. §130. Proof by Handwriting. "Where the subscribing witnesses to a deed are dead, it may, in a majority of the states, be proved for record by evidence of the handwriting of the grantor and of at least one subscribing witness.^ The statutory provision usually applies also to cases where the witnesses are insane, or oth- erwise incompetent,^ or absent from the country,^ or their whereabouts unknown. In some states the signatures of all the attesting witnesses must be proved;* in others, the signature of the grantor, or of the witnesses may be proved ;^ and in one state, only the signature of the witnesses is to be established.^ In quite a number of the states proof of handwriting can be resorted to when the grantor, as well as the subscribing witnesses, is dead, or he refuses to ac- knowledge the deed, or is out of the country.' More is usually required in making proof by handwriting than where the instrument is proved by a subscribing witness.^ Resort 1 Stebbins v. Dupoun, 108 U. S. 32; Rev. Stats, of Tex., §4317; Eev. Stats, ol Wis., §2227; Comp. Laws o( Ariz., §22.>1; Gen. Stats, of S. Car. §§768, 1777. 2 Cairrell v. Higss. 1 Ten. Un. Cases, 56. 8 Hanriok v. Patrick, 119 U. S. lofi. " Eev. Stats, of N". J. (1877), Conveyances, 6; Gen. Stats, of S. Car. §1777 ; New Hampshire. 6 Code of N. Car. §1244 (8) ; Davis v. Hiffgins. 91 N. C. 382: Comp. Laws of Utah (1876), §638; Code ofMiss. (1880), §1221. 6 Code of Ga., §2708. Under the early Pennsylvania statutes, held thatresoi't could not be had to proof of the handwriting of one witness without accounting for the oher. Davison v. Bloomer, 1 Dall. 123. Evidence oE the signature of the witness must be first offered, and if that cannot be had, then of the signature of the grantor. Brightly's Purdon's Dig. of Penn. (1872), Deeds, etc., 15. ' The grantee is a competent witness to make the preliminary affida- vit that the grantor and subscribing witnesses are dead, or their res- idence out of the state or unknown. Waters v. Spofford, 58 Tex. 115; and see, also, Jones v. Hough. 77 Ala. 437. Not now necessary in North Carolina that the grantor be dead. Love v. Harbin, 87 N. C. 253; Black V. Justice, 86 N. C. 504. 8 A certificate to the effect that the witness swore that he was well acquainted with the handwriting of the subscribing witnesses, and that one of them is dead and the other had been a non-resident of the state for many years, is fatally defective in not stating that the signatures to the deed are in the handwriting of the parties. Anderson v. Logan, 99 207 Ch. 5.j PKOOr BY WITNESSES. [§130. is seldom had to proof by handwriting, so that it is not deemed necessary here to do more than refer to the statutes in the last chapter, and to the few cases on the subject cited in the notes below. ^ Proof of handwriting may be ma3e, it seems, even where the party signed by making a cross- mark.'^ ST. Car. 474; s. c. 6 S. E. Eepr. 704. For case of proof of handwriting held sufficient, see .Seu.rest v. Jones, 21 Tex. 121. In North Carolina a deed without subscribing witnesses may be pro- bated foi' record on proof of tlie handwriting of the grantor; Howell v. Kay, 92 X. C. 510; whether such grantor be living or dead. Love v. Harbin, 87 N. C. 249, citing Black v. Justice, 86 N. C. 504. See Rollins V. Henry, 7S K. C, 342. 1 McGuire v. Hay, (1 Humph. 419; Hightower v. Wells, 6 Yerg. 249; Borst V. Enipie, 5 X. Y. 33. Certificate as follows: "I, J. W. S. clerk of the County Court aforesaid do hereby certify that T., one of the above subscribing witnesses, who being duly sworn that he himself with P. signed as witnesses when E. (the grantor) signed and acknowledged the foregoing instrument of writing for the purposes therein set forth." The statute then in force (Paschal'sDig. of Tex., art. 4973) required that one of the witnesses of the number required by law shall swear to the signature of the signer * * * which shall be certified by the re- corder,'' etc. Seld that the omission of the word "says" or "said," was a patent clerical error, and that the i-ertificate was sufficient. Talbert v. Dull. 70 Tex. U75; S. C. 8 ,S. \\. Repr. 530. 2 A party's mark may be proved like his handwriting by a witness who is sufficiently acquainted with it to be able to testify that he be- lieves it to be his. Strong v. Brewer, 17 Ala. 706; see also, Lansing v. Kussell, 3 Barb. Ch. 325. The mark of a witness cannot, prima facie, be identified; and held, therefore, that resort could -at once be had to proof of the handwriting of the grantor. Carrier v. Hampton, 11 Ired. 307. Where the mortgagor and witnesses all signed by cross-marks, and were not able to identify the paper, it was held admissible to prove it by the mortgiigee, or any person who saw it executed. Jones v. Hough, 77 Ala. 437. That a witness signed by a cross-mark does not Invalidate the attestation. Tatum v. White, 95 N", C. 4.j3. Where the statute required two witnesses, and there were only two to a deed by several grantors, who signed and acknowledged at different times and places, this was held sufficient. Hronske v. Janke, 66 Wis. 252; s. C. 28 X. W. Eepr. 166. An acknowledgment before a Louisiana commissioner must also be before two witnesses, or else it is ,an act under private signature that must be proved before it is admissible in evidence. Leibe v. Heber- smith, 39 La. Ann. 1050; s. C. 3 South. Repr. 283. 208 ■Ch. 6.] TIME, PLACE, ETC., OF RECOED. [§131. CHAPTEE 6. ■OF THE TIME, PLACE AKD OTHER ES"CIDENTS OP RECORD. §131. Time of record, generally. 132. Statutory time of record. 133. Continued. 134. Place of record. 135. Continued — General land office. 136. Books of record. 137. Morruage in book of deeds. 138. Continued. 139. Continued. 140. Filing for record. 141. Filing and withdrawal. 142. Indexing. 143. iSpecial statutory index. 144. Delivery of the deed. 145. When witnesses necessary to the record. 146. Sealing and signing. 147. Description of the property. 148. Recording pfiicers. 149. Schedules, memoranda, etc. 150. Manner of record. 151. Payment of recording fees. §131. Time of Record. It has been deemed advisable to here group together a number of matters such as do not seem to specially belong under any of the other chapters of this work; and which, although incidental in their character, are yet of much im- portance, as the effect of the record as notice depends in all cases upon a full compliance with the requirements of the statute. A deed may be recorded at any time after its execu- tion, and lapse of time will not ordinarily affect the gran- tees right to have it placed on record.^ But there are 1 Irving V. Smith, 17 Ohio, 226; Johnson v. McGehee, 1 Ala. 186; Gill T. Pinney, 12 O. St. 38; McNamee v. Huckabee, 20 S. Car. 190; Sellers V. Sellers, 88 IST. C. 13; Citizens' Bank v. Terry, 32 La. Ann. 310; Stew- art v. Mathews, 19 Fla. 752. (14— Reg. of Title.) 209 Oh. 6. J TIME, PLACE, ETC., OF RECORD. [§131. limits even to this rule, and it has been held that where a deed had not been recorded until after so great a length of time (twenty-six years in the case under consideration), as precluded the party to be affected by it from every reasonable opportunity of detecting any fraud, imposition or forgerv that may have been practiced in the case, the instrument could not be deemed a regularly recorded deed so as to authorize the reading of a certified copy of it in ev- idence. ^ The provision found in some of the statutes allowing a specified time for recording conveyances has been, in its general features, alreadly briefly considered.^ Where such provision does not exist, a deed or other instrument oper- ates as notice only from the time it is filed for record, and persons having no actual notice of it, have the right to se- cure a prior conveyance of, or lien upon, the property in any lawful mode up to the moment of such filing.^ An ex- ception to this rule is found in Connecticut, where it has 1 Longworth v. Close, 1 McLean, 2S2. A statutory limitation is found in New Jersey. Kev. Stats, of \S11, Conveyances, 15. Where convey- ances were not recorded until after a great lapse of time, and were at- tacked as fraudulent and forged, the delay of record was considered a very significant cirournstanoe. Sibley v. Haslara, 75 Ga. 490. In Louisi- ana a mortgage ceases of effect, even as between the parties to it, if not inscribed within ten years. Tilden v. Morrison, 33 La. Ann. 1067. » See aitte, §7. In Oregon the time is five days; in South Carolina, forty; in Indiana, forty-flve; in Kentucky, sixty days; in Virginia, twenty days; in Maryland and Pennsylvania (except Philadelphia), six months; and in Georgia, one year. In Penn. and Ky. a longer time than above stated is allowed where the deed is executed out of the state. Where time is allowed for mortgages, it is usually for a shorter period than above stated for deeds. In Del- aware certain kinds of instruments have the privilege of the entire day on which they are executed; Laws of 1885, ch. 213, §4; while others are allowed a much longer time. 3 Thus, where a deed was acknowledged before the recorder and given to him for record, and at the same instant the land was attached by a creditor of the grantor, the court held that as the deed could not be re- corded without a certificate, and as it must have taken the recorder some time to write out the certificate, the attachment was entitled to priority. Sigourney v. Larned, 10 Pick. 72. In Georgia, where both deeds are filed after the statutory time, the senior in date is preferred though last filed. Marcus v. Picquet, 61 Ga. 260. \ 210 Ch. 6.] TIME, PLACE, ETC., OF RECORD. [§132. been held that the grantee is entitled to a reasonable time within which to file his deed for record, and that it is a question of fact for the court below as to what is a reason- able time.^ §132. Statutory Time for Recording. Where the statute prescribes a period of time for the record of instruments, two considerations are presented; first, as to the effect of recording within thetime; and sec- ond, as to the effect of registry made after the expiration of the time. On the first point it is the law without excep- tion, and whether or not it be so declared in the statute, that when the instrument is recorded at anytime within the statutory period, it relates back to the date of its delivery, and takes precedence over any subsequent conveyance of the property, though already of record.^ Without this, the privilege or preference which the statute confers would be of no effect; and the courts have said that if thereby an innocent subsequent purchaser is made to suffer, the fault is in the statute.^ It is also well settled, by statute in some states* and by decision in others, that when a d^ed is recorded after the time specified, it is notice from the time the record is made, or the instrument filed for rec- 1 The deed was delivered at 1 o'clock, p. m. ; the land was at- tached at 7 o'clock, p. M. of the same day, and the deed, left for record at 8 o'clock, p. m. of the next day, was held to he in time. Goodsell v. tSullivan, 40 Conn. 83. In Louisiana, a purchase money mortgage, to be entitled to priority, must be "seasonably" re- corded. One given in October, 1875, was not seasonably inscribed in September, 1876. Giovanovitch v. Hebrew Congregation, 36 La. Ann. 272, 274. 2 Betz V. Mulin, 62 Ala. 36.5; Phelps v. Barnhart, 88 N. C. 333; Steele V. Mansell, 6 Kich. 443 ; Clark v. Arnold, 2 Hay, 287 ; Breckinridge v. Todd, 3 Mon. 54; Claiborne v. Holmes, 51 Miss. 146; Stansell v. Eoberts, 13 O. St. 148; Nichols v. Hampton, 46 Ga. 2.53; Clarke v. White, 12 Pet. 178; McConnell v. Brown, Lit. Sel. Cas. 462; Martin v. Sale, Bail. Eq. 6; Dale v. Arnold, 2 Bibb. 6i05; King v. Fraser, 23 S. Car. 543. 3 Shirras v. Caig, 7 Cranch, 34; Kemper v. Campbell, 44 O. St. 210. < Gen. Stats, of Ky. (1873), ch. 24. §22; Kev. Code of Md. (1878), ch. 44, §?16, 22. So, also, in Ohio, South Carolina, Georgia and New Jersey. ^ 211 Ch. 6.1 TIME, PLACE, ETC., OF RECORD. ;§133. ord.i This point, though controverted at first, ^ may now be regarded as established. The grantee loses the right to insist that his tardy registration shall have relation back to the date of delivery, but he does not lose the ben- efit of registry from the day it may be actually made.^ The months mentioned in the statute are calendar months, reckoned exclusive of the day of registration or filing.* In South Carolina, where » record made after the forty days is by statute declared good against subsequent cred- itors, the lien of a mortgage so recorded takes precedence over debts contracted between its date and the date of its registry.^ §133. Time of Recording— Continued. When two conveyances of the same property are made, and neither is recorded within its statutory time, the rule would apply as between the record of these instruments just as if no period of time for recording had been pre- scribed, unless the terms of the statute are in some way to ^ McEaven v. McGuire, 9 Sm. & jMar. 34; Mallory v. Stodder, 6 Ala. 801; S. Car. Loan'Co. v. McPherson, 26 S. Car. 431; s. C. 2 S. E. Repr. 267; Adair V. Davis, 71 Ga. 769; Hand v. McKinney, 25 Ga. 648; ileni V. Kathbone, 21 Ind. 454; Delane v. Jloore, 14 How. 253; Irvin v. Smith, 17 Ohio, 226; King v. Fraser, 23 S. Car. 543. 2 After the eight months had elapsed there existed no authority for recording the deed. Womaclc v. Hughes, Lit. Sel. Cas. 292. And not being good as a recorded instrument, its execution must be proved. Hog v. Perry, 1 Lit. 172; Winlock v. Hardy, 4 Lit. 472. But it is good as against a purchaser with notice. Bennett v. Titherington, 6 Bush, 196. 3 Steele v. Mansell, 6 Rich. 437, quoted at length in 1 Dev. on Deeds, §625. * Pyle V. Maulding, 7 J. J. Marsh. 204; Applegate v. Gracy, 9 Dana, 215, 226; Allston v. AUston, 2 Tread. Const. Rep. (S. C), 604. « King V. Fraser, 23 3. C. 543; Gen. Stats., §1776. Under the Act of 1843 it was otherwise. Piester v. Piester, 22 S. C. 139; McKnight v. Gordon, 13 Rich. Eq. 222; Williams v. Beard, 1 S. C. 309. By statute of Maryland, courts of equity have been empowered to authorize mort- gages to be recorded after expiration of the six months, and in such case the mortgage will impart notice from the date of record; but as to prior creditors, if there be no fraud, it will relate back to its own date. §ta'i- hope V. Dodge, 52 Md. 483. 212 Ch. 6. J TIME, PLACE, KTC, OF RECORD. [§133. the contrary as by giving preference to the one first re- corded.' Otherwise, the second one of such conveyances, both recorded after their time, if taken without notice and for valuable consideration, must prevail.^ There is one de- cision, where in sucli case preference was given to the first deed, though kist recorded, and the reason is put on the ground that the grantee in the junior deed had no equity because he happened to have bought during the time al- lowed for the record of the prior deed, the court saying that had he bought after that time, without notice, his equities would have been entirely different.' Such a ground is, however, entirely untenable, since the-subsequent purchaser must in all cases have no knowledge whatever of the prior conveyance; and in later cases by the same court, the preference given to the deed oldest in date where both are recorded after the time, is placed upon a construction of the terms of the statute.* The allowance of so long a time for recording as one year is unreasonable, since thereby the statute practically suspends the protection of the registry laws for that period, and without sufficient necessity for so doing, subjects all purchasers, however clear the record ' Adair & Davis, 71 Ga. 769, citing 29 Ga. 405; 25 Id. 276; 20 Id. 210. "The prior recording of the subsequent conveyance gives it precedence over a prior one subsequently recorded, although neither of tbem be recorded within the tivie days." Fleschner v. Sumpter, 12 Or. 161 ; s. 0. 6 Pac. Eepr. 506; or the fifteea days. Den v. Richman, 1 Green, 43. 2 Sanborn V.Adair, 29 >J". J. Eq. 338; Northupv. Bierner, 8 Ohio, 392; anie, §§13-15, and cases there cited; and see also, McNamee v. Huckabee, 20 S. Car. 190; Leger v. Doyle, 11 Kich. 118; Lightner v. Moouey, 10 Watts, 407; Souder v. Morrow, 30 Pa. St. 83; McGuire v. Barker, 61 Ga. 339. If the subsequent conveyance is executed before the record of the prior deed, and is then recorded within its six months, it will relate back to its date and take precedence even though the older deed was first recorded, if it was not recorded within its time. Leger v. Doyle, supra. 3 Martin v. Williams, 27 Ga. 406. * Eoe V. Maund, 48, Ga. 461, citing Code of Ga., §2663; Cobb's Dig., 175; Webb v. Wilcher, 33 Ga. 565; 29 Ga. 440; 25 Ga. 648; and see Hockenhullv. Inman (Ga.),4 S. E. Kepr. 323. The statute says that If a mortgage is not recorded in time, it is subordinate to any later mortgage duly recorded, that is, recorded 213 Ch. 6. J TIME, PLACE, ETC., OF RECOKD. [§134. may be when they buy, to the danger of being supplanted by a prior unknown conveyance. In Ohio the statute provides that mortgages shall take effect from the time they are delivered for record, but that other deeds and instruments of writing for the conveyance or incumbrance of lands may be recorded within six months, with right of priority. A deed absolute on its face, and re- corded as such, but which was really a mortgage, because taken as a security, and with a parol condition of defeas- ance, was held entitled to record at any time within six months, with right of the record relating back to the date of the instrument. Upon its face and by its terms it was a deed, and the fact tbat equity subsequently adjudged it a mortgage could not alter the law of its record.^ §134. Place of Record. The statutes almost without exception require convey- ances affecting real estate to be recorded in the county where the property is situate. There are many exceptions to the rule as applied to instruments relating to personal property, especially chattel mortgages, which will be hereaf- ter considered. The record of a deed in a county other than within its time; hence, where both are recorded after their time, the oldest is preferred irrespective of the dates of record. Marcus v. Pic- quet. 61 Ga. 260. The statutes as to deeds, and as to mortgages, are separate, and the above rule will not be applied as between a deed and a mortgage. A purchaser by deed takes title as against a prior unrecorded mortgage, though his deed was neither first recorded, nor recorded within its twelve months. McGuire v. Barker, 61 Ga. 339; Code, §1957. As against the lien of a judgment a mortgage must be recorded be- fore the rendition of the judgment. Richards v. Myers, 63 Ga. 762; Janes v. Penny, 76 Ga. 796; but not so in case of a deed. Davie v. McDonald, 47 Ga. 195. 1 Kempner V. Campbell, 44 O. St. 210; s. C. 6 N. B. Eepi-. 566. The time for recording a deed executed by several grantors at different times, held to run from the date of execution by the last grantor. Kurts V. Holllngshead, 4 Cranch C. Ct. 180. Though the statutes re- quire that a mortgage be "forthwith" recorded, this does not change the rule that the record is notice from the time it is made. Wilson v. Leslie, 20 Ohio, 161. 214 Ch. 6.] TIME, PLACE, ETC., OF RECORD. [§^34. that wherein the land lies does not impart constructive no- tice.^ Where the county lines have not been definitely de- termined and established, the grantee must decide at his peril as to the county in which to record his deed.^ When, after a conveyance is recorded, a new county is mapped out which embraces the land, a re-record of the deed in the new county is not necessary;^ but if the deed is not re- corded until after the establishment of such new county, it must be recorded there, although it may have been ex- ecuted before the new county was made.* Where an orig- inal survey of land lies across a county line, it is sometimes by statute sufficient to record the deed in either county. If the conveyance embraces different tracts lying in differ- ent counties, it must be recorded in each county where any tract is situate.^ In such case, however, the deed is, as to evidence, a recorded instrument when properly recorded in any one of the counties; and a certified copy of it, upon accounting for the non-pioduction of the original, where that is required, is admissible in evidence in a suit in the other counties affectios the title to the tracts in such other counties where the deed has not been recorded.^ > Hawley v. Bullock, 29 Tex. 216; King v. Portis, 77 N. C. 2.5; Har- per V. Tapley. 3o Miss. 506; Perria v. Eeed, 35 Vt. 2; St. John v. Con- ger, 40 111.535; Harrison v. Strother, 1 Bay. 332; Kerns v. Svvope, 2 Watts, 15; Lewis v. Baird, 3 MoLean, 56. 2 Jones V. Powers, 65 Tex. 207; Adams v. Harden, 60 Tex. 223. 2 Stebbinsv. Duacan, 108 U.S. 32; Miltou v. Turner, 38 Tex. 31; post, §187. * Astor V. Wells, 4 Wheat. 466; Garrison v. Hayden, 1 J. J. Marsh. 222; s. c. 19 Am. Dec. 70. ' Hundley v. Mount, 8 Sra. & M. 387; Stevens v. Brown, 3 Vt. 420; S. C. 23 Am. Dec. 215; Horsley v. Garth, 2 Gratt. 471 ; s. c. 44 Am. Dec. 393; Perrin v. Reed, 35 .Vt. 2; Delancey v. McKeeu, Wash. C. Ct. 525; Van Meter v. Knight, 32 Minn. 205; s. C. 20 N. W. Kepr. 142. ^ Hancock v. Tram Lumber Co., 65 Tex. 225; Wilt v. Cutler, 38 Michi. 189; Delancey v. MoKeen, supra; Jaolison v. Kice, 3 Wend. 180; Scott V. Leather, 3 Yeates, 184. The record of a deed in one state does not make it admissible in evi- dence in another state as a recorded instrument; Papot v. S. W. Ey. Co., 74 Ga. 29B; nor will the record charge parties in another state with con- structive notice. Crosby v. Huston, 1 Tex. 203. See top of p. 632. 215 Ch. 6. J TIME, PLACE, ETC., OF RECORD. [§135, §135. Place of Record— Filing- in General Land Offlce.^ The statutes provide, in some inslauces, for the filing, noting or recording of instruments for some specific pur- pose other than that contemplated by the general law of registration. In such cases the record so made will serve only the specific purpose, and will not impart constructive notice to subsequent purchasers so as to obviate the neces- sity of registry under the general law.^ Thus a statute re- lating to assignments for the benefit of creditors required that the deed of assignment should be recorded in the of- fice of the county clerk, but where the deed embraced real estate, such record was beld not to exempt it from the oper- ation of the registry law requiring its record in the ofiiee of the register of deeds. ^ The want of registry has been held not to be supplied even by the recitals in a judgment of the probate court by virtue of which the conveyance was ex- ecuted. ^ The filing of instruments, however, in public of- fices under provision of law, in some cases operates as con- structive notice to subsequent purchasers by virtue of the instrument so filed constituting a part of the title of the land to which it relates. Where, for instance, a purchaser cannot make out the title except by reference to the files and books of the general land ofiiee, he is chargeable with Where the land lies in an unorganized county, the registrj' must be made in the county prescribed by the statute for such record. Alford V. .rones. 71 Tex. 519; Land Co. v. Chisholm, 71 Tex. 52:5. Usually the statute prescribes, as the place o'f record, the county to hioh the unorganized county is attached for judicial purposes. Smith v. Ander- son, 33 Minn. 2.-); s. o. 21 N. W. Repr. 841; Rev. Stats. 111., ch. 30. §28. 1 The entry of lands sold by the United States upon the land book kept in the county clerk's office, does not charge a subsequent purchaser with constructive notice of the facts appearing thereon, as such entry is required only lor the purpose of taxation. Berser v. Rankin, 77 111. 2S9. Where, however, the subsequent purchaser has knowledge of such in- cidental record, or of a defective record, as by having read it, or other- wise, it may charge notice or put on inquiry, as any other fact. See Stokes V. Reilly, 121 111. 166; s. C. 11 N. E. 'Repr. S77 ; 9 West. Repr. 522; Walter v. Hartwig, 106 Ind. 123; s. c. 3 West. Repr. 881. 2 Wagner v. Hodge, 34 Hun. (41 N. Y. Sup. Ct.), 524. 3 Piaster v. Piester, 22 S. Car. 139; and see Fowler v. Evans, 26 Tex. 636. 216 Ch. 6. J TIME, PLACE, ETC., OF RECORD. [§136. notice of all instruments duly filed or matters properly en- tered of record there. ^ It has been held, however, where the statute had provided that a transfer of land made be- fore the issuance of patent might be recorded in the county where the land lay, as well as filed in the general land of- fice in order that patent issue in the name of the assignee, that the filing of such transfer iu the land ofiice alone did not charge with constructive notice a subsequent purchaser under execution issued against the original enterer, or pur- chaser from the state, who was the grantor in the transfer. ^ As between two jjui chasers of the same land from the gov- ernment, the latter is chargeable with notice of any facts appearing by the records of the land office at which he pur- chases, going to show the title or claim of the first pur- chaser.^ §136. Books of Record. The statutes of perhaps all the states prescribe the use of different books for recording different classes of instru- ments.* The policy of the registry law is that persons who are to be affected with constructive notice should be able 1 Dodge V. Littler (Tex.), 11 S. W. Repr. 331; Jtartin v. Nash, 31 Miss. 32-i, citing 2 Fonb. Eq., bli. 3, oh. 3, §1, u. See Kerr v. Watts, 6 Wheat. 5.=)0. ^ Lewis V. Johnson, 68 Tex. 44'<: s. c. 4 S. W. Eepr. 644. This case falls on debatable gronnd. and is distinguishable from the first two cases iu the note above, especially the latter, only ia that the Texas reg- istry statutes certainly authorized the record of such transfer in the county where tlie land lay; a point not so clear as to the transfer in the other cases. Yet as the county records, in the Tex. case, showed noth- ing whatever in relation to the title of the land, the subsequent pur- chaser must, of necessity, have looked to the general land office to as- certain that title was in the judgment debtor, as in the Mississippi ca.se. 2 Sehnee v. Schnec, 23 Wis. 377; Moyer v. McCullough, 1 Ind. 211. * Besides separate books for absolute conveyances, and for mortgages and trust deeds, some of the statutes require thein for personal property, " as In Ga., S. C., Cal.. Jto. and Wash. Ter. ; for releases of mortgages and liens, as in Va. and W. Va. ; for marriage contracts, as in Mo., Cal. and Wash. Ter.; for maps and plans, as in Ohio, Mich, and Kan.; for me- chanics' liens, as in Neb., Cal., Wash., Utah and N. M.; and in a few states, as 111., Minn., Cal. and Idaho, every class of instruments must be recorded in separate books. 217 Ch. 6. J TIME, PLACE, ETC., OF RECOKD. [§136- to obtaia actual knowledge by searching the records, and such a search would not likely prove successful if the in- strument were recorded in a wrong book.^ A record will not operate as constructive notice, unless made in the proper book as required by statute.^ The decisions on this sub- ject, however, like the statutes themselves, are not uniform. In some cases a liberal construction has been applied^ and established usage has been recosfnized in the matter. Thus where the statute required mortgages of real and of per- sonal property to be recorded in separate books, it was held that a mortgage embracing both species of property in the same instrument need be recorded only in the book of real estate mortgages, it appearing that this was the usual cus- tom; and a double record was said to be unreasonable.* Under a statute requiring mechanics' liens to be recorded in a book separate from absolute conveyances, such lien is well recorded in the book for mortgages.^ In those states where the statute and decisions attach the full effect of no- tice to the filing alone, it would seem to be immaterial how, or in what book, if any, the clerk records the instrument.^ Where the oiEcer designedly copied a deed in an old, unused, 1 1 Pom. Eq. Jur., §653. 2 Pringle v. Dunn, 37 Wis. 449; s. c. 19 Am. Rep. 772; Van Thorni- ley V. Peters, 2(i O. St. 471 ; Colomer v. Morgan, 13 La. Ann. 202; Shaw V. Wilshire, 65 Me. 485; James v. Morey, 2 Cow. 246; Deane v. Hnt- chinsoQ, 40]Sr. J. Eq. 83; Parsons v. Lent, 34 X. J. Eq., 67; Purdy v. Huntington, 42 N. Y. 343; s. c. 1 Am. St. Rep. 532. ^ Duplicate copies of deeds regularly deposited In the recorder's office, not bound into volumes, but classified and indorsed, held to con- stitute a book of record within the meaning of the statute. Mumford v. Wardwell, 6 Wall. 423. The record is not defective because apart of it may be printed instead of written with Ink. Maxwell v. Hartman, 50 Wis. 660. * Anthony v. Butler, 13 Pet. 423; and see also, Reals v. Hale, 4 How. 37. The record notice of a deed duly filed cannot be lost by its being transcribed in a wrong book. Cluder v. Thomas, 89 Pa. St. 343. The statute requiring separate books held only directory. Robertson v. Brown, 5 La. Ann. l.o4; Gillespie v. Oammack, 3 La. Ann. 248. * Quinn v. Logan, 67 Tex. 600. « Cluder v. Thomas, 89 Pa. St. 343 ; Swenson v. Bank, 9 Lea, 723. See ante, §§1.5-18; Lewis v. Klotz, 39 La. Ann. 259; .1 South. Repr. 639. 218 Ch. 6.j TIME, PLACE, ETC., OF RECORD. I§137. record book and neglected to index it, the record was held not to impart notice. ^ Under an early Iowa statute the record of a quit-claim deed in a book labeled "mortgages," was held sufficient, it not appearing whether the book was used for mortgages only, or for both deeds and mortgages.^ §137. Recording Deed whleli is in Reality a Mortgage. Where a deed absolute on its face is in reality a mort- gage, the defeasance being in parol, or in a separate instru- ment not recorded, the question has frequently arisen as to the effect of recording the conveyance in the registry of deeds. On this point there is a decided conflict in the ad- judications of the several states; but the weight of reason, and perhaps also of decided cases, is in favor of the view that such record is valid and sufficient to protect the rights of the mortgagee or grantee in the conveyance.^ It is said that a party is not bound to search the record of deeds to be protected against a mortgage.* To this it may be answered that a proper protection of the interests of one dealing with property demands that "he should guard against a prior ab- solute conveyance of it even more than against an incum- brance on it; and so far as want of notice is concerned, such an one is not in a position to complain that the record of the deed has sjiven him notice of too o-reat an adverse interest.^ A deed absolute upon its face is in law a deed, whatever it may be in equity; its terms control as to the ^ Sawyer v. Adams, 8 Vt. 172; N. Y. Co. v. White, 17 N. Y. 469. 2 Switzer V. Knapps, 10 Iowa, 72; s. c. 74 Am. Dec. 375. A trust deed held properly recorded in the book ol mortgages. Swenson v. Bank, 9 Lea, 713. 2 Mobile Bank V. Tishamingo, 62 Miss. 2.50; Haseltine v. Espey, 13 Oregon, 301; s. C. lOPac. Eepr. 423; Young v. Thompson, 2 Kan. 83; Kemper v. Campbell, 44 O. St. 210; Ing v. Brown, 3 Md. Ch. 521 : Harri- son v. Phillips, 12 Mass. 456; Seymour v. Darrow, 31 Vt. 122; DeWoll V. Strader, 26 111. 231; Smith v. Smith, 13 O.St. ,532; Gibson v. Seymour, 4 Vt. 518; demons v. Elder, 9 Iowa, 273 ; Gibson v. Hough, 60 Ga. 588, 593; Benton v. Xicholl, 24 Minn. 221 ; Grellet v. Heilshorn, 4 Nev. 526; Knowltou V. Walker, 13 Wis. 264; Ruggles v. W^illiams, 1 Head. 141. * Dey V. Dunham, 2 Johns. Ch., 182; Luch's Appeal, 41 Pa. St. 519. " Eugglea V. Williams, 1 Head. 141 ; Young v. Thompson, 2 Kan. S3. 219 Ch. 6.j TIME, PLACE, ETC., OF KECOKD. [§138. place where the recorder shall assign it for record, and as to the effect of the record ;i and although equity may con- vert an absolute instrument into a mortgage, it will not do so to the prejudice of the grantee, and hold the record of the instrument ineffectual upon technical grounds, or for the reason that it may operate to some extent as a fraud upon general creditors of one or both the parties.^ §138. Record of Mortgage as a Deed— Continued. The decisions holding that the record, as a deed, of the absolute conveyance is not valid, and not constructive no- tice of a mortgage, rest' upon two distinct grounds: one be- ing afforded by the terms of the particular statutes under construction, and the other being that such decision is de- manded by a proper interpretation of the registry laws in their general intent and purpose as designed to afford a pro- tection against fraud. The cases in New York, Pennsylva- nia and Louisiana-' may be said to rest principally on the former ground; while those in Connecticut and North Car- olina are placed entirely upon the hitter. The New York act under construction was a peculiar statute concerning mortgages, by which it was declared that every conveyance which appeared by any other instrument to have been in- tended as a security in the nature of a mortgage, though absolute in its terms, should be considered a morto;ao;e and liable to he registered as other mortgages.^ In the Pennsyl- 1 Haseltine v. Espey, 13 Or. 301; Nicklin v. Betts, 11 Or. 406; s. c. 50 Am. Kep. 472. 2 Humpbries v. Bartee. 10 Sm. & Mar. 2S2 ; Hurd v. Brown, 37 Mich. 484; Kiihn v. Groves, fi lown. 30.t. 3 Coi-deviollo v. Dawson, 26 La. Ann. 534; Fisher v. Tunnard, 25 Id. J 79; MeCan v. Bradley, 38 La. Ann. 482. In the city and parish of New Orleans, the otfices of recorder of deeds and recorder of mortgages arCf It seems, distinct and separate offices. Succession of Vilabolos, 3 La. Ann. 477; Lee v. Darramon, 3 Rota. 160. And see, as to New York, Wagner v. Hodge, 34 Hiui. 524. < Biov,-n V. Dean, 3 Wend. 213: White v. Jloore, 1 Pai^e. 551; Grim- stone v. Carter, 3 Paige, 421; s. c. 24 Am. Dec. 230; Warner v. Wins- low. 1 Sand. Ch. 430; Purdy v. Huntington, 42 N. Y. 343; s. C. 1 Am. St. Kep. 532; James v. Morey, 2 Cow. 246; s. C. 14 Am. Dec. 476. 220 Ch. 6. J TIME, PLACE, ETC., OF RECORD. [§139. vania case of Friedley v. Hamilton' there is a strong dis- senting opinion by Judge Tod, and while the decision of the majority of the court is followed in subsequent cases, yet the cases in both of these states are all elsewhere de- clared to turn upon the peculiar phraseology of their stat- utes. ^ §139. Contiiuied. In Connecticut the decision of the matter is put squarely on the ground that to permit the record of a deed absolute to give notice of a mortgage, or to protect the rights of the grantee as a mortgagee, would be contrary to the spirit and purpose of the registry laws; and it is said that such a course would not only destroy all the benefits of the record- ing system as respects mortgages, but would enable the parties, by a change in the form of the mortgage, to con- vert the system itself into an instrument of fraud. ^ The object of registry, it is said in the North Carolina cases, is to give notice of the existence and extent of the incum- brances, and the true character of the deed must appear in the record to give it protection." Such an instrument, it is declared, works a fraud upon a double set of creditors; cred- In Dey v. Dunh.im, 2 Johns. Ch. 182, it is said : "This is the language of the statute concerning the registry of mortgages; and recording the deed, as a deed, was of no avail in this case." Yet it is to be noted that this case was afterwards reversed on this point in Dunham v. Dey, 15 Johns. 5.55. ^ 17 Serg. & R, 70. For other oases in that state, see Calder v. Chap- man, 52 Pa. St. 359; Edwards v. Trumbull, 50 Pa. St. ,509: Carpinan v. Baccastaw, 84 Pa. St. 363; Hendrickson's Appeal, 24 Id. 363; McLana- han V. Reside, 9 Watts, 508; s. 0. 36 Am. Deo. 136; Luoh's Appeal, 44 Pa. St. 519; Jaques v. Weeks, 7 Watts, 261. 2 Young v. Thompson, 2 Kan. 83. "We decline to adopt the views of the courts of that state (Pennsylvania), not only as opposed to the over- whelming weight of authority, but also because we think the rule as an- nounced in that state clearly wrong." Cooper, J., in Mobile Bank v. Tishamingo, 62 Miss. 250. ^ Ives V. Stone, 51 Conn. 446; citing North v. Belden, 13 Conn. 376; Hart V. Chalker, 14 Id. 77; Stearns v. Porter, 46 Id. 313. * Gregory v. Perkins, 4 Dev. 50; and see also, Holcombe v. Ray, 1 Ired. L. 340; Dakes v. Jones, 6 Jones. 14; Gully v. May, 84 IST. C. 434, 440. 221 Ch. 6. J TIME, PLACE, ETC., OF RECORD. [§139. itors of the grantee, who is thereby falsely held out to be the real and absolute owner; and creditors of the grantor, whose ownership and interest is thereby covered up and hidden.^ It is appropriate for the legislature to enact such provi- sions as may be deemed necessary to effectually guard the registry system against being made in any way auxiliary to fraud; and this has been done in several instances by a proviso that the record of the deed absolute shall be of no effect unless the defeasance is also recorded;^ and even by requiring the condition of defeasance to be embodied in the conveyance itself.^ However laudable the desire of the courts to prevent fraud, it cannot justify them in annulling the ordinary effect of the record as imparting notice of whatever appears on it; and in making its effect dependent on whether or not, as may be developed by subsequent proof, there is fraud, actual or constructive, in the instru- ment recorded. If fraud is peiniitted to vitiate not only the deed, but also the record thereof as imparting notice, it will be difficult to consistently maintain the rule that a sub- sequent innocent purchaser from a fraudulent grantee is to be protected by the operation of the recording acts. The character of absolute instruments, where they are intended or held to operate as a security, is often ascertained and de- termined after more or less litigation ; and to apply the con- sequences of want of notice to a failure to register them as mortgages, would, as a rule, shock the conscience of any court.* 1 Byrd v. Wilkinson, 4 Leigh, 266; Stearns v. Porter, 46 Conn. 313. 2 Tliis is the case in New Yorlj. Bank's Kev. Stats., jst. 2. ch. 2, §3; Maryland, Eev. Code of 1878, art. 66, §42; Delaware, Rev. Code, ch. 83, §18; Dakota, Civ. Code, §1740; also in Nehraska, New Jersey and California. 8 This is the case in New Hampshire. Gen. Laws of 1878, ch. 136, §2. * Kemper v. Campbell, 44 O. St. 210; s. C. 3 West. Bepr. 620. In this case it was held that a deed absolute on its face, but in reality intended as only a security, was properly recorded as a deed ; and in addition, that where recorded at any time within the six months allowed for the recording of deeds, it related back to the date of the instrument, al- 222 Ch. 6. J TIME, PLACE, ETC., OF EECOKD. [§140. 140. Filing- for Record. The effect of notice as given by some of the statutes to the mere act of tiling or depositingan instrumentfor record, has been already considered. ^ The deposit of a conveyance with the recorder, with instructions not to place it on record until further directions, is not a filing for record; and when the in- strument is recorded, its registry will date from the time of suchlastinstructions,andnotfromthetime itwas delivered to theofEcer.^ If recordedbeforesuohinstructions arereceived, the record is not notice.^ The certificate or indorsement of the recorder is usually held suflScient and conclusive proof of the fact and date of filing, but not that the instrument was actually transcribed on the records.* If the recorder though no such privilege is allowed in that state to mortgages proper. Said Minshall, J.: "Transactions which in equity are construed as mortgages, arise under a great variety of forms, to many of which, if not all, it would be difficult to apply the statutes applicable to the regis- tration of mortgages proper." Under the New York Acts of 1883, ch. 279, a bill of sale duly filed has been held good as a mortgage, although the agreement that it should be a mortgage was in parol. ^ Preston v. Southvvick, 42 Hun. 291, Landon, J., dissenting. In Georgia a deed absolute, although intended to secure a debt, and though there be a bond to re-convey, is not considered a mortgage, but passes the legal title; hence could be properly recorded only as a deed. Keith v. Catchings, 64 Ga. 773; Thaxton v. Roberts, 66 Ga. 704. The Maryland statute requires an atfidavit of bona fides to the record of mortgages, and the court held this to apply only to purely technical mortgages, not to deeds of trust nor to equitable mortgages. "A deed absolute on its face," said Eccleston, J., "if intended to be a mortgage, will be so declared by a court of equity, and I presume it will not be said that if such a deed is without the oath, it will be void imder the act." Charles v. Claggett, 3 Md. 82; Carson v. Phelps, 40 Md. 73. 1 See ante, §§16-18. 2 Town V. Griffith, 17 N. H. 165; Brigham v. Brown, 44 Mich. 59; Worcester Bank v. Cheeney, 87 111. 602. 8 Haworth v. Taylor, 108 111. 275. •" Where a deed was found in the register's office indorsed, "Regis- tered April 28th, 1795," this was held prima facie evidence that it was filed for record at that date, although the clerk's name was not ap- pended to such indorsement. Parker v. Phillips, 9 Cow. 94. The omission of the clerk to enter the fact of the record on the instrument will not invalidate or affect its registry. Grice v. Haskins, 77 Ga. 700. An instrument is notice from the time of its deposit, though the recorder neglects to mark it "filed." Houghton v. Burnham, 22 Wis. 301. 223 Ch. 6.] TIJIE, PLACE, ETC., OF RECORD. [§141. has failed to note the time at which the instrument was re- ceived, or the entry in the index bools shows upon its face that it was not made at the time of such reception for rec- ord, parol evidence is admissible to show the true date.^ §14:1. Filing' and Withdrawal. ■ Where a deed has been filed for record, but is subse- quently withdrawn from the office before it is'recorded, the effect of the filing, and the priority it might have given, is destroyed.^ Where a par'y filed his deed and afterwards withdrew it to be canceled and substituted by another deed of the same property, and then filed the new deed on the afternoon of the next day, it was held to have no priority over another deed of the property to another person filed in the forenoon just preceding.^ It is immaterial for what purpose the deed is withdrawn.* '•The record is the iustrumeat of notice to subsequent purchasers. of the state of the title, and to jiermit it in any manner to be affected hy parol or extraneous evidence would not ouly destroy its value for that purpose, but would convert it into an instrument for deception." Hatch V. Haskins, 17 Me. 391. For further cases supporting the text, see Ames V. Phelps, 18 Pick. 314; Worce-ster Bank v. Cheeney, 87 111. 602; Fuller v. Cunningham, 10.5 M.ass, 442; N. Y. Life lus. Co. v. While, 17 N. Y. 4G9; Bullock v. Wallingford, 55 N. H. 619; Duhose v. Young, 10 Ala. 3(55; Tborp v. Merrill, 21 Minn. 836; Wing v. Hall, 47 Vt. 1.S2; Head V. Goodwin, 37 Me. 181. 1 Metts V. Bright, 4 Dev. & Bat. 173; s. C. 32 Am. Pec. 683; Hay v. Hill, 24 Wis. 2So; Boyce v. StantOQ, 15 Lea (S3 Tenn.), 3-16; and even to show when a deed was recorded. Horsley v. Garth. 2 Gratt.'471; s. c. 44 Am. Dec. 393; Gorham v. Hummers, 25 Minn. 81. 2 Johnson v. Borden, 40 Vt. 567; s. C. 94 Am. Dec. 436; Kiser v. Henston, 38 111. 252; Hickman v. Perrin, 6 Cold. 135. •2 Clamorgfin v. Lane, 9 Mo. 446. In Ohio it has been held that where the mortgagee withdraws a chattel mortgage from the record- er's office for a temporary purpose, the mortgage does not lose its lien thereby, nor vrill it be prejudiced by a levy made during such withdrawal of the same. Wilson v. Leslie, 20 Ohio, 161. * Worcester Bank v. Cheeney, 87 111. 602. But if such mortgage be withdrawn from the files wrongfully and without the mortgagee's authority, his lien is not affected and remains good against an attach- ment, especiallv where the attaching creditor had actual knowledge of the lieu. Swift v. Hall, 23 Wis. 532. So where a mortgage was withdrawn and afterwards returned, but the clerk failed to make an entry, the mortgagee's lieu was held not prejudiced by a levy made after such return, though the creditor did not know of it. Woodruff v. Phillips, 10 Mich. 500. 224 •Ch. 6. J TIME, PLACE, ETC., OF KECOKD. [§142. §142. Indexing-. The statutes usually provide that recorders shall keep proper alphabetical indexes of all instruments filed with them for record; the requirement sometimes including a general index besides those to be kept with each separate book or class of books. Where the statute did not require a general index, but the recorder kept one in accordance with custom, it was held that his failure to enter a convey- ance in such general index was not a matter of which a sub- sequent purchaser could avail himself to avoid the effect of record notice of the instrument. ^ The index is for the con- venience of persons searching the records, ^ but is not an es- sential part of the record, and while a failure to properly index an instrument may lay the officer liable to damages for such neglect,^ it does not vitiate the notice imparted by the record.* The preponderance of decision and of reason is in favor of this view; but a contrary rule, based princi- pally on the terms of the statute, prevails in several states, "wherein it is held that the record is not complete so as to 1 Schelly. Stein, 76 Pa. St. 39S; Nichol v. Henry, 89 Ind. 54. The volume index may be kept separate, or bound in with the record book of -vvhioh it is an index. Benlon v. Nioholl, 24 Minn. 221. ^ Chatham v. Bradford, 50 Ga. 327. A general index only, held suf- ficient. Oconto V. Jerrard, 46 Wis. 317. 2 Bishop V. Schneider,. 46 Mo. 472; s. C. 2 Am. Eep. 533; Musgrove V. Bosner, 5 Or. 313. * Barrett v. Prentiss, 57 Vt. 297; Board v. Babcock, 5 Or. 472; Mu- tual Life Ins. Co. v. Dake, 1 Abb. N. C. 381 ; Bishop v. Schneider, su- pra; Green V. Carrington, 16 O. St. 548; s. C. 91 Am. Dec. 103; Chat- ham v. Bradford, supra; Gilchrist v. Gough, 63 Ind. 576; Lincoln v. Hass, 10 Neb. 581; Wade on Notice, §§164-169; Stockwell v. McHenry, 107 Pa. St. 237; s. C. 52 Am. Kep. 475; Swan v. Vogel, 31 La. Ann. 88; Semon v. Terhune, 40 N. J. Eq. 304, 367; Ely v. Wilcox, 20 Wis. 523; s. c. 91 Am. Dec. 436; Bedford v. Lupper, 30 Hun. 174; Devlin on Deeds, §§692-696. "Every consideration of the subject and construction of the stat- ute, founded on the convenience or inconvenience, real or supposed, of searching the records in the manner in which they are kept or indexed, is wholly impertinent, and, therefore, deceptive and liable to lead to error." Dixon, C. J., in Fallas v. Pierce, 30 Wis. 442. Arguments ab inconvenienti are out of place where the language of the law makes it plain. Inconveniences will result whichever way Ihe question is decided. Mutual Life Ins. Co. v. Dake, supra. (15— Keg. of Title.) 225 Ch. 6. J TIME, PLACE, ETC., OF RECORD. [§143. impart constructive notice, until all the requirements of the law are fulfilled. '^ §143. Special Statvitory Index. Some of the statutes provide for an index so full in its details as to give, in addition to names and dates, a sub- stantial description of the nature of the instrument and of the property conveyed by it.^ A deed by mistake gave a wrong description of the property, but contained recitals sufficient to put a party on inquiry as to the mistake. The index, giving the erroneous description briefly, did not, of course, contain thes^ recitals, and it was held that a subse- quent purchaser was not charged with notice by the recitals, because not bound to go be3'-ond the index. ^ But where the record of the deed discloses a defect in the instrument not contradicted by or opposed to the index entries, as want of two witnesses where these are essential, it cannot be maintained that the index alone sufficiently imparts proper constructive notice, and such record is ineffectual.* A de- scription of the property in the appropriate column of the index as "certain lots of land," has been held sufficient.^ ' Barnej^ v. McCarty, 15 Iowa, 510; S. C. S3 Am. Deo. 427 ; Barney v. Little, Id. 527; Sawyer v. Adams, 8 Vt. 172; Guinn v. Turner, IS Iowa, 1; Speer V. Evans, 47 Pa. St. 141. In this last case the decision of the- point was not necessary in the case. See also, Gillig v. Maas, 2S N. Y. 191. A purchaser is not bound to look beyond the index for a recorded incumbrance. So held as to a mortgage by Furman indexed as Free- man. Howe V. Thayer, 49 Iowa, 154. - Eev. Code of Iowa (1S73), §1943; Kev. Stats, of Wisconsin (1S7S), §§759, 760; Oconto v. Jerrard, 46 Wis. 317. 3 Scales V. Wilsey, 11 Iowa, 261; and see also, Howe v. Thayer, sui^ro; Breed V. Conley, 14 Iowa, 269; s. C. 81 Am. Deo. 485. * Pringle v. Dunn. 37 Wis. 449; s. C. 19 Am. Rep. 772; Shepherd v. Burkhalter, 13 Ga. 443; Brown v. Kirkman, 1 O. St. 116: Oconto v. Jer- rard, 46 Wis. 317. And so, where the certificate of acknowledgment is defective, indexing does not suffice to charge notice. Greenwood v. Jenswald, 69 Iowa, 53. See also, Peters v. Ham. 02 Iowa, 650. Where the Index is defective, there is no constructive notice until the deed is actually transcribed; but the presumption is that both were done at ins same time. Oconto v. Jerrard, 46 Wis. 317. ^ Bostwick v. Powers, 12 Iowa, 456. 226 Ch. 6. J TIME, PLACE, ETC., OF RECORD. [§143. And so, even, where the words "see record" were written in the column where the description of the land should have been placed. i Whether this statutory indexing is absolutely essential to the record, depends much on the terms of the statutes. Usually its entire omission is fatal. ^ ' White V. Hampton, 13 Iowa, 259. Where the deed was duly re- corded but the index gave a wrong township, range and sectioa num- ber from the Irue description, the additidn of the words, "For descrip- tion see record." did not cure the error so as to enable the record to im- part constructive notice. Breed v. Conley, 14 Iowa, 269; s. C. 81 Am. Dec. 4S5. Where the property was correctly described in the index, but through mistake in copying, there was an erroneous description of it in the rec- ord of the deed, the mistake was held immaterial as the index imparted the proper notice. Shove v. Larsen, 22 Wis. 142, citing Flowers v. Wilkes, 1 Swan, 408; Merrick v. Wallace, 19 111. 486. The recorder omitted the name of the mortgagee in transcribing the instrument, but it appeared in the entry book, and the record was held to impart constructive notice. Sinclair v. Slawson, 44 Mich. 123; S. C. 38 Am. Rep. 235. A mortgage by husband and wife, of lands of the wife, was indexed under the name of the husband alone, and held suffi- cient. Jones v. Berkshire, 15 Iowa. 2-18. But where the deed conveyed two tracts, and only one was mentioned in the index, the record was no- tice only of that one. Noyes v. Horr, 13 Iowa, 570. A mortgagee from one whose deed recites a pi-ior mortgage, is charged with notice of such prior mortgage, though it benot indexed. .^Eina Life Ins. Co. v. Bishop, 69 Iowa, 645; s. c. 29 jST. W. Repr. 761. In Texas a recorded abstract of judgment is not notice until indexed .IS required for such abstracts, although as to instruments generally the rule prevails in that state that they operate as notice from their filing for record. Rev. Stats., arts. 3157-3159; Belbaze v. Ratto, 69 Tex. 636; Miller v. Koertge, 70 Tex. 162; s. C. 7 S. W. Repr. 691. - Hendley v. Howe, 22 Me. 560; Holmes v. Sprowl, 31 Me. 73; Mil- ler V. Koertge, 70 Tex. 162. But see Smith v. Waggoner 50 Wis. 155 ; 9 Am. Law'Rec. 358. An omission to enter the description of the Land under the appropri- ate head in the index, held to be cured by transcribing the deed in full in the records. St. Croix Land Co. v. Ritchie (Wis.), 41 N. W. Repr. 345; Oconto v. Jerrard, 46 Wis. 317; except v/here there are no entries at all in the index. Lombard v. Culberson, 59 Wis. .537; s. O. 18 N. W. Repr. 399. In the absence of proof, it will be presumed that the tran- scribing and indexing were done at the same time. Lane v. Duchac, (Wis.), 41 N. W. Repr. 962. See further as to indexing, PaigC' v. Lind- sey, 69 Iowa, 593; s. C. 29 N. W. Repr. 615. Where a chattel mortgage was filed, but was not indexed until the next day, an intervening at- tachment lien took precedence. Hibbard v. Zenor (Iowa), 39 N. W. Repr. 714; Code oif Iowa, §1925. 227 Ch. 6. J TIx^IE, PLACE, ETC., OF RECORD. [§144. §144. Delivery. As a rule, delivery of a deed or other instrument is es- sential to its valid registration, ^ for the reason that until delivery the deed is incomplete, and its record cannot im- part constructive notice of a change of ownership that has not occurred." The record of a deed without any knowl- edge of it on the part of the grantee is not equivalent to delivery,^ unless it be shown that on being informed of it he assented to it, in which case the record will be notice from the time of such assent,* or from the time of the de- livery of the instrument to the grantee, if delivered subse- quent to its record.^ In some cases of mortgages given to secure a pre-existing debt, the assent of the mortgagee has been presumed, and the record held, as against other cred- 1 Weber v. Christen, 121 111. 91; s. c. 2 Am. St. Kep. 68; 11 N". E. Repr. 793; Sampson v. Thornton, 3 Mete. 275; Jackson v. Phipps, 12 .Johns. 418. 2 Parker v. Hill, 8 Mete. 447; Wade on N"ot., §141; Fitzgerald v. Goff, 99 Ind. 28; Wood v. Ingraham, 3 Strobh. Eq. 105; s. C. 51. Am. Dec. 671; Woodbury v. Fisher, 20 Ind. 387; s. c. 83 Am. Deo. 325. Where the deed of a father to his son remained In the house of both for seven years, and was recorded after the father's death, held not good against creditors of the father's estate, or purchasers at the ad- ministrator's sale, withovit proof of actual delivery in the father's life- time. Lank v. Hiles, 4 Houst. (Del.), 87; and to same effect, Peterson V. Kilgore, 58 Tex. 88; Durand's Appeal, 116 Pa. St. 93; s. C. 8 Atl. Kepr. 922. A delivery to a third person, to be recorded af-ter the death of the grantor, has been held sufticient. Hinson v. Bailey, 73 Iowa, 544; S. C. 5 Am. St. Kep. 700; 35 N. W. Repr. 626; Smiley v. Smiley, 114 Ind. 258; S. C. 16 N. E. Repr. 585; but see Scott v. Scott. 95 Mo. 300; s. C. 8 S. W. Repr. 161 . 3 Day V. Griffith, 15 Iowa, 104; Weber v. Christen, s«;)m; National Bank v. Morse, 73 Iowa, 174; s. C. 5 Am. St. Rep. 670; 34 N. W. Repr. 803; Woodbury v. Fisher, siipra; Herbert v. Herbert, Breese, 354; s. 0. 12 Am. Dec. 192; Parmelee v. Simpson, 5 Wall. 81. Recording is prima facie delivery. Stevens v. Castel, 63 Mich. Ill; Tobin V. Bass, 85 Mo. 6.54; Deere v. Nelsou, 73 Iowa, 186; Standiford v. Standiford (Mo.), 10 S. W. Repr. 836; Patrick v. Howard, 47 Mich. 40; Conlan v. Grace (Minn.), 30 N". W. Repr. 880; Millaudan v. Allord, 2 La. Ann. 551. And may sufficiently indicate the intent of the grantor. Love v. Francis. 63 Mich. 181. Contra, recording is not suflicient. Mc- Graw V. McGraw, 79 Me. 257. See cases in last note to this section. * Parker v. Hill, 8 Mete. (49 Mass.), 447; Farmer's Bank v. Drury, 38 Vt. 426; and cases supra. " Jones V. Roberts, 65 Me. 273; Carnall v. Duvall, 22 Ark 136 228 Ch. 6.] TIME, PLACE, ETC., OF RECORD. [§144. itprs, to be effectual from its date.^ Possession by the grantee of an acknowledged deed is prima facie evidence of delivery ,2 and in the absence of proof, it will be pre- sumed to have been delivered at the date of its execu- tion and acknowledgment. 2 Where the date of the deed is prior to that of the acknowledgment, the presumption of delivery, in some states, still, attaches to the date of the in- strument,* while in others it is presumed to have been de- livered at the date of acknowledgment.^ If there are con- ditions precedent to be performed before the sale is to be complete and binding on the grantee, the record of the ' Merrills v. Swift, 18 Conn. 257; Ensworth v. King, 50 Mo. 447; Mil- laudan v. Allord, 2 La. 551; Hill v. Barlow. 6 Rob. 142. This law, how- ever, Is doubted. See Jones on Mort., §540; Johnson v. Farley, 45 N. H. 505; Jones on Chat. Jlort., §§104-113. Where a mortgagor delivered the mortgage to the register to be re- corded on the happening of a certain contingency which never arose, but the register recorded it, and returned it to the mortgagor, who wrote to the mortgagee that he had secured the debt by mortgage as agreed, and afterwards, on being declared a bankrupt, scheduled the mortgage to the secured creditor, a finding of a delivery of the mort- gage was sustained. Nazro v. Ware, 38 Minn. 443; s. C. 3S X. W. Kepr. '359, citing Gonlan v. Grace, 36 Minn. 281; s. G. 30 N. W. Repr. 880. 2 Scott V. Scott, 95 Mo. 300; s. C. 8 S. W. Repr. 161; Reed v. Douthit, 62 111. 348; Tuttle v. Turner, 28 Tex. 759; Kedder v. Stevens, 60 Cal. 414; Houston v. Stantou, 11 Ala. 412; Billings v. Stark, 15 Fla. 297; Boody v. Davis, 20 JST. H. 140; s. C. 51 Am. Dec. 210; Brittain v. Work, 13 Neb. 347. i4.*/-T ' 8 Purdy V. Coar, 109 N. Y. «#§> s. c. 4 Am. St. Rep. 491; Bruce v. Slemp, 82 Va. 352; Alexander v. DeKernel, 81 Ky. 345; Hardin v. Os- borne, 60 111. 93; Raines v. Walker, 77 Va. 92; McConneil v. Brown, Litt. Sel. Cas. 462; Burke v. Adams, 80 Mo. 504; s. C. 50 Am. Rep. 510; Speed V. Brooks, 7 J. J. Marsh. 119; Windom v. Schappeil (Minn.), 38 N. W. Repr. 757; Ellsworth v. Cent. Ry. Co., 34 N. J. L. 93. * Darst v. Bates, 51 111. 439; Harden v. Crate, 78 111. 573; Ward v. Dougherty, 75 Cal. 240; People v. Snyder, 41 N. Y. 402; aod see Breck- ejiridge v. Todd, 3 Mou. 52; s. c. 16 Am. Dec. S3; 1 Dev. on Deeds, §265; Hardy v. Norfolk, 80 Va. 404, citing Raines v. Walker, 77 Va. 92; Harman v. Oberdorfer, 33 Gratt. 497; Chaffe v. Halpin, 62 Miss. 1. 5 Blanchard v. Tyler, 12 Mich. 339; Clark v. Akers, 16 Kan. 166; Loomis V. Pingree, 43 Me. 299 ; Fontaine v. Boatmen's Bank, 57 Mo. 553. Where the date of the acknowledgment was long prior to the date of the deed, it was presumed that the officer certified the date correctly as required by the statute. Cover v. Manaway, 115 Pa. St. 338; s. c. 2 Am. St. Rep. 552. - 229 Ch. 6. J TIME, PLACE, ETC., OF KECOED. [§145. deed, even with the grantee's knowledge thereof, has been held ineffectual where there was a failure of the required conditions.! The recording of a deed is not equivalent to delivery, but, like possession of it, is prima facie evidence of that fact, subject to be overcome by contrary proof .^ §145. Attesting Witnesses. In a number of states attesting witnesses are essential to a deed or mortgage, even though it be acknowledged.^ Where this is the case, or where by the terms of the stat- ute witnesses are made a pre-requisite to registry, the rec- ord»of a deed without the required number of witnesses will not impart constructive notice,* even though the defect be not apparent on the face of the instrument, as where one of the two witnesses was disqualified because she was the wife of the grantor.^ The record will not be aided by the fact ' Leppoo V. Union Bank, 32 Md. 136, cited at length in 1 Dev. on Deeds, §293. 2 Peterson v. Kilgore, 58 Tex. 88; Fletcher v. Home, 75 Ga. 134; Moody V. Dryden, 72 Iowa, 461; Younge v. G-ilheau, 3 Wall. 636; Metcalfe v. Brandon, 60 Miss. 6S5; Knolls v. Barnhart, 71. N". Y. 474. Kecordlng is equivalent to delivery in the absence of fraud in the grantor. Levy v. Cox. 22 Fla. 546, 580; Hammell v. Hammell, 19 Ohio, 17; Jefferson Co. v. Heil. 81 Ky. 513. 3 Under Kev. Stats, of La., §§596-603, acts acknowledged before a Louisiana commissioner have no effect, unless the acknowledgment take place before two competent witnesses. Leibe v. Hebersmith, 39 La. Ann. 1050; s. C. 3 South. Kepr. 283. Under Comp. Laws of Utah, p. 255, §9, an acknowledged deed with- out witnesses does not convey title. Tarpey v. Desert Salt Co., 14 Pac. Kepr. 338, citing U. S. v. Crosby, 7 Cranch, 115; Townsend v. Little, 109 U. S. 512; Kingsley v. Holbrook. 45 jS". H. 320; Crane v. Eeeder, 21 Mich. 60; Winsted v. Spencer, 26 Conn. 195. Where two attesting witnesses were required, and only one signed in the usual place, but an additional witness signed, with the grantor, a memoran- dum of the insertion of an omitted word, this was held sufficient. Culbertson v. Witbeck Co., 127 U. S. 326; s. c. 8 Sup. Ct. Eepr. 1136. * Gardner v. Moore, 51 Ga. 268; Morrill v. Morrill, 60 Vt. 74; Gal- pin V. Abbott, 6 Mich. 17; Boss v. Worthington, 11 Minn. 438; s. C. 88 Am. Dec. 95; Thompson v. Morgan, 6 Minn. 292; White v. Den- man, 16 Ohio, 59; s. C. 1 O. St. 110; Frostburg v. Brace, 51 Md. 508; Harper V. Barsh. 10 Eich. Eq. 149; N. Y. Life Ins. Co. v. Staats, 21 Barb. 570; Potter v. Strausky, 48 Wis. 235; Hastings v. Cutler, 24 N. H. 481; Battev. Stone, 4 Yerg. 168. 5 Carter v. Campion, 8 Conn. 549, 230 Ch. 6. J TIME, PLACE, ETC., OF RECORD. [§146. that the instrument is properly indexed, where the lack of witnesses is not contradictory of any of the recitals in the index. 1 The rule has also been applied to a case where the deed in fact had the requisite number of witnesses, but the record, through mistake in copying, failed to show that fact. 2 §146. Sealing- and Signing. In a majority of the states the use of private seals has been wholly dispensed with by statute. Where it is required that an instrument shall be under the seal of the grantor or maker, it has been held that the record of a deed without the seal is of no effect.^ The cburts, however, are not dis- posed to attach such effect to the omission of the mere formality of a scrawl that now usually constitutes the seal; and upon the ground that equitable titles are embraced within the registry acts, and that an instrument without seal conveys the equitable title, the record in such cases has been sustained.^ If the record show the deed to be without signature, it will be ineffectual, though the instrument was in fact prop- 1 Pringle v. Dunn, 37 Wis. 449; 8. C. 19 Am. Kep. 772, citing BiShop V. Schneider, 46 Mo. 472; s. c. 2 Am. Kep. 533. 2 Parrett v. Shaubhut, 5 Minn. 3-23; s. C.SO Am. Dec. 424. The later statute of 1872 is different. Moreland v. Laurence, 23 Minn. 84. In Alabama, a deed without either witnesses or acltriowledgment is void. Hendon v. White, 52 Ala. 597, citing French v. French, 3 N. H. 234; Clarlc V. Graham, 6 Wheat. 577. See McGowan v. Reid, 27 ; S. Car. i62. s Kacouillat V. Sausevain, 32 Cal. 376; Eacouillat v. Kene, Id. 450. See Wallace v. Moody, 26 Cal. 387. Where a sheriff's deed was signed, acknowledged and recorded, without sealing, its subsequent sealing, without re-acknowledgment, was held not to make it available to protect the purchase): under it in an action brought for the land. Lessee of Merritt v. Home, 5 O. St. 307. If the instrument was properly sealed when executed, the subsequent detachment of the seal does not invalidate it, unless it be proved that the seal was detached before the instrument reached the clerk's office for record. Van K is wick v. Goodhue, 50 Md. 57. * McClurgv. Phillips, 57 Mo. 214; Portwood v. Outton, 3 B. Mon. 247; Harrington v. Fortner, 58 Mo. 468; Brydon v. Campbell, 40 Md. 331 ; Wade on Notice, §140. 231 Ch. 6. J TIME, PLACE, ETC., OF RECORD. [§147, erly signed, ^ and so, where the name of the grantee is not inserted in the instrument.^ §147. Description of the Property. The record of an instrument will not impart notice, unless- it contains a sufficient description of the property conveyed or affected. In determining what will constitute a sufficient description, both the character of the instrument and of the property are to be taken into consideration. In a power of attorney, for instance, the description may be in very gen- eral terms. The record of deed or mortgage is ineffectual unless it contains an appropriate description of the property attempted to be conveyed.^ Where there is no uncertainty on the face of the instrument, but, through mistake, a dif- ferent property is described from that intended to be con- vej'ed, the record is notice of a conveyance or incumbrance only of the property mentioned.* But where an imperfect or erroneous description is given in such manner as to rea- sonably put one on an inquiry as to the property intended to- 1 Shepherd v. Biivkhalter, 13 Ga. 443; s. C. 58 Am. Dec. 523. Where the record showed no corporate seal to the instrument, it was presumed there was none, although there was some evidence tending to show it had been attached. Todd v. Union Dime Sav. Inst., 20 Abb. N. Cas. 270. If the corporate seal appears, evidence of the otHcer who usually at- taches it, that he has no recollection of doing so, in unavailing. Parker V. Washoe Mfng. Co., 49 X. J. L. 4C5; s. 0. 9 Atl. Kepr. 682; 8 Cent. Eepr. 343. - Disque V. Wright, 49 Iowa, 538, citing Chauneey v. Arnold, 24 N. Y. 330. A palpable mistake in filling blanks, whereby the name of the mortgagor is written for that of the mortgagee, and vice versa, will not prevent the record from being notice of the mistake to subsequent pur- chasers from the mortgagor. Beaver v. Slanlier, 94 111. 175; 1 Jones on Mort., §530. 3 Warren v. Syme, 7 W. Va. 474; Eggleston v. Watson, 53 Miss. 339; Wright v. Lancaster, 48 Tex. 250; Bank v. Ammon, 27 Pa. St. 172;. Mundy v. Vawter, 3 Gratt. 518; Nelson v. Wade, 31 Iowa, 49; Mur- phy V. Hendricks, 57 Ind. 593; Porter v. Byne, 10 Ind. 146; s. c. 71 Am. Dec. 305; Chamberlain v. Bell, 7 Cal. 292; s. C. 68 Am. Dec. 260; Holloway v. Platner, 20 Iowa, 121; s. C. 89 Am. Dec. 517; Adams V. Edgerton, 48 Ark. 419; 3 S. W. Eepr. 628; Green v. Witherspoon, 37 La. Ann. 751. * Sanger v. Craigue. 10 Vt. 555; Lally v. Holland, 1 Swan, 396; Thori> V.Merrill, 21 Minn. 336. 232 Ch. 6.] TIME, PLACE, ETC., OF EECOKD. [§148. be conveyed that would lead to a correct knowledge of the matter, the record will charge notice.^ So, where there is in a recorded instrament a reference to some other matter of record by which a defective description will be aided and made certain, the record will impart notice.^ The applica- tion of these rules depends largely on the facts of the indi- vidual cases, and there is a noticeable lack of harmony in the decision of cases of this kind.^ This matter will be con- sidered more in detail hereafter in treating of the effect of registry.* §148. Kecordlng Officers. The registration of a conveyance is a purely ministerial act, and an officer is not disqualitied from recording a deed 1 Carter V. Hawkins, 62 Tex. 393; Anderson v. Baughman, 7 Mich. 69; Nye v. Moody, 70 Tex. 434; Partridge v. Smith, 2 Biss. 183; Thornhill V. Burthe, 29 La. Ann. 639; Roberts v. Bauer, 35 La. Ann. 453; Tousley v. Tousley, 5 0. St. 78; Ericljson v. RaHerty, 79 III. 209; Merrick V. Wallace, 19 111. 486, 498; Dargin v. Becker, 10 Iowa, 571. "The east half of lot 20 in G., it being the west half of said lot 20," is such a description as serves to put on inquiry. Carter v. Hawkins, supra; and see Thornhill v. Burtlie, 29 La. Ann. 639. Actual notice of the mistake renders the error in the record immate- rial. Bent V. Coleman, 89 111. 364; s. C. 7 Am. Rep. 366; Warburton V. Lauman, 2 Greene, 420. 2 Wallace v. Furber, 62 Ind. 103; Newman v. Tymeson, 13 Wis. 172; s. C. 80 Am. Deo. 735. Where a deed referred to a. recorded contract of sale under which it was made, and that contract referred to another one not recorded, it was held that a subsequent purchaser was bound by the terms of those contracts. Cent. Investment Co. v. Wabash, 29 Ted. Kepr. 546. And see Gibert v. Peteler, 38 jST. Y. 165; s. C. 97 Am. Dec. 785. 3 Where "lot one in block six," was described in a deed as "lot and six," it was held that a subsequent purchaser under judicial sale against the grantor was entitled to priority over the grantee in the deed, unless at the time of his purchase he had such notice as would put a prudent man on inquiry. Nelson v. Wade, 21 Iowa, 49. In Connecticut it has been held that a mortgage of real estate re- quires a more certain and definite description of the property than a • deed; and a general designation of all other lands owned by the mort- gagors in a certain township, with reference to the county records for -description, has been adjudged insufHcient. Herman v. Deming, 44 Conn. 124, cited at length in 1 Dev. on Deeds, §654. * Fast, §§178-183. 233 Ch. 6. J TIME, PLACE, ETC., OF EECOED. [§149. because he is a, party to it, unless the statute so provides.^ It is sufficient that a deed is deposited for record with a person who is in actual charge and custody of the office, whether he be a regular deputy or not, as the recorder is responsible for the acts of one thus permitted to have con- trol of the office and records.'^ Where the clerk is required to keep a record of acknowledgments, his failure to enter a certificate thereon is immaterial where the instrument is duly recorded. 3 The certificate of the recorder is in some states held conclusive evidence that the instrument to which it is attached has been properly recorded.* A recorder of mortsao'es giving: a certificate that the records are clear, is responsible on his bond for the amount of a mortgage made on the faith of the certificate, and lost because of a prior recorded mortgage." §149. Schedules, Memoranda, etc. Schedules annexed to a deed of trust and referred to therein, must be registered with it.^ Where a memorandum 1 Brockenborough v. Melton, 55 Tex. 493; Tessier v. Hall, 7 Mart. (La.), 411. 2 Cook V. Hall, 6 111. (1 GUm.), 575. A clerk in thestoreof the town clerk, and in charge of the town clerk's office may, in the oiiicer's ab- sence, receive and file a mortgage. Dodge v. Potter, 18 Barb. 193; and so of a person in charge of the recorder's office during a vacancy. Bishop V. Cook, 13 Barb. 326. Where a person made an entry on the books of the entry taker (of public lands), and in his presence, but without his authority, it was held void, and not constructive notice to subsequent parties. Pearson v. Powell, 100 N. C. 8(i, citing Maxwell v. Wallace, 3 Ired. Eq. 593. * Scruggs V. Scruggs, 41 Mo. 242. Aliter as to acknowledgments taken by justices in Illinois. lioplin v. Anderson, 83 111. 120; Frank v. Miner, 50 111. 444; Porter v. Dement, 35 111. 478. * Jacobs V. Denison, 141 Mass. 117; Anthony v. Butler, 13 Pet. 423; post, §272; contra, Johnson v. Burden, 40 Vt. 567; s. c. 94 Am. Dec. 436. ^ Fox V. Thibault, 33 La. Ann. 32. So, a notary and the sureties on his bond held liable for loss, because of a false certificate to a mortgage which proved to be a forgery. People v. Butler (Mich.), 42 N. W. Eepr. 243. A certified copy by a notary of a deed acknowledged before him is not valid. Sparr v. Trimble, 1 M.arsh. 279. Otherwise as to copies of notarial and public acts of sale under the Mexican civil law. Titus v. Kimbro, 8 Tex. 210. ^ Sawyer v. Pennell, 19 Me. 167 ; McKinnon v. McLean, 2 Dev. & Bat. 79. A schedule merely referred to in a mortgage, but not annexed to 234 Ch. 6.] TIME, PLACE, ETC., OF RECORD. [§150. is indorsed on a deed, but not referred to in it, the mem- orandum must be acknowledged, and without tliis its record with the deed is ineffectual. ^ §150. Manner of Record.. Marginal notes of a recorder to the record of a deed can- not affect its validity, and are not proof. ^ Where the deed has been recorded in another county, it is not necessary that the clerk should copy the certificate of such prior rec- ord.^ Unless the statute require it, the record need not be signed by the officer in order that a copy of the deed may be admissible in evidence.* The record is not vitiated by an omission to copy the official seal to the certificate of ac- knowledgment, or to indicate in some way that there was a it, or made part of it, need not be recorded. Chapin v. Cram, 40 Me. 561. That the field-notes of a deed were attached to it after its record, held not to lessen its effect as a recorded instrument. Nye v. Moody, 70 Tex. 434; s. C. 8 «. W. Repr. BOB. 1 The memorandum was indorsed underneath the certifioate of ac- knowledgment, and the lower court instructed the jury that if it was there at the time of the execution of the deed, it was legally recorded. This was held error. Kerns v. Swope, 2 Watts. 75; and to same effect, McKean v. Mitchell, 35 i^a. St. 259; s. C. 78 Am. Dec. 335. An additional agreement making the right to foreclose a mortgage dependent on a given contingency must be recorded, under Kev. Stats, of Mo., §B93. Muuson v. Ensor (Mo.), 7 S. W. Eepr. lOS. A map pasted in the record book between its leaves, has been held to be not thereby recorded. Caldwell v. Center, 30 Cal. 539; s. O. 89 Am. Dec. 131. A plat referred to in a deed, but not annexed to or recorded with it, is not notice. Shirras v. Caig, 7 Cranch, 34. W^here new conditions, duly acknowledged, are indorsed on the back of a recorded mortgage, iu recording the new conditions, it is not neces- sary to again record the mortgage, if Ihey so refer to it as to identify it. Choteau v. Thompson, 2 O. St. 114. Reference to a schedule attached to another mortgage recoided in the same otfice, held suffloient. New- man v. Tymeson, 13 Wis- 172; s. C. 80 Am. Dec. 735; and see Dunham V. Dey, 15 Johns. 555; s. c. 8 Am. Dec. 282. 2 Doe, lessee of Foster, v. Executors of Dugan, 8 Ohio, 87; s. C. 31 Am. Dec. 432; Farmer's Bank v. Bronson, 14 Mich. 363. s Stinnett v. House, 1 Tex. Un. Cas. 484. Clerical errors in transcrib- ing do not vitiate the record. Gillespie v. Brown, 16 Neb. 457; s. C. 20 N. W. Kepr. 632. ■■ Wilt v. Cutler, 38 Mich. 189. The record may be partly printed without vitiating. Maxwell v Hartman, 50 Wis. 660. 235 Ch. 6. J TIME, PLACE, ETC., OF EECOBD. [§150. seal to the original.^ But if there is no recital in the cer- tificate that the seal is attached, and a certified copy be of- fered in evidence having no indication of a seal thereon, the presumption must necessarily obtain that there was no seal to the original.^ In the indorsement to be made by the recorder on the instrument, a substantial compliance with the statute is sufiicient.^ The clerk may correct mis- takes ia the record, as by subsequent interlineations, but such corrections can in noway impair title already acquired, and take effect only from the time when made.* An omis- sion to copy part of a mortgage instrument, the part omitted not pertaining directly to the mortgage, does not vitiate the record.^ A recorder is not liable in damages for recording a forged deed, unless he knew the character of the instrument.'' Where the statute limits the damacfes for failure to properly discharge a mortgage to "ten dollars and all damages occasioned by the neglect to so discharge it," exemplary damages resulting from defendant's false declar- ations as to the mortgage, are not recoverable.^ The va- lidity of the instrument is not a matter to be determined by the clerk before he will record it.^ Deeds should be re- corded without blank spaces left between on the record. ^ As against the officer's certificate of record on the deed, a witness not in charge of the recording office will not be heard to testify that no such deed was recorded ; the testi- mony of such officer being the best evidence of that fact, if the certificate is not to be regarded as conclusive. ^ 1 Geary v. City of Kansas, 61 Mo. 378; Sneed v. Ward, 5 Dana, 188; Growning v. Belin, 10 B. Men. 386; Smith v. Dall, 13 Oal. olO; Jones v. Martin, 16 Cat. 166; Griffin v. Sheffield, 38 Miss. 359; s. c. 77 Am. Dec. 646; Ballard v. Perry, 28 Tex. 347, 364; Addis v. Graham, 88 Mo. 197. 2 Switzer v. Knapps, 10 Iowa, 72; s. c. 74 Am. Dec. 375. 3 Parsons v. Boyd, 20 Ala. 112. ' Chamberlain v. Bell, 7 Cal. 292; s. c. 68 Am. Dec. 260; Baldwin v. Marshall, 2 Humph. 116; Harrison v. Wade, 3 Cold. 505; Sellers v. Sel- lers, 98 X. C. 13; s. C. 3 S. E. Repr. 917. 5 Est. of Prudhomme, 35 La. Ann. 984. 6 Ramsey v. Riley, 13 Ohio, 157. 7 Giffin V. Barr, 60 Vt. 599. 8 Sacerdotte v. Duralde, 1 La. 485. 9 Edwards v. Barwise, 69 Tex. 84; s. o. 6 S. W. Repr. 677; Bullock v. Wallingford, 55 N. H. 619. By statute in Ohio, a certified copy of a re- 236 Ch. 6.] TIME, PLACE, ETC., OE KECOUU. [§151. §151. Payment of Recording' Fees. A provision in the statute that "no deed shall be admitted to record until the tax is paid thereon," is merely directory. If the officer records the deed without the payment of the tax, the record is not invalid, but he assumes the tax.' So, if he sees proper to waive his right to the prepa3'ment of his fees, he must record the deed and look for paj'^ment to the person depositing it for record.^ A mortgagee can- not, in the absence of an agreement to that effect, hold the mortgagor liable for the payment of the fee for recording the mortgage, as its registration is solely for his benefit and protection.^ Records are subject to public inspection, but if the services of the officer are in any way required, he is entitled to charge a fee ; hence it is held in Georgia that no one is entitled to examine the records and make absti-acts without the payment of any fee.* corded instrument is prima facie of the instrument, and conclusive ev- idence of its record. Rev. Stats., §4143. And usually so by decision. Fuller V. Cunningham, 105 Mass. 442; Head v. Goodwin, 37 Me. 181; ante, §140. 1 Lucas v. Claflin, 76 Va. 209: Hoffman v. Mackall, 5 O. St. 124; s. c. 64 Am. Dec. 637. 2 Kidley v. McG-ee, 2 Dev. 40; Bussing v. Grain, b B. Mon. .593: People V. Bristol, 35 Mich. 28; Dodge v. Potter, 18 Barb. 193. 3 Simon v. Sewell, 64 Ala. 261. Where a deed has been filed and the recording lees paid, it will be presumed that the clerk did his duty and recorded it — the deed being lost and the record thereof buruel. Harrison v. McMurray (Tex.). 8S. W. Kepr. 612; and see also, Perkins v. Strong, 22 Neb. 725. For case where, because of non-payment of the tax, or lee, the record was held not to impart notice, see Pliillips v. Clarke, 4 Met. 348; s. c. 83 Am. Deo. 471. A deed lodged for record passes title, though not recorded because the fee is not paid. Knight v. Williarhs, 6 Bush, 51; s. c. 90 Am. Dec. 652. Where a deed is sent to the recorder without the lees, it is not "lodged for record." Dickerson v. Bowers, 42 N. .J. Eq. 293; s. c. 11 Atl. Bepr. 142; 7 Cent. Eepr. 372. A stipulation in the mortgage that the mortgagor binds himself lo pay all costs of recording and foreclosure, is valid, and the lien is good for such costs. Boutwell v. Steiner, 84 Ala. 307; S. 0. 5 Am. St. Hep. 375. < Buck V. Collins, 51 Ga. 391; S. C. 21 Am. Kep. 236. 237 Ch. 7. J THE EFFECT OF RECORD. CHAPTER 7. THE EFFECT OF RECOED. §152. Effect of the record— Constructive notice. 153. Continued— Definitions and limitations. 154. Purchaser may rely on title as it appears of record. 155. Purchaser without notice may convey title to one with noiice. 156. When full record title does not protect purchaser in good faith. 157. Continued— The contrary view under which such purchaser is protected. 158. Break in the record title. 159. Continued— Actual notice as supplying the gap. 160. Record of mortgage before deed to mortgagor. 161. Continued— Exception created by estoppel. 162. Record is notice only to purchasers under same grantor. 163. Record does not charge prior parties. 164. Continued— Record of subsequent mortgage as notice to prior parties. 165. Priority in registration. 166. Priority in the record of conveyances from same grantor. 167. Priority — Continued. 168. Conveyances and records of same date. 169. Priority in record of liens. 170. Priority in record of mortgages. 171. Continued — Record of mortgages. 172. Purchase money mortgages. 173. Re-inscription of mortgages. 174. Assignment of mortgages. 175. Cancellation, release and discharge of mortgages. 176. Extent to which the record is notice. 177. Continued — Notice of matter of law. 178. Recitals charge constructive notice. 179. Notice from unusual recitals. ISO. Imperfect and ambiguous recitals. 181. Recital to other instruments. 182. Recitals to matter of fact. 183. Quit-claim deed as charging with notice. 184. Purchaser from heir protected. 185. Registry of wife's separate property. 238 189. 190. Ch. 7.j THE EFFECT OF RECORD. [§152. §186. Record of conveyances by the wife. 187. Second record not necessary; 188. Eegistry as affected by usage. Record necessary to the validity of the instrument, when. Unauthorized record made effective by subsequent matter of law or fact. 191. Unrecorded deed as affected by suit. §152. Effect of the Record— Constructive IVTotice. The statutes usually provide that unrecorded conveyances and other instruments affecting title shall be void as against subsequent purchasers and incumbraocers without notice; hut only a few of them expressly declare that registry shall constitute notice. The construction of the English and Irish registry acts has been that they were intended to give priority to conveyances according to the priority of their registry, but that registry did not, of itself alone, constitute or impart notice. ^ At an early day the same view also pre- vailed to some extent in this country,^ but the doctrine that now universally obtains throughout the United States, is that a proper record is constructive and absolute notice, charging every person subsequently dealing with the prop- erty involved, whose duty it is to make examination of the records.^ The duty of examination proceeds on the theory ^ Ford V. White, 16 Beav. 120, and cases cited ante, §2. "The plain meaning of the statute," said Lord Eedesdale, in Underwood v. Lord Courtown, 2 Sch. & Lef. 40, "is to give priority to instruments whether they convey a legal or equitable estate, according to the priority of their registry." The statutes of Pennsylvania, Maryland, Rhode Island and several other states are modeled on the statute of 27 Henry VIII, for the enrolment of bargains and sales, or that of 7 Anne, ch. 20, ante, §1. By the statutes of a majority of the states, however, it is not required that a subsequent conveyance, in order to claim preference, shall be first of record, and where this is not so nominated in the statute, the rule does not obtain, except as to certain classes of mortgages, that priority of right depends on priority of record. See ante, §§13-15; post, §§165- 167. 2 Doswell V. Buchanan, 3 Leigh, 365; s. 0. 23 Am. Dec. 280, and cases cited ante, §3 ; post, §203. ° Sowden v. Craig, 26 Iowa, 156; S. C. 96 Am. Dec. 125; Wells v. Smith, 2 Utah, 39; Parkist v. Alexander, 1 Johup. Ch., 394; Humphreys V. Newman, 51 Me. 40; Ogden v. Walters, 12 Kan. 282; ante, §4; 2 Pom. Eq. Jur., §665; 1 Jones on Mort., §557. 239 Ch. 7.] THE EFFECT OF RECORD. [§153. that the records are made for public information, and that one who willfully or negligently omits to inform himself of what they disclose, is in equity and reason as much charge- able with notice as though he knew. ^ Where the letter of the law has not given this effect of notice to registration, the courts have done so by judicial construction, and they have declared, in reference to this most important conse- quence of recording, that the registry laws would be use- less, unless subsequent purchasers were bound to take no- tice of an instrument previously and duly recorded.^ §153. Continued— Definitions and Limitations. The constructive notice imparted by registry is absolute and conclusive ; hence it will avail nothing, where a deed has been duly recorded, that a subsequent purchaser actually searched the records without finding it.^ That constructive notice which arises from matters of fact sufficient to put one on inquiry, is usually rebuttable.* This latter charac- ter of notice, which is more properly implied or presump- tive notice, will be treated under the head of Actual No- tice, in a succeeding chapter.^ In their legal consequences and effect there is no difference between actual notice and constructive notice of either kind." The determination of ' Acer V. Westcott, 46 N. Y. 384; s. c. 7 Am. Kep. 355; Cambridge Valley Bank v. Delano, 43 N. Y. 326; Wild v. Brooks, 10 Minu. 50; Wil- son V. Hunter, 3(1 Ind. 466; ante. §4. 2 Voorhis v. Westervelt, 43 N. J. Eq. 642; s. c. 12 Atl. Eepr. 533; 3 Am. St. Rep. 315; MoPherson v. Rollins, 107 NY. 316; s. C. 1 Am. St. Rep. S26; 14 N". E. Repr. 411; Buchanan v. Int. Bank, 78 111. 500; Earle V. Fisk. 103 Mass. 491, 494; Hager v. Spect, 52 Cal. 579; Orvis v.Xewell, 17 Conn. 97. 8 Edwards v. Barwise, 69 Tex. 84; s. C. 6 S. W. Repr. 677; Jordan v. Farnsworth, 15 Gray, 517; Clabaugh v. Byerly, 7 Gill. 354. 4 "The presumption is a mere inference of fact, and may be repelled by proof that the purchaser failed to discover the prior right, notwith- standing the exercise of proper diligence on his part." Selden, J., in Williamson v. Brown, 15 N. Y. 554; Wilson v. Wiliams, 25 Tex. 54; Wade on Not.. §40; Story's Eq. Jur., §410a; post, §227. 5 Post, oh. 9, §§219-227. 6 Hill V. Epley, 31 Pa. St. 335; Schutt v. Large, 6 Barb. 373; Mor- rison V. Kelley, 22 111. 610; s. o. 94 Am. Dec. 169; Ellison v. Wilson, 36 Vt. 67. 240 Ch. 7.] THE EFFECT OF RECORD. [§154. the effect of the record when made involves the most im- portant and difficult questions of registration. These ques- tions arise not from exceptions to the rule that the record imparts absolute notice, but from difficulties to be found in making a proper application of the rule to Specific cases and classes of instruments, and they grow largely out of pecu- liarities of the various instruments, deficiencies of descrip- tion and I'ecital therein, and the nature of their relations to other matters of record and in pais.'^ Actual notice may be limited in its operation by the facts in a given matter, but the constructive notice of the record, being absolute and arbitrary, is not usually susceptible in its application to such limitations and qualifications as equity might suggest in that "apportionment of injuries" which has been said to be the object of the law. Ordinarily the record is notice, ■or it is nothing. Cases of this kind, where the rights of lit- igants are thus dependent on the application of an arbitrary rule, "are always very honorably labored by counsel at the bar, and determined with great anxiety by the court, as some of the parties must be shipwrecked in the event. "^ It may be stated, as a general rule, that constructive no- tice flowing exclusively from matters of record will not be •construed to be more extensive than the facts stated in the record.^ §154. Purcliaser May Rely on the Title as It Appears of Record. The policy of the registry law is that the title and all that affects it should be disclosed by the public records, and upon the theory that it is thus shown, the rule obtains that a pur- ^ Notice of a recorded Instrument is notice of all legal incidents per- taining to it. N. Y. Life Ins. Co. v. Covert, 6 Abb. N. S. 154. And it will not avail a subsequent purchaser that a recorded mortgage appeared to be barred by limitation, where, in fact, though not shown by the rec- ord, it had been extended by virtue of a new promise extending the debt. Plant V. Shryock, 62 Miss. 821. ^ Lord Chancellor Northington, in Stanhope v. Varney, 2 Bden, 81. 5 Gale V.Morris, 29 N.J. Eq. 222; Brovvnback v. Ozias, 117 Pa. St. 87, 93; S. C. 11 Atl. Repr. 30; 9 Cent. Kepr. 554. (16— Reg. of Title.) 241 Ch. 7. J THE EFFECT OF RECORD. [§154. chaser may rely upon the title as it appears of record, and that he will be protected against unrecorded conveyances,, outstanding equities, secret liens and conditions of which he has no notice.^ This proposition embodies the general re- sult of benefit and protection afforded by the recording acts. The rule that a perfect record title aif ords protection does not obtain where the purchaser is chargeable with ac- tual notice.^ Nor does it obtain when the apparent title of record consists in part of a void deed, for such an instru- ment being a nullity can acquire no effect by registration, and its record charges no one with notice.^ The rule, how- 1 Quick V. Milligan, 108 Ind. 419; S. C. 58 Am. Eep. 49; "Williamson V. Jackson, 107 U. S. 478; Testai-t v. Belot, 31 La. Ann. 795; Hathorn v. Maynard. 65 Ga. 168; The Conn. Ins. Co. v. Talbot, 113 Ind. 373; s. c. 3 Am. St. Eep. 655; Harrington v. Erie Co. Bank, 101 N. Y. 257; Newton V. J[cLain,,41 Barb. 285; Cogan v. Cook. 22 Minn, 137; Ramsey v. Jones, 41 O. St. 6S5; Pancake v. Cauffman. 114 Pa. St. 113; s. c. 7 Atl. Eepr. 67; Bailey V. Myrick. 50 Me. 171; Columbia Bank v. Jacobs, 10 Mich. 495; Hart v. Farmer's Bank, 33 Vt. 252; Farmer's Bank v. Wallace, -15 O. St. 152; s. C. 12 N. E. Eepr. 439; Hoyt v. Jones, 31 Wis. 389; New- hall v. Burt, 7 Pick. 157; Ashbrooks v. Eoberts, 82 Ky. 298; Hulett v. Mut. Ins. Co., 114 Pa. St. 142; s. C. 6 Atl. Eepr. 554; Kearnes v. Hill, 21 Fla. 185; Wright v. Lassiter, 71 Tex. 640; Roll v. Eea, 50 K. J. L. 266; s. C. 12 Atl. Eepr. 905; 11 Cent. Repr. 362; Doherty v. Stimmel, 40 0. St. 294. 2 Ante, §12; post, §§165, 215-222, where the subject of actual notice is treated at length. 3 Stone V. French, 37 Kan. 145; s. c. 1 Am. St. Rep. 237; 14 Pao. Repr. 530; Pry v. Pry, 109 111. 466; Chipman v. Tucker, 38 Wis. 43; s. c. 20 Am. Rep. 1; Van Amridge v. Morton. 4 Whart. 382; s. c. 34 Am. Dec. 517; Harkreader v. Clayton, 56 Miss. 383; s. c. 31 Am. Rep. 369; Smith V. South Eoyalton Bk., 32 Vt. 341; s. c. 76 Am. Dec. 179; Teftv. Munson, 57 N. Y. 97; Pearson v. Powell, 100 N. C. 86. Such record may be void and ineffectual, because the deed was never delivered. Woodbury v. Fisher, 20 Ind. 387; s. c. 83 Am. Dec. 325; StetHan v. Bank, 69 Tex. 513, 518; s. c. 6 S. W. Eepr. 823; Stone \. French, supra; ante, §144; or because it was executed by a person of un- sound mind. Valentine v. Lunt, 51 Hun. (58 N. Y. Sup. Ct.), 544. But where the deed is delivered as an escrow, and fraudulently obtained by the grantee, an innocent purchaser is protected. Quick v. Millio-an, supra; Bailey v. Crim, 9 Biss. 95. So the record may be ineffectual because the deed is a forgery. Pry V. Pry, supra; McGinn v. Tobey, 02 Mich. 252; s. c. 4 Am. St. Rep. 848; 28 N". W. Eepr. 818; U. S. v. Samperyao, Hemp. 118; or, by statute, on account of usury, Johnson v. Wheelook, 63 Ga. 623; or because made under a power of sale in a mortgage after the debt had been paid. 242 Ch. 7. J THE EFFECT OF RECORD. [§154. ever, protects a subsequent purchaser without notice, buy- ing from one who purchased with notice, and whose deed is recorded.^ In such case the latter purchaser is charged neither by the record, 'nor by any matter of fact affecting his conscience and rendering his action inequitable.^ The SMppen V. Whittier, 117 111. 282; s. C. 7 N. E. Eepr.642; and where the record is thus from any cause void, it will not impart notice of, any equi- ties, which by reason of facts aliunde the record, the grantee may have under it. Loomis v. Bush, 36 Mich. 40. Where, through a mistake of name, land was patented to the wrong person, and the patentee sold the land to one having no notice of the mistake, the purchaser was protected against the claim of the person rightfully entitled to the patent. Lea v. Polk Co. Copper Co., 21 How. (62 U. S.), 493; Rohbins v. Moore (111.), 21 N". E. Kepr. 934. A deed of trust by a married woman, her husband not joining therein, to secure purchase money due on the premises, though void as a conveyance, has nevertheless been held such an instrument relating to real estate as, when recorded, is constructive notice of the lien of the vendor. Morri- son V. Brown, 83 111. 502. 1 Holmes v. Buckner, 67 Tex. 107, 112; s. c. 2 S. W. Kepr. 4,^2; Syd- nor V. Roberts, 13 Tex. .593; s. c. 65 Am. Dec. 84; Schuchman v. Home- stead, 111 Pa. St. 48; s. c. 1 Cent. Repr. 913; Branch v. Griffin, 99 N.C. 173; s. c. 5 S. E. Repr. 393, 398; Lee v. Cato, 27 Ga. 637; s. c. 73 Am. Dec. 476; East v. Pugh, 71 Iowa, 162; s. C. 32 N. W. Repr. 309; Paris V. Lewis, 85 ill. .597; Pringle v. Dunn, 37 Wis. 449; s. C. 19 Am. Rep. 772; Demarest V. Wyncoop, 3 Johns. Ch., 129; s. c. S Am. Dee. 427; Wood V. Chapin, 13 N. Y. 509; s. C. 67 Am. Dec. 52; Howard v. Selman, 77 Ga. 604; Lane v. Schleinmer, 114 Ind.. 296; s. c. 5 Am. St. Rep. 621; 15 N. E. Repr. 454. In Louisiana a mortgage of realty includes the crops grown thereon. Williamson v. Richardson, 31 La. Ann. 685. So. "all things which the owner of a tract of land has placed upon it for its service and improve- ment, such as working animals, iraplemen's of husbandry, machinery and other appurtenances, are immovable by destination, and are covered by a pre-existing mortgage which attaches to the realty." But where the owner removes such property from the mortgaged premises, one purchasing it from him in good faith takes it clear of the mortgage. Weil V. Lapeyre, 38 La. Ann. 303. The rule applies as to personal property and protects a bo?ia fide pur- chaser from a fraudulent vendee. Fawcett v. Osborn. 32 111. 411 ; s. c. 83 Am. Dec. 278; Moody v. Black, 117 Mass. 23; s. c. 19 Am. Rep. 394; Le Grand v. Eufala Bank, 81 Ala. 123; 8. C. 60 Am. Rep. 140; 1 South. Repr. 460; Saltus v. Everett, 20 Wend. 267; s. c. 32 Am. Dec. 541; and has been held even to protect a purchaser who takes goods for a pre- existing debt. Butters v. Haughwout, 42 111. 18; s. c. 89 Am. Dec. 401. See Collins v. Cook, 40 Tex. 238; post, §207. 2 Pringle v. Dunn, 37 Wis. 449; s. C. 19 Am. Rep. 772; 2 Pom. Eq. Jur., §754; Westbrook v. Gleason, 79 1^. Y. 23; Paris v. Lewis, 85 111. 597; Price v. Martin, 46 Miss. 489; Glidden v. Hunt, 24PJck. 221; Lamb 243 Ch. 7. J THE EFFECT OF RECORD. ' [§155. only ground upon which his rights can be subordinated to those under the prior unregistered conveyance is where he has not paid a valuable consideration within the meaning of the general doctrine on that subject. ^ The rule also protects a subsequent purchaser against a mistake by which a larger amount of land was conveyed in the deed to his vendor than was intended.^ §155. Purchaser Without Xotice May Convey Title to One Witli Xotice. A purchaser for valuable consideration without notice may convey a perfect and unimpeachable title to one who has notice of an outstanding title or equity.^ The grantor in such case being entitled to protection, his grantee will be accorded the same protection ; and this although such grantee be not a purchaser for value, and although the prior ad- verse conveyance be recorded before he purchases.* The grantor having purchased without notice, the law has de- clared the prior conveyance, unregistered at the time he bought, absolutely void as to him, and, therefore, it can be V. Davis, 74 Iowa, 719; s. C. 39 N". W. Repr. 114; Knox v. Silliway. 10 Me. 201, 221; Varick v. Brifi;gs, 6 Paige, 323; Hardin v. Harrington, 11 Busli, 367; Mallory v. Stodder, 6 Ala. 801; Trulock v. Peeples, 3 Kelly (Ga.), 446; Tompkins v. Powell, 6 Leigh, .576; Wood v. Mann, 1 Sumn. 503; Webster v. Van Steenburg, 46 Barb. 211. 1 See post, ch. S, §§204-208; Wade on Notice, §226; Gardner v. Earley, 72 Iowa, 518 ; s. c. 34 N. W. Eepr. 311 ; Aubuchan v. Bender, 44 Mo. 580 ; Setter V. Alvey, 15 Kan. 157; Martin y. Sale, 1 Bail. Eq. 1; Barnard v. Campbell, 58 N. Y. 73; s. c. 17 Am. Rep. 208. 2 Garrison V. Crowell, 67 Tex. 626; s. c. 4 S. W. Repr. 69. 3 Moore v. Carry, 36 Tex. 668; Fargason v. Edrington, 49 Ark. 207, 216; s. c. 4 S. W. Repr. 763; Coggsvvell v. Griffith, 23 Neb. 334; s. C. 36 N. W. Repr. 538; Douglass v. JlcCrackeu. 52Ga. 596; Pierce v. Faunce, 47 Me. 507; Roll v. Rea, 50 N. J. L. 264; S. 0. 12 Atl. Repr. 905; 11 Cent. Repr. 362; Blight v. Banks, 6 Mon. 192; s. c. 17 Am. Dec. 136; Pringle V. Dunn, 37 Wis. 449; s. c. 19 Am. Rep. 772; Bean v. Smith, 2 Mason, 252; Bell v. Twilight, 18 N. H. 159; s. C. 45 Am. Dec. 367; Shotwell v. Harrison, 22 Mich. 410; Mills v. Smith, 8 Wall. 27; Funkhouser v. Lay, 78 Mo. 45S. < Wood V. Chapin, 13 N. Y. 509; s. C. 67 Am. Dec. 52; Fallass v. Pierce, 30 Wis. 442; Crane v. Turner, 7 Hun. 357; Webster v. Van- Steenburg, 46 Barb. 211; Boynton v. Rees, S Pick. 329; s. C. 19 Am. Dec. 326. 244 Ch. 7.] THE EFFECT OF RECORD. [§155. given no effect whatever against his rights.^ The value of the property in his hands would bo greatly depreciated if the subsequent record of the prior conveyance, or actual notice of it, could deprive him of the power to sell and con- vey his perfect title to third persons. ^ The second pur- chaser, with notice, takes the title of his grantor unincum- bered for the reason that without this, the law does not ac- cord the full measure of protection of which it gives assur- ance.^ The jus disponendi would otherwise be clogged by a restraint of indefinite duration.* There is, however, one well recognized exception to the rule stated in this section. That exception is that the title cannot be conveyed free from the prior equities, back to a former owner who was charged with notice at the time his interest attached.^ He cannot clear off the equities by transferring the title to an innocent party, and then re-purchasing it.^ In such case, all the equities revive and attach to the property in his ^ Coster's Executors v. Bank of Ga., 24 Ala. 37 ; Mott v. Clark, 9 Barr, 399; Boynton v. Rees, S Pick. 329. 2 Wade on Notice, §62, citing, Lowther v. Carlton, 2 Atk. 242. 3 Cook V. Travis, 20 N. Y. 400; Jackson v. McChesney, 7 Cow. 360; Losey v. Simpson, 11 N. J. Eq. 246; Allison v. Hagan, 12 N"ev. 38; Bush V. L'athrap, 22 N. Y. 539, 549; McSliirley v. Burt, 44 Ind. 382; Trull V. Bigelow, 16 Mass. 406; Jackson v. Given, 8 Johns. 137; City Council V. Page, Speer's Eq. 159; Vattier v. Hinde, 7 Pet. 252; Bracken V. Miller, 4 Watts & S. 102; Lindsey v. Rankin, 4 Bibb. 282; Bumpus V. Plainer, 1 Johns. Ch. 213; Halstead v. Bank of Ky., 4 J. J. Marsh. 554; Blight v. Banks, 6 Mou. 192; Fletcher v. Beck, 6 Cranch, 36; Boone v. Chiles, 10 Pet. 177; Kirby v. Miller, 1 Casey, 264; Holmes v. Stout, 3 Green Ch. 492; Curtis v. Lunn, 6 Munf. 42. ^ The rule stated in this section will not be applied under all cir- cumstances. Thus where the first purchaser, although without notice, was a mere volunteer, and therefore held subject to equities, a purchaser from him with notice also took subject to the same equities. Johns v. Sewell, 33 Ind. 1. A tenant in common, with notice, cannot get a clear title from his co-tenant without notice by partition. Blatchley V. Osborne, 33 Conn. 226. * Simpson v. Montgomery, 25 Ark. 365; s. C. 99 Am. Dec. 228; Trent- man v. Eldridge, 98 Ind. 525; Ashton's Appeal, 73 Pa. St. 153; Oliver V. Piatt, 3 How. 401; Church v. Church, 1 Casey, 278; Church v. Ru- land, 64 Pa. St. 432; Bumpus v. Platner, 1 Johns. Ch. 213;. Troy City Bank v. Wilcox, 20 Wis. 671. « Schutt V. Large, 6 Barb. 373. 245 Ch. 7. J THE EFFECT OF RECORD. [§156. hands. 1 The principle has also been applied where an agent who had been guilty of bad faith in the first sale, sub- sequently purchased the property for himself.^ §156. Wlien Full Record Title Does Not Protect Pur- chaser In Good Faitli. The rule stated in the preceding section applies only where the first purchaser is a purchaser without notice. If he buys with notice, or without valuable consideration, his conveyance to another who also has notice, will be subject to the rights and equities that attach against the property in his hands. ^ And although such later vendee be without actual notice, yet if the prior outstanding conveyance is re- corded before he purchases, he is thereby charged with con- structive notice.* He is not, in this instance, entitled to pro- tection for his grantor's sake, nor can he claim it on his own account, because the prior deed of the adverse party is on record when he buys. The prior first conveyance, not being void as against a subsequent conveyance with notice, or without valuable consideration, can claim the right and effect of record at any time before the property is conveyed to a 1 2 Pom. Eq. Jur., §75i; Trentman v. Eldridge, 98 Ind.*525; Ken- nedy V. Daly, 1 Sob. & Lef. 355. 2 A deed and a mortgage of the same property were executed on the same day to different parties, neither referring to the other. The agent of the mortgagor, through bad faith or negligence, failed to record the mortgage until after the deed was recorded, and it was held that a subsequent purchase of the property by him from the grantee in the deed was subject to the rights of the mortgagee. Mitchell v. Aten, 37 Kan. 33; s. c. 1 Am. St. Rep. 231; 14 Pac. Repr. .530. s This is but the operation of the general principle of the equitable doctrine of notice. Ante, §12; posj, ch. ix; 2 Pom. Eq. Jur,, §§759, 659- 666. It applies where a purchaser Is affected with knowledge of fraud, as well as of a prior conveyance. See cases cited ante, §89. * Mahoney V. Middleton, 41 Cal. 41; Warden v. Williams, 24 111. 67; Van Kenssellaer v. Clark, 17 Wend. 25; Jackson v. Post, 15 Wend. 588 ■ Sims V. Hammond, 33 Iowa, 368; Cabeen v. Breckinridge, 48 111. 91 95- Morrison v. Kelley, 22 111. 610; s. c. 74 Am. Dec. 169; En<^lish-v! Waples, 13 Iowa, 57; Fallass v. Pierce. 30 Wis. 442; Flynt v. Arnold 2 Mete. 619; Schutt v. Large, 6 Barb. 373; Ring v. Steele, 3 Keyes 450- Goeletv. McManus, 1 Hun. 306; IJones on Mort., SS574, 575- 2 Pom Eq. Jur., §760. > »» > , o""- 246 Ch. 7.] THE EFFECT OF RECORD. [§156. purchaser without notice.^ Thus, if A. conveys to B., and afterwards to C, who places his deed first on record, but who has bought with actual notice, the subsequent record of B.'s deed will charge constructive notice, and any purchaser from C. will take subject to B.'s rights. The deed to B. being of record at the time he buys, he must take notice of it; and when he has done so, he is put upon inquiry as to the facts of the matter, and the true state of the title as be- tween the conflicting claimants. ^ But if C, before the recofd of B.'s deed, conveys to D. who is without notice, then D. having neither actual nor constructive notice of B.'s rights at the time he buys, receives an indefeasible title, and can convey such title to E. after the record of B.'s •deed, and although E. may have actual notice of it.^ 1 Thus, if A. makes a second deed of the same property to C, who takes with knowledge of the prior deed to B., and C. then conveys to D., who has like knowledge, and D. to E., and so on to the end of the alphabet, each subsequent grantee having knowledge of B.'s prior right, and all their conveyances being recorded, yet then if B. should record his deed before the last grantee with knowledge, and Z. should make conveyance, the purchaser from Z. would be bound to take notice of B.'s rights, and of the relations existing between them, and all the subsequent purchasers from C. to Z. inclusive. Fallass v. Pierce, 30 Wis. 443. But as soon as any one in the above chain of title purchases in good faith and for valuable consideration, the title under the unre- corded deed toB. is effectually cut off, except that, in those states where title is made to depend on priority of record, B."s title would still pre- vail if placed on record before that of such last purchaser. Ante, §§13- 15; post, §§166-168. 2 Fallass V. Pierce, and cases above. Contra, it has been held that the record of the prior deed after the second, is notice to a purchaser from the vendee in the second deed that there is such a deed, but not that the vendee therein, at the time he secured it, had notice of the first deed, and without such notice the title of the purchaser from the vendee in the second, but first recorded, deed would not be affected by the fraud or knowledge of his vendor. Day v. Clark, 25 Vt. 397, 402, cited fully in Wade on Notice, §200. 8 Flynt V. Arnold, s!Serg. & E. 245; Bates v. Norcross, supra. An un- authorized deed by an executor in one state of lands situated in an- other, though recorded in such other state, is not notice to purchasers from the heirs of the testator. Blake v. Graham, 6 O. St. 580; s. c. 67 Am. Dec. 360. = Fallass v. Pierce, 30 Wis. 443; Flynt v. Arnold, 2 Mete. 619; hut see, contra, Kaynor v. Wilson, 6 Hill, 469, cited and criticised in Fallass V. Pierce, supra. A judgment may constitute a link in the subsequent purchaser's chain of title. Hoyt v. Jones, 31 Wis. 389; but not a judg- ment quieting a tax title. Windom V. Schappell, supra; S. C. 27 Cent. Law Jour. 304. The rule that, a purchaser is not affected by the record of a deed or contract made by one under whom his title is not derived, is declared bv statute in Virginia. Code of Va., 1887, §2473; Doswell v. Buchanan, 3 Leigh, 365; s. c. 28 Am. Dec. 280. (17— Keg. of Title.) 257 Ch. 7. J THE EFFECT OP RECORD. [§163- §163. Record Does Not Charge Prior Parties. The effect of recording is not intended to be retrospect- ive in its operation, and hence registration is not notice to prior parties whose conveyances are of record.^ It can- not act as a notice backwards in point of time so as to change rights ah-eadj vested and secured by recorded in- struments. ^ The rule, it is said, applies even where the antecedent rights might have been, under the statute, de- feated by priority of record.^ The instances that most fre- quently call for the application of the rule are those of the record of subsequent mortgages.* The record of a deed is 1 Birnie v. Main. 29 Ark. 591; Boyoe v. Stanton, 15 Lea (83 Tenn.), 346; O'Neill v. Wabash, 4 Biss. 482, 484; Taylor v. Maris, 5 Rawle, 51; Ward V. Hague, 25 N". J. Eq. 397; Cooper v. Bigly, 13 Micli. 463; Wade on Notice, §203; Holley v. Hawley, 39 Vt. 525; s. C. 94 Am. Deo. 350. 2 Doolitt'le V. Cooli, 75 111. 3.54; George v. Wood, 9 Allen, 80; Deuster V. McCamus, 14 Wis. 307; Kyle v. Thompson, 11 O. St. 616; Howard^ Ins. Co. V. Halsey, 8 N. Y. 271; s. c. 59 Am. Dec. 478; McCabev. Grey,' 20 Cal. 509. Even where the deed was pursuant to a contract between the same parties, already of record, its registration does not have the effect to nialve it relate back and take effect from the time the contract was re- corded, so as to cut off all equities that existed between the date of the execution of the contract and that of the deed. O'Neill v. Wabash, 4 Biss. 482. 2 2 Pom. Eq. Jur., §657, in the note to which a leading case on this subject, Stuyvesant v. Hone, 1 Sand. Ch. 419; s. c. 2 Barb. Ch. 151, is quoted fully. " Vanorden v. .Johnson, 14 N". J. Eq. 376; s. C. 82 Am. Dec. 254. The principle stated in this section is measurably involved in the decisions that the acknowledgment, ratification and delivery of deeds cannot re- late back so as to cut off intervening rights. Parmelee v. Simpson, 5 Wall. 81 ; Coal Creek Co. v. Heck, 15 Lea (83 Tenn.), 497, 513; Harri- son V. Wade, 3 Cold. 565; Hendon v. White, 52 Ala. 697; ante, §119. Where the certificate of sale, under Gen. Stats, of Colorado, §215, has been recorded, the sheriff's deed relates back to the date of sale and cuts off a deed recorded after the record of the certificate, though older than the judgment. McMurtrie v. Riddell, 9 Colo. 497; s. C. 13 Pac. Kepr. 181. Without the aid of such statutory certificate, the record of the sheriff's deed does not relate back under such circumstances. Reyn- olds V. Darling, 42 Barb. 418. Compare Foster v. Dugan, 8 Ohio, 87; S. C. 31 Am. Dec. 432. Where there are no specific intervening rights, the delivery of a deed will relate back to a prior recording of it so as to constitute possession under it a holding under a duly recorded deed. Parker v. Spencer, 61 rex. 155. 268 Ch. 7.] THE EFFECT OF RECORD. [§164. not constructive notice to parties iiolding under a prior con- tract so as to invalidate payments made by them on tlie contract to such grantor, without actual notice of the rights of the grantee in the deed.^ But if the holder of a junior mortgage, on record before the institution of a suit to en- force a prior lien, is not made a party to that suit, he is not precluded from asserting his lien as against those who hold under the judgment, although in so doing he must satisfy their interest in the whole of the land, and not in a part only. The title of the purchaser is not, as against a subse- quent incumbrance, absolute under such circumstances.^ §164. Continued— Record of Subsequent Mortgage as Notice to Prior Parties. As the record cannot have a retrospective effect, a prior mortgagee cannot by its operation be charged with the equities of a subsequent mortgagee and is not bound by them, except as above stated, unless he has actual notice, or such notice as should put him on inquiry.* While the law requires every man to deal with his own so as not to in- jure another, it imposes a greater obligation on the second mortgagee to take care of his own interests than upon the first to take care of them for him. To make it the duty of the first mortgagee to inquire before he acts, lest he may injure some one, would be to reverse the rule, and make it his duty to do for the second mortgagee what he should do for himself.* Hence the prior mortgagee without actual ' Frick's Appeal, 101 Pa. St. 485; Cook v. Dillon, 9 Iowa, 407; Bald- win V. Thompson, 15 Id. 504; Wethersbee v. Farrar, 90 N. C. 259. ' Turner v. Phelps, 46 Tex. 251; Byler v. Johnson, 45 Tex. 509; Breedlove.v. Ewina;, Id. 47; Watson v. Spence, 20Wend.264; 2 Hilliard on Mort., 87, §35; Freeman on Judgmenis, §§162, 205; Haines v. Beach, 3 Johns. Ch. 459; 4 Kent's Com. 186; Peto v. Hammond, 29 Beav. 91. 3 Ranney v. Hardy, 43 O. St. 157; S. C. 1 West. Repr. .52; Doolittle v. Cook, 75 111. 354; Cogswell v. Stout, 32 N. J. Eq. 240; Howard Ins. Co. V. Halsey, 8 N. Y. 271 ; S. C. 59 Am. Dec. 478; Heaton v. Prather, 84 III. 330; Brown v. Simons, 44 N. H. 475; Meacbam v. Steele, 93 111. 135; Frick's Appeal, 101 Pa. St. 485; Guion v. Knapp, 6 Paige, 35; s. C. 29 Am. Dec. 741; Young v. Guy, 87 N. Y. 457; Small v. Stagg, 95 111. 39. ■• Brewster v. Carnes, 103 N. Y. 556; s. C. 5 Cent. Repr. 382;" 9 X. E. Eepr. 223; James v. Brown, 11 Mich. 25, cited in 1 Jones on Mort., §562, 259 Ch. 7. J THE EFFECT OF RECOED. [§164. notice of a subsequent mortgage — and the principle applies to a subsequent deed as welP — may, without receiving any- thing on tlie mortgage debt, release any portion of the mortgaged property to the mortgagor, without impairing his security upon the remainder of the whole mortgage debt; although if he had notice of a mortgage or sale of any part of the remaining property, he might be required to abate a proportionate part of the mortgage debt in order to protect the subsequent purchaser or mortgagee.^ The authorities, however, are not agreed in the a[)plication of the rule, and there are cases holding that the subsequent record is notice to the prior mortgagee.^ Thus, where the mortgage was to secure future advances, it was held to be effectual only from the time, or times, the advances were made, and I hat it was the duty of the mortgagees, before making advances under it to examine the records and see and more fully inl Dev. on Deeds, §715; Birnie v. Main. 29 Ark. 591; Deuster v. McCamus, 14 Wis. 509; Blair v. Ward, 10 X. J. Eq. 119; George v. Wood, 9 Allen, 80; Taylor v. Maris, 5 Eawle, 51; Halstead v. Bank of Ky., 4 J. J. Marsh. ,555; Leiby v. Wolf, 10 O. S3. 1 Cook V. Dillon, 9 Iowa, 407; Baldwin v. Thompson, 15 Iowa, 504, and cases above. 2 1 Jones on Mort., §562, citing cases above. Where the subsequent incumbrance is a mechanic's lien, the mere fact that the building was begun after the mortgage was given, and that the mortgagee knew this, is not suflBcient to charge him with knowledge of the lien. Ward v. Hague. 25 jST. J. Eq. 397; and see also. Brooks v. Lester, 36 Md. 65; Mcllvain v. Mutual, etc., Co., 93 Pa. St. 30. A knowledge of the facts that a part of the land mortgaged had been sold to a purchaser who had recorded his deed, taken actual possession and made improvements, held sufHcient to put the mortgagee upon in- quiry before releasing other parts of the whole tract. Dewey v. Inger- soll, 42 Micb. 17. See further as to actual notice, 1 Dev. on Deeds, §717; Hall V. Edwards, 43 Mich. 473; Gilbert v. Haire, Id. 283; Cogswell v. Stout, 32 N. J. Eq. 240; Cheever v. Fair, 5 Cal. 337. 3 1 Jones on Mort., §372; Parmentier v. Gillespie, 9 Barr, 86; Ter- Hoven v. Kerns, 2 Barr, 96; Spader v. Lawler, 17 O. St. 371 ; Bank's Appeal, 36 Pa. St. 170; s. c, sub nomine, Parker v. Jaooby. 3 Grant's Cas. 300; Stone v. Welling, 14 Mich. 514; Griffin v. Xew Jersey Oil Co., 11 N. J. Eq. 49; Frye v. Bank of 111., U HI. 367; Ketcham v. Wood, 22 Hun. 64; Boswell v. Goodwin, 31 Conn. 74; s. c. 12 Am. Law Keg. 79, and note citing most of the above cases. 260 Ch. 7.] THE EFFECT OF RECORD. [§165. whether liens of other parties had not attached in the meanwhile.^ §165. Priority in Registration. One object of the registry acts is to secure an early public record of conveyances and titles, and under their operation the priority which at common law a first pur- chaser acquired over any later one from the same grantor may be lost by a failure to register the earlier conveyance promptly, or within the statutory time. In this general sense priority of title under the registry system depends, except as it may be affected by actual notice, in a material degree upon priority of record. The leading design of reg- istry is to protect subsequent parties,^ not to confer addi- tional rights because of its being made. Eegistration is exacted as a condition upon which the common law priority of the first purchaser shall be retained, but equity will not suffer it to become a means whereby fraud shall be made more effectual, and hence a party having actual notice of another's rights cannot claim its protection as against those 1 Ladue v. Detroit & M. R. E., 13 Mich. 380; s. C. 87 Am. Dec. 759; Banli's Appeal, swpra ; 'McClure v. Komun, 52 Pa. St. 458; Spader v.. Lawler, 17 Ohio, 371. As to the inconveDience of requiring the mort- gagees to search the records before malcing each advance, the court, in the Michigan case ahove, say that in truth it is very slight. At each succeeding advance they have only to look back.to the date of the last advance, which would ordinarily be the work of but a few minutes, and much less inconvenience than they submit to in their usual business of lending money, in making inquiries as to the responsibility, the signa- tures and identity of parties to commercial paper. For fuller quotation of this decision, see 1 Jones on Mort., §372, note. As to the equities of subsequent lien holders, see Turner v. Phelps, 46 'I'ex. 251 ; Byler v. Johnson, 45 Tex. 509; Breedlove v. Ewing, Id. 47; Watson v. Spence, 20 Wend. 264; Haines v. Beach, 3 Johns. Ch. 459; Peto v.' Hammond, 29 Beav. 91; Turbeville v. Gibson, 5 Heisk. 374; Weathersbee v. Farrar, 90N". C. 106. If the mortgagee reserves an option, then each advance is a new mortgage; but if he is bound to advance, then they all relate back to the date of the instrument and have priority over subsequent liens. Tompkins v. Little Eock Ey. Co., 15 Fed. Eepr. 6; and see also, Eos- well V. Goodwin, 31 Conn. 74; s. C. 81 Am. Dec. 169; Tully v. Harloe, 35 Cal. 302; s. C. 95 Am. Dec. 102. 2 Wade on Notice, §102; 1 Jones on Mort., §576. 261 Ch. 7. J THE EFFECT OF RECORD. [§165. rio'hts.i In its seneral result of benefit and protection to the public, the system is equitable and beneficent in its op- eration; but the simple act of registry in compliance with the duty of giving notice, is not a matter of such intrinsic merit as can of itself justly lend any important advantage to the person making it. At an early day a court of equity denied any advantage whatever from priority in registra- tion to a party chargeable with actual notice of the prior adverse right at the time he purchased,^ and this rule has since been adhered to, although it seriously breaks in upon the symmetry of the registry system. The policy of ad- mitting proof of actual notice to affect the priority of reg- istry has been much questioned, because such course is at- tended with the dangers and uncertainties incident to parol evidence when used for the purpose of affecting written in- struments and disturbing titles.^ The doctrine, however, that actual notice shall be equivalent to registry in its ef- fect, is too deeply grounded in natural equity to be shaken ; and supported by both statute and decision, it now prevails in all the states except Louisiana, with very limited excep- tions elsewhere, relating principally to mortgages.* 1 Ante, §12; post, ch. ix; Patterson v. De La Konde, 8 Wall. 292: 2 Pom. Eq. Jur., §660. 2 LeNeve v. Le N^eve, 1 Ves. 64; s. C. 1 Amb. 436; Ford v. White, IG Beav. 120. The decision in the first case was put upon the ground of fraud. The fraud in that case, however, was only constructive, and the rule more properly rests upon the reason that as registry is designed to give notice, it can justly serve no purpose with reference to a party who ah-eady has the notice. 2 Pom. Eq. Jur., §665. 2 It has been much doubted whether courts ought ever to have suf- fered the question of notice to be agitated as against a party who has duly registered his conveyance; but they have said, "we cannot per- mit fraud to prevail." Wyatt v. Barwell, 19 Ves. 435; and see post, ch. ix; 2 Lead. Eq. Cases (White & Tudor, 4th Am. ed.), 109 et seq. The courts, it is said, are not disposed to push the doctrine by construction further than it has been already carried. Vice-Chan. Wio-ram, in Weet V. Eeid, 2 Hare, 260. " * In Arlcansas, a mortgage recorded on a bad acknowledgment creates no lien against a third party, although he have actual notice of the mortgage. Dodd v. Parkes, 40 Ark. 526 ; Fry v. Martin, 33 Ark. 203 ; Ark. Dig. (1874), §§4287-8. So, in several other states, by the terras of whose statutes record is made essential to the validity of the mortgage. 262 Ch. 7.] THE EFFECT OF EECOKD. [§166. §166. Priority in the Record of Conveyances from Same Grantor. One result growing out of the establishment of the regis- try system has been the creation, in favor of a subsequent purchaser, of an equity that did not before exist. Prior to that time there was no obligation on the part of a pur- chaser to spread his conveyance on the publie records, ^ and no equity could therefore arise in favor of a subsequent pur- chaser by reason of this not having been done. But after the requirement of law that registration should be made, a subsequent purchaser who found upon the records no con- veyance of the property from his grantor, had in reason and equity, as well as law, a right to conclude, unless he had ac- tual notice to the contrary, that no such conveyance had been made, and that he might buy with safety. When, in such case, a prior conveyance has been made but not re- corded, the equities of the subsequent purchaser exist by reason of the ladies of the first, and they attach as soon as he has parted with a valuable consideration on the faith of the unincumbered record.^ His rights in the premises, whether considered as legal or equitable, cannot justly be Home Build. Ass'n v. Clark, 43 O. St. 427; Bercaw v. Cockerill, 20 O. St. 163; Mayham v. Coombs, 14 Ohio, 428; Robinson v. Willoughby, 70- 'S. C. 358; Fleming v. Berlin, 2 Ired. Eq. .584; Sturgess v. Bank, 8 Mc- Lean, 140: Leggett v. Bullock, Busb. 283; Bank v. M'fng Co., 96 N. C. 298; s. C, 3 S. E. Kepr. 363; post, §217; Bird v. Wilkinson, 4 Leigh, 266; Moore v. Thomas, 1 Or. 201. Under N. Y. Rev. Stats., p. 738, §137, which declares that grants in lee ol freehold estates shall not take effect as against purchasers and incumbrancers until acknowledged and attested, a subsequent purchaser takes the title as against a prior deed not acknowledged and attested, even though he have actual notice of it, and regardless ot the purpose or consideration of the second deed. Chamberlain v. Spargur^ 86 N. Y. 603; s. C. 22 Hun. 437; Nellis v. Munson, 108 N. Y. 453, 457. Under the statutes of Louisiana reooi-d is, as against third persons, •essential to the validity of deeds, and the doctrine of actual notice is not recognized. McCoy v. Rhodes, 11 How. (U. S.), 131; Harang v. Platts- mier, 21 La. Ann. 426 ; Tulane v. Levison, 2 Id. 787 ; Payne v. Pavey, 29 Id. 116; Berwin v. Weiss, 28 Id. 363. 1 Ante, §1; Clarke v. White, 12 Pet. 178. 2 Boggs v. Varner, 6 Watts & S. 469, 474; Brownbaok v. Ozias, 117 Pa. St. 87, 93; S. C. 11 Atl. Kepr. 30; 9 Cent. Repr. 554. 263 Ch. 7.] THE EFFECT OF RECORD. [§166, taken from him by the bare fact of the record of the prioi conveyance being then made ahead of his own, although some of the statutes permit this to be done. An earlier record by the first purchaser is, under these circumstances, entitled to no such reward, although the rule might be jus- tified to some extent in a case where there had been un- reasonable delay in recording on the part of the subsequent purchaser. The statutes of abmt one third of the states,^ aiming perhaps at the encouragement of early registration in general,^ make the rights of the subsequent purchaser dependent upon his obtaining the prior record; but where this is not the letter of the law, or a necessary result of its terms, such a rule does not obtain, and priority of record will not defeat the rights of the subsequent purchaser who has bought in good faith and for valuable consideration.* 1 Ante, §13, note. In several states the statutes neither require that the subsequent conveyance shall be first recorded, nor do they in terms declare an unrecorded conveyance void as against a subsequent pur- chaser in good faith. In Connecticut and Vermont, for instance, the statutes provide only that, until recorded, the conveyance shall not be effectual to pass title except as against the grantor and his heirs; while in North Carolina the act merely prescribes that conveyances shall be recorded withiu two years. Wherever, under the terms of the statute, actual notice is of no effect whatever, priority of record is of necessity the only criterion by which, under the operation of the registry acts, priority of right can be determined. This is the case in Louisiana; and also as to mortgages, in Arkansas, North Carolina and Ohio, under stat- utes separate Ironi those relating to the registry of the deeds. So wherever, under the terms of these exceptional statutes, registry is made essential to title passing, it may be contended to better advantage that the subsequent deed must be first recorded in order to give it the effect of priority. See, however, Wheaton v. Dyer, In Conn.' 307. 2 This is the reason assigned by Mr. Sugden for the rule in England; but it may be observed that In some states, as Pennsylvania and Geor- gia, where the statutes follow the English rule, early registration does not seem to be a very special object of the statutes, since they allow six and twelve mouths for registry. 3 Ante, §§13-15; Steele v. Spenoe. 1 Pet. 552; Coster's Executors v. Bank of Ga., 24 Ala. 37; Kanney v. Hogan, 1 Tex. Un. Cas. 253; Cole- man v. Barklew, 3 Dutch. 357; De Courcey v. Collins, 21 N". J. Eq. 367; Sanborn v. Adair, 29 N. J. Eq. 338; Northrup v. Bremer, 8 Ohio, 392; Hawley v. Bennett, 5 Paige, 104; Jackson v. Center, 19 Johns. 281. See also, McGuire v. Barker, 61 Ga. 339; Chaffe v. Halpin, 62 Miss. 1; Bennett v. Fowkes, 1 Neb. 465; Gai-dner v. Early, 72 Iowa, 518; s. C. 34 264 Ch. 7.1 THE EFFECT OF RECORD. [§166. Our text writers, in discussing the law of priority, have usually stated the propositions on this subject in such gen- eral terms as seem to make priority of title in all cases where the purchaser is not chargeable with actual notice, dependent entirely on priority of record. ^ JSr. W. Kepr. 311; Byrd v. Wilcox, 8 Baxt. 65, 68; Tabor v. Sullivan (Colo.), 20 Pao. Repr. 437; Swiojert v. Bank of Ky., 17 B. Men. 268. In cases decided under statutes making the rights of the subsequent purchaser dependent on priority of record, it is admitted that but for the statute the rule would be different, and as stated iu the text. Fallass V. Pierce, 30 Wis. 443; Galway v. Malchow, 7 Neb. 285. In some of the slates, as between an attachment or judgment cred- itor and the grantee in an unrecorded deed, the former is preferred. MoFadden y. Worthington, 45 III. 362; Martin v. Dry den, 1 Gilm. 187; post, §§193-196. But where the statute gives priority to the deed first recorded, the creditor's preference must be secured by the earlier rec- ord of a deed based on the judgment or attachment. Harrall v. Gray, 10 Neb. 186; s. C. 4 N. W. Repr. 1040; Hoag v. Howard, 55 Cal. 504. ^ Thus, by Mr. Devlin : '-Priority of title is determined, aside from the question of notice, by priority of record. The conveyance which is first recorded takes precedence, although it may not have been the deed first executed." 1 Dev. on Deeds, §626. Thus, by Mr. Wade: "Under statutes which prescribe no time within which instruments may be recorded, the courts have generally regarded the first recorded of two instruments as the one entitled to precedence." Wade on Notice, §256. He immediately proceeds to criticize, however, for the want of any equity, a case wherein an Ohio mortgage, taken with notice, was given preference under the statute, because of priority of record. Anketel v. Converse, 17 O. St. 11. By Mr. Jones: "A junior mortgage, duly recorded, without notice of a prior unrecorded mortgage, has precedence of it; in other words, the mortgages take precedence in the order of record." 1 Jones on Mort., §558. By Mr. Pomeroy: "The right created by a prior unrecorded instru- ment is generally regarded as tantamount to an equitable interest which may, therefore, be cut off by a subsequent purchaser who is in all re- spects bona fide, and, who has also obtained the first record." 2 Eq. Jur., §758. In Sanborn v. Adair, 29 N. J. Eq. 338, the reasoning of the court in favor of the rule as given in the text is quite full. The law, it is stated, «ays that by failure to have the deed recorded in fifteen days, it shall be void and of no effect against the subsequent deed, or mortgage, or judg- ment, and in that condition It must] remain-. The contrary interpreta- tion would interpolate In the act the words, "unless it is recorded before the subsequent deed is recorded, priority of registry maintains priority of lien as to mortgages, but as to deeds the rule is different. The statute as to deeds and mortgages was the same in Den v. Rich- man, 1 Green, 43." So, in De Courcey v. Collins, 21 N. J. Eq. 857, it is said that the statute prescribes but a single condition to give the second '265 Ch. 7. J THE EFFECT OF RECORD. [§167. §167. Priority— Continued. Priority will not, as already stated, protect any but a bona fide purchaser.' Where the statute allows a given time within which conveyances may be recorded, the prior record of the later instrument will be of no avail if the first be then recorded within its statutory time, as the sub- bequent record in such case relates back to the execution of the conveyance.^ Where, under such statute, neither of two deeds of the same property by the same grantor was recorded within its statutory period, it was held that the prior record of the junior purchaser's deed was of no avail because it was not notice to the first purchaser; and also that he was without equity because the date of his purchase chanced to fall within the year allowed for the record of the first deed.^ The want of law and equity, however, seems to be in this decision rather than in the junior purchaser's case.* A simultaneous conveyance is not a subsequent con- veyance. Hence, where two simultaneous mortgages are made under an agreement that they shall be equal liens, the instrument priority over the first one not registered, tiiz; bona fides in the party talking it; and it is not competent for the courts to require prior- ity of record as a second condition. "There is nothing," said Justice A. S. Wallser, in Ranney v. Hogan, 1 Tex. Un. Cas. 257, "in the terms of the law, nor in any decisions upon it. which countenances the view that the unregistered deed, declared by the statute void as to such purchaser, can be validated as against him by securing its earlier registration." See ante, §§13-15. 1 Vance v. Masterson, 3 Humph. 619; Bledsoe v. Rogers, 3 Sneed, 466; Wyatt V. Elam. 19 Ga. 835; Mitchell v. Aten, 37 Kan. 33; s. C. 1 Am. St. Rep. 231 ; U Fac. Repr. 530; Smith v. Yulee, 31 Cal. 180; s. C. 89 Am. Dec. 1G7. 2 Den V. Richinan, 13 N. J. L. (1 Green), 43; and see ante, §132; Vreeland v. Clafliii, 24 N. J. Eq. 313. 3 Martin v. Williams, 27 Ga. 406. ■> See ante, §133, and cases there cited, also Lightner v. Mooney, 10 Watts, 407; Souder v. Morrow, 33 Pa. St. 83, and Northrup v. Bremer, 8 Ohio, 393, holding that in such case the prior record of the second deed gives it preference. A provision in the California Code, repealed in 1874, which allowed the griintee one day for every twenty miles between his residence and the recording office for recording his deed, was held subject to the pro- vision that the conveyance first recorded had precedence. Odd Fellows Bank v. Banton, 46 Cal. 603. 266 Ch. 7. J THE EFFECT OF RECORD. [§168. prior record of one gives it no preference over the other under a statute declaring an unrecorded conveyance void as against a subsequent conveyance first recorded, even thouch the recorded mortgage has been transferred to a purchaser without notice of the agreement.^ •s §168. Conveyances and Records of Same Date. In Virginia it is enacted by statute that of two conflicting deeds of the same property executed on the same day, the one first recorded has preference;^ and this rule obtains generally in the absence of such statute. ^ Of course the second deed must have been taken without actual notice of the first; &nd as. laches in not recording cannot in this in- stance be attributed to the first purchaser, the equities of the parties are equal and the law should prevail. In cases of this kind fractions of a day v/ill be taken into consider- ation ;* and where there is a question as to which of two in- struments deposited for record on the same day was first filed, parol evidence will be admitted to determine it.^ Where two mortgages executed at different dates are re- corded on the same day, and there is nothing to show which was in fact first recorded, it has been held that the presump- tion of law is that the recording of them was concurrent, and each party stands charged with notice of the equities of the other on that day, at the same moment. In such case • 1 Greene v. Warnick, 64 N". Y. 220, reversing Greene v. Deal, 4 Hun. 703. But see to the effect that a bona fide assignee ma/ obtain priority by his earliest record. Corning v. Murray, 3 Barb. G.52. 2 Code (1873), ch. 114, §9; Code of Va. (1887), §2469. 3 Stebl)ins v. Duncan, 108 U. S. 32; Coleman v. Carhart, 74 Ga. 392; Brooktield v. Goodrich, 32 111. 363. See Koevenig v. Schmitz, 71 Iowa, 175; s. c. 32 X. VV. Kepr. 320. i Wood V. Lordier (Ind.), 18 N. E. Repr. 34; Gibson v. Keyes, 112 Ind. 568; S. C. 14 N". E. Repr. 591; 12 "West. Repr. 182; Lemon v. Staats, 1 Cow. 592. See Hunt v. Dunn, 74 Ga. 120. ^ Spauldingv. Scanlan,6B. Mon. 363. Where neither of two recorded deeds was entitled to registration because of defective acknowledgment, it was held that the effect of a validating statute passed subsequently, was to record both deeds at the same instant of time, and hence left them to operate as at common law. by which the one first executed would pass the title. Deininger v. McConnell, 41 111. 228. 267 Ch. 7. J THE EFFECT OF EECORD. [§168. the one prior in its execution has been treated as having the superior equity. ^ As between liens executed and recorded on the same day, priority by a few hours in the execution or recording of the one will, in some instances, be subordi- nated to the superior equity of the other. ^ 1 Houfes V. SohuUze, 2 Bradw. (111.), 196; s. C. 11 Chicago Leg. N". 75; 1 Jones Mort., §566. But see Powers v. Lafler, 73 Iowa, 283, in nest note. 2 As where the lien last recorded is to secure purchase money due on the property. Thus, a trust deed was given to the vendor to secure a balance of purchase money, and was recorded on the same day with the deed from the vendor, but a few hours after the record of another deed of trust on the property given by the vendee to one who furnished the money to make the cash payment, and it was held that the one to the vendor had the prior lien. Rogers v. Tucker, 94 Mo. 346; s. C. 7 S. W. Kepr. 414. Jl'wo mortgages', each taken without notice of the other, were de- livered by the mortgagor by handing them to the clerk for record, first one and immediately the other, without any statement that it was in- tended thereby to give one precedence over the other. Held a simul- taneous delivery, and that it was immaterial which mortgage was ex- ecuted first, and that one of them wiis given to secure purchase money due on the premises. Koevenig v. Schmitz, 71 Iowa, 175; s. C. 32 If. W. Eepr. 320. Where a mortgage and a judgment against the mortgagor were en- tered of record on the same day, it was held that prima facie they would be treated as taking effect simultaneously; but a verbal agree- ment between the parties that the mortgage was to have precedence as notice would be "binding upon them, but not upon a feona flde assignee of the judgment. Hendrickson's Appeal, 24 Pa. St. 363. Both of two mortgages were executed the same day, but defendant's first; both were recorded the next day, but plaintiff's first. Plaintiff's mortgage was taken with notice to the mortgagee therein, plaintiff's as- signor, of defendant's senior mortgage, and with intent to give such mortgagee a fraudulent prior lien. After both were recorded, and be- fore plaintiff's mortgage became due, he purchased it for value, in good faith and without actual notice of the prior execution of defendant's mortgage. Held, that as both mortgages bore the same date, there was nothing in the record to charge plaintiff with constructive notice of the prior execution of defendant's mortgage, and that plaintiff was entitled to priority. Powers v. Lafler, 73 Iowa, 283, distinguishing English v. Waples, 13 Iowa, 57, and Sims v. Hammond, 33 Id. 368. It is also inti- mated that English v. Waples conflicts with Vandercook v. Baker, 48 Iowa, 199, and is not entirely sound. If the statute gives precedence to priority of record, and recognizes fractions of a day in requiring the recorder to note the hour and minute of the filing for record, priority as between mortgages executed and re- corded on the same day would depend on priority of record. If the statute give no preference to priority of record, then, under the de- 268 Ch. 7.] THE EFFECT OF RECORD. [§169. §169. Priority in Record of Liens. Liens exist under sucli a variety of circumstances that priority between them is determined by quite a number of considerations, including, in some instances, priority of record, even in states whose statutes do not make the precedence given to a subsequent conveyance dependent on its prior registration. ^ Thus it is held in Texas that as between a mortgage on land, and a judgment rendered in a county other than that wherein the land is, priority of lien will be determined by priority of registration in the county where the land lies.^ In some of the states, as between a judgment or attaching creditor and the grantee in an unre- corded conveyance, the former is preferred;' but in Ne- braska, under a statute providing that unrecorded deeds are void as to all creditors aud subsequent purchasers in good faith "whose deeds, mortgages or other instruments shall be first recorded," it is held that the judgment lien of a creditor having no insb-ument first recorded, extends only to the actual interest of the debtor in the land, and is subordi- nate to an unrecorded deed.* A statutory sheriff's certifi- cate of sale will answer for an instrument.' Where a dif- cisions cited ante, §§13-15, 166, it would seem that the equities of the second purchaser would be at least equal to those of the first. 1 As to priorities with reference to mechanics' liens, see ante, §45; Stuyvesant V. Browning, 33 N. Y. 203; judgment and attachment liens, §§42-^4. In Kansas a mortgage executed before, but not recorded un- til after, the levy of an attachment takes priority, though the creditor bad no notice of it. K". W. Oo. v. Mahaffey, 36 Kan. 152; s. c. 12 Pac. Eepr. 705. ^ Firebuugh v. Ward, 51 Tex. 409. Where there has been a sale of real estate by an insolvent debtor for tbe purpose of defrauding his creditors, and the fraudulent grantee has conveyed the premises to an innocent grantee for value, as between creditors of the debtor and the innocent purchaser, the law will favor the most vigilant. Chouteau v. Jones, 11 111. 300. 3 Martin v. Dryden, 1 Gilm. 187; Massey v. Wescott, 40 111. 160; Mo- Fadden v. Worthington, 45 111. 362; Richeson v. Kicheson, 2 Gratt. 497. Seeposf, §§192, 196; 2 Pom. Eq. Jur., §721, and numerous cases there cited; Stevenson v. Texas, 15 Otto, 703. •• Galway v. Malchow, 7 Neb. 285; Harrell v. Gray, 10 Neb. 186; s. C. 4^". W. Repr. 1040. « McMurtrie v. Riddell, 9 Colo. 497; s. C. 13 Pac. Repr. 181; Hazard V. Cole, 1 Idaho, 276. 269 Ch. 7. J THE EFFECT OF KECOED. [§169. ferent lien is substituted for one already recorded, the ques- tion frequently arises as to whether the precedence of the first lien is lost as against an intervening recorded lien. This depends to such an extent upon both the intent of the par- ties and-the mode in which it is consummated, that it is dif- ficult if not impossible to formulate any general rule on the subject.! The matter is illustrated by the cases in the foot notes. ^ Purchase money mortgages frequently present in- 1 2 Pom. Eq. Jur., §719. A mortgage given to correct a misdescrip- tion of the land in a former one, was held to have priority over an in- tervening mortgage. Clark v. Ballard, 66 Iowa, 747, and see also. Council Bluffs v. Billups, 67 Id. 674. So, where an existing vendor's lien was subsequently changed into a mortgage lien, the mortgage was given priority over an intervening mechanic's lien. Thorpe v. Durbon, 45 Iowa, 192. A. having repaid a portion of borrowed money due to B., the mort- gage securing the loan was released, and A. then executed to B. a new mortgage to secure the balance. On the same day A. obtained a loan from C, and executed to him a mortgage on the same property; the ex- ecution of C.'s mortgage being about three hours later than that of the new one to B. But the release and the mortgage to C. were recorded two hours earlier than B.'s new mortgage. The statute gave prece- dence to the mortgage first recorded, and G. 'shaving been taken without actual notice of the new one, had priority. Swartz v. Chickering, .58 Md. 290; and see, to same effect. Smith v. Lowry, 113 Ind. 37; s. 0. 15 N. E. Repr. 17; Burke v. Abbott, 103 Ind. 1; s. c. 57 Am. Kep. 474; 1 N. E. Eepr. 486. 2 A. loaned money to B. to take up a mortgage owned by C, and took a mortgage from B. for the money loaned, not linowing of a "judgment lien against the land second to the mortgage, but duly of record. Held that A. could not afterwards be subrogated to the rights of C, so as to have priority over the judgment. Mather v. Jenswold, 72 Iowa, 550; s. C. 32 N. W. Repr. 331, citing Warner v. Waterloo, 62 Iowa, 699; s. c. 14 N. W. Eepr. 331. So, where K. paid off and discharged the first and second of three successive mortgages, a new mortgage to him for their amount did not obtain priority over the third one. Kitohell v. Mudgett, 37 Mich. 81 ; and for case where priority of lien was denied to a new mortgage given as a substitute for a former one, see Smith v. Bynum, 92 X. C. 108. But where a mortgage Hen existed which was prior to a judgment lien on the same land, and the mortgagee, not knowing of the judgment lien, permitted the mortgage to be taken up and a new one given in its stead, embracing a further advance, it was held'that the substitute mort- gage, to the amount of the former one, was but a renewal and entitled to priority. Young v. Shauer, 73 Iowa, 555; s. C. 5 Am. St. Bep. 701; citing Bruce v. Nelson, 35 Iowa, 157, and distinguishingMather v. Jens- wold, supra; Warner v. Waterloo, siipra; Weidner v. Thompson. 69 270 Ct- 7. J THE EFFECT OF RECORD. [§170. stances in which a substituted mortgage is allowed the prior- ity of the former one for which it is a substitute.^ By the common law the priority of liens, whether by judgment or mortgage, is governed exclusively by the date of then- ac- quisition; the first in order of time standing first in rank.^ This order may be controlled by contract, or by a statutory priority in registry, and sometimes by the application of the rule that equality is equity.* Where the registry act gives priority and a junior mortgage is first recorded, the burden of proof is on the older mortgagee to show that such junior mortgagee had actual notice of his prior mortgage.* §170. Priority in Record of Mortgages. A mortgage is a conveyance, and a mortgagee is a pur- chaser,^ and the law as to priority of record, in its general Iowa, 36; s. c. 28 N. W. Kepr. 422, and Goodyear v. Goodyear, 72 Id. 329; s. C. 33 N. W. Repr. 142, as being cases in which the parties seeli- ing to revive satisfied mortgages were neittier the mortgagees nor their assignees, but purchasers of the mortgaged property, or persons who sought to be subrogated to the rights of the mortgagees by reason of having paid the mortgages. See for other cases, Eggeman v. Eggeman, 37 Mich. 436; Hendrickson's Appeal, 24 Pa. St. 363; Trader's iSanlj v. Woodlawn Co., 100 N. G. 345; 5 S. E. Repr. 81 ; BanlJ v. Manufacturing Co., 96 N. C. 298; 3 S. E. Repr. 363; Code of N. C, §§1254, 1271; Smith V. Lowry, 113 Ind. 37; Burke v. Abbott, 103 Ind. 1 ; s. C. 57 Am. Rep. i74. ' Seepos«, §172; Curtis v. Root, 20111. 53; Austin v. Underwood, 37 111. 438; Jacksoo v. Austin, 15 .Johns. 477; Adams v. Hill, 29 N. H. 202. In Georgia, a judgment rendered before a mortgage is recorded on a debt older than the date of the mortgage, has the superior lien, though the mortgage may have been foreclosed when the judgment was ren- dered. Richards v. Myers, 63 Ga. 762. A mortgagee waives any claim to priority by agreeing with the mort- gagor to withhold his mortgage from record to enable the mortgagor to get further credit. Hendrickson v.WooUey, 39N. J. Eq. (12 Stew), 307. 2 Westervelt v. Voorhis, 42 N. J. Eq. 179; s. C. 6 Atl. Repr. 665; Deiningef v. McConnell. 41 111. 228. s Shields v. Dyer, 86 Tenu. 41, 44; s. c. 5 S. W. Repr. 439, citing Christian v. Clark, 10 Lea. 630. ■" Hendrickson v. Woolley, 39 N. J. Eq. (12 Stew.), 307; and see Gardner v. Early, 72 Iowa, 618; s. C. 34 :N^. W. Repr. 311. « Post, §209; Schell V. Stein, 76 Pa. St. 398; S. C. 18 Am. Rep. 416; Coster's Executors v. Bank of Ga., 24 Ala. 37; Westbrook v. Gleason, 79 N. Y. 23; 2 Pom. Eq. Jur., §721, last note; Pargason v. Edrington, 49 Ark. 207, 214; Gilchrist v. Gough, 63 Ind. 576; s. c. 30 Am. Rep. 250. 271 Ch. 7. J THE EFFECT OF RECORD. [§170. principle, applies to mortgages as well as to deeds. Fre- quently, however, the characteristics of mortgages, and the equities pertaining to them, are such, as where they are simultaneous, or given to secure purchase money, or pre- existing debts, and the like, that priority in their registra- tion is often given or denied effect according to the circum- stances and equities of particular cases and classes of mort- gages. ^ Resting in part on the ground that a simultaneous conveyance is not a subsequent conveyance, and partly on the equities of the matter, is the rule that the recording acts have, primarily, no application to mortgages executed and recorded simultaneously. ^ If two mortgages on the same land be given at the same time to the same person, it is held that an earlier record of one will not give it any precedence over the other, even as between assignees. The original holder, of necessity, has notice of both mortgages, and in the hands of different assignees they are held to be concur- rent liens, payable ratably if necessary.^ If both of two mortgages of the same property, or either of them, contain a stipulation that they are to be simultaneous, or a state- ment that they are to be equal liens, or that both were i Vredenburg v. Burnet, 31 N. J. Eq. 229; Trustees v. Fenno, 67 Iowa, 244; s. c. 2.t N. W. Eepr. 152. A recorded mortage, although to secure a pre-esistino; debt, held to take over an unrecorded one given to secure payment for machinery furnished in the construction of a mill on the premises, the mortgagee in the recorded mortgage havino- no notice of the other oae. Hayner v. Eberheart, 37 Kan. 308; s. c. 15 Pac. Eepr. 168. For other instances, see cases in the notes to the next preceding section. ' IJones onMort., §566; Greene v. Warnick, 64 N. Y. 220; Stafford v. Van Rensselaer, 9 Cow. 316; Purdy v. Huntington, 42 N Y 334- s. C. 1 Am. St. Rep. 532. " " ' Where two mortgages are of even date and intended to be simultane- ous, but recorded on different days, the fact that the one recorded on tbe later day bore an acknowledgment of an earlier date, does not show that it was intended to be the prior security. Gausen' v "Xom- liuson, 23 N J. Eq. 405. 3 Collerd v. Huson, 34 N. J. Eq. (7 Stew.) , 38 ; Gausen v. Tomlinson, supra; Howard v. Chase, 104 Mass. 249 ; Vredenburg v. Burnet. 31 N. J. Eq. (4 Stew.), 229. See Powers v. Lafler, 73 Iowa, 283; Greene v! Deal, 4 Hun. 703. 272 Ch. 7. J THE EFFECT OF RECORD. [§171. given for purchase money, then the earher record of the one will give it no priority either in the hands of the mort- gagee or of an assignee. ^ But where simultaneous mort- gages are given to different persons as parts of the same transaction, each having notice of the other, their priorities, as between the mortgagees, will depend upon the equities pertaining to them without reference to the order of their registry.^ If, however, one of these mortgages be assigned to a purchaser for value and without notice, he may, by ob- taining the earliest record, secure priority over the other which has intrinsically a superior equity.^ §171. Record of Mortgages— Continued. ^Yhere a recorded deed in one's chain of title shows that such deed was made subject to a mortgage speciiled therein, a subsequent purchaser is put on inquiry as to the condi- tion of the mortgage, and takes subject to it.* Delay in fil- 1 Greene V. Warnick, 64 jST. Y. 220; Westbrook v. Gleasoii, 79 N. Y. 23, citing to the effect that priority of mortgages may depend upon aoreement, irrespective of priority of record. Jones v. Phelps, 2 Barb. Cb. 440; Freeman V. Schroeder, 43 Barb. 618; and see also. Shields v. Dyer, 86 Tenn. 41, 44; Christian v. Clark, 10 Lea, 630; Hendrickson v. "Woolley, 39 N. J. Eq. (11 Stew.), 307; Corbiu v. Kincaid, 33 Kan. 649; .S. C. 7 Pac. Repr. 145; Mut. Loan Co. v. Elwell, 38 N. J. Eq. 18. 2 Pomeroy v. Latting, 15 Gray, 435; Khodes v. Canfield, 8 Paige, 645; Sparks v. State Bank, 7 Blackf. 469; Jones v. Phelps, supra; Jones on Mort., §567. 8 Corning v. Murr.ay, 3 Barb. 652; Decker v. Boice, 19 Hun. 152; Powers V. Lafler, 73 Iowa, 283. Where the same attorney executes a second mortgage of the same property to a different person, and it is first recorded, it is entitled to priority over the former one. Hope v. Camberllng, 1 Hiin. 571; Du- senbury v. Hurlbut, 59 jST. Y. 541. The priority of mortgages may be determined by agreement of the parties. Corbin v. Kincaid, 33 Kan. 649; s. c. 7. Pac. Repr. 145. A mortgage to secure future advances is enforceable only for the amount advanced. Vogan v. Caminette, 65 Cal. 438; and the lien attaches only from the time the advances, and each of them, are actually made. Nicklin v. Betts, 11 Or. 406; S. C. 50 Am. Rep. 477; 5 Pac. Repr. 51; Morris v. Cain, 39 La. Ann. 712; s. C. 2 South. Repr. 418; ante, §164. ■1 Smith V. Lowry, 113 Ind. 37; Hull v. Sullivan, 63 Ga. 126; Lowry -V. Smith, 97 Ind. 466; Singer v. Scheible, 109 Ind. 575; s. C. 10 N. E. Repr. 616; Stockwell v. Stockwell, 101 Ind. 1; Coe v. Ry. Co., 10 O. St. 572; Council Bluffs V. BiUups, 67 Iowa, 674; s. C. 25 N. W. Repr. 846; (18— Reg. of Title.) 273 Ch. 7. J THE EFFECT OF RECOED. [§171. ins a mortsaffe for record, though it be for as much as six or seven years, is not, in itself alone, a fraud upon subse- quent creditors such as to postpone it to their judgments ;i nor will delay in foreclosure give any rights to subsequent purchasers from the mortgagor.^ Where a mortgage is re- corded, such record is notice to the world, and silence of the mortgagee, or neglect on his part to give personal notice of it, is not such laches as will preclude him from asserting it against a subsequent purchaser without notice. ^ If, how- ever, such mortgagee be guilty of positive and intentional fraud or misrepresentation such as operates to the injury of the subsequent purchaser, he will be estopped thereby.* If the mortgage as copied on the record does not disclose the rate of interest, it is a lien as against third parties for only the legal rate, although a higher rate be really stipulated in the instrument or by parol agreement.^ A subsequent pur- chaser or mortgagee has the right to redeem a prior mort- gage according to its terms ; and hence a subsequent agree- ment between the mortgagor and the first mortgagee, changing the rate of interest or extending the time, is not ^tna Life Ins. Co. v. Bishop, 69 Iowa, 645; Howard i. Chase, 104 Mass. 249. 1 Thomas v. Kelsey, 30 Barb. 288. 2 Fry V. Schee, 55 Ga. 210; Dicli v. Balch, 8 Pet. 30; N. T. Life Ins. ■ Co. V. Covert, 6 Abb. N. S. 154. s Clabaugh v. Byerly. 7 Gill. 354: Rice v. Dewy, 54 Barb. 455; Dick V. Balch, suimi; Story Eq. .Jur.. §391; 1 Jones on Mort., §603, citing Paine v. French, 4 Ohio, 318; Brinckerhoff v. Lansing, 4 Johns. Ch. 65; Palmer v. Palmer, 48 Vt. 69; Marston v. Brackett, 9 N. H. 336. 4 Piatt v. Squire, 12 Mete. 494; Mitchell v. Aten, 37 Kan. 33; s. 0. 14 Pac. Repr. 530; 1 Am. St. Eep. 231; Broome v. Beers, 6 Conn. 198; Fay V. Valentine, 12 Pick. 40; Stafford v. Ballou, 17 Vt. 329; Chester v. Greer, 5 Humph. 26; Miller v. Bingham, 29 Vt. 82, and authorities in last note above. So, if a mortgagee, having actual notice of a second mortgage, releases part of the mortgaged premises without receiving payment of any part of his debt, to the extent of the injury done by such release, he is postponed to the second mortgage. Bailey v. Gould.Walk. (Mich.), 478. 5 Meighen v. Strong, 6 Minn. 177; Taylor v. Atlantic Ey. Co., 55 How. Pr. 275; Whitacre v. Fuller, 5 Minn. 508. 274 Ch- 7. J THE EFFECT OF RECORD. [§171. binding upon the property as against such right unless duly executed and recorded. i Where a creditor fails to have his mortgage recorded, and thereby loses his priority over other creditors, he can, as a rule, have no relief in equity. ^ Under the operation of the recording acts the doctrine of tacking has no application in this country.^ 1 Gardner v. Emerson, 40 111. 296; Davis v. Jewett, 3 Greene, 226; Bassett v. McDonald, 13 Wis. 444; St. Andrews Church v. Tompkins, 7 Johns. Ch. 14; 1 Jones onMort., §§361, 564, 56.5. An agreement for an extension duly recorded, but which does not ideiitify the mortgage by any sufficient reference to it, is ineffectual against a subsequent purchaser without actual notice of it. Basselt v. Hathaway. 9 Mich. 28. Reference to a schedule attached to another mortgage recorded in the same ofHce, held sufficient. Newman v. Tymeson, ]3 Wis. 172; s. C. 80 Am. Deo. 735. 2 Kurtz v. Hollingshead, 3 Cranch C. Ct. 68. 3 1 Lead. JEq. Gas. (White & Tudor), 855, note to Marsh v. Lee, 2 Vent. 337. In 'Sew York a mortgage for past indebtedness takes precedence over one for future indebtedness, if taken without notice and first recorded. Genesee Nat. Bank v. Whitney, 103 U. S. 99. ■Unless the mortgage state the amount of the indebtedness secured, its record will not be constructive notice. Bullock v. Battenhousen, 108 111. 28. Where the amount was stated, but it was further stated to be subject to a credit, without giving the amount of the credit, a junior mortgagee was preferred. Morris v. Murray. 82 Ky. 36 ; Gen. Stats, of Ky. ch. 43, §24. In recording a mortgage to secure six notes the recital of one was omitted, but the aggregate amount of all six was correctly given, and it was held sufficient. Dargiu v. Becker, 10 Iowa, 571 ; and see Youngs v. Wilson, 27 N. Y. 351 ; Dimon v. Dunn, 15 N. Y. 498. An unrecorded mortgage given by an ancestor retains its priority over a judgment recovered against the heir-at-law during the lifetime of the ancestor, although the judgment creditor had no notice of the mortgage when he recovered the judgment. The registry law applies only where the interests of subsequent judgment creditors, mortgagees and purchasers can, at the time they act, be affected by want of notice. Voorhis v. Westervelt, 43 N. J. Eq. 642; s. C. 3 Am. St. Eep. 315; s. c. 12At.JKepr. 533. Where a first mortgagee advances money to save a crop, in excess of the amount secured by his mortgage, he is not entitled to such amount to the exclusion of a second recorded mortgage; the record being held notice to him. Weathersbee v. Farrar, 90 N. C. 106. Where a new mortgage was given as a substitute for an existing one, the priority of the lieu was held to be lost as against a purchaser of the property prior to the new mortgage. Smith v. Bynum, 92 N. 0. 108. 275 Ch. 7. ] THE EFFECT OF RECORD. [§172. §172. Purcliase Money Mortgages. Morto-ases given to secure unpaid purchase money have an intrinsic superiority over other hens and claims agauist the property in the hands of the vendee. ^ In a number of states the statutes expressly give them precedence over judgments and other debts of the mortgagor. ^ The courtis, however, have usually done this without the aid of the stat- ute.3 The theory upon which they have excluded the inter- vention of other liens and claims is that where, at the same time the deed is given there is a mortgage back by the ven- dee, the transactions are simultaneous, and there is but an instantaneous seizin in the purchaser, the title merely pass- ing through him to the mortgagee.* Where there is an interval of time between the deed and the mortgage back, the preference is lost and a judgment lien against the ven- dee or other claimant will attach. ^ The preference in favor 1 2 Pom. Eq. Jur., §725; Jacoby v. Crowe, 36 Minn. 93; 1 Jones on Mort., §§4ti4-i66. 2 Rev. Code of Miss., 1P80, §1205; Lahr's Appeal, 90 Pa. St. 507; Eies V. Ludington, 13 Wis. 276; s. C. 80 Am. Dec. 741; Tannerv. Bell. 61 Ga. 584; and statutes of Delaware, Xorth Carolina, Maryland, Kansas, New Jersey, Indiana and New Yorli:. In Georgia, prior to the act to this effect, dower had preference to a purchase money mortgage. AVilsonv. Peeples, 61 Ga. 218; and even under the statute such mortgage yields to a mechanic's lien. Tanner v. Bell, supra, citing Code of Ga., §U.79. 3 Phelps V. Fockler, 61 Iowa, 340; Curtis v. Root, 20 111. 53; Grant v. Dodge, 43 Me. 489; Bolles v. Carli, 12 Minn. 113; Jackson v. McKenny, 3 Wend. 233; Kaiser v. Lembeck, 3 Iowa, 520; Stewart v. Smith, 3(j Minn. 82; s. c. 30 N. W. Repr. 430; Eoane v. Baker, 120 111. 308: S. C. 11 N. E. Repr. 246. As in giving such mortgage precedence over the claims of dower and homestead. Howell v. Howell, 7 Ired. 491; Thompson v. Lyman, 28 Wis. 266; Amphlet v. Hubbard, 29 Mich. 298; Fletcher v. Holmes, 32 Ind. 497; Clark v. Monroe, 14 Mass. 351; Birnie v. Main, 29 Ark. 591; Young V. Tarbell, 37 Me. 509; and over a mechanics' lien on ttfe equi- table estate of the vendee prior to his acquisition of a deed. Campbell's Appeal, 36 Pa. St. 247; S. C. 78 Am. Dec. 375; Virgin v. Brubaker, 4 Nev. 31. In Korth Carolina the wife need not now, by statute, join in such a mortgage. Code of 1SS3, §1272. * Moring v. Dickerson, 85 N. C. 466; Blatchford v. Boyden, 122 111. 657; Wallace v. Silsby, 13 Vroom, 1 ; Cm-tis v. Root, 20 111. 53; Bunting v. Jones, 78 N. C. 242 ; Baker v. Clepper, 26 Tex. 629. 5 Tibbetts v. Laugley, 12 S. Car. 465; Houston v. Houston, 67 Ind. 276; Ahern v. White, 39 Md. 409; Foster's Appeal, 3 Pa. St. 79. If the 276 Ch. 7. J THE EFFECT OF RECORD. [§172. of the mortgage Is not usually extended to cases where the mortgage is given to another person than the vendor to secure a loan of the money used in paying for the land; but ui^on this point the decisions are not uniform.^ Where the statute does not make priority of lien, as between mortgages, dependent upon priority in registry, a purchase money mortgage, though recorded after a mortgage to another person to secure a loan of the cash used in making a part payment ot) the land, has been given precedence.^ But where, as between conveyances, the statutes require priority in registry, a purchase money mortgage may, as any other, lose its precedence over a later conveyance by delay in recording.^ In Minnesota it is held that the pur- two instruments be delivered at the same time, it does not matter that they were executed on different days. Banning v. Edes, 6 Minn. "102; Cake's Appeal, 23 Pa. St. 186; yumraers v. Darne, 31 Gratt. 791 ; Stewart V. Smith, 36 Minn. 82 ; s. C. 30 N. W. Kepr. 430. 1 Bank v. Ackerman, 70 Tex. 42!». 433 ; s. C. 8 S. W. Eepr. 451 ; Henis- ler V. Nickum, 38 Md. 270; Stansell v. Roberts, 13 Ohio, 148; Calmes v. McCracken, 8 S. Car. 87; Turk v. Funk, 68 Mo. IS; s. C.,30 Am. Rep. 771. In Texas it is held that the execution, at the time of the deed,of a purchase money mortgage back, renders the contract executory, and leaves the paramount title In the vendor. Wright v. Wooters, 46 Tex. 381. 2 Rogers v. Tucker, 94 Mo. 346; s. C. 7 S. W. Repr. 414; Turk v. Funk, 68 Mo. 18; s. C. 30 Am. Rep. 771'; City ]^at. Bank's Appeal, 91 Pa. St. 163. ^ Where two mortgages were delivered and tiled for record at the same time, each taken without notice of the other, it was held imma- terial which was executed first, and that one of them was for purchase money due on the premises. Koevenig v. Schmitz, 71 Iowa, 175; s. C. 32 ST. W. Repr. 320. If the vendor neglects to take a morlgage until after the execution of a mortgage to a third person, without notice, the purchase money mort- gage will be subject to the prior one. Houston v. Houston, 67 Ind. 276. In New Jersey, where a second mortgage was recorded ahead of the purchase money mortgage, the one first recorded was denied priority on the ground that the deed to the mortgagor was not then of record. Boyd v. Mundorf, 30 N. J. Eq. 545. In Louisiana a judgment lien existing against the vendee, will attach against the land, unless the purchase money mortgage be "seasonably recorded." Givanovitch v. Hebrew Congregation, 36 La. Ann. 272. In Illinois the record of a purchase money mortgage, void because not acknowledged by a married woman who was the purchaser, was held to charge a subsequent purchaser from her with constructive no- 277 Ch. 7. J THE EFFECT OF EECORD. [§173. chase money mortgage may be executed to a third party' who advances the purchase money, and that it takes prece-' dance of the lien of a prior judgment against the mortga- gor, and need not have been executed at the same moment, nor on the same day, vrith the deed of purchase, provided the execution of the two instruments constituted part of one continuous transaction, and was so inteaded, so that both should in equity be given a contemporaneous operation in order to promote the intention of the parties.^ §173. Re-inscriptlon. of Mortgages. In Louisiana the statute requires mortgages to be re- inscribed every ten years in substantially the same manner as the original inscription.^ This is done in order to dis- pense with the necessity of examining the records for more than ten years back.^ It is required of legal as well as con- ventional mortffages, but not of minors' mortgages.* A mere recital of the original indebtedness is not sufficient; nor will a recital in another mortgage that a prior mortgage on the same property had been re-inscribed, operate as a re-inscription.^ The re-inscription must be made within ten years; if made after that time it is of no effect as to tice of the vendor's equities. Morrison v. Brown, S3 111. 664. That the record of a purchase money mortgage, If seen, gives notice that the mortgagor has, or is entitled to a deed. See Clark v. Holland, 72 Iowa, 34; s. C. 33 N. W. Repr. 350. 1 Stewart v. Smith, 3(5 Miim. 82; s. C. 30 N". W. Eepr. 430. 2 (Jiv. Code. §.;.JG9; TiLlen v. Morrison, 33 La. Ann. 10G7; Yillavaso V. Walker, '28 La. Ann. 775; Bondnrant v. Watson, 103 U. S. (13 Otto), 281. WheQ a mortgage is not re-inscribed, a creditor or party interested has the right to demand Its cancellation by the recorder. Britton v. Norment, 20 La. Ann. 486. s Bondurant v. Watson, 20 La. Ann. 385; Patterson v. De La Eonde, 8 Wall. 292. * Succession of Gale, 30 La. Ann. 351; CticuUu v. Hernandez, 103 U. S. 105; Souvinet v. Landreaux, 1 La. Ann. 219. 5 Britton v. Janney, 21 La. Ann. 204; Villavaso v. Walker, supra; ■ Shepherd v. Orleans, 2 La. Ann. 100; Poutz v. Eeggio, 35 Id. 637. Nor ■will the pendency of suit for the debt save re-inscription. De St.Romes V. Blanc, 31 La. Ann. 48; Barelle v. Delassus, 16 Id. 280; Watson v. , Bondurant, 30 Id. 2. Nor even the record of a judgment on the note, i Mittenberger v. Drebroca, 33 Id. 313. 278 Ch. 7.j THE EFFECT OF RECORD. [§174. third parties.^ The ten years are reckoned, as between the parties, from the date of the mortgage; and as to third parties from the date of its record.^ Where a subsequent purchaser assumes a prior mortgage, its re-inscription has been held not necessary as to him.^ §174:. Assignment of Mortgages. The recording of assignments of mortgages has been already considered.* Such assignments are void, if unre- corded, as against subsequent purchasers whose interests are affected thereby, provided assignments are embraced by the recording acts of the particular jurisdiction;^ but unless expressly embraced within the terms of the statute, it has usually been held that their record is not constructive 1 Adams v. Daunis, 29 La. Ann. 315; Sorrells v. Stamper, 27 La. Ann. 630. In Gordon v. Knox, 31 La. Ann. 284, it is said that re-inscription after the ten years preserves the lien as between the parties; and in Cu- cullu V. Hernandez, supra; Bondurant v. "Watson, 103 U. S. 2S1; and Shields v. Shift, 124 U. S. 351, it is said that as between the parties, and as to parties with actual notice, the mortgage is good without either inscription or re-inscription; but in Tildeu v. Morrison, 33 La. Ann. 1067, it is held that without inscription within ten years, and re- inscrip- tion, the mortgage ceases even as between the parties; and in numerous cases that actual notice is of no avail in that state. I'ayne v. Pavey, 29 La. Ann. 116; Adams v. Daunis, ia. 316; Civ. Code, §3342; Eocheraux v. Delacroix, 26 Id. 584; Tulane v. Levison, 2 Id. 787; Harang v. Platts- mier, 21 Id. 426; Derbes v. Romero, 32 Id. 283. 2 Batey v. Woolfolk, 20 La. Ann. 385. An artificer's privilege, re- corded after the statutory period of ten days, will not affect even pos- terior parties after its record. Jenkins v. Nelson, 11 Mart. 437. 2 Scionneaux v. Wagnespack, 32 La. Ann. 283 ; Batey v. Woolfolk, 20 Id. 385. See Tilden v. Morrison, supra. Where a new mortgage is given on the same property to secure the same debt for which fi prior mortgage had been given, re-inscription of the old mortgage is unnecessary as against creditors whose liens accrue subsequent to the record of the new mortgage. Hart v. Oaffery, 39 La. Ann. 894; s. c. 2 South. Eepr. 788. « Ante, §33 ; and see post, §209. » McCormick v. Bauer, 122 Ill»573; s. C. 13 N. E. Repr. 852; 11 West. Eepr. 744; The Conn. Co. v. Talbot, 113 Ind. 373; s. C. 3 Am. St. Rep. 655; 14 N. E. Repr. 586; Reeves v. Hayes, 95 Ind. 521; Bacon v. Schoon- hoven, 87 N. Y. 446; Decker v. Boice, 83 N. Y. 215; Swartz v. Leist, 13 O.St. 419; Purdy v. Huntington, 46 Barb. 389; s. C. 1 Am. St. Rep. 532. 279 Ch. 7. J THE EFFECT OF RECORD. [§1'^4. notice. 1 A statute providing for the record of assignment& of "any mortgage of record," has been held operative a& to assignments already then made, and prospective to the extent of requiring their record as aguinst subsequent pur- chasers and incumbrancers.- AVhere G. , the assignee of a mortgage made to W., neglected to record the assignment,, a recital in a subsequent deed, made by the administrator of the mortgagor to H., that it was made subject to a dpbt of $1,000.00 due to G., was held not to charge a purchaser of the property from H. with notice of the mortgage to W.* But as already stated, the assignee of a mortgage is not usually held bound to record the assignment as against the mortgagor;* such record is for his protection against a sub- sequent transfer of the mortgage by the mortgagee, or its release by him.' Under statutes providing for (separate record books, recording an assignment of a mortgage in Ihe record book of deeds is usually held of no avail. ^ As the 1 Dixon V. Hunter, 57 Ind. 278; Gordon v. Rixley, 76 Va. 694; Has- selman v. McKernan, 50 Ind. 441; Oregon Trust Go. \. Shaw, 5 Saw. 336. In the absence of any legislative direction to that effect, there does not seem to be any obligation resting upon an assignee to record his assignment to protect himself against any subsequent purchaser or mortgagee. Such assignment is not the conveyance of an "interest or estate inlands." Watsonv. Dundee Co., 12 Or. 474; s. C. 8 Pac. Repr. 54S, Contra, Pepper's Appeal, 77 Pa. St. 373; Keide v. Fennypacker, 9Phila. 86. See post, §209. =" The Conn. Co. v. Talbot, 113 Ind. 373 (s. c. 3 Am. St. Kep. 655) ; citing People v. Spicer, 99 N. Y. 225; Larkins v. Saffarans. 15 Fed. Eepr. 147; Excelsior Co. v. Keyser, 62 Miss. 155; Baldwin v. City of Newark, 38 N. J. 15S; People v. Clark, 7 N.Y. 385; Boston v. Cummings, 16 Ga. 102; Jackson v. Lamphire, 3 Pet. 280. 3 Brownback v. Ozias, 117 Pa. St. 87, 92; s. c. 11 Atl. Eepr. 30; 9 Cent. Repr. 554. "At best," said .Judge Green, rendering the opinion, "this sort of notice is but constructive notice, and it is quite enough to hold a purchaser bound by that which does appear in the record, without subjecting him to responsibility by construction for that which does not appear there. * * * Q-. having failed to record his assign- ment between him and 0. (the \)urc^ser of the property), there was no equality of innocence." < Ante, §33; Mott v. Clark, 9 Pa. St. 399; s. c. 49 Am. Dec. 566. « Henderson v. Pilgrim, 22 Tex. 464; Peun. Salt. Co. v. Neel, 54 Pa. St. 19; ante, §33; Ladd v. Campbell, .56 Vt. 529. f P«rdy V. Huntington, 42 N. Y. 343; s. c. 1 Am. St. Rep. 532; Ed- wards V. Trumbull, 60 Pa. St. 509; Shaw v. Wiltshire, 65 Me.' 485. A. conveyed to B., who gave back a purchase money mortgage which 280 Ch. 7. J THE EFFECT OF RECORD. [§175. transfer of a note carries with it as an incident of the debt a mortgage given as cirity therefor, a bona fide assignee of the mortgage must also be ordinarily a purchaser of the note in good faith. ^ §175. CaiiceUation, Release and Discharge of Mort- gages. The general and statutory features of this subject have been already stated.^ A mortgage release executed by one who appears by the records to be the owner of the mort- gage, will protect a subsequent purchaser of the property :* but where the mortgage appears to have been discharged by an attorney, clerk or some other person than the mort- gagee, this has usually been held sufficient to excite inquir}^ as to the unusual circumstance.* Actual notice of a re- lease, or of such payment or agreement as gives a right thereto, is binding on a subsequent purchaser of the mort- gage.^ So, one with knowledge that a release was procured was duly recorded. This mortgage, and the notes secured by it, were assigned by A. to C, but the assignment was not recorded for some years. Meanwhile, B. quit-claimed the land back to A. Held, that no merger took place as against the rights of C. ; nor were his rights af- fected, except as to third parties buying from A. prior to the record of the assignment. The Int. Bank -v. Wilshire, 108 111. 143, 149; approved in McCormick v. Bauer, 122 111. 573; s. C. 13 N. E. Kepr. 852; 11 West. Eepr. 744. 1 Where a mortgage was bought for a small consideration, the non- production of the note, and the fact that it was long overdue, held to charge the purchaser with notice that it had been transferred. Potter V. Strausky, 48 Wis. 235. ^ Ante, §34. The recorder's certificate of the cancellation of a mortgage is prima facie, but not conclusive, evidence of that fact. Lafarge v. Morgan, 11 Mart. (La.), 462. ^ Blunt v. Norris, 123 Mass. 55. As by an administratrix of the former mortgagee. The Conn. Co. v. Talbot, 113 Ind. 373; s. c. 3 Am. St. Kep. t>55. See contra, Lee v. Clark, in last note to this section. ' Smith V. Lowry, 113 lad. 37; Btarris v. Cook, 28 iST. J. Eq. 345; Weber v. Briduman (N. Y.), 21 K. E. Kepr. 984; Smith v. Kidd, 68 N. " Y. 130; Swarthout V. Curtis, 5 N". Y. 301; O'Neill v. Douthitt (Kan.), 20 Pao. Kepr. 493. « Huff V. Farwell, 67 Iowa, 298; s. C. 25 Jf. W. Kepr. 252. It Is the dutjr of the mortgagee to have the mortgage canceled, at his own expense, and payment may be withheld until this be done. Walker v. Oucullu, 15 La. Ann. 689. 281 Ch. 7. J THE EFFECT OF RECORD. [§175. by fraud, or executed through mistake, takes subject to the inortsao-e.i It is held in Louisiana that where the cancella- tion of a mortgage was obtained through fraud, or made by the recorder without authority, the rights of the mortgagee will be held good even against an innocent subsequent pur- chaser ;2 but elsewhere it is believed the general rule usually obtains that where the record is perfect, or clear on its face, a bona fide purchaser will be protected by it.^ Where the assignee of a mortgage gives a quit-claim deed of the property to a third person, this so releases his interest in the premises that he cannot afterwards discharge the mortgage.* The law of record and of actual notice applies to the entry of satisfaction of a mortgage. If such entry be made through mistake, it cannot be corrected in equity as against the rights of third persons that have intervened.^ So, ^ Bacheman v. Chaperon, 15 La. Ann. 4; Lewis v. Ferrell, 61 Conn. 216; Farmer's Bank V. Butterfleld, 100 Ind. 229. 2 Hortou V. Cutler, 28 La. Ann. 331 ; Mechanic's Association v. Fer- guson, 29 Id. 548. Where the release of the prior mortgage is forged, it will not, of course, protect a subsequent purchaser. Keeley v. Han- nah, 52 Mich. .035; s. C. 18 N. W. Repr. 346. 2 WJiere the mortgagee negligently permits the mortgagor to retain the mortgage, and the latter fraudulently cancels it of record, the mortgagee cannot enforce it as against a bona fide purchaserof theprop- erty. Heyder v. Excelsior Ass'n, 42 ]S". J. Eq. 403; s. C. 59 Am. Kep. 49. Where a mortgage appears duly satisfied of record, a subsequent purchaser without actual notice of fraud or mistake in its cancella- tion, will be protected. Green v. Eick, 121 Pa. St. 130; s. C. 6 Am. St. Rep. 760; 15 Atl. Eepr. 497; Boutwell v. Steiner, 84 Ala. 307; S. C. 5 Am. St. Rep. 375: 4 t^outh. Repr. 184; Frazee v. Inslee, 2 N. J. Bq. 239; Neidig v. Whiteford, 29 Md. 178; Waldron v. Sloper, 1 Drew. 193; Garland v. Harrison, 17 Mo. 282; Roberts y. Halstead, 9 Pa. St. 32; s. O. 49 Am. Dec. 541; Swarthout v. Curtis, 5 N. T. 301; s. C. 55 Am. Dec. 345. 4 Conner v. Whitmore. 52 Me. 185; and see Reeves v. Hayes, 95 Ind. .o21. Where a judgment lien index, under the head of "satisfaction," contained, in the appropriate columns, a date and the name of the plaintiff in the judgment, this was held not to imply a satisfaction by payment, but to be sufficient to put upon inquiry as to whether it had not been satisfied by a sale of real estate of the debtor. Mather v. Jenswold, 72 Iowa, 550, 553; S. C. 34 N. W. Repr. 327. Ferguson v. Glassford (Mich.), 35 N. W. Repr. 820; Cornoly v. Fuller, 30 Iowa, 212. But a cancellation by mistake does not give a junior existing lien preference. Foster v. Paine, 63 Iowa, S5; s. C. 18 N. W. Repr. 699. 282 Ch. 7. J THE EFFECT OF RECORD. [§175. where a release of a mortgage is executed by one as "at- torney in fact," and there is nothing of record showing that he had authority to execute such release, it has been held insufficient.! Courts of equity will grant relief against the discharge of a mortgage made through fraud, or by mistake,^ and will in some cases re-instate the lien even as against intervening liens of record,^ except where negli- gence or want of good faith can in some way be Imputed to the first morts:ae:ee.* ' O'JSTeill V. Douthitt (Kan.), 20 Pac. Kepr. 493; Smith v. Kidd, 68 N. Y. 130. 2 Geibv. Reynolds, 35 Minn. 331: s. C. 28 N. W. Repr. 923; Garwood V. Eldredge, 2 N. J. Eq. 145; s. C. 34 Am. Dec. 195; Dudley v. Bergen, 23 N". J. Eq. 397, 400; Brucev. Bonney, 12Gray (78 Mass.), 107; Frencti V. De Bow, 3S Mich. 708; Cobb v. Dyer, 69 Me. 494; Sheldon v. Holmes, 58 Mich. 138; s. c. 24 N. W. Repr. 795; HoCEman v. Wilhelm, 68 Iowa, 510; s. 0. 27 N. W. Repr. 4S3; MoGiven v. Wheelock, 7 Barb. 22; Liggett V. Himle, 38 Minn. 421; s. C. 38 N. W. Repr. 201. 3 Hutchinson v. Swortseller. 31 K. J. Eq. 205: Geib v. Reynolds, 35 Minn. 331; Barnes v. Mott, 64 IST. Y. 397; .Hanlon v. Doherty, 109 Ind. 37; Banta v. Vreeland, 15 N". J. Eq. 103; Sidener v. Pavey, 77 Ind. 241, 246; Elstor v. Castor, 101 Ind. 426, 443; s. C. 51 Am. Rep. 754; Cobb v. Dyer, 69 Me. 495; Bruce v. Nelson, 35 Iowa, 157. ^ Childs V. Stoddard, 130 Mass. 610; Woolen v. Hillen, 9 Gill. 185; s. c. 52 Am. Dec. 690; Anglade v. St. Avit, 67 Mo. 434; Banta v. Garmo, 1 Sand. Ch. 383; Charleston v. Ryan, 22 S. Car. 339; s. O. 53' Am. Rep. 713; Peckhara v. Haddock, 36 111. 38; Heyder v. Excelsior Ass'n, 42 N. •T. Eq. 403; s. c. 59 Am. Rep. 49. In a late Missouri case it was held, where a defed of trust was given to secure negotiable notes, which were afterwards assigned to a third party and the trust deed delivered with them, that a wrongful release of the lien and record entry of satisfaction by the trustee would not protect subsequent purchasers of the property in good faith. Lee v. Clark, 89 Mo. 553; s. C. 1 S.W. Repr. 142, citing Joerdens v. Schrimpf, 77 Mo. 383; Boatmen's Sav. Bk. v. Grewe, 84 Mo. 478. "To the question, what shall one desiring to purchase do under such circumstances as are disclosed by this record? the answer is, let it alone until he can ascer- tain who holds the note. He is under no obligation to buy, and pru- dence would dictate that he should not buy until satislied that the owner of the note had entered satisfaction of the debt. It may embar- rass persons desiring to purchase, and it might be well for the legisla- ture to require a memorandum of the assignment of the note to be entered upon the margin of the deed of trust or mortgage." Henry. J., in Lee v. Clark, supra. So one who purchases a mortgage without requiring the production of the note secured by it, does so at the peril of being held a'purchaser In bad faith, if the note has been transferred. Potter v. Strausky, 48 Wis. 235. The case of Lee v. Clark, above, while 283 Ch. 7. J THE EFFECT OF RECORD. [§176. §176. Extent to Which the Record is ]S^oticc. The record is notice of every tiling deducible from its con- tents as matter of law. Thus, where a mortgage secured payment of an annuity to a trustee for the benefit of a minor, and the trustee wrongfully discharged it by the en- try of satisfaction in full in the margin of the record, a sub- sequent purchaser of the property was held chargeable with constructive notice, that the release was unauthorized and in contrary to the decided weight of authority, is supported by a number of cases which give to a mortgage securing a negotiable debt the same protection in the hands of a bona fide holder as the debt itself, for the reason stated by Judge Henry, that the mortgage is treated as but an incident of the debt. See dissenting opinion in Banlc v. Anderson, 14 Iowa. .544; Byles v. Tome, 39 Md. 461 ; Potter v. Strausky. 48 Wis. 235; Lewis V. Kirk, 28 Kan. 497. An entry of satisfaction by the mortgagee, after he had transferred the notes, held to give no preference to a sec- ond mortgage, though taken in good faith. Reeves v. Hayes, 95 Ind. 5'il, overruling Avers v. Hays, BO Ind. 452. The record which will protect a subsequent purchaser is the record as he finds it, not as he makes it, or procures it to be made. Thus, where an unsatisfied mortgage of record was to secure a negotiable bond not due which the mortgagee assured a purchaser of the ijroperty was still in his possession, and that he would cancel it, and the pur- chaser, without requiring the production of the bond, or the surrender of the mortgage itself, paid the amount of the debt, and had satisfac- tion entered of record, it was held that because of sucli carelessness.^ho took the property subject to the mortgage, which, together with the bond, had been transferred to a third party. Windle v. Bonebrake, 23 Fed. Repr. 165; and to same effect, Brayley v. Ellis, 71 Iowa. 155; s. C. 32 X. W. Repr. 254, cited ante, §33, note. But where the purchaser finds the record released and satisfied by the mortgagee, and has neither actual nor record notice of the assignment of the mortgage, nor that the debt is unpaid, he may rely on the record, and will take the land free of incumbrance, although the record may have been released by fraud, accident or mistake, or merger of titles. Windle v. Bonebrake, supra; Keohanev. Smith, 97 111. 156; Purdy v. Huntington, 42 N. Y. 334: 1 Am. St. Rep. 532; Bowling v. Cook, 39 Iowa, 200, affirmed in Brayley v. Ellis, s^ipra; Ayers v. Hays, 60 Ind. 452; Ins. Co. v. Eldredge, 102 U. S. 545; Ogle V. Turpin, 102 111. 148; Van Keuren v. Corkins, 66 N. Y. 77; Etz- ler V. Evans, 61 Ind. 56; Quattlebaum v. Black, 24 S. C. 48; and cases cited in the foregoing notes to this section. Assignments of mortgages are usually placed by the statutes or by the courts within the recording acts, and where this is the case, if the assignee fails to record his assignment and the mortgagee discharges the mortgage of record, such assignee will not be protected against an innocent purchaser of the property. Ladd v. Campbell, 56 Vt. 529; Daws V. Craig, 62 Iowa, 515; ante, §§33, 174. 284 Cll. 7. J THE EFFECT OF KECORD. [§176. fraud of the trust.i Where a release is improperly executed, but there is nothing in the record disclosing that the action of the trustee was wrongful, a subsequent bona fide pur- chaser will take the property clear of the lien.^ The fact that the debt was not due at the time of the release, as shown by the record, has been held sufficient to charge no- tice that the release was wrongfully executed.^ The record will charge constructive notice of fraud in the execution of the deed where there is matter on the face ,of the instru- ment indicating fraud, but not otherwise.* A record that discloses the relation of attorney and client touching a levy On real estate, is notice to a subsequent purchaser from the attorney that he cannot dispute the validity of the levy and take an after-acquired title to the land.^ But constructive notice by registration does not necessarily imply knowledge on the part of subsequent purchasers of the relations sub- sisting between the parties to a recorded instrument.^ 1 MoPherson v. Koliins, 107 N. Y. 317; s. c. 1 Am. St. Kep. 826;, 14 N. E. Eepr. 411; Swift v. Smith, 102 U. S. (12 Otto), 442. ? Williams v. Jacljson, 107 U. S. 478. See Clark v..Watson,141 Mass. 248; s. c. 1 N. Eng. Repr. 725; 5 ST. E. Kepr. 298. 2 Jackson v. Blackwood, 4 MacArth. ISS, C. J. Carter dissenting. * Johnson v. Theveatt, 18 Ala. 741 . The doctrine of constructive no* tioe, said Judge Rap.'.llo, canuot be so applied as to charge a bona fide purchaser with notice that his grantor made the conveyance with in- tent to defraud creditors at large, having no specific lien or equity. Parker V. Connor, 93 jST. Y. 125; s. C. 45 Am. Eep. 184; citing Stearns v. Oage, 79 N. Y. 102, and distinguishing Baker v. Bliss, 39ISr. Y. 70, which is said to be only seemingly to the contrary. See also. State v. Merritt, 70 Mo. 275; Farley v. Carpenter, 27 Hun. 359. « Briggs V. Hodgdon, 78 Me. 514; s. c. 7 Atl. Eepr. 387. Where a mortgage purported to be released by an attorney in fact, this was held to charge a subsequent purchaser with notice that the power of attorney described a different tract than that released. Hager- man v. Sutton, 91 Mo. 519; s. C. 4 S. W. Eepr. 73. ' Thus where A. and B. executed a joint mortgage on tracts of land owned by them in severalty, to secure their joint note, on which B. was in fact only surety for A., but this did not so appear, B. was not per- mitted, as against rights under a subsequent mortgage given by A., to claim that by reason of his being surety, he was entitled to pay off the first mortgage and be subrogated to all the rights of the first mortgagee for his indemnity, thereby taking precedence of the second mortgagee, who had no actual notice of his suretyship. Orvis v. Newell, 17 Conn. 97. The trustee, a deed to whom is absolute in form, is the only person who can make a declaration of trust, the record of which will be con- 285 Ch. 7. J / THE EFFECT OF EECORD. [§177. §177. Continued— N^otice of Matter of Law. Where the recital in a patent to an assignee is of a trans- fer which the party of himself could not have made, as of an administrator, a subsequent purchaser under the patentee is chargeable with notice of any defects in such transfer, and must look at his peril to see that the administrator had the requisite authority to assign the warrant, or land certi- ficate. ^ The record of a trust deed or mortgage with a power of sale charges subsequent purchasers to inquire if any sale has been made under the power, for in such case, although the deed be not recorded, the equity of redemption is cut off.^ Notice of a recorded instrument is notice of the covenants contained in it, and all equities and rights grow- ing out of or incident to it; as where a recorded mortgage appeared to be barred by limitation, but was in fact ex- tended by virtue of a new promise extending the debt.* struotive notice. Clark v. Watson, lil Mass. 248; S. C. 1 N. Bug. Repr. 725; 5N. E. Kepr. 298. 1 Eeeder v. Burr, 4 Ohio, 446, 4.=)8; Bonner v. Ware, 10 Id. 465; Bell V. Duncan, 11 Id. 192; Chinn v. Taylor, 64 Tex. 385; Renick v. Dawson, 55 Tex. 102. In Texas property acquired during the marriage, unless by gift, de- vise or descent, is by law presumed to be community property; hence, the registry of a deed to the wife, reciting the consideration as paid by her, but not out of her separate means, is not notice to purchasers from the husband that the property is her separate property. Kilgore v. Graves, 2 Civ. App. (Tex.), §410, citing Wallace v. Campbell, 51 Tex. 87; Cooke v. Breraond, 27 Tex. 457. Otherwise, if the recitals show that the consideration paid w.as out of her sepai-ate estate, or that the purchase was designed for her separate beaeflt. Kirk v. Navigation Co., 49 Tex. 213. In California the fact that the deed Is made to the wife is held sufficieat to charge notice that the property may be her separate property. McComb v. Spangler, 71 Cal. 419; s. 0. 12Pac. Repr. 347 ; Ramsdell v. Fuller, 28 Cal. 38. 2 Heaton v. Prather, 84 111. 330, citing-Farrar v. Payne, 73 111. 82. The record of a deed from the purchaser at an invalid tax sale is not notice to the comptroller of the right of the grantee to have the pur- chase money refunded to him. The People v. Chapin, 104 N. Y. 96; S. c. ION. E. Repr. 141. 5 Plant V. Shryock, 62 Miss. 821 ; Smith v. Lowry, 113 Ind. 37; N. Y. Life Ins. Co. v. Covert, 6 Abb. N. S. 154; Phillips v. South Park Bk., 119 111. b26; s. C. 10 N. E. Repr. 230; McAdow v. Black, 6 Mont. 601; S. C. 13 Pac. Repr. 377. The purchaser who buys subject to a recorded deed, takes subject to whatever covenants run with the land. Sch wallback v. Chicago, 09 Wis. 286 Ch. 7.] THE EFFECT 'OF EECOED. [§178. But the recital in a deed to A. that it was made in pursu- ance Qf a contract with X., of whose right A. was assio-nee has been held not constructive notice to a subsequent pur- chaser from A. that by that contract a lien or equity had been retained by the grantor of A.i Registration will not operate as constructive notice of a provision in a duly re- corded instrument, having relatiou to a matter the record of which is not authorized by law; as where a mortgage by one partner to another contained also a limitation on the power of the mortgagor as a partner. ^ §178. Recitals Charge Constviictive Xotice, When. As to matters of fact recited or alluded to in the record, and as to other instruments referred to therein, it may be stated as a general rule that if there is sufficient contained in the record to reasonably induce an inquiry in the mind of an intelligent person, it will charge notice of the facts so contained, and of ail facts which an inquiry suggested by such information diligently prosecuted would have dis- closed.^ In many instances the constructive notice im- parted by the record is in the same transaction blended 392; s. c. 34 N". W. Repr. 128. Bat the record is not notice of matter of estoppel in pais. Hager v. Spect, 52 Cal. 679. 1 Acer V. Wescott, 46 N. Y. 384; s. C. 7 Am. Rep. 355, citing Ware v. Egmont, 31 Eng. L. & Eq. 89; Hiern v. Mill, 13 Ves. 120. The recital must, in order to necessitate further inquiry, indicate the defect in some way that will excite attention and arouse suspicion. Morse v. Hunter, 1 Gilm. 317; Bell v. Duncan, 11 Ohio, 192. ^ Monroe v. Hamilton, 60 Ala. 227. So the record of a conveyance of personal property is not notice of a transfer of ohoses in action con- tained thereiu, where the statute does not authorize the registry of sucli transfer. Stewart v. Kirkland, 19 Ala. 162; McCain v. Wood, 4 Ala. 258; Monroe v. Hamilton, supra. 3 Cambridge Bank v. Delano, 48 N. Y. 326; Wilson v. Hunter, 30 Ind. 466; Leiby v. Wolf, 10 Ohio, 83; McPherson v. Rollins, 107 N". Y. 316; s. c. 1 Am. St. Rep. 826; 14 N. E. Repr. 411; De Sepulveda v. Baugh, 74 Cal. 468; s. C. 5 Am. St. Rep. 455; 16 Pac. Repr. 223; Jenkins v. Adams, 71 Tex. 1; Mcllvaiue v. Legare, 34 La. Ann. 923; Lodge v. yimontou, 2 Pen & Watts, 439; s. C. 23 Am. Dec. 36; Acer v. Wescott, 4G N. Y. 384; S. c. 7 Am. Rep. 355; Parker v. Conner, 93 X. Y. 118; s. c. 45 Am. Rep. 184; Littleton v. Giddings, 47 Tex. 109; 4 Kent Com. 179; Wethered v. Boon, 17 Tex. 143. 287 Ch. 7.] THE EFFECT OF RECORD. [§179. with that arisino; from recitals in other instruments in the same chain of title, and also with that growing out of the duty of inquiry suggested by some matter of fact entirely outside of the record. With relation to the extent to which the doctrine of imputed notice will be applied, there is no substantial difference in the underlying principle governing these several classes of constructive notice. ^ In some cases the doctrine of constructive notice has been pushed to such an extent that .it has been at length declared highly inexpedient for courts of equity to extend it further.^ The general rule above is illustrated by the cases in the succeed- ing sections and the notes below. ^ §179. Notice From Unusual Recitals. Recitals of an unusual character will ordinarily excite at- tention and charge notice by imposing the duty of inquiry. ^ As to recitals in the same chain of title, see post, §221 ; and as to in- quiry and actual notice, post, §§223, 226. 2 Brownback V. Ozias, 117 Fa. St. 87, 92; s. C. 11 Atl. Kepr. 30; 9 Cent. Eepr. 554; Ware v. Eginont, 31 Etig. L. & Eq. 89; Acer v. Wes- cott, 46 N. Y. 384; s. C. 7 Am. Rep. 355. s See Knorr v. Raymond, 73 Ga. 749, 775; Wolfe v. Dyer, 95 Mo. 545; S. c. 8 S. W. Repr. 551 ; Eck v. H.atcher, 58 Mo. 235; Brush v. Ware, 15 Pet. 93; Gibert v. Peteler, 38 N". Y. 1G5; s. c. 97 Am. Dec. 785; Jumel V. Jumel, 7 Paige, 591; Tuttle v. Jackson, 6 Wend. 213; Bell v. Twi- light, 18 N. H. 129; s. c. 45 Am. Dec. 367; Leach v. Beattle, 33 Vt. 195: Clabaugh v. Byerly, 7 Gill. 354; s. c. 48 Am. Dec. 575; Baker v. Mather, 25 Mich. 51 ; Humphreys v. Xewman, 51 Me. 40; Ogden v. Walters, 12 Kan. 2S2; McCabe v. Grey, 20 Cal. 509; Buchanan v. Int. Bank, 78 111. 500; Grandin V. Anderson, 15 O. St. 286; Martin v. Neblett, 86 Tenn. 383; De Sepulveda v. Baugh, 74 Cal. 468; s. C. 5 Am. St. Rep. 455; Hamilton v. Nutt, 34 Conn. 501; Anderson v. Lay ton, 3 Bush, 87; 'George v. Kent, 7 Allen, 16; White v. Poster, 102 Mass. 375; Dean v. Long, 122 111. 447; s. C. UN. E. Repr. 34; SniUh v. Lowry,113Ind. 316; s. c. 15 N. E. Repr. 17; Gilchrist v. Gough, 63 Ind. 576; s. C. 30 Am. Rep. 250; Peck v. Conway, 119 Mass. 546; Poage v. Wabash Ry., 24 Mo. App. 199; Delespine v. Campbell, 52 Tex. 4. The record is not notice of facts contradictory of the recitals, nor is a subsequent purchaser bound to dispute their correctness. Where a deed recited that the vendor had formerly given a bond for title to the lund to another person, but that its conditions had never been complied with, and such other person was dead and the bond lost, this did not charge notice of a prior conveyance of the land. Graham v. Hawkins, 1 Tex. Un. Cas. 514; s. 0. 38 Tex. 635, and see Boyce v. Grundy, 3 Pet. 310; post, §223. 288 Ch. 7.] iIHE EFFECT OF RECORD. [§180. Thus the recital of an inadequate consideration, especially if it be grossly disproportionate to the real value of the property, is often regarded as a cogent circumstance so loudly informing the purchaser of fraud that he will not be permitted to shelter himself behind the want of actual knowledge.! But inadequacy of price realized at forced sale under execution or other legal process will not, for ob- vious reasons, suffice to put a purchaser on inquiry.^ An obvious absurdity on the face of the instrument is a matter calling for investigation and charges notice.^ Where the number of j.he township and range were so transposed in the deed that there was no such tract of land in the county as that described, this was held sufiicient to put upon in- quiry.* §180. Imperfect and Ambig-uous Recitals. A recital, in order to charge notice, must be such as to explain itself, hy its own terms, or refer to some deed or ■circumstaiice tliat will lead to an explanation.^ The courts apply the rule in these cases that that is certain which can ' Hume V. Franzen, 73 Iowa, 25; s. C. 34 N". W. Repr. 490; Dillon v. Shugar, Id. 434; Gaines v. Saunders (Ark.), 7 S. W. Repr. 301; Hoppin V. Doty, 25 Wis. 573; Worthy v. Caddy, 76 N". C. 82, 86; Eck v. Hatcher, 58 Mo. 235; Webb v. Burney, 70 Tex. 322; s. c. 7 S. W. Repr. 841; Peabody v. Fenton, 3 Barb. Oh. 451; Knapp v. Bailey, 79 Me. '195; S. C. 9 Atl. Kepr. 122. 2 Stockett V. Taylor, 3 Md. Ch. 537; aijd see Beadles v. Miller, 9 Bush, 405. ^ Merrick v. Wallace, 19 111. 486. ' Partridge v. Smith, 2 Biss. 1S3. This is said by Mr. Wade to be as istrong a case as the rule relating to errors not misleading will support. Wade on Kotice, §184. Where a deed contained a recital that the grantee, B., had been in possession of the land for a certain period prior to its execution under a •contract for the sale of the land, a subsequent purchaser was held chargeable with notice of B.'s equitable interest, and that it was a mort- gageable interest, and bound to search for incumbrances created by B. during the entire period that he was in possession as shown by the re- ■cital. Crane v. Turner, 7 Hun. 357; S. C. 67 N. Y. 437. " White V. Carpenter, 2 -Paige, 217; Morse v. Hudter, 1 Gilm. 317; Bell V. Duncan, 11 Ohio, 192. (19— Keg. of Title.) 289 Ch. 7. J THE EFFECT OF RECORD. -[§-180., be made certain.^ A recital in order to charge notice must be in the course of the title, under which the purchaser claims ;2 and if the grantor has no title of record, a recital that his grantor conveyed the property to him does not charge third parties with constructive notice, because they have no clue by which to follow the title. ' The entry of "satisfied," in the appropriate column of a statutory index of a judgment lien has been held not to import payment, but to be sufficient to put upon notice that real estate of the judgment debtor was sold to satisfy the judgment.* Im- perfect descriptions of property and statements of mort- gage indebtedness, heretofore adverted to, preseiit illustra- tions of deficient recitals held to charge notice.^ 1 Parker v. Kane, 4 Wis. 1 ; s. c. 65 Am. Dec. 2S3 ; Spafford v. Weston, 29 Me. 140. 2 Boggs V. Varner, 6 Watts & S. 469; ilaeller v. Engein, 12 Bush, 441. 3 Polk V. Cosgrove, 4 Blss. 437, 439: Mills v. Smith, 4 Biss. 442. « Mather v. Jenswold, 72 Iowa, 5.50,' 5.53; s. C. 34 N. W. Repr. 327. At the close o£ the description in a mortgage, the following words were enclosed in parenthesis : (Of six hundred dollars said premises are subject to a former It was held that this was notice of a prior mortgage of that amount. Sanborn v. Robinson, 54 N". H. 239; 1 Jones on Mort., §594. So, an ex- ception in a conveyance as follows : "Except one mortgage for $1,200," held sufficient to charge the grantee with notice, and to put him on in- quiry as to who held the mortgage. Clark v. Bullard, 66 Iowa, 747; s. O. 24 N. W. Repr. 561. 5 Ante, '§§"147, 171; and see as to description of property held sufficient, Briggs V. Ripley, 37 Minn. 78; s. C. 33 N. W. Repr. 120; Lewis v. Hin- man, 56 Conn. 55; s. C. 13 Atl. Repr. 143; and of the debt. Seymour v. Darrow, 31 Vt. 133. A description of a part of the land conveyed in a deed as "land, the title to which is in A. given as collateral security to pay certain notes," is sufficient notice' of an unrecorded mortgage to A. Dunham v. Dey, 15 Johns. 555; s. C. 8 Am. Dec. 282; Dey v. Dunham, 2 Johns. Ch. 1S2. A description in a deed bounding on land of a party by name has been held notice to the grantee in the deed that the land bounded is so owned by virtue of some proper instrviuient of conveyance. George v. Kent, 7 Allen, 16; Pike v. Goodnow, 12 Allen, 472. The registry of a note reciting that "the above amount is the balance of the payment due on three boilers furnished," sufficiently gives no- tice of a vendor's privilege or lien retained on the boilers. Mcllvaine V. Legare, 34 La. Ann. 923. A mortgage describing the property liypothecated as. -'une vaste terrain a Vencoignure des rues Orleans et Bourbon,''' will not be held in- 290 Ch. 7.] THE EFFECT OF RECORD. [§181. §181. Kecital to Other Instruments. Recitals in a coaveyance to another written instrument will charge notice of the contents of such instrument and of the rights claimed under it, though it be unrecorded. i Where one bought subject to' an unrecorded mortgage, re- ferred to in his deed, he has, by virtue of a recital in such mortgage, been held chargeable with constructive notice of still another conveyance affecting the property, on the ground that having notice of the mortgage, it was his duty to examine it with the view of acquiring a knowledge of its contents.^ The principle, it seems, will hold good as to any number of instruments thus successively referred to by re- cital.' The recital, however, in order to charge construc- valid for want of sufficient description at the instance of one who has not been misled thereby. Roberts v. Bauer, 35 La. Ann. 453; and see Carter V. Hawkins, 62 Te.'C. 393; ante, §147. 1 1 Jones on Mort., §595 (citing Reeves v. Vinaclce, 1 McCrary, 213; Westervelt v. Wyckoff, 32 N. J. Eq. 18S; Hull v. Sullivan, 63, Ga. 126; Garrett v. Puckett, 15 Ind. 485; George v. Kent. 7 Allen, 16; Howard v. Ullage, 104 Mass. 249; Kitchell v. Mudgett, 37 Mich. 81) ; Willis v. Gay, 48 Tex. 463; s. C. 26 Am. Rep. 328; Poage v. Wabash, 24 Mo. App. 199. 2 White V. Foster, 102 Mass. 375. Inquiry becomes a duty where at- tention has been called to another morigage instrument, even though the party adversely interested says the mortgage has been paid off. Price V. McDonald, 1 Md. 403; s. C. 54 Am. Dec. 657; citing Vattier v. Hinde, 7 Pet. 271; Baynard v. iSTorris, .5 Gill, 483; s. c. 46 Am. Dec. 647. See post, §§223-226. ' Bisco V. Banbury, 1 Ch. Cas. 287; Cambridge Bk. v. Delano, 48 IST. Y. 326; Parke v. Xeeley, 90 Pa. St. 52; Flynt v. Arnold, 2 Met. 619, 625; Coppin v. Fernyhough, 2 Bro. C. C. 291; Hope v. Liddell, 21 Beav. 183.- Where in the deed of a purchaser under whom a p.arty claimed land through sundry mesne conveyances, a restriction as to building thereon was imposed, but, though mentioned and referred to in several of the intermediate deeds, it was not mentioned in. that of the present owner, nor in several of the next preceding mesne conveyances, and" the ques- tion was whether the present owner was chargeable with notice, it was held that though he was not shown to have had actual notice, yet as the conveyances under which he claimed referred to deeds in which the restriction was contained, and these deeds were recorded, he must be taken to have had notice of the existence of such restriction in the orig- inal deeds, and of its consequences. Gibert v. Peteler, 38 Barb. 488, 512; 38 N. Y. 165; S. C. 97 Am. Dec. 785; 3 Wash, on Real Prop. 292. 291 Ch. 7.] THE EFFECT OF EECORD. [§181. tive notice, must refer to an instrument affecting the same land. It win not charge notice in regard to the title of any other land than that conveyed by the deed containing the recital. 1 A recital to a judgment as "entered in Record No. 11 of the records of said court, on page 381," is suf- ficient to charge notice of all that an examination of the judgment would disclose. ^ Notice of an unrecorded deed or lease is not notice of peculiar or unusual covenants therein.' 1 "Webster v. Van Steenburg, 46 Barb. 211; Boggs v. Varner, 6 Watts & S. 469. See Howard v. Halsey, 4 Sandf. 565; S. c. 8 ^^. Y. 271. The record is not notice of any extrinsic agreement not referred to therein. McLanahan v. Eeeside, 9 Watts, .o08; S. C. 36 Am. Dec. t36. 2 Singer V. Scheible, 109 Ind. 575 (s. c. 10 N. E. Repr. 616); citing- Word V. Krebbs, 30 Graft. 70S; Cordova v. Hood, 17 Wall. 1; Lovejoy V. Raymond, 58 Vt. 509. Where a writing, recorded as a separate paper, refers to ''the within mortgage," bat does not in any way describe or identify the mortgage, the record is not notice that the writing recorded was in- dorsed on any particular mortgage not recorded with it, as that is an extrinsic fact not within the purview of the registry laws. Bassett v. Hathaway (Mich., Is62), 1 Am. Law. Keg. 185. 2 Wilbraham v. Livesey, IS Beav. 206. Notice of a deed accom- panied with a statement of its contents which is incorrect does not nec- essarily charge notice of its real contents. Jones v. Smith, 1 Hare, 43; 2 Lead. Eq. Cas. (White & Tudor), 126, 127. For cases illustrating the extent to which recitals in title papers charge notice, see Casey v. luloes, 1 Gill, 430; s. C. 39 Am. Dec. 658; Dean v. Long, 122 111. 447; s. c. 14 N. E. Repr. 34; Burwell v. Fauber, 21 Graft. 446; Kaorr v. Raymond, 73 Ga. 749,775; Martin v. iSTeblett, 86 Tenn. 383; Phillips v. Porter, 3 Ark. 18; s. C. 36 Am. Dec. 448; Prlngle v. Dunn, 37 Wis. 449; s. c. 19 Am. Rep. 772; Delespine v. Campbell. 52 Tex. 4; Reiiick v. Dawson, 55 Tex. 102; Honore v. Black- well, 6 B. Mon. 67; s. c. 4;! Aiu Dec. 147; Johnston v. Gwathmey, 4 Lift. 317; s. C. 14 Am. Dec. 13.j; Smith v. Lowry, 113 Ind. 37; s. C. 15 N. E. Repr. 17; Gilchrist v. Gough, 63 Ind. 57'6; s. c. 30 Am. Kep. 250; Pruden v. Alden, 23 Pick. 184; s. c. 34 Am. Dec. 51; Deason v. Taylor, 53 Miss. 697; Corbitt v, Clenny, 52 Ala. 480; Brush v. Ware, 15 Pet. 93; Morrison v. Kelley, 22 III. 610; s. c. 74 Am. Dec. 169; Hamilton v. Nutt, 34 Conn. 501; Singer v. Scheible, 109 Ind. 575; s. C. 10 N. E. Repr. 616; Green v. Early, 39 Md. 223; Kerr v. Kitchen, 17 Pa. St. 433; ^tna Life Ins. Co. v. Ford, 89 111. 252; Wallace v. Evans, 1 Dak. Ter. 387; Cambridge Bk. v. Delano, 48 N. Y. 329, 336; Buchanan v. Balkum, 60 N. H. 406; DeSepulveda v. Baugh. 74 Cal. 468; s. C. 5 Am. St. Kep. 455; 16 Pac. Repr. 223; Campbell v. Roach, 45 Ala. 667; Weisenburg v. Truman, 58 Cal. 63; Stees v. Kranz, 32 Minn. 313. 292 Ch. 7.] THE EFFECT OF BECOED. [§182. §183. Recitals of Matter of Fact. The recital, in a deed or other conveyance, of a fact af- fecting the title of the property conveyed, is notice of such fact.i If sufficient be stated to put a prudent man on in- quiry, the law imposes the duty of investigation, and im- putes to a subsequent purchaser a knowledge of all facts in- dicated that would have been ascertained by a fairly diligent search. 2 Matters of fact exist in such variety, and the al- lusions to them by recital are often so indefinite, that a proper application of the rule is not unfrequently a matter of difficulty, and each case must of necessity depend largely on its own circumstances.^ What is reasonable diligence in ^ Moore v. Bennett, 2 Ch. Cas. 246. It is immaterial wliether the fact be disclosed in the deed by description of parties, in recital or other- wise. Bacon v. Bacon, Tothill, 133; Jones v. Smith, 1 Hare, 43. 2 Hoy V. Bramhall, 19 N. J. Eq. .593; s. c. 97 Am. Dec. 687; Vreden- burg V. Burnet, 31 N. J. Eq. 221; Gibson v. Winslow, 46 Pa. St. 380; S. C. 84 Am. Dec. 552; Hunt v. Dunn, 74 Ga. 120; Claflin v. Duncan, Id. 348; Wilson v. McCuUoiigh, 23 Pa. St. 440; s. C. 62 Am. Dec. 347; Brinkman v. Jones, 44 AVis. 498; Parker v. Kane, 4 Wis. 1 ; s. C. 65 Am. Dec. 283; Maupin v. Emmons, 47 Mo. 304; Heaton v. Prather, 84 111. 330; 4 Kent Com. 179; Mason v. Black, 87 Mo. 329; s. c. 3 West. Repr. 208; Passumsic v. Nat. Bank, 53 Vt. 82; Littleton v. Giddings, 47 Tex. 109; Russell V. Petree, 10 B. Mon. 184; Blatchley v. Osborn, 33 Conn. 226; Cambridge Bk. v. Delano, 48 N. Y. 326; ISTute v. Nute, 41 N. H. 60. ^ Wethered v. Boon, 17 Tex. 143. Where M. and other heirs of W. made a partition of the lands of W., which, through misapprehension of the law of heirship, gave to M. less than she was entitled to, she was held estopped to afterwards claim a greater interest in the lands divided, as against purchasers thereof from the other parties to the par- tition; and a recital in the ,deed under which such purchasers claimed, to the effect that the lands had been inherited from W. by M. and the other heirs, did not charge them with notice of the true legal rights of M. as heir, nor of the mistake in relation thereto. Wardlaw v. Miller, 69 Tex. 395; s. C. 6 S. W. Repr. 292. Where the recital was that the deed was made subject to "two mortgages for $2,000," and there were two prior mortgages, a recorded one for $1,. 500, and an unrecorded one for $2,000, the recital was held sufficient to charge the purchaser with notice of the latter. Hamilton V. Nutt, 34 Conn. 501. But it has beeu held that a purchaser from one who has covenanted to pay all legal mortgages and incumbrances of whatever nature and description on the premises, is not put upon in- quiry as to any incumbrance not of record, when there is a mortgage of record to which the covenant could properly refer. Racouillat v. Rene, 32 Cal. 450; 1 Jones on Mort., §594. 293 Ch. 7. J THE EFFECT OF RECORD. [§182. a given case cannot be determined by. any general rule. Where a statement concerning the existence of an outstand- ing claim, contract or equity affecting the property, also states that such contract has been rescinded, or such claim or equity has been abandoned or discharged and no longer exists, the purchaser, it seems, may rely on the whole state- ment if it emanates from a third person having no interest in the matter';^ bu,t where, a recital or statement of this kind is made by the grantor or mortgagor, the weight of author- ity is that the purchaser is iriot warranted in relying on the explanation or contradiction of the liability, and is put upon I inquiry.^ . ■ In those sta,tes where the law recognizes both community and separate property of the husband and wife, the legal presumption obtains that property conveyed to either spouse during the existence of the marital relation is com- munity property, unless there are recitals in the deed de- claring, or in some way reasonably indicating, that It is the 1 2 Pom. Eq. Jur., §601, citing In re Briglit's Trusts, 21 Beav: 430; Buttrick v. Holden, 13 Met. 355, 357; Curtis v. Blair, 4 Cusli. (Miss.j, 309, 328; Kogers v. Wiley, 14 111. 65 (s. c. 56 Am. Dec. 491) ; William- son V. Brown, 15 N. Y. 354, 360; 2 Lead. Eq. Cas. (White & T.), 158. In Pringle v. Dunn, 37 Wis. 449, 465; s. c. 19 Am. Kep. 772, one pur- chaser "had heard that there was a defective railroad mortgage on the premises, hut did not loolc for it hecause his abstract did not show it;" ' and' another "knew by report" that there was such a mortgage, etc. Both were held charged with notice ; hut it does not appear in the case from whom the purchasers obtained the information. ~ 2 Price V. McDonald, 1 Md. 403; s. c. 54 Am. Dec. 657; Vattier.v. Hinde, 7 Pet. 271 ; Barnard v. Norris, 5 Gill, 483; s. c. 46 Am. Dec. 647; Hudson V. Warner, 2 Har. & Gill, 415; 2 Lead. Eq. Cas. (White & Tu- dor), 159; Dart on Vendors, 786, ch. 15, §5; Bunting v. Kicks, 2 Dev. & Bat. Eq. 130; Russell v. Petree, 10 B. Mon. 184; Haines v. Haines, (Mich.), 37 N. W. Repr. 563 ; Littleton v. Giddings, 47 Tex. 109. The rule, however, is not imiformly applied. Thus, where the reci|- tal was that a prior bond for title had been given before the issuance of patent, for services to be performed in locating the, land, and that such services were not performed, but that the obligee in the bond was dead, and the bond lost, this was held not to charge notioe'of 'a prior conveyance of the land. Graham v. Hawkins, 38 Tex. 635;. s.'.C. on second' appeal, ' 1' Tex. Un. Cas. 514. See also, Jones v. Smit.faVi Hare, 43; Rogers v. Jones, 8 N. H. 264; Curtis v. Blair', 4 Cusli. (Miss.), 309, 328; Ponder v. Scott, 44 Ala. 241; 2 Pom. Eq. Jur., §601. 294 Ch. 7. J THE EFFECT OF RECOED. [§183. separate property of the one to whom it is conveyed. i Fre- quent illustrations of the sufficiency of recitals to charo'e notice of separate property rights arise in this connection. ^ Thus, a deed to a married woman and her husband, re- citing that it is made in consideration that the heirs and le- gal representatives of Bj (whose widow the feme grantee is), have withdrawn all clairii in and to a certain survey of land on which B. had locatteda land certificate, has been held, sufficient to put prudent persons on inquiry, and to charge them with notice that the feme grantee's interest in her' separate right constituted the consideration of the deed^^ §183. Quit-Clajlm Deed as Charging With Notice. The statutes of a number of the states provide that a deed of quit-claim and release shall pass all the estate that could be lawfully conveyed by deed of bargain and sale;'' and un- der the operation of these statutes, a purchaser by quit- claim deed is usually accorded the full protection of the registry laws as against an outstanding title or equity of 1 Ante. §114; Wren v. Peel, 64 Tex. 374; Schuyler v. Broughtou, 70 Cal. 282 ; Epperson V. Jones, 65 Tex. 425; Moore v. Jones, 63 Gal. 12'; Love V. Robertson, 7 Tex. 20; s. C. 56 Am. Deo. 41; Meyer v.' Kinzer, "12 Cal. 252; s. C. 73 Am. Dec. 538; Alverson v. Jones, 10 Cal. 9; s. C. 70 Am. Dec. 689 ; Osborn v. OsBorn. 62 Tex. 495 ; Peck v. Vandenburg, 30 Cal. 11; Higgins v. Jobnson, 20 Tex. 393; s. c. 70 Am. Dec 394; Huston V. Curl, 8 Tex. 239; s. C. 58 Am. Dec. 110. 2 Heidenheim^er V. McKeen, 63 Tex. 229; Zimpleman v. Robb, 53 Tex. 274; Kirk v. ISTavigation Co., 49 Tex. 215. ^ Montgomery v. ISToyes (Tex.), 11 S. W. Kepr. 138. In California it is held that as to purchasers of the property from the husband, the record of a deed conveying it to the wife, for a money consideration, is sufficient to put them on notice that it may be her separate property, notwithstanding the presumption that it is community property. Mc- Comb V. Snangler, 71 Cal. 419, 427 ; s. C. 12 Pac. Kepr. 347 ; Eamsdell V. Fuller, 28 Cal. 38. ^ Eev. 'Stats. Wis. (1878), §2207; Rev. Code Miss. (1880), §1195; Rev. Stats. Ind.^ (1881), §2924; Pub. Stats. Mass. (1882), ch. 120, §2; Gen. Stats. Minn. (1878), ch. 40, §4; How. Stats. Mich. (1882), §5653; Eev. Stats. Me. (1883), ch. 73, §14; Dig. Fla. (1882), ch. 32, §4; Hill's Ann. Laws of Or. (1887), §3004. 295 Ch. 7. J THE EFFECT OF RECORD. [§183. which he had no notice.^ Aside from these statutes, it is held in a few states that a quit-claim deed does not deprive him who claims under it of the character of a bona fide purchaser; and that as to the effect of the recording acts, there is no distinction between different forms of convey- ance.^ The weight of authority, however, is that one hold- ing title under such a deed is not to be regarded as a bona fide purchaser without notice of equities held by others. * He assumes the risk of title, and takes only what his vendor can lawfully convey ; and is not regarded as a purchaser without notice entitled to the benefits of the registration acts, even though he be a purchaser for value and without 1 Cutlerv. James, 64 Wis. 173; s. C. 24 N". W. Repr. S24; 54 Am. Rep. 603; Snowden V. Tyler, 21 Jfeb. 199; s. c. 31 N". W. Repr. 661; Strong v. Lyun, 38 Minn. 315; s. c. 37 N. W. Repr. 448; Allison v. Thomas, 72 Cal. 562; s. C. 1 Am. St. Rep. 89. This effect is not always given to such statutes. Thus the Oregon statute above (§3001), provider that a deed of quit-claim and release, of the form in common use, shall be sufficient to pass all the estate which the grantor could lawfully convey by a deed of bargain and sale; and yet, on the theory that a grantor cannot lawfully convey that which he has already conveyed to another, it is held in that state that a purchaser by quit-claim takes subject to prior equities. Baker v. Woodward, 12 Or. 3; s. c. 6 Pac. Repr. 173; And see also, Snow v. Lake, 20 Fla. 656; s. c. 1 Am. St. Rep. 625; Martin v. Brown, 4 Minn. 282; De Veaux v. Fos- bender, 57 Mich. 579, in which latter case it was held, under the Mich- igan statute, Judge Cooley dissenting, that where a quit-claim followed sundry mesne conveyances to persons who were aiifected with notice, the grantee in the quit-claim was constructively charged with notice, and not entitled to protection. 2 Graff v Middleton, 43 Cal. 341; F*rey v. Clifford, 44 Cal. 335; Craig V. Zimmerman, 87 Mo. 475; s. c. 56 Am. Rep. 466; Mimson v. Ensor, 94 Mo. 504; s. c. 7 S. W. Repr. 108; Chapman v. Sims, 53 Miss. 163; IDev. on Deeds, §§670-673; Brown v. Banner Coal Co., 97 111. 214; s. c. 37 Am. Rep.' 105; Mart, on Conv., §§59, 285. 3 Butler V. Barclay, 61 Iowa, 491; s. c. 25 X. W. Repr. 747; Bradley V. Cole, Id. 650; Johnson v. Williams, 37 Kan. 179; s. C. 1 Am! St. Rep. 243; 14 Pac. Repr. 537; Woodfolk v. Blount, 3 Hayw. 147; s. 0. 9 Am. Dec. 739; McAdow v. Black, 6 Mont. 601; s. c. 13 Pac. Repr. 357; Thorn v. Newsom, 64 Tex. 161; s. c. 63 Am. Rep. 747; Shepherd v. Hunsacker, 1 Tex. Un.Cas. 578; Knapp v. Bailey, 79 Me. 164; s. c. 9 A tl. Repr, 122; 4 N". Eng. Repr. 147; Smith v. Pollard, 19 Vt. 272; Diok- erson v. Colgrove, 100 U. S. 578; Pastel v. Palmer, 71 Iowa, 157- s C 32 K. W. Repr. 257; anJe, §27. 296 Ch. 7. J THE EFFECT OF RECORD. [§184. actual notice.^ An exception to the rule has in some in- stances been justly recognized in the case of deeds under execution and other judicial sales ;^ and the rule has also been limited to quit-claim deeds in the strict sense of that technical species of conveyances.^ §184. Purchaser From Heir Protected. A purchaser from an heir for valuable consideration and without notice will be protected to the same extent against . an unrecorded deed of the ancestor as though he had pur- chased from the ancestor himself.* Titles when cast by descent are not, as between father and child, different titles, but the title when obtained by inheritance, if the legal ti- tle, is the apparent equitable title upon which all persons may rely in the absence of notice against all outstanding le- gal titles and equities subject to the registration laws.^ The death of the ancestor casts the apparent title on the heir, and a purchaser may deal with him as he would with the ^ In Kansas, where the general rule obtains, a purchaser by quit- claim in possession has been protected against a subsequent grantee by quit-claim who obtained the first record. Trustees v. Hewitt, 35 Kan. 59; s.c. 37, Kan. 107; 14 Pac. Eepr. 540. . . 2 Allison V. Thomas, 72 Cal. 582; s. c. 1 Am. St. Eep. 89; 14 Pac. Eepr. 309; Torrence v. Shedd, 112 111. 466; Ingalls v. Newhall, 139 Mass. 268; Eoberts v. Bourne, 23 Me. 165; s. C. 39 Am. Dec. 614. A quit-claim purchaser from a. trustee protected, the deed of trust being with warranty. Fargason v. Edrington, 49 Ark. 207, 216; S. C. 4 S. W. Eepr. 763. A purchaser at a bankrupt sale acquires only a quit-claim, and held not entitled to protection. Fletcher v. Ellison, 1 Tex. Un. Cas. 661. 3 Ante, §27; Harrison v. Boring, 44 Tex. 255; Dow v. Whitney (Mass.), IB N. E. Eepr. 722; 6 N. Eng. Eepr. 276. A quit-claim made by a wife, but not stating that she w-as a married woman, held to convey ouly her dower interest. Ely v. Wilcox, 20 Wis. 523; s. c. 91 Am. Dec' 436. < Voorhis v. Westervelt, 4i IST. J. Eq. 642; s. 0. 3 Am. St. Eep. 315; S. 0. 12 Atl. Kepr. 533; Youngblood v. Vastine, 46 Mo. 239; Blake v. Graham, 6 Ohio St. 580; s. C. 67 Am. Dec. 360; Powers v. McFarran, 2 Serg. & E. 44; McCulloch v. Endaly, 3 Yerg. 346; Kenedy v. Northrup, 15 111. 158 ; EHis v. Smith, 10 Ga. 253 ; ante, §158 ; Love v. Berry, 22 Tex. 378; Holmes v. Johns, 56 Tex. 52; Earle v. Fisk, 103 Mass. 491. " Lewis V. Cole, 60 Tex. 341 ; Taylor v. Harrison, 47 Tex. 451 ; Zlm- pleman v. Eobb, 53 Tex. 274; contra, Eodgers v. Burchard, 34 Tex. 453. 297 Ch. 7.1 THE EFFECT OF KECOED. [§184. ancestor. Unless this were the rule, one holding an unre- corded deed at the time of- his grantor's death need never register the deed, and a /«a57; Webster V. VanSteenburg, 46 Barb. 211; Funk v. Paul, 64 Wis. 35; s. C. 54 Am. Rep. 576; 24 N. W. Kepr. 419; Buffington v. Garrish. 15 Mass. 156; Johnson V. Graves, 27 Ark. 557; Ashton's Appeal, 73 Pa. St. 153, 162: Halstead v. Bk. of Kentucky, 4 J. .J. Marsh. 554; Harris v. Horner, 1 Dev. &B. 445; s. C. 30 Am. Dec. 182; Chance v. McWhorter, 26 Ga. 315; Repp V. Eepp, 12 Gill & J. 341; Sweeney v. Bixler, 69 Ala 539; Van- Henzen V. Radcliff, 17 N. Y. 580; s. C. 72 Am. Dec. 480; People's Sav. Bk. v. Bates, 120 U. S. 556; S. C. 7 Sup. Ct. Repr. 679; Withers v. Little, 56 Cal. 370; Padgett v. Lawrence, 10 Paige, 170; s. c. 40 Am. Dec. 272; Clarke v. Barnes, 72 Iowa, 563; 34 JST. W. Repr. 419; Tiffany v. Warren, 37 Barb. 571. 2 Overstreet v. Manning, 67 Tex. 657; S. C. 4 S. W. Repr. 248. 3 McKamey v. Thorpe, 61 Tex. 648, 653; Weight v. Douglass, 10 Barb. 107; Dickerson V. Tilliaghast, supra. * Hunter V. Watson, 12 Cal. 373; s. C. 73 Am. Dec. 543; Cammack v. Soran, 30 Graft. 292, 295; Exchange Bk. v. Knox, 19 Gratt. 739; Evans V. Greenhow, 15 Gratt. 153; Fry v. Clifford, 44 Cal. 335; Partridge v. Smith, 2 Biss. 183, 187; Bayley v. Greenleaf, 7 Wheat. 46; Metford v. Metford. 9 Ves. 100; Babcock v. Jordan, 24 Ind. 14; Gassen v. Heu- drick 74 OpI 444; S. C. 16 Pac. Repr. 242; Work v. Brayton, 5 Ind. 333 Ch. 8.] CREDITORS AND SUBSEQUENT PURCHASERS. [§208. §208. Extension of Time— Surrender of Security, and the Like. While the satisfaction or security of a pre-existing debt is not alone, under the general rule, a valuable consideration within the meaning of the recording acts, yet if the cred- itor, in connection therewith, has been induced by the trans- action to change his position for the worse, the rule is dif- ferent, and the claim of valuable consideration may be sus- tained. ^ Thus, the surrender or cancellation of a security held by the creditor will be sufficient.^ So, the giving of an extension of time, however short, upon the debt, is a val- uable consideration for a mortgage taken as security.^ By 396; 2 Story's Eq. Jur. 657; Soule v. Shotwell, 52 Miss. 230; Kuth v. Ford, 9 Kan. 17; City Bank v. Goodrich, 3 Colo. 139; Wert v. JSTaylor, 93 Ind. 431. The later Indiana cases qualify the earlier to the extent of requiring an extension of time or surrender of some security. Q-il- christ V. Gough, 63 Ind. 576; s. C. 30 Am. Rep. 250. Where a second mortgage of chattels is for a pre-existing debt, but the mortgagee enters into possession and assumes control of the busi- ness connected therewith, the responsibility thus assumed becomes a valuable present consideration. Clark v. Barnes, 72 Iowa 563 ; s. c. 34 N. W. Repr. 419, citins Trustees v. Hill, 12 loWa, 462; Ryan v. Chew, 13 Id. 589. In a few states a distinction is made between cases where the second conveyance is taken as security for an antecedent debt, and cases where it is taken in absolute discharge of the debt; and in the latter, though not in the former instance, it is held to constitute valuable considera- tion. Compare with cases cited in the preceding notes to this section, Saffold V. Wade, 51 Ala. 214; Ohio Co. v. Ledyard, 8 Ala. 866; Mobile Co. V. Randall, 71 Ala. 220; Boon v. Barnes, 23 Miss. 136; Love v. Taylor, 26 Miss. 567: Upshaw v. Hargrove, 6 Sm. & Mar. 286, 292; Don- aldson v. Bank, 1 Dev. Eq. 103. The rule requiring the actual payment of the consideration does not apply to any but the original purchaser from the person from whom both parties claim ; the subsequent purchaser being protected by virtue of his immediate grantor's title. Webster v. VauSteenburg, 46 Barb. 211; ante, §155. J SteflSan v. Bank, 69 Tex. 517; s. C. 6 S.W. Repr. 823; Dickerson v. Tillinghast, 1 Paige, 214; s. C. 25 Am. Dec. 528; VanHeuseu v. Rad- cliff, 17 N. Y. 580; S. C. 72 Am. Dec. 480; Rosborough v. Messick, 6 0. St. 548; S. C. 67 Am. Deo. 346; McLeod v. First National Bk. 42 Miss. ,99; Munn V. McDonald, 10 Watts, 270; Farmers' Bank v. Wallace 45 O. St. 153; s. 0. 12 N. E. Repr. 439. 2 Padgett V. Lawrence. 10 Paige, 170; s. C. 40 Am. Dec. 272; Good- man v. Simonds, 20HOW. (U. S.), 343, 371; Youngs v. Lee, 12 N". Y. 551: Spurlock V. Sullivan, 36 Tex. 511. 3 Gilchrist v. Gough, 63 Ind. 576 ; s. C. 30 Am. Rep. 250; 19 Alb. Law Jour. 276; Busenborke v. Ramey, 53 Ind. 499; Thames v. Rembert, 334 Ch. 8. ] CREDITORS AND SyBSEQUENT PURCHASERS. [§209. extending the time of payment the creditor yields up for a season his right of action, which is a privilege deemed of value in law, and suiEcient to support the claim of an inno- cent purchaser.^ §209. Mortgagee a Purchaser. It is settled by statute in some states, and by judicial de- cision in most others, that a mortgagee is a purchaser within the meaning of the recording aots.^ The proposition is subject to the qualification that where the mortgage is to secure a pre-existing debt, and such debt is not, of itself alone, recognized as a valuable consideration, then the mortgagee must have given an extension of time, or sur- rendered some security, or otherwise brought himself within the definition of a purchaser for value under the re- cording acts.^ As to an assignee of a mortgage, the rule is not quite so well settled. In a conisiderable number of 63 Ala. 561; Griswold v. Davis, 31 Vt. 390; H.ile v. Omaha Bank, 33 ]S". Y. Sup. Ct. 40; Bay v. Coddington, 20 .Johns. 637; s. c. 11 Am. Dec. 342; Port v. Bmbree, 54 Iowa, 14; Ingram v. Morgan, 4 Humph. 66; Schumpert v. Dillard, 55 Miss. 348; Sargent v. Sturm, 22 Cal. 359; Farmers' Bk. v. Wallace, supra; Downing v. Bhiir, 75 Ala. 216. 1 Steffian v. Bank, 69 Tex. 513, 517; Cook v. I'arham, 63 Ala. 456; Whitfield V. Riddle, 7S Ala. 99; bat see Pepper v. (x^iorge, 51 Ala. 190. 2 Stetfian v. Bank, 69 Tex. 513, 515; Huffman v. Blum, 64 Tex. 334; Fargason v. Edrington, 49 Ark. 207, 214; s. C. i S.W. Repr. 763; Seev- ers V. Delashmut, 11 Iowa, 174; s. C. 77 Am. Dec. 179; Walton v. Tizzard, 15 Iowa, 495; Cook v. Parham, 63 Ala. 456; Halbert v. Mc- Cullooh, 3 Met. 456; Dickerson v. Tillinghast, 1 Paige, 214; s. C. 25 Am. Dec. 528; Moore v. Walker, 3 Lea, 656; Chapman v. Miller, 130 Mass. 289; Haynsworth v. Bischoff, 6 S. Car. 159; Weinberg v. Rempe, 15 W. Va. 829; Brophy v. Brophy, 15 Nev. 101; Pierce v. Faunce, 47 Me. 507; Stockton v. Craddick, 4 La. Ann. 282; Martin v. Jackson, 27 Pa. St. 504; Salter v. Baker, 54 Cal. 140; .Jordan v. McXeill, 25 Kan. 459; Singer V. Chalmers, 2 Utah. 542; Willoughby v. ■\VUIoughby, 1 T. R. 763; Bailey v. Crim, 9 Biss. 95; Keith v. Uiugham (Mo.), 10 S. W. Repr. 32. 3 Gilchrist v. Gough, 63 Ind. 576; s. C. 30 Am. Rep. 250; Busen- borkev. Ramey, 53 Ind. 499; Carey v. White, 52 N. Y. 13S; Ashton's Appeal, 73 Pa. St. 153. And for instances In which a mortgagee will not ba considered a purchaser, see further, James v. Moray, 2 Cow. 246; S. c. 14 Am. Dec. 475; Berry v. Mut. Ins. Co., 2 Johns. Ch. 612; Searing v. Brinkerhoff, 5 Id. 331; Van Rensaeller v. Sheriff, 1 Cow. 801; Bybee v. Hawkett, 12 Fed. Repr. 649. 335 • Ch. 8.1 CREDITORS AND SUBSE(SaENT PURCH.VSEKS. [§210- the states assignments of mortgages are expressly placed within the recording acts;i but where this has not been done, it is held in many oases that such an assignee is not a purchaser within the meaning of the registry laws;^ while in others it is held by judicial iaterpretation that such an assignment is a conveyance within the meaning of the reg- istry law.-' In Alabama it has been held that a mortgagee whose mortgage is tainted with usury is not a bona fide purchaser; and in Georgia, that the record of an absolute deed which fails, under the statute, to pass the legal title on account of usury, is not notice of the instrument as an equi- table mortgage such as to postpone a junior judgment lien.* §210. Trustee a Purcliaser. A deed of trust is technically a deed,^ and is now gener- ally considered in legal effect as a mortgage with power of sale. 8 The trustee, unless he be a trustee for, the benefit of creditors generally, is regarded as a purchaser for value, ^ See ante, §33, and authorities there cited; also, §§174, 203. 2 The Conn. Co. v. Talbot, 113 Ind. 373; s. C. 3 Am. St. Rep. 655; 14^^.E. Repr. 580; Dixon v. Hunter, 57 Ind. 278; Watson v. Dundee, 12 Or. 474; s. c. 8 Pac. Repr. 548; Oregon Trust Co. v. Shaw, 5 Sawy. 336; Gordon V. Rixley, 76 Va. 694, 701. s Pepper's Appeal, 77 Pa. St. 373; Purdy v. Huntington, 46 Barb. 389; s. c. 1 Am. St. Rep. 532; jSTeider v. Pennypacker, 9 Phila. 86; Westbrook V. Gleason, 79 N". Y. 23; Phillips v. Bank, 18 Pa. St. 394, 401; St. John v. Spalding, 1 Thomp.& C. (N. Y.), 483; Smith v. Knick- erbocker, 84 N. Y. 589; Stein v. Sullivan, 31 N. J. Eq. 409; MoCor- mick V. Bauer, 122 111. 673; s. O. 13 N. E. Repr. 862; Bowling v. Cook, 39 Iowa, 200; Smith v. Keohane, 6 Bradw. (111.), 585; and other cases cited in 1 Jones on Mort., §§472^78. In Xew York powers of attorney to assign a mortgage, and to collect and discharge it, have been held to be not within the recording acts. Williams v. Birbeck, Hoffm. 369; Jackson v. Richards, 6 Cow. 617. ■• McCall V. Rogers, 77 Ala. 349; Johnson v. Wheelock, 63 Ga. 623; Code Ga., §2024. Such a deed will not be regarded as an equitable mort- gage. Broach v. Smith, 76 Ga. 169;joverruling Bullard v. Long, 68 Ga. 821, and Sugart v. Mays, 64 Ga. 654. * Branch v. Atlantic, etc., Ry. Co., 3 Woods, 481, ante, §35. « Jackson V. Harby, 65 Tex. 710; McLane v. Paschal, 47 Tex. 365; Baldwin v. Peet, 22 Tex. 718; Flint v. Auditor Gen. 41 Mich. 636; Sar- gent V.Howe, 21 111. 148; Turner v. Watkins, 31 Ark. 429; Webb v. Hoselton, 4 BTeb. 308; Woodruff v. Robb, 19 Ohio, 212; Bennett v. 336 Ch. 8. J CREDITORS AND SUBSEQUENT PURCHASERS. [§210. and holds the property free from prior claims, equities and secret trusts of which he had no notice at the time of the •conveyance. 1 Statutes relating to the recordino' of mort- gages embrace deeds of trust without special mention of the latter, as also do those relating to powers of sale con- tained in mortgages." Notice to the trustee of fraud on the part of the grantor in executing the trust deed is notice to the cestui que trust.^ Deeds of trust are unknown to the Louisiana system, and in that state the record of a deed of trust in the book of mortgages has been held to give it no priority over a subsequently recorded mortgage.* Union Bank, 5 Humph. 612; Xewinan v. Samuels, 17 Iowa, 528; Wright T. Buudy, 11 Ind. S98; Lenox v. Keed, 12 Kan. 223. But while a mortgage with power of sale may be assigned, in the absence of words restricting an assignment, and the power of sale passes thereby, a deed of trust to secure a debt, being a confidence reposed, Kjanuot be delegated, and no assignment is possible without an express and positive permission in the deed. 2 Pom. Eq. Jur., §99.5, citing Whittlesey v. Hughes, 39 JIo. 13; Pickett v. Jones, 03 JIo. 195, 199. A deed of trust is not by all the courts regarded as a mortgage. Thibodeaux V. Anderson, 34 La. Ann. 797; G-rant v. Burr, .54 Cal. 298; Wilkins v. Wright, 6 McLean, 340; Bank of Commerce v. Lanahim, 45 JVId. 390, and other cases cited in 2 Pom. Eq. .Jur., §995, from which I have borrowed for this section. 1 Fargason V. Edrington, 49 Ark. 207, 214; s. 0. 4 S. W. Repr. 763; ■Ghersonv. Pool, 31 Ark. 85; Gilchirst v. Gough, 63 Ind. 576; s. c. 30 Am. Rep. 250; Wickham v. Lewis, 13 Gratt. 427; Cook v. Parham, 63 Ala. 450; Kesner v. Trigg, 98 U. S. 50; Schumpert v. Dillard, 55 Miss. 34,S; Post V. Embree, 54 Iowa, 14; s. c. 6 N. W. Repr. 83. 2 2 Pom. Eq. Jur., §995, citing Crosby v. Huston, 1 Tex. 203, 239; Woodruff V. Robb, 19 Ohio, 212; Magee v. Carpenter, 4 Ala. 469; Wood V. Lake, 62 Ala. 489 ; Schultze v. Houfes, 96 111. 335; Farrar v. Payne, 73111.82; Martin V. Reed, 30 Ind. 218; Pope v. Durant. 26 Iowa, 233; Lyons v. Field, 17 B. Mon. 543; Tatum v. HoUiday, 59 Mo. 422; Elliott V. Wood, 45 N. Y. 71; s. c. 53 B.arb. 285; Caldwell v. Bowen, 4 Sneed, 415, and other cases, besides numerous statutes. ' Pope V. Pope, 40 Miss. 516. If the deed of trust be to provide for the payment of creditors generally, the trustee in such case is subject to the law applicable to an assignee for the benefit of creditors, as given in the next section. Where a subsequent purchaser has actual notice of a trust affecting the property, he takes subject to it. Minton v. Pickens, 24 S. Car. 592; Zimmerman v. Kinkle, 108 N. Y. 282; s. C. 15 N. E. Repr. 407; 11 Cent. Repr. 118; Jones v. Shaddock, 41 Ala. 362; West v. Fitz, 109 111. 425; Daniels V. Davidson, 16 Beav., Sr., 249; Liggett v. Wall, 2 A. K. Marsh. 149; Oliver v. Piatt, 3 How. (44 U. S.), 333. * Thibodeaux v. Anderson, 37 La. Ann. 797. In this case the court clearly defines the difference between a common law mortgage, and one "(22— Reg. of Title.) 337 Ch. 8.] CEEDITOES AND SUBSEQUENl PURCHASEKS. [§211. §211. Assignee for Benefit of Creditors not a Pur- chaser. An assignment for the benefit of creditors generally,be- ing a transaction which has solely in view the satisfaction of antecedent indebtedness, the assignee, under the general rule already stated, is not a purchaser for value, and as against prior equities, he occupies no better position with respect to the property conveyed than the creditors themselves, whose claims not secured by lien, must yield to an unrecorded conveyance of specific property, or other equity of the kind.i Nor has such an assignee the tight, unless the power be expressly conferred by statute, to attack a prior deed or mortgage by the assignor on the ground that it was made in fraud of creditors. ^ Where, as by the terms of the statutes of a few states, an unrecorded mortgage is made absolutely void as against third parties, it is not good against an assignee for the benefit of creditors* under the Louisiaaa system; and Mr. Justice Todd, in his dissenting opinion, cites a number of cases in which deeds of trust have there been treated as mortgages. Hutchins v. Field, 10 La. Ann. 237; Watson v. James, 15 Id. 3-y. 1 Keller v. Smalley, 63 Tex. 519; Harris v. Horner, 1 Dev. & B. Eq. 455; s. C. 30 Am. Dec. 182; Williams v. Windsor, 12 R. I. 9; Roberts v. Austin, 2;i Iowa, 327; In re Collins, 12 Biatch. 548; Pierson v. Manning, 2 Mich. 464; Tyler v. Aberg, 65 Md. 18; s. c. 2 Cent. Repr. 851; 3 Atl. Repr. 904; Ratcliff v. Longston, 18 Md. 391; Spackman v. Ott, 65 Pa. St. 131; Joslin v. Cowee, 60 Barb. 4S; Clark v. Flint, 22 Pick. 231; S. c. 33 Am. Dec. 733; Willis v. Henderson, 4 Scam. 13; Van Heusen v. Rad- oliff, 17 N. Y. 28; s. O. 72 Am. Dec. 480; Burrill on Assignments, 391; Heinrichs v. Wood, 7 Mo. App. 236; Peet v. Spencer, 90 Mo. 384; s. C. 3 S. W. Repr. 434. 2 Stewart v. Piatt, 101 U. S. 735; Clapp v. Kordmeyer, 25 Fed. Repr. 71; Keller V. Smalley, 63 Tex. 520; Browell v. Curtis, 10 Paige, 217; Estabrook v. Messersmith, 18 Wis. 551; Walker v. Miller, 11 Ala. lOSl. But see, contra, Hanes v. Tiffany, 25 O. St. 549; Q-oodrich v. Michael, 3 Colo. 77; Bridgeford v. Adams, 45 Ark. 136. The statute may confer such right. Southard v. Benner, 72 N. Y. 427; Barton v. Hosner, 24 Hun. 468; Oady v. Whaling, 7 Biss. 434; but without such statute even a creditor who recovers judgment against the assignor, after the making of a valid assignment, cannot challenge a previous disposition of prop- erty by the assignor. Sullivan v. Miller, 40 Hun. 516. s Bloom V. Noggle, 4 O. St. 45; Erwiu v. Shuey, 8 O. St. 509. It has been held in Ohio that the invalidity of a mortgage because of the absence therefrom of a statutory affidavit of liability, could be claimed 338 Ch. 8. J CREDITORS AND SUBSEQUENT PURCHASERS. [§212. §212. Purchaser at Execution Sale Protected. The fact that a sale is made under executioa or other judicial process does not, of itself, deprive the buyer thereat of the protection accorded to a bona fide purchaser. ^ Whether he is to be regarded as such or not, will depend on the application of the principles already stated. If un- der the registry statute the lien of the judgment is made superior to an unrecorded conveyance or an equitable in- terest not of record, the purchaser, because of the priority accorded to the lien, will be protected though he has actual notice, if the judgment creditor had none when his lien at- tached.^ And if the creditor had notice, or if the judgment lien be not given precedence, yet if the purchaser had no ty an assignee in trust for the benefit of creditors. Hanes v. Tiffany, 25 O. St. 549. In Tennessee an assignment for the benefit of creditors has prefer- ence, it seems, over an unrecorded deed, it taljen without actual notice. Nailer y-. Young, 7 Lea. 737; Sh:irp v. Fly, 9 Baxt. 5; and in Virginia where the rights of crediiois receive the fullest measure of proteciion, such an assignee is a bona fide purchaser for value. Gregg v. Sloan, 76 Va. 497, 499; Williams v. Lord, 75 Va. 390, 404; as also in Arkansas, Bridgeford v. Adams, 45 Ark. 136; and see also, Goodrich v. Michael, 3 Colo. 77. In New York the fact that the statute of assignments requires therec- ord of a deed of assignment in the oflice of the county clerk, will not, where it embraces real estate, exempt it from the operation of the registry laws requiring its record in the office of the register of deeds. Wagner v. Hodge, 34 Hun. (41 N. Y. Sup. Ot.), 524. Notice to the assignee, of circumstances attending the execution of the deed, held not notice to the creditors. Brooks v. Marbury, 11 Wheat. 78. 1 Holmes v. Buckner, 67 Tex. 107, 112 ; Davis v. Gaines, 104 U. S. 386 ; Halloway v. Platner, 20 Iowa, 121; s. C. 89 Am. Dec. 517; McKnight v. Gordon, 13 Kich. Eq. 222; s. C. 94 Am. Dec. 164; Scribner v. Lock- wood, 9 Ohio, 184; Foorman v. Wallace, 75 Gal. 552. 2 Wood V. Chapin, 13 N. Y. 509; s. C. 67Am. Dec. 62; Grace v. Wade, 45 Tex. 527; Nugent v. Priebatsch, 01 Miss. 402; Calder v. Chapman, 52 Pa. St. 359; Smith v. Jordan, 25 Ga. 687; Guiteau v. Wisely, 47 111. 433; Potter V. McDowell, 43 Mo. 93; Fash v. Ravesies, 32 Ala. 4:)1 ; Green- leaf v. Edes, 2 Minn. 264; Sharp v. Shea, 32 N. J. Eq. (6 Stew.) 43; Condit V. Wilson, 3G N. J. Eq. 370. In Mississippi the rule is applied in favor of the judgment lien, although, aside from this, a purchaser at execution sale is not there regarded as a bona fi.de purch.aser for value. Nugent v. Priebatsch, 61 Miss. 402; citing Loiighridge v. Bowland, 52 Mi-s. .'ilij; Duke v. Clark, 58 Miss. 465, and overruling Simmons v. North, 3 Sm. & M. 67. 339 Ch. 8.] CREDITOKS AND SUBSEQUENT PURCHASEES. [§213. notice at the time he bought, he will be protected under the general rule, just as though he had bought at voluntary sale directly from the debtor.^ But if the creditor had notice when his lien attached; or if, under the rule of equity, unaf- fected by registry statute, the judgment lien is inferior to a prior um-ecorded conveyance or right, even without notice thereof, then one who receives notice of such prior right or claim, at or before he purchases under the judgment, takes subject to it, and is not a bona fide purchaser.^ Aside from any and all question of notice, a purchaser at execution sale is not regarded, by some of the courts, as a bona fide pur- chaser entitled to protection.^ §213. Purchaser at Bankrupt Sale 5fot Protected. The general rule protecting an execution purchaser does not apply to a purchaser at bankrupt sale. An assignee in bankruptcy or insolvency takes only the debtor's rights, in 1 Ayresv. Duprey, 27 Tex. 593, 605; s. C. 88 Am. Dec. 657; Holmes v. Buckner, 67 Tex. 112; s. C. 2 S. W. Repr. 452; Rev. Stats. Tex., §2318; Sieman v.- Schurck, 29 N". Y. 52S; Miles v. King, 5 S. Car. 146; Paine v. Mooreland, 15 Ohio, 435; Den v. Richman, 1 Green, 43; Ehle v. Brown, 31 Wis. 405; Ohio Life Co. v. Ledyard, 8 Ala. 866; Runyan v. McClel- land, 24 Ind. 165; Morrison v. Funk, 23 Pa. St. 421; Fords v. Vance, 17 Iowa, 94; Cooper v. Blakey, 10 Ga. 2S3; Hosier v. Hall, 2 Ind. 556; s.C. 54 Am. Deo. 460; McXitt v. Turner, 16 Wall. 352. 2 First Nat'l Bank v. Hayzlett, 40 Iowa, 659; Righter v. Forrester, 11 Bush, 27S; Burn v. Burn, 3 Ves. 582; Pixley v. Huggins, 15 Cal. 127; Holden V. Garrett, 23 Sian. 98; Orth v. Jennings, 8 Blackf. 420; Kelly v. Mills, 41 Miss. 267; Jackson v. Dubois, 4 Johns. 216. 3 Polk V. Gallant, 2 Dev. & Bat. Eq. 395; s. C. 34 Am. Dec. 395; Draper v. Bryson, 26 Mo. 108; s. c. 69 Am. Dec. 483; Taylor v. Lowen- stein, 50 Miss. 278; "Walker v. Moody, 65 N. C. 699; Hart v! Felder, 4 Desaus' Eq. 202. Especially if he be the judgment creditor. Dicker- son v. Tillinghast, 4 Paige, 215; s. c. 2o Am. Dec. 528; Sargent v. Sturm, 23 Gal. 359; Vatier v. Lytle, 7 Ohio, 477"; Wright v. Douglass, 10 Barb. 97; contra, Wallace v. Campbell, 54 Tex. 87; Newman v. Davis (Ark.), 24 Fed Repr. 609. The purchaser is in all cases chargeable with notice whether the court had jurisdiction to render the judgment. Stegall v. Huff, 54 Tex. 193; Collins v. Miller, 64 Tex. 118. In Colorado, under statute giving priority to the deed first recorded, a purchaser at sheriff's sale, though he be the judgment creditor, is protected if his certificate of sale is recorded before the prior deed from tlie debtor. McMurtrie v. Riddell, 9 Colo. 497; s. c. 14 Pac. Repr. 181. 340 Ch. 8.] CREDITORS AND SUBSEQUENT PURCHASERS. [§213. the absence of fraud in fact ; and consequently is affected with all the claims, liens and equities which would affect the debtor if he were himself asserting his interest in the property. 1 The assignee gains no rights over those pos- sessed by the bankrupt, by reason of the assignment ; hence an unrecorded prior conveyance, valid between the parties, is valid against the grantor's assignee.^ The rule of caveat emptor applies to bankrupt sales, and the purchaser takes the property subject to all the equities with which it was chargeable in the hands of the bankrupt.^ An exception to the rule as to the rights of the assignee exists in cases of fraud; in this respect he is so far considered as repre- senting the rights of the creditors that any conveyance which would be void for fraud as against general creditors, will be void against the assignee.* In some cases this view that the assignee, as representing the creditors, has a stronger right than the bankrupt, has been pushed further, and the assignee permitted to contest other rights and claims to the property which the bankrupt could not con- test, and upon other grounds than fraud. ^ 1 Eenick v. Dawson, 55 Tex. 102; Stewart v. Piatt, 101 U. S. 731; Nat'l Bank v. Conway, 14 Nat. Bank Reg. 513; s. C. 1 Hughes, 37; In re Griffiths, 1 Lowell, 431; Fletcher v. Morey, 2 Story, 555. This is the rule recognized also in England. Mltford v. Mitford, 9 Ves. 87; Sherrington v. Yates, 12 Mees. & Wei. 855; Brown v. Heath- cote, 1 Atk. 160; Jones on Chat. Mort., §241. 2 la re Collins, 12 Blatoh. 548, 552; s. C. 12 jST. B. R. 379; Mitchell v. Winslow, 2 Story, 630; Yeatnian v. Savings Institution, 95 U. S. 764; Johnson V. Patterson, 2 Wood?, 443; Lire Bruce, IB Nat. B. Reg. 318; Coggeshall v. Potter, 1 Holmes, 75; s. c. 4 JST. B. Reg. 73; Shawhan v. Wherritt, 7 How. 627. ' Eenick V. Dawson, 55 Tex. 102; Fletcher v. Ellison, 1 Tex. Un.Cas. 6G1; McKiernan V. Fletcher, 2 La. Ann. 438; Baker v. Vining, 30 Me. 21; Anderson v. Miller, 15 Miss. (Sm. & M.), 586; Bump on Bank'cy (9th ed.), 471, 484. < Winsor v. McClelland, 2 Story, 492 : In re Wynne, Chase's Dec. 227, 250; In re Collins, 8 Ben. 59, 60; S. 0. 12 Nat. B. Reg. 379; Bank v. Hunt, 11 Wall. 391. ' Moore v. Young. 4 Biss. 128, 135, construing statute of Indiana; Harvey v. Crane, 2 Biss. 496 ; Goodrich v. Michael. 3 Colo. 77 ; In re Werner, 5 Dill. 119; Bingham v. Jordan, 1 Allen, 373; Lockwood v. Slevin, 26 Ind. 124; In re Gurney, 7 Biss. 414. 341 Ch. 8.] CKEDITOES AND SUBSEQUENT PUECHASEES. [§214. §214. Purcliaser of Same Property from Same Grantor. The purchaser who is protected by the recording acts must be a purchaser from the grantor ia the prior unre- corded conveyance; but it is not meant by this that he i must have purchased directly from such grantor himself. ' He is within the meaning and spirit of the law if he is a purchaser in the subsequent line of title under such grant- or.^ Nor is it necessary to his protectioa that all the intermediate conveyances forming his chain of title should be recorded.^ The subsequent purchaser as to whom an unrecorded deed is void is a subsequent purchaser of the same subject or tract from the same vendor, and not a pur- Ichaser of a different tract; and one subsequent purchaser cannot invoke this provision as against another purchaser 'in order to primarily subject the tract bought by the othet to the satisfaction of a judgment lien existing when both purchases were made.^ In Virginia it is held that an as- signee of a mortgage, or of purchase money notes, is not a purchaser of the real estate, and as the statute has not pro- vided for the record of transfers of choses in action, such 1 Pallas V. Pierce, 30 Wis. 443 ; Flynt v. Arnold, 2 Mete. 619. A con- trary view seems to have been advanced in Raynor v. Wilson, 6 Hill, 469; but if this were correct, then the notice imparted by the record would not extend beyond the first purchaser, and the many decisions ■ that the record protects subsequent purchasers in the same line o£ title, would not be sound in principle. See ante, §162. 2 Wood V. Chapin, 13 IST. Y. 509, 515; s. C. 67 Am. Deo. 52. Where the statute gives priority to a subsequent deed only where it is first recorded, such prior record is usually held essential to the protec- tion of the subsequent purchaser. Mansfield v. Gregory, 8 STeb. 432; s. C. 9 K. W. Repr. 87; McJIurtrie v. Riddell, 9 Colo. 497; s. C. 14 Pao. Repr. 181. * Herman v. Oberdorfer, 33 Grratt. 497. Several lots of land were sold by the vendor on the same day, and same terms, to several parties, all of whom were immediately put into possession under the same agree- ment as to the deeds to be made to them. Although the deeds are then afterwards really delivered and recorded at dlEferent times, they will all be regarded as of the same date, in subjecting them to the lien of a judgment docketed at the time of the sale; and the rule subjecting them in the inverse order of alienation has no application. Id., citing Horton v. Bond, 28 Gratt. 8ll 342 Ch. 8. J CREDITORS AND SUBSEQUENT PURCHASERS. [§214. a purchaser is not protected.' The rules under which, in a large majority of the states, such a purchaser is protected, have been already considered.^ 1 Gordon v. Rixley, 76 Va. 694, 701, citing Gregg v. Sloan. 76 Va. 497 ; Kirkland v. Brune, 31 Gratt. 126. 2 See as to vendor's lien, ante, §§19, 20, 172; and as to assignments of mortgages, §§33, 174, 203, 209. A duly recorded voluntary conveyance not void as to subsequent cred- itors. Art. 2466, Rev. Stats, of Texas, provides that every conveyance "made by a debtor -which is not upon consideration deemed valuable in law, shiill be void as to prior creditors, unless it appears that such debtor was then possessed of property within this state subject to exe- cution, sufficient to pay his existing debts; but such conveyance shall not on that account merely be void as lo subsequent creditors, and though it be decreed to be void as to prior creditors, because voluntary, it shall not for that cause be decreed to be void as to subsequent cred- itors or purchasers." The use of the word "merely" in the statute is held to indicate that cases might arise in which a voluntary conveyance should be held void even as to subsequent creditors; as where a grantor voluntarily conveys to his wife or children, and causes the deed to be withheld from the record, intending thereby to obtain credit upon faith of still being owner of the property conveyed, and does obtain such credit. This would present a strong case for holding the conveyance fraudulent, although it might be placed on record before the creditor secured a lien upon the property by judgment or otherwise. But in this case the voluntary deed from Simon to his wife was placed upon record the day of its execution, and notice was given to the world that the grantor had parted with his title to the property; hence the general rule is applied, that "a subsequent creditor who acquired his claim with knowledge or notice of the conveyance sought to be anulled cannot attackit as fraudulent;" citing Wait's Fraud. Con v., §106; Baker V. Gilraan, 52 Barb. 39; Lehmberg v. Biberstein, 51 Tex. 4.57; DeGaroa V. Galvan, 55 Tex. 53; Van Bibber v. Mathis, 52 Tex. 406. Evidence that Simon was at the time of the voluntary conveyance indebted in an amount in excess of the value of his assets, and soon thereafter began operating and speculating upon a larger scale than before, and shortly became insolvent, held not to take the case out of the general rule. Lewis V. Simon, 72 Tex. 470; and to same effect, see Kane v. Roberts, 40 Md. 590; Williams v. Banks, 11 Md. 250; ante, §194. 343 Ch. 9.] ACTUAL NOTICE. [§215. CHAPTBE 9, ACTUAL irOTICE. §215. Origin of the doctrine of actual notice. 216. The equity of the rule prevails. 217. Exceptions to the rule. 218. Continued. 219. The several kinds of actual notice. 220. Continued — Degrees of notice. 221. Constructive and implied notice. 222. Statutory distinctions as to actual notice. 223. Putting on inquiry. 224. Sources of information. 225. Vague statements and rumors. 226. Inquiry to be prosecuted. 227. Presumption of notice rebuttable. 228. Possession as notice. 229. Exceptions to the rule. 230. Grantor remaining in possession. 231. Grantor's possession is notice. 232. Possession referred to record title. 233. Possession must be open and notorious. 234. Possession must be actual. 235. Joint possession as notice. 236. Possession by tenant is notice. 237. Possession must be existing and continuous. 238. Notice to agent is notice to principal. 239. Scope of rule — Partners, trustees, officers, etc. 240. Character of the agency. 241. Notice in same transaction. 242. Agent acting for both parties and for his own benefit. 243. Where agent is guilty of fraud. 244. Notice to officers and agents of corporations. §215. Origin of the Doctrine of Actual Notice. The rule that actual notice of an unrecorded conveyance is in its effect equivalent to a registry of the instrument, is nearly as old as the registry law itself. The statute of 7th Anne, quoted in the first section of this work, gave priority 344 Ch. 9.] ACTUAL NOTICE. [§216. to conveyances according to the priority of their record, without any proviso that the subsequent conveyance that might be first recorded, should liave been taken without no- tice or knowledge of the earlier one. But the preamble of the statute recites that it was enacted for the prevention of fraud, and this purpose is further evidenced by the language used in the body of the act declaring that an unregistered conveyance should be adjudged "fraudulent and void" as against a subsequent one first duly registered. These sug-' gestions of the intent of the law led the English courts of equity at an early day to declare the rule that a purchaser with actual knowledge or notice of a prior conveyance of the property, not registered, took subject thereto. "The ground of it," said Lord Hardwicke, "is plainly this, that the taking of a legal estate after notice of a prior right makes a person a mala fide purchaser, and not that he is not a purchaser for a valuable consideration in every other respect. This is a species of fraud and dolus malus itself; for he knew the first purchaser had the clear right of the estate, and after knowing that, he takes away the right of another person by getting the legal estate."^ §316. The Equity of the Rule Prevails Over its Dis- advantages. The policy of admitting evidence of actual notice to de- termine the right of priority is attended with all the dangers and uncertainties incident to parol evidence when used for the purpose of affecting written instruments and disturbing titles;^ and for this reason an expression of regret is to be found in some of the English cases that the courts should ever have suffered the question of actual notice to be ag- ' LeNeve v. LeNeve, Arab. 436; S. C. 1 Ves.64; 3 Atlc.646, and given ali=o, with very full notes, in 2 Eq. Lead. Cases (Wtiite & Tudor, 4 Am. ed.), 113-119. 2 Bloom V. Noggle, 4 O. St. 45. As to the impolicy of admitting parol evidence to vary or impeach the certificate of acknowledgment, see Canal Co. v. Kussell, 68 111. 426; Donohue v. Mills, 41 Ark. 421; anU, §887-90. 345 Ch. 9. J ACTUAL NOTICE. [§216. itated against one whose coaveyaace is duly recorded. ^ In thus eno-rafting upon the registration law exceptions to its literal import and application in order to meet the equitable consequences of actual notice and prevent a fraudulent use of the statute, the courts have seriously broken in upon the symmetry and impaired the effectiveness of the registry system; but an unwillingness to tolerate fraud, or to permit advantage to be taken of the law to obtain an unfair prior- ity, has so far, with but a limited exception, continued to prevail over these objections.^ The rule declared by Lord Hardwicke has been almost universally adopted both by ju- dicial construction of our courts, and by the express terms of many of our American statutes.^ < 1 Wyatt V. Barwell, 19 Ves. 439; Ford v. White, 16 Beav. 120; Ben- ham V. Keane, 1 John. & H. 685. 2 Hiae V. Dodd, 3 Atk. 2?.5; Davis v. Strathmore, 16 Ves. 419; Cheval V. Xichols, 1 Stra. 664; Lloyd v. Banks, L. R. 3 Ch. App. 488; Kolland V. Hart, L. R., 6 Ch. App. 678; Tunstall v. Trappes, 3 Sim. 287 ; Harrington v. Allen, 48 Miss. 492. While the rule is intended to prevent fraud, it yet, on the other hand, necessarily opens wide the door to fraud and perjury on the part of those assailing the record by parol evidence usually of interested par- ties. The doctrine of constructive notice, declares Justice Campbell, of the Michigan Court, has been carried so far as to work fraud nearly as often as it prevents it. All«n v. Cadwell, 55 Mich. S; s. c. 20 N. W. Kepr. 692. As to mortgages it has been said that vigilance in recording them is as much entitled to the reward of priority as vigilance iu ob- taining them. Mayhara v. Coombs, 14 Ohio, 428; Moore v. Thomas, 1 Or. 201; Bank v. Manufacturing Co., 96 N. C. 298; s. c. 3 S. B. Repr. 363. 3 Portis V. Hill, 30 Tex. 529; s. c. 98 Am. Dec. 481; Blalock v. N"ew- hill, 78 Ga. 245; Smith v. Proffatt, 82 Va. 832, 851; s. C. 1 S. E. Repr. 67; Effinger v. Hall, 81 Va. 94; Manandas v. Mann, 14 Or. 450; s. C. 13 Pac. Repr. 449; Strohm v. Good, 113 Ind. 93; s. C. 14 liT. E. Repr. 901; Petry v. Ambrosher, 100 Ind. 510; Morris v. White, 36 N. J. Eq. 324; Phifer V. Burnhart, 88 IST. C. 333; Hodges v. Spicer, 79 IsT. C.223; Frost- burg V. Hamill, 55 Md. 313; Gen. Ins. Co. v. U. S. Ins. Co., 10 Md. 517; s. C. 69 Am. Dec. 174; Littleton v. Giddings, 47 Tex. 109; Dillon v. Shugar, 73 Iowa, 434; s. C. 35 N. W. Repr. 509; Brown v. Hanauer, 48 Ark. 551; s. C. 3 S. W. Repr. 27; Butcher v. Yocum, 61 Pa. St. 168; s. C. 100 Am. Dec 625; Lahr's Appeal, 90 Pa. St. 507; Allen v. Poole, 54 Miss. 323; Deason v. Taylor, 53 Miss. 697; Holt v. Russel. 56 N. H. 559; VanKeuren v. Cent. Ry. Co., 38 N. J. L. 165; Dunham v. Dey. 15 Johns. 555; s. C. 8 Am. Dec. 282; Howard Ins. Co. v. Halsey^N. Y. 271; s. 0. 59 Am. Dec. 478; Tuttle v. Jackson, 6 Wend. 213; s. 0. 21 Am. Dec. 346 Ch. 9.] ACTUAL NOTICE. [§217. « §217. Excejptlons to the Rule. The equitable doctrine that actual notice supplies regis- tration is rejected entirely in only one of our American states, but some exceptions to the rule, with reference to particular classes of instruments, are to be found in quite a number of other states. Under the statute of Louisiana, providing that all sales, contracts and judgments which shall not be recorded shall be utterly null and void except between the parties thereto, it is held in that state that ac- tual notice or knowledge of an unrecorded instrument is of no effect. "The law-giver," said Chief Justice Ludeling, "was determined, it would seem, to settle the vexed question whether knowledge was equivalent to registry, and he de- cided it was not. "^ 306; Blanchard v. Tyler, 12 Mich. 339; s. O. 86 Am. Deo. 57; Waldo v. Kichmond, 40 Mich. 380; Liudsey v. Veasey, 62 Ala. 421; Chapman v. Holding, 60 Ala. 622; McMechan v. Griffing, 3 Pick. 149; s c. 15 Am. Dec. 198; Connitian v. Ttiompson, 111 Mass. 270; Lee v. Oato, 27 Ga. 637; s. C. 73 Am. Dec.' 746; Bonner v. Stephens, 60 Tex. 616; Maybee v. Moore, 90 Mo. 340 ; s. C. 2 S.W. Repr. 471 ; Durant v. Crowell, 97 N. 0. 367 ; s. C. 2 S. E. Eepr. 541 ; Roberts v. Moseley, 64 Mo. 507 ; Masterson v. West End Ry. Co.. 5 Mo. App. 64; Bergeron v..Richardott, 55 Wis. 129; s. c. 12 N. W. Kepr. 384; Campbell V. Roach, 45 Ala. 667; Bush v. Golden, 17 Conn. 594; Tillinghast v. Charaplin, 4 R. I. 173; s. c. 67 Am. Dec. 510; Tait v. Crawford, 1 McCord, 475; Martin v. Sale, 1 Bail. Eq. 1; Brush V. Ware, 15 Pet. (40 U. S.), 93; Simpson v. Montgomery, 25 Ark. 365; s. C. 99 Am. Deo. 228; Fargason v. Edrington, 49 Ark. 207; s. C. 4 S. W. Repr. 763; Redden v. Miller, 95 111. 336; Frye v. Partridge, 82 111. 267; Smith V. Yule, 31 Cal. ISO; s. C. 89 Am. Dec. 167; Hilton v. Young, 73 Cal. 684; s. C. 14Pac. Repr. 684; Jones v. Marks, 47 Cal. 242; Tray- lor V. Townsend, 61 Tex. 144; Ely v. Wilcox, 20 Wis. 523; s. c. 91 Am. Dec. 436; Johnston v. Gwathmey, 4 Litt. 317; s. C. 14 Am. Dec. 135; Honore V. Bakewell. 6 B. Mon. 67; s. c. 43 Am. Dec. 147; Morris v. Daniels, 35 0. St. 406; Ranney v. Hardy, 43 0. St. 157; S. C. 1 West. Kepr. 52; Hull v. Noble, 40 Me. 4.59, 480; Rich v. Roberts. 48 Me. 548; Baynard v. Norrls, 5 Gill, 483; s. C. 46 Am. Dec. 647; Smith v. Dunton, 42 Iowa 48; Allen v. McCalla, 25 Id. 464; S. C. 96 Am. Dec. 56; Gilson T. Boston, 11 Nev. 413; Cain v. Cox, 23 W.Va. 594; Roberts v. Grace, 16 Minn. 126; Cordova v. Hood, 19 Wall. (86U. S.),l; Marier v. Lee, 2 Utah, 460; Otis v. Payne, 86 Tenn. 663; s. C. 8 S. W. Repr. 848; Myers V. Ross, 3 Head, 60; Danhury v. Robinson. 1 McCart. 21:-!; s. c. 82 Am. Dec. 244; Whitehorn v. Cranz, 20 Neb. 392; s. 0. 30 N. W. Repr. 406. 1 Harang v. Plattsmier, 21 La. Ann. 426; Rev. Civ. Code (1870), §2266; VlUavaso v. Walker, 28 La. Ann. 775; Payne v. Pavey, 29 Id. 347 Ch. 9.] ACTUAL NOTICE. [§217. In Arkansas, Ohio and North Carolina, the statutes relat- ing to the registry of mortgages are so framed as to make recording essential to their validity as against third persons; hence in these states actual notice of such instruments is in- effectual, and mortgages are given priority according to the order of their registry. The Ohio statute, without any ref- erence to third persons having actual notice, provides that mortgages shall "take effect" from the time of delivery to the recorder; and under this statute it is held that until en- tered for record they have no effect either at law or in equity against third persons; and that until they take effect as legal instruments they are entirely inoperative to prevent others from acquiring uncontrollable legal interests in the property. The record, it is said, gives them vitality, and the record alone can be appealed to, to determine when they have taken effect.^ The Arkansas statute provides simply that a mortgage shall be a lien, from the time it is filed for record, and not before; and actual notice is held unavailing to give it effect as against third persons.^ 116, 117; Rochereau v. Delacroix, 26 La. Ann. 584; Tulane v. Levinson, 2 Id. 787 ; Derbes v. Romero, 32 Id. 927. Prior to Jan. 1, 1870, the rule seems to have been different as to mortgages. Patterson v. De La Ronde, S Wall. (75 U. S.), 292; but art. 3342 of the Rev. Civ. Code of 1870 omits from the designation of third persons who are not to be affected by an unrecorded mortgao'e, the clause, "and who have dealt with the debtor in ignorance, or before the existence of this right;". since which, actual notice of a mortgage is unavailing. Adams v. Daunis, 29 La. Ann. 315. 1 Rev. Stats. (18S0), §4133; Home Build. Ass'n v. Clark, 43 0. St. 427; Bloom v. Noggle, 4 O. St. 45, 54; Sidle v. Maxwell, Id. 236; White V. Denman, 1 Id. 110; Beroaw v. Cockerill, 20 Id. 163; Mayham v. Coombs, 14 Ohio, 428; Holliday v. Franklin, 16 Id. 533; Magee v. Beatty^ 8 Id. 396; Sturgess v. Bank, 3 McLean, 140. If the record shows only one witness, it is ineffectual; it must show a legal mortgage or it is no record at all. Bank v. Carpenter, 7 Ohio, 68. An unrecorded mortgage is of no effect, even against an assignee for the benefit of creditors hav- ing actual notice of it. Ervvin v. Shuey, 8 O. St. 509; but it is good as between the parties. Home Build. Association v. Clark, 43 O. St. 427, 434, citing Riley v. Rice, 40 Id. 441 ; Steward v. Hopkins, 30 Id. 502, and qualifying Holliday v. Franklin, 16 Ohio, 533. 2 Rev. Stats. Ark. (1874), §4288; Dodd v. Parker, 40 Ark. 526; Fry T. Martin, 33 Ark. 203; Jacoway v. Gault, 20 Ark. 190- s C 73 Am Dec. 494. 348 Ch. 9. J ACTUAL NOTICE. [§218. Iq North Carolina the statutory provisioa is that no deed of trust or mortgage shall be valid at law to pass any prop- erty as against creditors or purchasers for valuable coasid- eration but from the registration thereof; and actual notice is held of no avail.^ The article of the statute relating to deeds is different, and unusually brief, but it seems to be now determined that under it a subsequeat purchaser with notice of a prior unrecorded deed, takes subject to the equitable title which it is h eld to convey.^ §218. Exceptions Continued— Creditors, etc. In Virginia, Tennessee and perhaps a few other states, actual notice, while effectual as against a subsequent pur- chaser, is held to be of no avail as against creditors;^ and ' Hinton V. Leigh (jS". C, 18S9), 8 S. B. Repr. 890; Code (1SS3), §1254; Bank v. Manufacturing Co., 9B N". C. 298; s. C.3S. E. Repr. 383; Flem- ing v. Burgin, 2 Ired. Eq. .581; Todd v. Outlaw, 79 N". (J. 2:J5; Robinson v.VlUoughby, 70 N. C. 358; Deal v. Palmer, 72 N". C. 582. But actual notice of a defectively registered mortgage held to charge a subsequeat mortgagee not to make further advances. Todd v. Outlaw, supra. Where a first mortgagee advanced money to save a crop in excess of the -amount secured by his mortgige, he is not entitled to such amount to the exclusion of a second registered mortgage, the record of which charges him with notice. Weathersbee v. Farrar, 90 X. C. 106. 2 Phifer v. Barnhart, 88 N. C. 333; Durant v. Crowell, 97 X. C. 367; Hodges V. Spicer, 79 N. C. 223. Actual notice of an unrecorded title bond, held sufficient. Derr v. Dellinger, 75 N". C. 300. Possession held to charge notice of title. Edwards v. Thompson, 71 N. C. 177; Staton V. Davenport, 95 N. C. 4; and title may pass by estoppel. Sherill v. Sherill, 73 N. C. 8. As the registry of the deed is held necessary to passing the legal title, its surrender or cancellation revests title in the grantor, except as against rights of third parties that may have intervened. Fortune v. Watkins, 94 X. C. 304, citing Davis v. Inscoe, 84 JST. C. 396; Austin v. King, 91 N. C. 280. For the sake of comparison, it maybe noticed in this connection that the Maryland statute (Rev. Code, 1878, tit. 24, §18), provides that "no deed of real property shall be valid for the purpose of passing title, unless acknowledged and recorded," and that actual notice is held effectual in that state. Insolvent Est. of Leiman, 32 Md. 225; Johns v. .Scott, 5 Md. 81; Price v. McDonald, 1 Md. 403; S. c. 54 Am. Dec. 657; Frostburg v. Hamill, 55 Md. 313. " Dobyns V. Waring, 82 Va. 159; Cowardin v. Anderson, 78 Va. 88; ■Gray v. Moseley, 2 Mumf. 546; Bank v. Neal, 2S W. Va. 744; Butler v. Maury, 10 Humph. 420; Lookout Bank v. Xoe, 86 Tenu. 21; s. C. 5 S. 349 Ch. 9. J ACTUAL NOTICE. [§219. this is also the case as to chattel mortgages in Texas aail Kansas.i la several states, as laliaiia, Missouri aad Mas- sachusetts, actual notice of an uafiled chattel mortgage is ineffectual as against any class of third persons, ^ includ- ing even an assignee iu insolvency.^ In New York a deed though delivered, if not acknowledged nor attested by two subscribing witnesses, is void as against a subsequent grantee with actual notice of it, even though such grantee is not a purchaser for valuable consideration.* §319. The Several Kinds of Actual Notice. Actual notice as treated in this chapter includes every kind of notice arising from matter of fact, as contra- distinguished from the constructive notice which the record charges as a conclusive presumption of law. It exists in a multitude of degree^ and arises from a great variety of cir- cumstances and relations, and in its various forms and aspects, it is designated by a variety of terms. ^ These dis- tinctions are to be considered for the purpose of avoiding confusion, and of reconciling much apparent conflict of de- W. Eepr. 433; Wilson v. Eifler, 11 Heisk. 188; Coward v. Culver, 12 Heisk. 541; Edwards v. Brinker, 9 Dana, 69. 1 Brothers v. Mundell, 60 Tex. 240; Overstreet v. Manning, 67 Tex. 657; s. c. 4 S. W. Eepr. 248; Cameron v. Hull, 26 Kan. 622. 2 Moore v. Young, 4 Biss. 128, 135; Bingtiam v. Jordan, 1 Allen, 373 ; S. c' 79 Am. Dec. 748; Lockwood v. Slevin, 26 Ind. 125; Howard v. Chase, 104 Mass. 251; Denny v. Lincoln, 13 Met. 200; Hughes v. Menifee, 29 Mo. App. 192; Rawlings v. Bean, 80 Mo. 614; Wilson v. Milligan, 75 Mo. 41; Gassner v. Patterson, 23 Cal. 299; Donaldson v. Johnson, 2 Ohand. (Wis.), 160; Sheldon v. Conner, 48 Me. 584; post, §§269, 270. 2 Jones on Chat. Mort., §314, citing Hodgson v. Butts, 3 Cranch, 140; Denny v. Lincoln, 13 Met. 200; Matlock v. Straughn, 21 Ind. 128. * Nellis V. Munson, 108 N. Y. 453, 457; S. C. 15 N. E. Kepr. 739; Chamberlain v. Spargur, 86 N. Y. 603. 5 By at least one text writer of ability, actual notice is divided into only two classes: express notice and implied notice. Wade on Notice, §§5-8. This is about as satisfactory a classification as can be made; but in the decisions we find other distinctions drawn, and other terms used. As to the degrees of actual notice, they are infinite in number, ranging from a brief verbal statement from a doubtful source, to a full and formal written statement from reliable authority. Smith v. Smith, 2 Crompt. & M. 231; North Brit. Ins. Co. v. Hallet, 7 Jur. ST. S. 1263; 1 Jones on Mort., §580. 350 Ch. 9.] ACTUAL NOTICE. [§219. cision on this subject; but otherwise they are of but little practical consequeace, as in legal effect there is no differ- ence between knowledge and actual notice in any form, if notice be imputed at all.^ Where notice of a fact is by full information directly and personally received, it amounts to knowledge of it, whicij in all cases includes the legal effect of notice, whether or not it embraces a technical notice; but under the general rule notice does not necssarily imply knowledge, or such a character and extent of information as amounts to actual knowledge.^ It is usually held suffi- cient to constitute notice that the information be of such character as should put a reasonable man having a due regard for the rights of others upon inquiry that, if fairly prose- cuted, would lead to a knowledge of the prior right. ^ And though no information whatever be shown as given, yet if the circumstances and relations of the matter be such as that one has a conscious knowledge of having the means of information or actual knowledge accessible, it is sufficient to charge him with notice; and that he purposely refrains from inquiry will not release him from its consequences.* 1 Morrison v. Kelley, 22 111. 610; S. C. 74 Am. Dec. 169; Schutt v. Large, 6 Barb. 373; Hill v. Epley, 31 Pa. St. 335; Ellison v. Wilson, 36 Vt. 67 ; Prosser v. Rice, 28 Beav. 6S, 74. 2 Wade on Notice, §§3, 4; 2 Pom. Eq. Jur., §592. 8 Traylor v. Townsend, 61 Tex. 144; Littleton v. Giddings, 47 Tex. 109; Hunt V. Dunn, 74 Ga. 120; Clafliu v. Duncan, /r. C. 4- Schwallhack v. Chicago, eJc, 69 Wis. 292; s. C. 2 Am. St. Rep. 740- 34 X. W. Repr. 128; Allen v. Cad well, 55 Mich. 8; Landes v. Brant. 10 How. (U. S.), 348; Sutteu v. Jervis, 31 luJ. 265; s. C. 99 Am. Dec. 631; Vaughau v. Tracy, 22 Mo. 415; s. C. 69 Am. Dee. 471; Forest T Jackson, 56' N. H. 357; Mayo v. Legget, 96 X. C. 237; Barnes v. Union, 91 Tnd. 301; Ranney v. Hardy, 43 O. St. 157; s.c. 1 West. Repr. 52- Nelson v. Nelson. 117 Pa. St. 278; S. c. 11 Atl. Repr. 61; 9 Cent. Repr- 401; Preston v. Nash, 76 Va. 1; Noyes v. Hall, 97 U. S. 34; Mas- sey V Hubbard, 18 Fla. 688; Grimstone v. Carter, 3 Paige. 421; s. c. 24 Am. Dec. 230; The AuU Savings Bk. v. AuU, 80 Mo. 199; Lee v. Polk Co 21 How. 493; Baynard v. Norris, 5 Gill, 468; School Dist. v. Tay- lor " 19 Kan. 287; Westbrook v. Gleason, 79 N. Y. 25; Uhl v. Ran, 13 Nek '3"'7- Lipp v. Land Syndicate, 24 Neb. 692, 699; s. C. 40 N. W. bough V Masterson, 1 Idaho, 135; Glendenning v. Bell, 70 Tex. 632; S c 8 S W. Repr. 324; Strickland v. Kirk, 51 Miss. 795; Lindsey v. Veasey 62 Ala. 421; Van Keuren v. Cent. Ry. 38 N". J. L. 165; .Sewell T. Holland, 61 Ga. 60S; Western Co. v. Peytona, 8 W. Va. 406; Manau- d'asv Mann, 14 Or. 450; s. C. 13 Pac. Repr. 449. 2 Wickes V Lake, 25 Wis. 71; Eylar v. Eylar, 60 Tex. 319; Watkins V Edwards, 23 Tex. 443; Cabeea v. Breckinridge, 48 Hi. 91; Wood v. Farmere, 7 Watts, 382; s. C. 32 Am. Dec. 772; Moss v. Atkinson, 44 Cal. 3: Farme'r's Bk. v. Snerling, 113 111. 273. , . ^ , ^ ,^ , The rule that possession Is notice obtains also ui England. Taylor v. Stibbert, 2 Ves. 437; Holmes v. Powell, S De G. M. & G. 572; Daniels 365 Ch. 9.] ACTUAL NOTICE. [§229. ficient notice, and whether it be actually known to the other party or not;^ but this presumptive notice from possession, like that arising from any other fact putting on inquiry, is subject to rebuttal by proof showing that an inquiry duly and reasonably made, failed to disclose any legal or equi- table title in the occupant.^ A failure to make such in- quiry, however, is regarded as an intentional avoidance of the truth which it would have disclosed ; and voluntary ig- norance under such circumstances effectually deprives the subsequent party of the character of a bona fide purchaser.^ §229. Exceptions to the Kule. By far the larger part of the real estate of the country, at least in value, is continuously in the actual possession of its owners, occupying it either in person or by tenants. The rule that possession is full notice practically dispenses with any real necessity for recording the title. So long as pos- session accompanies the transmission of title to heirs and successive vendees, registry is not needed, unless it be to guard against the contingency of a possible break in the possession, or to give notice of liens held by third parties. The registry system contemplates that the records shall be the authentic source of information as to the title to real V. Davidson, 16 Ves. 240; Crofton v. Ormsby, 2 Soh. & Le(. 583; More- land V. Richardson, 24 Beav. 33; Bailey v. Richardson, 9 Hare, 734. 1 Hodge V. Amerman, 40 N. J. Eq. (13 Stew.), 99; s. C. 2 Atl. Eepr. 257; Edwards v. Thompson, 71 N. C. 177, 179; Shearn v. Kobinson, 22 S. Car. 32; Bieman v. White, 23 S. Car. 490; Loughridge v. Bowland, 52 Miss. 546; Hottenstein v. Lerch, 104 Pa. St. 454; Hawley v. Bullock, 29 Tex. 223; Ranney v. Hardy, 43 O. St. 157; Kerr v. Day, 14 Pa. St. 112; Pique V. Arendale, 71 Ala. 91; Smith v. Yule, 31 Cal. 180; s. C. 89 Am. Dec. 167. 2 Riley v. Quigley, 50 111. 304; s. c. 99 Am. Dec. 516; Jones v. Smith, 1 Hare, 43, 60 ; Leach v. Ansbaoher. 55 Pa. St, 85 ; Fair v. Stevenot, 29 Cal. 486; Hewitt v. Loosemore. 9 Hare, 449; Rogers v Jones, 8 N. H. 234; Williamson v. Brown, 15 N". Y. 354; Plagg v. Mann, 2 Sumn. 486. It does not determine what the inquiry shall be. nor of whom it shall be made. Smith v. Miller, 63 Tex. 72. s Grimstone v. Carter, 3 Paige, 421, 426; s. c. 24 Am. Dec. 230; Daniels v. Davidson, 16 Ves. 249; Flagg v. Mann, 2 Sumn. 486,554; Ware v. Lord Egmont, 4 De G. M. & G. 460; Thompson v. Pioche, 44 Cal. 508, 516. 866 Ch. 9.] ACTUAL NOTICE. [§229. property, without the necessity of recourse to matters of fact, which must always be' attended with a greater or less degree of uncertainty.! The registry acts do not say that the vendee must record his deed provided he does not take possession ; and a failure to record it should be regarded as negligence, even though possession be taken. Purchasers . of property lying at any distance frcira the place of sale, though they have the fullest assurance as to the record title, must purchase at the peril of the property being on the day of purchase in the possession of an adverse claim- ant. While, as will be seen, some of the courts have car- ried the doctrine of notice by possession to an unreasonable extent, a few of them have rejected it almost entirely.^ In Massachusetts, Maine and Wisconsin, where the registry statutes require "actual" notice, it is held that possession, open and notorious, will not, per se, constructively charge notice, and will not have the effect of putting on inquiry unless actually known to the other party. ^ This rule ob- tains also in Louisiana and Connecticut, in which latter state the registry act leaves the effect of notice, or want of it, almost entirely to judicial construction.* ' "If a deed could be presumed from possession, it would not be nec- essary to record it. Possession, though evidence of some title, is not necessarily evidence of any particular title, but should put the party on inquiry; and the intent of the registry act is to protect purchasers from secret or concealed conveyances by requiring every deed to be recorded on peril of forfeiture of the estate."' Harris v. Arnold, 1 K. I. 125. ^ In Massachusetts, knowledge on the part of the subsequent pur- chaser that the premises are in the actual possession of i third person does not alone necessarily charge him with notice of title in the occu- pant. Lamb v. Pierce, 113 Mass. 72; Pomeroy v. Stevens, 11 Met. 244; Dooley v. Wolcott, 4 Allen (86 Mass.), 406; Mara v. Pierce, 9 Gray (75 Mass.), 306; Sibley v. Leffingwell, S Allen, 584; the latter cases holding, howevet, that proof of possession may be made in connection with ev- idence of actual notice. ' Worcester v. Lord, 56 Me. 265; s. C. 96 Am. Dec. 456; Beal v. Gor- don, 55 Me. 482; Clarke v. Bosworth, 51 Me. 528; Brinkman v. Jones, 44 Wis. 498; Lamb v. Pierce, 113 Mass. 72. * Thus, where the holder of the legal record title conveys to B. premises to which A. is equitably entitled to a conveyance of, and of which he is in open and adverse possession, B. being ignorant of A.'s 367 Ch. 9. J ACTUAL NOTICE. [§230. §230. Grantor Remaining in Possession. Somewhat in the nature of an exception to the general rule are the numerous cases holding that where the grantor remains in possession after a conveyance by him of the premises, such possession is not notice of any title or inter- est claimed by himself.^ These cases proceed mainly on the ground of estoppel. The vendor's deed, it is said, is conclusive as to his rights in the premises.^ The rule that possession is notice is intended to protect the possessor against the acts and claims of others, but not against his own deed. Having executed the deed and suffered it to go on record, he thereby declares to the world that he has con- veyed to the grantee whatever right he has to the land, and that his continuing possession is merely for some temporary purpose.^ If the inquiry suggested by his possession is possession, is held not chargeable with notice by it. Harrall v. Lev- erty, 50 Conn. 46. "The doctrine has never been recognized by this court that posses- sion under an act of sale not recorded, was sufficient evidence of notice to creditors and subsequent purchasers to defeat the operation of the registry acts." Eustis, C. J., in Poydras v. Laurans, 6 La. Ann. 770. See Swan v. Moore, 14 La. Ann. S33; Carpenter v. Allen, Id Id. 435; New Orleans v. Labrouche, 31 Id. 839. 1 Eylar v. Eylar, 60 Tex. 319; Koon v. Trammel, 71 Iowa, 132; s. C. 32 X. VV. Repr. 243; Quick v. Milligan, 108 Ind. 419; s. c. 6 West. Kepr. 885; Groton Sav. Bk. v. Beatty, 30 N. J. Eq. 133; s. C. 19 Alb. L. J. 340; Denton V. AVhite, 26 Wis. 679; Newhall v. Pierce, -22 Mass. (5 Pick.), 451; Hoffman V. Blume, 64 Tex. 334; Scott v. Gallagher, 14 Serg. & E. 333; s. c. 16 Am. Deo. 508; Dawson v. Danbury, 15 Mich. 489; Sprague v. White, 73 Iowa, 670; Muir v. Jolly, 26 Beav. 143; Staples v. Featon, 5 Hun. 172; Wood v. Farmere, 7 Watts, 382; s. C. 32 Am. Dec. 772; Hurt V. Cooper, 63 Tex., 362. 2 "Certainly," said Cooper, C. J., in Hafter v. Strange, 65 Miss. 323; s. c. 3 South. Repr. 190, "a solemn deed is the equivalent of an asser- tion by the party grantor that the title is in the grantee ; its purpose is to convey and show title; and he who thereby invests another with this universally recognized evidence of right ought not, as against one who deals with that other person upon the faith of such evidence, be per- mitted to aver to the contrary to his injury." "The well-settled rule applies to this case that a party is estopped from impeaching or contradicting his own deed, or denying that he granted the premises which his deed purports to convey." VanKeuren V. Cent. Ky. Co., 38 N. J. L. 165, 167. 3 Bloomer v. Henderson, 8 Mich. 395, 405; s. c. 77 Am. Dec. 453. 368 ■Cb- 9.j ACTUAL NOTICE. [§231. prosecuted to the record, the highest source which the law declares shall exist for the determinatioQ of title, and the source which the parties have created as the highest evidence of their respective rights, it is not necessary to examine in- ferior sources, and inquire whether there are other claims not evidenced as the law directs. To hold otherwise, it is said, would be to strike at the very foundation of the policy upon which the registration laws rest.^ If objection be made to this reasoning, it must be rather upon the ground that the argument applies witli almost equal force against allowing possession to serve the place of registry in any ■case. §231. Grantor's Possession is Notice. Other courts have not been able to see any substantial difference between possession by the grantor and by a third party. ^ His deed, without reservation, conveys the right of ' Eylar v. Eylar, 60 Tex. 319. See also, Kice v. Rice, 2 Drew. 1 ; White v. Wakefleld, 7 Siin. 401 ; N. Y. Life Ins. Co. v. Cutler, 3 Sand. •Ch. 176; Stiffler v. Ketzlaff (Pa.), 11 At'l. Repr. 876. An exception to the rule above has been recognized where possession is relied on as notice of a parol reservation of an easement, upon a con- veyance of the legal title to the premises, where such easement is essen- tial to the enjoyment of adjacent premises, the title to which remaius in the grantor and pqssessor of such easement. Randall v. Silverthorn, 4 Pa. St. 173. Where a grantor is entitled to possession under the terms of a con- tract by virtue of which he delivered the deed, his possession is not no- tice of subsequently accruing equities entitling him to a rescission of the ■contract. MoCleerey v. Wakefleld (Iowa). 41 N. W. ReprJ 210. 2 Grimstone v. Carter, 3 Paige, 421, 439; s. C. 24 Am. Dec. 230; Webster y. Maddox, 6 Me. 236; Illinois Central v. McCullough, 59 Jll. 166; Lamoreux v. Meyers, 68 Wis. 34; s. O. 31 N. W. Repr. 331; Hop- "kins v. Garrard, 7 B. Men. 312 ; Wright v. Bates, 13 Vt. 341 ; Hansen v. Berthelsen, 19 Neb. 433; s. c. 27 N. W. Repr. 595; Stevens v. Castel, 63 Mich. 111. - The vendor remaining in possession after sale is a circum- stance tending to show that the alleged sale was really a mortgage, for such possession, if not inconsistent with a sale, is an unusual accom- paniment of it. Davis v. Demming, 12 W. Va. 246, 282. "We can discover no just or rational ground for giving to the fact of possession less significance to a party purchasing the legal title from one not in possession, in consequence of the fact that such occupant had by deed divested himself of the legal title." Pell v. McElroy, 36 Cal. 368, 279. (24— Reg. o"f Title.) 369 Ch. 9.] ACTUAL NOTICE. [§231. possession as much so as it does the title. His possession is, therefore, in some sense antagonistic to the deed, and significant of some right or matter not shown by the deed. If the deed, absolute on its face, be in truth but a mort- gage, the failure of the grantor to record the defeasance is no greater negligence than the failure of any other person in possession to record some evidence of his title. ^ If the right under which possession is retained arises from some matter subsequent to the deed, the relation of the grantor's possession to it is not materially different from that of a third party's possession to the unrecorded right under which he holds. The grantor has the same right as any other person to subsequently acquire legal or equitable title from his grantee, and as to such right is entitled to the same protection as any other person. He does not assail his own deed by virtue of a claim resting upon some matter entirely dehors the record; and his neglect to take, or to put on record, some written evidence of his claim, is no greater than that of any other person who must invoke the doctrine of possession because of a similar neo'licrence.^ 1 Daubenspeck v. Piatt, 22 Cal. 330; >few v. Wheaton, 24 Minn. 406- Crassen v. Swoveland, 22 lud. 427 : Pell v. McElroy, supra. The grantor remaining in possession after sale is a very strong circumstance to show that the transaction is a mortg;ige, and usually sufficient to put upon inquiry as to that matter. Clark v. Pinion, 90 III. 245; Lawrence v Dubois,- 16 W. Va. 443, 461; Streator v. Jones, 3 Hawks. 423- Kemp v' Earp, 7 Ired. Eq. 167, 171; Sellers v. Stallcup, Id. 13; Campbell v' Dearborn, 109 Mass. 130; Ransoue v. Frayser, 10 Leigh, 592; Strono- y Shea, 83 111. 575; Clevinger v. Eoss, 109 111. 349; Stevens v Hulin" 53 Mich. 93; s. C. IS IST. W. Kepr.5B9; Gibson v. Eller, 13 Ind. 124- Thomp- son v. Banks, 2 Md. Ch. 430; Carter v. Hallihan, 61 Ga. 314.' Contra Hurt V. Cooper, 63 Tex. 362. ' Possession remaining with the vendor is a circumstance indicatiao- a mortgage. Euffier v. Womack, 30 Tex. 332, 340, cltin.^ Skinner v JXil- Q''w^^"^ol"'' ?/'k'°" "■ ^f'""' '" ^'*^^^- ^ P°'"'- •^"' Caldwell V. VVoods, 6 Watts, 197. If the record suggests a mortgage, this will put upon in- quiry, aside from possession. Lewis v. Hinman, 56 Conn 55- s C 13 Atl. Kepr. 143. ' ' ' ager v. Ross, 109 111. 349; Seymour v! McKinstry, 106 X Y 23o'- s c 8 Cent. Eepr. 72; 12 .Y. E. Repr. 31S; Bennett v. Robinson, 27 Mich." 26." 370 Ch. 9. J ACTUAL NOTICE. [§232. §232. Possession Referred to the Record Title. Where a person occupies premises, and the record shows a conveyance under which he would be entitled to the pos- session, in such case his possession will be referred to the record title, and a subsequent purchaser will not be charged by it with notice of any other undisclosed title or equity which the occupant may have.^ The possession is a matter tending to excite inquiry, but the fact that the occupant has placed upon the public records written evidence of his right, with the terms of which his possession is consistent, arrests inquiry at that point, and reasonably informs the purchaser that he may rest upon the knowledge thus obtained.^ Thus, a wife was entitled to an interest in land by inheritance. A partition was had with other heirs, but the deed made there- upon was to both husband and wife, vesting the title of her portion in them as tenants in common; and as against lien creditors of the husband, her possession was held notice of only an undivided half interest.^ So, where a mortgagee is in possession under a recorded mortgage, a purchaser from the mortgagor will not, by such possession, be charged with notice of an unrecorded conveyance of the equity of redemption from the mortgagor to the mortgagee, unless by the terms of the recorded instrument the mortgagor was entitled to possession at the time of the last purchase.* '■ Bonuell v. Allerton, 51 Iowa, 166 ; Fargason v. Edrington, 49 Ark. 207,214; s. C.4S.W. Repr. 763;Wrede v.Uloud, 52 Iowa, 371; s. C. 3 jST. W. Bepr. 400; Smith v. Yule, 31 Cal. 180; S. C. 89 Am. Dec. 167; Brown v. Volkening, 64 N. Y. 76, 82; McOleerey v. Wakefield (Iowa), 41 N. W. Eepr. 210. " Woods V. Farmere, 7 Watts. 382; s. C. 32 Am. Deo. 772; Wade on Notice, §298. ' 3 Farmer's Bank v. Wallace, 45 O. St. 152; s. 0. 12 N. E. Eepr. 439; Gardner v. Barley, 72 Iowa, 518; s. C. 34 N. W. Repr. 311. * Plumer v. Robertson, 6 Serg. & E. 179; aud see Palmer v. Bates, 22 Minn. 593; Patten v. Moore, 32 N. H. 3S4; G-reat Falls Co. v. Worces- ter. 15 ISr. H. 412; Fair v. Stevenot, 29 Cal. 486; Lincoln v. Thompson, 75 Mo. 613; McMechan v. Griffing, 3 Pick. 149; Bush v. Golden, 17 Conn. 594; Trusdale V. Ford, 37 111. 210. Where one has beea in possession of land for some time without any title, and upon receiving title continues his occupancy as before, with- 371 Ch. 9.] ACTUAL NOTICE. [§233. §233. Possession Must be Open and ]!fotorious. All the authorities agree that possession ia order to con- stitute notice must be open and notorious, but they are by no means agreed as to what facts, or character of facts, will be sufficient to constitute the requisite notoriety. ^ The possession, as the general rule is usually stated, must con- sist in open, visible and unambiguous acts of ownership and occupancy ; it must not be equivocal, occasional, or for a special and temporary purpose.^ The grazing of sheep and cattle on land, and constructing and fencing round a tank of water thereon is not sufficient ;3 nor is the mere cutting of timber thereon from time to time;* nor the use of a vacant town lot by the owner's tenants, on an adjoining lot, for the occasional hanging out of clothes, and the like; nor the overflowing of land by stopping a watercourse below, on a out any change in its mode and cliaracter, this is not sufficient notice to break in iipon the registry law. Emmons v. Murray, 16 N. H. 398. Vendee's possession under recorded deed held to give notice of his claim to a part of the tract as to which he had only an unrecorded con- tract. Weisberger V. Wisner, 55Mich. 246; S. C. 21 X. W. Repr. 331; contra, Wrede v. Cloud, 52 Iowa, 371. ^ Whether or not the possession is of such character as to affect a subsequent purchaser, is a question of fact for the jury. Ponton v. Ballard, 24 Tex. 619. 2 Evans v. Templeton, 69 Tex. 375; s. C. 5 Am. St. Bep. 71; Schwall- bacli v. Chicago, etc., 69 Wis. 292; s. c. 2 Am. St. Kep. 740; Banney v. Hardy, 43 O. St. 157; White v. White, 105 111.313; Beaubrien v. Hen- derson, 38 Kan. 471; S. C. 15 Pac. Repr. 1S4; Parker v. Baines, 65 Tex. 605 ; Hughes v. United States, 4 Wall. 232 ; Blankenship v. Douglass, 26 Tex. 225; s. c. 82 Am. Dec. 608; Smith v. Yule, 31 Cal. 180; s. C. 89 Am. Dec. 167; Brown v. Volkening, 64 N. Y. 76; Butler v. Stevens, 26 Me. 484; Trezise v. Lacy, 22 Kan. 742; Worcester v. Lord, 56 Me. 266; S. C. 96 Am. Dec. 456; Pope v. Allen, 90 N. Y. 298; Jefferson v. Oyler, S2Ind. 394; Taylor V. Kelley, 3 Jones Eq. 240; Lincoln v. Thompson, 75 Mo. 613; Ely v. Wilcox, 20 Wis. 523; s. C. 91 Am. Dec. 436; Patten V. Moore, 32 N. H. 382; Redden v. Miller, 95 111. 336. => Murphy v. Welder, 58 Tex. 235 ; Coleman v. Barklew, 27 IST. J. L (3 Dutch.), 357: Trustees v.. Wheeler, 59 Barb. 585; Sanford v. Weeks, 38 Kan. 319; s. C. 16 Pac. Repr. 465. • * Holmes v. Stout, 10 N. J. Eq. (2 Stockt. Ch.), 419; 3 Green's Ch. 492; Bartlett v. Simmons, 4 Jones Law, 295; Watts v. Griswold, 20 6a. 732; Miller V. Piatt, 5 Duer, 272; Green v. Harmon, 4 Dev. Law, 158; except swamp land, valuable only for its timber. Simpson v. Blount, 3 Dev. Law, 34. 372 Ch. 9.] ACTUAL NOTICE. [§233. different tract.^ On the other hand, it is held that inclos- ure is not necessary, where there are other appropriate acts of occupancy ;^ that clearing an acre out of sixty acres of heavily timbered land, and renting it to a person residing on an adjoining tract, who cultivated it, is sufficient;^ that growing and cutting willows upon the land every year, for basket making, is sufficient;* and finally that running a plowed furrow around a tract of prairie land will suffice.^ i Green v. Harmon, 4 Dev. Law, 158. I^or possession on a different tract. Robinson v. Lake, 14 Iowa, 424. 2 Feirbongh v. Masterson, 1 Idaho, 135; Ewingv. Burnett, 11 Pet. 53; Ellioott V. Pearl, 10 Pet. 442. In the first of these cases, the character o£ the possession requisite to charge notice is very fully discussed by Mr. Justice Cummins. ■'' Wickes V. Lake, 25 Wis. 71, with an able dissenting opinion by Chief Justice Gibson. Living in one room of a building and collecting rents from tenants in other rooms, is sufficient. Phelan v. Brady, 19 Abb. N. Cas. 289. ■• Krider v. Lafferty, 1 Whart. 303. See also, Banner v. Ward, 12 Fed. Kepr. 820. The possession may be according to the custom of the country, and the use for which the land is adapted. Criswell v. Arte- mus, 7 Watts, 580. Thus, in North Carolina, the annual making of tur- pentine on the land is actual possession, it being fit for no other pur- pose. Bynum v. Carter, 4 Ired. 310; Green v. Harmon, 4Dev. Law, 158, 161. 5 Buck V. Holt, 74Iowa, 294; s. C. 37 ST. W. Kepr. 377. Laying down a sidewalk, and the putting up of a real estate agent's signboard, announc- ing the vacant lot for sale, held a sufficient possession to charge notice. Hatch V. Bigelow, 39 HI. 546. So the erection of a church-house Is notice of the title of the church to the lot on which it stands. Randolph V. Meeks, Mart. & Y. 58; Macon v. Sheppard, 2 Humph. 335; Singleton V. School Dist. (Ky.) 10 S. W. Repr. 793. Where there is actual possession, the extent and value of the improve- ments are immaterial. Taylor v. Lowensteiu, 50 Miss. 278 ; Phillips v. Pitts, 78 111. 72. The rule that possession is notice does not apply to a mere intruder having no claim of right. Wright v. Wood, 23 Pa. St. 120, 130; Gill v. , Hardin, 48 Ark. 409; S. 0. 3 S. W. Repr. 519; it must be hostile, Turney V. Chamberlain, 15 111. 271; Thompson v. Felton, 54 Cal. 547; and in order to work a disseizin, inconsistent with the claim of others. Am- brose v. Raley, 5§ 111. 506; Sparrow v. Hovey, 44 Mich. 63. User of a road constitutes notice of an easement. Campbell v. Indi- anopolis Ry., 11 jST. E. Repr. 482; 110 Ind. 490; Robinson v. Thrailkill, 110 Ind. 117; Chicago v. Hay, 119 111. 493; but grading begun, and afterwards suspended, on a tract to which a, railroad company had no record title, held not to charge notice, the grading not being shown to indicate its purpose. Masterson v. West End Ry., 5 Mo. App.,64. 373 Ch. 9. J ACTUAL NOTICE. [§234. §234. Possession Must be Actual. A mere constructive possession on the part of the equi- table claimant cannot serve the purpose of notice as against the legal record title, since the latter draws to itself, as matter of law, the consti-uctive possession of the land.^ It must be an actual possession. Yet neither actual occupa- tion, cultivation nor residence is indispensably necessary to constitute actual possession, when the property is so sit- uated as not to admit of any permanent, useful improve- ment, and the continual claim of the party is evidenced by public acts of ownership such as he would exercise over property which he claimed in his own right, and would not exercise over property which he did not claim. ^ There is a difference between that bare possession, without any claim of legal or equitable title in the land, such as may be event- ually asserted under the statutes of limitation, and posses- sion under color or claim of title. In the case of a naked trespasser, the possession must be defined by actual occu- pancy or inclosure, or at least by the existence of visible and definite boundary marks,% since otherwise, unless it be by a statutory limitation of the amount that bare possession will give title to, there is nothing by which the possession can be constructively extended an inch beyond the actual occupancy.^ But where the possession is by virtue of some 1 Oo. Lit. 153; 2 Prest. Abst. 282; Craig v. Cartwright, 65 Tex. 413; Barr V. Gratz, 4 Wheat. 213; Wyman v. Brown, 50 Me. 160; Parker v. Baines, 65 Tex. 605; Turner v. Stephenson (Mich.), 40 X. W. Kepr. 735; Ivey V. Petty, 70 Tex. 178; s. c. 7 S. W. Kepr. 798; Efflnger v. Lewis, 32 Pa. St. 367. 2 Ewing V. Burnett, 11 Pet. 53; Angell on Limitations, §400; Barclay V. Howell, 6 Pet. 513; Royal v. Lisle, 15 Ga. 545; Langworthy v. Myers, 4 Iowa, 18. W^here there can be neither actual permanent occupation nor res- idence, on account of the Incapacity oJ the property to receive any per- manent improvement, these acts will not be necessary. EUicot v. Pearl 10 Pet. 412; Blood v. Wood, 1 Met. 528; Bailey v. Carleton, 12 N. H. 9 La Frombois v. Jackson, 8 Cow. 604; Paught v. Holway, 50 Me. 24 Ford V. Wilson, 35 Miss. 504. 3 Thomas V. Kelley, 13 Ired. 43; Scott v. Elkins, 83 N". C. 424; Green V. Liter, 8 Cranch, 229; Johnston v. Irwin, 3 Serg. & R. 291 ; Bracken v. Jones, 63 Tex. 184. 374 Ch. 9.] ACTUAL NOTICE. [§234. unrecorded instrument, or equitable claim of title, tiiere is not in the nature of the case any reason why the rule, as to its character and sufficiency should be different, whether it is invoked to charge notice or to support the statute of lim- itations. If the claim is by virtue of an unregistered con- veyance, the possession, in either case, is usually held to ex- tend to the limits defined in the written instrument, the same as if it were of record. ^ Where the claim is not ev- idenced in writing, it is a difficult matter to fix upon any cri- terion by which to determine how far the possession of land may extend beyond the part actually inclosed, or appropri- ated in some visible manner; and the question must be de- termined in any given case very largely by the particular facts relating to the amount and character of the land, and the manner in which possession is exercised.^ In some 1 Craig V. Cartwright, 65 Tex. 413; Cowen v. Loomis, 91 111. 132 Taylor v. Moseley, 57 Miss. 544; Emmons v. Murray, 16 N. H. 385 Moreland v. Richardson, 24 Beav. 33; Waters v. Connelly. 59 Iowa, 217 S. O. 13 N. W. Bepr. 82; Morrison v. Marcb, 4 Minn. 422; Doyle v. Stevens, 4 Mich. 87; Farmer's Loan Co. v. Maltby, 8 Paige, 361; Clapp V. Bromaghan, 9 Cow. 552; Gale v. Shillock (Dak.), 29 N". W. Repr. 661. ^ It Is generally necessary to i-eservepart of the woodland, and good husbandry forbids the improvement of the whole. Where possessions are not large, and are in the neighborhood of others with well-defined boundaries, .the principle that the constructive possession should extend to the boundaries of the paper title may well apply, but the application of the same rule to cases of large, uncultivated tracts, would be mis- chievous indeed. Jackson v. Woodruff, 4 Cow. 276; Chandler v. Spear, 22 Vt. 406; Pepper v. O'Dowd, 39 Wis. 538, 550. The part not actually possessed must be for use with, or subservient to, that actually possessed, and have some necessary connection with it, and be only so much as is reasonable and proper for that purpose ac- cording to the custom of the country. Thompson v. Burhans, 79 N. Y. 100; Hickman v. Link (Mo.), 10 S. W. Kepr. 600. Where the defendant produced no written title, but relied solely on possession with claim of title, he was held limited to that part under actual improvement. Jackson v. Warford, 7 Wend. 62. Where the holder of the elder title subsequently takes actual posses- sion, it will extend constructively to every part of the tract not actually inclosed and improved by an occupant under an adverse junior title. Anderson v. Jackson, 69 Tex. 346; s. C. 6 S. W. Repr. 575; Parker v. Baines, 65 Tex. 605, citing Evitts v. Roth, 61 Tex. 81; Frisby v. Withers, 61 Tex. 134; Whitehead v. Foley, 28 Tex. 239; Horton v. Crawford, 10 375 Ch. 9.] ACTUAL NOTICE. [§234, states the statutes of limitation have not only prescribed that a shorter possession shall bar the legal owner where it is by virtue of an unrecorded written instrument, but have also defined the character of possession requisite in each character of case, in substantial accord with the distinctions above noted. ^ Where there is a dispute as to boundary Tex. 338; Clarke v. Courtney, 5 Pet. 319; overruling Jones v. Menard, 1 Tex. 771, and distinguishing Peyton v. Barton, 53 Tex. 298. Even actual possession has been held insufficient where the building occupied was in the corner of the lot, near otber similar buildings occu- pied by employes of the owner of the entire lot, who had sold the cor- ner by parol. Billington V. Welsh, o Binn. 129; s. C. 6 Am. Dec. 406; and see Pope v. Allen, 90 X. Y. 298; Hanrick v. Thompson, 9 Ala. 409. 1 For good sfatutory definitions of possession under written instru- ment or judgment, and under claim not based on any written instru- ment, see Rev. Stats. S". Y., vol. 2, part 2, oh. 4 title 2; Hacker v. Hor- lemus (Wis.), 41 X. W. Repr. 965. The Texas statute provides that adverse possession shall be construed to embrace not more than 160 acres, including the improvements, or a greater number, if actually inclosed;, but if held under some written memorandum of title, other than a deed, which fixes the boundaries, and is duly registered, the possession will be co-extensive with such boundaries. Rev. Stats., §3195. Under this statute, the possession of a naked trespasser will extend to 160 acres, formerly 640, though it be not inclosed. Craig v. Cartwright, 65 Tex. 413, 423. "The present law, as did not the former, makes registration of written memorandum of title other than a deed, necessary to enable the holder to have his possession construed to be co-extensive with the boundaries specified in his memorandum of title." / * Fuller V. Bennett, supra; Constant v. Am. Society, 53 N. Y. Sup. €t. 170; Holden v. N. Y. Bank, 72 N. Y. 286. The Distilled Spirits, 11 Wall. 356; Dunlap v. Wilson, 32 111. 517; Patten v. Ins. Co., 40 N. H. 375; Pritchett v. Sessions, 10 Rich. Law, 293; Abel v. Howe, 43 Vt. 403; Wiley v. Knight, 27 Ala. 336; Wilson v. Minn. Fire Ass'n, 36 Minn. 112; s. c. 30 N. W. Repr. 401. (25— Reg. of Title.) 385 Ch. 9. J ACTUAL NOTICE. [§242. presumed to have forgotten it in the evening. ^ But where a solicitor or attorney acquires information of a fact in the discharge of his duties under circumstances that would render it a breach of professional confidence for him to communicate the fact to a subsequent client, or take advant- age of such information to promote the interests of the later client, he will not be presumed to have done so, and notice will not be imputed to the principal in such case.^ §242. Agent Acting for Both Parties, and for His Own Benefit. The fact that the agent acts in the negotiation for both parties, vendor and purchaser, does not necessarily afford a reason why the purchaser should not, by his agent's knowl- edge, be charged with notice of the equities of third parties affecting ihe property.^ But in such cases the rule is less strictly applied, and it has been held that where the mort- gagee did not know that the agent was acting also for the mortgagor, he was not chargeable with notice by reason of the agent's knowledge of a prior incumbrance on the prop- erty.* An agent is such fully and prpperly, he is alter ego, 1 Mountford v. Scott, Turn. & R. 274. Drawing a deed of the premises four years before does not charge notice. White v. Fisher, 77 Ind. Ho; s. C. 40 Am. Kep. 2^7. 2 Hood V. Fahnestocli, 8 Watts, 489; McCormick v. Wheeler, 30 111. 115; Templeman v. Hamilton, 37 La. Ann. 754. 3 Astor V. Wells, 4 Wheat. 466; Boyd v. Yerkes, 25 111. App. 527; Le- Neve v. Le Neve, Amb. 436; s. C. 1 Ves. 64; 3 Atk. 646; Losey v. Simpson, 11 N. J. Eq. 246; Holden v. N". Y. &Erie Bk., 72 jST. Y. 286; Tweedale v. Tweedale, 23 Beav. 341. The mere fact that only one attorney is employed in the negotiation or business, does not make him the attorney of both parties. Astor v. Wells, supra; Espin v. Pemberton, 3 DeG-. & J. 547, 554; Perry v. HoU, 2 De G. F. & J. 38, 53; even though the other party (the mortgagee) asks questions of the attorney about the title, and afterwards entrusts the mortgage to him to be recorded. Astor v. Wells, supra. * Bunton v. Palm (Tex.), H fs. W. Repr. 1S2. So, where the attorney is himself the borrower the rule does not apply, and a second mortgagee will not be charged with notice of a prior mortgage of the property executed by the attorney. Hope Fire Ins. Co. v. Cambrelling, 1 Hun. 493. See RoUand v. Hart, L. R. 6 Ch. App. 678, 6S3; Winchester v. B. & S. Ry. Co., 4 JId. 231. 386 -Ch. 9.] ACTUAL NOTICE. [§242. only in cases where his interest in the business is in no sense whatever antagonistic to that of the principal; his compen- sation, for instance, not being dependent, in the form of commissions, on the success or failure of the negotiation. ^ Where his labor is to be lost unless a purchase, loan or trade be made by or for his principal,, his interest and that of the principal are not entirely identical ; and very often, if not usually, in such cases, the agent has no authority to bind the principal in any manner. Where the agent inaugurates the negotiation for his own benefit, and acts in this capac- ity, in behalf of one or both the parties; where he is "the contriver, the actor and the gainer of the transaction' ' — the reason for charging the principal with notice because of his knowledge does not exist. Thus, where A. desiring to ob- tain a sum of money fromB. offered in consideration there- for to procure for him a conveyance of certain real estate from a third party, which offer was accepted, it was held that A.'s knowledge of a prior incumbrance on the prop- erty did not affect B. with notice.^ 1 Kennedy v. Greea, 3 My. & K. 699. Where one acts as agent for another without authority, such other person, in ratifying the un- authorized act, and accepting the benefit of it, must talje the benefit charged with the liability of notice to the agent at the time of the trans- action: as where the grantor in a prior unrecorded conveyance acted as the agent of one of his creditors in directing the levy of an attachment upon the same property, the creditor, by claiming rights under the levy was held chargeable with notice. Hovey v. Blaiichard, 13 K. H. 145; and see also, .Tenuings v. Moore, 2 Vern. 009; Wade ou Notice, §691. 2 Peppard v. House, 37 Minn. 280; s. C. 33 N. W. Eepr. 790. It is to the interest of the vendor or mortgagor that a prior incumbrance should be concealed, and to the interest of the other party that it should be known; hence it is contrary to law and public policy that the same per- son should be agent lor both parties— especially upon a contingent com- pensation. Buntonv.Palm (Tex.),9 S. W.Repr. 182; Story on Agency, §§210-212. If one with notice that his agent assumes to have and to exercise a power he really does not possess, as agent, permits the agent to hold himself out as clothed with such power, then the principal will be as fully bound by the acts of the agent as though the latter possessed the power, in so far as third persons are concerned. Collins v. Cooper, 65 Tex. 460. As to ratification by corporations, see Scott v. Middleton, etc., Ky., 86 N. Y. 200; Gilman, etc., Ry. v. Kelley, 77 111. 426; Tracy v. Guthrie Co., etc., 47 Iowa, 27. 387 Ch. 9.j ACTUAL NOTICE. [§243. §243. Wliere Agent is Guilty of Fraud. The law in imputing notice to the principal proceeds largely on the theory that the agent has discharged his duty in communicating to his principal all information within his knowledge materially affecting the property or business. Where, however, in the course of the business the agent contrives an independent fraud for his own benefit, the suc- cessful perpretation of which would re*quire a concealment from his principal of the facts to which the notice relates, the presumption that he has communicated such facts does not obtain, and the principal is not held chargeable with notice.^ It is not every fraud of the agent, however, though done in the transaction involving the agency, or in the course of that business, that comes within the excep- tion.^ The fraud must be such as renders concealment necessary, or operates to the principal's injury; it is not sufficient that the agent merely conceals from the principal a knowledge of material facts."* 1 Kennedy v. Green, 3 My. & K. 699; Cave v. Cave, L. E., 15 Ch. T>. 639; Barnes v. Trenton Gas Co., 27 N. J. Eq. 33; Winchester v. B. & S. Ky. Co., 4Md. 231; Fulton Bk. v. N. Y., e(c., Co., 4 Paige, 127; Hewitt V. Looseniore, 9 Hare, 449; MoC ormick v. Wheeler, 36 111. 114; Eolland V. Hart, L. R., 6 Ch. 678. 2 The question is sometimes affected by very delicate shades of dif- ference, and quite a number of the cases confessedly rest upon very narrow distinctions. See Boursot v. Savage, L. R., 2 Eq. 134. 142; At- terbury v. Wallis, DeG. M. & G. 454, 466; Davis v. Bk. of U. S., 2 Hill, 451; Bk. of New Milford v. Town of New Milford, 36 Conn. 93; Tagg v! Tenn. Nat. Bk., 9 Heisk. 479; Rolland v. Hart, L. R., 6 Ch. 678, 682. and 2 Pom. Eq. Jur., §675 and notes, to which I am Indebted for much of the matter of this section. ' The subject is ably discussed in the opinion by Folger, J., in Hol- den V. N. Y. & Erie Bank, 72 N. Y. 286, where the president and chief managing officer of the bank was also trustee for certain minors, under a will, and had deposited the trust funds in the bank to his credit as trustee. The bank was entirely insolvent, a fact well known to its pres- ident, though not to the public; and the president himself was heavily indebted to the bank, having largely overdrawn his individual account. His fraudulent conversion of the trust funds by transferring them to the bank in part payment of his own account, while a fraud on the benefi- ciaries under the trust, was an act that euured to the benefit of the bank ; and it was held that the bank, through the knowledge of its agent and president, had notice of the character of the funds and the violation of 388 Ch. 9. J ACTUAL NOTICE. [§244. §244. Notice to Ofllcers and Agents of Corporations. Corporations frequently transact their business through quite a number of officers, employes and agents of different grades, and regularly entrusted with different duties; and hence the rule that notice to the agent is notice to the prin- cipal often meets with much difficulty in its proper applica- tion to corporations. The duties of the particular officer or agent must have some direct connection with the matter in reference to which notice is sought to be charged against the corporation. The knowledge, for instance, of an inferior agent, located in one state, cannot affect the corporation with notice in relation to a matter of business transacted through its other agents in a different state. ^ It is declared in a number of the cases that notice to a director or other officer of a corporation will not be notice to the corporation unless such officer was at the time of receiving the notice or information acting in behalf of the corporation, and actu- ally engaged in transacting its business; the fact that he was at that time clothed with official authority not being sufficient.^ While, foi* reasons indicated, it is more difficult the trust. But where the interest of the officer is, in the particular transaction, opposed to that of the corporation, as where he sells to it, the rule is different, ta Farge Ins. Co. v. Bell, 22 Barb. .54; Frenkel v. Hudson, 82 Ala. 158; s. C. 2 South Kepr. 758; Int. Wrecking Co. v. Mc- Morran (Mich.), 41 N. W. Kepr. 510; Peckham v. Hendren, 76 Ind. 47; Wickersbam v. Chicago, etc., 18 Kan. 4S1; s. C. 26 Am. Rep. 784. 1 Congar v. C. & N. W. By. Co., 24 Wis. 157; Slieh. Cent. Ky. v. Dolan, 32 Mich. 510. The mere fact that a bank director has such knowledge as would prevent his becoming an innocent holder of a cer- tain note, would not affect the bank if the paper should be received there and discounted without his knowledge, as it could hardly be his duty to report to the bank every fact coming to his notice in regard to all the negotiable paper of which he might have any knowledge, where he had received no intimation that such paper would be presented there for discount. Wade on Notice, §683, citing Louisiana State Bk. v. Seu- ecal, 13 La. 525; Gen. Ins. Co. v. U. S. Ins. Co., 10 Md. 517; S. C. 49 Am. Dec. 174; Farmer's Bk. v. Payne, 25 Conn. 444; Nat. Bk. v. Nor- ton, 1 Hill, 572; Washington Bk. v. Lewis, 22 Pick. 24; and see Wilson V. Second Nat. Bk. (Pa.), 7 Atl. Repr. 145. 2 Johnsonv. Shortridge, 93Mo. 227; s. C. 12 West. Repr. 106; 6 S. W. Eepr. 54; First Nat. Bk. v. Christopher, 40 N. J. 435; N. Y. Cent. Ins. Co. V. Nat. Prot. Ins. Co., 20 Barb. 468; C. & S. Ry. v. L. S. & M. Ry., 389 Ch. 9.] ACTUAL NOTICE. [§244. to apply the general rules of notice to corporations, it does not follow that these cases involve any substantial difference of principle. If the notice or information received is of such a character that it is the duty of the particular officer, member or agent to communicate it to the managing board, body or official, and at the time this duty becomes incum- bent the information has been so recently received that it must reasonably be still remembered, it is immaterial how, or in what capacity, or under what circumstances the knowledge was acquired or notice received.^ Notice, how- ever, to an individual corporator, if he be not constituted by the charter or by-laws an organ of communication be- tween the corporation and those who deal with it, is not no- tice to the corporation, because the mere presumption that he had imparted the information to the body would be re- butted by the fact that it was not his duty to do so.- 5 Fed. Repr. 19; Houseman v. Mut. Build. Ass'n, 81 Pa. St. 256; North Biver Bk. v. Aymar, 3 Hill, 262; Haywood v. Nat. Ins. Co., 52 Mo. 181; Bieroe v. Red Bluff Hotel Co., 31 Cal. 160; Howard Ins. Co. v. Halsey' 8 N. Y. 271; s. c. 59 Am. Dec. 478; Atlantic State Bk. v. Savery, 82 JS"! T. 291, 307; Burt v. Batavia Paper Co., 86 111. 66; Armstrong v. Abbott, 11 Colo. 220. The mere fact that two corporations have the same attor- ney, or the same directors, does not render each chargeable with notice of whatever is known or done by the other. Fulton Bk. v. N. Y. Canal Co., 4 Paige, 127; Banco de Lima v. Anglo-Peruvian Bk., L. E., S Oh D. 160, 175. 1 Fairfield Bk. v. Chase, 72 Me. 226; Hart v. Farmer's Bk., 33 Vt. 252; Wade on Notice, §§687, 688, and see cases above, and Seneca Co. Bk. V. Neass, 5 Denio, 329; Atlantic Bk. v. Savery. 82 N. Y. 291; Farm- er's Bk. V. Payne, 25 Conn. 444; G. W. Ry. v. Wheeler, 20 Mich. 419; Wilson V. Minn. Fire Ass'n, 36 Minn. 112; s. c. 30 N. W. Repr. 401; Fulton Bk. V. N, Y., etc., Canal Co., 4 Paige, 127; Wayuesville Nat. Bk! V. Irons, 8 Fed. Repr. 1; Nat. Security Bk. v. Cushman, 121 Mass. 490. 2 Housatonic Bk. v. Martin, 1 Met. (44 Mass.), 294; Fairfield Bk. v. Chase, 72 Me. 226. "There is no legal identity between individuals and a corporation which will prevent it from becoming a purchaser in good faith from one of its members. There is great reason for not confound- ing the corporation partly made up of such members, with an officer who in his private capacity commits a fraud upon it, and sells its prop- erty with no notice of infirmity of title." Campbell, J., in International Wrecking Co. v. McMorran (Mich.), 41 N. W. Repr. 510; and see, also, Barnes v. Trenton, etc., Co., 27 N. J. Eq. 33. "Notice to an agent 24 hours before the relation commenced is no more notice than 24 hours after it ceased would be." Houseman v , 390 Ch. 9. J ACTUAL NOTICE. [§244. Building Ass'n, 8\ Pa. St. 256; contra, Fairfield Bk. v. Chase, 72 Me. 226, and cases in last note above. "I think if I were to say that where a gentleman has been ijianager of one company for three years after a transaction had taken pliice, and had then ceased to be so for two years and had become the ageut of an- other company, the other company to which he became the agent is bound by all the knowledge that he once possessed, and that he as their agent was bound to recollect all the minute arrangements of the docu- ments which he is not in possession of, and which are not accessible to him, and also to go into the general account between principal and agent arising out of this transaction, it would, in my opinion, be carrying the doctrine of notice to a most inconvenient and dangerous extent." Mal- lns,V.-C., in Banco de Lima v. Anglo-Peruviaa Bk.,8 Ch. Div. 25 Eng. K. (Monk's notes), 175. The knowledge of an arbitrary mark of a consignor of goods by rail- road, possessed by a former offlcfer or agent of the railroad company — such knowledge not having been acquired by any usage, custom or course of business of the company — is not the knowledge of the com- pany. The Great Western Ry., etc., v. Wheeler, 20 Mich. 419. Some cases of notice of various kinds to corporations through differ- ent officers are herte given. Thus, notice to the president is good, if re- lating to a matter under his care. Smith v. Board of Water Com'rs, 3S Conn. 208; and to a treasurer who is the managing agent. Newburg Car Co. v. Union, efc, Co., 4 Blatohf. 1; and the superintendent of a mine. Quincy Coal Co. v. Hood, 77 111. BS; to the head switchman of a railroad. Keed v. Burlington, etc., Ry., 72 Iowa, 166; s. C. 33 N. W. Bepr. 451 ; to a section master. B. & O. Ry. v. MoKenzie, SI Va. 71 ; to the cashier of a bank. Witters v. Sowles, 32 Fed. Repr. 7.iS; and see Sangamon Coal Co. v. Wiggerhaus, 122 111. 279; S. C. 13 N. E. Repr. 648; 11 West. Repr. 578: .lohnson v. Shortridge, 93 Mo. 227; S. C. 6 S. W. Repr. 64; 12 West. Repr. 100; First STat. Bk. v. Loyhed, 28 Minn. 396; S. C. 10 N. W. Repr. 421; Baldwin v. St. Louis, etc , Ry. (Iowa), 39 M. W. Repr. .507; Huff v. Farwell, 67 Iowa, 298; s. C. 25 JT. W. Repr. '252; Mishit v. Macon Bk., 4 Woods, 464; s. C. 12 Fed. Repr. 6SB; Far- well V. Houghton Works, 8 Fed. Repr. 66; Mechanic's Bk. v. Seton, 1 Pet. 299. A director of a land company, who was also probate judge, at the grantor's request draughted a deed in the presence of the president and another member of the executive board of the comoany, conveying to a third person certain lots, and took the acknowledgment of the deed ; the company at the same time conveying to the same grantee — a church- other adjoining lots. Two months afterwards, the first deed not being recorded, the company purchased one of the lots from the same grantor. Meld, that the company was not chargeable with actual notice, citing The Distilled Spirits, 11 Wall. 356. "The principal is not bound by un- official knowledge communicated to the agent, unless such knowledge is present to the agent's mind at the time of effecting the later pur- chase." Armstrong v. Abbott, 11 Colo. 220. 391 Ch. 9.] ACTUAL NOTICE. [§244, Where an officer of a corporation deals with himself as an individ- ual, or agent of a firm, if he is faithful to the corporation, and acts to its interest, then the corporation is chargeable with notice by reason of facts knowQ to him; but if he acts for his own interests, and drives a baro-ain for his interest alone, the corporation is not chargeable. Seixa* V. Citizen's Bank, 38 La. Ann. 424, citing Bank v. Darien, 1 Stew. (Ala.) 280, 295 ; Peckham v. Hendren, 76 Ind. 47 ; Barnes v. Trenton, 27 H". J. Eq. 33; Winchester v. Ky. Co., 4 Md. 231. 3 Since this chapter has been in press, the decision of the supreme court of Missouri in the case of Drey v. Doyle (12 S. W. Repr. 2S7), has been rendered, and in the well considered opinion by Mr. Justice Black the distinctions of actual, of constructive, and of presumptive notice are stated in substiintial accofd with the text of this work, ante. §^219-2-22; the opinion citing 2 Pom. Eq. Jur. §593; Bisp. Eq. (3d ed.) §26S; Speck V. Biggin, 40 Mo. 405; Rhodes v. Outcalt. 48 Mo. 367; Whitmore v. Tay- lor, 60 Mo. 127; Shuraate'v. Beavis, 40 Mo. 333. The requirement of "actual notice" by the Missouri statute (Rev. Stats. 1879, §693; Rev. Stats. 1SS9, §2420; post, §390) is considered, es- pecially with reference to possession as charging notice, and it is held that possession will not, pe»- se, constructively charge notice; but that where the possession is known to the subsequent purchaser, it is a fact ordinarily sufficient to impose the duty of inquiry, and thus to charge notice of whatever that inquiry, fairly and reasonably prosecuted, would have disclosed; citing Vaughan v. Tracy, 22 Mo. 420; (s. c. 69 Am. Dec. 421 ; 25 Mo. 318;) Maupin v. Emmons, 47 Mo. 304. "The question (of actual nolice) is one of fact, and is to be determined - like any other fact. ***** Possession and knowledge thereof will, in ordinary cases, be good proof (to go to the jury) of notice of the title under which the party in possession claims. Such evidence, under other ch'curastances, will be of little value. * * * * Any ev- idence leading to show knowledge of the prior unrecorded instrument should be received as evidence of notice." The rule thus declared by Justice Black is the one that obtains in those states, as Wisconsin, Mas- sachusetts, Maine, and others, whose statutes provide that the subse- quent purchaser shall be without "actual notice,'' instead of without "notice." Ante, §§221), 222. The case further decides that the subsequent purchaser need not, aside from the recitals in the deed to him, prove himself a purchaser for value where such deed recites that the grantee therein assumes the payment, as part of the purchase price, of a stated incumbrance on the property, as such assumption constitutes a valuable consideration; citing Jackson v. Winslow, 9 Cow. 13; 2 Pom.Eq. Jur. §747. 392 Ch. 10.] PERSONAL PROPERTT. [§245. CHAPTER 10. PERSONAL PKOPERTT. §245. General principles. 246. Statutory and other .distinctions. 247. Possession as notice. 248. Continued — Purchaser protected, when. 249. Conditional sales — General rule. 250. Continued — Purchaser protected. 251. Statutes requiring registry of conditional sales. 252. Chattel mortgages — ^Fixtures — Chattels real. 253. Description of property. 254. Filing and recording. 255. Continued — Statutory time— Bill of sale. 256. Filing and withdrawal. 257. Re-filing. ' 25S. Continued — Time within which to be done. 259. Re-filing excused by possession. 260. Affidavit of renewal. 261. Place of record — Residence of mortgagor. 262. Continued — -Non-residents. 263. Residence of corporation. 264. Residence of partnership. 265. Removal of property. 266. Removal to another state. 267. Comity of states — Record notice. 268. Continued — Lex situs controls, when. 269. Actual notice. 270. Notice to creditors. 271. Affidavit of good faith. 272. Recorder's certificate. 273. Mortgages of growing crops. 274. Continued — When record not constructive notice. 275. Conveyances and mortgages of vessels. 276. Continued — Federal and state statutes. §245. General Principles Apply as to Keal Estate. The operation of the registry laws having proven ben- eficial, the tendency of legislation is to include personal property within their provisions, and the statutes in this 393 Ch. 10.] PERSONAL PEOPERTr. [§245. respect are undergoing constant change and extension, especially with reference to chattel mortgages, conditional sales and the like. There is, in principle no difference in the doctrine of notice by registry, whether applied to real or personal property. Thus, the rule that a bona fide pur- chaser from a fraudulent vendee, or grantor with notice, will be protected, applies to personal as well as real prop- erty ;i as also the rule that circumstances suflScient to put on inquiry will charge notice.^ As already noticed, how- ever, there is some difference in the rule of construction, as between real and personal property, in determining what instruments, relating to the one or the other kind, are re- quired to be recorded.^ The general rule obtains that the law contemplates the registry of all instruments affecting the title to realty, but such a rule would not be applied as to personal property. Thus, while it i^ admitted by the Virginia court that the word "chattels" is one of very large signification, and generally includes choses in action as well as all species of personal property, yet it is held that as found in the registry statute of that state, it is used in a 1 Fawcett v. Osborn, 32 111. 411; s. C. S3 Am. Dec. 27S; Moody v. Blake, 117 Mass. 23; s. c. 19 Am. Eep. 394; Le Grand v. Eufala Bank, 81 Ala. 123; s. C. 60 Am. Rep. 140; Saltus v. Everett, 20 Wend. 267; S. C. 33 Am. Dec. 541; Maury v. Walsh, 8 Cow. 243; Jennings v. Gage, 13 111. 610; s. c. 56 Am. Dec. 476; Eowley v. Bigelow. 12 Pick. 307. So. a purchaser with notice, from a bona fide purchaser, is protected. Barber v. Kichardson, 57 Vt. 408; and see also, Sadler v. Lewes. 42 Ark. 148; Curme v. Rauh, 100 Ind. 247. The purchaser must have parted with a valuable consideration In good faith. Funk v. Paul, 64 Wis. 35; S. C. 24 N. W. Repr. 419; Rateau v. Bernard, 3 Blatchf. 244; Barnard v. Campbell, 58 N. Y. 73; s. C. 17 Am. Rep. 208; Tiffany v. Warren, 37 Barb. 571. 2 Higgings V. Lodge, 68 Md. 229; s. c. 6 Am. St. Rep. 437; Bradlee V.Whitney, 108 Pa. St. 362; Robinson v. Levi, 81 Ala. 134; Reedy. Gannon, SON. Y. 345; Parker v. Conner, 93 N. Y. 118; S. O. 45 Am. Rep. 178. 2 Ante, §40. The object of the registry statutes as to chattel mort- gages is the same as in case of real estate, and the same general prin- ciples are alike applicable in each case. Appleton, C. J., in Griffith v. Douglass, 73 Me. 532; s. c. 40 Am. Rep. 359. The object is to prevent fraud; hence, possession must be taken, or notice given by registry or otherwise. Horner v. Stout, 5 Colo. 166. 394 Ch. 10.] PERSONAL PROPERTY. [§246. more restricted sense, and that a provision that conveyances of "goods and chattels" shall be recorded, does not em- brace assignments of choses in action.' A number of the statutes, while authorizing or permitting the record of all conveyances of personal property, do not attach to a failure to record in such cases the penalty or consequences that pertain to such failure with relation to instruments affect- ing real estate, and where this is the case the record of con- veyances of personalty is not in all instances held oblig- atory.^ §246. Statutory and Other Distinctions. There are, of course, many statutory differences in the law of registry as affecting personal property, just as there are in the law applicable to real estate. This will more fully appear by reference to the succeeding chapter devoted to the statutory Ikws, and it is designed to call attention here to only such of these differences as more especially arise from the different nature and character of real and personal property. The smaller value of personal property has induced in a majority of the states quite a difference in the statutory requirements as to the form, manner and de- tails of its record ; the leading purpose being evidently to simplify the method and cheapen the cost of recording conveyances of personalty. Nearly all the statutes provide that the tiling and indexing of a chattel mortgage shall be a sufficient record thereof, without its being transcribed in a book of record.^ So, in a number of states, acknowledg- ment is dispensed with, although acknowledgment or proof for record is in the same states still required as to convey- ances of realty.^ In Illinois and Missouri the acknowledg- 1 Kirkland v. Brune, 31 Gratt. 136; Code of Va. 1887, §2465; Gordon v. Kixley, 76 Va. 694. 701 ; Dailey v. Warren, 80 Va. 512. 2 Cbandler v. Burnbam, 15 Tex. 441; Pegram v. Owens, 64 Tex. 475. See ante. §40; Parker v. Hall, 2 Head, U41. 3 Sayles' Rev. Stats, of Tex., §31906; Chaytor v. Brunswick, 71 Tex. 591; S. 0. 10 S. W. Repr. 250; Loeb v. Hirsch, 21 Neb. 392; Ward v. Watson, 24 Neb. 592. * Biokley v. Keenan, 60 Ala. 293; Hicks v. Ross, 71 Tex. 35S; Hunt v. Bowen 75 Ga. 662; Chaytor v. Brunswick, 71 Tex. 591; s. 0. 10 S. W. 395 Ch. 10. J PERSONAL PKOPEBTY. [§246. ment of a chattel mortgage before a justice of the peace must be before one in the county in which the mortgagor, if a citizen of the state, resides at the time;^ and in the former state an entry of the acknowledgment in the docket of the justice is essential to its validity as against third per- sons.2 The most material differences, however, in the law of record of the two kinds of property, grow out of the transitory character of personal property. Having no fixed situs, the. place for recording title to it is variously deter- mined by the place of residence of the grantor, of the grantee, and the place of the property at the time.* The transfer of record, in case of removal of the property, is a feature not found at all in the law of real estate;* and the annual re-fih'ng of chattel mortgages, where required, is principally due to the transitory nature of the property.^ Eepr. 250. See Hooker v. Hammill, 7 Neb. 231 ; Crane v. Chandler, a Colo. 21. 1 McDanielv. Harrris, 27 Mo. App. 545; Tioknor v. McClell.3; Code of Ala. §2162; Hardaway v. Semmes, 28 Ala. 657; Bickley v. Keenan, 60 Ala. 293; Heflin v. Slay, 78 Ala. 180; Boyd v. Beck, 29 Ala. 703; Wilkerson v. King, 81 Ala. 156; Beall v. William- son, 14 Ala. 55. See as to mortgages of crops. Smith v. Fields, 79 Ala. 335; Marks v. Eobinson, 82 Ala. 69; s. C. 2 South. Kepr. 292; ante, §273; Hamilton v. Maas, 77 Ala. 283; Leslie v. Hinson, 83 Ala. 266; s. c. 3 South. Repr. 443; Jackson V. Baiu, 74 Ala. 328; Rees v. Coats, 65 Ala. 256. No re- 447 Ch. 11. J STATUTORY PROVISIONS. [§§280, 281. newal of chattel mortgages is necessary. They are now required to be in writing and signed. Laws 1884-18S5, p. 93. As to personal property; Robinson v. Levi, 81 Ala. 134; Fairbanks v. Eureka Co., 67 Ala. 109; Weaver v. Lapsley, 42 Ala. 601; S. C. 94 Am. Dec. 671; Munroe v. Hamilton, 60 Ala. 227; Stewart v. Kirkland, 19 Ala. 162. 2 Code 1886, §1815. Conditional sales of railroad equipment and rolling stock, where the vendor reserves title, and the purchaser obtains possession, are void against judgment creditors of the purchaser without notice, or pur- chasers from him for value without notice, unless in writing, and re- corded within three months after the making thereof, in the office of the judge of probate of the county in which such corporation may have its principal office or place of business; and if it has not in the state a principal office or place of business, then in the office of the secretary of state. Certitied copies of such contracts, duly acknowledged and re- corded, may be given in evidence without proof of the execution of the original. Code 1886, §§1821, 1822. §280. Acknowleclg'ments within the state may be taken by judges of the Supreme and Circuit Court and their clerks, chancellors and registers in chancery, probate judges, justices of the peace and notaries. Without the state and within the United States, by judges and clerks of any Federal court, judges of any court of record in any state, notaries public, and commissioners of deeds appointed for Alabama. Without the United States by the judge of any court of record, mayor or chief magistrate of any city, town, borough or county, notaries public, or by any diplomatic, consular or commercial agent of the United States.^ 1 Code 1886, §§1799,1800; Code of Ala., §§2155, 2156: Webb v. Mul- lins, 78 Ala. 111. §281. Certificate of Acknowledgment. The general form of certificate is as follows ^ The State of ) County. 5 I (name and style of officer) hereby certify that John Smith and Mary Smith, his wife, whose names are signed to the foregoing conveyance and who are known to me, 448 €h. 11. J ALABAMA. [§282. acknowledge before me on this day that being informed of the contents of the conveyance, they executed the same vol- untarily on the day the same bears date. Given under my hand this day of , (Signature and title. )^ ' Code 1886, §1802; Kev. Code, §1548; Carter v. Chandraln, 21 Ala. 72; Hobson v. Kissam, 8 Ala. 357; Kogers v. Adams, 66 Ala. 600; Webb V. MuUins, 78 Ala. Ill; Dagger v. Collins, 69 Ala. 321; Shelton v. Ault- man, 82 Ala. 315. If the grantor Is unknown, his identity may be es- tablished by proof satisfactory t6 the officer. §282. Acknowledgment of Married Women. The wife may relinquish dower by joining with the hus- band in a conveyance attested by two witnesses, or ac- knowledged before an autiiorized oflScer; or subsequent to .a conveyance by the husband, by an instrument in writing executed or acknowledged by her as above. The wife has full legal capacity to contract in writing as if sole, with the assent of the husband expressed in writ- ing; but he must join in her conveyances. If the husband is non compos mentis, or abandons his wife, or is a non- resident of the state, or is a convict serving two years or more, the wife can convey as if sole.^ Separate examination is required only to conveyances of the exempted homestead. Following is the form of certif- icate in such case : State of > County. 5 I (name and title of officer) hereby certify that on the day of , 18. . , came before me the within named Mary Smith, known, or made known, to me to be the wife of the within named John Smith, who being by me examined separate and apart from her husband touch- ing her signature to the within acknowledged (29— Beg. of Title.) 449 Ch. 11. J STATUTORY PROVISIONS. [§283. that she signed the same of her own free will and accord and without fear, constraint or threats on the part of her husband. lo witness hereof, I hereunto set my hand, this the day of ■ , 18. .. (Signature and title. )^ 1 Code 1886, §§2346-2348. 2 Code 1886, §2508; Homer v. Sohonfleld, 84 Ala. 313; Gates v. Heister, 81 Ala. 357; Smith v. McGuire, 67 Ala. 34; Alabama v. Boy- kin, 38 Ala. 510; Boykin v. Rain, 28 Ala. 332; s. c. 65 Am. Dec. 349; Kooney v. Michael, 84 Ala. 585; s. C. 4 South. Repr. 421; Pacific Co. v. Anglin, 82 Ala. 492; s. C. 1 South. Repr. 852; Cahall v. Mut. Ass'n, 61 Ala. 232; Beene v. Randall, 23 Ala. 514; Dagger v. Collins, 69 Ala. 324. §283. Witnesses. Conveyances of land must be attested by one witness, or if the grantor cannot write, by two witnesses who must write their names as witnesses. Acknowledgment dis- penses with the necessity of witnesses. Relinquishments of dower former.ly required two witnesses, who might prove the sio'nature of the wife ; but this provision has been re- pealed. ^ Deeds may be proved as well as acknowledged, but if not acknowledged and not attested by subscribing witnesses, they are ineffectual to transfer the title to land.^ The certificate of proof by a subscribing witness is as fol- lows: The State of ? ^^ County. ^ I (name and style of officer) hereby certify that , a subscribing witness to the foregoing conveyance, known to me, appeared before me this day, and being sworn stated that , the grantor in the conveyance, voluntarily executed the same in his presence, and in the presence of the other subscribing witness, on the day the same bears date; that he attested the same in the presence of the grantor and of the other witness, and that such other witness subscribed his name as a witness in his presence. 450 Ch. il.J ALABAMA. [§283. Given under my hand this the .... day of ^•'^•'^^■•- (Signature and title. )3 1 Rev. Code, §2373; Code of Ala., §2707. 2 Code 1886, §1789; Code of Ala., §§2145, 2146; Bank v. Jones, 59 Ala. 123; Hendon v. "White, 62 Ala. 597; Lord v. Polmar, 57 Ala. 615; Stultz V. Kohn, 64 Ala. 186. 3 Code 1886, §1803; Eevised Code, §1549; Clement v. Pearce, 63 Ala. 284; Coleman v. State, 79 Ala. 49; Flpp v. MoGehee, 5 Port. 413; Parsons v. Boyd, 20 Ala. 112; Harbinson v. Harrell, 19 Ala. 753; Dolin V. Gordon, 15 Ala. 758. Handwriting, Jones v. Hough, 77 Ala. 437. There is no special law regulating the execution of conveyances by corporations. This depends altogether on the act of incorporation. 451 AKIZONA TERRITORY. §284. Effect of the Record. A conveyance of real estate, of inheritance, freehold, or for a term of more than one year, shall not be good and effectual against a purchaser in good faith, without notice thereof and for valuable consideration, nor against any creditor, unless such conveyance be acknowledged b}' the party who shall have signed and delivered it, or proved, in the manner required by law, and before some officer author- ized by law to take such acknowledgment or proof, and be filed for record with the recorder of the county in which the land, or a part thereof, is situated. ^ Powers of attor- ney are to be recorded as other conveyances.^ Conveyances are notice from the date of filing.^ 1 Eevised Statutes (18S7), title xi, §§1, 3. 2 Rev. Stats., title lv, §37. 3 Eev. Stats., title lv, §41. §285. AcknovFledgment. The acknowledgment or proof of an instrument of writ- ing for record may be made within this territory before a clerk of a court having a seal, a notary public, county re- corder or justice of the peace. Without this territory, but within the United States or their territories, before a clerk of some court of record having a seal, commissioner of deeds duly appointed under the laws of this territory, or a notary public. In foreign countries, before any consul, commercial agent, deputy consul or consular agent of the United States, resident in the county where the proof or acknowledgment is made.^ The identity of the person making such acknowledgment must be known or proved to the officer, which shall be noted in the certificate.^ The certificate of acknowledgment must be substantially as follows: Territory of \ County of J Before me (name and character of the officer), on this day personally appeared , known to me (or proved to me on the oath of ), to be the person whose name Is subscribed to the foregoing 462 Ch. 11.] ARIZONA. [§286. instrument, and acknowledged to me that he executed the same for the purpose and consideration therein expressed. Given under my hand and seal of otBce, this day of A. D [SEAL.]* 1 Kev. Stats. (1S87), title lv, §§8-10. 2 Kev. Stats., title lv, §12. s Kev. Stats., title lv, §15. §286. Married "Women. Married women of tlie age of seventeen years or up- wards may convey and transfer lands held by them in their own right, without being joined by the husband, as fully and perfectly as they might do if unmarried.^ The homestead shall not be sold and conveyed by the owner, if a married man, without the consent of the wife. The certificate of acknowledgment to any instrument purporting to convey the homestead must be substantially in the following form: The Tereitoby of . . County of Before me (name and character of oflScer), on this day per- sonally appeared , wife of , known to me (or proved to me on oath of. .), to be the person whose name is subscribed to the foregoing instrument, and having been examined by me privily and apart from her husband, and having the same fully explained to her, she, the said , acknowledged such instrument to be her act and deed, and declared that she had willingly signed the same for the pur- poses and consideration therein expressed, and that she did not wish to retract it. Given under my hand and seal of office, this day of a. D [SEAL.]2 The certificate of the officer, where the execution is proved by a witness, must be substantially as follows : The Tebeitoey of "I County of J Before me (insert the name and character of the officer) , on this day personally appeared , known to me (or proved to me on the oath of ), to be the person whose name is subscribed as a witness to the foregoing instrument of writing, and after "being duly sworn by me stated on oath that he saw , the grantor or person who executed the foregoing instrument, subscribe the same (or that the gran I or or person who executed such instrument of writing acknowl- edged in his presence that he had executed the same for the purposes and consideration therein expressed), and that he had signed the same as a witness at the request of the grantor (or person who executed the same.) 453 ,} Ch. 11.] STATUTORY PROVISIONS. [§§287, 288. Given under my hand and seal of office, this day of , a. D [SEAL.]' ' Kev. Stats. (1887), title lv, §13. Miller v. Fish, 1 Ariz. 232, 243. 2 Kev. Stats., title lv, §15. " Rev. Stats., title lv, §18. §287. Mortgages, Real and Chattel. Any mortgage may be discharged by an entry on the margin of the record thereof or by a certificate of release duly acknowledged.! Continued change of possession of personal property necessary as against creditors, subse- quent purchasers, and mortgagees or lien holders in good faith, and filing in office of county recorder, where the property is then situated, and if the mortgagor, or person making the same be a resident of this territory, then it shall also be recorded in the county of which he shall at the time be a resident.^ Deeds of trust, mortgages and judgments, or other in- struments of writing intended to create a lien, shall be re- corded in a separate book from deeds or other conveyances.* 1 Rev. Stats. (1887), title XLil, §§3, 4. 2 Rev. Stats., title xlii, §§8, 14. 3 Rev. Stats., title lv, §6. §288. Witnesses. The execution of an instrument may be established for record by proof of the handwriting of the grantor and of at least one of the subscribing witnesses, when the grantor and all the subscribing witnesses are dead, or non-residents of this territory, or their residence is unknown to the party desiring the proof, and cannot be ascertained, or when the subscribing witnesses become incompetent, through insan- ity, conviction of felony or otherwise ; or when all the sub- scribing witnesses are dead, non-residents, residence un- known or are incompetent, and the grantor in such instrument refuses to acknowledge the execution of the same for record. ^ 1 Rev. Stats. (1887), title lv, §19. 454 ARKANSAS. §289. Effect of Record. No deed, bond or instrument of writing for the convey- ance of any real estate, or by wliich the title thereto may be affected in law or equity, hereafter made or executed, shall be good or valid against a subsequent purchaser of such real estate for a valuable consideration, without actual notice thereof, or against any creditor of the person execut- ing such deed, bond or instrument, obtaining a judgment or decree which by law may be a lien upon such real estate, unless such deed, bond or instrument, duly executed and acknowledged or proved as is or may be required by law, shall be filed for record in the office of the clerk and ex- officio recorder of the county where such real estate may be situated. 1 Instruments are notice from the time of being filed for record. 2 The statute places powers of attorney and revo- cations thereof within the registry act.' 1 Digest of Ark. (1884), ch. 27, §671; Birnie v. Main, 29 Arli. 591; Brown v. Hanauer, 48 Ark. 277; Case v. Hargadine, 43 Ark. 144; Gaines V. Saunders, 7 S. W. Repr. 301; Byers v. Engles, 16 Ark. 543; Hamilton V. Fowlkes, 16 Ark. 340. Actual notice is effectual. Simpson v. Montgomery, 2.t Ark. 365; S. C. 99 Am. Dec. 228; Fargason v. Edrington, 49 Ark. 207; s. c. 4 S. W. Eepr. 763; Stidtiain v. Mattiews, 20 Ark. 650; Holman v. Patterson's Heirs, 29 Ark. 357. ^ 2 Digest, §670; §§5560-5504; Oats v. Walls, 28 Ark. 244. -'■ Dig., §§661-663; Carnall v. Duval, 22 Ark. 136. As to creditors: Johnson v. Graves, 27 Ark. 657; Turner v. Watkins,31 Ark. 429; Bridge- ford V. Adams, 45 Ark. 136. §290. Mortgages. Every mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder's office, and not before; which filing shall be notice to all persons of its existence. ^ A mortgage not filed, or recorded on a bad acknowledgment, is not good against a subsequent purchaser having actual notice of it.^ The statute provides that satisfaction of a mortgage may be entered on the margin of the record.* 455 Ch. 11. J STATUTORY PROVISIONS. [§291. The mortgaged property must be appraised before sale, and must bring two-thirds of its appraised value. ^ 1 Dig., §4742; Dodd v. Parker, 40 Ark. 526; Jacoway v. Gault, 20 Ark. 190; s. C. 73 Am. Dec. 494. 2 Connor v. Abbott, 35 Ark. 365; Fry v. Martin, 33 Ark. 203. 3 Dig., §4745. < Dig., §§4759-4762. §291. Acknowledg-ment may be made within the state before the Supreme or Circuit Court or any judge or clerk thereof, or a justice of the peace or notary public, or the clerk of any court of record. Within the United States and without the state, before any court of the United States or any other state having a seal, or before the clerk thereof, or notary public, or mayor or chief officer of any city or town having a seal, or a com- missioner of deeds for Arkansas. In foreign countries, before any court of any state, king- dom or empire having a seal, or the mayor or chief officer of any city or town having an official seal, or before any of- ficer of any foreign country who by its laws is authorized to take probate of the conveyance of real estate of his own country, having an official seal.^ Where the grantor or witness making the proof is not known to the officer, he must take proof of identity. The officer must use his seal. The certificate of acknowledgment is not conclusive.^ The form for single acknowledgment is as follows: The State of County or Be it remembered that on this day came before me the undersigned (name and title of officer), within and for the county aforesaid, duly commissioned and acting, John Smith, to me well known as the grantor in the foregoing deed, and stated that he had executed the same for the con- sideration and purposes therein mentioned and set forth. 456 Ch. 11. J AEKANSAS. [§292. Witness my hand and seal as such (title of official), this day of 18.. (Signature and title of officer.)^ 1 Dig., §051; Smith v. Van Gilder, 26 Ark. 527. = Dig., §655; Little v. Dodge, 32 Ark. 453; Biscoe v. Bird, 15 Ark. 655; Clapp v. Halliday, 48 Ark. -259. 2 Dig., §656. The omission of either "consideration" or "purposes" will vitiate the acknowledgment. Jacoway v. Gault, 20 Ark. 190; Little V. Dodge, 32 Ark. 453 ; Magaess v. Arnold, 31 Ark. 103 ; Clapp v. Halli- day, 48 Ark. 259. §292. Married Women. Privy examination of the wife is required, but not an ex- planation of the instrument. The husband must join in a conveyance of the wife's lands, if the lands were acquired before Oct. 13, 1874. If acquired since that date, she can convey either as a single person, or in the statutory form of conveyances by married women. ^ ^ The form of joint certificate to a deed by husband and wife conveying lands of the husband, after stating the acknowledgment of the husband, as in the form already given, proceeds thus : And on the same day also voluntarily appeared before me Mary Smith, wife of the said John Smith, to me well known as the person signing the deed, and in the absence of her said husband declared that she had of her own free will signed and sealed the relinquishment of dower in the foregoing deed, for the purposes therein contained and set forth, without compulsion or undue influence of her said husband. Wit- ness my hand and seal (etc. ). If the conveyance is of lands of the wife, the certificate reads, "executed the same for the purposes," etc., instead of "signed and sealed the relinquishment of dower in the - foregoing deed for the purposes," etc.^ The statute pro- vides for scheduling the separate property of married women, and a failure to record such schedule leaves the 457 Ch. 11. J STATUTORY PUOVISIOXS. [§293. burden of proof on the wife to show the character in which such property is held.^ ' Const, art. xiv, §7; Criscoe v. Hambrick, 47 Ark. 23.5; s. c. 1 S. W. Eepr. 150; McGehee v. McKenzie. 43 Ark. 156; Stone v. Stone, 43 Ark. 160; Shryock v. Cannpn, 39 Ark. 434. ° Dig., §659; StUvvell v. Adams, 29 Ark. 346; Tubbs v. Gatevvood, 26 Ark. 128; Donahue v. Mills, 41 Ark. 421; Mickell v. Gardner, Id. 491; Cliaffee v. Oliver, 39 Ark. 531; Johnson v. Biohardsoa, 44 Ark. 365; Johnson v. Parker, 11 S. VV. Repr. 681. 3 Mansfield's Dig., §§4634-4636. §293. Chattel Mortgages and deeds of trust of personal property may be filed and deposited in the recorder's of- fice of the county in which the mortgagor lives, to be there liept for inspection. They are liens from the time of filing and are notice without further record, except in- dexing, for the space of one year.^ They are void as against third persons after that time, unless within thirty days next preceding the expiration of one year from such filing, and each year thereafter, the mortgagee, his agent or attorney, shall make an affidavit exhibiting the interest of the mortgagee therein at the time last aforesaid, or the amount of money yet due and unpaid thereon, which afiida- vit must be attached to and filed with the instrument or copy on file to which it relates. This affidavit is also to be noted in the index book. In the absence of stipulations to the contrary, the mortgagee of personal property has the legal title thereto and the right of possession. ^ The stat- ute, however, does not forbid the mortgagor to remain in possession, und this hie usually does until breach of condi- ■ tion; but in such case, if the mortgage gives him also a power of disposition, it is void. Chattel mortgages may also be recorded as mortgages of real estate and with like effect. 1 Mansfield's Dig., §§4742-4754. It is at the option of the mortgagee to have the mortgage recorded. If not intended to be recorded, it must bear the indorsement: "This instrument to be filed but not re- corded." 2 Dig., §§4287, 4288; Mansfield's Dig. (1884), §§4750-4758; Jones on Chat. Mort.,§192; Applewhite v. Harrell, 49 Ark. 279; s. c. 5S.W. Kepr. 458 Ch. II.] AIIKANSAS. [§293«. 292; Watson V. Thompson, 49 Ark. 83; S. c. 4 S. W. Eepr. Qi; H-ill v, Pillow, 31 Ark. 32; Eingo v. Wing, 49 Ark. 457; 5 S. W. Kepr. 787; Simpson V. Shackelford, 49 Ark. 63; s. c. 4 S. W. Kepr. IBo; Case v. Hargadine. 43 Ark. 144; Lemay v. Williams, 32 Ark. IBG. Mortgages of crops, Johnson v. Grizzard, 61 Ark. 410; s. c. 11 .s. W. Repr. 585; Dodds v. Neel, 41 Ark. 70; Krone v. f helps, 43 Ark. 350. §293a. Proof by Witnesses. Proof for record may be made by one of the subscribing witnesses to any conveyance. The certificate in such case is as follows : State of County of . ""^ ' Be it remembered that on this day came before me (title of officer), in and for said county and state, one of the subscribing witnesses to the foregoing (deed) to me personally well known, who being by me first duly sworn, stated that he saw , the grantor in said (deed) sub- scribe the same on the day of its date (or that he acknowl- edged in his presence on the. . . .day of , 18. . , that he had executed said (deed) for the consideration and pur- poses therein expressed ) and that he and , the other subscribing witness, subscribed said (deed) as attesting wit- nesses at the request of said grantor. In testimony whereof, I have hereunto set my hand and seal of office, on this. . . .day of 18. . . (Signature and title). ^ ' Mansfield's Dig., §§65.5-657; Form No. 145. The certificate of proof of the handwriting of the grantor and a subscribing witness, such proof to be made by two witnesses, may be as follows : State of ■ • ' 1 ss County of j Be it remembered that on this day of 18.., came before . me, a (title of officer), in and for said county and state, and , and upon their oaths stated that the signatures of , the grantor in the foregoing (deed) and of a witness thereto, are genuine, and are in the handwriting of said and respect- ively. In testimony whereof, I have hereunto set my hand and seal of office on this the day of , 18 . . . (Signature and title.) 459 CALIFORNIA. §294. Effect of Record. Every conveyance of real property, other than a lease for a term not exceeding one year, is void as against any sub- sequent purchaser or mortgagee of the same property or any part thereof in good faith and for a valuable consider- ation, whose conveyance is first duly recorded.^ The in- strument is notice from the time it is filed for record. "Conveyance" is any instrument affecting real property, except wills.'' A power of attorney, when recorded, can be revoked only by an instrument recorded in the same office.* Grants absolute in terms are to be recorded in one set of books, and mortgages in another.* Hittell's Cal. Codes, §6214; Civ. Code, §1214; Fish v. Bensen, 71 Gal. 428; s. c. 12 Pac. Kepr. 454; Allison v. Thomas, 72 Cal. 562; s. C. 1 Am.St. Eep. 89; 14 Pac. Eepr. 309; DeSepnlveda v. Bangh, 74 Cal. 468; S. c. 5 Am. St. Rep. 455; 16 Pac. Eepr. 22S; Cook v. McChristian, 4 Cal. 23; Hager v. Spect, 52 Cal. 579; Odd Fellows Bank v. Banton, 46 Cal. 603; Long v. Dollarhide, 24 Cal. 218; McCabe v. Grey, 20 Cal. 609. 2 Hittell's Cal. Codes, §§6212, 6215; Civ. Code, §1213. Actual notice is effectual. Hilton v. Young, 73 Cal. 6S4; s. C. 14 Pac. Eepr. 684; Montgomery v. Kopperl, 75 Cal. 128; s. C. 19 Pac. Eepr. 178; Duff v. Buff, 71 Cal. 513; s. C. 12 Pac. Eepr. 570; Jones v. Marks, 47 Cal. 242; Moss V. Atkinson, 44 Cal. 3. A quit-claim purchaser is protected. Allison v. Thomas, supra; Graff V. Middleton, 43 Cal. 341 ; Frey v. Clifford, 44 Cal. 335. 8 Civ. Code, §1216; Dow v. Gould, 31 Cal. 646. Deed to wife notice of separate property. McComb v. Spangler, 71 Cal. 419; s. 0. 12 Pac. Eepr. 347 ; Eamsdell v. Fuller, 28 Cal. 38. The statute provides for a registry of the separate personal property of the wife. Hittell's Codes, §5165. As to community property, Moore v. Jones, 63 Cal. 12; Alver- 8on V. Jones, 10 Cal. 9; s. c. 70 Am. Dec. 689. * Hittell's Cal. Codes, §6171; Civ. Code, §1171. Possession is notice. Smith V. Yule, 31 Cal. 180; s. c. 89 Am. Dec. 167; Peasleyv.McFadden, 68 Cal. 611 ; s. C. 10 Pac. Eepr. 179 ; Fair v. Stevenot, 29 Cal. 486; even by a grantor after record of a deed from him. Pell v. McElroy, 36 Cal. 268; Daubenspeck v. Piatt, 22 Cal. 230. An attaching creditor is not protected against an unrecorded deed, if such deed is recorded before sale under the judgment. Justices' judg- ments must be registered. C. C. P. 671-674. Antecedent debt is valu- able consideration. Hunter v. Watson, 12 Cal. 373; s. C. 73 Am. Dec. 543; Gassen v. Heiidrick, 74 Cal. 444; s. c. 16 Pac. Eepr. 242. §295. Mortgages, Real and Chattel. Assignments of mortgages may be recorded, and are con- structive notice, but not to the mortgagor so as to inval- 460 Ch. 11. ] CALIFORNIA. [§295. idate payments made by him to a persoa holding the note, bond or other instrument secured by the mortgage.^ De- feasances must be recorded in order to defeat or affect an absolute grant as against any persoa other than the grantee, his heirs or devisees, or persons having actual notice.^ Mortgages may be discharged of record by an entry in the margin of the record, or by a certificate duly acknowledged or proved and recorded.^ Mortgages of persooal property are to be acknowledged, proved and recorded as those of real property, but in books kept for personal mortgages ex- clusively. They are to be recorded in the county in which the mortgagor resides, and also in the county in which the property is situated, or to which it may be removed, and are void against creditors and subsequent purchasers and in- cumbrancers in good faith and for value, unless accom- panied by the affidavit of all the parties thereto that the mortgage is made in good faith, and without any design to hinder, delay or defraud creditors.* Only certain spec- ified kinds of personal property are subject to mortgage.^ Possession is required to accompany transfers of personal property other than mortgages.^ 1 Hittell's Cal. Codes, §§7934, 7935; Civ. Code, §§2934, 2935. The wile need not join unless she be named as a mortgagee. 2 Civ. Code, §2950; Enos v. Cook, 65 Cal. 175; s. C. 3 Pac. Repr. 632; Tully v. Harlow, 35 Cal. 302; s. C. 95 Am. Dec. 102. See as to mort- gages, Vogan V. Caminette, 65 Cal. 438; Cheever v. Fair, 5 Cal. 337. 3 Hittell's Codes, §7941; Civ. Code, §§2939-2941; Beal v. Stevens, 72 Cal. 451 ; s. C. 14 Pac. Kepr. 186; ante, §34. * Hittell's Cal. Codes, §§7963, 7959; Civ. Code, §§2963,2959; Boyle Ice Co. V. Gould, 73 Cal. 153; s. C. 14 Pao. Repr. 609. 5 Hittell's Codes, §7955; Civ. Code, §2955; Tregear v. Etiwanda Co., 76 Cal. 537; Boyle Ice Co. v. Gould, supra. As to mortgages of crops, see Quirague v. Dennis, 24 Cal. 154; Goodyear v. Willis, 42 Cal. 11; Wilson V. Prouty, 70 Cal. 196; s.C. llPao. Repr. 60S; Martin v. Thomp- son, 63 Cal. 4. ' Civ. Code, §344u. Under a former statute actual possession was re- quired as to mortgages. Woods v. Bugbey, 29 Cal. 66; Regliv. McClure, 47 Cal. 612; O'Brian v. Cliamberlain, 50 Cal. 285; Ede v. Johnson, 15 Cal. 53; Meheriu v. Oaics. 67 Cal. 57; s. 0. 7 Pac. Repr. 47; Wilson v. Prouty, 70 Cal. 196; s. c. 11 Pac. Repr. 608; Bersan v. Neman, 63 Cal. 55C. 461 Ch. 11. j STATUTORY PROVISIONS. [§296. §296. Acknowledgment may be taken within the state by a justice or clerk of the Supreme Court, or a judge of the superior* court, or, when acting within his county or dis- trict, by a clerk of a court of record, a court commissioner, county recorder, notary public or justice of the peace. Without the state and within the United States, by any court having a seal, or the clerk thereof, a notary public, commissioner of deeds, or by any other officer of the state or territory where taken, authorized by its laws to take acknowledgments. In foreign countries, by a notary public, commissioner of deeds for California, judge of a court of record, minis- ter, charge d'affaires, consul, vice-consul, or consular agent of the United States. ^ Where the acknowledgment is by an attorney in fact, the certificate must show that such attorney acknowledged that he subscribed the name of his principal, as principal, and his own name as at- torney in fact. 2 Where thp deed is by a corporation, the certificate should show that the person acknowledging it (the president or secretary) acknowledge'! "that such corporation executed the same." The form of single ac- know.adgment is as follows: The State of > County of 3 On this day of , in the year , be- fore me (name and quality of oflBcer), personally appeared , known to me (or proved to me on the oath of ), to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. [seal. J (Signature and title.) 1 Oiv. Code, §§1181-1183; De Arnaz v. Bscandon, 59 Cal. 486; Bryan V. Romirez, 8 Cal. 461; s. c. 68 Am. Dec. 340; Miner's Co. v. Zellerbach, 37 Cal. 543; Touchard v. Crow, 20 Cal. 150; s. C. 81 Am. Dec. IDS; Po- garty V. Flnlay, 10 Cal. 239; s. c. 70 Am.JDec. 714; Foorman v. Wallace, 75 Cal. 552; s. C. 17 Pac. Repr. 680. 2 Civ. Code, §1192; Hittell's Codes, 462 Ch. 11. J CALIFORNIA. [§§297, 298. §297. Acknowledgment of Married Women. The deed of a married woman must be acknowledged by her ; it cannot be proved for record by witness. As the wife has no right of dower, she need not join in a convey- of her husband's separate estate, nor he in a deed of her separate property. They must join in a conveyance of community property, and separate examination of the wife is required. The form of certificate is as follows : State of County of On this day of , in the year , be- fore me (name and quality of officer), personally appeared , known to me (or proven to me on the oath of ), to be the person whose name is subscribed to the within instrument, described as a married woman; and upon an examination without the hearing of her husband, I made her acquainted with the contents of the instrument, and thereupon she acknowledged to me that she executed the same, and that she does not wish to retract such ex- ecution. [seal. (Signature and title. )^ 1 Hittell's Codes, §6191; C. C, §1191; Hutchinson v. Ainsworth, 63 Cal. 286; Mulr v. Galloway, 61 Cal. 498; Fogarty v. Finlay, 10 Cal. 239; S. C. 70 Am. Dec. 714; Reis v. Lawrence, 63 Cal. 120; s. C. 40 Am. Rep. 83; Hand V. Hand, 68 Cal. 135. Wherever the name of the owner of any real estate is from any cause changed, his or her conveyance thereof must set forth the name in which he or she derived title to such real estate. Wife may convey by power of attorney. §6094; Dow v. Gould, 31 Cal. 646. Where the cer- tificate was in due form, proof that the acknowledgment was taken by telephone over a distance of three miles, no fraud, duress or mistake be- ing alleged, held not to invalidate. Banning v. Banning, 22 Pac. Repr. 210. §298. Proof by Subscribing Witnesses. Proof for record may be made by a subscribing witness. The certificate should show that the witness was sworn and deposed that the person whose name is subscribed to the in- strument as a party is the person described in it, and that 463 Ch. 11, J STATUTOET PROVISIONS. [§298. such person executed it, and that the witness subscribed his name thereto as a witness.^ Proof for record may also be made by other witnesses as to the hand-writing, where all' the parties and witnesses are dead, non-residents of the state, or their residence unknown. 1 Civ. Code, §§1195-1198; Whitney v. Arnold, 10 Cal. 531. Witnesses are not necessary to the validity of conveyances, except wills. 464 COLORADO. §299. Effect of Record. All deeds, conveyances, agreements in writing of, or af- fecting title to real estate or any interest therein, and pow- ers of attorney for the conveyance of any real estate or any interest therein, may be recorded in the office of the re- corder of the county wherein such real estate is situate, and from and after the filing thereof for record in such office, and not before, such deeds, bonds and agreements in writing shall take effect as to subsequent bona fide purchasers and incumbrancers by mortgage, judgment or otherwise, not having notice thereof.^ A recorded deed is admissible in evidence without proof of its execution where it has been duly acknowledged.^ 1 Gen. Stats. (1883), §215 ; Gillett v. Gaffney, 3 Colo. 351; City Bk. ■y. Goodrich, 3 Colo. 139. Wills are excepted from this chapter, §229. Powers of attorney are to be acknowledged or proved as deeds. §214. • Gen. Stats., §§216, 217. See as to effect of record, McMurtrie v. Kiddell, 9 Colo. 497; s. c. 13 Pac. Repr. 181; Tabor v. Sullivan, 20 Pac. Kepr. 437; Tritch v. Norton, 10 Colo. 337; Goodrich v. Michael, 3 Colo. 77; and as to homestead release, Goodwin v. Colo. Mining Co., 110 U. S. 1. §300. Mortgages, Real and Chattel. Mortgages of real property are included with deeds ; there being no separate provisions as. to their record. •Chattel mortgages are not valid as against the rights and interests of any third person, unless possession of the property be taken, or they are acknowledged and re- corded, and provide for the property to remain with the mortgagor.^ They are to be recorded in the county where the property or the greater portion thereof is situated, and the record continues effectual for not exceeding two years, if the principal of the mortgage debt do not exceed $2,500.00; five years if it be more than $2,500.00, and not more than $20,000.00; and ten years if more than $20,- 000.00. If the mortg'age debt secured is greater than $2,500.00, a sworn statement of the mortgagee, or one of the mortgagees, must be recorded annually, showing that (30— Keg. of Title.) 465 Ch. 11.] ST ATUTOKT PROVISIONS. [§300. the mortgage was given in good faith to secure the sum mentioned; and that said sum is still unpaid; or if a por- tion thereof shall have been paid, then how much, if any, remains unpaid.^ The lien of a duly filed chattel mort- gage securing a sum not over $300.00, payable in one in- stallment, and due not more than 18 months after its execu- tion, may be extended for a period not over six months from the maturity of the debt by the mortgagee or his assignee filing at the maturity of the debt, a sworn state- ment of the amount of the debt still unpaid; and that it is still due the mortgagee' or his assignee, and that said mort- gagee or his assignee Qonsents to extend said mortgage for some period not exceeding six months.^ Bills of sale and deeds of trust of personal property are to be recorded a;s mortgages. Actual notice supplies the place of registry.* Chattel mortgages are to be acknowledged before any offi- cer authorized to take acknowledgments of real estate.* Certified copies of a recorded chattel mortgage are admis- sible in evidence without proof of execution, upon account- ing for the non-production of the original.^ J aen. Stats., ch. 14, §163; Machette v. Wanless, 1 Colo. 225; Crane V. Chandler, 5 Colo. 21. 2 Gen. Stats., §16.5; Session Laws, 1SS9, p. 54; Wilson v. Voight, & Colo. 614; s. C. 13 I'ac. Repr. 726; Homer v. Stout, 5 Colo. 265; Brasher V. Christoper, 10 Colo. 28; s. C. 15 Pac. Repr. 403. 3 Gen. Stats., §165, as amended by Laws 1889, p. 54. ^ Gen. Stats., §§169, 172; McKee v. Mining Co., 8 Colo. 392; s. C. 8 Pac. Repr. 561 ; Gerow v. Costello, 11 Colo. 560. » Gen. Stats., §164. Under a former provision, requiring chattel mortgages to be acknowledged before a justice or notary public in the precinct where the mortgagor resided, it was held that a foreign cor- poration, doing business in Colorado, could not execute a valid chattel mortgage there. Cools v. Hager, 3 Colo. 3S6. 8 Gen. Stats., §166. Where the suui secured does not exceed $300.00, and the time does not exceed six months, the mortgage may be filed and indexed, without being recorded at length; and a duly certified copy of it may be used in foreclosure the same as the original. Session Laws 1889, p. 53, amending §166 of the Gen. Stats. 466 Ch. 11. J COLORADO. [§301. §301, Acknowledgment. The acknowledgmeDt of a deed is not necessary to ad- mit it to record, nor to the effect of the record as con- structive notice ; but is necessary to admit the instrument in evidence as a recorded instrument without proof of its execution. 1 Acknowledgment may be made within the state before any justice of the Supreme, District or County Court, or clerk, or deputy clerk of either, or notary pub- lic, or clerk of the United States Circuit or District Court, or justice of the peace within his county. Without the state and within the United States, before a secretary of state, or clerk of any court of record having a seal, or before any other officer authorized by the laws of such state or territory, in which latter case a certifi- cate of magistracy, etc., is required. In foreign countries, before any court of record having a seal, mayor or other chief officer of any city or town having a seal, or before any consul of the United States in such foreign country, or commissioner of deeds for Colo- rado. ^ The cerLificate of acknowledgment may be as follows : State of County of I (name, title and locality of officer), do hereby cer- tify that (naming the person), who is personally known to me (or proven to me by the oath of a creditable wit- ness) to be the same person whose name is subscribed to the foregoing (or within) instrument of writing as a party thereto, appeared before me this day in person and acknowledged that (he or she) executed the same for the uses and purposes therein set forth. Witness .my hand and the seal of said court (or if by notary, say notarial seal), this day of 18. . . [seal.] ( Signature and title. ) The statutory certificate of the acknowledgment of a chattel mortgage is thus: "This mortgage was acknowl- 467 Ch. 11.] STATUTORY PROVISIONS. [§301. edged before me by (mortgagor) this tlie day of , A. D. 18..."^ A married woman may convey as if sole; no separate examination or different certificate is requisite to her deed.* The statute makes no provision for proof for record by witnesses. 1 Rev. Stats., §217; Holladay v. Dailey, 1 Colo. 4G0. Acknowledg- ment estops the grantor from denying his signature. Chivington v. Col- orado Co.. 9 Colo. 597; s. 0. 14 Pac. Eepr. 212. 2 Eev. Stats., §§210, 211. The certificate must show the identity of the grantor. §212; Quiraby v. Boyd, 8 Colo. 194; s. C. 6 Pac. Repr.462; Cook V. Hager, 3 Colo. 386; Nippel v. Hammond, 4 Colo. 211. 3 Rev. Stats., §164. * Rev. Stats., §2278. 468 CONNECTICUT. §302. Effect of the Record. No conveyance shall be effectual to hold lands against any other person but the grantor and his heirs, unless re- corded on the records of the town in which the lands lie, and the record is to bear date from the time of filing the instru- ment. ^ Where a conveyance is executed by a power of at- torney, it shall be recorded with the deed. An unacknowl- edged deed or any instrument intended as a conveyance of lands, but which by reason of a formal defect shall operate only as a conveyance of an equitable interest, may be recorded, and the record thereof is constructive notice of such equitable interest.^ Leases of land for a longer period than one year must be recorded. Where a recorded deed has been lost, a certified copy may be i-ecorded.* Chattel mortgages are to be executed, acknowledged and recorded in th^ same manner as in a mortgage of real es- tate.* I Gen. Stats, of Conn. (1888), §2961; Orvis v. Newell, 17 Conn. 97; Bissell V. Nooney, 33 Conn. 411; Barnum v. Landon, 25 Id. 137; Hamil- ton v. Nutt, 34 Id. 501; Salisbury v. Cutting, 50 Conn. 113; Lewis v. Ferrell, 51 Conn. 216. ^ Gen. Stats., §2964. Actual notice is effectual. Campbell v. Koach, i'l Conn. 667; Lewis v. Hinman, 56 Conn. 55; s. C. 13 Atl. Repr. 143; Blatchley v. Osborne, 33 Conn. 226. ^ Gen. Stats., §§2965, 2963. Possession not of Itself notice. Harrall V. Laverty, 50 Conn. 46; Bush v. Gold^,17 Id. 594. As to creditors and purchasers, see Goddard v. Prentice, 17 Conn. 546; Brush v. Scribner, 11 Conn. 388; Osborn v. Carr, 12 Conn. 195. < Gen. Stats., §3016; Walker v. Vaughan, 33 Conn. 577. See as to mortgages of realty, Boswell v. Goodwin, 31 Conn. 74; s. C. 81 Am. Dec. 169 ; Bush v. Golden, 17 Id. 594 ; Lewis v. Ferrell, supra. §303. Acknowledgment within the state may be made before a justice of the peace, notary public, judge or clerk of a court of record, commissioner of the school fund, com- missioner of the superior court, or town clerk. Without the state and within the United States, before a commissioner appointed by the governor of this state and residing therein, or any officer authorized to take the ac- knowledgment of deeds in such state or territory. 469 Ch. 11.] STATUTOEY PROVISIONS. [§303. In foreisn countries, before a United States consul, no- tary public, or justice of the peace. '^ The certificate of acknowledgment may be as follows: State of County of , Sept. 13, A. D. 18. . . Then and there before me (name and title of officer), within and for the county and state aforesaid, duly commissioned and acting as such, personally appeared and , his wife, signers and sealers of the foregoing instrument, and sev- erally acknowledged the same to be their free act and deed before me (or personally appeared agent of the Company, signer and sealer of the fore- going instrument, and acknowledged the same to be its free act and deed before me). Witness my hand and seal of office, on this day of , 18... [seal. ] (Official signature and title.) No separate acknowledgment for a married woman is requisite, but the husband must join in the wife's deed, ex- cept where he is absent, and has been absent for as much as three years. ^ Deeds require two attesting witnesses, but proof for record by subscribing witnesses is not provided for. Where the grantor refuses to acknowledge, pro- cess may be issued to compel acknowledgment.^ 1 Gen. Stats., §§2954, 2956. The officer must be acting within the ter- ritorial limits of his jurisdiction. A certificate ol the county clerlf should be annexed to an aclinowledgment made before a justice of the peace. Interest does not disqualify the officer, or a witness. §2955. 2 Gen. Stats., §§4S4, 2960. Appeal of Spitz, 56 Conn. 184; s. 'C. 14 Atl. Kepr. 774; §2278. 3 Gen. Stats., §2958. See as to certificate of acknowledgment. Hay- den v. Westcott, 11 Conn. 129; Sandford v. Bulkley, 30 Id. 344; Stanton V. Button, 2 Id. 527. Deed not good without witnesses. Winsted Bank V. Spencer, 26 Id. 195; Carter v. Champion, 8 Id. 549; s. c. 21 Am. Dec ■ 696. 470 DAKOTA; NORTH. §304. Effect of Record. Every conveyance of real property, other than a lease for a term not exceeding one year, is void as against any subsequent purchaser or incumbrancer, including an assignee of a mortgage, lease or other conditional estate, of the same property, or any part thereof, in good faith and for a val- uable consideration, whose conveyance is first duly recorded. "^ The record must be made in the county where the land lies, and the instrument is notice from the time of its deposit for record.^ Conveyances of lands in an unorganized county are to be recorded in the county in which the court is held for the judicial subdivision embracing the unorganized county.* Kev. Code of Dak. (1S77), §671; Gale v. Shillock, 29 N. W. Repr. 661. "Conveyance" does not include wills, executory contracts and powers of attorney. §672. 2 Rev. Code, §651. Actual notice is effectual. Grass v. Evans, 1 Dak. 387. As to record of lis pendens, see Biiteman v. Backus, 34 N. W. Bepr. 6; mechanic's lien, McCorinack v. Phillips, 34 N. W. Bepr. 39; recitals as charging notice, Wallace v. Evans, 1 Dak. 3S7. 3 Laws 1881, ch. 121, §1. §305. Mortgages, Real and Chattel. Mortgages must be recorded in books "kept separate from those for other conveyances. Where an instrument appears by any other writing to be intended as a mortgage, it must be recorded as such, and if the defeasance be not recorded at the same time and place, the grantee can derive no ben- efit from such record, but as to third persons having no ac- tual notice of the unrecorded defeasance, the recorded deed is conclusive as an absolute grant. ■•• A recorded mortgage may be discharged by an entry in the margin of the record thereof, signed by the mortgagee or his personal represent- ative or assignee, acknowledging its satisfaction in the presence of the register; or by certificate duly acknowl- edged or proved and recorded. Chattel mortgages must be filed in the county where the property, or any part thereof, is situated. Unless duly filed they are void as 471 Ch. 11. J STATUTORY PROVISIONS. [§306. against creditors of the mortgagor and subsequent pur- chasers and incumbrancers of the property in good faith and for value. They must be signed by the mortgagor in the presence of two persons who must sign the same as wit- nesses thereto, and no further proof or acknowledgment is required. The record ceases to be valid after three years from the filing, unless within thirty days next preceding the expiration of such term, a copy of the mortgage and a sworn statement of the amount of debt then existing be filed anew.* 1 Kev. Code, §§530, 652, 1626-1628, 1739-17410. 2 Rev. Code, §§1744-1751 ; First Nat. Bank v. Comfort, 4 Dak. ; s. C.28 J^'. W. Repr. 855. Personal property used in conducting the bus- iness of a common carrier is to be talsen as situated in the county in which the principal oflSce or place of busluess of the carrier is located. Successive re-fllings every three years are necessary to preserve the lien. §306. Acknowledgrment. Judgments and patents do not require acknowledgment.^ Acknowledgment may be made within the state before a justice or clerk of the Supreme Court, or notary public, or, when acting within his territorial jurisdiction, before a judge or clerk of a court of record, mayor of a city, regis- ter of deeds, justice' of the peace, a United States circuit or district court commissioner, a county clerk or a county auditor. Without the territory and within the United States, before a justice, judge or clerk of any court of record of the United States or any state or territory, or any other officer author- ized by its laws to take acknowledgments; or notary public, or commissioner of deeds for Dakota. In foreign countries, before a resident minister, commis- sioner or charge d' affaires, consul, vice-consul, or consular agent of the United States, judge of a court of record, or notary public of such country. The acknowledgment may be taken by a deputy where the officer is authorized by law to appoint a deputy. An official seal must be used if by the local law the officer is required to have such seal. The 472 Ch. 11. J DAKOTA; NORTH. [§307- certificate of a justice of the peace must be accompanied by a certificate of magistracy where the deed is to be recorded outside of his own county. * The certificate of single ac- knowledgment is as follows: State, or Territory, of County of Be it remembered that on this day of , A. D. 18. .., before me (name and title of officer), within and for said county, personally appeared , well known to me to be the jjerson who is described in and who executed the within instrument, and duly acknowledged to me that he executed the same freely. [seal.] (Signature and title.) Where the acknowledgment is on behalf of a corporation, the certificate recites, "personally appeared > known to me (or proved to me on the oath of ), to be the president (or the secretary) of the corporation that is described in and that executed the within instru- ment, and acknowledged to me that such corporation ex- ecuted the same." 1 Eev. Code, §647. 2 Eev. Code, §§656-658, 666; Laws 1885, oh. 1, §1. The statute authorizes an action to correct a defective certificate of acknowledg- ment. §667. §307. Acknowledgment of Married Women. A married woman may convey as if sole, and a privy ac- knowledgment is not requisite. In case of a convey- ance of the homestead, where both husband and wife are residents of the territory, they must concur in and sign the same joint instrument." A conveyance or other instru- ment executed by a married woman has the same effect as if she were unmarried, and may be acknowledged in the same way.^ 1 Eev. Code, §666 (3); Pol. Code, oh. 38, §3; Wambole v. Foote, 2 Dak. 1; s. c. 2 N. W. Eepr. 239. 473 Ch. 11.] STATUTORY PROVISIONS. [§308. §308. Proof by Witnesses. Proof for record may be made by a subscribing witness, who must depose to the identity of the grantor, and that such grantor executed the instrument, and that he sub- scribed it as a witness at the grantor's request.^ 1 Kev. Code, §662. Proof of handwriting of thegrantor and one sub- scribing -witness may be made when tlie grantor and the witnesses are all dead, or absent from the state, or their residence unknown. Where proof of handwriting is made the original deed is required to remain In the recorder's office as a public archive. §§649, 663, 664. Witnesses or seals are not necessary to the validity of a deed or other instrument affecting the title to real property, except wills. DAKOTA; SOUTH. At present writing (February, 1890,) the law is the same as that of North Dakota. 474 DELAWARE. §309. Effect and Time oi Record. A deed which is not recorded in the recorder's office for the county in which the land is situated within three months af- ter the day of its sealing and delivery will not avail against a subsequent fair creditor, mortgagee or purchaser for a valuable consideration, unless it be shown that the creditor when giving the credit, or the mortgagee or purchaser when advancing the consideration, had notice of such deed.i Purchase money mortgages and defeasances are to be re- corded within thirty days.^ ' Eev. Code of Del. (1S74), p. 504, §§14-17; Acts 1883, p. 509; Hall v. Livingston, 3 Del. Ch. 348; Potts v. Dowdall, 3 Hoiist. 309. = Kev. Code, p. 505, §§18, 21; Acts 1883, p. 509; Lank v. Hiles, 4 Houst. 87. §310. Mortgages, Real and Chattel. Mortgages and conveyances in the nature of mortgages have priority according to the date of record, and if two or more mortgages of the same premises are lodged in the re- corder's office at the same time, they stand in priority ac- cording to their respective dates. Where a conveyance ab- solute on its face is accompanied by a defeasance, a mem- orandum of the defeasance and its purport must be indorsed on the conveyance and recorded therewith, or the record is of no effect; and the defeasance itself must be duly re- corded within sixty days, or it will not avail against fair creditors, mortgagees and purchasers for value, and without notice from the person to whom the conveyance is made.^ Chattel mortgages duly acknowledged must be filed within ten days from the time of acknowledgment in the recorder's office of each county where any of the property is held;^ and when duly recorded are a valid lien for three years. The law contemplates that the mortgagor shall remain in possession, and forbids him removing the property out of the county. 1 Eev. Code, p. 504. Unless a purchase money mortgage be recorded within thirty days, it will not have precedence over judgment and other liens of prior date. Id; Acts 1883, p. 509. « Laws 1877, ch. 477, §§1, 3, 4. 475 Ch. 11.] STATUTORY PROVISIONS. [§311. §311. Acknowledgment may be made within the state before a notary public, or judge of any court, or chancellor, or any two justices of the peace of the same county. Without the state and within the United States, before any judge of a district or circuit court of the United States, or the chancellor or any judge of a court of record, or the mayor or chief officer of any city or borough, and certified under the hand of such chancellor, judge, mayor or ofiioer and the seal of his office, court, city or borough; or in open court, certified under the hand of the clerk and the seal of the court ; or before a notary public or a commissioner of deeds for Delaware. In foreign countries, before any consul-general, consul or commercial agent of the United States duly appointed in such foreign country at the places of their respective official residences.' The wife must join in the husband's deed in order to re- linquish dower, and a separate examination is required. The form of joint certificate is as follows: State of County of Be it remembered that on the day of , A. D. 18.., personally came before the subscriber (name and title) and his wife, parties to this in- denture, known to me personally (or proved on the oath of to be such), and severally acknowledged said in- denture to be their act and deed respectively; and that the said being at the same time privately examined by me apart from her husband, acknowledged that she ex- ecuted the said indenture willingly, without compulsion or threats or fear of her husband's displeasure. Given under my hand and official seal the day and year aforesaid. ,r,. . , ..., s (bignature and title.) 476 Ch. 11.] DELAWAEE. [§311- Where the deed is that of a corporation, it should be ex- ecuted by the president, and the certificate should state that he "acknowledged the said indenture to be his act and deed, and the act and deed of the said company; that the signature of the said president is his own proper handwrit- ing; that the seal affixed is the common or corporate seal of said company, and that his act of sealing, executing and delivering said indenture was duly authorized by resolution of the directors (or trustees or other managers of said com- pany)." There is no provision made by statute for proof of deeds by subscribing witnesses out of the state. Deeds require one witness and a seal ; but a scrawl will suffice for a seal. 1 Rev. Code, ch. 83, §§3-10; Doe v. Prettyman, 1 Hoiist. 339; Harris V. Burton, 4 Harr. 60. The record of deeds dated prior to Jan. 1, 1845, duly sigued and sealed by the grantors, will be admitted in evidence as valid, though the acknowledgments thereof be defective, except that such deeds shall not bar dower. Laws 1885, p. 916. 477 DISTRICT OF COLUMBIA. §312. Effect of Record. All deeds, deeds of trust, mortgages and other coQvey- .inces entitled to record take effect and are valid as to cred- itors and as to subsequent purchasers for value without no- tice from the time when the instrument, duly acknowledged or proved, is delivered to the recorder for record, and from that time only.^ The recorder must note the day and hour of filing. 1 Rev. Stats. Dist. of Columbia, 1874, §§446, 447, as amended by act of April 29, 1878; 20 U. S. Stats, at L. 39; Jaclcson v. Blackwood, 4 MaoArth. 188. The former statute allowed six months for the record of deeds. Title bonds and written contracts relating to land may be re- corded. §313. Mortgages, Real and Cliattel. Deeds of trust are mo stly in use, and their release is by deed of release from the trustee. A bill of sale, deed of trust or mortgage of property exempt by law from execu- tion is not binding, unless signed by the wife of the debtor, and must be recorded within twenty days after execution. ^ Notice of a mechanic's lien must be filed in the office of the clerk of the supreme court during the construction, or within three months after the completion, of the building, and prior liens are postponed to the mechanic's lien unless recorded before the betjinliing' of the work.^ 1 Rev. Stats. D. C, §798. See as to record of mortgages, Kurts v. Hollingshead, 3 Graach C. Ct. 6S; Jackwood v. Blackwood, 4 MacArth. 188; Wagner v. Watts, 2 Cranch C. Ct. 169. 2 Kev. Stats., §§692-710. §314. Acknowledgment within the United States may be made before any judge of a court of record and of law, chancellor of state, judge of supreme, circuit, district or territorial court of the United States, notary public, justice of the peace, or commissioner of deeds for the District of Columbia, within the state, district or territory in which the person making the deed may be living. In foreign countries, before a judge or chancellor of any court, master, or master extraordinary in chancery, notary 478 Ch. 11. j DISTRICT OF COLUMBIA. [§315. public, secretary of legation or consular officer of the United States. ^ *The certificate of single acknowledsment is as follows: State of County of I (name and full title of officer), in and for the county of aforesaid, in the state of do hereby certify that party to a certain deed bearing date on the day of A. D. 18.., and hereto annexed, personally appeared before me in the county aforesaid, the said being personally well known to me as (or proved by the oath of credible witness before me to be) the person who executed the said deed, aad acknowledged the same to be his act and deed. Given under my hand and seal, this day of . ...A. D. 18. .. ' Kev. Stats., §§441, 444; Cowan v. Beall, 1 MacArth. 270. Where the aoknowledgineut is taken out of the district by a local officer, his certificate should be accompanied by a ceniBoate of magistracy from the register, clerk or other public officer having cognizance of the fact, under his seal, to the effect that at the date of acknowledgment the of- ficer taking the same was iu fact the officer he purported to be. §443. This does not apply to the secretary of legation or consular officers of the U. S. §445. The only provisions authorizing acknowledgment of deeds under power of attorney are the Maryland Acts of 1715 and 1766, which do not, however, authorize the execution of the deed under the power, but require that the power of attorney shall be proved and the acknowledg- ment made in open court. Under existing laws it is so much more con- venient for the grantor himself to acknowledge the deed, that powers of attorney to make acknowledgment are not used. §315. Acknowledgment of Married Women. A separate examination of the wife is necessary in a con- veyance of the husband's property, in which she joins for the purpose of conveying her dower interest. The form of joint certificate, as relating to th« privy examination of the wife, is as follows: And the said E. F., wife of the said C. D., being by me examined privily and apart from her said husban;}, and 479 Ch. 11.] STATUTORY PROVISIONS. [§316. having the deed aforesaid fully explained to her, acknowl- edged the same to be her act and deed, and declared that she had willingly signed, sealed and delivered the same, and that she wished not to retract it.^ The right of a married woman to real and personal property belonging to her at the time of marriage, or acquired during marriage other- wise than by gift or conveyance' from the husband, is as ab- solute as if she were sole, not subject to disposal of her hus- band, nor liable for his debts, but may be by her con- veyed, devised and bequeathed the same as if she were un- married.^ ' Kev. stats., §§450-452; Hitz v. Jenks, 123 U. S. 298; Edmondson v. Lovell, 1 Cranch C. C. 103. 2 Kev. Stats. D. C, §§727-730. §316. Witnesses. There is no statutory requirement as to the number of witnesses. It is customary to have a deed attested as signed, sealed and delivered in the presence of a single witness, usually the'officer taking the acknowledgment; but a will devising real estate requires three witnesses. 480 FLOEIDA. §317. Effect of Record. No conveyance is good or effectual in law or in equity against creditors or subsequent purchasers for value without notice, unless recorded in the county in which the lands are situated. 1 Deeds are required to be sealed, but a scrawl with the word seal written in it will suffice. If executed by an attorney in fact, the power of attorney must be recorded at the time of recording the conveyance. Instru- ments are deemed to have been recorded from the date the same were presented and filed with the officer required to record them. 1 McClellan's Dig. (1881), ch. 32, §20; Bush's Dig. (1872), p. 151; Kearnes v. Hill, 21 Fla. 185; Tuten v. Gazen, 18Fla.751; Snow v. Lake, 20 Fla. 656; s. c. 51 Am. Rep. 625; Doyle v. Wade, 1 South. Kepr. 516; Christy V. Bui-ch, 2 South. Eepr. 258. Possession is notice. Mas- aey v. Hubbard, 18 Fla. 688. §318. Mortgages, Real and Chattel. The privilege of time for record is not extended to mort- gages. Chattel mortgages are not effectual or valid for any purpose whatever, unless recorded within 90 days in the county where the property is at the time, unless the prop- erty be delivered to and remain with the mortgagee within sixty days after the execution of the mortgage. They should be acknowledged or proved as in case of mort- gages of real property, or by proof being made upon oath by at least one credible person before the recording officer of the handwriting of the mortgagor.^ ' Acts of Nov. 15, 1S28; and June 1, 18S9. Sanders v. Papoon, 4 Fla. 465; Einstein's Sons v. Shouse, 24 Fla. ; s. C. 5 South. Repr. 380. Recording a deed is prima facie evidence of its delivery. Levy v. Cox, 22 Fla. 546, 580. §319. Acknowledgments may be made within the state before any judge, clerk of the Circuit Court, notary public or justice of the peace. Without the state and within the United States, before any judge or clerk of a court of record, notary public, jus- (31— Beg. of Title.) 481 Ch. 11.] STATUTORY PROVISIONS. [§320. tice of the peace, or other officer authorized by the laws of the state where taken to take acknowledgments, or before, a commissioner of deeds for Florida. In foreign countries, before a minister, charge d'affaires, commissioner or consul of the United States there, or com- missioner of deeds for Florida.^ Where the officer taking the acknowledgment does not use a seal, a certificate of magistracy and conformity is required. The officer must certify to the identity of the grantor; but it is competent for him to satisfy himself of the' identity of the parties at his own discretion. The form of certificate of single ac- knowledgment may be as follows : State of ^ County of 5 Be it remembered that on this day of in the year 18. . , personally appeared before me (name and title of officer) John Smith, to me well known to be the person who executed the foregoing (or annexed) deed by him sealed and subscribed, and the said John Smith acknowl- edged the execution thereof to be his free act and deed for the uses and purposes therein mentioned. In witness whereof, I have hereunto set my hand and affixed my official seal the day and year first above written. [seal.] (Signature and title. )^ 1 McClellan's Dig., pp. 216-219; Tuten v. Gazen, 18 Fla. 751. s Stewart v. Mathews, 19 Fla. 752; Hogaus v. Cavuth, 18 Fla. 587; Carr v. Thomas, 18 Fla. 736; McCoy v. Bailey, 21 Fla. 803; Mundee v. Freeman, 3 South. Repr. 153. §320. Acknowledgment of Married Women. A wife must join in the deed of the husband in order to relinquish her right of dower ; or the relinquishment may be by separate instrument duly acknowledged by the wife. The husband must also join in the conveyance of her sepa- rate property. The acknowledgment of the wife must be by privy examination. The form of certificate as to her may be as follows : 482 Ch. 11. J FLORIDA. [§321. I (name and designation of officer) do hereby certify unto all whom it may concern that A. B., to me well known as the wife of C. B., and as one of the persons described in and who executed the foregoing deed of conveyance (or re- linquishment of dower, as the case may be), did this day to me, on a private examination made separately and apart from her said husband, acknowledge and declare that she made herself a party to and executed the same for the purpose of renouncing and relinquishing all and every right of dower and all interest in and to the lands in said conveyance described, and that the same was done by her freely and voluntarily, and without any constraint, apprehension or fear of or from her said husband, the said C. B. In witness whereof, I have hereunto set my hand and affixed my official seal this day of 18. . [seal. J (Signature and title. )^ 1 McOlellan's Dig., pp. 478, 479; Cara v. Haisley, 2-2 Fla. 317; Jones v.Loftin, IG Fla. IS'J; Evans v. Suminerliii, 19 Fla. 855; Hartley v. Fer- rell, 9 Fla. 374. §321. Proof by Witnesses. Deeds executed within or without the state must be at- tested by two subscribing witnesses. Any deed may be proved for record by one of the subscribing witnesses there- to. The certificate of proof may be as follows : State of ) County of 5 Be it remembered that on this day of , in the year. . . . , before me (name and title of officer) per- sonally appeared I. J., whose name is affixed as a subscrib- ing witness to the foregoing deed between E. F. and G. H. , and who being duly sworn, deposes and says that the said E. F. duly signed, sealed and delivered the foregoing deed to the said G. H. as his act and deed, in the presence of him, the said I. J., and also in the presence of K. L., the 4S3 Ch. 11. J STATUTORY PROVISIONS. [§321. other subscribing witness to the said deed, who then, at the request of the said E. F., duly signed and attested the same in the presence of the deponent and of the said E. F., the grantor. In witness whereof, I have hereunto set my hand and afBxed my seal the day and year first above written. [official seal. J (Signature and title. )^ 1 Proof of execution of an instrument must include proof of its de- livety. Edward v. Thorn, 5 South. Eepr. 707. ^S4 GEORGIA. §322. Effect and Time of Record. Every deed conveying lands shall be recorded in the of- fice of the clerk of the superior court of the county in which the land lies within one year from the date of such deed. On failure to record within this time, the record may be made at any time thereafter, but such deed loses its priority over a subsequent deed from the same vendor recorded in time and taken without notice of the existence of the first. ^ The statute is different as to mortgages, and as to personal property, as will be seen in the succeeding section. Con- ditional sales of personal property are required to be re- corded.* ' Code of Ga. (1882), §2705; Code (1873), ch. 8, art. 3, §2705; Howard •V. Selman, 77 Ga. 904; Lee v. Cato, 27 Ga. 637; S. C. 73 Am. Dec. 476; Baskin v. Vernon, 74 Ga. 370; Johnson v! Wheelock, 63 Ga. 673; Baze- man v. Davis, 55 Ga. 504; Felton v. Pitman, 14 Ga. 536; Ellis v. Smith, 10 Ga. 253; Hunt v. Dunn, 74 Ga. 120; McGuire v. Barker, 61 Ga. 339; Wyatt V. Elam, 19 Ga. 335 ; Coleman v. Carhart, 74 Ga. 392 ; Knorr v. Raymond, 73 Ga. 749, 775; ITathans v. Arkwright, 66 Ga. 179; Grice v. Haskins, 77 Ga. 700. A recorded deed is by statute made prima /acie evidence of its due ex- ecution. Holland v. Carter, 79 Ga. 139; s. c. 3 S. B. Repr. 690; Code, §2713. As to creditors, see Smith v. Jordan, 25 Ga. 687; Cooper v. Blakey,10 Ga. 243; Chance v. McWhorter, 26 Ga. 313. Actual notice is effectual. Blalock v. Newhill, 78 Ga. 245; Brough- ton V. Foster, 69 Ga. 714; Cunningham v. Woodbridge, 76 Ga.302; Claf- lin V. Duncan, 74 Ga. 348; Rogers v. Haskins, 14 Ga. 166; Ratteree v. Conley, 74 Ga. 153 ; Bryant v. Booze, 55 Ga. 438 ; Virgin v. Wingfield, 54 Ga. 451; Papot v. S. W. Ry. Co., 74 Ga. 296. Possession is notice. Neal v. Perkerson, 61 Ga. 345; Carter v. Hal- lahan, Jd. 314; Sewell v. Holland, 61 Ga. 60S; Royal v. Lisle, 15 Ga. 545; Denham v. Hollman, 26 Ga. 191; Whittington v. Wright, 9 Ga. 23. 2 Code (1882), §§1955a, 1957, 2710; Conder v. Holliman, 71 Ga. 93. §323. Mortgages of Realty are to be recorded within thirty days from date, and if not recorded within that time remain valid as against the mortgagor, but are postponed to all other liens created or obtained, or purchases made prior to the actual record of the mortgage. If, however, the* younger lien is created by contract, and the party receiving it has notice of the prior unrecorded mortgage or the pur- 485 Ch. 11. J STATUTORY PKOVISIONS. [§^^4. chaser has the like notice, then the lien of the older mort- gage shall be held good against them.^ Eecord of a mort- gage after the time is notice from the time the record is. made.^ 1 Code, §§1957, 1955. A mortgage so defectively recorded as not to give notice to a prudent Inquirer sball not be held notice to subsequent bona fide deed purchasers or younger lien holders. A mere formal mis- take in the record shall not vitiate it. §1959. 2 Code, §1960; Adair v. Davis, 71 Ga. 769. In order to have prece- dence of an unrecorded senior mortgage, a junior mortgage must be re- corded within its statutory time. Myers v. Picquet, 64 G-a. 260. "When a junior judgment is founded on a debt antecedent to the date of a defec- tively recorded mortgage, it has priority over the mortgage, though the judgment creditor and the purchaser had actual notice of it. Andrews v. Mathews, 59 Ga. 466. See as to record of mortgages, .J.anes v. Penny, 76 Ga. 796 ; McGuire V. Barker, 61 Ga. 339; Thaxton v. Koberts, 66 Ga. 704; Wilson v. Peo- ples, 61 Ga. 218; Gibson v. Hough, 60 Ga. 588; Keith v. Catchings, 64 Ga. 773; Kiohards v. Myers, 63 Ga. 762; Tanner v. Bell, 61 Ga. 584; Boston V. Cummings, 16 Ga. 102; Wilson v. Peebles, 61 Ga. 218; Hull V. Sullivan, 63 Ga."i26; Broach v. Smith, 75 Ga. 159; Lowe v. Allen, 68 Ga. 225; Johnson v. Wheelock, 63 Ga. 623. Cancelling mortgage. Laws 1884, 1885, No. 315, §1. Restoring lost or mutilated records, Laws, 1887, No. 379, §1. §324. Acknowledgments. Conveyances are attested for record ..by the subscription of two witnesses, one of them being an officer. Within the state they may be attested before a notary public, judge or clerk of the superior court, or court of ordinary, or justice of the peace. Without the state and within the United States, before a commissioner of deeds for Georgia, or judge of a court of record.^ In foreign countries before a commissioner of deeds for Georgia, consul or vice-consul of the United States. Where the instrument is executed within the state no official seal is necessary. If the attestation is before the judge of «a court of record in another state, there must be attached the certificate of the clerk that the signature of such judge is genuine. No certificate of acknowledgment is necessary. The attestation clause is '.'signed, sealed and delivered in 486 Ch. 11.] GEOKGIA. [§325. presence of." If the conveyance be presented to the of- ficer subsequent to its execution, the grantor acknowledges his signature and the officer certifies to that fact.^ ^ The provision as to judge of a court of record applies to deeds, but not to mortgnges. 2 Code, §§2706, 2707; Dinkins v. Moore, 17 Ga. 64; Conley v. Camp- bell, 78 Ga. 3U9; Wardlaw v. Mayer, 77 Ga. 620. A recorded deed is prima facie evidence of its execution. §2713; Holland v. Carter, 79 Ga. 139; s. c. 3 S. E. Kepr. 690. Recording is pj-ima /acie evidence of deliv- ery. Fletcher v. Home, 75 Ga. 134. §323. Acknowledgment of Married Women. Where it is necessary for the wife to join in the deed for the relinquishment of dov^er, a privy examination and cer- tificate of acknowledgment is necessary. Following is the form : State of ) County of ...... . 5 Be it remembered that on this day of A. D. 18. ., before me (name and title of the officer), duly commissioned and sworn, came , and , his wife, to me personally known to be the persons described in and whose signatures'are affixed to the foregoing deed, and severally acknowledged the same to be their free act and deed for the uses and purposes therein mentioned; and the said , on private examination by me, separately and apart from her husband, acknowledged and agreed that she did of her own free will and accord subscribe, seal and de- liver the said conveyance with an intention thereby to re- nounce, give up and forever quit-claim to her riffhts of dower and thirds and all other interest of, in and to the land and tenements therein described. [seal. J (Official signature. )i ' Code (1882), §2706a; Brown v. Kimbrough, 55 Ga. 41. There is no necessity for renunciation of dower by the wife' except where the hus- band is alienating lands to which he derived title through the wife by marriage. As to marriages contracted since the statute of 1866, this cannot occur. That the joinder of the wife in the deed is sufiScient to bar dower in lands held by the husband through marriage previous to 1866, see Rev. Code, §1754, clause 5. 487 Ch. 11.] STATUTOKY PROVISIONS. [§§326, 327. §326. Proof by TVitnesses. Two subscribing witnesses are requisite, and without them the record is ineffectual.^ Where the instrument has not the statutory attestation before an officer, it may be proved for record before any of the officers above named by the oath of a subscribing witness. The certificate of proof is as follows : State of County of ..... . Before me (name and title of officer), personally came John Smith, to me knowQ to be the individual whose signa- ture is affixed to the foregoing deed as one of the witnesses thereto, who being sworn says that he was present at the time when said deed was executed, that he saw the same si^aed. sealed and delivered by John Doe, whose signature is thereto affixed as grantor, that Richard Eoe, the other subscribino' witness thereto, was likewise present at said time and wit- nessed said execution of said deed, and that he, the said John Smith, and the said Richard Roe, then and there signed the same as attesting witnesses. Sworn to and subscribed before me, this, day of 18... ,„. T.,vn (signature and title. )^ Where the subscribing witnesses are dead, or out of the state, the instrument may be proved for record by proof of their handwritino;.^ 1 Gardner V. Moore, 51 Ga. 26S. Interest does not ordinarily disqual- ify tlie witness. Welch v. Lewis, 71 Ga. 387; Wardlaw v. Mayer, 77 Ga. 620; but an agency for one of the parties appearing on the face of the instrument disqualifies the witness who is such agent. Nichols v. Hampton, 46 Ga. 253. 2 Code, §2707; Kushing v. Shield, 11 Ga. 638; s. c. 56 Am. Dec. 436; Eaton V. Freeman, 63 Ga. 538; and see also, Janes v. Penny, 76 Ga. 797- Hearne V. Smith, 59 Ga. 704; VVilliamsou V. Moon, 68 Ga. 585 3 Code, §2708. §337. Cliattel Mortgages are to be recorded within thirty days in the county where the mortgagor resides at the time, and also in the county where the property is sit- 488 Ch. 11.] GEORGIA. [§328. uated. If property that has been mortgaged in another state be brought within the State of Georgia, such existing mortgage must be recorded in the proper county within six montbs after the property is so brought in. The renewal of an unrecorded mortgage creates no lien except as against the mortgagor and persons with actual notice, until re- corded.^ ^ Code, §1956. If the mortgagor is a non-resident, fhe record is to be made in the county where the property is. Id. See Hardaway v. Semmes, 24 Ga. 305; s. O. 38 Ala. 557; Stewart v. Jaques, 77 Ga. 365; S. 0. 4 Am. St. Rep. 86 ; 3 S. E. Repr. 283 ; Cohen v. Chandler, 79 Ga. 427 ; S. C. 7 S. E.Repr. 160; Hunt v. Bowen, 75 Ga. 662; Hubbard v. An- drews, 76 Ga. 177; Nichols v. Hampton, 46 Ga. 253; Douglass v. Mc- Cracken, 52 Ga. 593. No acknowledgment is necessary to a chattel mortgage, Hunt v. Bowen, supra. See as to removal of the property, and re-record, Peter- son V. Kaigler, 78 Ga. 245. §328. Personal Property. Deeds and bills of sale to personalty may be recorded in the office of the clerk of the superior court of the county where the maker resides. Such record being permissive and not compulsory, is not constructive or implied notice to any one; it is otherwise where the law requires the record to be made, and it is properly made. ^ The law requires the record of conditional sales of personal property ; and also of marriage contracts and settlements by the husband on the wife — these latter to be recorded within three months after execution, in the county of the husband's residence, or else bona fide purchasers, creditors and sureties, without notice, who become such before the actual recording of the same, may proceed against the property.^ 1 Code, §2710. 2 Code, §§1955a, 1957, 1969, 2710, 1778; Tift v. Dunn, 5 S. E. Kepr. 256; Conder v. Holliman, 71 Ga. 93. 489 IDAHO TERRITORY. §329. Effect of Record. Every conveyance of real property, other than a lease for a term not exceeding one year, is void as against any subse- quent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded. The term "con- veyance," as used in this chapter, embraces every instrument in writing by which any estate or interest in real property is created, alienated, mortgaged or incumbered, or by which the title to any real property may be affected, except wills. ^ 1 Rev. Stats. (1887), §§3001, 3002; Leland v. Isenbeok, 1 Idaho, 469. The instrument is notice from the time of its deposit for record. §§2998, 3000. Possession is notice. Feirbough v. Masterson, 1 Idaho, 135. As to priority of record. Hazard v. Cole, 1 Idaho, 276. §330. Mortgages, Real and Chattel. Grants absolute in terms are to be recorded in one set of books and mortgages in another. ^ Mortgages of real estate are to be recorded in the county wherein the property is situated; chattel mortgages in the county where the mort- gagor lives, and also in the county where the property is located. An affidavit verifying the mortgage must be re- corded with it. A chattel mortgage is not valid, ej:cept as between the parties, unless duly recorded, or the mortgagee receives and retains actual possession of the property, as against attaching creditors of the mortgagor. The mort- gagee is allowed one day for every twenty miles between his residence and the proper recorder's office for filing his mortgage.^ 1 Rev. Stats., §2999. 2 Code, §2997; Rev. Laws, p. 661. §331. Acknowledgment may be made within the terri- tory anywhere before a Justice or clerk of the supreme court, or, when acting within their local jurisdiction, before a judge or clerk of a court of record, county recorder, no- tary public or justice of the peace. 490 Ch. 11. j IDAHO TERRITORY. [§331. Without the territory and withia the Uaited States, be- fore a judge or clerk of any court of the United States or of any state or territory having a seal, or a commissioner of deeds for Idaho, or any officer authorized by the law of such other state or territory to take acknowledgments. In foreign countries, before a judge of any court having a seal or any notary public therein, or any minister, com- missioner or consul of the United States appointed to reside therein. 1 A seal is requisite only where the officer is required by law to have a seal.^ The certificate of single acknowledg- ment is as follows : State (or Territory) of , ) County or ) On this day of , in the year of , before me (here insert name and quality of the officer), per- sonally appeared , known to me (or proved to me on the oath of ) , to be the person whose name is subscribed to the within instrument, and acknowledged to me that he (or they) executed the same. Given under my hand (and official seal if the officer have a seal) the day and year first in this certificate above written. (Signature and title.)' Where the acknowledgment is on behalf of a corporation the certificate must show that the person acknowledging was known to the officer to be the individual whose name is signed as president or secretary thereof, and that he ac- knowledged the execution of the instrument by him as such officer on behalf of the company, as its act and deed, and in pursuance of the order and resolution of such company di- recting the instrument to be executed. In the case of a conveyance by an attorney in fact, the certificate must show that such attorney acknowledged that he subscribed the name of the principal thereto as principal, and his own name as attorney in fact.* Rev. Stats., §§2950-2953. Where the acknowledgment is taken by a 491 ■ ss. Ch. 11. J STATUTORY PEOVISIONS. [§§332, 333. justice of the peace and the deed is to he used out of his county, a cer- tificate of magistracy is required. §2963. 2 Kev. Stats., §2962. Judgments, patents and notices of location may he recorded without acisnowledgment. §§2991-2993. 3 Kev. Stats., §§2955, 2957, 2958. * Rev. Stats., §§2959, 2961. The statute authorizes suits to correct de- fective certificates, and to prove instruments for record, and in such cases a copy of the judgment, for the purposes of record, suffices in lieu of a certificate of acknowledgment. §§2971-2973. §332. Acknowledgments of Married Women. The certificate of acknowledgiuent by a married woman must be substantially in the following form : Teeeitoey of Idaho, County of On this .-day of , in the year of , before me (here insert name and quality of the officer), personally appeared , known to me (or proved to me on the oath of ) to be the person whose name is subscribed to the within instrument, described as a mar- ried woman ; and upon an examination without the hearing of her husband, I made her acquainted with the contents of the instrument, and thereupon she acknowledged to me that she executed the same and that she does not wish to retract such execution.^ 1 Kev. Stats. (1SS7),§§2956, 2960. See as to wife's deed of community property, Ray v. Kay, 1 Idaho, 566. §333. Proof by Witnesses. A conveyance may be proved for record by a subscribing witness, or when all the subscribing witnesses are dead or. cannot be had, by evidence of the handwriting of the grantor and of at least one subscribing witness. A subscribing witness making proof must be known or proved to officer, and his proof must show the identity of the grantor, his ex- ecution of the conveyance, and that the witness subscribed his own name thereto as a witness thereof. The statute prescribes what shall be the proof of handwriting, and what data shall be indorsed by the officer on the certificate.^ 1 Kev. Stats., §§2964-2969. A power of attorney is to be recorded with the deed made by virtue of it. §2995. . 492 ILLINOIS. §334. Effect of Record. All deeds, mortgages and other instruments of writing which are authorized to be recorded shall talte effect and be in force from and after the time of filing the same for rec- ord, and not before, as to all creditors and subsequent pur- chasers without notice, and all such deeds and title papers shall be adjudged void as to all such creditors and subse- quent purchasers without notice until the same shall be filed for record. 1 Witnesses are not required, and while convey- ances must be sealed by the grantor, a scrawl will suffice for a seal. In counties having less than sixty thousand in- habitants, the clerk of the circuit court acts as recorder of deeds ; in counties having over sixty thousand, a recorder is elected who is designated "Recorder of Deeds. "^ 1 Rev. Stats. 111. (Hurd), p. 277, §30; Cothran's Ann. Stats., ch. 30, §§28-30; Pry V. Pry, 109 111. 466; Phillips v. South Park Bank, 119 111. 626; s. C. 10 N. E. Eepr. 230; Erickson v. Rafferty, 79 01. 209; Ker- yea v. Berry, 84 111. 600; Shannon v. Hall, 72 111. 354; s. c. 22 Ara. Rep. 146; Torrence v. Shedd, 112 111. 466; Paris v. Lewis, 85 111. 597; Morri- son V.Brown, 83 111. 562; Doolittle v. Cook, 75 111. 354; St. Joha v. Con- ger, 40 111. 537; Kerfoot v. Cronin, 105 111. 609; Brookfteld v. Goodrich, 32 111. 363; Heaton v. Prather, S4 111. 330; Buchanan v. International Bank, 78 111. 500; Haworth v. Taylor, 108 111. 275. Possession is notice. Harris v. Mclntyre, 118 111. 275; S. C. 8 N". E. Repr. 182; Farmer's Bank v. Sperling, 113 111. 273; Riley v. Quigley, nO 111. 304; s. C. 99 Am. Dec. 576; Cabeeii v. Breckinridge, 48 111. 91; Jaques v. Lester, 118 III. 246; White v. White, 105 111.313; Clark v. Pinion, 90 111. 245; Clevinger v. Ross, 109 111. 324. Actual notice is effectual. Stokes v. Reilly, 121 111. 166; Bent v. Coleman, 89 111. 364; s. c. 7 Am. Rep. 366; Boyd v. Yerkes, 25 111. App. 527 ; Rogers v. Wiley, 14 111. 65; s. c. 56 Am. Dec. 491 ; Chicago v. Witt, 75 111.211; McCagg v. Heacock, 34 111. 476; S. C. 85 Am. Dec. 327; Mor- rison V. Kelly, 22 111. 610; s. C. 74 Am. Dec. 169; McCormack v. Wheeler, 36111. 114. ^ Hurd, 970. The entry upon the land book in the county clerk's of- fice of lands sold by the United States does not charge constructive no- tice, as such entry Is only for the purpose of taxation. Betser v. Ran- kin, 77 111. 289. A probate court decree for sale of land, and order confirming sale, does not charge constructive notice of the unrecorded administrator's deed. Anthony v. Wheeler (111.), 22 N. E. Repr. 494. §334:01. Mortgages are executed, acknowledged and re- corded in the same manner as deeds, except that they are 493 Ch. 11. J STATUTORY PROVISIONS. [§335. recorded in separate books. ^ The wife or husbaad, as the case may be, must joiu ia order to bar dower, except in mortgages to secure purchase money.'^ Assigaments of mortsages are embraced amonoj the instruments authorized to be recorded.^ 1 Cothran's Stats., ch. 115, §9. Thereoordof a deed absolute in terms but in reality a mortgage, held to protect the rights of the grantee there- under. DeWolf V. Strader, 26 111. 231. See as to record of mortgages, Smith v. South Park Bk., 119 111. 626; s. C. 10 X. E. Repr. 230; Heaton v. Prather, 84 111. 330; Keohane v. Smith, 97 111. 156; Trusdale v. Ford, 37 111. 210; Meacham v. Steele, 93 111. 135; Fry v. Bank of 111., U 111. 367; Gardner v. Emerson, 40 111. 296; McGormack V. Bauer, 122 111. 573; s. C. 13 N. E. Kepr. 8.52; The Int. Bank v. Wilshire, 103 111. 149; Ogle v. Turpin. 102 111. 148; Smith v. Keohane, 6 Bradw. 585; Beaver v. Slanker, 94 111. 175. 2 Cothran's Stats., ch. 30, §17.. Dower is not released by a convey- ance made by an orderof court, unless it is so specified therein. Coth- ran's Stats., ch. 41, §45. See as to record and priority of purchase money mortgages : Curtis V. Hoot, 20 111. 53; Austin v. Underwood, 37 111. 478; Koane v. Baker, 120 111. 308; s. C. 1 ST. E. Kepr. 246. As to creditors and purchasers under the recording acts : City Nat. Bk. V. Dayton, 116 111. 257; Massey v. Westcott, 40 111. 160; Brown v. Welsh, 18 111. 343; s. C. 68 Am. Dec. 549; Schultze v. Houfes, 96 111. 335; Baldwin v. Sager, 70 111. 503; Roseman v. Miller. S4 111. 297; Par- tridge V. Chapman, 81 111. 137; Metropolitan Bk. v. Godfrey, 23 111. 579; Sargent V. Howe, 21 111. 14S; Guiteau v. Wisely, 47 111. 433; Martin v. Dryden, 1 Gilm. 187; McFadden v. Worthington, 45 111. 362. s McGormack v. Bauer, 122 111. 573; s. C. 13 N. E. Eepr. 852; 11 West. Repr. 744; The Int. Bank v. Wilshire, 103 111. 143, 149. Deposit of a conveyance with a person in Charge Of the ofHce suffic- ient, though he be not the recording officer. Cook v. Hall, 1 Gilm. 575. If the instrument, after being filed, is withdrawn before it is recorded, the effect of filing is destroyed. Worcester Bk. v. Cheney, 87 111. 602. Recording without the knowledge of the grantee is not equivalent to delivery. Herbert v. Herbert, Breese, 354; s. C. 12 Am. Deo. 192. See as to record, Robbius v. Moore, 21 N. E. Repr. 934; Sawyer v. Camp- bell, 22 N. E. Eepr. 453. §335. Acknowledgment is not necessary to constructive notice by the record, but a conveyance is not admissible in evidence as a recorded instrument, unless it has been regis- tered upon due acknowledgment.^ Acknowledgments may be taken within the state by a notary public, United States commissioner who shall affix his seal, a master in chancery, 494 Ch. 11. J ILLINOIS. [§335- circuit or county clerk, or any court of record having a seal, or any judge, justice or clerk thereof .^ Without the state and within the United States, before a justice of the peace duly certified as such, notary public. United States commissioner, commissioner of deeds ; mayor of a city or clerk of a county, such officer affixing his official seal; any judge or clerk of any United States, state or territorial Court; or by any officer authorized to take acknowledgment by the law of the state where taken. ^ In foreign countries, before any court having a seal; a mayor or chief officer of any city or town having a seal; minister or secretary of legation or consul of the United States ; or any officer authorized by the foreign law to take acknowledgments.* Officers must use their official seals. When the acknowledgment is taken by a commissioner of deeds for Illinois, the certificate must comply with the law of Illinois. The wife need not be examined sep- arately. ^ Where the homestead is conveyed, the certificate of acknowledgment should contain a clause showing that the grantors intended to release the homestead right. The form of joint certificate, with waiver of homestead, is as follows: State of County of I (name and title of officer) do hereby certify that. . . . . . . .and his wife, personally known to me to be the same jDcrsons whose names are subscribed to the foregoing instrument as having executed the same, appeared before me this day in person and acknowledged that they signed, sealed and delivered the said instrument as their free and voluntary act for the uses and purposes therein set forth, including the release and waiver of the right of homestead. Given under my hand and official seal, this day of , A. D. 18. .. [seal. J (Signature and title.) 1 Cothran's Stats., ch. 30, §20; Kurd's Rev. Stats., p. 277, §31; Car- penter V. Dexter, 8 "Wall. (75 U. S.), 513; Beaver v. Blanker, 94 111. 175; 495 Ch. 11. J STATUTORY PROVISIONS. [§336. Fitzgerald v. Fitzgerald, 100 III. 385; "Washbura v. Roesoh, 13 111. App. 268; Llckman v. Harding, 65 111. 505; Kussell v. Baptist Union, 73 111. 337; Livingston v. Kettelle, 1 Gilm. 116; S. C. 41 Am. Dec. 166; Becker V. Quigg, 54111. 390. A party having a direct interest in the deed cannot take acknovirl- edgment of it. West v. Krebaum, 88 111. 263 ; as that of a trustee, Darst V. Gale, 83 111. 736. The certificate must show the official character of the officer. Hardin v. Kirk, 49 111. 153; s. C. 95 Am. Dec. 579. The mayor of a city is authorized to take acknowledgmeat, but this does not confer such authority upon the mayor of a town. Dundy v. Cham- bers, 23 111. 369. The officer must certify to the identity of the grantor. TuUy v. Da- vis, 30 111. 103; Shepherd v. Carriel, 19 111. 313; Honore v. "Wilshire, 109 111. 103. See further as to aoknowledgmeuffe : Hartshorn v. Dawson, 79 III. 108; Coburn V. Herrington. 114 111. 104; Chester v. Kumsey, 26 111. 97; Patterson v. Lawrence, 90111. 174; Grove v. Gather, 23 111. 634; s. c. 76 Am. Dec. 711; Lindley v. Smith, 46 111. 523; Danner v. Ber- thold. lllll. App. 351. 2 The official character of a justice of the peace, if he be without the county where the land lies, must be certified by the clerk of the county court; and where the acknowledgment is before a court of record or clerk thereof, the seal of court must be affixed. Grand Tower Co. v. Gill, 111 111. 541. 3 See Grand Tower Co. v. Gill, supra. Where the acknowledgment is made in conformity with the law of another state where taken, a cer- tificate of conformity is required from the clerk of a court of record, under seal of the court; or conformity may be proved by the laws of such state. 1 Cothran's Stat., ch. 30, §20; Kurd's Rev. Stats. (1885), ch. 30, §22; Edward v. Flanagan, 104 U. S. 562; Strauch v. Hathaway, 101 111. 11; S. C. 40 Am. Kep. 193. Where the olflcer taking a foreign acknowledg- ment does not use an official seal, a certificate of magistracy or con- formity is required. Id. Phillips v. People, 11 111. App. 340. Kev. Stats., ch. 30, §19; Bradshaw v. Atkins, 110 111. 323, 329. Formerly required, see Morrison v. Brown, 83 111. 562 ; Merritt v. Yeates, 71 111. 639; s. c. 22 Am. Rep. 128; Warrick v. Hull, 102 111. 280; Mari- ner V. Saunders, 5 Gilm. 113; Mason v. Brock, 12 111. 273; S. 0. 52 Am. Dec. 490; Hughes v. Lane, 11 III. 123; s. c. 50 Am. Dec. 436. Where the husband does not join, the deed of the wife alone is not binding on her, unless duly acknowledged before the proper officer. Snell v. Snell, 123 111. 403. §336. Proof by Witnesses. Proof for record may be made by a subscribing witness, and when the grantor and the subscribing witness are dead, the officer may talve proof of their handwriting ; or of that of the grantor, if there be no subscribing witnesses. The certificate of proof by a subscribing witness is as follows : 496 Ch. 11. J ILLINOIS. [§336. State or ) ■CoUfJTT OF 5 Be it remembered thiit on this day of A. D., 18. ., before me (name and title of officer) duly ap- pointed and commissioned, personally appeared A. B., to me personally known to be a subscribing witness to the foregoing deed (or as the case may be, who was proved to me on oath of C. D., a credible witness, to be a subscribing witness to the foregoing deed), who, after being duly sworn according to law, deposeth and saith that John Doe, whose name appears subscribed to said deed, is the real person who executed the same, and that he, the said A. B., sub- scribed his name as a witness thereto in the presence and at the request of the said John Doe, which is sufficient evidence .to me of the execution of said deed. In witness whereof, I have hereunto set my hand and sea\, at this day of , a. d. 18. .. [seal. J (Signature and title.) The certificate when the grantor and subscribing witness \are dead or cannot be produced, may be thus: State of ) County of 5 Be it remembered that on this day bf , A. D. 18.., before me (name and title of officer), person- ally appeared A. B., a compe.tent and credible witness, who being duly sworn according to law, deposeth and saith that he' personally knew the handwriting of John Doe, the grantor in, and of C. D., the subscribing witness to, the foregoing deed, and that he well knew the signature of each ■of them, having frequently seen them write (or such other means of knowledge as the witness may have), and that he helieves the name of such grantor and subscribing witness to the deed aforesaid were thereto subscribed by the said John Doe, the grantor, and C. D., the subscribing witness, respectively, which to me affords sufficient evidence of the due execution of said deed. (32 — Eeg. of Title.) 497 Ch. 11. J STATUTORY PROVISIONS. [§337. In witness whereof I have hereunto set my hand and seal, at this day of , A. D. 18. .. [seal.] (Signature and title.)! Starr & Curtiss's Stats., ch. 30, §25; Stebbins v. Duncan, 108 U. S. 32. §337. Chattel Mortgages. A chattel mortgage or lien upon personal property is not valid against the rights of any third person unless posses- sion of the property be delivered, or the instrument be ac- knowledged and recorded and provide that possession may remain with the grantor. The acknowledgment may be made before a justice of the peace of the town or district where the mortgagor resides, or in case of a non-resident of the state, before an}^ officer authorized to take the ac- knowledgment of deeds. 1 The justice is required in case of an acknowledgment by a resident of the state, to enter a memorandum thereof in his docket.^ Chattel mortgages are to be recorded in the county where the mortgagor re- sides at the time, or if a non-resident of the state, in the county where the property is situated, and the record is good for a period of two years. ^ 1 Starr &Curtiss'R Stats., oh. 95, §§1-5; Ticknor v. McClelland, 84111. 471. This (name of instrunient) was acknowledged before me by (name of grantor), (when the party making the acknowledgment is aresident. Insert the words) and entered by me this d.ay of 18 . . . Wit- ness my hand and seal. .„ ^^ ca i „i ^ ■' (Name of oflncer and seal.) 2 Koplin V. Anderson, 88 111. 120; Pike v. Golvin, 67 111. 227; Harvey V. Dnnn. S<) 111. 585; Harlow v. Birger, 30 111. 426; ante, §246. 3 Sword V. Law, 122 111. 487; s. C. 13 N. E. Repr. 826. Actual notice of no effect. Blatchford v. Boyden, 122 111. G.57; s. C. 13 N. E. Kepr. 801; McDowell V. Stewart, 83 111. 53S; ante, §246. See as to record of chattel m'ortgages: Chipron v. Feikert, 68 111. 2S4; Beach v. Derby, 19 111. 617; People v. Hamilton, 17 111. App. 509; Gregg v. Sanford, 24 111. 17; s. c. 76 Am. Dec. 725. As to personal property and conditional sales: Fawcett v. Osborn, 32 111. 411; s. c. 83 Am. Dec. 27S; Jennings v. Gage, 13 111. 610; s.c. 56 Am. Kep. 476; Young v. Bradley, 68 111. 553; Newkh-k v. Dalton, 27111. 413. INDIANA. §338. Effect and Time of Record. Conveyances, except leases of less than three years, to be valid against any other than the grantor, his heirs, or those having notice thereof, must be recorded in the recorder's office of the county where the land is situated within forty- five days from their execution.^ The recorder is required to note, in a book kept for that purpose, the names of the parties to the instrument, a description of the lands and the date of its reception, and a conveyance is considered as re- corded from the time of such noting.^ Seals are not re- quired, and witnesses tire not necessary to a conveyance if it be acknowledged. 1 Kev. Stats. Ind. (18S8), §2931 ; Gibson v. Keyes, 112 Ind. 568; s. c. 14X. E. Eepr. 591; 12 West. Repr. 182; Wilson v. Hunter, 30 Ind. 466 Corbiu V. Sullivan, 47 Ind. 3.56; Wood v. Lordier, 18 N. E. Repr. 34 Hyatt •¥. Cochi-an, 69 Ind. 43G; Trentman v. Eldridge, 98 Ind. 525 Wrio-ht V. Shepherd, 47 Ind. 176; Lane v. Schlemmer, 114 Ind. 296; S. 5 Am. St. Rep. 621; 15 N. E. Repr. 4.i4; Walter v. Hartwig, lOS Ind. 123 S. C. 6 N. E. Repr. 5; Brannon v. May, 42 Ind. 92; Faulkner v. Over- turf, 49 Ind. 265. Actual notice supplies the want of regi.stry. Retry v. Arabrosher, 100 Ind. 510; Crassen v. Swoveland, 22 Ind. 427; White v. Fisher, 77 Ind. 65; S. c. 40 Am. Rep. 287; Peckham v. Hendren, 76 Ind. 47; Strohm v. Good, 113 Ind. 93; s. c. 14 N. E. Repr. 901; Walter v. Hartwig, 106 Ind. 123. Possession is notice. Barnes v. Union School Township, 91 Ind. 301 ; Sutton V. Jervis, 31 Ind. 265 ; S. C. 99 Am. Deo. 631 ; Chicago v. Hay, 119 Ind. 493; Campbell v. Indianapolis Ry. Co., 110 Ind. 490; s. C. 11 N. E. Repr. 482; Peterson v. McCullough, 50 Ind. 35. 2 Rev. Stats. (1888), §2951; Quick v. Milligan, 108 Ind. 409; s.C. 58Am. Rep. 49; 9 ?\^- E. Repr. 392; The Conn. Ins. Co. v. Talbot, 113 Ind. 373; S. C. 3 Am. St. Rep. 655; 14 N". E. Repr. 580; Woodbury v. Fisher, 20 Ind. 357; Fitzgerald v. Goff, 99 Ind. 28; Case v. Burnstead, 24 Ind. 429. i §339. Mortgages. When a mortgage is in the form of an absolute convey- ance, but is intended to be defeasible by force of a deed, defeasance bond, or other instrument for that purpose, the orio'inal conveyance is not defeated or affected as against any person other than the maker of the defeasance, or his heirs or devisees, or persons having actual notice, un- less the defeasance is recorded within ninety days after the date of the deed.^ Mortgages maybe discharged by an en- 499 Ch. 11. j STATUTORY PROVISIONS. [§340. try of satisfaction on the margin of the record, or by the record of a certificate of payment duly acknowledged. ^ Assignments of mortgages should be recorded, and after such entry is made of record, the mortgagor and all other persons shall be bound thereby; and the same shall be deemed a public record.^ And a release of record presump- tively destroys the mortgage lien, and notice of continued existence of the debt is not notice of continued existence of the mortgage.* i Rev. Stats. (1SS8), §2932; Gabbert v. Schwartz, 69 Ind. 450; Hous- ton v. Houston, 67 Ind. 276; Stockwell v. Stock well. 101 Ind. 1; Singer V. Scheible, 109 Ind. 575; S. C. 1.0 jST. E. Eepr. 616; Burke v. Abbott, 103 Ind. 1; s. c. 57 Am. Kep. 474; Cain v. Hanna, 63 Ind. 408; Reasoner V. Edmundson, 5 Ind. 393. Record after the time prescribed is notice from the time it is made. Gilchrist v. Gough, 63 lad. 576; s. C. 30 Am. Kep. 250. But this statute does not apply to a volunteer as against the rightful owner, even though the defeasance be not recorded. Wilson v. Wilson, 86 Ind. 472. 2 Rev. Stats. (1888), §§1090,1091; Richards v. McPherson, 74 Ind. 158 Storey v. Krewson, 55 Ind. 397; Reeves v. Hays, 95 Ind. 521. As to creditors and purchasers, see Rosser v. Bingham, 17 Ind. 544 Orth V. Jennings, 8 Blaokf. 420; Hunsinger v. Hoffer, 110 Ind. 390; s. 11 N. E. Kepr. 463; 9 West. Repr. 46; Dixon v. Hunter, 57 Ind. 278 Runyan v. McClelland, 24 Ind. 175; post, §342, note 3. ^ Rev. Stats., §1093; The Conn. Ins. Co. v. Talbot, 113 Ind. 373 s. c. 3 Am. St. Rep. 655; 14 N. E. Repr. 586. * Farmer's Bank, etc., v. Butterfield, 100 Ind. 229. §340. Acknowledgment may be made within the state before a judge or clerk of a court of record, Justice of the peace, auditor, recorder, notary public, mayor of a city, or county surveyor. <■ Without the state and within the United States, before a judge or clerk of a court of record, justice of the peace, auditor, recorder, notary public, mayor of a city, or com- missioner of deeds for Indiana. In foreign countries, before a minister, charge d'affaires or consul of the United States.^ Officers having a seal must attest their certificates therewith, and in such case no further attestation is necessary.^ But where the officer 500 Ch. 11. J INDIANA. [§341. has no seal, the acknowledgment shall be certified by the clerk of the circuit court of the county where the officer re- sides, and attested by the seal of said court. The husband must join in a conveyance of the wife's separate property; but a married woman's acknowledgment is taken as though she were single, no separate examination being neces- sary.^ The form of a joint certificate may be as follows: State of County of Be it remembered that on this day ol , a. d. 18. ., before me (name and title of officer), duly com- missioned and qualified, personally appeared , and , his wife, the grantors in the foregoing deed, and severally acknowledged the execution of the same. In witness whereof, I have hereunto ^-^b my hand and af- fixed my official seal the day and year aforesaid. [seal.] (Signature and title. )* ' 1 Kev. Stats. (188S), §2933; Walter v. Hartwig, 106 Ind. 123; s. C. 6 N.E. Eepr. 5; MuncieNat. Bk. v. Brown, 112 Ind. 474; s. C. 14 N. E. Eepr. 358: Mullis V. Cavins, 5 Blackf. 77; Schofield v. Jennings, 68 Ind. 232; Owenv. JSTorris, 5 Blackf. 479; Lane v. Sohlemraer, 114 Ind. 296; s. C. 5 Am. St. Rep. 621 ; 15 IST. E. Repr. 454 ; StoU v. Harrison, 73 Ind. 20; Wriglit V. Bundy, 11 Ind. 398; Cole v. Wright, 70 Ind. 179. 2 Rev. Stats. (1888), §§2933, 2950, 2099. Where the officer is not re- quired ijy law to have a seal, the certificate is safficient without it. Cole V. Wright, 70 Ind. 179; and see Muncie Nat. Bk. v. Brown, 112Ind. 474; S. C. 14 K. E. Repr. 358; 12 West. Eepr. 157. ^ For decisions uuder the earlier laws, see Fleming v. Potter. 14 Ind. 486; Stevens v. Doe, 6 Blackf. 475; Jordan v. Corey, 2 Ind. 385; s. C. 52 Am. Dec. 517. ■* Rev. Stats. (1888), §2947. A certificate of acknowledgment made on the assurance of another person that the grantor executed the instru- ment is invalid. Mays v. Hedges, 79 Ind. 288. §341. Proof by Witness. Witnesses are not required where the instrument is ac- knowledged. Proof for record may be made by a subscrib- ing witness before any of the officers above named, and the certificate thereof may be as follows: sOl Ch. 11. J STATUTOKY PROVISIONS. [§342. State of County or Be it remembered, that on this day of , A. D. 18. ., before me, the undersigned (name and title of officer), personally appeared J. H. Peters, the subscribing witness to the execution of the within deed, of lawful age, who, being by me duly sworn, upon his oath did depose and say that on the day of , 18. . , he saw the within named grantors ,and , his wife, sign, seal and deliver the within deed as their act and deed; that this deponent at the same time signed his name as a witness of the execution of said deed, at the request and in the presence of said grantors, which grantors were at the time over the age of twenty-one years, and of sound mind and memory, and laboring under no disability so far as depon- ent knows. In witness whereof, I have hereunto set my hand and af- fixed my official seal the day and year aforesaid. [seal. ] (Signature and title. )^ ' Eev. Stats. (1888), §2936. §342. Chattel Mortgages. A chattel mortgage is not effectual against other persons than the parties thereto, except in case of possession of the property taken and retained, unless acknowledged and re- corded, as in case of deeds, in the county where the mort- eagor resides, within ten davs after the execution thereof.^ Unless accompanied by immediate delivery and followed by actual change of possession, the mortgage is presumed to be fraudulent and void as against creditors of the vendor, or subsequent purchasers in good faith, unless it be made to appear that the sale Was made without intent to defraud such creditors and purchasers. The mortgage is con- sidered as recorded from the time it is left for that pur- pose at the proper recorder's office.^ Chattel mortgages are not required to be renewed. They may be discharged 502 Ch. 11. J INDIANA, [§342. of record in the same manner as mortgages of realty. "When silent as to possession, the mortgagee is entitled to immediate possession upon execution of the mortgage.^ ' Key. Stats. (18S8), §4913; Granger v. Adams, 90 Ind. 87; MoTag- gart V. Kose. 14 Ind. 230; Wright v. Bundy, 11 Ind. 398; Duke v. Strick- land, 43 Ind. 494; Hackleman v. Goodman, 75 Ind. 202; Lockwood v. Slevin, 26 Ind. 125; Matlock v. Straughn, 21 Ind. 128; Hasselman v. Mc- Kernan, 50 Ind. 441 ; Ames Iron Works v. Warren, 76 Ind. 512 ; s. C. 40 Am. Rep. 258. The ten days are reckoned from the execution, not the date, of the instrument. The prima facie presumption, however, is that it was fully executed and delivered at its date. Brlggs v. Fleming, 112 Ind. 313; s. C. 14 N. E. Eepr. 86 ; Stonebreaker v. Kerr, 40 Ind. 186 ; Hoadley v. Had- ley, 48 Ind. 452. " As the statute does not require the recorder to note the time of re- ceiving the iQstrument, such time may be proved by parol. Holman v. Doran, 56 Ind. 358. " Broadheali v. McKay, 46 Ind. 495. See as to personal property and conditional sales, Hodgson V. Warner, 60 Ind. 214; Bradshaw v. War- ner, 54 Ind. 58; Dunbar v. Rawles, 28 Ind. 225; s. c. 92 Am. Dec. 211; Baals V. Stewart, 109 Ind. 371; s. C. 9 N". E. Kepr. 403; Winchester v. Carman, 109 Ind. 31. The statute provides for a 'His pendens record," to be kept in the clerk's office in each county, whereon notice must be given of the filing of suits, and of execution and attachment levies on real estate, and of the dismissal, satisfaction, etc., thereof. Rev. Stats., §324, et seq.- Alien Landowners. Aliens who have not declared their intention of becoming citizens, may not hold land unless they receive it by devise or descent, and in that event they may hold it for five years only. Land held beyond 5 years shall escheat to the state. But the holder of a lien upon or interest in real estate may take title to the land on which he holds such lien. Elliott's Sup. 66S-670; Act March 9, 1885. Power of Attorney. Deeds and like instruments may be executed by attorney in fact. But the power of attorney must be formal and must be placed of record before the recorder is authorized to receive for rec- ord any instrument executed by such attorney in fact. (Elliott's Sup. 672, 673. But a power of attorney is valid as between the parties, though not recorded. Oaley v. Morgan, 114 Ind. 350. Vendor''s Lien. Vendor's lien may be reserved in the deed. But vendor may be required to satisfy the same of record on its payment to him. Elliott's Sup. 683, 684; Act March 9, 1889. In the late case of Shirk v. Thomas (Ind.), 22 N. E. Eepr. 976, it is held that a judgment creditor is not protected by the registry statute (§2931) against an unrecorded conveyance. This overrules the below cases holding that a judgment creditor who pnrcliases at his own sale is v^bonaflde purchaser. 114 Ind. 115; 100 Ind. 510; 93 Ind. 431; 26 Ind. 319; 102 Ind. 221; 64 Ind. 382; 105 Ind. 237; 76 Ind. 17; 109 Ind. 165; 80 Ind. 527; 102 Ind. 524; 103 Ind. 404; 75 Ind. 571, and 86 Ind. 187. 503 IOWA. §343. Effect of Record. No instrament affecting real estate is of any validity against subsequent purchasers for a valuable consideration without notice unless recorded in tlie office of the recorder of the county in which the land lies.^ The recorder must note, in a book for that purpose, the time when the in- strument was filed, its date, nature and the names of the parties to it, and the book or page where it is re- corded, and description of land conveyed, and from that time such entries shall furnish constructive no- tice. ^ Conveyances of or affecting city and town lots are recorded in a separate set of books.^ The county auditor keeps for purposes of taxation a set of transfer and index books, and a deed cannot be filed for record by the re- corder until the proper entries have been made upon the transfer books in the auditor's office and indorsed upon the deed.* Levies of attachment on real estate are not notice until entered in the "incumbrance book" kept in the clerk's office in each county — such entry to be signed by the sheriff.^ 1 Code of Iowa (1888), §3112; Miller's Code (1880), §1941: Green- wood V. Jenswold, 69 Iowa, 53; s. C. 28 N. W. Kepr. 433; Dean v. Scott, 67 Iowa, 233; s. c. 25 N. W. Repr. 147; Kaymond v. Morrison, 59 Iowa, 371; Pastel v. Palmer, 71 Iowa, 157; S. C. 32 N. W. Kepr. 257; Jloody V. Dryden, 72 Iowa, 461 ; Switzer v. Knapps, 10 Iowa, 72; S. C. 74 Am. Dec. 375; Disque v. Wright, 49 Iowa, 538; Holloway v. Plainer, 20 Iowa, 121; s. C. 89 Am. Deo. 517; Kichardson v. Henry, 40 N. W. Kepr. 115; Willard v. Cramer, 36 Iowa, 22; Steward v. Huff, 19 Iowa, 557; Gower v. Doheuey, 33 Iowa, 36. Actual notice supplies registry. Allen v. MeCalla, 25 Iowa, 464; s. C. 96 Am. Dec. 56; Young v. Shauer, 73 Iowa, 555; S. C. 5 Am. St. Rep. 701 ; 35 N. W. Repr. 629; Bell v. Thomas, 2 Iowa, 884; Ormsby v. Budd, 72 Id. SO; S. C. 33 N. W. Repr. 457'; Walker v. Schreiber, 47 Iowa, 529; Davis v. Lutkeweis, 72 Id. 254; s. c. 33 N. W. Repr. 670. 2 Code (1888), §§3114-3117; Jones v. Berkshire, 15 Iowa, 248; s. C. 83 Am. Dec. 412. Possession is notice. Moore v. Piersoa, 6 Iowa. 279; S. C. 71 Am. Dec. 409; Koon v. Trammell, 71 Iowa, 132; s. C. 32 N. W. Repr. 213; Sprague v. White, 73 Iowa, 670; Wrede v. Cloud. 52 Iowa. 371; Robin- son V. Lake, 14 Id. 424; McCieerey v. Wakefield, 41 N. W. Repr. 210; Gardner V. Earley, 72 Iowa, 51S; s.C. 34 N.W. Repr. 311; Buck v. Holt, 74 Iowa, 37; s. C. 37 N. W. Repr. 377. 504 Ch. 11.] IOWA. [§343a. Effect of refcord. Sowden v. Craig, 26 Iowa, 156; s. c. 99 Am Dec. 125; Dillon v. Shugar, 73 Iowa, 35; s. c. 35 N. W. Repr. 509; Stewart v. Huff, 19 Iowa, 557; Benjamin v. Davis, 73 Iowa, 715; s. c. 36 X. W. Kepr. 717; Bradford v. Miller, 12 Iowa, 14; Dargin v. Becker, 10 Id. 571 ; Hxime v. Franzen, 73 Id. 25. Record as delivery : Hinson v. Bailey, 73 Iowa, 544; s. C. 5 Am. St. Rep. 700; 35 N. W. Repr. 626; Nat. Bk. V. Morse, 73 Iowa, 174; s. C. 5 Am. St. Rep. 670; 34 N. W. Repr. 803. Recorded deed in evidence: Mixer v. Beunett, 70 Iowa, 329; s. c. 30 N. W. Repr. 5S7. 8 Code (18SS), §3118. See as to record of plats: Manderschid v. Du- buque, 29 Iowa, 73; Stewart v. Huff, 19 Iowa, 557. 4 Code (1888), §§3121-3127. Index: Barney v. McCarty, 15 Iowa, 510; s. C. 83 Am. Dec. 427 ; Breed v. Conley, 14 Iowa, 269 ; s. C. 81 Am. Dec. 485; ante, §142; Peters v. Ham, 62 Iowa, 6.i6; s. c. IS X. W. Repr. 296; Howe V. Thayer, 49 Iowa, 154; Noyes v. Horr, 13 Id. 57. 5 Code (1888), §4247; Benjamin v. Davis, 73 Iowa, 715; s. C. 36 N. W. Repr. 717. §343a. Mortgages of Realty, are acknowledged and re- corded in the same manner as deeds. ••■ It is not necessary for the wife to join in a mortgage given for purchase money .^ The vendor's lien, unless reserved in the deed, or by mortgage, is not good against a subsequent purchaser of the property.^ In the absence of stipulations to the con- trary, the mortgagor of real property retains the legal title and the right of possession thereto.* Deeds of trust are declared subject to the law of mortgages.^ Assignments of mortgages are held to be within the recording acts,® and a junior mortgagee is by statute accorded the right, upon paying a prior mortgage, to have assigned to him all the in- terest of the holder of such prior mortgage.' Mortgages by railroad corporations are to be executed in such manner as the articles of incorporation or by-laws may provide; are to be recorded in each county through which the railway may run, or in which any of the mortgagpd property is situate; and may include personal property and rolling stock as part of the road — the record being notice both as to the real and personal property.^ Mortgages are dis- charged of record by the mortgagee or those legally acting for him acknowledging satisfaction thereof in the margin 505 Ch. 11.] STATUTORY PROVISIONS. [§344. of the record; or the discharge may be by a satisfaction piece duly acknowledged and recorded. In case of fore- closure, it is made the duty of the clerk of the court to enter satisfaction of the mortgage. Failure of the mort- cra^ee, for sixty days after request, to enter satisfaction, renders him liable to a forfeit of twenty-five dollars.'' 1 Seevers v. Delashmut, 11 Iowa, 174; s. c. 77 Am. Dec. 179; Kuhn V. Graves, 9 Iowa, 305; Cnrnog v. Fuller, 30 Id. 212; Davis v. Lulke- weis, 72 Iowa, 25+; s. C. 33 N. W. Repr. 670; Koevenig v. Sohmitz, 71 Iowa, 175; S. c. 32 N. W. 320. 2 See as to record of purchase money mortgages: Clark v. Holland, 72 Iowa, 34; s. c. 34 1^. W. Repr. 350; Koevenig v. Schmitz, supra; Phelps V. Fockler, 61 Iowa, 340; Kaiser v. Leinbeck, 3 Id. 520. 3 Code (1888), §3111; Prouty v. Clark, 73 Iowa, 55; s. C. 34 IST. W. Kepr. 614. ■i Code (1888), §3109. It Is otherwise as to personal property: §3098. 5 Code (1888), §4554. As to priority in the record of mortgages, see Powers V. Lafler, 73 Iowa, 283; English v. Waples, 13 Id. 57; Siijis v. Hammond, 33 7d. 368; Vandercook v. Baker, 48 Id. 199; Clark v. Bal- lard, 61 Id. 747; Council Bluffs v. Billiips, 67 Id. 674; Mather v. Jens- wold, 72 Id. 550; Warner v. Waterloo, 62 Id. 699; s. 0. 14 N. W. Repr. 334; Thorpe v. Durhin, 45 Iowa, 192. 6 Bowling V. Cook. 39 Iowa, 200; Parmenter v. Oakley, 69 Iowa, 388; s. C. 32 N. Sv. Repr. 653; Clark v. Holland, 72 Iowa, 34; s. C. 33 N. W. Repr. 358. ' Code (ISSS), §4559. As to creditors and purchasers generally, un- der the recording acts, see Fords v. Vance, 17 Iowa, 194; Ryan v. Chew, 13 Id. 589; Trustees v. Hill, 12 Id. 462; First Nat. Bank v. Hayzlitt, 40 Id. 659; Norton v. Williams, 9 Id. 52S; Evans v. McGlasson, IS Id. 150; Hoy V. Allen, 27 Id. 208; Port v. Embree, 54 Id. 14; Welton v. Tizzard, 15 id. 495; Moorman V. Gibbs, 39 N. W. Repr. 832; Holloway v. Plainer, 20 Iowa, 121; s. C. 89 Am. Dec. 517; Updegraff v. Edwards, 45 Iowa, 513; Kitteridge v. Chapman, 36 Id. 348; Rush v. Mitchell, 71 Id. 333; 8. C. 33 N. W. Repr. 367. 8 Code (1888), §§1965-1967. ' » Code (1888), §§4663, 4564; Huff v. Farwell, 67 Iowa, 298; s. C. 25 N. W. Repr. 262; Foster v. Paine, 63 Iowa, 85; s. C. ISN. W. Repr.699; Hoffman V. Wilhelm, 68 Iowa, 510; s. c. 27 N. W. Repr. 483; Bruce v. Nelson, 35 Iowa, 157; Bank v. Anderson, 14 Id. 544; Daws v. Craig, 62 Id. 515; Mather v. Jenswold, 72 Iowa, 150; s. C. 550; s. C. 34 N. W. Repr. 327; Brayley v. Ellis, 71 Iowa, 156; s. c. 32 N. W. Repr. 254. ■§34:4:. Acknowledgment or proof for record is required.^ It may be made within the state before any court having a seal, or judge or clerk thereof, or justice of the peace' or notary public, or county auditor or his deputy. 506 Cli. 11. J IOWA. [§344. Without the state and within the United States, before any court of record or officer holding the seal thereof, com- missioner of deeds for Iowa, notary public ov justice of tlie peace. ^ In foreign countries, before any embasjiador, minister, • secretary of legation, consul, charge d'affaires, consular agent, or any otlier officer of the United States in any for- eign country who is authorized to issue certificates under the seal of the United States, or any officer of a foreign country authorized by its laws to certify acknowledgments.^ The acknowledgment of a married woman is taken as though she were single. She may make contracts and con- veyances of and affecting her separate property as if she were sole; and her joinder with her husband in a convey- ance of his real estate is deemed sufficient to pass all her interest, either as his wife, or in her own right.* The form of joint certificate is as follows : State or ) County of 3 On this day of , a. d. 18. ., before me (title of the court or officer), personally came A. B., and C. B., his wife, to me personally known to be the identical persons whose names are affixed to the above deed as grantors, and acknowledged the execution of the same to be their voluntary act and deed. Witness my hand and notarial (or other seal of office) seal, the day and year above written. [seal.] (Signature and title.)® Code (1888), §3128; Bailey v. Landinghara, 53 Iowa, 722; jSTewman V. Samuels, 17 Id. 528; Wiokersbam v. Keeves, 1 Id. 413; Reynolds v. Kingsbury, 15 Id. 238; DussHume v. Barnett, 5 Id. 195; Abrams v. Erwin, 9 Id. 87; Stephens v. "Williams, 46 Id. 540; Wilson v. Traer, 20 Id. 233; "Willard v. Cramer, 39 Id. 22; Greenw6od v. Jenswold, 69 Iowa, 53; s. c. 28 K. W. Repr. 433; Colby v. McOmber, 71 Iowa, 469; s. o. 32 jST. W. Eepr. 459; Greene v. Scranage, 19 Iowa, 461; s. O. 87 Am. Dec. 447. A conveyance is good between the parties without acknowl- edgment. Morse v. Beale, 68 Iowa, 463; S. C. 27 N. W. Eepr. 461. 2 Code (1888), §3129. The certificate of a justice of the peace, made without the state, must be accompanied by a certificate under seal of the 507 Ch. 11. J STATUTORY PROVISIONS. [§3i''. proper authority certifying the official character of the justice, his authority to talte such acltnowledgment, and the genuineness of his sig- nature. Jd. Jones V. Berkshire, 15 Iowa, 248; s. C S3 Am. Dec. 412. As to indexing the record, see cases cited in note 4, section 343, and also j:13tna Life Ins. Co. v. Bishop, 69 Iowa, 645; s. C. 29 iST. W. Kepr. 761; Scales v. Wilsey, 11 Iowa, 261; Bostwick v. Powers, 12 .Iowa, 456; Hibbard v. Zenor, 39 N. W. Repr. 714. 3 Where the certificate of acknowledgment is made by a foreign offi- cer, it must be authenticated by one of the above named officers of the United States, certifying that full faith and credit is due to the certifi- cate of such foreign officer. §3130. * Code (1SS8), §3106. Estates of dower and curtesy abolished. Code (1888) §3644. The widow's interest in real properly of her deceased husband, designated by the statute as a distributive share, is a mater- ially different estate from that derived by descent. Rausch v. Moore, 48 Iowa, 611; see Mock v. Watson, 41 Iowa, 241; Daugherty v. Daugh- erty, 69 Iowa, 677; Lucas v. Sawyer, 17 Iowa, 517; Moore v. Kent, 37 Iowa. 20; Parker v. Small, 55 Iowa, 732; Foley v. Kane, 53 Iowa, 64; Cunningham v. Wilde, 56 Iowa, 369. As to her acknowledgment under former laws: Greene v. Scranage, supra; Morris v. Sargent, 18 Iowa, 199; Jones v. Crossthwaite, 17 Id. 393; O'Ferral v. Simplot, 4 Id. 381; Grapengather v. Fejevary, 9 Id. 163; s. c. 74 Am. Dec. 336. * Code (IfS-i), §3131. The certificate must state the title of the court or officer. Fogg v. Holcombe, 64 Iowa, 621 ; s. c. 21 N". W. Repr. Ill; Code, §3131. The certificate (5f a notary should state of what county he is notary. Greenwood v. Jenswold, 69 Iowa, 533; s. c. 28 X. W. Repr. 433; and his name should be engraved on his seal. Gage v. Dubuque, 11 Iowa, 310. For decisions upon the statutes validating acknowledgments and records, see Goodykootz v. Olsen, 54 Iowa, 174; Brinton v. Seevers, 12 Id. 389; East v. Pugh, 71 Id. 162; s. c. 32 N. W. Repr. 309; Buck- ley v. Earley, 72 Iowa, 550; s. c. 33 if. W. Repr. 769; Arginsinger v. Cline, 69 Iowa, 435. §345. Proof by Witnesses. AVhere the grantor dies before making acknowledornent, or his attendance cannot be procured, or he refuses to ac- knowledge the instrument, proof for record may be made by any competent person other than the grantee. The cer- tificate of proof should be as follows: State of County of Be it remembered, that on this day of A. D. 18. . , before me (title of the court or officer), person- ally appeared C. D., who being by me first duly sworn, did depose and say that A. B., the grantor in forewoino- deed 508 Ob. Ch. 11. J IOWA. [§346. was personally known to him, and that the said A. B. was dead (or state the reason for his non-attendance), which is satisfactory proof to me that his attendance could not be procured to make this acknowledgment (or state that having appeared he refused to acknowledge the instrument), and the said C. D. further deposes and said that he saw A. B., the grantor therein, subscribe and deliver said deed (or that the said A. B., grantor therein, acknowledged to him that he had subscribed, sealed and executed the said deed) for the uses and purposes therein mentioned, which is satisfac- tory proof to me that said instrument was executed by said A. B., whose name is thereunto subscribed as a party. In witness whereof, I have hereunto set my hand and af- fixed my notarial (or other official seal of office) seal, the day and year aforesaid. [seal.] (Signature and title.)! 1 Code (1888), §§3133, 3136. Omission of "appeared" from the cer- tificate, held to invalidate it. Scharfenburg v. Bishop, 35 Iowa, 60. Where an acknowledgment is by an attorney in fact, the certificate should show that the person signing the instrument was personally known to be the identical person signing the same as attorney in fact for the grantor, and that he acknowledged the instrument to be the act and deed of the grantor, by him as his attorney thereunto appointed, voluntarily done and executed. Code (1888), §§3135, 3136. §346. Chattel Mortgages. Where the mortgagor retains actual possession of the property, a chattel mortgage is not valid against existing creditors or subsequent purchasers, without notice, unless the mortgage, duly acknowledged, like conveyances of real estate, is filed for record in the county where the holder of the property resides. The recorder keeps an entry book as' in case of real estate, and the mortgage is notice from the time the entries are made therein. ^ Con- ditional sales are required to be recorded the same as chat- tel mortgages.^ In suits affecting real estate situated in another county, a notice of Us pendens must be filed with the district clerk of such other county, in order that the 509 Ch. 11.] STATUTORY PROVISIONS. [§346. suit may be constructive notice to subsequent vendees and incumbrancers.^ A claim of mechanic's lien must be filed with the clerk of the district court by a principal contractor within ninety days and sub-contractor within thirty days after the labor has been done or material furnished; but if filed after such times, is good except as against parties whose rights have accrued in good faith without notice after the thirty or ninety days, and before any claim for the lien was filed. Where lien is claimed on a railway the sub- contractor shall have sixty days from the last day of the month inf which such labor was done or material furnished, within which to file his claim therefor.* i Code (188S), §§3090-3097; Sowden v. Craig, 26Iowa.l56; s. C. 96 Am. Dec. 125; Wells v. Wilcox, 68 Iowa, 70S; S. c. 28 N. W. Kepr. 29; War- ner V. Wilson, 73 Iowa, 719; s. c. 5 Am. St. Rep. 710; 36 N. W. Eepr. 719; Everett v. Brown, 64 Iowa, 420; s. C. 20 N. W. Repr. 743; Cummins v. Tovey, 39 Iowa, 195; Hayes v. Wilcox, 61 Iowa, 732; S. C. 17N.W. Repr.llO; Piano Co. v. Griffith. 39 ST. W. Repr. 214; Hibbard V. Zenor, 39 N. W. Repr. 714; Trulock v. Donahoe, 40 Iowa, 696; Rhutasel v. Stephens, 68 Id. 627; s. c. 27 N". W. Repr. 786; Muir v. Blake, 57 Iowa, 662; s. C. 11 K. W. Repr. 621; Wheeler v. Becker, 68 Iowa, 723; Rowley v. Bartholomew, 37 Id. 374. See as to personal property: Mowbray v. Cady, '40 Iowa, 604; Horsley v. Hairsine, 41 iST. W. Repr. 579; Bailey v. Harris, 8 Iowa, 331; s. c. 74 Am. Dec. 312. 2 Code (1888), §3093; Moline Plow Co. v. Braden, 71 Iowa, 141; s. c. 32 Js^. W. Repr. 247;. Thorpe v. Fowler, 57 Iowa, 541 ; s. C. 11 N. W. Repr. 3; Moore v. Johnson, 72 Iowa, 34; s. 0. 34 X. W. Repr. 825; Moseley v. Shattuck, 43 Iowa, 540. 3 Code (ISSS), §3835; Dawson v. Meade, 71 Iowa, 295; S. C. 37 N. W. Repr. 274. * Code (1888), §3314; Neilson v. Iowa East. Ey. Co., 44 Iowa, 71. 510 KANSAS. §347. Effect of Record. Every instrument of writing that conveys any real estate, or whereby any real estate may be affected, may be re- corded; and no such instrument shall be valid, except be- tween the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record. ^ The instrument is notice from the time it is deposited and filed for record. Powers of attorney, and revocations thereof, are to be recorded as deeds, and the power must be recorded prior to or at the same time with a deed made by virtue of it.^ 1 Comp. Stats. 1S85, §§1103-1105; Dassler's Comp. Stats. Kan. (1881), §§1042, 1044; Stone v. French, 37 Kan. 145; s. C. 1 Am. St. Kep. 237; 14 Pac. Repr. 530; Setter v. Alney, 15 Kan. 157; Johnston v. Williams, 37 Kan. 179; s. c. 1 Am. St. Kep. 243; 14 Pac. Repr. 537; Ogden v. Walters, 12 Kan. 282. Actual notice supplies the want of registry. School Dist. V. Taylor, 19 Kan. 287; Beaubrien v. Henderson, 38 Kan. 471; s. c. 15 Pac. Repr. 184. 2 Comp. Stats., §§1106, 1107; Dassler's Comp. Stats., §§1041-1043. See generally, as to effect of record, Utley v. Fee, 33 Kan. 683; School District V. Taylor, 19 Kan. 112; Johnson v. Clark, 18, Kan. 157; Jones V. Lapham, 15 Kan. 140; Swartz v. Stees, 2 Kan. 436; Dresser v. Wood, 15 Kan. 344; Holden v. Garrett, 23 Kan. 98. §348. Mortgages of Realty. A deed absolute in form, but intended to be defeasible, is not affected as against any person otlier than the grantee, or his heirs, or devisees, or persons having actual notice, unless the instrument of defeasance is recorded after due acknowledgment. A recorded mortgage maybe discharged by an entry on the margin of the record by the mortgagee, and also by a release duly acknowledged and recorded, with reference to it in the record of the mortgage; and if by an attorney in fact, the power of attorney must be of record. Failure of the mortgagee, on demand, to have satisfaction entered of record, renders him liable in damages in the sum of one hundred dollars.^ ' Comp. St.ats. 1885, eh. 68, §§2-8 ; Mitchell v. Aten, 37 Kan. 33 ; s. c. 1 Am. St. Rep. 231; 14 Pac. Repr. 530. Filing is notice. Lee v. Birming- ham, 40 Kan. 312; s. C. 1 Pac. Repr. 73. Satisfaction; O'Neill v. Douth- itt, 20 Pac. Repr. 493 ; Lewis v. Kirlt , 28 Kan. 497. 511 Ch. ll.j STATUTORY PROVISIOXS. [§349 §349. Acknowledg-ment is now required by statute. It may be made within the state^ before any judge, or clerk of a court having a seal, justice, notary public, county clerk, register of deeds, mayor, or clerk of an incorporated city. Without the state and within the United States, before a court of record, or clerk, or officer, holding the seal thereof, commissioner of deeds for Kansas, or justice of the peace. In foreigQ countries, before any of the officers last named, or a United States consul. If taken before a jus- tice of the peace, there must be a certificate attached by the clerk of a court of record as to his official character.^ Conveyances may be executed or acknowledged or proved in any other state, territory or country in conformity with the laws thereof, or with the laws of Kansas.^ No separate examination or certificate is necessary in the case of married women. The form of a joint certificate may be as follows: State of > County OF 5 Be it remembered that on this .day of , A. D. 18. ., before me (name and title of officer), duly com- missioned in and for the county and state aforesaid, came John Smith, and Sarah, his wife, who are personally known to me to be the same persons who executed the foregoing instrument of writing as grantors, and they duly acknowl- edged the execution of the same. In witness whereof, I have hereunto set my hand and affixed my seal, the day and year last above written. [sEAL.j (Signature and title.)* Where the acknowledgment is by an attorney in fact, the certificate should state that he is known to the officer as such, and that he executed the instrument as attorney in fact, for himself and for his principal. Any corporation may convey lands by deeds, sealed by the common seal of the corporation, and signed by the president, vice-president, 512 Ch. 11.] KANSAS. [§350. or presiding member or trustee of said corporation; and such deed, when acknowledged by such officer to be the act of the corporation, or proved in the same manner pro- vided for other conveyances of lands, may be recorded in like manner and with the same effect as other deeds.^ 1 Under the earlier statutes acknowledgment was held not essential to the record. Brown v. Simpson, 4 Kan. 76; but it is now. Heil v. Redden, 38 Kan. 2.55; S. C. 16 Pao. Repr. 742. 2 Comp. Stats. (1885), §§1094, 1095. A notary public must use his official seal. Meskinem v. Day, 35 Kan. 40; s. c. 10 Pac. Repr. 14; and must attach the date of the expiration of his commission under penalty of $100. Comp. Stats. (1885), §§3571, 3572. ' Comp. Stats. (1885), ch. 22, §25. Stinson v. Greer, 22 Pac. Repr. 586. * Comp. Stats. (1885), §1095. The certificate must show the title of the officer, and that the grantor is personally known to him. Id. The certificate of acknowledgment is not conclusive. §1113. 6 Laws 1887, ch. 98, §1. Corporation deeds heretofore executed by the vice-president and duly sealed are declared as effectual as if signed by the president. Id. §350. Proof by Witnesses. Witnesses are not required to a conveyance. If the grantor die before acknowledgment, or his attendance can- not be procured, or he refuses to make the acknowledgment, proof for record may be made by any competent testi- mony. The certificate of proof by a subscribing witness may be as follows : State of County of Be it remembered that on this day of , A. D. 18. ., before me (name and title of officer), duly com- missioned in and for the county and state aforesaid, person- ally appeared John Doe and John Smith, by whose oaths, duly administered by me, it is proved to my satisfaction that Richard Roe, the grantor named in and who executed the foregoing deed of conveyance, has died since executing the same (or that from sonie other cause his attendance could not be procured in order to make the acknowledgment, (33— Eeg. of Title.) 513 Ch. 11.] STATUTORY PROVISIONS. [§351. or that having appeared he refuses to acknowledge the deeds, as the case may be), and the said instrument of con- veyance was so executed by the said Richard Roe, whose name is thereunto subscribed by himself as a party, in the presence of the said John Doe and John Smith. Witness my hand and official seal, this day and year first above written. [sBAL.j (Signature and title. )i Where all the subscribing witnesses are dead, or cannot be had to prove the instrument, proof of their handwriting may be made before any court or officer authorized to take acknowledgment.* 1 Comp. Stats. (1885), §§1096, 1097. 2 Comp. Stats. (1885), §1102. §351. Chattel Mortgages, unless accompanied and fol- lowed by an actual and continued change of possession of the property, are absolutely void as against the creditors of the mortgagor, and subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, be forthwith filed for record in the county where the prop- erty is at the time, or if the mortgagor is a resident of the state, then in the county of which he is at the time a resi- dent. The instrument filed is kept in the office for inspec- tion. Such record is not effectual for a longer period than one year, unless within thirty days prior to the expiratioQ of the year the raprtgagee files an affidavit of renewal, ex- hibiting his interest in the property, or the amount of his debt secured by the mortgage at that time. Such affidavit is effectual though not filed within the thirty days, except as against a purchase or incumberence of the property in good faith made before its actual filing. ^ 1 Comp. Laws (1885), §§3499-3505. Actual notice of an unfiled chattel mortgage, though effectual against subsequent purchasers and mort- gagees, is of no effect whatever as against creditors of the mortgao-or. Orane v. Hull, 26 Kan. 622. Record of chattel mortgages, Daytcm v. 514 Ch. ll.J KANSAS. [§351. People's Sav. Bank, 23 Kan. 421; Golden v. Cockrill, 1 Kan. 25: s. c. 81 Am. Dec. 510. Description: Corbin v. Kinoaid, 33 Kan. 649; s. C. 7 Pac. Kepr. 145; Crisfield v. Neal, 36 Kan. 278; s. C. 13 Pac. Kepr. 272; Shaffer v. Pickrell, 22 Kan. 619; Brown v. Holmes, 13 Kan. 482; Schmidt v. Bender, 39 Kan. 437; s. c. 18 Pac. Repr. 491; Clark v. Voor- his, 36 Kan. 144; s. C. 12 Pac. Repr. 529. Filing "forthwith," McVay v. English, 30 Kan. 368; s. C. 1 Pac. Repr. 795. When a chattel mortgage is fully paid it is the duty, under same penalty, of the mortgagee, to enter satisfaction of record thereof as near as may be as provided in real property mortgages. Comp. Stats. (1885) , 616 KENTUCKY. §352. Effect and Time of Record. No deed conveying any title to or interest in land for a longer time than five years, nor any agreement in consider- ation of marriage, shall be good against a purchaser for a valuable consideration, not having had notice thereof, or any creditor, unless the same be acknowledged by the party who shall execute the same, or be proved and lodged for record in the proper office as prescribed by law; and the provisions of this section shall apply with like protection to the creditor of, or innocent purchase'r from, the heir or devisees of the grantor.^ The record is to be made in the county clerk's office of the county in which the property, or the greater part of it, is situated. Deeds made by residents of Kentucky are to be lodged for record within sixty days from their date. If made by persons residing out of Ken- tucky and in the United States, within four months; if out of the United States, within twelve months.^ The record of a deed made by virtue of a power of attorney is ineffect- ual, unless the power is also recorded.^ 1 Gen. Stats. Ky. (1887), p. 313, §8; Gen. Stats. Ky. (1873), p. 256, §8; Gen. Stats. (1883), p. 256, §8; Swigert v. Bank of Ky., 17 B. Mon! 268; Brown v. Terrell, 83 Ky. 418; Nelson v. Boyoe, 7 J. J. Marsh. 401; Halstead v. Bk. of Ky., 4 J. J. Marsh. 554; Portwood v. Outton, 3 B. Mon. 347; Sparr v. Trimble, 1 Marsh. 279. Actual notice supplies the want of registry. Honore v. Bakewell 6 B. Mon. 67; s. c. 43 Am. Dec. 147; Forepangh v. Appold,17B. Mon. 625, 631; Underwood v. Ogden, 6 B. Mon. 606; Liggett v. Hale, 2 A. k! Marsh. 129; Johnston v. Gwathmey, 4 Litt. 317; s. C. 14 Am. Dec. 135- Kussell V. Potree, 10 B. Mon. 184 ; MuUer v. Engein, 12 Bush, 441 • Har- din V. Harrington, 11 Bush. 367. 2 Gen. Stats. (1887), p. 315, §14; Gen. Stats., p. 257, §§14, 22; Hog v. Perry, 1 Litt. 172; Winlock v. Hardy, 4 Litt. 472; Applegate v. Gracyi 9 Dan. 215. A conveyance tiled after the statutory time is notice from the time of filing. Bennett v. Titherington, 6 Bush, 192. Bond for title not recordable. Corn v. Sims, 3 Met. 401. 3 Gen. Stats. (1S87), p. 315, §13; Gen. Stats., p. 257, §13; Graves v. Ward, 2 Duval, 301; Hancock v. Byrne, 2 Dana, 40; Herndon v. Bas- com. S Dana, 113. Effect of record, Ashbrook v. Koberts, 82 Ky. 298- Haidin v. Harrington, 11 Bush, 367; Blight v. Banks, 6 Mon. 192; s. c! 17 Am. Deo. 136; Morton v. Kobards, 4 Dan. 260; Johnston v. Gwath- mey, 4 Litt. 317; s. C. 14 Am. Dec. 135. Possession is notice. Singleton v. School Dist., 10 S.W! Repr. 793- Hopkins v. Garrard, 7 B. Mon. 312; Fox v. Hiuton, 4 Bibb. 559. ' 516 Ch. 11. J KENTUCKT. [§§353, 354. §353. Mortgages, Real and Chattel. Deeds of trust and mortgages of real or personal estate are not valid against a purchaser for value without notice thereof, or against creditors, until duly acknowledged or proved and lodged for record.' Mortgages may be released on the margin of the record. There may also be a common law release. All bona fide deeds of trust or mortcafes shall take effect in the order that the same shall be legally acknowledged or proved and lodged for record.^ 1 Gen. Stats. (1887), p. 313, §10; Gen. Stats., p. 256, §10; Lyons v. Fields, 17 B. Mon. 543; Morris v. Murray, 82 Ky. 36; Gen. Stats., ch. 43 §24. As to chattel mortg.ages, see Vaughn v. Bell, 9 B. Mon. 447; Miller V. Henshon, 4 Dan. 325; Singleton v. Young, 2 Dan. 559; Loth v. Carty, 85 Ky. 591; s. C. 4 S. W. Eepr. 314. As to creditors and purchasers under the recording acts, see Morton V. Robards, 4 Dana, 2.58; Righter v. Forester, 11 Bush, 478; Edwards v. Drinker, 9 Dana, 69; Halstead v. Bank of Ky., 4 J. J. Marsh. 554. 2 Gen. Stats. (1887), p. 314, §§11, 12; Gen. Stats., p. 256, §§11, 12. / §354. Acknowledgment. Deeds of persons other than married women may be ac- knowledged or proved within thestate before th« clerk of a county court. Without the state and within the United States, before the clerk of a court, his deputy, or a notary public, mayor of a city, secretary of state, commissioner of deeds, or a judge certifying under the seal of his court. In foreign countries, before any foreign minister, consul or secretary of legation of the United States, or the secre- tary of foreign affairs, or the judge of a superior court of such foreign country.' Corporations execute instruments in the same manner as individuals, and the acknowledgment and certificate are in the same form, except that the corporation must sign and acknowledge by its principal officer, and with seal. • 1 Gen. Stats. (1887), p. ol6, §§15-17; Gen. Stats., ch. 24, §§15-17; Gordon v. Leach, 81 Ky. 229 ; Ralston v. Moore, 83 Ky. 571 ; Jefferson V. HeJl, 81 Ky. 513; Talbot v. Hoosier, 12 B. Mon. 408; Harpending v. 617 Ch. 11. J STATUTORY PROVISIONS. [§355. Bush, 14 Bush, 380; Diokerson v. Talbot, 14 B. Mon. 60; Miller v. Hen- shaw, 4 Dana, 325; Alexander v. DeKemel, 81 Ky.345; Breekenrldge v. Todd, 3 Mon. 52; s. C. 16 Am. Dec. 83; Brown v. Swift, 1 S. W. Repr. 474; Harris V. Price, 14 B. Mon. 333; Simpson v. Levering, 3 Bush, 458; S. C. 96 Am. Dec. 252; Hedges v. Ward, 15 B. Mon. 106. A recorded deed, executed out of the state, the acknowledgment of which before a notary public is certified under his official ^eal, takes priority over a deed executed out of the state, which was recorded be- fore the former deed, but the acknowledgment of which before a notary public is not certified under his seal, as required by Gen. St. Ky., ch. 2-t, §16, which provides that "deeds executed out of the state may be ad- mitted to record, when the same shall be certified under his seal of office by a notary public," etc. Herd v. Cist (Ky.), 12 S. W. Kepr. 466. §355. Acfcnowledgment of Married AVomen. A married woman has not power to act as a. feme sole un- less her husband abandons her, leaves the state without making provision for her support, or is confined in the pen- itentiary for a term of more than one year, or unless she is authorized by court. The deed of a married woman may be acknowledged before any of the oiScers above named, but when acknowledged within the state before a clerk of the county court, although privy examination, explanation of the deed, etc., must be made in such case, it need not be stated in such clerk's certificate of the acknowledgment. The form of joint certificate where the deed is made and acknowledged without the state, is as follows : State of ) County of 5 I, A. B. (here give title), do certify that this instrument of writing from C. D. and wife, E. F.- (or from E. F., wife of C. D.), was this day produced to me by the parties and which was acknowledged by the said C. D. to be his act and deed; and the contents and effect of the instrument being explained to the said E. F. by me, separately and apart from her husband, she thereupon declared that she did freely and voluntarily execute and deliver the same to be her act and deed and consented that the same might be recorded. 518 Ch. 11.] KENTUCKY. [§356. Given under my hand and seal of office, this day of , 18.., [seal.] (Signature and title. )^ 1 Gen. Stats. (1887), p. 318, §21; Gen. Stats., ch. 24, §§16, 21; Mil- ler V. Sbackelford, 3 Dan. 299; Dowell v. Mitchell, 82 Ky. 47; Prew- ett V. Graves, 5 J. J. Marsh. 119; Gregory v. Ford, 5 B. Mon. 471; Steele V. Lewis, 1 Mon. 49; McCormaok v. Woods, 14 Bush, 78 Nanty v. Bailey, 3 Dana, 111; Blackburn v. Pennington, 8 B. Mon. 219 Hughes V. Coleman, 10 Bush, 248; Kay v. Jones, 5 J. J. Marsh. 135 Gill V. Fountleroy, 8 B. Mon. 177; Martin v. Davidson, 3 Bush, 674; Phillips v. Green, 3 A. K. Marsh. 7; S. C. 13 Am. Deo. 124; Moor- man V. Board, 11 B. Mon. 185; Cox v. Gill, 83 Ky. 669; Dowell v. Mit- chell, 82 Ky. 47 ; Gordon v. Leach, 81 Ky. 229. By statute a non-resident married woman may convey lands in Ken- tucky by power of attorney; but if she is a resident, the statute does not apply. Bank of Louisville v. Gray, 84 Ky. 565; s. C. 2 S. VV. Repr. 168; Gen. Stats., ch. 24, §36. §356. Proof by "Witnesses. Proof for record may be made by two subscribing wit- nesses, or by one who shall also prove the attestation of the other, or by proof of two witnesses that the subscribing witnesses are both dead, or out of this state, or one so ab- sent and the other dead, and like proof of the signature of one witness and of the grantor. The form of certificate is as follows, or on the certificate of clerk of county court that the same has been ackuowledged or proved before him. State of County or I, A. B. (here give his title), do certify that this day came before me Gr. H. and I. J., the subscribing witnesses to the foregoing deed (or other instrument) by C. D. to L. M. , which witnesses are personally known to me to be the same whose names are so written as witnesses, and being solemnly sworn by me in due manner, did severally declare on their oaths that the said C. D. did acknowledge this instrument to be his act and deed, that the signature thereto was made by him, that they know him to be the same per- 519 Ch. 11.] STATUTORY PROVISIONS. [§356. son who is named as the grantor therein, and that they did subscribe said deed as witnesses by his request. Given under my hand and seal of office, this day of ,18... [seal.] (Signature and title. )i 1 Gen. stats. (1887), p. 316, §15; Gen. Stats., ch. 24, §15; Pyle v. Maulding, 7 J. J. Marsh. 204. As to recorded deed in evidence, see Hood V. Mathers, 2 Marsh. 558. Officers' fees, Bussing v. Grain, 8 B. Mon. 593. A mechanic's lien must be filed within sixty days. Gen. Stats., ch. 70; Fouche v. Grigsby, 12 Bush, 75; Gere v. Gushing, 6 Bush, 304, 620 LOUISIANA. §357. Effect of Record. No notarial act concerning immovable property shall have any effect against third persons, until the same shall have been deposited in the proper recording oflSce of the parish where such immovable property is situated. All sales, contracts and judgments affecting immovable property, which shall not be so recorded, shall be utterly null and void, except between the parties thereto. The recording may be made at any time, but shall only affect third per- sons from the time of the recording. The recording shall have effect from the time when the act is deposited in the proper office and indorsed by the proper officer.^ 1 Rev. Civ. Code La. (1870), §§2264, 2266; Hollingsworth v. Wilson, 32 La. Ann. 1012; Berwin v. Weiss. 28 La. Ann. 263; Mcllvaine v. Le- gare, 34 La. Ann. 923; Roberts v. Bauer, 35 La. Ann. 453; Ripoll v. Mo- rena, 12 Rob. 500; Tessier v. Hall, 7 Mart. 411; Taylor v. Lauer, 26 La. Ana. 307; Gaines v. New Orleans, 6 Wall. 642. Actual notice of an un- recorded conveyance is ineffectual for any purpose. Harang v. Platts- mier, 21 La. Ann. 436; Derbes v. Romero, 32 Id. 927; Payne v. Pavey, 29 7(2. 116; Adams V. Daunis, 29 7d. 315; Dyke v. Dyer, 14 7d. 701. Pos- session not notice. Poydras v. Laurans, 6 Id. 770; see New Orleans v. Labrouche, 31 Id. 839. The office of parish recorder no longer exists. Out of the parish of Orleans the officer is known as the clerk of the district court; in the parish of Orleans the officers ape known as recorder of mortgages, and register of conveyances. §358. Mortgages of Realty. All mortgages, whether conventional, legal or judicial, are required to be recorded in the book of mortgages in the parish where the property lies, and until thus publicly in- scribed, they do not bind the property of the debtor, nor affect third parties.^ If the instrument be an authentic act, a copy thereof shall be recorded ; if an act under pri- vate signature, it must be proved up and recorded in the manner required for acts under private signature.^ Neither the contracting parties, nor their heirs, nor those who were witnesses to the act by which the mortgage was stipulated, can take advantage of the non-inscription of the mortgage, 521 Ch. 11. ] STATUTORY PKOVISIOMS. [§358. where it has been inscribed at any time within ten years' reckoning from the day of its date.^ The record ceases of effect after the expiration of ten years, even against the contracting parties, if the inscriptions have not been renewed before the expiration of this time, in the manner in which they were first made.* The ten years are reckoned as be- tween the parties from the date of the mortgage, and as to third parties from the date of its record. ^ A cancellation of the mortgage, or erasure of record, is made-on presenta- tion to the recorder of the acts, receipts and judgments, which operate as a release of the mortgage, with the cer- tificate of the notary public before whom the act was exe- cuted, stating by such act a release was granted and the erasure allowed. This certificate is filed in the office of the recorder of mortgages where such cancelling is asked, or if the erasure has been given by an act under private signa- ture, it should be duly acknowledged or proved for record.^ 1 Civ. Code, §§3342-3370; Testart v. Belo, 31 La. Ann. 295; Chaffee v. Walker, 39 La. Ann. o.i; s. c. 1 South. Kepr. 200. Where the act is de- posited in the proper ollloe and indorsed by the proper offiCBr, its trans- scription into a wrong book will not prejudice the rights of the grantee therein. Lewis v. Klotz, 39 La. Ann. 2.59; s. c. 1 South. Eepr. 539. See, however, Colomer v. Jlorgan, 13 La. Ann. 202; McCann v. Bradley, 38 Id. 482. - A record of all the material parts of a mortgage is sufficient, al- though it be not a copy of the entire instrument. Estate of Prudhomme, 35 La. Ann. 984. 3 Civ. Code, §33G9; Adams v. Daunis, 29 La. Ann. 315; Sorrells v. Stamper, 27 Id. U30. Unless the mortgage is inscribed within tea years from its date, it ceases ot effect even between the parties. Tilden v. Morri.son, 33 La. Anu. 1087. A purchase money mortgage, unless it be seasonably recorded, will not have preference over a judgment already of record against the mortgagor. Such a mortgage made in October, 1875, is not season.ably recorded in September, 1876. Givanovitch v. Hebrew Congregation, 36 La. Ann. 272,274. See Citizens' Bk. v. Terry, 32 7c?. 310. Where an act of sale reserving the special mortgage and vendor's privilege was passed and completed on Saturday, at the hour of the le- gal closing of the office of the recorder of mortgages, and said act was filed by said recorder for inscription, .and the inscription was made on the Monday morning following without delay; held that this inscrip- tion preserved the vendor's privilege as against prior recorded mortga- ges, as it was seasonably made. Way v. Levy (La.), South. Rep. 661. 522 Cl- 11-] LOUISIANA. [§359.- * Tilden v. Morrison, supra. See further as to re-inscription, ante, §173; Succession of Gale, 30 La. Ann. 351. 5 Batey V. VVooIfollc, 20 La. Ann. 3S5; Walker v. Cucullu, 15 Id. 689; ante, §175; Horton v. Cutler, 28 La. Ann. 331. 8 Civ. Code, §§3371-3385. An unauthorized cancellation by the re- corder cannot impair the rights of the holder of the mortgage. Me- chanic's Building Ass'u v. Ferguson, 29 La. Ann. 548; Giiesnard v. Soulie, 8 La. Ann. .58; De St. Eomes v. Blanc, 20 La. Ann. 424; Horton V. Cutler, 28 La. Ann. 331. The record of a deed will not operate as notice of a mortgage or of any mortgage rights thereunder. McOann v. Bradley, 38 La. Ann. 482; CordevioUe v. Dawson, 26 Id. 534; Fishery. Tunnard, 25 Id. 179. Nor will the record of a deed of trust have such effect. Thibodeaux v. Anderson, 34 Id. 797. See Hutching v. Fields, 10 La. Ann. 237; VVateon v. James, 15 La. Ann. 386. §359. Acknowledgment. An authentic or notarial act is made or passed with assist- ing witnesses before an officer, and it includes together exe- cution, acknowledgment and delivery. ^ Acts under private signature are acknowledged or proved for record.^ Such acknowledgment or proof may be made within the state before a notary public, parish recorder, or his deputy. Without the state, before a commissioner for Louisiana, or acknowledgment may be made in conformity with the laws of the state where the act is passed. In such latter case the official character of the person before whom the acknowledgment is made must be properly verified, as by the certificate of a Louisiana commissioner. When not exe- cuted or acknowledsed before a commissioner of Louisiana, they may be authenticated, if public records, in the manner prescribed by Eevised Statutes of the United States, §906 ; otherwise, in the manner prescribed for affidavits. If the grantor be unknown, the officer taking the acknowledgment should in some way be satisfied of his identity. No par- ticular form of words is necessary for the certificate. Where a married woman joins with her husband in any act affecting his real estate, a privy examination and ex- planation of the act is requisite. The form of joint certifi- cate of acknowledgment of an act under private signature is as follows : 623 ch. 11.] statutory peovisions. [§359. State of County of Be it remembered that on this day came before me (here insert the name and title of officer), within and for the state and county aforesaid, duly commissioned and acting as such, John Smith, and Mary Smith, his wife, to me known personally, and signed the foregoing instrument in my presence and that of the two witnesses, whose names are thereunto subscribed as such, and the said Smith ac- knowledged that he had executed the foregoing instrument for the consideration and purpose therein mentioned and set forth ; and I examined the said Mary Smith separate and apart from, and out of the presence of her husband, touch- ing her freedom of action in the premises, fully explained to her the nature of said act and the effect it would have upon her rights, and I informed her, before receiving her signature thereto, that she had upon the property of her husband, by the laws of Louisiana, a legal mortgage on the immovables, and a privilege upon the movables of her hus- band, to-wit: First. For the restitution of her dowry, as well as for, the replacing of her dotal eifects which she brought at the time of her marriage, and which were alien- ated by her husband, and this from the time of the celebra- tion of the marriage. Second. For the restitution or the replacing of the paraphernal effects which she acquired during her marriage, either by succession or donation, from the day when the succession devolved to her or such dona- tion began to have its effect ; and that by signing said act she would forever lose her rights upon the property therein (mortgaged or sold), but the said Mary Smith persisted in declaring -that her action herein was free and voluntary, that she fully understood the nature of her rights, and the effect of her renunciation, but that she nevertheless per- sisted in her intention to renounce said rights upon said property. 524 CIl. 11. j LOUISIANA. [§360. Witness my hand and seal of office, this day of , A. D. 18.. Witnesses : A. B. C. D. (Signature and title^. ' An authentic act of sale, whether passed before an officer within the state, or before a Louisiana commissioner without the state, requires the presence of two competent witnesses. Leibe v. Hebersmith, 39 La. ^nn. 1050; s. C. 3 South. Kepr. 283. 2 The record will impart constructive notice without acknowledg- ment, which is necessary only where the recorded instrument, or a copy thereof, is offered in evidence without proof of execution. Civ. Code, §2270; Stallcup v. Pyron, 33 La. Ann. 1249; Allen v. Whetstone, 35 Id. SoO; Fairthorn v. Davis, 2S Id. 725. §360. Chattel Mortgages and Privileges. Chattel mortgages, except of a ship or vessel, are un- known to the laws of Louisiana. ^ All movables, whether corporeal or incorporeal, may be pledged or pawned, and, as against third persons, the pawn or pledge must be an act before a notary, or under private signature. All pledges of movable property must be accompanied by actual deliv- ery, either to the pledgee or some third party agreed upon. Privileges or liens are usually not good against third per- sons without record.^ When created by virtue of a con- tract, they are required to be recorded within seven days from the time the contract was entered into, if the prop- erty to be affected is situated in the parish where the con- tract is made ; if in another parish, the recordation may be made within fifteen days. As against third persons without lien, the privilege is good from the time of its record.* ^ Delop V. Windsor, 26 La. Ann. 185. 2 As an artificer's privilege. Van Loan v. Heftner, 30 La. Ann. 1213. ' Succession of Clay, 34 La. Ann. 1131. The registry of a promissory note reciting that "the above amount Is the balance of the payment due on three boilers furnished," suffioieutly gives notice of a vendor's priv- ilege retained. Molllvane v.'Legare, 34 La. Ann. 923. A mortgage of real estate includes crops grown thereon. Williamson v. Kichardson. 31 La. Ann. 6S5; and also work animals, implements and machinery used thereon. Weil v. Lapeyre, 38 La. Ann. 303. 525 MAINE. §361. Effect of Record. Conveyances of real property and leases for more than seven years are not effectual against any person except the grantor, his heirs and devisees, and persons having actual notice, unless recorded in the registry of deeds for the county or district where the lands lie. A deed absolute in form cannot be defeated by a defeasance, as against any other person than the maker, his heirs, or devisees, unless such defeasance is recorded in the same office as the deed.^ Mortgages may be discharged by deed of release, or by an entry of satisfaction in the margin of the record.^ 1 Kev. Stats. (1883), ch. 73, §8; Rev. Stats. (1871), §8; Roberts v. Bourne, 23 Me. 165; s. c. 39 Am. Deo. 614; Jones v. McN^arrin, 68 Me. 334; s. C. 28 Am. Rep. 6J; Stedman v. Perkins, 42 Me. 130; Hill v. Mc- Nicol, 76 Me. 314; Head v. Goodwin, 37 Me. 181 ; Sawyer v. Pennell, 19 Me. 167; Bailey v. Myriok, .50 Me. 171 ; Humphreys v. Xewman, 51 Me. 140; White v. Putnam, 76 Me. 571; Libbey v. Staples, 39 Me. 166. Actual notice supplies want of registry. Rich v. Roberts, 48 Me. 548; Butler v. Stevens, 26 Me. 484; Mathews v. Riggs, 80 Me. 107; S. C. 13 Atl. Repr. 48; Hull v. Koble, 40 Me. 459, 480; Knapp v. Bailey, 79 Me. 195; s. 0. 9 Atl. Repr. 122. A recorded deed takes precedence of attachments and seizures on executions not previously recorded. 2 Rev. Stats., ch. 73, §9. An instrument transcribed Into a wrong book of record does not impart notice. Shaw v. Wilshire, 65 Me. 485. The record cannot be varied by parol. Hatch v. Haskins, 17 Me. 391. Possession as notice. Worcester v. Lord, 56 Me. 265; S. C. 96 Am. Dec. 456; Clark v. Bosworth, 51 Me. 528; Webster v. Maddox, 6 Me. 236; Wyman v. Brown, 50 Me. 160; Beal v. Gordon, 56 Me. 482; Knapp V. Bailey, supra. 3 Rev. Stats., ch. 90, §§2o, 26; Conner v. "Whltmore, 52 Me. 185; Cobb V. Dyer, 69 Me. 494. §362. Acknowledgment may be made within the state by any one grantor before a justice of the peace, or notary public. Without the state, before a justice of the peace, notary public, magistrate, or commissioner of deeds for Maine. In foreign countries, before a notary public, consul, or minister of the United States. ^ Officers having: seals of office are required to use them. No separate acknovs^ledg- 526 Ch. 11. J MAINE, [§363. ment or certificate is required as to the wife.^ Tlie form of ackaowledgment may be as follows: State of County OF On this day of a. d. 18. . , personally appeared before me (name and title of officer), the above named John Smith, and Mary Smith, his wife, and acknowl- edged the foregoing instrument to be their free act and deed. Witness my hand and official seal the day and year afore- said. [seal.] (Signature and title). If acknowledged by an agent of a corporation, it should be: "the free act and deed of the said (corporation by name)." 1 Eev. Stats., ch. 73, §17; Brown v. Lunt, 37 Me. 423. « Allen V. Hooper, 50 Me. 371. §363. Proof by Witnesses. Subscribing witnesses are not required, but one witness is usual; and where the grantor refuses to acknowledge, proof for record may be made by such witness before a justice of the peace, on notice to the grantor, a copy of the deed in the registry operating in the meantime as a rec- ord for forty days. When the grantor dies, or departs from the state, without acknowledgment, the proof may be made before a court of record within the state, by the sub- scribing witness, or, in case of his death, by other testimony. The certificate of proof, before a justice of the peace within the state, may be as follows: State of Maine, ) County of J On the day of , 18. ., at the request of John Doe, the grantee in the foregoing deed, I caused Richard Roe, the grantor, a resident of this county, to be legally summoned to appear before me, on the day (34— Keg. of Title.) 527 Ch. 11. J STATUTORY PEOVISIONS. [§364, of 18. . , to hear the testimony, John Smith and William Jones, subscribing witnesses to said deed, therein stating the date of said deed, the names of the parties thereto, and of the subscribing witnesses; and on said day of , 18. ., said witnesses appeared and testified, and said grantor was (or was not) present, and I was satisfied by the testimony of said witnesses that they saw said deed duly executed by Richard Roe, the grantor. (Signature and title). §364. Chattel Mortgages are not valid against any other person than the parties thereto, unless possession of the property be taken and retained by the mortgagee, or the mortgage be recorded by the clerk of the city, town or plantation, in which the mortgagor resides, or, in case of a non-resident mortgagor, where the property is when the mortgage is made; but if part of the mortgagors reside in the state, then in the cities, towns or plantations in which such mortgagors reside. A mort- gage made by a corporation shall be recorded in the town where it has its established place of business. ^ Registry of couditional sales is required where the amount remaining unpaid is as much as thirty dollars.^ ' Rev. Stats. (18S3), ch. 91, §1; Acts 1880, ch. 193; Griffith v. Doug- lass, 73 Me. 532; s. c. 40 Am. Kep. 359; Fairfield v. Nye, 60 Me. 372; Shaw V. Wilshire, 65 Me. 485; Morrill v. Sanford, 49 Me. 566. Actual notice of an unfiled chattel mortgage is unavailing. Sheldon v. Con- ner, 48 Me. 584; Rich v. Roberts, 48 Me. 548. ^ Rev. Stats., ch. Ill, §5; Nicols v. Ruggles, 76 Me. 25; Field v. Gel- lerson, 80 Me. 270; s. C. 14 Atl. Repr. 70; Boynton v. Libby, 62 Me. 253; Rogers v. AVhitehouse, 71 Me. 222; Stone v. Perry, GO Me. 48; Drew v. Smith, 59 Me. 393; Rawson v. Teel, 47 Me. 506. The stipulation by which the sale is made conditional must be embodied in the note, lo- cally known as a "Holmes note," that is given for the unpaid price. Field v. G-ellerson, and cases supra. A levy of execution on real estate by appraisal and deeds (where levy is by sale) must be recorded within three months after levy, to be good against intervening title. Rev. Stats., ch. 76, §16. 528 MARYLAND. §365. Effect and Time of Record. No deed of real property nor of any estate above seven years, nor any declaration or limitation of use, shall be valid for the purpose of passing title, unless acknowl- edged and recorded as by the statute directed. ^ Deeds are to be recorded in the counties in which the land lies, within six months, and, thereupon, take effect as between the parties from their date. In the case of two or more deeds or mortgages of the same land, the one first recorded is preferred, if made bona fide, and for good and valuable consideration. A deed may be recorded after six months, and such record is effectual as against the grantor, his heirs, or executors, and against all purchasers with notice, and against creditors, who shall become so after the recording of the deed. So, where possession is taken, the record of the deed after the six months is effectual against all persons from the time of taking possession, except that as against all creditors, who have become so before the re- cording of the deed, and without notice of its existence, it has effect only as a contract to convey.^ A power of at- torney is to be recorded with a deed made by virtue of it. Bonds for title and revocations of powers are to be recorded. An agent or attorney in fact must describe himself in and sign the deed as such.^ > Rev. Code Md. (1878), title 24, §16; Tyler v. Aberg, 65 Md. 18; Eosenthal v. Ruffin, 60 Md. 324; Leinman's Estate, 32 Md. 325; U. S. Ins. Co. V. Schriver, 8 Md. Ch. 381 ; Hawkins v. Burress, 1 Har. & J. 513; Word V. Hollins, 14 Md. 158; Ellinger v. Crowl, 17 Md. 361; Repp V. Repp. 12 Gill & J. 341; Carson v. Phelps, 40 Md. 73; Clabaugh v. Byerly,7 Gill, 364; Brydenv. Campbell, 40 Md. 331. Actual notice of an unrecorded deed is effectual. Price v. McDon- ald, 1 Md. 403; S. C. 54 Am. Dec. 657; Frostburg v. Hamill, 65 Md. 313; Alderson v. Ames, 6 Md. 52; Carr v. Hobbs, 11 Md. Bq. 161; The Gen. Life Ins. Co. v. The U. S. Life Ins. Co., 10 Md. 517; s. C. 49 Am. Dec. 174; Hudson v. Warner, 2 Har. & G. 415. Possession is notice. Thompson v. Banlis, 2 Md. Ch. 430; Gittings V. Hall, 2 H. & Johns. 112; s. C. 2 Am. Deo. 502; Baynard v. If orris, 5 Gill, 483; s. 0. 46 Am. Dec. 47. 2 Rev. Code, pp. 385, 386, §§19-24. Where the land lies in more than one county, or in the city of Baltimore and a county, or counties, the deed must be recorded in each of them. 629 Ch. 11. J STATUTORY PROVISIONS. [§366. " Kev. Code, p. 3S7, §§26-30. Judgments, records and deeds in another state, or foreign country, may be made evidence in Maryland by an exemplltication of the record under the hand of the keeper of the same, and seal of the court or office where such document may be of record, or a transcript authenticated as required by the Eev. Stats, of U. S., will be sufficient. Kev. Code, Md., art. 70. §366. Mortgages of Realty. Mortgages are to be executed, acknowledged and re- corded the same as deeds.* An affidavit as to the truth and bona fides of the consideration is required, and without this, the record of the mortgage does not impart construc- tive notice.^ Assignments of mortgages may be recorded with the effect of notice. This does not, however, affect equitable assignments, made by virtue of a transfer of the mortgage debt.^ Where a deed, absolute in its terms, is intended and shown by any other instrument or writing to be a security or mortgage, the person for whose benefit the deed is made can have no advantage from recording it, un- less the instrument of defeasance or condition be also re- corded with it.* Mortgages may be released by an entry made on the margin of the record by the mortgagee, or his executor, administrator, or assignee; or by a release on the back of the original which is dfelivered to the clerk, and such release noted by him at the foot of the record.^ 1 Kev. Code, title 24, §34; Brooks v. Lester, 36 Md. 65; Ahern v. White, 39 Md. 409. A mortgagee not bona fid" gains nothing by prior- ity of record. Willard v. Ramsburg, 22 Md. 206. Actual notice of a prior mortgage, to a judgment creditor, before entry of judgment, is effectual. Pfeaff v. Jones,"50 Md. 263. 2 Tit. 24, §§35, 36; Relff v. Eshleman, 52 Md. 5S2; Milholland v. Tif- fany, 64 Md. 455; s. C. 2 Cent. Kepr. 632. 3 Byles V. Tome, 39 Md. 461. For effect, as to prior creditors, of the record of a mortgage after sis months from its date, under decree of a court of equity, see Stauhope v. Dodge, 52 Md. 483. * Kev. Code, art. 06. §42; Owens v. Miller, 29 Md. 144. A deed fraudulent and void as against antecedent creditors is valid. If recorded as agarinst subsequent creditors. Kane v. Roberts, 40 Md. 590; "Wil- liams V. Burbiinks, 11 Jld. 250. «Kev. Code, pp. 3S9, 3!i0, §§37, 44. In the latter case, the clerk re- tams the original mortgage in the ofBce, and does not permit it to be again withdrawn. 530 Ch. 11. J MARYLAND. [§367. §367. Aclmowledgment may be made within the state before a justice of the peace/ jadge of the Orphans' Court, or of the Circuit Court of any county, or judge of the Superior Court, Court of Common Pleas, or Circuit of Baltimore city. Without the state and within the United States, before a notary public, judge of any court of the United States, judge of any court of any state or territory having a seal, or a commissioner of deeds for Maryland. In foreign countries, before any minister, consul-general, consul, deputy consul, vice-consul, consular agent, or con- sular officer of the United States, any notary public, or com- missioner of deeds for Maryland. No separate examination of a married woman is now re- quired.^ A certificate of acknowledgment taken out of the state before a court, should have the seal of such court affixed. The statute prescribes forms of certificate of ac^ knowledgment, but provides that any form containing the substance of those prescribed shall be sufficient.^ The cer- tificate of joint acknowledgment is as follows: State of County of Ihereby certify that on this day of ,18. . , bef.ire me (here insert name and title of official), appeared , and , his wife, and did each severally acknowledge the aforegoing deed (or other instru- ment) to be their act. In testimony whereof, I have hereunto subscribed my name and affixed my official sekl the day and year above written. [seal. J (Signature and title.)* Proof can be made of the identity of the grantor, if dis- puted, by evidence taken under commission, and in some cases by affidavits of parties ; but the certificate of the of- ficer is sufficient without his certifying to having personal 531 Ch. 11. J STATUTORY PKOVISIONS. [§§368, 369. knowledge of the grantor. A deed by a corporation should contain a power authorizing some one named therein to acknowledge it before the proper officer as the act of the corporation. ' Where the land lies outside of the county of a justice of the peace, his official character must be certified to by the clerk of the circuit or superior court under seal. §§8, 9; Grove v. Todd, 41 Md. 633; S. c. 20 Am. Kep. 76; Gittings v. Hall, 1 Har. & J. 14; s. C. 2 Am. Dec. 502; Johns V. Eeardon, 3 Md. Ch. 57; Sitler v. McComas, 66 Md. 135; s. 0. 6 Atl. Kepr. 527. ^ Morris v. Harris, 9 Gill, 19; formerly required, Gent. Bank v. Cope- land, 18 Md. 305; s. C. 81 Am. Dec. 597; Hollingsworth v. McDonald, 2 Har. & J. 230; s. O. 3 Am. Dec. 540. 3 Kev. Code, p. 396, §§78-81. ■• Kev. Code, p. 3S4, §§8-14; 29 Md. 211. The certificate must show the oflBcial character of the officer. §3; Dyson v. Simmons, 48 Md. 207; Sitler v. McComas, 66 Md. 135; s. c. 6 Atl. Kepr. 527. Under former statutes this was not requisite. Van N;ess v. U. S. Bank, 13 Pet. 17. §368. Proof by Witnesses. The statute requires one witness to a deed ; but where the deed is acknowledged such witness is not necessary.^ Proof for record may be made by subscribing witnesses in cer- tain cases. ^ Eev. Code, p. 383, §3; Brydon v. Campbell, 40 Md. 331; Carrico v Farmer's Bank, 33 Md. 235; Frostburg v. Brace, 51 Md. 508. 2 Eev. Code, art. 70, §37; Laws 1882, ch. 77. Deeds are required to have a seal, but waxen or wafer seals are not required ; a scroll made by a pen or printed is sufficient. §369. Chattel Mortg-ages not accompanied by delivery of the property are invalid, unless the mortgage, duly ac- knowledged, be recorded in the county or city where the seller resides, within twenty days from the date thereof. They are good as between the parties thereto without rec- ord, but take effect as to third persons only from the time of recording; and in case of more than one mortgage, the one first recorded has preference. An affidavit that the con- sideration in the mortgage is true and bona fide as therein 532 Ch. 11. j MARYLAND. [§369. set forth, is necessary and must be recorded with the mort- gage.i 1 Kev. Code, p. 391, §§45-54; Stanhope v. Dodge, 52 Md. 483; Ing v. Brown, 3 Md. Ch. 521; Nelson v. Hagerstown Bank, 27 Md. 51. The necessity for the affidavit is restricted to purely technical mortgages. A deed absolute on its face by mistalce, if intended to be a mortgage, will be declared a valid mortgage by a court of equity, though it be without the affidavit. Charles v. Claggett, 3 Md. 82. A bona fide purchaser from a conditional vendee of personal property in possession of it, will be protected. Lincoln v. Quinn, 68 Md. 299; s. C. 6 Am. St. Kep. 44G; 11 Atl. Kepr. 848; Hall v. Hinks, 21 Md. 406. Leases. All rents reserved by lease, or sub-lease, for a longer period than 15 years, returnable at any time after the expiration of ten years, at option of tenant, after a notice of six months to landlord, for a sum of money equal to the capitalization of rent, at a rate not to ex- ceed six per centum. Act 1884, ch. 485; Act 1888, ch. 395. Whenever lessee, under lease with covenant for perpetual renewal, or any person claiming under such lessee, has retained uninterrupted possession for 12 months after expiration of lease or sub-lease, execu- tion of new lease or sub-lease conclusively presumed. Act 1886, ch. 154. The words in a deed "die without issue" shall be construed to mean failure of issue at time of death. Act 1886, ch. 236, 633 MASSACHUSETTS. §370. Effect of Record. Deeds are not valid as against persons other than the grantor, his lieirs and devisees, and persons having actual notice, unless they are recorded in the registry of deeds for the county in which the land is situated. A power of at- torney to convey real estate must be acknowledged and re- corded with the deed.i Deeds are required to be sealed, and a scroll will not answer for a seal. ' Pub. Stats. Mass. (1882), ch. 120, p. 732; Hill v. Ahern, 133 Mass. 14S; Ahrend v. Odiorne, 118 Mass. 261; White v. Foster, 102 Mass. 275; Tracy v. Jenks, 15 Picli. 4G5; Norman v. Towne, 130 Mass. 52; The State V. Bradish, 14 Mass. 291; Trull v. Bigelow, 16 Pick. 418; Jordan V. Farnsworth, 15 Gray, 517; Morse v. Curtis, 140 Mass. 112; s. C. 54 Am. Kep. 456; 2 N. E. Kepr. 929; Gillespie v. Rogers, 146 Mass. 610; S. e. 16 N. E. Kepr. 711. Actual notice, in order to supply the want of registry, must be equiv- alent to knowledge. Lamb v. Pierce, 113 Mass. 72; Connihan v. Thomp- son, 111 Id. 270; Suit v. Woodhall, 113 Mass. 391; Natl. Security Bk. v. Cushman, 121 Mass. 490; McMechan v. Grilling, 3 Pick. 149; s. C. 15 Am. Dec. 198. A recorded deed may be given in evidenofe without proof of its ex- ecution. Samuels v.' Borrowscale, 104 Mass. 207;. As to how far pos- session is notice, Mara v. Pierce, 9 Gray, 306; Pomeroy v. Stevens, 11 Mete. 244; Lamb v. Pierce, supra. As to creditors and purchasers. Priest V. Kice, 1 Pick. 164; Clark v. Flint, 22 Pick. 231; s. C. 33 Am. Dec. 733 ; Glidden v. Hunt, 24 Pick. 221 ; Jewett v. Tucker, 139 Mass. 566. As to effect of record, George v. Kent, 7 Allen, 16; Lamb v. Pierce, 113 Mass. 72; Earle v. Fisk, 103 Mass. 491; Flynt v. Arnold, 2 Met. 619; Briggs v. Kice, 130 Mass. 50; Marshall v. Pish, 6 Mass. 24; S. 0. 4 Am. Dec. 76. §371. Mortgages of Realty are to be recorded as other conveyances of realty, and with like effect. When a deed absolute in terms is defeasible by any other written insjtru- ment, the record of the deed is not affected or defeated as against third persons without actual notice of the defeas- ance, unless the defeasance be also duly recorded.' Mort- gages may be discharged by an entry on the margin on the record by the mortgagee, his executor, administrator or as- signee ; or by deed of release duly acknowledged and re- corded.^ If the holder of the mortgage, after its full sat- isfaction, neglects for seven days after request to enter sat- 684 Ch. 11. J MASSACHUSETTS. [§372. isfaction, or duly execute a release, he .is liable for all dam- ages occasioned thereby. 1 PliId. Stats., oh. 120, §23; Dole v. Thurlow, 12 Met. 157, 163; Stet- son V. Gulliver, 2 Gush. 494, 497. 2 Pub. Stats., ch. 120, §§24-26; Blunt v. Norris, 123 Mass. 55; Childs V. Stoddard, 130 Mass. 610; Bruce v. Bonney, 12 Gray, 107; Clark v. Watson, 141 Mass. 24S; s. C. 5 N. E. Eepr. 298. The marginal entry in the registry of deeds may be as follows: "I, John Smith, hereby acknowledge to have received full payment and satisfaction of the debt secured by the within deed of mortgage here recorded, and do hereby cancel and discharge the same. Witness my hand." (Signature). §372. Acknowledgment may be made by the grantors, or one of them, within the state, before a justice of the peace or notary public. Without the state and within the United States, before a justice of the peace, magistrate, or commissioner of deeds for Massachusetts. In foreign countries, before a minister or any consular officer of the United States. When made before any officer other than a commissioner of deeds for Massachusetts, or a minister of the United States, there must be appended to the certificate a certificate of the ofiicer's appointment and authority, made by the secretary of state, or clerk of a court of record. 1 No separate examination is necessary as to the wife;^ nor is it necessary that the certificate state that she relinquishes her dower. The form of joint certifi- cate may be as follows : State of > County of > On this day of , A. D. 18. ., before me (name and title of officer), personally appeared the above named , and , his wife, and severally acknowl- edged the foregoing instrument to be their free act and deed. (Signature and title.) 1 Pub. Stats., ch. 120, §§5, 6; ch. 18, §11; Blood v. Blood, 23 Pick. 80. Acknowledgment by one of several grantors is sufficient. Palmer v. Palmer, 75 Mass. (9 Gray), 56; Shaw v. Poor, 6 Pick. 86; s. c. 17 Am. Dec. 347; ante, §58. 2 White V. Graves, 107 Mass. 325 ; s. c. 9 Am. Eep. 38. 535 Ch. 11.] STATUTOKY PROVISIONS. [§§373, 374. §373. Proof by Witnesses. A subscribing witness to a deed is not essential, but it is customary to have at least one witness. If the grantor dies , or departs from the state without acknowledging the deed, or refuses to acknowledge it, it may be proved by the sub- scribing witness. If subscribing witnesses are dead or out of the state, their handwriting, or that of the grantor, may be proved by competent evidence.^ 1 Pub. Stats., ch. 120, §§5, 9. §374. Chattel Mortgages not accompanied by delivery of the property are not valid as against third parties, unless recorded within fifteen days after their dates in the records of the city or town where the mortgagor resides or princi- pally transacts his business, or if he is a non-resident, in the city or town where the property is. Where the record must be made in two places, it may be made in the second within ten days after record in the first. Chattel mortgages need not be acknowledged. Absolute bills of sale intended to operate as mortgages must be recorded as such.^ 1 Pub. Stats., ch. 192; Orcutt v. Moore, 134 Mass. 48; Shaughnessy v. Lewis, 130 Mass. 355. Actual notice is of no effect. Bingham v. Jor- dan, 1 Allen, 373; s. c. 79 Am. Dec. 750; Howard v. Chase, 104 Mass. 251; Eaton v. Tuson, 145 Mass. 218; S. C. 13 N. E. Repr. 4SS. As to chattel mortgages, see Harding v. Coburn, 12 Met. 333 ; Hen- shaw V. Sumner, 23 Pick. 4t6; Haines v. Crane, 2 Pick. 610; Forbes v. Parker, 16 Pick. 462; Hunt v. Bay State Co., 97 Mass. 279; and filing within 15 days. Drew v. Streeter, 137 Mass. 460; Orcutt v. Moore, 134 Mass. 48; Shaughnessy v. Lewis, supra; Jordan v. Farnsworth, 15 Gray, 517. As to personal property. Moody v. Blake, 117 Mass. 23; Dane v. Baldwin, 8 Mass. 521 ; and as to conditional sales thereof, Coggell v. Hartford, 3 Gray, 545; Burbank v. Crocker, 7 Gray, 158; Zuchman v. Koberts, 109 Mass. 53; s. c. 12 Am. Kep. 6B3; Hirschorn v. Conway, 98 Mass. 149; Chase v. Ingall, 122 Mass. 381; Blanchard v. Cooke, 144 Mass. 207; s. c. 11 N. E. Repr. 83; Benner v. Puffer, 114 Mass. 376; Fairbanks v. Phelps, 22 Pick. 535. 636 MICHIGAN. 1375. Effect of Record. Every coaveyance of real property which is not recorded as provided by statute is void as against subsequent pur- chasers in good faith for a valuable consideration, whose conveyances are first duly recorded. ^ A revocation of a re- corded power of attorney must also be recorded.^ A re- corded deed is prima facie evidence without proof of ex- ecution.^ The register of deeds is required to keep an en- try book, divided into six columns, in which conveyances are to be noted when filed for record.* 1 Howell's Annotated Stats., 1S82, §5683; Allen v. Cadwell, 55 Mich. 8; S. C. 20 N. W.Repr. 692; Barnard v. Campau, 29 Mich. 162; Columbia Bk. V. Jacobs, 10 Mich. 495; Loomis v. Bush, 36 Mich. 40; James v. Brown, U Mich. 25; Cooper v. Bigly, 13 Mich. 463; Smith v. VPilliams, 44 Mich. 420; Ginn v. Tobey, 62 Mich. 252; s. 0. 4 Am. St. Kep. 848; 28 N. W. Kepr. 818. Actual notice supplies want of registry. Blanchard v. Tyler, 12 Mich. 339; s. C. 86 Am. Dec. 57; Oliver v. Sanborn, 60 Mich. 346; s. C. 27 N. W. Eepr. 527; Stevens v. Hulin, 53 Mich. 93; S. c. 18 N. W. Kepr. 569; Converse v. Blnmrich, 14 Mich. 109; s. C. 90 Am. Deo. 290; The Great Western Ky. Co. v. Wheeler, 20 Mich. 419; Waldo v. Rich- mond, 40 Mich. 380'; Int. Wrecking Co. v. McMoran, 41 N. W. Repr. 510; Mich. Cent. Ry. Co. v. Dolan, 32 Mich. 510; Hall v. Edwards, 43 Mich. 473; Shotwell v. Harrison, 30 Mich. 179. 2 Howell's Stats., vol. 2, §5686. A conveyance invalid because of de- fective execution, acknowledgment or record, may in equity, and as far as its rules will permit, be enforced as a contract to convey. §5727; Ed- wards v. McKernan, 55 Mich. 520. 3 Howell's Stats., §5685; Pub. Acts 1889, p. 380. See further as to effect of record, Warner v. Whittaker, 6 Mich. 133; s. c. 52 Am. Dec. 65; Edwards v. McKernan, .55 Mich. 520; s. C. 22 N. W. Kepr. 20; Stevens v. Castel, 63 Mich. lU. Possession is notice. Allen v. Cadwell, supra; Bloomer v. Hender- son, 8 Mich. 395, 405; s. C. 77 Am. Dec. 453; Doyle v. Stevens, 4 Mich. 87; even by grantor, after deed from him. Stevens v. Castel, supra; Bennett v. Robinson, 27 Mich. 26 ; Weisberger v. Wisuer, 55 Mich. 246 ; 8. C. 21 N. W. Repr. 331. " Howell's Stats., §5674; Pub. Acts 1889, p. 337. The grantee's name appeared in the entry book, but not in the transcribed record of the deed, and the record was held to impart notice. Sinclair v. Slawson, 44 Mich. 123; s. C. 38 Am. Rep. 235. LU pendens: Hall v. Gustin, 54 Mich. 624; s. c. 20 N. W. Repr. 616. See as to creditors and purchasers, Blanchard v. Tyler, 12 Mich. 339; S. C. 86 Am. Dee. 57; Palmer v. Williams, 24 Mich. 328; Kohl v. Lynn, 34 Mich. 360; Warner v. Whitaker, supra; Harrold v. Owen, 31 N. W. Repr. 420; Flint v. Auditor-Gen., 41 Mich. 635. Quit-claim purchaser. How. Stats., §5653; DeVeaux v. Fosbender, 57 Mich. 579. \ 537 Ch. 11.] STATUTORY PROVISIONS. [§§376, 377. §37G. Mortg County of J Personally appeared before me (name and title of officer) the within E. F., one of the subscribing witnesses to the foregoing deed (or other instrument), who being first duly sworn deposeth and saith that he saw the within named A. B., whose name is subscribed thereto, sign, seal and deliver the same to the said C. D. (or that he heard the said A. B. acknowledse that he signed, sealed and delivered the same to the said C. D.); that he, deponent, subscribed his name as a witness thereto in the presence of the said A. B., and that he saw the other subscribing witness (or witnesses) Gr. H. (and J. K. , etc.) sign the same in the presence of the said A. B. ; and that the witnesses signed in the presence of each other on the day and year therein named. Given under my hand (and official seal) this the day of , 18. .. [seal.] (Name and title). • Error or ominission in dating the certificate will not vitiate it. Caruthers v. McLaran, 56 Miss. 371. 2 Code, §1218. §389. Chattel Mortgages may be executed, acknowl- edged and recorded as other mortgages or trust deeds. If, the property be removed to a different county, the mort- gage must be recorded within such other county within twelve months after such removal, or it will be void as to purchasers for value without notice, and as to all creditors. Where property already mortgaged is removed into the 550 Ch. 11. J MISSISSIPPI. [§389. state, such mortgage is binding only from the time that it is properly recorded within the state. Growing crops and crops to be grown within fifteen months may be mortgaged. ^ 1 Code, §§1210, 1216, 1359; Humphries v. Baiiee, 10 Sm. & I\r. 2S2; Elsen V. B.-irrier, 56 Miss. 31)4; Barker v. Stacy. 25 Miss. 471; Kelly v. Reid, 57 Miss. 89. As to conditional sales, see Paioe v. Halls, 64 Miss. 175; s. c. 1 South. Repr. 56; and as to personal properly, Ketchum v. Brenhain, 53 Miss. 596; Archibald v. Citizens' Bank, 64 Miss 523; s. C. 1 South. Bepr. 739. The creditors protected by the recording acts must be lien creditors. Pickett V. Banks, 11 Sm. & M. 446; Lissa v. Posev, ij4 Miss. 352; Perry V. Priebastch, 61 Miss. 402; Chaffe v. Halpiu, 62 Miss. 1; Dixon v. Cook, 47 Miss. 226; and see Schumpert v. DilLard, 55Miss. 348; Duke v. Clark, 58 Miss. 475; Anderson v. Miller, 15 Miss. 586; Kelly v. Mills, 41 Miss. 267; Dixon V. Doe, ] Sm.ctM. 70; Soule v. Shotwell, 52 Mis*. 236; Hen- derson V. Downing, 24 Miss. 106; Harper v. Bibbs, 34 Miss. 472; s. C. 69 Am. Dec. 397; Boon v. Barnes, 23 Miss. 136. Notice, in order to affect a creditor, must be given before his lien at- taches. Loughridge v. Bowland, 52 Miss. 546; Pi(-kett v. Banks, supra; it comes too late after that time. Taylor v. Doe, 13 How. 287, and cases supra. A creditor purchasing under bis own execution is protected by the registry statute, although, aside from the statute, an execution pur- chaser is not regarded as a 6o)ia j^de purchaser for value. Xugent v. Priebastch, 61 Miss. 402, overruling Simmons v. Xorth, 3 Sm. & Ji. 67. See further as to the effect of record: Claiborne v. Holmes, 51 Miss. 146; Meyers v. Buchanan. 46 Miss. 397; Hiller v. Jones (Miss.), 6 South. Bepr. 465 ; Griffin v. Sheffield, 3S Miss. 359 ; s. C. 77 Am. Dec. 646 ; Chap- man V. Sims, 53 Miss. 163. As to actual notice supplying registry : Harrington v. Allen, 48 Miss. 492; Buck v. Paine, 50 Miss. 648, 655; Wailes v. Cooper, 24 Miss. 20S. Possession as notice: Strickland v. Kirk. 51 Miss. 7!I5; Taylor v. Lowenstein, 50 Miss. 278; Ford v. "Wilson. 35 Miss. 504; Taylor v. Mose- ley. 57 Miss. 544; Perkins v. Swank, 43 Miss. 349. Record of mortgages: Excelsior Co. v. Keyser, 62 Miss. 155; Weath- ersby v. Weathersby, 40 Miss. 462; s. C. 90 Am. Dec. 344. Acknowledgments: Smith v. Williams, 38 Miss. 48; Morse v. Clay- ton, 21 Miss. 373; Klein v. Richardson, 64 Miss. 41; Harmon v. Magee, 57 Miss. 410; Wasson v. Conner, 54 Miss. 352; of married women, Jones V. Gurtie, 61 Miss. 423 ;, Upshaw v. Gibson, 53 Miss. 341 ; Sykes v. Sykes, 49 Miss. 190; Stone v. Montgomery, 35 Miss. S3; Kenneday v. Price, 57 Miss. 771; Willis v. Gattman, 53 Miss. 721; Bernard v. Elder, 50 Miss. -336. 551 MISSOUKI. §390. Effect of Record. Conveyances of realty duly certified and recorded shall from the time of filing the same with the recorder for rec- ord impart notice to all persons of the contents thereof, and all subsequent purchasers and mortgagees shall be deemed in law and equity to purchase with notice thereof. No such instrument in writing shall be valid except between the parties thereto and such as have actual notice thereof until the same shall be deposited with the recorder for record.^ The registry statute embraces revocations of powers of at- torney, but not wills. 2 1 Kev. Stats., 1SS9, §§2419, 2420; Rev. Stats., 1879, §§692, 693; Hager- man V. Shirley, 8S Mo. 424; s. C. 5 S. W. Repr. 368; Aubuchan v. Ben- der, 44 JIo. 560; Youagblood v. Vastine, 46 Mo. 239; Draude v. Rohrer, 3 Mo. App. 249. Actual notice supplies registry. Maybee v. Moore, 90 Mo. 340 ; s. 0. 2 S. W. Repr. 471; Specie v. Riggin, 40 Mo. 405; Maupin v. Emmons, 47 Mo. 304; Roberts v. Mosely, 64 Mo. 407; Reilly v. Haanibal, 94 Mo. 600; S. C. 7 S. W. Repr. 407. Possession is notice. Vaughan v. Tracy, 22 Mo. 415; s. c. 69 Am. Dee. 471; Shumate v. Reavis, 49 Mo. 333. Record of a quit-claim deed does not charge notice of defective title. Munson v. Ensor, 94 Mo. 504; s. C. 7 S. W. Bepr. lOS; Craig v. Zimmer- man, 87 Mo. 475; S. c. 56 Am. Rep. 466. 2 Rev. Stats., 1889, §§2426, 2432. Hagerman v. Sutton, 91 Mo. 519; s. C. 4 S. W. Repr. 73. See as to Us pendens, Mcllwrath v. HoUajjder, 73 Mo. 105; s. C. 39 Am. Rep. 484. As to rights of creditors. Sappington v. Oeschli, 49 Mo. 244; Draper V. Bryson, 26 Mo. lOS; s. c. 69 Am. Dec. 483; Davis v. Ownsby, 14 Mo. 170; s. 0. 55 Am. Dec. 105; Still well v. McDonald, 39 Mo. 282. As to purchasers and valuable consideration. Lionberger v. Baker, 8S Mo. 447; Aubuchan v. Bender, 44 Mo. 560; Young v. Kellar, 94 Mo. 581; S. C. 4 Am. St. Rep. 405; 7 S. W. Repr. 393. §391. Mortgages of Realty are executed and recorded as other conveyances of real estate and with like effect. They may be discharged by an entry of satisfaction on the margin of the record or by deed of release. Such entry or deed of release may be made by the mortgagee or cestui que trust, or by an assignee, and it is not necessary that th« trustee should join.^ Neglect for thirty days after request and tender of cost to make such entry or release renders 552 Ct. 11.] MISSOURI. [§392. the delinquent liable in damages to the extent of ten per cent, of the amount of the mortgage and any other actual damages.^ Any attorney in fact to whom the money due has been paid has power to execute the release.^ Executors or administrators must release if the money was paid to Ihe decedent in his life-lime, and he failed to execute a release, and the penalty for a failure by them is the same as in case of neglect by a mortgagee.* 1 Kev. Stats., ] 889, §7094. Turk v. Funk, 68 Mo. 18; s. C. 30 Am. Eep. 771; Lee v. Clark, 89 Mo. 553; s. C. 1 S. W. Eepr. 142; Boatman's Sav'. Bank v. Grewe, 84 Mo. 478; Logan v. Smith, 62 Mo. 455. 2 Rev. Stats., §7095. For measure of damages for refusal to release: Verges v. Giboney, 47 Mo. 171. s Eev. Stat.s., §7 096; Vall6 v. Americus Iron Co., 27 Mo. 455. ' Kev. Stats., §§70 98-7100. § 392. Acknowledgment or proof for record may be made within the state before a court having a seal, or some judge, justice or clerk thereof; notary public, or justice of the peace of the county where the real estate lies. Without the state and within the United States, before a commissioner of deeds for Missouri, notary public, court of record of the U nited States or of any state or territory having a seal, or clerk of any such court. In foreign countries, before any court of any state, king- dom or empire having a seal, or the mayor or chief officer of any city or town having an official seal, or before a min- ister or consular officer of the United States, or a notary public having a seal.^ The certificate of acknowledgment is not conclusive.^ Where made by a notary public of Missouri, it must give the date when his commission expires.^ The form of the ordinary certificate of acknowledgment is as follows: State of County of On this day of , 18. . , before me per- sonally appeared A. B.* (or A. B. and C. D.), to me 553 Ch. 11.] STATUTORY PROVISIONS. [§392. , known to be the person (or persons) described in and who executed the foregoing instrument, and acknowledged that he (or they) executed the same as his (or their) free act and deed. In witness whereof, etc. (Official signature and title). If the wife joins in the deed, add after the* "and M. B., his wife." There is no requirement that the wife should be separately examined. In the case of natural persons acting by attorney: State of County of '' On this day of , 18.., before me per- sonally appeared A. B., to me known to be the person who executed the foregoing instrument in behalf of C. D., and acknowledged that he executed the same as the free act and deed of said C. D. In witness whereof, etc. (Official signature and title).^ Certificate where identity is proven by two witnesses: State of. C-. z' SS. ;ouNTY of. On this day of , 18.., before me per- sonally appeared A. B., who is proven by the testimony on oath of E. F., residing at , and G. H., residing at , two good and credible witnesses, to be the per- son described in and who executed the foreeoino- instru- ment, and said A. B. did acknowledge that he executed the same as his free act and deed. In witness whereof, etc. (Official signature and title). Certificate where some of the parties are known and others proven: 654 Cli- ll.j . MISSOURI. [§392. State of f County of 3^^" On this day of , 18.., before me per- sonally appeared A. B. and C. D., said A. B. being to rae known to be one of the persons described in and who ex- ecuted the foregoing instrument, and said C. D., being proven before me by the testimony on oath of E. F., resid- ing at , and G. H. , residing at. . , to be the other person described in and who executed the foregoing instrument, and said A. B. and C. D. acknowledged that they executed the same as their free act and deed. In witness whereof, etc. (Official signature and title). In the case of corporations or joint stock associations: State of ) County of 5 ®^" On this day of , 18..., before me appeared A. B., to me personally known, who, being by me duly sworn (or affirmed) did say that he is the president (or other officer or agent of the corporation or association), of (describing the corporation or association), and that the seal affixed to said instrument is the corporate seal of said corporation (or association), and that said in- strument was signed and sealed in behalf of said corpor- ation (or association), by authority of its board of directors (or trustees), and said A. B. acknowledged said instru- ment to be the free act and deed of said corporation (or association). In witness whereof, etc. (Official signature and title). In the case of corporations or joint-stock associations having no corporate seal : State of ^ County of 5 On this day of 18. . ., before me ap- peared A. B., to me personally known, who, being by me 555 Ch. 11. J STATUTORY PROVISIONS. .[§§393, 394. duly sworn (or affirmed) did say that he is the president (or other officer or agent of the corporation or association), of (describing the corporation or association), and that said instrument was signed and sealed in behalf of said corpor- ation (or association), by authority of its board of directors (or trustees), and that said corporation (or association) has no corporate seal, and said A. B. acknowledged said instrument to be the free act and deed of said corporation (or association). In witness whereof, etc. (Official signature and title ).^ ■" Kev. Stats., §2403; Lincoln v. Thompson, 75 Mo. 613; Sidwell v. Burnef, 69 Mo. 144; Gilbraith v. Gallwan. 78 Mo. 452; Gibbons v. Gen- try, 20 Mo. 46S; Sloan v. Owens, 79 Mo. 206; Dail v. Moore, 51 Mo. 5S9; Bennett v. Shipley, 82 Mo. 448; Siemers v. Kleburg, 56 Mo. 196; Gate- wood V. Hart, .')8 Mo. 261; Steveas v. Hampton, 46 Mo. 404; Bishop v. Schneider, 46 Mo. 472; s. C. 2 Am. Rep. 533. 2 Rev. Stats., §2429. 3 Rev. Stats., §7110; Merchant's Bank v. Harrison, 39 Mo. 430. An acting notary, not commissioned, is an officer de facto. Hamilton v. Pitcher, 53 Mo. 334. < Sheriffs" deeds are not effectual without acknowledgment. Ryan V. Carr, 46 Mo. 483; Bishop v. Schneider, 46 Mo. 472; s. 0. 2 Am. Rep. 533; Adams v. Buchanan, 49 Mo. 64. « For acknowledgment on behalf of a corporation held sufficient un- der former law, see Eppricht v. Nickerson, 78 Mo. 483; and as to ac- knowledgment by an attorney in fact, see Laws, 1883, p. 20, §1. §393. Acknowledgment of Married Women. No privy examination of the wife is now required, either in conveyances of her separate property, or where she joins in a deed of the husband's lands in order to relinquish her dower. ^ 1 Rev. Stats., 1879, §680; Rev. Stats., 1889, §2408. For decisions un- der the former law (R. S. 1879), see Belo v. Mayes, 79 Mo. 67; Rust v. Goff, 94 Mo. 511; s. o. 7 S. W. Repr. 418; Webb v. Webb, 87 Mo. 510; Bagby v. Embersoh; 79 Mo. 139. §394. Proof by Witness. Proof for record may be made by a subscribing witness. If all the subscribing witnesses are dead, or cannot be had, then proof can be made by at least two credible witnesses 556 ■ ss. Ch. 11. J Missouiti. [§395. proving the handwriting of the grantor, and two or more credible witnesses proving the handwriting of at least one of the subscribing witnesses. The ceitificate of proof by a subscribing witness may be thus: State of County of I (name, title and place of officer), duly commissioned and qualiiied, do hereby certify that on this day of , A. D. 18 . . , came before me at the county afore- said, , who is personally known to me to be the same person whose name is subscribed to the foregoing in- strument of writing as a witness to the same (or proved to me, etc., etc., as above), and being by me first duly sworn, said that he was present and saw , who is named in said deed as a party thereto, and whose name is thereto subscribed, execute the same, and heard him ackngwledge the same to be his act and deed for the purposes therein mentioned, and that thereupon he, the said , sub- scribed his name to said instrument as a witness thereof. In witness whereof, I have hereunto set my hand and seal of office, the day and year aforesaid. [sEA.1.. j (Signature and title). 1 Kev. Stats., 1879, §§682-687; Rev. Stats., 1889, §§2409-2414; John- son V. Prewitt, 32 Mo. 553. §395. Chattel Mortgages without possession of the property delivered, are not valid against any other person than the mortgagor, unless duly acknowledged or proved and recorded in the county in which the mortgagor resides.! Actual notice of a chattel mortgage is unavailing. ^ The statute requires registry of conditional sales. ^ 1 Kev. Stats., 1879, §§2503, 2504; Kev. Stats., 18S9, §§5176, 5177; White V. Graves, 68 Mo. 218; McDaniel v. Harris, 27 Mo. App. 545. Possession is equivalent to record. Nicholson v. Golden, 27 Mo. App. 132; Weber v. Armstrong, 70 Mo. 217. Comity of states enforced. La- fayette V. Metcalfe, '29 Mo. App. 384. 2 Kawlins v. Bean, SO Mo. 614; Hughes v. Menifee, 29 Mo. App. 192. 3 Kev. Stats., 1879, §2507; Rev. Stats., 1889, §5180; Peet v. Spencer, 90 Mo. 384; S. C. 2 S. W. Kepr. 434; Coover v. Johnson, 86 Mo. 533. 557 MONTANA. §396. Effect of Record. Conveyances of real estate, and every instrument of writ- ing setting forth an agreement to convey any real estate, to operate as notice to third persons, shall be recorded in the office of the county recorder, and shall impart notice from the time of filing, and subsequent purchasers and mortgagees shall be deemed to purchase and take with no- tice. Every such conveyance hereafter made, which shall not be recorded, shall be deemed void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate, or any portion thereof, where his own conveyance shall be first duly recorded. ^ A power of at- torney containing power to convey any real estate shall be recorded, and the revocation of the same shall be depos- ited for record in the same office where the instrument con- taining the power is recorded.^ The statute provides for registration of a list' or schedule of the separate property of the wife with the register of deeds for the county wherein she resides.^ "Conveyance" embraces every instrument in writing by which any real estate, or interest therein, is created, alienated, mortgaged, or assigned, except wills, Jeases for a term not exceeding one year, and executory contracts for the sale or purchase of lands.* 1 Compiled Statutes (1888), ch. XX, §§258-260; Hackworth v. Damon, 1 Mont. 235. 2 Compiled Stats., ch. XX, §261. A purchaser by quit-claim not a bona fide purchaser. McAdow v. Black, 6 Mont. 601; s. C. 13 Pac. Repr. 377. 5 Comp. Stats., ch. Lxxxvi, §§1432-1434; Montana Co. v. Coulter. 19 Pac. Kepr. 216. * Comp. Stats., ch. xx, §270. §397. Mortg-ages, Real and Chattel. Mortgages of realty are i-ecorded the same as deeds, and with a like effect. They may be discharged by an entry in the margin of the record or by a certificate of release dulv acknowledged and recorded. Failure to make a proper dis- charge renders the party liable in the sum of one hundred 558 Ch. 11. J MONTANA. ' [§398. dollars and all actual damages.^ Chattel mortgages, with- out delivery of the property, except where the mortgage provides that the property may remain in the possession of the mortgagor, are not valid against the rights of third per- sons, unless duly acknowledged and recorded in the county in which the mortgagor resides ; if a non-resident, then in the county where the goods, chattels or personal property may be at the time of the execution of the mortgage. The record is good for one year and sixty days; renewals for one year. 2 Mechanics' liens must be filed with the county recorder of the county wherein the property is situated ; if by the original contractor within ninety days after date of last item; the account, if by a sub-contractor, within thirty days after date of last item. They have priority over mortgage.^ i Compiled Statutes (1888), ch. xx, §272-275. 2 Comp. Stats., ch. xcil, §§1538-1542; Marcum v. Coleman, 19 Pac. Eepr. 394; Butte v. SulUvaa, 7 Mout. 307; s. C. 16 Pac. Repr. 588; Baker V. Power, 7 Mont. 326; s. c. 16 Pac. Repr. 589. Possessiou is equivalent to record. Silver Bow v. Lowry, 6 Mout. 288; s. c. 12 Pac. Repr. 652. ^ Comp. Stats., ch. lxxxii, §§1371, 1376. See as to record of condi- tional sales, Heiubockle v. Zugbaum, 5 Mont. 341; s. 0. 51 Am. Rep. 59; 5 Pac. Repr. 897. §398. AcknovFledgment or proof may be made within the state before some judge or clerk of a court having a seal, notary public or justice of the peace. Without the state and within the United States, be- fore some judge or clerk of any court of the United States, or of any state or territory having a seal, or by a notary public, or justice of the peace or commissioner of deeds for Montana. If taken by a justice of the peace, his official character must be certified to under seal by some court or officer within his county. In foreign countries, before a notary public or United States consul.^ The certificate of a single acknowledgment may be as follows : 559 Ch. 11.] STATUTORY PROVISIONS. [§399. State of / County op 5 On this day of , A. d. 18. , , personally appeared before me (name and title of officer), in and for said county , personally known to me (or satisfac- torily proved to me by the oath of , a competent witness, for that purpose by me duly sworn), to be the per- son described in and who executed the foregoing instrument, and who acknowledged to me that he executed the same freely and voluntarily, and for the uses and purposes therein mentioned.^ [seal. ] (Signature and title. ) Where a conveyance is executed by a corporation, the certificate should state that the corporate officer executing it was personally known as such officer, and that the m- strument was executed freely, etc., as the act and deed of the corporation. 1 Compiled Stats. (1888), ch. xx, §§238, 239. 2 Comp. Stats., ch. xx, §§243, 244. §399. Acknowledgment by Married Women. The property of a married woman owned before marriage, and any acquired afterwards by gift, devise, descent, grant or otherwise, is her separate property, and is to be regis- tered as such. She may become a sole trader by making, acknowledging and recording with the county recorder of deeds a declaration of her intention to do so, setting forth the nature of the business she intends to transact. She may make contracts and conveyances of real estate, either in person or by attorney. ^ The wife must be privily exam- ined in the acknowledgment of conveyances executed by her. That part of the certificate relating to her separate acknowledgment may be as follows : "And who, after being by me first made acquainted with the contents of said instrument, acknowledged to me, on examination separate and apart from and without the hear- ing of her said husbahd, that she executed the same freely 560 Cll. 11.] MONTANA. [§400. and voluntarily, without fear and compulsion, or under in- fluence of her said husband, and that she does not wish to retract the execution of the same."^ 1 Comp. Stats. (18S8), ch. lxxxvi, §1432. 2 Comp. Stats., oh. xx, §257. §400. Proof by Witness. Proof of execution of any conveyance of real estate shall be by the testimony of a subscribing witness. When all subscribing witnesses are dead, or cannot be had, by ev- idence of the handwriting of the party and at least one sub- scribing witness.^ 1 Compiled Statutes (1S88), ch. xx, §246. (36— Keg. ol Title.) 561 • NEBRASKA. §401. Effect of Record. All deeds, mortgages and other instruments of writing which are required to be recorded shall take effect and be in force from and after the time of delivering the same to the clerk for record, and not before, as to all creditors and subsequent purchasers in good faith without notice; and they shall be adjudged void as to all such creditors and sub- sequent purchasers without notice whose deeds, mortgages and other instruments shall be first recorded. ^ The statute requires the registry of wills, defeasances and revocation of powers of attorney.^ "Deed" embraces all instruments in writing by which real estate, or any interest therein, is created, alienated, mortgaged or assigned, except last wills, and leases for one year or less.^ 1 Comp. Stats. Xeb., 1SS7, pp. .573-.i7.T; Perkins v. Strong, 22 ^Teb. 725; s. c. 36 X. W. Repr. 292; Cogsswell v. Griffith, 23 Neb. 334; s. C. 36 N. W. Repr. .538; Traph.agen v. Irwin, IS Neb. 195; s. C. 24 N". W. Repr. 684; Bennett v. Fowkes, 1 Neb. 465; Harrall v. Gray, 10 Neb. 186; S. c. 4 N. W. Repr. 1040; Harrison v. ilcWhorter, 12 Neb. 152; s. C. 10 N. W. Repr. 545. Possession i^ notice. Uhl v. Kau, 13 Neb. 357; Lipp v. Land Syndi- cate, 24 Neb. G92: s. c. 40 N. W. Repr. 101; Conlee v. McDowell, 15 Neb. 184; s. C. 18 N. W. Repr. 60. 2 Oouip. Stats., p. 575, §22, p. 579, §§47, 47a. An authenticated copy of the record of a power of attorney may be recorded with the same force and effect as the original. Comp. Stats., §47a. Certificates of the register and receiver of any United States land of- fice for entry or purchase of any tract of land, and letters patent of land from the United States, shall be recorded in the county in which the land lies. Comp. Stats., §62. Actual notice supplies want of registry. Whitehorn v. Cranz, 20 Neb. 392; s. c. 30 N. \V. Repr. 406. Indexing held essential. Metz v. State Bank, 7 Neb. 165. As to creditors and purchasers under the recording acts, see Mans- field V. Gregory, S Neb. 432; s. c. 9 N. W. Repr. 87; Harrall v. Gray, supra; Hubbard v. Walker, 19 Neb. 94; s. c. 26 N. W. Repr. 713; Webb V. Hosplton,4 Neb. 308; Brophy v. Brophy, 15 Neb. 101; Snowden v. Tyler, 21 Neb. 199; s. c. 31 N. W. Repr. 661; Studebaker v. McCiirgur, 20 Neb. 500; s. c. 30 N. W. Repr. 680. ^ Comp. Stats., p. 578, §46. §402. Mortgages of Realty. Mortgages and absolute deeds intended to operate as such must be recorded in books kept for the purpose. Where a oU2' Ch. 11. J NEBRASKA. [§403. deed abeolute in terms is intended and shown by some other instrument in writing to be intended as only a security or mortgage, the person for whose benefit the deed is made derives no advantage from its record, unless the defeasance is also recorded therewith.^ The record of an assignment of a mortgage is not of itself notice to the mortgagor. ^ The wife cannot claim dower as against a purchase money mort- gage, though not executed by her. A mortgage of the homestead is good if executed by both husband and wife.^ In the absence of- stipulations to the contrary, the mort- gagor has the legal title and the right of possession. Mort- gages may be discharged by an entry in the margin of the record, or by a certificate of discharge duly acknowledged and recorded. Neglect for seven days after request to make a proper discharge, renders the party liable in dam- ages in the sum of one hundred dollars and all actual dam- ages.* ^ Comp. Stats. (1887), pp. 574, 575. *rhe mortgagee has the right to pay taxes and add the amount' to his debt. Comp. fcjtats.. p. 626. The only foreclosm-e of mortgages is by sale on decree of court. Comp. Stats., p. 835, title "Foreclosure." ^ Comp. Stats., p. 577. The record of the mortgage remains eiifectual, though an assignment tliereof be not recorded. Bridges v. Bidvvell, 20 Neb. 185; S. C. 29 N. W. Kepr. 302. ^ Comp. Stats., p. 339, §4; p. 452, §4. As to priority in the record of mortgages, see Galway v. Malchow, 7 Xeb. 289; Merriman v. Hyde, 9 Neb. 120; s. c. 2 N. W. Repr. 218. " Comp. Stats., p. 579, §55; p. 576, §§26-29. Deeds of trust to secure payment of money are considered and treated as mortgages. Comp. Stats., pp. 575, 576. §403. Acknowledgment or proof for record may be made in the state before judges, clerks of courts, justices of the peace and notaries public, acting within their local jurisdictions. Without the state and within the United States, and in conformity to the law where made, before any officer authorized by the law of the place to take acknowledg- ments, or before a commissioner of deeds for Nebraska. Where the ofiicer has no seal, there must be a further cer- 563 Ch. 11. J STATUTORY PROVISIONS. [§403. tificate of a clerk of a court of record, or other proper of- ficer of the district, under official seal, that the officer tak- ing the acknowledgment was the same as represented therein at the date thereof, that the signature is genuine, and the acknowledgment in conformity to law.^ In foreign countries and in accordance with the laws thereof, before a notary public, or any ministerial officer, commercial agent or consul of the United States appointed to reside therein. A married woman may convey her real estate and con- tract with reference thereto in the same manner and with like effect as a married man.^ Deeds should state relin- (luishment of the right of dower, but the certificate of ac- knowledginent need not. No separate examination of the wife is necessary. 3 The certificate of J9int acknowledg- ment may be as follows: State of > County of 5 On this day of , A. D. , 18 . . , before me (name and title of officer), duly appointed, commissioned (or duly elected) and qualified for, and residing in, said county, personally appeared , and ,hi8 wife, to me personally known (or by the oaths of one or more witnesses, whose names are hereto subscribed, satisfactorily proved) to be the identical persons described in, and whose names are affixed to, the foregoing conveyance as grantors, and they severally acknowledged the same to be their vol- untary act and deed. In testimony whereof, I have hereunto set my hand and official seal at , in said county, the day and year last above written. [seal.] (Signature and title. )* 1 Comp. Stats. (1S87), pp. 572, 573, §§3-6. Without the double cer- tificate the record is ineffectual. Irwin v. Welsh, 10 Neb. 479; s. 0. 6 N. W. Repr. 753; O'Brien v. Gaslin, 20 Neb. 347; s. C. 30 N. W. Repr. '274. 564 Ch. 11.] NEBRASKA. [§404. Where an acknowledgment purports to have been taken by an officer using a seal, and the certificate recites that it is under his hand and seal of otfice, the record will be effectual, aud it shall be presumed that a seal was attached to the original. Comp. Stats., p. 575, §20. 2 Oomp. Stats., pp. 573, 574, §§7-10. Laws 1887. p. 478. s Corap. >tats., p. 578, §42; Hale v. Christy, 8 Neb. 264. * Comp. Stats., p. 574, §§1, 2, 12; Harrison v. McWhorter, 12 JSTeb. 152; s. C. 10 N. W. Repr. 545. The certificate must be recorded with the deed, and deeds are not deemed lawfully recorded unless previously acknowledged or proved, pp. 574, 575, §§14, 17. The statute as to the name of a notary being engraved on his seal, held only directoiy. Village of Weeping Water v. Reed, 21 Neb. 261; S. C. 31 N. W. Repr. 797. The laws of 1887, p. 362, provide for the election of registers of deeds in all counties having at least 18,000 population, such registers to per- form the duties relative to the record of ' conveyances of real estate theretofore enjoined by law on county clerks. Corporations may convey lands by deed sealed with the common seal of the corporation, and signed by the president or presiding officer of the board of directors of the corporation; and such deed, when ac- knowledged by such officer to be the act of the corporation, or proved in the usual form prescribed for other conveyances of lands, shall be re- corded in like manner as other deeds. Comp. Stats., p. 257, §137. §404. Proof by Witnesses. Deeds require at least one subscribing witness, and may be proved for record by such a witness in cases where the grantor is dead, or refuses to aclinowledge, or his attend- ance cannot be procured for that purpose. Such proof shall not be taken unless the officer is personally acquainted with the witness, or has satisfactory evidence that he is the same person who was a subscribing witness to the deed.^ Where the attesting witnesses are dead or absent, proof of handwriting may be resorted to.^ The certificate of proof by a subscribing witness may be as follows : State of County of On this day of. a. d. 18 . . . , it satisfac- torily appearing to me that the attendance of the said John Smith, the grantor in the foregoing conveyance, cannot be orocured in order to make acknowledgment thereof (or 565 Ch. 11. J STATUTORY PROVISIONS. [§405. that the said John Smith, the grantor, etc., is dead, or, havino- executed and delivered the foregoing conveyance, refuses to make acknowledgment thereof ), before me (here insert name and title of officer), duly appointed, commis- sioned and qualified for, and residing in, said county, per- sonally appeared John Brown, to me personally known (or by the oath of [one or more] witness, whose name is hereto subscribed, to me satisfactorily proved) to be the identical person whose name is subscribed to the foregoing convey- ance as attesting witness, who being first duly sworn, on his oath says that his place of residence is at , in the county of , and state of ; that he set his name to the foregoing conveyance as a witness; that he knew John Smith, the grantor in said conveyance, and that he knew John Smith to be the identical person described therein, who executed the same, and saw him sign (or heard him acknowledge that he had signed) the same. In testimony whereof, etc. > Comp. Stats. (1S87), p. 572. The witness must have no certain legal interest in the land conveyed. Child v. Baker, 24 Neb. 188; s. c. 38 N". W. Repr. 769. 2 Coinp. Stats., pp. 573, 574. The use of private seals upon all deeds, mortgages, leases, etc., is hereby abolished, but the addition of a private seal to any such instrument shall not affect Its equity or legality. Comp. Stats., p. 688, §1. §405. Chattel Mortgages without change of possession of the property, are absolutely void as against the creditors of the mortgagor, and as against subsequent ' purchasers and mortgagees in good faith, unless filed, or a true copy thereof, for record in the county where the mortgao-or re- sides, or if he be a non-resident of the state, in the county where the property may be, and the filing remains good for five years. They need not be acknowledged. As between the parties, a chattel mortgage need not be in writing. They are discharged of record by an entry on the margin, attested by the clerk; or by the clerk on receipt of an or- 560 Ch. 11. J NEBRASKA. [§405. der in writing, signed by the mortgagee, and attested by a jnstice of tiie peace, or some officer with a seal.^ Condi- tional sales must also be recorded and the instrument re-filed within thirty days next preceding five years. ^ Mechanics' liens must be filed in the office of the register of deeds within four months after the materials are furnished, or the work is done, and the lien continues for two years from the filing.^ 1 Comp. Stats. (18S7), pp. 4i3, 414; Price v. McComas, 21 Seb. 193; S. 0. 31 jST. W. Repr. 511; Burley v. Jtarsh, 11 Xeb. liOl; S. C. 9 X. W. 'Kepr. 4S; Hooker v. Haminill, 7 "N'eb. 231; Pyle v. Warren, 2 Xeb. 241 ; Brunswick v. Clay, 7 Xeb. 137; Grimes v. Connell, 23 Xeb. 1S7; s. C. 3S N. W. Repr. 439; Cole v. Kerr, 19 Neb. .553; s. c. 2(; N. W. Repr. 598; "Word V. Watson, 24 Neb. 5',i2; Loeb v. Hirsch, 21 Neb. 302; Ransom v. Schnfela, 13 Neb. 77; s. C. 12 N. W. Repr. 920; Cool v. Roche, 20 Neb. 550; Peters v. Parsons, 18 Neb. 191; s. c. 24 N. W. Repr. 6S7; Lorton V. Fowles, IS Neb. 224; Wiley v. Shars, 21 Neb. 712; s. C. 33 N. W. Repr. 418; Ex parte Jane Thomason, 16 Neb. 238. 2 Comp. Stats., pp. 445. 446. 3 Comp. Stats., pp. 508. 507; L;i\v^ 1881, pp. 259, 266; Laws 1SS5, p. 275; White Lake Co. v. Russell. 22 Neb. 126; s. c. 3 Am. St. Rep. 262; 34 N. W. Repr. 104; Hays v. Mercier, 22 Neb. 656; S. O. 35 N. W. Repr. 894. 567 NEVADA. §406. Effect of Record. Every conveyance of real estate, and every instrument of writino- setting forth an agreement to convey any real estate, or whereby any real estate may be affected, proved, acknowledged and certified in the manner prescribed in this act, to operate as notice to third persons, shall be re- corded in the office of the recorder of the county in which such real estate is situated, but shall be valid and binding between the parties thereto without such record. The rec- ord imparts notice from the time of filing. Every convey- . ance not so recorded is void as against a subsequent pur- chaser in good faith and for valuable consideration, of the same real estate, whose conveyance shall be first duly re- corded.^ The term "conveyance" includes every instru- ment in writing, except a last will and testament by which any estate or interest in lands is created, aliened, assigned or surrendered.^ A revocation of a recorded power of attorney must also be recorded.^ 1 General Statutes (1885), §§2594, 2595; Allison v. Hagan, 12 Nev. 38; Virgin v. Brubaker, 4 Nev. 31; Crosier v. McLaughlin, 1 Nev. 848. Actual notice supplies want of registry. Grellet v. Heilshorn, 4 Nev. 526; Gilson v. Boston, 11 Nev. 413. 2 Gen. Stats., §2644. Possession is notice. Brophy Mining Co. v. Brophy & Dale G. & S. Co., 15 Nev. 101. 8 Gen. Stats., §2596; Arnold v. Stevenson, 2 N"ev. 234. There is no statutory regulation of the manner in which conveyances by corpora- tions shall be made. A deed by the president and secretary of the company, under its corporate seal, and pursuing the authority of a res- olution of the board of directors or trustees, is held sufficient. As to record of bond for title, see Irvin v. Hawkins, 22 Pac. Repr. 240. Conveyances of mining claims shall hereafter require the same for- malities and be subject to the same rules of construction as the transfers and conveyances of other real estate. Gen. Stats., §2650. All instruments of writing now copied in the proper books of record of the office of the county recorders shall, from this time, impart notice to subsequent purchasers and incumbrancers, and all other persons, of all deeds, mortgages, powers of attorney, contracts, conveyances, or other instruments of writing, notwithstanding any d ef ect, omission, or informality existing in the execution, acknowledgment, or certificate ol recording the same. The above shall not affect rights heretofore ac- quired in the hands of subsequent grantees or assignees. Gen. Stats., §2648 (supplemental act). 568 Ch. 11.] NEVADA. [§407. The mining recorder shall forward a "duplicate'' copy of raining claim notices to county recorder in which the mining district is located. Stats. 1885, p. 27; Stats. 1887, p. 136. §407. Mortgages, Real and Chattel. Mortgages of realty are recorded as otlier conveyances of real estate and with like effect.^ Tliey may be dis- charged by entry in the margin of the record, or by certifi- cate duly acknowledged and recorded. Neglect for seven days after request to execute a release, renders the person whose duty it is to do this liable in the sum of one bundled dollars, and also for all actual damages. Chattel mort- gages are not valid against any other person than the par- ties thereto, unless possession of the property be delivered to and retained by the mortgagor, or the mortgage be duly recorded in the county where the property is situated and also where the mortgagor resides. Mortgages upon grow- ing crops are valid witiiout delivery of possession, if duly acknowledged and recorded in the county where the prop- erty is situate. An affidavit of good faith, setting forth that the mortgage is given for a debt actually owing from the mortgagor, stating the amount and character of the debt, and that the same is not made or received with intent to hinder, delay or defraud any creditor of the mortgagor, is required, and is to be made by both the mortgagor and mortgagee, or some person in their behalf. The lien of a crop mortgage continues until after the crop has been har- vested, threshed and delivered to the order of the mort- gagee. ^ 1 Gen. Stats. (1885), §2594; Laws 1881. ch. 12. A .deed absolute in terms, though really a mortgage, is recordiible as a deed. Grellet v. Hellshorn, 4 Nev. 528. As to record of purchase money mortgages, see Virgin v. Brubaker, 4 Nev. 31. A mortgage is not to be deemed such a conveyance as will enable the mortgagee to recover possession of mort- gaged real estate without a foreclosure and sale. It is only necessary that the mortgagee join in the discharge of a mortgage. 2 Gen. Stats., §2635; Stats. (1887), p. 66; Gass v. Hampton, 16 Nev. 189; Clute v. Steele, 6 Nev. 335; Bryant v. Carson, 3 Nev. 313; s. C. 93 Am. Dec. 403 569 Ch. 11. J STATOTOEY PROVISIONS. [§§408, 409. If a crop mortgage be executed before the crop is planted, it shall be expressed in the mortgage that the same shall take effect upon the crops wlieu planted. The mortgage is not valid if given for a less sum than one hundred dollars. §408. Acknowledgment or proof may be made within the state before a judge or clerk of a court having a seal, a notar}' public or justice of the peace. When taken by a justice of the peace in any other county than that in which the real estate is situated, his ofScial character and genuine signature must be certified to by the clerk of the district court. Without the state and within the United States, before the above olEcers or a commissioner of deeds for Nevada, and if taken by a justice of the peace, his official character and genuine signature must be certified by the clerk of a court of record of the county having a seal. In foreign countries, before a judge or clerk of a court of a state, kingdom or empire having a seal, or a notary public therein, or by a minister, commissioner or consul of the United States appointed to reside therein. The certifi- cate must be under official seal when taken by a judge or clerk, or an officer having a seal of office.' 1 Gen. .Stats. (ISSri), §2572. Substantial compliance i-s sufficient. Johnson v. Badger Co., 13 Nev. 351. Omission of "voluntary" held fatal. Spitznagle v. Vauhessch, 13 Nev. 338. If the grantor is unknown, his identity must be proven to the officer by the oath of a credible aud competent witness. No additional certifi- cate of any kind is required to the certificate of anotary public wherever taken. §409. Acknowledgment of Married Women. ' ■ Estates by curtesy and dower do not exist. The hus- band has absolute control of the community property during the existence of the marriage relation, and may dispose of it as his own separate estate. The wife may convey, charge, incumber or in any manner dispose of her own sep- arate property. 1 Separate examination of the wife is re- quired, and her deed cannot be proved for record bv a wit- ness. The form of joint certificate may be as follovps: 570 Ch. 11. J NEVADA. [§410. State or ) County or 5 On this day of , a. t>.; 18. . . , personally appeared before me (name and title of oiBcer), in and for said city and county, and , his wife, whose names are subscribed to the annexed instrument as parties thereto, personally known to me to be the individuals de- scribed in and who executed the said annexed instrument as parties thereto, who each acknowledged to me that they, each of them respectively, executed the same freely and voluntarily and for the uses and purposes therein mentioned; and the said , wife of the said , having been by me first made acquainted with the contents of said instrument, acknowledged to me, on examination apart from and without the hearing of her said husband, that she ex- ecuted the same freely and voluntarily without fear or com- pulsion or undue influence of her said husband, and that she does not wish. to reti'act the execution of the same. In witness whereof, I have hereunto set my hand (and affixed my official seal), the day and year first above writ- ten. [seal.] (Signature and title). ^ ' Gen. Stats. (188.5), §§505-507. * Gen. Stats., §§2590, 2591. All property owned by the wife before marriage, and that acquired afterwards by gift, bequest, devise or de- scent, is her separate property. After marriage hSr separate property continues liable for her debts contracted before marriage. §410. Proof by Witnesses. Witnesses are not required except where the signature of the contracting party is made by "mark," where one witness will suffice. Proof of the execution of a convey- ance may be made before any officer authorized to take ac- knowledgments by the testimony of a subscribing witness, or when all the subscribing witnesses are dead, or cannot be had, by evidence of the handwriting of the party and of at least one subscribing witness, given by a credible witness 571 Ch. 11.1 STATUTORY PROVISIONS. [§410. to each signature under oath.^ The certificate of proof by a subscribing witness must state that the witness was per- sonally known to the officer as the person whose name is subscribed to the instrument as a witness, or was proved to be such by the oath of a witness whose name shall be given in the certificate; and must further state that the proof given by the witness of the execution of the instrument, and of the fact that the person whose name is subscribed as the grantor, is the person who executed the instrument, and that the witness subscribed his name to the instrument as a witness thereof. 1 Gen. Stats., §§2576-2583. 572 NEW HAMPSHIRE. 1411. Effect of Record. Deeds, mortgages, conveyances of real estate, and leases for more than seven years, are not valid against any per- son but the grantor and his heirs only, unless attested, ac- knowledged and recorded in the office of the register of deeds for the county wherein the property is situated. * Powers of attorney are to be recorded as deeds. Convey- ances not acknowledged may be provisionally recorded for sixty days with the effect of notice. Process to the grantor to compel acknowledgment is authorized.^' Conveyances of real estate must be under seal, and a scroll is not a suffi- cient seal. Any public or private corporation authorized to hold real estate may convey the same by any agent selected for that purpose.^ 1 GeD. Laws N. H., 1S7S, ch. 135, §4; Bell v. Twilight, 22 ^T. H. 500; s. c. 45 Am. Dec. 307; Warlc v. Willard, 13 X. H. 389; Stevens v. Morse, 47 ISr. H. (532; Arlia v. Brown, 44 X. H. 102; BuUook v. Walliagford, 55 ]S". H. 619; Brown v. Simons, 44 ]S". H. 478. riling is notice. Converse v. Porter, 45 IST. H. 400. Actual notice Is effectual. Hart v. Kussell, 56 X. H. 559; Tuolser v. Tilton, 55 X. H. 223; Patten v. Ins. Co., 40 N". H. 375; Brown v. Manter, 22 N". H. 468; Nute V. Nute. 41 N". H. 60; Stowe v. Meserve, l.^ N. H. 46; Rogers v. Jones, 8 N. H. 264; Hovey v. Biaachard, 13 N". H. 145; Hastings v. Cut- ler, 24]Sr. H. 4S1; Warner v. Swett, 31 X. H. 332. " Gen. Laws, ch. 135, §§7, 10, 11.. Possession is notice. See Emmons v. Murray, 16 X. H. 398; Patten v. Moore, 32 N. H. 382; Frost v. Jacic- 8on, 56 X. H. 357; Great Falls Co., v. Worcester, 15 X. H. 412; Bell v. Twilight, supra. ^ As to proof for record of a corporation deed, see Tenney v. East "Warren, 43 X. H. 343. A waiver of will and release of dower shall be recorded. Laws 1883, p. 22. §412. Mortgages of Realty are recorded as other con- ' vej^ances of real estate, and with like effect. A condition of defeasance is not effectual unless it is inserted in the mortgage instrument and made part of it, and the condition must state the sum of money secured or other tbing to bo performed. ^ Mortgages are discharged by release, or if that cannot be obtained, by a decree of di.scharge of the supreme court of the county.^ 1 Gen. Laws, ch. 136, §2; Darling v. Wilson, 60 X. H. 59; Sanborn V. Kobinson, 54 X. H. 239. 573 Ch. 11. J STATUTORY PROVISIONS. [§413. 2 Gen. Laws, ch. 136, §§4-7. Mortgages of realty are cliscbarged by the mortgagee writing upon the back thereof the date, and the words: "I discharge the within mortgage," and signing the same. This discharge should be recorded upon the margin of the record of the mortgage in the registry of deeds. §413. Acknowledgment may be made within the state before a justice of the peace, notary public or commissioner ; without the state and within the United States, before a justice of the peace, notary public or commissioner of deeds for New Hampshire. If taken before a justice of the peace without the state, his official character must be authenti- cated by the clerk of a court of record or by the secretary of state. In foreign countries, before a minister or consul of the United States in such country. No separate acknowledgment is required to be made by the wife. Where the real estate conveyed belongs to the wife in her own right, it is advisable that the husband join in the conveyance, so as to bar his rights of curtesy and homestead. If the wife's only interest is dower, the deed should contain a release of dower, and the wife should sign it, but need not acknowledge it. If the wife has also a homestead right, the deed should contain a release of that, and she should sign and acknowledge it the same as the husband. The identity of the grantors need not be certi- fied. The form of joint certificate may be as follows : State of ) County of 3 Personally appeared the above named and , his wife, and acknowledged the foregoing instrument to be their voluntary act and deed. Before me, this day of , 18. .. [seal. ] (Signature and title ).i ' G-en. Laws, ch. 135; ch. 183. §12; Prescott v. Hayes, 42 N. H. 56; Warli V. Willard, 22 :jf. H. 468; Odiorne v. Mason, 9 X. H. 24. 574 Ch. 11.] NEW HAMPSHIRE. [§§414, 4J5. §414. Proof by "Witnesses. Two witnesses are necessary to the validity of tlie deed and its record. ^ Where the grantor dies, becomes insane or is out of the state, proof for record may be made by one or more of the subscribing witnesses before a court of record within the state. ^ 1 Gen. Laws, ch. 135, §3; Kingsley v. Holbrook, 45 N. H. 320; Has- tings V. Cutler, 24 X. H. 4S1 ; French v. French, 3 N". H. 234. 2 Gen. Laws, ch. 135, §§8, 9. §415. Chattel Mortgages not accompanied by change of possession of the property are not valid against any person except the mortgagor, unless the mortgage is sworn to and recorded in the town in which the mortgagor resides, or if he be a non-resident of the state, in which the prop- erty is situate. 1 An affidavit of good faith and just debt is essentially necessary to the mortg,ige.^ The form of the affidavit is as follows: "We severally swear that the fore- going mortgage is made for the purpose of securing the debt specified in the condition thereof, and for no other purpose whatever, and that said debt was not created for the purpose of enabling the mortgagor to execute said mortgage, but is a just debt, honestly due and owing from the mortgagor to the mortgagee. So hslp us God." Con- ditional sales, in order to preserve the lien of the vendor, must be recorded with an affidavit similar in effect to the foregoing one.^ 1 Gea. Laws, ch. 137, §§2-16; Jauvrin v. Fogg, 49 N". H. 340; Hyde Y. Noble, 13 N. H. 494; s. C. 32 Am. Dec. 538; Page v. Ordway, 40 X. H. 253; Lathe v. Schaff, 60 N". H. 34; Low v. PettingiU, 12 X. H. 337; Ferguson v. Clifford, 37 N". H. 86. 2 Lowell V. Osgood, 601^. H. 71; Phillips v. .Johasou, 64 X. H. 393; s. C. 10 Atl. Repr. 819; hitone v. Manvel. 45 N". H. 481. 3 Laws 1885, ch. 30; Laws 1887, ch. 29; King v. Bates, 57 X. H. 446; Farley V. Lincoln, 51 N. H. -379; s. C. 12 Am. Rep. 182. The statute applies where the possession of the property passes to the conditional vendee. The memorandum of lien reserved should be recorded within twenty days after the delivery of the property. 575 NEW JERSEY. §416. Effect of Record. Conveyances of realty are void until they are recorded in the county where the lands lie, as against all subsequent judgment creditors without notice, and against all subse- quent hona fide purchasers or mortgagees for a valuable consideration, not having notice thereof, whose deed or mortgage has been first duly recorded or registered.^ In the counties of Essex, Camden and Hudson the records are kept by a register; in the other counties by the clerk of the county. Leases for more than ten years, or assign- ments or mortgages thereof, not recorded within fifteen days after sealing and delivering the same, are void as against a subsequent judgment creditor or bona fide pur- chaser or mortgagee without notice, but are valid as be- tween the parties.^ Conveyances must be under seal, and a scroll is not sulEcient.' The husband and wife must join in a conveyance of the estate or right of dower of the wifci, and in a deed of the wife's land.* ilevision of 1877, p. 155, Conveyances, §14, as amended by Act of Marcli 23, 1883; Voorhis v. Westervelt, 43 N. J. Eq. 642; s. C. 3 Am. at. Rep. 315;' 12 Atl. Eepr. 533; Gale v. Morris, 29 >r. J. Eq. 222; Losey V. Simpson, 11 N. J. Eq. 346; Coleman v. Barklew, 3 Dutch. 357; Bead V. Richman, 1 Greene, 49; Westervelt v. Wyckoff. 32 N. J. Eq. ISS; Ledos V. Kuplrlan, 28 N". J. Eq. 161; Corlies v. Howland, 26 N. J. Eq. 311; Deny. Ricliman. 1 Greene (13]Sr. J. Law), 43; Smith v. Vreeland, 10 ]Sr. J. Eq. 199; Splelman v..Kliest. 3GN. J. Eq. 199; Barnes v. Trenton, 27 N. J. Eq. 33; Willink v. Miles, 4 N. J. Eq. 277; Deane v. Hutchinson, 40 N. J. Eq. 83. 2 Rev., p. 187, §19, as amended by Act of April 21, 1887;' Decker v. Clarke, 26 ^T. J. Eq. 163; Hutchinson v. Bramhall, 42 N. J. Eq. 372; Splelman V. Kliest, supra. Actual notice supplies the want of registry. Garwood v. Garwood, 4Halst. 193; Morvis v. White, 36 N". J. Eq. 324; Hoy v. Bramhall, 19 N. J. Eq. 593; s. c. 97 Am. Deo. 687; Danbury v. Robinson, 1 McCart. 213; S. C. 82 Am. Dec. 244: Raritan Wafer Co. v. Veghte, 21 IST. J. Eq. 463. ^ Jiev., 1877. Ounvpyances. Possession is notice: Hodge v. Ammer- man, 40 N. J. Eq. 99; s. C. 2 Atl. Repr. 257; Roll v. Bea, 50 N. J. L. 266; s.. c. 12 Atl. Repr. 905; Foulke v. Bond, 12 Vroom, 527; Holmes v. Stout, 10 ]Sr. J. Eq. 419 ; Groton Sav. Bk. v. Beatty, 30 N. J. Eq. 133 : and is not notice when : Van Keuren v. Cent. By, Co., 3S N. J. L. 165; Cole- man V. Barklew, 27 N. J. L. 357. Rev., pp. 638-640, Married Women, §§14, 15; Laws 1881, ch. 136. As to record of plat, see Point Pleasant v. Cranmer, 40 N. J. Eq. 81. 576 Ch. 11.] NEW JERSEY. [§§417,418. §417. Mortgages of Realty. A mortgage has no effect against a subsequent judgment creditor, a bona fide purchaser or mortgagee for a valuable consideration without notice, unless recorded at or before the time of such judgment or of lodging with the clerk for record of such subsequent mortgage or conveyance. ^ Where a recorded deed absolute in term appears by any other writ- ing to be intended as a mortgage, the grantee is not entitled to the benefits given by recording to a mortgagee, unless the •defeasance, or an abstract of such writing, be registered with the deed.^ Mortgages are discharged by an entry in the margin of the record by the clerk, upon application made by the mortgagor, or person paying and redeeming the mortgage, and producing to the clerk the mortgage canceled, or a receipt thereon, signed by the mortgagee, his heirs, executors, administrators or assigns, or a certifi- cate signed by him or them, and acknowledged, or proved and certified as in case of deeds, specifying that the mort- gage has been paid or otherwise satisfied and discharged. 1 Rev.. i\t\(i Mortgages, pp. 705, 706, §22; Clement v. Bartlett, 33 ]Sr. J. Eq. 43; Den v. Wade, 20 N. J.L. 291; Bingham v. Kirthiud, 34X. J. Eq. 229; Boyd v. Mundorf, 30 N. J. Eq. 545; aemon v. Terhune, 40 >r. J. Eq. 364; s. C. 2 Atl. Eepr. IS; Coo;sweU v. Stout, 32 N". J. Eq. 240; Gau- sen V. Tomlinson, 23 N. J. Eq. 405; Vredenbiirg v. Burnett, 31 N. J. Eq. 229; Westervelt V. Voorhis, 42 N. J. Eq. 179. 2 Eev., title Mortgages, §21 ; Den v. Wade, 20 X. J. L. 291 ; Heyder v. Excelsior Ass'n, 42 N. J. Eq. 403; s. C. 59 Am. Kep. 59; 8 Atl. Kepr. 310; Hutchinson v. Swartseller, 31 N. J. Eq. 205. Revision, p. 707. See as to assigament of mortgages. Stein v. Sulli- van, 31 N. J. Eq. 409; and as to creditors and purchasers under the re- cording acts, Wheeler v. Kirtland, 24 N. J. Eq. 552; Herbert v. Mechan- ic's Asl'n, 2 C. E.Green, 497; s. c. 90 Am. Dec. 601; Conditv. Wilson, 36 N. J. Eq. 370; Sharp v. Shea, 32 X. J. Eq. 65; Haughwout v. Murphy, 21 N". J. Eq. 118; Phelps v. Morrison. 24 N. J. Eq. 195; Pancoast v. Duval, 26 X. J. Eq. 445; Sayre v. Hewes, 32 X. J. Eq. 652; Williamson V. N. J. South. Ry. Co., 29 K. J. Eq. 336. §418. Acknowledgment or proof may be made within the state before the chancellor, or a justice of the supreme court, a master in chancery, a judge of the court of com- mon pleas, or a commissioner of deeds. ^ (37— Keg. of Title.) 577 Ch. 11. J STATUTORY PROVISIONS. [§418. •Without the state and within the United States, before a judge of United States supreme, circuit or district court, chancellor of state or territory where taken, judge of supreme, superior, circuit or district court of the state (all ihe above without the seal of such otEcer or court); a mayor or other chief magistrate of a city, under the seal of said city ; a master in chancery of New Jersey ; a commis- sioner of, deeds for New Jersey, residing where the acknowl- edgment is taken, under his seal; a judge of the court of common pleas; or before any judge of any court of record, or any officer authorized by the laws of the state or terri- tory where taken to take acknowledgments of deeds of land in and for such state or territory. In the latter cases there must be a double certificate annexed, under the great seal of state, or seal of the court of the county in which the acknowledgment is made, certifying that the oflacer taking was such ofiicer, duly authorized to take acknowledgment, and that his signature is genuine. In foreign countries, before any court of law, mayor or other chief magistrate of any city, town or other corpora- tion of such foreign kingdom, nation, state or colonv in which the party or witnesses happen to be, certified by such officers in the manner such acts are usually authenticated by them ; or any embassador, public minister, charge d'affaires, consul, vice-consul, or other representative of the United States, for the time being at any foreign court or government; or before a master in chancery of New Jersey. The officer must certify that he is satisfied that the person acknowledging is the person named in and who ex- ecuted the conveyance, and that he made known to such person the contents of the instrument.^ iKev., Convenances, §§4-'i; Marsh v. Mitchell, 26 M. J. Eq. 497; Tookei- V. Sloau, 30 X. .J. Eq. 3;)4; l^inckney v. Barrage, 31 N. J. L. 21; Crosby V. Fleet, 3 X. J. L. 86; Tiffany v. Glover, 3 Green, G., ,387; Sharp V. Hamilton, 12 N. J. L. 108. 2 Kev., Conveyances, (;4, 7-9, 59. The ackuowledgment must be made in accordance with the law of New Jersey. Id. and Appendix, 5. 578 Ch. 11. J NEW JERSEY. [§419, 420. §419. Acknowledgment of Mai-ried Women. A married woman may own property, real or personal, in her own separate right, bat she cannot convey or incumber her real estate without the joinder of her husband. A sep- arate examination of the wife is necessary, and her signa- ture cannot be proved. The form of joint certificate may be as follows: State of County of Be it remembered that on this day of , A. D. 18.., before me, the subscriber (name and title of officer), personally appeared and ,his wife, who I am satisfied are the grantors named in and who ex- ecuted the within indenture; and I having first made known to them the contents thereof, they did thereupon severally acknowledge before me that they signed, sealed and deliv- ered the same as their voluntary act and deed for the uses and purposes therein expressed. And the saidi , wife of the. . , , being by me privately examined, sep- arate and apart from her said husband, did further acknowl- edge that she signed, sealed and delivered the same a!s her voluntary act and deed freely, without any fear, threats or compulsion of or from her said husband. In witness whereof, I have hereunto set my hand and af- fixed my official seal, the day and year aforesaid, [seal.] (Signature and title. )^ iRev., Conveyances. §9, pp. 638-640; Wright v. Kemington, 41 JSI. J. L. 48; s. 0. 32 Am. Kep. 180; Thayer v. Torrey, 37 N. J. L. 339; Homeopathic Co. v. Marshall, 32N. J. Eq. 103; Deny. Geiger,4 Halst. (9N. J.L.),233; KeaAey v. Macomb, 16 N. J.Eq.l89. Amarried woman living separate from her hushand under final decree of^ court, may con- vey interest in lands as if she were unmarried. H20. Proof by Witnesses. Witnesses are usual, but not necessary. Conveyance may be proved for record by a subscribing witness, and in such case the certificate, after stating as above the title o^f 679 Ch. 11. J STATUTORY PROVISION'S. [§420. the officer and the appearance of the witness, may proceed thus : "Who being by me duly sworn according to law, on his oath saith that he saw John Doe, the within named grantor, sign, seal and deliver the within indenture as his voluntary act and deed, and that he, the said , subscribed his name to the same at the same time as an attesting witness." The witness should sign the certificate with the jurat of the officer following.^ The deed of a corporation is proved for record by a sub- scribing witness. The form of certificate may be as fol- lows: State or ) County of 5 Be it remembered that on the day of , in the, year of our Lord, 18. ., before me (name and title of officer), personally appeared , to me known, who being by me duly sworn according to law, on his oath doth depose and say that he is (the secretary or other officer) of (the corporation) the grantors in the foregoing deed named; that the seal affixed to the said deed is the corporate seal of the said (corporation); that it was so affixed by order of the said (corporation); that is the (president or other executive officer) of the said (corporation) ; that he saw the said , as such , sign the said deed, and heard him declare that he signed, sealed and delivered the same as the voluntary act and deed of the said , by their order, and that this deponent signed his name thereto at the same time as a subscribing witness. Subscribed and sworn before me, the day and year above (Signature and title, f 1 Kev., Conveyances. §§4,6, 7. ^ Coe V. N. J. Ry. Co., 31 N. J. Eq. 105. The deed of a corporation must be executed by an oflicer with express authority, and sliould be under this form: "la witness whereof, the said (the corporation), hath caused its corporate seal to be atiixed, and its president (or other ex- ecutive ottioer), to sign his name to these presents the day and year first above written." 580 Ch. 11. J NEW JERSEY. [§421. 421. Chattel Mortgages not accompanied by change of possession of the property, are absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless duly ac- knowledged, as in case of deeds and filed, or a true copy thereof, for record in the county where the mortgagor re- sides, or if he be a non-resident of the state, then in the county where the property is at the time of the execution of the instrument.. An affidavit stating the consideration, and as near as possible the amount due and to grow due, on the mortgage is required. The mortgage remains alien until it is canceled of record. ^ A claim for mechanic's lien must be filed within one year after the labor is performed, or the materials furnished, in the clerk's office of the county where the building is situate. There is a lien for repairs except as against a hona fide purchaser or mortgagee with- out notice.^ 1 Kev., pp. 708-710, §§36-13; Laws, 1878, p. 130; Laws 1881, p. 226; Laws 1885, ch. 244; DeCourcey v. Collins, 21 N. J. Eq. 357; Marvin v. Norton, 48 K. J. L. 410; s. C. 57 Am. Rep. 566; 7 Atl. Repr. 418; Potts V. N. J. Arms, etc., Co., 17 N. J. Eq. 395; Nat. Bank v. Sprague, 21 N. J. Eq. 530; Lowrey v. Harri,«on, 2 N. J. L. 51; Kelley v. Boylan, 32 N. J. Eq. 5S1; Fish v. N. Y. Paper Co., 29 N. J. Eq. 610; Deane v. Hut- chinson, 40 N. J. Eq. 83. As to railroad chattel mortgages, Williamson v. N. J. South. Ry. Co., 29N. J. Bq.3n. As to record of conditional sales. Cole v. Berry, 42 N. J. L. 308; Marvin v. Norton, supra. 2 Rev., p. 668; Clark v. Butler, 32 N. J. Eq. 664. As to record of at- tachment liens : Leathwhite v. Bennett, 11 Atl. Kepr. 29. 581 NEW MEXICO. §422. Effect of Record. Conveyances of real estate are not valid except as to the parties interested until deposited for registry in the ofEce of the clerk of the probate court of the county where the real estate is situated. After registration they give notice of the time of being registered to all persons mentioned therein, and all purchasers and mortgagees are considered as having purchased under such notice.^ A certified copy of a recorded instrument, where the original is lost or can- not be produced, may be given in evidence without proof of execution. Abstracts of title certified as correct by an ab- stract company of the territory are prima facie evidence like the record.^ 1 Comp. Laws N. Mex., 18S4, §§429, 2761-2; Laws 1886-7, pp. 26, 27; Gen. Laws 1880, ch. 44, §§14-16; Moore v. Dave}^ 1 N. Mex. 303; Ar- mijo V. Aniiijo, 13 Pac. Repr. 92. 2 Comp. Laws, §§2768, 2744. A revocation of a recorded power of at- torney must also be registered. §2766. Seals are required, but a scroll will answer for a seal. Mortgages are recorded the same as deeds, but in separate boolcs, there being no other separate statutory provisions in this respect. The probate clerk is subject to a fine of $100 for failure to enter the instrument of record immediately on its, receipt. §423. Acknowledgment may be made within the terri- tory before any judge, justice of the peace, notary public having a seal, or a clerk of a court having a seal. Without the territory and within the United States, be- fore any court of the United States, or any state or terri- tory having a seal, or the clerk thereof, the genuine sio-na- ture and official character of such judge being certified to under seal of his court by the clerk thereof, or before a commissioner of deeds for New Mexico. In foreign countries before any court of any state, king- dom or empire having a seal, or judge of any court of rec- ord, magistrate or supreme power of any city, notary pub- lic, consul or vice-consul of the United States, each of siiid officers to have a. seal. All persons taking foreign acknowl- 582 Ch. 11.] NEW MEXICO. [§424. edgment must have their identity certified in the usual man- ner for establishing the identity of a foreign official.^ ' Comp. Laws, §§2740-2754. When the oHicer doe^ not personaUy know the person acknowledo-inr. Y. 141; s. c. 100 Am. Deo. 4.52; Dows v. Kidder, 84 N. Y. 121; Rawles v. Deshler, 3 Keys, 572; Bean v. Edge, 84 jST. Y. 510; Comer v. Cunningham, 77 N. Y. 398. ^ Bank's Stats., pt. 2, p. 2511; Laws 1879, ch. 171. See f urther as to r^ord of chattel mortgages. Telt v. Horton, 53 N. Y. 177; V an Heuzen V. Kadcliff, 17 N. Y. 580; s. c. 72 Am. Dec. 483; Wood v. Lowry, 17 Wend. 492; Benedict v. Smith, 10 Paige, 126; Crandall v. Brown, 18 Hun. 461; Hayman v. Jone,s, 7 Hun, 238; Butler v. Rathbone, 43 Hun. 137; Porter v. Parmely, 52 N. Y. 185; s. C. 34 N. Y. Sup. Ct. 398; Xewell V. Warner, 44 Barb. 258; Hathaway v. Howell, 54 N. Y. 97; Jfixon V. Stanley,33 Hun, 247; Otis v. Sill, 8 Barb. 102; Ely v. Carnley, .3 E. D. Smith, 489; s. C. 19 K. Y. 493; Dillingham v. Bolt, 37 N". Y. 198; s. c. 4 Abb. Pr. N. S. 221. 3 Bank's Stats., pt. 2, p. 2522; Laws 18S4, oh. 315, §§1, 2; Preston v. Southwick, 42 Hun, 291. For cases prior to the statute, see Smith v. Lynes, 5 N. Y. 41 ; Puffer v. Beeves, 35 Hun, 480, and cases cited ante, §2.50. Mechanics' liens must be filed within ninety days from completion of the work, and the lien continues for only one year, unless an action or other proceeding to enforce it is commenced. Bank's Stats., pt. 3, p. 2695; Laws 1885, ch. 342; Spencer v. Barnet, 35 N. Y. 96; Laws 1878, p. 379 ■(38— Reg. of Title.) 593 NORTH CAROLINA. §432. . Effect of Record. No conveyance of land, nor contract to convey, or lease of land for more than three years, shall be valid to pass any property, as against creditors or purchasers for a valu- able consideration, from the donor, bargainor or lessor, but from the registration thereof within the county where the land lieth. They shall before registration be acknowledged by the grantor, lessor or the person executing the same, or proven on oath by one or more witnesses, as prescribed bylaw, and all deeds so executed and registered shall be valid, and pass title and estates without livery of seizin, at- tornment or other ceremony whatever.^ Powers of attor- ney are to be recorded in the county where the land lies. Certified copies from the record may be recorded and may be given in evidence without the production of the original, unless the court by order requires such production.* 1 Laws 1885, ch. 147, §§1, 3; Battle's Revisal, 1873, ch. 35, §§1,6; Branch v. Griffin, 99 N. C. 173; s. c. 5 S. E. Repr. 393; Weathersbee v. Farrar, 90 N. C. 106; Woodfolk v. Blount, 3 Hayw. 147; S. C. 9 Am. Dec. 739; King v.,Portis, 77 X. C. 25; Cowles v. Hardin, 91 X. C. 28] ; Worthy v. Caddy, 76 N. C. 82; Hogan v. Strayhorn, 65 N. C. 275; Goldsborough v. Turner, 67 N. G. 403; Pearson v. Powell, 100 N. C,8B. Unregistered deeds, executed prior to 1855, may have thesame recorded without proof of execution. Laws 1885, oh. 147, §2. As to record within and after the statutory time: Phifer v. Barnhart, 88 N". C. 333; Sellers v. Hellers, 98 N. C. 13; Clark v. Arnold, 2 Hayw. 287. Record of bond for title effectual. Derr v. Bellinger, 75 IST'. C. 300. As to filing for record : Metts v. Bright, 4 Dev. & Bat. 173; s. C. 32 Am. Dec. 083; record of attached schedule, McKinnon v. McLean, 2 Dev. & Bat. 79; recording fees, Ridley v. McGee, 2 Dev. 40. Without record a deed does not convey the legal title. Triplett v. Witherspooon, 74 N. C. 475; Hare v. Jernigan, 76 N. C. 471; Hodges v. Spicer, 79 X. C. 223; Fortune v. Watkins, 94 N. C. 304; Austin v. King, 91 N. C. 280; Davis v. Inscoe. 84 N. C. 390. 2 Codel8S3, §§1249, 1251, 1253, 1264; Battle's Rev., p. 352; Benzein V. Lenoir, 1 Mm-. 194. Actual notice of equitable title effectual. Durant v. Crowell, 97 N. C. 367; Phifer ,v. Barnhart, 88 N. C. 333; Hodges v. Spicer, supra; Bunting v. Ricks, 2 Dev. & Bat. Eq. 130; Derr v. Del- linger, supra. Possession is notice. Edwards v. Thompson, 71 N". C. 177; Mayo v. Leggett, 96 N.' C. 237; S. C. 1 S. E. Repr. 622; Staton v. Dtivenport, 95 N. C. 4; Tankard v. Tankard, 79 N. C. 54; Moore v. Thompson, 69 N. C. 121; Scott V. Elkins, 83 N. C. 421; Streator v. Jones, 3 Hawks. 423; 594 Ch. 11. J NORTH CAROLINA. [§433. Kemp V. Earp, 7 Ired. Er^. 107: Greeo v. Harmon, 4 Dev. L. 158; Tay- lor V. Kelley, 3 Jones Eq. 240; Simpson v. Blount, 3 Dev. L. 34; Bart- lett V. Simmons, 4 Jones L. 295; Thomas v. Kelley, 13 Ii-ed. L. 43. Corporations may convey by deed, sealed with the common seal, and signed by the president or presiding member or trustee, and two other members, and attested by witnesses. Code, §685; or as at common law, Bason v. Mining Co., 90 JST. 0. 417. §433. Mortgages, Keal and Chattel. No deed of trust or mortgage for real or personal estate shall be valid at law to pass any property as against cred- itors or purchasers for a valuable consideration from the donor, bargainor or morto-aofor, but from the registration of such deed of trust or mortgage in the county where the land lieth, or in case of personal estate, where the donor, bar- gainor or mortgagor resides, or in case he shall reside out of the state, then in the county where the said personal estate, or some part thereof, is situate, or in case of choses in action, whore the donor, bargainor or mortgagor resides.^ Mortgages and trust deeds are discharged of record by an entry in the margin thereof, signed by the person making the discharge, and witnessed by the register.^ Trust deeds of personal property are declared to be good to all intents and purposes when the same shall be duly registered accord- ing to law.^ The statute requires the registry of conditional sales of personal property.* There is no provision for the renewal or re-filing of these sales, or of chattel mortgages. 1 Code (1883), §1254; Battle's Rev., ch. 35, §12; Smith v. Bynum, 92 N. C.IOS; Trader's Bank v.Woodlawn, 100 ISr.'C. 345; s. C. 5 S. E. Eepr. 81 : Howell v. Howell, 7 Ired. 491 ; Weathersbee v. Farrar, 90 N. C. 106. The record of a deed not notice of a mortgage. Gully v. May, 84 X. C. 434; Gregory v. Perkins, 4 Dev. 50; Holcombe v. Kay, 1 Ired. L. 340; Dakes v. Jones, 6 Jones, 14. Actual notice of an unrecorded mortgage is ineffectual. Hinton v. Leigh, 102 N". Car. 28; Bank v. Manufacturing Co., 96 N. C. 298; s. C. 3 S. E. Repr. 363; Fleming v. Burgin, 2 Ired. Eq. 584; Todd v. Out- law, 79 N. C. 235; Robinson v. Willoughby, 70 N. C. 358; Deal v. Pal- mer, 72 N. C. 582. * Code, §1271 ; Walker v. Mebane. 90 N. C. 259. Purchase money mortgages: Moring v. Dickersou, 85 N. C. 466; Bunting v. Jones, 78 N. C. 242. Wife need not join : Code, §1272. ms Ch. 11. J STATUTOKY PEOVISIONS. [§434. As to creditors and purchasers under the recording acts: King v. Portis, 77 X. C. 25; Davy v. Littlejohn, 2Ired. Eq. 095; Goldsborough V. Turner, i)7 X. 0. 403; Carroll v. Johnston, 2 Jones Eq. riO; Harris v. Horner, 1 Dev. & Bat. 445; s. C. 80 Am. Dec. 1S2; Folic v. Gallant, 2 Dev. & Bat. Eq 395; s. C. 34 Am. Deo. 395; Walker v. Moody, 65 X. C. 599. 3 Code. §1274; Etheridge v. Hilliard, 100 X. C.»250; Sharpe v. Pearce, 74 N. C. 600; Gaither v. Mumford, Taylor^s Term, 167; Simp- son V. Morris, 3 Jones, 411; Harris v. Jones, 83 X. C. 317. As to description of mortgaged chattels : Weaver v. Chunn, 99 X. C. 431; s. C. 6 H. E.Repr. 370; Harris v. Woodward, 96 X. C. 232; Goff v. Pope, 83 N. C. 127; Spivey v. Grant, 96 X. C. 214; S.C. 2S.E.Kepr. 45. * Code. §1275; Empire Drill Co. v. Allison, 94 X. G. 548; Chemical Co. V. Johnson, 98 X. C. 123; s. c. 3 S. E. Repr. 723. As to lis pendens notices, see Badger v. Daniel, 77 X. C. 251; Kollins V. Henry. 78 X. C. 342; Todd v. Outlaw, 79 X. C. 235. The form prescribed by statute for a chattel mortgage not exceeding three hundred dollars is as follows: I, of the county of , in the State of North Carolina. am indebted to of county, in said state, in the sum of dollars, for which he holds my note, to be due the day of , A. D. 18..., and to secure the payment of the same, I do hereby convey to him these articles of personal property, to-wit (insert description) : but on this -special trust, that if I fail to pay said debt and interest on or before the day of ,A. D, 18..., then he may sell said property, or so much thereof as may be necessary, by public auction, for cash, first giving twenty days' notice at three public places, and apply the proceeds of .such sale to the discharge of said debt, and interest on the same, and pay any surplus to me. Given under my hand and seal, this day of A. D. 18 . . - (Signature and seal.) §434. Acknowledgment or proof may be made within the state before judges of the supreme or superior courts, clerks of the superior and inferior courts, justices of the peace and notaries public.^ "Without the state and within the United States, before a commissioner of deeds for North Carolina, or a commis- sioner specially appointed by a court of North Carolina; judge or clerk of a court of record, notary public or mayor, under seal, or justice of the peace. The oiEcial character and genuine signature of a justice of the peace must be certified by the clerk of a court of record of his county under seal.^ 5^6 Ch. 11. j NORTH CAROLINA. [§434. In foreigQ countries, before the chief magistrate of any city, embassador, minister, consul or commercial agent of the United States. All instruments requiring registration must be offered for probate, or a certified copy thereof must be exhibited, to the clerk of the superior court of the county wherein the land lies, whose certificate admitting them to probate is to be indorsed thereon.^ 1 Code (1S83), §§1246, 1247. Where the acknowledgment is taken before a justice of the peace in the county in which the land lies, and the in- strument is presented to the clerk of the superior court for probate, if he adjudges the conveyance and certificate to be in due form, he in- dorses thereon his own certificate, as follows : :} State of County The foregoing (or annexed) certificate of A. B., a justice of the peace of county, is adjudged correct. Let the deed (or other in- strument) with the certificate be registered. (Signature and official seal.) " Code, §§632, 1248-1250. Where the acknowledgment or proof of privy examination is taken out of the county where the land is situate, or the instrument is required to be registered, or beyond the limits of the state, then in addition to the certificate of adjudication for probate above given, the clerk of the superior court of the coimty, or the clerk of a court of record in the county and state in which the person tak- ing the examination, acknowledgment or proof resides, shall certify substantially as follows : State of 1 CorNTY. J I hereby certify that A. B. (insert the name of the officer taking the acknowledgment or proofs, etc.), was at the time of signing the forego- ing certificate (a justice of the peace) in and for the county of , and State of , and that his signature thereto is in his own proper handwriting. In witness whereof, I hereunto set my hand and seal of office, this the day of , 18 . . . [SEAL.] (Signature and title.) 3 Code, §1250; Evans v. Etheridge, 99,]Sr. C. 43. Prior to the Code, all judges were authorized to take acknowledgments. Dugger v. Mc- Kesson, 100 N. C. 1; s. C. 6 S. E. Kepr. 746. Deputy clerks are not authorized to take acknowledgments. Tatom v. White, 95 N. C. 453. See further as to acknowledgments, Love v. Harben, 87 N. C. 253; Starke v. Etheridge, 71 N. C. 240; Sellers v. Sellers, 98 N". C. 13; s. c. 3- S. E. Repr. 917; jVI.illoy v. Bruden, 88 N. C. 305; ToJd v. Outlaw, 79 N. C. 235; Paul v. Carpenter, 70 N. C. 502; as proof of execution: Williams V. Griffin, 4 Jones L. 31. 597 Ch. 11. J STATUTOET PROVISIONS. [§435. §435. Acknowledgment of Married Women. A married ■woman may own separate property in her own right, whether acquired in any manner before or after mar- riage, but she can convey only with the written assent of the husband.i She is entitled to dower as at common law.^ The statute authorizes her to convey by power of attorney, the husband joining therein, and she being separately ex- amined in the acknowledgment thereof.^ Aprivy examina- tion is necessary to her conveyances and contracts affecting land, and her acknowledgment may be made before any officer authorized by the laws of North Carolina to take acknowledgments. The form of joint certificate of acknowledgment may be as follows : State of ) CouxTY or 3 I (name and title of officer), do hereby certify that , and , his wife, the grantors named in the foregoing deed, personally appeared before me this day and acknowledged the due execution of the foregoing (or an- nexed) deed of conveyance (or other instrument) ; and the said , being by me privately examined separate and apart from her said husband touching her free consent to the execution of said deed, doth state that she signed the same freely and voluntarily, of her own will and accord, and without any force, fear or undue iniiuence, and with- out fear or compulsion of her said husband, or any other person, and that she doth still voluntarily assent thereto, and that she hereby relinquishes her right of dower in the said land. Witness my hand and seal (private or official, as the case may be), this day of , 18.. Let the said deed with this certificate be registered. [seal.] (Signature and title).* 1 Const., art. ]0, §6. If, of the age of twenty-one. .a married woman, with the consent of her husband, may become a freetrader: 1, by ante- Ch. 11. J NORTH CAROLINA. [§436. nuptial contract, proved and registered; or, 2, by signing, with her husband, a writing, in the following or some equivalent form : A. B., of the age of tweoty-one years, wife of 0. B., of county, with his consent, testified by his signature hereto, enters herself as a free trader from the date of the registration hereof. Witness: E. H. (Signatures.) This writing is to be proved or acknowledged as in case of a deed, and from the time of its filing in the register's office of the county where the woman proposes to have her principal or only place of business, she shall be a sole trader, authorized to contract and deal as if she were a feme sole. Code, ch. 42. 2 Code, §2102. She is entitled upon the death of the husband to one- third in value of all the land and other real estate of which her husband was seized during her coverture. 2 Code, §12.i6. As to wife's contract or deed not acknowledged, see Burns v. McGregor, 90 N. C. 222; Towels v. Fisher, 77 JST. C. 437; Perry v. Perry, 99 N. C. 270; s. C. 6 S. E. Repr. 86. * Boyd V. Turpin, 94 >s". C. 137; Clayton v. Rose, 87 S. C. 106; Wright V. Player, 72 N. C. 94; Woodbourne v. Gorrell, 6G N. C. 82; Jones v. Lewis, 8 Ired. L. 70; s. C. 47 Am. Dec. 338; Malloy v. Bruden. 88 N. C. 305; Skinner v. Fletcher, 1 Ired. 313; Lucas v. Cobbs. 1 Dev. & Bat. 228; Etheridge v. Ferebee, 9 Ired. L. 312; Robbins v. Harris, 96 N. C. 557; S. C. 2 S. E.liepr. 70; Sims v. Ray, 96 jST. C. 87; S. C. 2 S. E. Kepr. 443. §436. Proof by Witnesses. Proof for record may be made by a subscribing witness; and also by other vyitnesses as to handwriting where the subscribing witnesses and the grantor are dead or non- residents. If the grantor subscribed with a mark only, proof of the signature of the witness is sufficient. Where the instrument has no witness, and its maker is dead or a non-resident, proof of his handwriting is suiScient. Where the witness is dead, proof of his handwriting, or of that of the grantor when there is no witness, is sufficient. ^ The certificate of proof by a subscribing witness may be as follows : State of ) County of 5 Be it remembered that on this day of , 18.., personally appeared before me (name and title of officer) James Jones, the subscribing witness to the fore- 599 Ch. 11. j STATUTOEY PROVISIONS. [§436. going deed, to me personally known, who on oath duly proves the execution thereof for the purposes therein ex- pressed. In witness whereof I have hereunto set my hand and affixed my official seal the day and year above mentioned. [seal.] (Signature and title. ) 1 Code, §]246; Love v. Harben, 87 N. C. 249; Black v. Justice, 86 iNT C. 504; Davis v. Higgins, 91 N. C. 382; Simpsoa v. Simpson, 93 X. C. 373; Howell v. Ray, 92 jST. C. 510; Tatum v. Wtiite, 95 X. C. 453; Car- rier V. Hampton, 11 Ired. 307; Anderson v. Logan, 99 N. C. 474; s. c. 6 S. E. Eepr. 704; .Jones v. Ruffin, 3 Dev. 404; McKinnon v. McLean, 2 Dev. & Bat. 79; Starke v. Btheridge, 71 N. 0. 210; Rollins v. Henry, 78 IST. C. 342. 600 OHIO. §437. Effect of Record. Deeds and instruments of writing for the conveyance or incumbrance of any lands, tenements or liereditaments, must be recorded in tlie office of the recorder of the county in which the premises are situated, and until so recorded, or filed on record, the same shall be deemed fraudulent, so far as relates to a subsequent bona fide purchasoi- having at the time of purchase no knowledge of the existence of such former instrument. i Powers of attorney for the con- veyance, mortgage or lease of any estate or interest in real property are executed and acknowledged in the same man- ner as deeds. They are to be recorded in the county where the land lies, and may then be revoked only by revocation duly recorded. The wife may convey by power of attor- ney. A deed by virtue of a power may be executed in the name of the attorney, and so acknowledged.^ A copy of a recorded instrument is prima facie evidence of the instru- ment and conclusive evideuue of its record.^ xA ' 1 Rev. Stats.. 1S80. §4],34; Sessiou Laws, vol. 82, p. 230; Ramsey v. Jones, 41 O. St. 685; Doherty v. Stimmel, 40 0. St. 294; Farmer's Bank V. Wallace, 45 O. St. 152; s. c. 12 X. E. Repr. 43»; Irving v. Smith, 17 O. 226; Northrup v. Bremer, S O. 392; Jennings v. Wood, 20 O. i ,_jl 261; Bank v. Carpenter. 7 O. 68; Leiby v. Wolf, 10 0.4^. 80; Mc-">L^ ^ Arthur v. Thomas, 2 O. 415; Phillv v. Sanders, 11 O. St. 490; Foster v. |(' , Diigan, 8 0. 87; s. c. 31 Am. Dec. -132; Blake v. Graham, 6 O. St. 55; l'^ s. c. 67 Am. Dec. 360; Graham v. Anderson, 15 O. St. 286; Kyle v. . ^ 7 ,l(. Thompson, 11 O. St. 616; Piatt v. St. Clair, 7 O. 105; Steele v. Spencer, | |^ "^ 1 Pet. 552; Hood v. Brown. 2 O. 266; Bell v. Duncan, 11 O. 192; Gill v. , •' Penny, 12 O. St. 38. 2 Rev. Stats., §§4106-4110,4132; Session Laws, vol. 84, p. 133. Except as to mortgages, actual notice is effectual. Woodworth v. Paige, 5 O. St. 70; Morris V. Daniels, 35 O. St. 406; Ranney v. Hardy, 43 O. St. 157; S. C. 1 N. E. Repr. 523; 1 West. Repr. 52; Spader v. Lawler, 17 O. 371 ; S. c. 49 Am. Dec. 46; Keeder v. Barr, 4 O. 4-16, 458 ; Cuningham v. Buck- ingham, 1 O. 264, 267. As to record of town plats, see Lockland v. Smiley, 23 O. St. 94; Satchell V. Doran, 4 O. St. 512; Lebanon v. Warren, 9 O. 80; Price v. Methodist Church, 4 O. St. 515; Wills: Hall's Lessee v. Ashby, 9 O. 96; s. 0. 34 Am. Dec. 324; Leases: Ludlow v. Ividd, 3 O. St. 541; Liability of recorder: Ramsey v. Riley, 13 O. 157; P'ees: Hoffman v. Mackall, 5 O.St. 124; s. c. 64 Am. Deo. 637; Recitals in patents and deeds: Reeder V. Barr, 4 O. 446, 458; Bonner v. Ware, 10 O. 465; Bell v. Duncan, 11 0. 192. 601 Ch. 11. j STATUTORY PROVISIONS. [§438. 3 Kev. Stats, §4143; Fisher v. Butcher, 19 O. 406; s. c. 53 Am. Dec. 436. Private seals, except ol corporations, are abolished. Sessiou Laws, vol. SO, p. 79; vol. SI p. 19S. Possession is notice. McKinzie v. Perrill. 15 O. St. 162; Farmer's Bank v. Wallace, supra; Bank v. Sawyer, 38 O. St. 339, 342; Kelly v. Stansberry, 13 0. 40S; Hause v. Beatty, 7 O. S4, 90; Kauney v. Hardy, 43 O. St. 157. §438. Mortgages of Realty. Mortgages shall take effect from the time the same are delivered to the recorder of the proper county for record, and if two or more mortgages are presented for record on the same day, they shall take effect from the order of pre- sentation for record. 1 Separate record books are kept for the record of mortgages, deeds of trust and powers of at- torney for their execution.''' Mortgages may be discharged in any customary manner, or by an entry made by the mortgagee upon the margin of the record, or upon the mortgage itself, which latter entry the recorder enters upon the margin of the record. ^ No acknowledgment, witness or seal is necessary to such release. The husband should oin the wife in a mortgage of her separate -real estate. i Kev. Sta,ts. (ISSO), §4133; Morganv.Way, 160.469; Smith v. Smith, 13 O. St. 532; Kerapner v. Campbell, 44 O. St. 210; s. C. 6X. E. Eepr. 566; 3 West. Kepr. 620; Ohoteau v. Thompson, 2 O. St. 114; Bucking- ham v. Hanna, 2 O. St. 551; Spader v. Lawler, 17 O. 371; S. C. 49 Am. Dec. 46; Anketel v. Converse, 17 O. St. 11; assignments of: Swartz v. Leist, 13 O. St. 419. 2 Van I'horniley v. Peters, 26 O. St. 471; Smith v. Smith, 13 O. St. 532. Actual notice of an unrecorded mortgage is ineffectual. Home Build. Association v. Clark. 43 O. St. 427; s. c. 2 X. j;. jjepr. 846; Holliday v. Franklin, 16 O. 533; Magee v. Beattv, 8 O. 396; Sturgess V. Bank, 3 McLean, 140; Bloom v. JS^oggle, 4 O. St. .15; Bercaw v. Cockerill, 20 O. St. 163; Stansell v. Koberts, 13 O. 148; s. c. 42 Am. Dec. 193; Mayhem v. Coombs, 14 O. 428; White v. Deuman, 1 O. St. 110; but such mortgage is good between the parties: Home Build. A) Ass'n V. Clark, supra; Kiley v. Rice, 40 O. St. 441; Steward v. Hopkins, ^ 30 O. St. 502. ^■» * 3 Rev. Stats., §§4135-4142. As to creditors and purchasers under the V recording acts, see Paine v. Moreland, 15 O. 435; s. c. 45 Am. Dec. 585; Farmer's Bunk v. Wallace, 45 O. St. 153; White v. Denman, 1 0. St^ 110; Woodruff v. Robb, 19 O. 212; Sanborn v. Lockwood. 9 O. 124; Roxborough v. Messick, 6 O. St. 448; s. c. 67 Am. Dec. 346; Gibler v. Trimble, 14 O. 323; JIanes v. Tiffany, 25 O. St. 549; Erwin v. Shuey, 8 O. St. 509; Vatier v. Lytle, 7 O. 477. 602 .^ Ch. 11. J OHIO. [§§439, 440. §439. Acknowledg-ment may be made within the state before a judge of a court of record, or clerk thereof, a county auditor, county surve^'or, justice of the peace, notary public, or mayor. The acknowledgment must be certified on the same sheet on which the instrument is written or printed. 1 A\ithout the state and within the United States, convey- ances may be executed and acknowledgment or proof may thereof be made, either in accordance with the Ohio law, or with that of the place where made, before a commis- sioner of deeds for Ohio, or any officer authorized by the local law to take acknowledgments.^ In foreign countries, before a commissioner of deeds for Ohio, or any consul of the United States resident in any foreign port or country, who must certify to the acknowl- edgment in the same manner as officers taking acknowledg- ments within the state. No proof of the official character of the officer taking an acknowledgment is required.^ There is no particular form for acknowledgments on behalf of corporations. The officer who signs the instrument and affixes the corporate seal makes the usual acknowledgment in behalf of the company. 1 Rev. Stats. (1880), §-HOS; Laws 1887, p. 133; Wiakler v. Iliggins, 9 0. St. 599; Moore v. Moore. 3 O. St. 154; Moore v. Vanoe, 1 O. 1; White v. Denman, 1 O. St. 110; Smith v. Hunt, 13 O. 260; s. c. 42 Ain. Dec. 201; Chestnut v. Shane. 16 0. 599; Koads v. Symmes, 1 0. 315; Crumbaugh V. Kiigler, 2 O. St. 373; DeSegond v. Culver, 10 O. 188; Williamson v. Carskadden, 36 0. St. 664; Johnson v. Harris, 2 O. St. 55; s. C. 15 Am. Deo. 533. 2 R(Tv. Stats., §4111; Fosterv. Denaison, 9 0. 121; Eggleston v. Brad- ford, 10 0. 312;' Allen v. Parish, 3 O. 107; Bailey v. Bailey, 8 O. 239; Williams v. Hohson. 6 O. St. 510; Meddock v. Williams, 12 O. 377. ^ Kev. Stats., §4111. A notai-y need not use his seal. FundCommis- sioners v. Glass, 17 O. 542. As to acts validating defective records, see Barton v. Morris, 15 O. 408; Deagenhart v. Cracraft, 36 O. St. 549; Lessee of Merritt v. Home, 5 0. St. 307. §440. Acknowledgment of Married Women. The husband and wife may each own, hold and dispose of property, real and personal, the same as if unmarried; 603 Ch. 11. J , STATUTORY PROVISIONS. [§§441, 442. but as each has a dower interest in the real estate of the other, they should join in conveyances and mortgages of realty.^ A separate examination is not now required in the acknowledgment of the wife. The form of joint certificate may be as follows: State of County of Be it remembered that on this day of , A. D. 18. ., before me, the subscriber, a (name and title of officer) in and for said state and county, personally came , and , his wife, and acknowledged the sio^nincr of the foregoing instrument to be their act and deed for the uses and purposes therein expressed. In witness whereof, I have hereunto set my hand and affixed my official seal on the day and year last above written. [seal.] (Signature and title. ) 1 Rev. Stats., §§3110-3114, 4188; Session Laws, vol. 84, p. 133. ' For decisions under former laws requiring privy exarninatioD, see Baldwin v. Snowden, 11 O. 203; s. c. 78 Am. Dec. 30i; Ford v. Osborne, 45 O. St. 1; Ludlow v. O'Neill, 29 O. St. 181; Sewall v. Haymaker. 127 U. S. 719; s. C. 8 Sup. Ct. Kepi-.1348; GosCiornv. Purcell, 11 O. St. 641 ; Ruffner V. McLenan, 16 O. 639; Brown v. Farron, 3 O. 140; Garr v. Wil- liams, 10 O. 310; Card v. Patterson, 5 0. St. 319; Rosenthal v. Mayhugli, 33 O. St. 155; Newell v. Anderson, 9 O. St. 12* Ward v. Mcintosh, 12 O. St. 231. §441. Witnesses. Conveyances of realty executed in Ohio require the at- testation of two subscribing witnesses, and without thena the record of the instrument is ineffectual. ^ ' Rev. Stats., §4106; White v. Denman, 16 O. 59; Bank v. Carpenter, 7 O. 68; Van Thorniley v. Peters, 26 O. St. 471; Brown v. Kirkman, 1 O. St. 116. §442. Chattel Mortgages not accompanied by change of possession of the property, are absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless forthwith 604 Ch. 11.] OHIO. [§442. deposited, or a true copy thereof, with the clerk of the township where the mortgagor resides, or if he be a non- resident of the state, of the township in which the property is situated.^ Before the mortgage is filed, the mortgagee must enter thereon a verified statement, in dollars and cents, of the amount of his claim, and that it is just and unpaid. 2 The mortgage may be recorded if desired; other- wise it is kept on file and a full index thereof made by the clerk. The record is good for only one year, unless within thirty days next preceding the end of the year a true copy, together with a verified statement, exhibiting the then in- terest of the mortgagee in the property, be again filed. 1 Rev. Stats. (1880), §§4150-4155; Session Laws, vol. 83, p. 72; Brown V.Webb, 20 O. 389. Actual notice is effectual. Paine v. Mason, 7 O. St. 199. 2 Session Laws, vol. 83, p. 72. In townships where the office of the recorder of the county Is kept, the raorts^age must be deposited with him; or where a mortgagor resides in a township entirely merged In a city or incorporated village, in which the office of county recorder is kept, or where the mortgagor is a non-resident of the state, and the prop- erty is within such township, the mortgage shall be filed with the county recorder. See further as to record of chattel mortgages: Kilbourne v. Fay, 29 O. St. 264; Cooper v. Koppes. 46 7cZ. 625; s. c. 15 N". E. Eepr. 662; Law- rence V. Everts, 7 Id. 194; Aultman v. Guy, 41 Id. 59S; Seaman v. Eager, 16 7(2. 209; Biteler v. Baldwin, 42 Id. 125; Day v. Mimson, U Id. 4SS; Kanaga v. Taylor, 7 Id. 134; s. C. 70 Am. Dec. 62; Wilson v. Leslie, 20 O. 161. As to record of personal property and conditional sales: Dixon v. Caldwell, 15 O. St. 412; s. C. 86 Am. Dec. 487; Call v. Seymour, 40 O. St. 670; Sanders v. Kreben, 28 O. St. 630. Mechanics' liens must, within four months from the time of perform- ing the labor or furnishing the materials, be filed with the recorder of the county where the labor was done or materials furnished, and upon suoh filing, the lien takes effect from the date of the first item of the account. Eev. Stats., §§3184, 3185; Session Laws, vol. 87, pp. 46, 47. 605 OEEGON. §443. Effect of Record. Every conveyance of real property within this state here- after made, which shall not be recorded as provided in this title, within five days thereafter, shall be void against any subsequent purchaser in good faith and for a valuable con- sideration of the same real property, or any part thereof, whose conveyance shall be first duly recorded. ^ Certified copies of a recorded instrument may be read in evidence without accounting for the original. Executory contracts, powers of attorney and revocations thereof are to be re- recorded.^ 1 Hill's Annotated Laws of Oregon, 18Sr,vol. 2, §3027 ; Laws ISS^, p. S6 ; Baker v. VToodwiird, 12 Or. 3; s. C. 6 Pac. Eepr. T73; Stannis v. Nichol- son, 2 Or. 332; Moore v. Thomas, 1 Or. 201; Walker v. Goldsmith, 14 Or. 125; s. C. 12 Pac. Repr. 537. Actual notice is effectual. Manaudas v. Mann, 11 Or. 450; s. C. 13 Pac. Repr. 449; Musgrove v. Bosaer, 5 Or. 313; s. c. 20 Am. Rep. 737; Lyons v. Leiihy, 15 Or. 8; s. C. 13 Pac. Repr. 643. • 2 Hill's Code, §§3023, 3028, 3035. 3036. Possession is notice. Dickey V. Henarie, 15 Or. 351; S. C. 15 Pac. Repr. 464; Manaudas v. Mann, supra. A scroll will answer for a se.al. As to Index, see Board v. Babcock, 5 Or. 472. General assignments for benefit of creditors are to be ac- knowledged as other conveyances of real estate, and recorded in the county where the assignor resides, or the busine-s was carried on. §444. Mortg-ages of Realty. Separate books are kept for the record of mortgages. Where a deed absolute in terms, but defeasible by force of some other instrument, is recorded, the deed and its record is not defeated as against an}' person other than the maker of the defeasance, or persons having actual knowledge of of it, unless the defea'sanoe is also recorded. Assignments of mortgages may be recorded, but the record is not notice to the mortgagor so as to invalidate subsequent payments by him.^ Mortgages may be discharged by an entry in the margin of the record, signed by the mortgagee or his per- sonal representative ; or by a certificate duly acknowledged or proved and recorded. A penalty of one hundred dollars 606 Ch. 11.] OEEGON. [§445. is prescribed for failure to make a proper discharge for seven days after request.^ 1 Hill's Code (1887), §3024. A deed absolute in terms, but inreality a mortgage, is to be recorded as a deed. Haseltine v. Espy, 13 Or. 301; s. C. 10 Pac. Kepr, 493; Nicklln v. Betts, 11 Or. 406 ; S. C. 50 Am. Bep. 472; 10 Pac. Eepr. 835. 2 Hill's Code, §§3029, 3030. Prior to the statute, an assignment of a mortgage was held not entitled to record as a conveyance of realty. Oregon Trust Go. v. Shaw, 5 Sawy. 336; Watson v. Dundee Mortgage Co., 12 Or. 474; S. C. 8 Pac. Kepr. 548; Goodenough v.Wairen, 5 Sawy. 494. ' Hill's Code, §§3031-3034. A mortgage is deemed real property for purposes of taxation, and the mortgagee must pay the taxes on the mortgage; but it may be stipulated in the mortgage, where the rate of interest is only eight per cent., that the mortgagor shall pay the taxes. As to priority in record, see Moore v. Thomas, 1 Or. 201. As to creditors and purchasers under the recording acts, see Baker v. Woodward, 12 Or. 3; s. C. 6 Pac. Repr. 173; Stannis v. Nicholson, 2 Or. 332. §445. Acknowledgment or proof for record maybe made within this state before any judge of the supreme court, county judge, justice of the peace, or notary public. Without the state and within the United States, and in accordance with the law of the place where made, before a judge of a court of record, justice of the peace, notary pub- lic, commissioner of deeds for Oregon, or any officer authorized by the law of the place to take acknowledg- ments. The certificate of an officer of another state must have attached thereto a certificate of the clerk or other proper certifying officer of a court of record of the county or district, certifying to the official character and genuine sig- nature of the acknowledging officer, and that the deed is executed and acknowledged according to the laws of such state or territory.^ In foreign countries, before a notary public, minister, charge d'affaires, commissioner, or consul appointed by the United States to reside therein. If taken before a notary public, his seal shall be affixed. ■ 1 Ann. Laws, §§3011, 3014; Knighton v. Smith, 1 Or. 276; Hamlin v. Cassafer, 15 Or. 456; Manaudas v. Mann, 14 Or. 450; Musgrove v. Bos- Der, 5 Or. 313. 607 Ch. 11.] STATUTORY PKOVISIONS. [§§446,447. Without the double oertifloate the record is iaeffeotual. Knighton v. Smith, supra; Musgrove v. Bosner, 5 Or. 313; s. C. 20 Am. Rep. 737; Flesohner v. Sumpter, 12 Or. 161; S. C. 6 Pac. Kepr. 506. §446. Acknowledgment of Married Women. A married woman may own separate property in her own right, but as husband and wife are entitled to estates of curtesy and dowei', they should join in conveyances of realty. A separate examination of the wife is necessary to her acknowledgment, and when the property is within this state she shall acknowledge that she executed the deed freely and voluntarily, unless she lives without the state. The form of joint certiticate may be as follows : State of County of . : . . . . This certities that on the day of , 18. ., personally came before me (name and title of officer) in and for said county, the within named , and , his wife, to me personally known to be the identical per- sons described in and who executed the within instrument, and acknowledged to me that they executed the same freely and voluntarily, for the uses and purposes therein named. And the said , on examination sepiirate and apart from her said husband, acknowledged to me that she ex- ecuted the same freely and without fear, coercion or com- pulsion from any one. Witness my hand and seal this day of , 18.... [seal.] (Signature and title.)' 1 Ann. Laws (18S7), §§3015, 3016; Laws, 1889, p. 74; Harty v. Ladd, 3 Or. 353; Moore v. Fuller, 6 Or. 272. §447. Proof by Witnesses. Two witnesses are requisite to a deed executed within the state. Proof for record may be made by a subscribing witness, and only by such a witness, except where the 60S Ch. 11.] OREGON.. [§448. grantor and the subscribing witnesses are all dead or out of the state. ^ 1 Ann. Laws (1887), §§3018-3022;MoIntyre v. Kamm, 12 Or.253;s. C.7 Pac. Kepr. 27. For good certificate, see Wilson v. McEwen, 7 Or. 87, 104. §448. Chattel Mortgages not accompanied by change of possession, are presumptively fraudulent as against cred- itors and subsequent purchasers in good faith, unless the mortgage be duly filed with the county clerk, to be there kept, or a copy thereof, for public inspection. The record is not good for longer than one year, unless within thirty days next preceding the end of the year an affidavit be duly filed exhibiting the then interest of the mortgagee in the property.^ 1 Gen. Laws, pp. 262, 527, 756; Velsian v. Lewis, 15 Or. 539; s. c. 3 Am. St. Eep. 184 ; 16 Pac. Repr. 631 ; Singer Co. v. Graham, 8 Or. 17 ; S. C. 34 Am. Rep. 566. As to re-filing, J. I. Case Co. v. Campbell, 14 Or. 460 ; S. C. 13 Pac. Repr. 324; description of property, Gregory v. North Pacific, 15 Or. 447; S. C. 17 Pac. Repr. 143. Notice of mechanic's lien must be filed with the county clerk. Ains- lie v. Kohn, 16 Or. 363; s. c. 19 Pac. Repr. 97; Whittier v. Blakeley, 13 Or. 546; Kezartee v. Marks, 15 Or. 529; s. C. 16 Pac. Repr. 407. (39— Reg. of Title.) 609 PENNSYLVANIA. §449. Effect of Record. Conveyances of realty must be recorded in the office of the recorder of deeds in the county where the lands lie. If executed in Philadelphia county, they must be recorded at once; if in other parts of the state, within six months, and those made out of the state, within twelve months from the execution thereof. If not so recorded, they will be ad- judged fraudulent and void against any subsequent pur- chaser or mortgagee for valuable consideration, unless recorded before the proving and recording of the deed or conveyance under which the subsequent purchaser or mort- gagee claims.^ Powers of attorney relating to real estate are to be acknowledged and recorded the same as deeds. ^ Conveyances should be under seal, but an ink scroll will suffice for a seal.^ 1 Brightley's Pardon's Dig. 1S72, Deeds, etc.: §§71-76; Act of jffay 25, 1878; Browuback v. Ozias, 117 Pa. St. 93; s. c. 11 Atl. Kepr. 30; 9 Cent. Eepr. 554; Pancake v. Oauffman, 114 Pa. St. 113; s. C. 7 Atl. Eepr. 67; Hulett v. Mut. Ins. Co. 114 Pa. St. 142; s. C. 6 Atl. Repr. 554; Schuchman v. Homestead, 111 Pa. St. 48; s. C. 1 Cent. Kepr. 913; Mo- Lanahan v. Reeside, 9 Watts, 508; s. C. 36 Am. Dec. 136; Robinson's Appeal, 117 Pa. St. (528; s. C. 12 Atl. Repr. 51; Ashton's Appeal, 73 Pa. St. 153; Jlaul v. Rider, 59 Pa. St. 167; Kenyon v. Stewart, 44 Pa. St. 179; Bellas v. McCarty, 10 Watts, 13; Lewis v. Barry, 72 Pa. St. 18; Donaldson v. Phelps, 18 Pa. St. 170; Brook's Appeal, 64 P,-i. St. 127; Glading v. Frick, 88 Pa. St. 460; Wood's Appeal, 82 Pa. St. 110. 2 Brightley's Pardon's ,Dig. 1872, Attorneys in Fact: §§1, 2. See further as to effect of record, Schell v. Stein. 70 Pa. St. 3!)S; s. G. 18 Am. Kep. 416; Calder v. Chapman. 52 Pa. St. 359; JlcCandless v. Eno-le, 51 Pa. St. 309; Singer v. Rook, 84 Pa. St. 442; s. c. 24 Am. Rep. 204° Hall V. Patterson, 51 Pa. St. 289; Lightner v. Jlooney, 10 Watts. 467; Soiuler V. Morrow, 30 Pa. St. 83; Kerns v. Swope, 2 Watts, 75; Cinder v. Thomas, 89 Pa. St. 343: Durand's Appeal. 116 Pa. St. 93; JIcKean v. Mitchell. 35 Pa. St. 269: s. c. 78 Am. Dec. 335; Lodge v. Simonton, 2 Pen. & W. 439; s. c. 23 Am. Dec. 36; Boggs v. Varner, 6 Watts & S. 469; Bracken v. Jlillcr, 4 Watts & S. 102; Wilson v. McCullo\igh, 23 Pa. St. 440; s. c. 62 Am. Dec. 347; Hill v. Epley, 31 Pa. St. 335; Ketlerv. Nutz, 5 Serg. &R. 245; Powers v. McFerran, 2 Sero-. & R. 44. 3 Actual notice supplies want of registry. Butcher v. Yocum, 61 Pa. St. 168; s. C. 100 Am. Deo. 625; Lahr's Appeal, 90 Pa. St. 507;'Bii;ley V. Jones, 114 Pa. St. 510; s. c. 7 Atl. Repr. 54; Barbour v. Wiehle,'"ll6 Pa. St. 3JS; s. c. 9 Atl. Repr. 520; Farrington v. Woodward, 82 Pa! St. 259; Epley v. Witbrow, 7 Watts, 163; Brinser v. Anderson. IS Atl. Eepr. 520; Maul v. Eider, 59 Pa. St. 167; Sergeant v. Ingersoll, 15 Pa. 610 Ch. 11. j PENNSYLVANIA. [§450. St. 343; Mulliken v. Graham, 72 Pa. St. 484; Ripple v. Ripple, 1 Rawle, 386; Bugbee's Appeal, 110 Pa. St. 331; Barnes v. McClinton, 3 Penn. 07; Hottenstein v. Leroh, 104 Pa. St. 454; Carr v. Wallace, 7 Watts, 394; Mullison's Estate, 68 Pa. St. 212; Bellas v. McCarty, 10 Watts, 13. Possession is notice. Scott v. Gallagher, 14 Serg. & R. 333; s. c. 16 Am. Dec. 50S; Leach v. Ansbacher, 55 Pa. St. 85; Pluiner v. Robert- son, 6 Serg. & R. 179; Krider v. Lafferty, 1 Whart. 203; Wright v. Wood,'23 Pa. St. 120; Johnston v. Irwiu, 3 Serg. & R. 291; Billingtou V. Welsh, 5 Binn. 129; s. C. 6 Am. Dec. 406; Hull v. Powell, 4 Serg. & R. 405; Kerr v. Day, 14 Pa. St. 112; .Jaques v. Weeks, 7 Watts, 261; ileechan v. Williams, 48 Pa. St. 238; Boggs v. Varner, 6 Watts & S. 474; Sheets v. Allen, S9 Pa. St. 47; Nelson v. Nelson, 117 Pa. St. 278; s. C. 11 Atl. Repr. 61; 9 Cent. Repr. 401; Woods v. Farmere, 7 Watts, 382; s. c. 32 Am. Dec. 772. As to record of town plats, see Commissioners v. Wood, 10 Pa. St. 93; 8. C. 49 Am. Dec. 592; In re Pearl Street, 111 Pa. St. 565; In re Brooklyn St., 118 Pa. St. 6-10; s. C. 4 Am. St. Rep. 618; Commonwealth V. Moorehead, 118 Pa. St. 344; s. C. 4 Am. St. Rep. 599. §450. Mortgages of Realty. No mortgage or defeasible deed in the nature of a mort- gage shall be good or sufficient to convey or pass any freehold or inheritance or estate for life or years, unless recorded in the office for recording deeds for the county within six months after its date.^ Mortgages are liens only from the time they are left for record, and if two or more mortgages are left for record on the same day, they have priority according to the time they were left at the recorder's office.^ A purchase money mortgage is a lion from the date of its execution, if recorded within sixty days thereafter.^ A de- feasance to a deed absolute on its face will not have the effect of reducing it to a mortgage, unless the defeasance is executed and delivered at the same time with the deed, and duly recorded within sixty days from its execution ; and such defeasances are indexed and recorded as mort- gages.* Mortgages are discharged by entry of satisfaction on the margin of the record, signed by the mortgagee, and to be entered within three months after request, under for- feit in any sum not exceeding the mortgage money, and the rule applies to each installment where the mortgage is pay- 611 Ch. 11. J STATUTORY PEOVISIOXS. i [§450: able by installments. Upon a proper decree of court the recorder may himself enter a satisfaction.^ i Brightley's Dig. 1S72, p. 477. The six months' provision does not apply to Pliiladelpl:iia county in tlie case of mortgages, as well as that of deeds. Purdon's Ann. Dig., p. 2110, §5. See as to record and priority of mortgages : Brook's Appeal, 64 Pa. St. 127; Britton's Appeal, 45 Pa. St. 172; Dungan v. Am. Life Ins. Co., 52 Pa. St. 253; City Bank's Appeal, 91 Pa. St. 163; Taylor v. Maris. 5 Kawle, 51; Prick's Appeal, 101 Pa. St. 485; Xice's Appeal, 54 Pa. St. 200; Ter Hoven v. Kerns, 2 Barr^ 93: Bank's .Appeal. 83 Pa. St. 170; Parker v. Jacoby, 3 Grant's Cas. 300; Hendrickson's Appeal, 24 Pa. St. 363; Schell v. Stein, 76 Pa. St. 398; s. C. IS Am. Rep. 416; Lahr's Ap- peal, 90 Pa. St. 507; Campbell's Appeal, 36 Pa. St. 427; s. C. 78 Am. Dec. 375; Mott v. Clark, 9 Pa. St. 399; s. C.-49 Am. Dec, .560; Edwards V. Trumbull, 50 Pa. St. 509. Under act to provide revenue by taxation. Laws 1889, p. 423, recorders of deeds must keep daily record of mort- gages. 2 Brightley's Dig. 1872, p. 478; Foster's Appeal, 3 Pa. St. 79; Brook's Appeal, 64 Pa. St. 127. Assignments of mortgages held within the recording acts : Pepper's Appeal, 77 Pa. St. 373; ISTeider v. Pennypaoker, 9 Phila. 86; Phillips v. Bank, 18 P.a. St. 394. 3 Brightley's Pur. Dig. 1872, p. 47S; Parke v. Xeeley, 90 Pa. St. 52; Dungan v. Am. Life Ins. Co. ,.52 Pa. St. 253; Lahr's Appeal, 90 Pa. St., 507;''Cake"s Appeal, 23 Pa. St. 186. * Laws 1881, p. 84; Hendrickson's Appeal, 24 Pa. St. 363; Luoh's Appeal, 44 Pa. St. 519; Edwards v. Trumbull, 50 Pa. St. 509; Jaques v. Weeks, 7 Watts, 261. The record of a deed absolute in terms Is not notice of a mortgage. Carpman v. Bacoastaw, 84 Pa. St. 363; Sankey v. Hawley, 118 Pa. St. 30; s. C. 13 Atl. Repr. 208; Pancake v. Cauffman, 114 Pa. St. 113; s. c. 7 Atl. Repr. 67; Calder v. Chapman, 52 Pa. St. 359; Friedley v. Hamil- ton, 17 Serg. & R. 70. 5 Brightley's Dig. p. 481; Laws 1881, p. 97; Laws 1879, p. 141; Green v. Ricks, 121 Pa. St. 130'; s. C. 6 Am. St. Rep. 760; 15 Atl. Repr. 497. As to creditors and bona fide purchasers under the recording acts, see lieister V. Fortner, 2 Binn. 40; s. C. 4'Am. Dec. 417; Britton's Appeal,' 45 Pa. St. 172; Hulings v. Guthrie, 4 Pa. St. 123; Chew v. Barnett, 11- Serg. & R. 389; Henry v. Raiman, 25 Pa. St. 384; s. C. 64 Am. Dec. 703; Davidson v. Little, 22 Pa. St. 245; s. C. 60 Am. Dec. 81; Leach v. Alns-' bacher, 55 Pa. St. '85; Uhler v. Hutchinson, 23 Pa. St. 110; Youst v.; Martin, 3 Serg. & R. 423;- Munn v. McDonald, 10 Watts, 270; Martin v. Jackson, 27 Pa. St. 504; Ashton's Appeal, 73 Pa. St. 153; Spackmari v. Ott, 65 Pa. St. 131; Morrison v. Funk, 23 Pa. St. 421; Twelves v. Wil- liams, 3 Whart. 485; Ramsay's Appeal, 2 Watts, 232; Cover v. Black, 1 Pa. St. 493. The statute provides for chattel mortgages to only a very limited ex- tent; as of leases of collieries, manufactories, etc. Act of April 27, 1855; and iron and steel nails, steel ingots and billets, rolled or ham- 612 Ch. 11.1 PENW^YLVAMA. [§451. mered steel in sheets, bars or plates, and all steel and iron castings of every description, not in place, may be mortgaged for a sura not less ,than $500; the mortgage must be acknowledged and recorded the same as mortgages of realty. Act April 28, 1887; and of saw-logs, sawed lum- ber, laths, pickets, shingles, hewn timber and spars, and petroleum or coal oil, crude and refined, in tanks, reservoirs, barrels or other recep- tacles in bulk; also iron tanks and tank cars; iron ore mined and pre- pared for use, pig-iron, blooms, rolled or hammered iron in sheets or bars, manufactured slate, and canal boats. Act of May 18, 1876. This last act was by its terms limited to a period of five years from its date-. It contained, however, a proviso that no mortgage existing at the time of its expiration should be .iffeoted by the limitation. Except as above, chattel mortgages are not sanctioned, and are mere pledges, not good as against creditors and third persons, unless possession of the property be taken and retained by the mortgagee. Bismark Build. Ass'n v. Bolster, 11 Norris, 123. §451. Acknowledgment or proof for record may be made within the state before a judge of the supreme court or court of common pleas, mayor, recorder and alderman of Philadelphia, Pittsburgh, Allegheny and Carbondale, the recorders of deeds, notaries public and justices of the peace. Without the state and within the United States, before any judge of the United States supreme court or district courts, or of the supreme or superior court, or court of common pleas, or of probate, or of record, in any state or territory, under seal of the court; or notary public, or commissioner of deeds for Pennsylvania, or any ofiScer authorized by the local law to take acknowledgments there. The proof of such authority is the certificate of the clerk or prothonotary of any court of record in such state, under seal of the court, that the officer takinjjf such acknowleds- ment is duly qualified to take the same.^ Where the per- son making the acknowledgment is in the military service of the United States, it may be made before an officer hold- ing the rank of major, or any higher rank in said military service, under commission from the governor of Penn- sylvania. In foreign countries, before embassadors, and other public ministers of the United States, under official seal; consuls and vice-consuls of the United States, under consular seal; any notary public in any foreign country, or commissioned 613 Ch. 11. J STATUTOEY tKOYISIONS. [§452. appointed by the governor of any state or territory or foreign country, whose commissions last five years, unless sooner revoked.^ Brightley's Dig. 1872; Deecls, etc., §§10-30; Act April 22, 1863; Act Api-il 14, 1828; Hagenbuck v. Phillips, 112 Pa. St. 284; s. c. 3 Atl. Eepr. 788; Cover V. Manaway, 115 Pa. «t. 338; s. C. 2 Am. St. Kep. 552; 8 Atl. Eepr. 3t)3; Adam v. Mengle, 8 Atl. Kepr. U06; Furhman v. Loudon, 13 Serg. & R. 386; s. C. 15 Am. Dec. 608; Bennett v. Paine. 7 Watts, 334; s. c. 32 Am. Dec. 765; Angier v. Schieft'elin, 72 Pa. St. 106; s. C. 13 Am. Eepr. 659; Barney v. button, 2 ^Vatts, 31; Brown v. Pliil. Bank, 6 Serg. & E. 484; De Haven's Appeal, 38 Pa. St. 373; Share v. Ander- son, 7 Serg. & E. 43; s. C. 10 Am. Dec. 421. 2 Acknouledgmenls taken by commissioners ol deeds and notaries public need not be certitied, except under their own seals. Act April 14, 1828; Act April 22, 1S63; except that as to foreign notaries, it is safer, since the Act of April 27, 1876, to have attached to certificates by them the further certificate of a consul or vice-consul of the United States, that such notaries are the proper officers, and that their acts are in accordance with the laws of their respective countries. See further as to acknowledgments, Withers v. Baird, 7 Watts, 227 ; S. O. 32 Am. Dec. 754; Hector v. Glasgow, 79 Pa. St. 79; s. C. 21 Am. Eep. 46; Jamison v. Jamison, 3 Whart. 457; s. C. 31 Am. Dec. 536; Horn- beck V. Build. Assn., 88 Pa. St.. 64; Duff v. Wyncoop, 74 Pa. St. 300; Luffborough v. Parker, 12 Serg. & E. 48; Keichline v. Keichline, 54 Pa. St. 75; Pierce v. Hokes, 11 Harris. 230; Cassell v. Cooke. 8 Serg. & K. 268; s. c. 11 Am. Dec. 610; Myers v. Boyd, 96 Pa. St. 427; Scott v. Gallagher, 14 Serg. & E. 333; s. C. 16 Am. Dec. 608; Mclntyre v. Ward, 5 Binn. 296; Eigler v. Cloud, 2 Harr. 361; Bowlby v. Thunder, 3 Atl. Eepr. 588; Devinney v. Reynolds, 1 Watts & S. 328; Schrader v. Decker, 9 Pa. St. 14; s. C. 49 Am. Dec. 538; Williams v. Baker, 71 Pa. St. 476; Jourdan v. Jourdan, 9 Serg. & E. 268; s. C. 11 Am. Deo. 724; Barnet v. Barnet, 15 Serg. & E. 72. §452. Acknowledginent of Married Women. Married women own separate property in their own right, and may execute leases of real property and sales of per- sonal property without the joinder of the husband, but he must join in conveyances of her real estate; and in qrder to bar dower, she must be joined in his conveyances.^ No deed or contract relating to real estate, made by the wife, whether relating to her own or her -husband's property, is binding on her, unless acknowledged by her as provided by statute. A separate examination of the wife is necessary, and her deed cannot be proved. The form of joint cer- tificate may be as follows : 614 Ch. 11.] PENNSYLVANIA. [§453. State or ') County of 3 Be it remembered that on the day of , A. D. 18. ., before me (name and title of officer) duly com- missioned in and for said county, personally appeared the above named , and , his wife, and in due form of law acknowledged the foregoing indenture to be their and each of their act and deed,, and desired the same might be recorded as such; she, the said , being of lawful age, and by me examined separate and apart from her said husband and the full contents of said deed being first fully made known to her, did thereupon declare that she did voluntarily and of her own free will and accord sign and seal, and as her act and deed deliver the same, without any coercion or compulsion of her said husband. Witness my hand and seal the day and year aforesaid. [seal.] ( Signature and title. )^ 1 Act of June 3, 1887; Act of May 25, 1878; Brightley's Purdon's Dig. 1883, Deeds. 104. Where the husband has been adjudged a lunatic, the wife may con- vey as if sole, subject to the control of the court of common pleas. Act of May 2,5, 1878. - Michener v. Cavender, 38 Pa. St. 334; s. 0. 80 Am. Dec. 486; Horn- beck V. Build. Assn., 88 Pa. St. 64; Williams v. Balier, 71 Pa. St. 476; Louden v. Blythe, 27 Pa. St. 22; s. c. 67 Am. Dec. 442; McCandless v. Engle, 51 Pa. St. 309; Barnet v. Barnet, 15 Serg. & R. 72; s. C. 16 Am. Dec. 518; Huffman v. Huffman, US Pa. St. 458; s. c. 12 Atl. Repr. 308; Mercer v. Watson, 1 Watts, 330; Watson v. Bailey, 1 Binn. 476; s. C. 2 Am. Dec. 462; Graham v. Long, 65 Pa. St. 386; Caldwell's Appeal, 7 Atl. Repr. 211 ; Couklin v. Bush. 8 Pa. St. 517; Singer v. Rook, 84 Pa. St. 442; s. c. 24 Am. Kep. 202; Miller v. Wentworth. 82 Pa. St. 280. For decisions upon statutes validating defective acknowledgment and records, see Underwood v. Lilly, 10 Serg. & R. 99; Tate v. Stoolfooz, 16 Serg. & R. 351; s. c. 16 Am. Dec. 546; Green v. Drinker, 7 Watts & S. 440; Jourdan v. Jourdan, 9 Serg. & R. 268; s. C. 11 Am. Deo. 724; Green V. Weissenberg, 57 Pa. St. 433; S. C. 98 Am. Dec. 237; Journeay v. Gibson, 56 Pa. St. 57; Shonk v. Brown, 61 Pa. St. 320; Lycoming v. Union Bank, 15 Pa. St. 171; Lane v. Nelson, 79 Pa. St. 407. §453. Proof by Witnesses. Witnesses are not necessary to the validity of a deed, but two subscribing witnesses are customary, by one of 615 Ch. 11. J STATUTORY PROVISIONS. [§453. whom proof for record raaj' be made.. The certificate of proof in such case may be as follows: State of > County of ,. 5 On the day of , A. D. 18. ., before me (name and title of officer) duly commissioned in and for said county, personally appeared C. D., one of the subscribing witnesses to the executionof the above indenture, who being duly sworn (or affirmed) according to law, doth depose and say that he did see A. B., the grantor above named, sign and seal, and as his act and deed deliver, the above indenture (deed or conveyance) for the use and purposes therein mentioned, and that he did also see E. F. subscribe his name thereunto as the other witness of such sealing and de- livery, and that the name of this deponent thereunto set and subscribed as a witness is of this deponent's own proper hand-writing. Sworn (or aiSrmed) to and subscribed before me, the day and year aforesaid. Witness my hand and official seal. [seal. J (Signature and title.) (Signature of witness.) If a deed is not acknowledged, and there are no subscrib- ing witnesses, and any of the parties are dead, the hand- writing of such deceased party may be proved by two or more witnesses before any judge, who gives a certificate of such proof. The surviving parties must also be examined, and deeds so proved are entitled to record.' Conveyances by corporations should be executed by the corporate seal, attested by the president and secretary. The proof of execution may be made by either officer, and should be certified substantially as follows:. State of County of Be it remembered that on the day of , A. D. 18. . ,, before me (name and title of officer) personally 616 Ch. 11. 1 PENNSYLVANIA. [§453. came John Smith, who being duly sworn or affirmed accord- ing to law, doth depose and say that he was personally present and did see the common or corporate seal of the above named (name of the corporation) affixed to the fore- going imlenture or deed poll; that the seal so affixed is the common or corporate seal of the said (name of corporation) and was so affixed by the authority of the said corporation, as the act and deed thereof; that the above named A. B. is the president of the said corporation, and did sign the said indenture or deed poll as such in the presence of this deponent; that this deponent is the secretary of the said corporation, and that the name of this deponent above signed in attestation of the due execution of the said in'denture or deed poll, is of this deponent's own proper handwriting. zq. , „ -^ , . " (Signature of oecretary.) Sworn to and subscribed before me. (Official signature and seal of office. ) 1 Act of May 25, 187S. Held not necessary for the witness to sign the atfidavit of proof. Dana v. U. S. Bank, 5 Watts & S. 223. Claim for mechanic's lien should he filed in the office of the court of common pleas within six months after the work has been fiaished or the materials supplied. The claim of mechanicfi aad laborers must not be for less than ten dollars. Act of Junel7, 18S7; Act of May 21, 1878; Noll v. Swineford, 6 Pa. St. 187; Appeal of Cessna, 10 Atl. Repr. 1; Campbell's Appeal, 3G Pa. St. 247; Norris' Appeal, 30 Pa.. St. 122; Hofer's Appeal, 116 Pa. St. 360; s: c. 9 Atl. Eepr. 441; Odd Fellows v. Masser, 24 Pa. St. 507; s. c. 64 Am. Dec. 675; Kennedy v. House,' 41 Pa. St. 39; S. C. 80 Am. Dec. 594. 617 EHODE ISLAND. §455. Effect of Record. All bargains, sales and other conveyances whatsoever of any lands, tenements or hereditaments, whether they be made for passing any estate of free-hold or inheritance, or for a term of 3^ears exceeding the term of one year, and all deeds of trust and mortgages whatsoever, which shall here- after be made and executed shall be void, unless they be acknowledged and recorded as aforesaid; provided that the same, between the parties and their heirs, shall neverthe- less be valid and binding.^ Deeds must be sealed, and a scroll is not sufficient.^ 1 Public Stats. 18S2, p. 443, ch. 173, §4; Williams v. Winsor, 12 K. I. 9; Thurber v. Dwyer, 10 R. I. 355; McCusker v. MoEvey, 9 R. I. 525: "Wilson V. Conway, 4 R. I. 141 ; Nichols v. McReynoIds, 1 R. I. 30; s. <}. 3(i Am. Dec. 238. Town and city clerks are custodians of land records, and recorders of deeds, etc., except in the city of Provideuoe, which has an officer for this purpose, known as recorder of deeds. I 2 Pub. Stats., ch. 24, §14; ch. 173, §§l,2. Filing is notice. Nichols V. McReynoIds, supra. Actual notice is effectual. Tillinghast v. Champliii, 4 R. I. 173; s. C. 67 Am. Dec. 510; Westerly Sav. Bank v. Stillmau, 17 Atl. Repr. 918; and possession is notice : Harris v. Arnold, 1 R. I. 125. §456. Mortgages, Real and Chattel. Mortgages of realty are recorded the same as deeds and with like effect. A defeasance must be recorded, other- wise the deed absolute does not operate as a mortgage against a bona fide purchaser of the property from the grantee in the deed, and the person entitled to the defeas- ance is barred of all right of redemption against such second purchaser. ^ Mortgages are discharged of record by an entry of satisfaction by the holder thereof upon the mortgage, or upon the face or margin of the record, or by separate instrument of release and quit-claim to be recorded. Neglect 'for ten days after request to discharge the mort- gage renders the party neglecting liable to make good all damages that may accrue.^ Chattel mortgages not accom- panied with the possession of the property are not valid 618 Ch. 11.] EHODE ISLAND. [§457. against any other person than the parties thereto, unless recorded in the office of the clerk of the town where the mortgagor resides, or if he be a non-resident of tlie state, where the property is at the time the mortgage is made. They are recorded in separate books, except that a mort- gage of both real and personal property may be recorded with real estate mortgages only, but shall be indexed also on the chattel mortgage record.^ 1 Pub. Stats., ch. 176, §§1, 2. Possessiou of real estate may be taken by the mortgagee by peaceable and open entry in the presence of two witnesses, whose certificate thereof, acknowledged by the person deliv- ering possession, is to be recorded. This is equivaleu-t to a foreclosure of the mortgage, the mortgagor having the right to redeem within three years. Mechanics' liens must be tiled in the office of the town clerk of the town in which the land is situated within sixty days after materials furnished. Laus ISbS. p. 209. 2 Pub. Stats., ch. 176, §6. •■' Pub. Stats., ch. 176, §9; Laws 1S7S, ch. 707, §1; Gen. Stats. 1872, ch. 155, §§9, 10. Actual notice supplies the want of registry. Chattel mo)-tgages are usu illy foreclosed under power of sale in the mortgage, but foreclosure may also be effected by possession for sixty days after breach of condition. §457. Acknowledgment may be made within the state before a senator, judge, justice of the peace, notary public or town clerk. Without the state and within the United States, before any judge, justice of the peace, mayor or notary public, or commissioner of deeds for Rhode Island. In foreign countries, before any embassador, minister, charge d' affaires, recognized consul, vice-consul, or com- mercial agent of the United States, or before a commis- sioner of deeds appointed and quailfied in the country in which such deed or instrument is executed. ^ Neither proof of identity nor certificate thereof is required. ' Pub. Stats., ch. 173, pp. 443, 444; cb. 17, §4. In case of refusal, the grantor may be compelled to acknowledge by summary proceeding by complaint and warrant. The statute does not prescribe any special forfn for executing con- veyances by corporations. The president or treasurer, duly authorized by vote, usually affixes the corporate seal, etc., signs the oornorate name by (himself, adding his official designation), and acknowledges the in- strument as the deed of the corporation. 619 Cil. 11. ] ST ATDTOET PROVISIONS. [§§458,459-. §458. Acknowledgment of Married Women. A married woman may own separate property in ber own right, but the husband should join in the conveyance of her separate real estate. She is entitled to dower in the hus- band's lands, and in order to bar the right, she should join in his conveyance, though the husband only need acknowl- edge it. Separate examination of the wife is necessary in the conveyance of her real estate. The form of joint cer- tificate m^iy be as follows : State or County or Be it remembered that on this day of., , A. D. 18. ., before me (name and title of oiBcer) personally appeared , and , his wife, and the said acknowledged the foregoing instrument by him signed to be his free and voluntary act and deed; and the said , being by me examined privily and apart from her said husband, and having said instrument shown and explained to her by me, declared to me that it is her volun- tary act and that she does not wish to retract the same. In witness whereof I have set my hand and seal at , the dky and year above written. [seal.] (Signature and title. )^ ' Pub. Stats., ch. 166, §8; Paine v. Baker, 15 E. I. 100; S. C. 1 N. Ens;. Kepr. 153; Bateman's Petition, 11 R. I. 393; Kavanah v. Day, 10 K. I. 393 ; Warner v. Feels, 11 K. I. 471 ; OhurcMll v. Moore, 1 K. I. 209. §459. Proof by Witnesses. A deed without a witness is good, although it is usual to have one. There is no proof by subscribing witness, except before a court in this state when the grantor has died or removed out of the state before acknowledging the deed.^ ' Put). Stats., ch. 173, §§6-8. Such proof may be made before the supreme court, or court of common pleas. A claim of mechanic's lien must be filed with the town clerk of the town wherein the estate lies within four mouths after default in any payment under written contract, or after notice by a sub-contractor to the owner, and witljin six months after commencing work under verbal contract with the owner. Id., ch. 177; now sixty days. Laws 1S88, p. 209. 620 SOUTH CAROLINA. §460. Effect of Record. All conveyances, writings, deeds of trust and mortgages of or affecting real or personal property, including Jeasos for more than one year, statutory liens and renunciations of dower, shall be valid so as to affect from the time of their delivery or execution the rights of subsequent cred- itors or purchasers for valuable consideration without notice .only when recorded within forty days from the time of such delivery and execution ; provided that if recorded sub- sequently to such period of forty days, they shall be valid as aforesaid from the date of such record.^ A recorded deed may be read in evidence without further proof of its execution.^ The place of record is the office of the clerk of the court of common pleas in each county, except that in Charleston and Greenville, the proper office is that of the register of mesne conveyances. Marriage contracts are to be recorded not only in the county of the residence of the parties, but also in the office of the secretary of state in Columbia.^ ' 1 Gen. Stats. 1882, §§1776, 769, 1810; Martin v. Sale, 1 Bail. Eq. 1; Steele v. Mansell, 6 Rich. 443; Bloom v. Simms, 27 S. Car. 90; s. C. 3 S. E. Repr. io; Carraway v. Carraway, 27 S. Car. 576; s. c. 5 S. E. Eepi-. 157; Wood v. Ingi-'aham, 3 Strobh. Eq. 105; s. O. 51 Am. Dec. 671; Wragg V. Compt. Gea., 2 Desaus. .509; McCorkle v. Montgomery, 11 Rich. Eq. 132; Hutzler v. Phillips, 26 S. Oar. 136; 1 S. E. Repr. 502; Piester v. Piester, 22 S. Car. 139; City Council v. Paige, Spear's Eq. 159; McFall v. Sherrard, Harp. 295; Boyce v. Shiver, 3 S. Car. 515; Massey v. Thompson, 2 Nott & MoC. 105; Stokes v. Hodges, llRich. Eq. 135; Dawson v. Dawson, Rice Eq. 243. Possession is not notice where the instrument is not recorded. Actual ■notice, to supply the place of registration, must be of the instrument itself, or of its nature and purport. Laws 188S, p. 15. ■ As to record during and after the forty days : King v. Fraser, 23 S. •Car. 543; Leger v. Doyle, 11 Rich. Eq. 118; McNamee v. Huckabee. 20 .S. Car. 190; Steele v. Mansell, supra; Alston v. Alston, 2 Tread. Const. Rep. 604; s. C. 4 S. Car. 116; S. Car. Loan Co. v. McPherson, 26 S. Car. 431; s. C. 2S. E. Repr. 367. ' >■ 2 Gen. Stats., §2225; Peay v. Pickett, 3 MoCord, 318; Gourdm v. Heirs of Barino, 1 Harp. 221. ' Actual notice supplies the want of registry. Tart v. Crawford, 1 McCord, 475; Cabiaess v. Mahon. 2 McCord, 273. Possession as notice. Graham v. Nesmith, 24 S. Car. 380; Bieman V. White, 23 S. Car. 490; Shearn v. Robinson, 22 S. Car. 32. 621 Ch. 11. J STATUTORY PROVISIONS. [§§461, 462. ^ Gen. Stats., §§1776, 203S, 2039. Conveyances must be sealed by the grantors, §1775; and are notice from the time they are filed for record, §769. Certificates or titles issued by or under authority of the United States district; tax commissioners for South Carolina,, are legal notice when recorded in the record office of Beaufort county. §1783. See further as to effect of record, Martin v. Quattlebaum, 3 McCord, 205; Fenniman v. Hart, 2 Bay, 2.51; VVoolfolk v. GraniteviUe Co., 22 S. Car. 332; Thompson v. Bullock, 1 Bay. 367; Lessee of Gordon v. Par- sons, 1 Bay, 90; Mims v. Chandler, 21 S. Car. 480. §461. Mortg-ag-es of Realty are recorded as other con- veyances of realty under the statutes cited in the last section. 1 They may be discharged of record by an entry of satisfaction, in the proper office, on the mortgage, by the person receiving payment. Neglect for three months after request to enter satisfaction, renders the party liable in a sum not exceeding one-half the mortgage debt.^ 1 Gen. Stats., §1776; Tibbetts v. Langley, 12 S. Car. 465; Williams v. Beard, 1 S. Car. 309; Barnwell v. Porteus,^2 Hill Ch. 221 ; McKnight v. Gordon, 13 Rich. Eq. 222; .s. c. 94 Am. Dec. 164; King v. Fra-ser, 23 S. Car. 543; Charleston v. Kyan, 22 S. Car. 330; s. C. 53 Am. Kep. 713; Colnles V. MoCracken, S S. Car. 87 : Piester v. Piester. 22 S. Car. 139. ^ Gen. Stats., §1791. pp. 427, 428. The marginal entry tloes not re- quire two witnesses. City Council v. Kyan, 22 S. Car. 339; see also, Mosely V. Hankinson, 23 .S. Car. .519; Williams v. Cudd, 26 S. Car. 213; S. C. 2 H. E. Eeijr. 14. An assignee of a mortgage takes it subject to all equities. Moffatt v. Hardin, 22 S. Car, 9. As to creditors and purchasers under the recording acts, see Miles v. King, 5 S. Car. 146; Haynsworth v. Bischoff, 6 S. Car. 159; McKnight V. Gordon, stipra. Mechanics' liens must be filed with the register of mesne conveyance within ninety days after labor or material furnished. Laws 1884, p. 823. §462. AcknoTvledginent of Married Women. Deeds are not acknowledged, but proven for record by a subscribing witness. The only acknowledgment now pro- vided for in the statute is to a relinquishment of dower by the wife. She may convey her separate property as if sole;^ but should join in a deed of the husband, and before a court or officer designated by the statute,- and on the deed, or in some .separate instrument, renounce her dower in the manner shown in the following certificate: 622 Ch. 11.] SOUTH CAROLINA. [§463. State of } County of 5 1 (name and title of officer) do hereby certify unto all whom it may concern that A. B. , the wife of the within named C. B., did this day appear before me, and upon being privately and separately examined by me, did declare that she does freely, voluntarily and without any compulsion, dread or fear of any person or persons whomsoever, re- nounce, release and forever relinquish unto the within named E. F., his heirs and assigns, all her interest and estate, and also all her right and claim of dower of, in or to all and singular the premises within mentioned and re- (Signed by wife.) A. B. Given under my hand and seal, this day of , A. D. 18... [seal.] (Signature and title).* ' Gen. Stats., §§2035-2037. A deed or mortgage of her separate prop- erty requires neither acknowledgment nor joinder of the husband. §2036; LawslS87, p. 819. 2 Gen. Stats., §§1796, 1797. Within thestate the acknowledgment may- be made in open court, or before any judge of the court of common pleas, or justice of the supreme court, judge of probate, or clerk of the court of common pleas, and also before any ofBcer within or without the state, authorized to take affidavit of deeds, as stated in the next section,. ^ Gen. Stats., §1797; Mosely v. Hankinson, 23 S. Car. 519; Williams v. Cudd, 26 S. Car. 213; s. c. 2 S. E. Kepr. 14. See as to conveyances by the wife, and as to renunciations of in- heritance under former laws, Alston v. Alston, 4 S. Car. 116; Crenshaw V. Julian, 26 S. Oar. 2S3; s. c. 4 Am. St. Rep. 719; 2 S. E. Eepr. 133; Wingo V. Parker, 19 S. Car. 13; Gaffney v. Peeler, 21 S. Car. 59; Mc- Laurin v. Wilson, 16 S. Car. 402; McCreary v. McOreary, 9 Rich. Eq. 34. §463. Proof by Witnesses. The statute requires that deeds for the conveyance of real estate must be signed and sealed in the presence of two subscribing witnesses. ^ Proof for record may be made by a subscribing witness, as also the acknowledgment of a wife, within the state before a trial justice or notary public. Without the state, before a commissioner of deeds for South Carolina, or before commissioners appointed under 623 Ch. 11.] STATUTORY PROVISIONS. [§464. dedimus issued by the clerk of the court of the county in which the deed is to be recorded, or before the clerk of a court of record, who must use his official seal; or before a notary public, who must use his official seal, accompanied by the certificate of the clerk of a court of record of the state in which the attestation is made that he is a notary; or without the United States, before a consul or vice-consul of the United States. The certificate of proof must be subscribed by the witness, and may be as follows: State of County of Personally appeared before me E. F. , and made oath that he saw A. B. and C. B., his wife, sign, seal and deliver as their act and deed the within conveyance for the uses and purposes therein mentioned, and that he, with Gr. H., in the presence of each other, witnessed the due execution thereof. E. F. Sworn to before me this day of , A. D. 18 [seal.] (Signature and title. )^ 1 Gen. Stats., §§177.5, 2018; 1 Cheve's Law, 271; Little v. White, 7 S. E. Eepr. 72; McGowen v. Keed, 27 S. Car. 62; Woolfolk; v. Graniteville Co., 22 S. Car. 332. 2 Gen. Stats., §§768, 1777; Webb v. Chisholm, 24 S. Car. 487; Camp- beli V. MooQ, 16 S. Car. 107; Wood v. Reeves, 23 S. Car. 382; Hillegas V. Hartley, 1 Hill Ch. 106; Monks v. Jenkins, 2 Hill Ch. 9; Lamar v. Kaysor, 7 Eich. Eq. 509. §464. Chattel Mortgages and deeds of trust of personal estate are valid so as to affect from the time of their delivery or execution the rights of subsequent creditors or purchasers for value without notice, only when recorded within forty days from their delivery or execution in the county where the mortgagor resides, or if he be a non- resident of the state, in the county where the property is situated. Record after the forty days is effectual from the time it is made.^ Conditional sales of personal property, 624 Ch. 11. J SOUTH CAROLINA. [§464. which is delivered to the vendee, are required to be re- corded.^ 1 Gen. Stats., §1776; Laws 1876,p. 92; Loynsv. Tedder, 7 S. E. Kepr. 69. Possession of a stock of mortgaged goods retained by the mort- gagor, who continued to carry on the business, held not such a badge of fraud as to vitiate the mortgage. Hirskhind v. Israel, 18 S. Oar. 157. 2 Gen. Stats., §2022; Laws lS82,p. 20; Herring v. Cannon, 21 S. Car. 212; s. c. 53 Am. Rep. 661; Ludden v. Dusenbury, 27 S. Car. 464; s. c. 4 S. E. Kepr. 60. (40— Keg. of Title.) 635 TENNESSEE. §465. Effect of Record. No deed of conveyance for lands shall be good and avail- able in law as to strangers, unless the same be acknowledged by the vendor or proved by two witnesses on oath and reg- istered in the county whei;e the land lies.^ Instruments conveying or affecting title to real or personal property not so proved or acknowledged and registered or noted for registration shall be null and void as to existing or subse- quent creditors, and as to bona fide purchasers from the makers without notice; and in case of marriage contracts, shall be void as to existing or subsequent creditors of the husband or purchasers from him without notice.^ All in- struments are notice from the time they are tiled or noted.' The statute is very full and specific in its enumeration of instruments that may be recorded, including nearly every character of writing that can affect the title to real or per- sonal property.* 1 Oodeof Tenn. (1852), §2005; Code, (Mil. &Ver.) 18S4, §2811; Boyce V. Stanton. 15 Lea, 346; JlcCulloch v. Endaly, 3 Yerg. 340; Martin v. Neblett, 2 Pick. 3S3; s. C. 7 S. W. Repr. 123; Lally v. lioUand, 1 Swan', 396; Baldwin v. Marshall, 2 Humph. 116; Smith v. ^■eilson, 13 Lea.' 461; Shields v. Mitchell, 10 Yerg. S; Craig v. Leiper. 2 Yerg. 193; s! c. 24 Am. Dee. 479; White v. NasliviUe Ry. Co., 7 Humph. 518; Green V. DeMoss, 10 Humph. 371; Lea v. Polk Co., 21 How. (62 U. S.) 493; Sharp V. Fly, 9 Baxt. 4; Clark v. Arnold, 2 Hay. 287; Jarmau v. Far- ley, 7 Cold. 141; High v. Batts, 10 Yerg. 335; Worley v. State, 7 Lea 382. 2 Code (M. & v.), §2890. Actual notice supplies want of registry. Otis V. Payne, 2 Pick. 663; s. c. 8 S. W. Repr. 848; Macon v. Shep- hard, 2 Humph. 335; Tagg v. Tenn. Nat. Bank, 9 Heisk, 479; Myers v. Ross, 3 Head, 60; Murrell v. Watson, 1 Tenn. Ch. 342; Vance v. Mas- terson, 3 Humph. 619; Bledsoe v. Rogers, 3 Sneed, 466; except as against creditors: Lookout Bank v. Noe, 1 Pick. 21- s. c. 5 S. W Repr. 433; Lyle v. Langley, 6 Baxt. 286, and cases cited 'in notes to next ■section. 3 Code (M. & v.), §§2SS7, 2SS8; Woodward v. Boro, 16 Lea, 678; Swenson v. Bank, 9 Lea, 713; unless the instrument is withdrawn before record : Hickman v. Perrin, 6 Cold. 135. Possession is notice. Randolph v. Meeks, Mart. & Y. 58; Macon v. Shephard, .<»;))■«; Mitchell V. Churchman, 4 Humph. 218. * Code (Jl. & v.). §2837. It specifies agreements and bonds; powers of attorney and revocations thereof; bills of sale; .certified copies from other counties; mortgages and trust deeds; discharges and releases; all other deeds of every description; plats; pre-emption transfers; 626 Cll. 11. J TENNESSEE. ^ [§§466, 467. leases for over three years; wills from other states; memorauda of judgments and decrees, and others besides. Where a conveyance con- tains several tracts lying in dilJerent counties, it must be recorded in each of them; but if only one tract lying in two or more counties, it may be registered in either. §2S43. Record of bond for title is notice. McFarran v. Knox, 5 Cold. 217; Morgan v. Snell, 3 Baxt. 382; but not an assignment of a bond : Kelly V. Thompson, 2 Heisk. 281. §466. Mortgages of Realty are recorded as other convey- ances and with like effect. ^ They are not good as against creditors, whether with or without actual notice, until duly filed for registration.^ They may be discharged of record by a deed of release duly recorded, or by an entry in the margin of the record made by the proper person and wit- nessed by the registrar. The statute prescribes the form of acknowledgment of satisfaction.^ ' Rugglefe V. Williams, 1 Heisk. 141; Turbeville v. Gibson, 5 Heisk. 874; Shields v. Dyer, 2 Pick. 41 ; s. C. 5 S. W. Eepr. 439; Christian v. Clark, 10 Lea, 630; Moore v. Walker, 3 Lea, 656. 2 Actual notice of an unregistered conveyance does not affect cred itors. Lillard v. Kuckers, 9 Yerg. 64; Butler v. Maury, 10 Humjih. 420 Coward v. Culver, 12 Heisk. oil; Chester v. Greer, 5 Humph. 26; Green V. Goodall, 1 Cold. 412; Stanley v. Nelson, 4 Humph. 484; Miller v, Estill, 8 Yerg. 4J)2; Nailer v. Young, 7 Lea, 737; Sharp v. Fly, 9 Baxt 5; VYilson V. Eifler, 11 Heisk. 188; Morgan v. Elam, 4 Yerg. 375; In gram v. Morgan, 4 Humph. 66; Baldwin v. Baldwin, 2 Humph. 476 Washington v. Trousdale, Mart. & Y. 385; Carnis v. Jones, 5 Yerg. 249, 8 Code (M. & v.), §§2839, 2840; Svvenson v. Bank, 9 Lea, 713. " In mechanic's lien, a statement of amount due for work or materials furnished shall be filed with the county register within thirty days after work done. Laws 1887, p. 165. §467. Acknowledgment or proof for record may be made within the state before clerks of county courts and their deputies and notaries public. Without the state and within the United States, before a commissioner of deeds for Tennessee, a notary public, or any court of record, or the clerk thereof. If made before a court, the copy of the entry on the record shall be verified by the clerk under his seal, and if before a clerk, his ofiicial character must be certified to by the presiding jud'ge. 627 Ch. ll.j STATUTORY PRO VISIONS. [§468. In foreio-n countries, before a commissioner of deeds for Tennessee, a notary public, consul, minister, or embassador of the United States. Certificates of probate or acknowl- edgment without the state must be under the ofEcial seal of the officer.^ 1 Code (M. & V. ), §§2851-2855; Laws 1870, ch. 74. §§1-4; Shields v. Netherlands. 5 Lea, 193; Stinson v. Kiissell, 2 Tenn. 40. The word "purposes" must not be omitted. Currie v. Kerr, 11 Lea, 138. The of- ficer must certify the identity of the person malting ttie acknowledg- ment or proof. The register receives one mill on the dollar for foreign deeds sent to hini for record. Notaries, commissioners, consuls, minis- ters and embassadors must use their official seals. Code (M. & V;), §2856; Garth v. Fort, 15 Lea, 688. Where the absence of the original is accounted for, a certified copy of a duly recorded instrument is prima fade evidence of its contents and ex- ecution. Code (M. & v.), §2886. §468. Acknowledgment of Married Women. The wife may own separate property in her own right, and may convey such property without the joinder of the husband, and also, it seems, without privy examination ;i especially if the instrument creating the estate gives her in relation thereto all the powers of a feme soIe\ Where the husband joins, as in conveyances of her general estate, or where both join in conveying the homestead, a privy exam- ination is required. The form of certificate may be as fol- lows : State of ) CouNTT or 5 Before me (name and title of officer) personally ap- peared , and , his wife, the within named bargainors, with whom I am personally acquainted, and who severally acknowledged that they executed the within deed (or other instrument) for the purpose therein contained; and the said , wife of said , with whom I am personally acquainted, having appeared before me privately and apart from her said husband, acknowledged the execution of said deed to have been done by her freely, voluntarily and understaudingly, without compulsion or G2S Ch. 11. J TENNESSEE. [§4:69. constraint of her said husband and for the purposes therein expressed. Witness my hand and seal of office, at office, this. . . .day of , A. D. 18. .. [oFEiciAL SEAL.] (Signature and title. )^ 1 Code (M. & v.), §§3347, 3350; Robertson v. Queen (Tenn.), 11 S. "W. Eepr. 38, with dissenting opinion. 2 Code (iVI. & v.), §3350; Sherman v. Turpin, 7 Cold. 382; Kobertson V. Queen, supra. 3 Code (M. & v.), §§2891-2893; Mount v. Kesterson, 6 Cold. 4G4; Edmondson v. Harris, 2 Tenu. Ch. 427; Coal Creek Co. v. Heck, 15 Lea, 497, 513; Morgan v. Elani, 4 Terg. 375; Young v. Young, 7 Cold. 461 ; Johnston v. Walton, 1 Sneed, 258; Laird v. Scott, 5 Heisk. 314; Hender- son V. Kice, 1 Cold. 223; Shields v. Netherlands, 5 Lea, 19S; Harrison V. Wade, 3 Cold. 585; Fall v. Koper, 3 Heisk. 486; Fredenwold v. Mul- len, 10 Heisk. 226. The word "understandingly" cannot be omitted. Anderson v. Bew- ley, 11 Heisk. 29; Wright v. Dufield, 2 Baxt. 218. In a joint certificate, the identity of the wife need not be certified. Bell v. Lyle, 10 Lea, 44. The wife cannot convey by power of attorney. Pilcher v. Smith, 2 Heisk. 209. Where the wife is sick, so that her acknowledgment cannot conven- iently be taken by the county clerk, he may issue a commission to a justice of the peace, authorizing the justice to take it. §2892. Where the acknowledgment is defectively certified, the clerk may correct it upon making affidavit of correction in open court. §§2885, 2896; Gro- tenkemper v. Carver, 4 Lea, 379; Brinkley v. Tomeny, 9 Baxt. 275. §469. Proof by Witnesses. Conveyances do not require witnesses if acknovcledged. They may be probated for record upon the evidence of two .attesting witnesses. The certificate of proof may be as follows : State or ) County of ) Before me (name and title' of officer) personally appeared E. F. and G. H., subscribing witnesses to the within deed (or other instrument), and who being first duly sworn, de- posed and said that they are acquainted with 'A. B., the bar- gainor (or as the name may be), and that he acknowledged the same in their presence to be his act and deed, on the day of , A. D. 18. .. 629 Ch. 11.] STATUTORY PKOVISIONS. [§470. "Witness my hand and seal of office, at office, this. . . .day of , A. D. 18. .. [official seal.] (Signature and title. )^ 1 Code (M. & v.), §§2850, 2860, 2873; Crockett v. Campbell, 2 Helsk. 411; Tate v. Laurence, 11 Heisk. 503; Harrison v. Wade. 3 Cold. 505; Lea V. Polk County. 21 How. (U. S.) 493; ilcGuire v. Hay, 6 Humph. 419; Hightower v. Wells, 6 Yerg. 249. The proof must be by two wit- nesses. Batte V. Stone, 4 Yerg. 168. s470. Cliattel Mortgages and deeds of trust of personal property are recorded as other conveyances and mortgages, and with lilio effect, except that the record must be made in the county of the vendor's residence, unless he be a non- resident of the state, in which case the record is in the county where the property is.^ 1 Code (M. & V.,) §§2837, 2S90, 2844; Parker v. Hall, 2 Head, 641. Recorded chattel morrgage lien on a horse superior to subsequent lien of a livery stable keeper, under Code (M. & V.), §2760. MoGehee v. Edwards, 11 S. W. Kepr. 316. Notice of mechanics' liens must be tiled with the county registrar. Code (M. & v.), §§2745-2748; Act of April 2, 1881; Act of 18S7, oh. 85. Retention by a seller oE title to machinery placed on land until the price is paici, with a reservation of the right, in case of default in pay- ment, to take possession of and remove such machinerv without pro- cess, is not a waiver of the lien given by Code Tenn. §2739, on any lot of ground for the price of machinery furnished or erected thereon. Case Manuf'g Co. v. Smith, U. S. C. C. (Tenn.), 40 Fed. Rep. 339. 630 TEXAS. §471. Effect of Record. All conveyances whatsoever of lands, whether made for passing estates of freehold, or inheritance, or for a term of years, all deeds of settlement upon marriage, and all deeds of trust and mortgages whatsoever, are void as to all creditors and subsequent purchasers for valuable considera- tion without notice, unless duly acknowledged or proved and filed with the county clerk for record.^ Registr}' is to be madein the county in which the real estate, or a part thereof, is situated, except that where the land lies in an unorganized county, the record is to be made in the county to which such unorganized county is attached for judicial purposes.^ Instruments are notice from the time they are delivered to the clerk for record.^ The record, when duly made, is de- clared constructive notice to all persons* Certified copies of patents, and of archives of the genera! land office, and from the records of any county the public recori? of which has been lost, destroyed or carried away, and of duly pro- bated wills, may be recorded with the effect of notice.^ The re-record of an instrument once properly recorded is declared not legally necessary because of the creation of new counties or subsequent change of county lines. ^ The statute makes provision for supplj'ing lost and destroyed records.^ 1 Kev. Stats.* 1879, §4332. Tbe statute authorizes the record of "all * * * * instruments of writing concerning any lajidsacd tenements, or goods and chattels, or movable property of any description." §4331 : hut, as shown above, the succeeding section, detiuiag the effect of rec- ord, or want of record, is not so broad in its terms, an'l it is held that transfers of personal property and choses in action are not entitled to record, unless elsewhere required by statute: Peorram v. Owens, 6-t Tex. 475; Burnham v. Chandler, 15 Tex. 441 ; arete, §§40, 245 ; posi, §470 2 Eev. Stats., §4333; Laws 1887, p. 94; Sayles' Stac. §4333; Lav,'s 1881, p. 72; Sayles' Stat., §4333; Adams v. Hayden, 60 Tex. 223; Jones V. Powers, 65 Tex. 207. , (*) The references in these notes to the Kevised Stats, of 1879, which la the latest ofBclal compilation, will answer also for references to Sayles' Annotated Stats, of 1888, as the numbering of the later work corresponds with that of the former. For session laws of 1838 and 1889, separate reference it given to the addenda vol. (1869) of Sayles' Stats. 631 Cll. 11.] STATUTORY PROVISIONS. [§47 la. Prior lo Ihe Act of ISSl there was no law requiring that titles to land in unorymizfil counties should be recorded in the county to which such unuigtinizeacoundcs wereattachedfor judicial purposes. * » * * The iaiul having been in Bexar county prior to the creation of Taylor count. , ibere being no statute then directing that the deed he recorded in any l>Mriiciilar"county, it^ registration In Bexar county was proper, and was cun-lrnctive notice to subsequent purchasers — although Taylor county w:is at Ihe date of such record attached for judicial purposes to a county otbcr than Bexar. Baker v. Beck (Tex.), 12 S. W. Repr. 229, citing AUord V. Jones, 71 Tex. 519; S. C. 9 S. W. Kepr. 470. » Bev. Stats., §4334; Throckmorton v. Price, 28 Tex. 605; s. C. 91 Am. Dec. 334; Freiberg v. Magale, 70 Tex. 116; Crews v. Taylor, 56 Tex. 461. The instrument '-shall be considered as recorded from the time it was deposited for record." §4299. Yet the record held invalid, because the clerk failed to copy the certificate of acknowledgment. Taylor v. Harrison, 47 Tex. 454; s. C. 26 Am. Eep. 304. See ante, §§16-18. ^ Eev. Stats., §4342. That the subsequent purchaser vainly searched the records for a recorded deed, cann.ot change the rule. Edwards v. Barwise, 69 Tex. 84; s. C. 6 S. W. Repr. 677. Registry not notice where there is a break in the recorded title. Watson V. Chalk, 11 Tex. 93; Lumpkin v. Adams (Tex.), 11 S. W. Repr. 1070; Word v. Box, 66 Tex. 596; post, §158. A perfect record title protects a purchaser without actual notice of defect. Edwards v. Brown, 69 Tex. 84; s. C. 6 S. W. Repr. 677; Link V. Page, 72 Tex. 592; Wright v. Lassiter, 71 Tex. 640; S. G. 10 S. W. Repr. 295; ante, §154. 5 Rev. Stats., §§4337, 4330, 4291, 4876. Without express statutory authority, the record of a certified copy is of no effect. Uhlv. Musquez, 1 Tex. Un. Cas. 050; ante, §56. Patents may be recorded without ac- knowledgment: §4329; but they are notice without record. Stevens V. Geiser, 71 Tex.'l40; s. C. 8 S. W. Repr. 610; Key v. Mumme, 66 Tex. 268; Evitts v. Roth, 61 Tex. 81. See ante, §25, and Rio Grande Ry. Co. V. Milmo Nat. Bank, 72 Tex. 467. ' Rev. Stats., §4358. This was the rule before the statute. McKissick V. Colquhoun, IS Tex. 148, and cases cited ante, §187. ' Rev. Stats., §§4286-4293; Johnson v. Skipworth, 59 Tex. 493; ante, §187. Destroyed record presumed after lapse of long time, when. Har- rison V. McMurray, 71 Tex. 122 ; s. C. 8 S. W. Repr. 612 ; White v. Jones, 67 Tex. 638; s. c. 4 S. AV. Repr. 161. Powers of attorney, marriage contracts and oflicial bonds are to be recorded in books provided for that purpose. §4336; Watson v. Mercer, 27 Tex. 637. See as to record of bonds for title, Catlin v. Bennatt, 47 Tex. 165; Scarborough v. Arrant, 25 Tex. 129; York v. McNutt, 16 Tex. 13; 67 Am. Dec. 607; ante, §38. §4:71a. Effect of Record— Continued. A duly recorded instrument, or a certified copy thereof, the absence of the original being first accounted for, is ad- 632 Ch. 11.] TEXAS. [§471a. missible in evidence without proof of execution. ^ Abstracts of judgments affecting realty,^ copies of decrees of partition of realty,^ notices of the levy of writs of at- tachment on real estate/ and transcripts of judgments of justices of the peace under which land has been sold, are to be recorded in, the office of the county clerk. ^ The statute denounces a penalty of not exceeding five hundred dollars and all actual damages against the clerk for any neglect of duty or official miscunduct as recorder.^ Certi- fied copies of a will duly probated in Texas may be recorded in other counties, and may be used in evidence as the originals might be. Where a will conveying lands in Texas is probated in another state, a duly certified copy of the will and its probate may be recorded in the county wherein the land lies, without further proof or authentication, or probate in Texas.' 1 Eev. Stats., §22.57; Belcher v. Fox, 60 Tex. 527; Ballard v. Perry, 28 Tex. 347; ante, §5ti. The statute applies to a duly recorded bill of sale. Morrow v. State, 22 Ct. App. 239; s. c. 2 S. W. Repr. 624; and to a copy of a patent, where the copy is taken from the county records : Kio Grande, etc., Ry. Co. v. Milmo Nat. Bank, 72 Tex. 467; but where the copy offered in evidence is from the general land office, the non- productiou of the original need not be accounted for. Ney v. Mumme, 66 Tex. 26S. Where a deed embraces tracts in different counties, and is properly recorded in any one of them, it is admissible in evidence as a recorded instrument in the others, as to the tracts there situate. Han- cock V. Tram Lumber Co., 6.5 Tex. 225; ante, §56. 2 Rev. Stats., §§3153-3163. 433S; Schleicher v. Markward, 61 Tex. 99. Indexing the abstract is essential. Belbaze v. Katto, 69 Tex. 636; s. c. 7 S. W. Repr. 501 ; ante, §42. 2 Rev. Stats., i;-l33U; Thornton v. Murray, 50 Tex. 161; Russell v. Farquhar, 55 Tex. 355. ' Laws 1889, p. 80; Sayles' Stat., add. vol., §167a; ante, §44. Where the suit is in a county other than where the land lies, the attachment lien is not valid against subsequent purchasers for value and without notice, and subsequent lien-holders in good faith until notice of the levy is recorded in the county where the land is situate. 5 Laws 1889, p. 133; Sayles' Stat., add. vol., §4331a. The transcript includes copy of the execution and return of the officer thereon. A cer- tified copy from the county clerk's record is admissible in evidence with like effect as the original judgment and execution. « Rev. Stats., §43.50; Crews v. Taylor, oG Tex. 461; ante, §150. The clerk should record deeds without blank spaces left between theni on 633 STATUTORY PROVISIONS. [§472. the record. Edwards v. Barwise. 69 Tex. 84; s. C. 6 S. VV. Repr. 677. The clerk may record his own deed. Brockeuborough v. Jlelton, 5.5 Tex. 493; ante, §148. 7 Ei'v. Stats., §4876; Laws 18S7, p. 3S; Saj'les' Ann. Stats. §54S(i; Marsh v. Hiiyter, 50 Tex. 243; Ryan v. Tex. & P. Ry. Co., 64 Tex. 242. Probate of a will, as a proceeding in rem, charges every one with notice. Steele v. Renii, 50 Tex. 468; ante, §50; but not where the probate is in another state than where the land lies. Slayton v. Singleton, 72 Tex. 209; s. C. 9 S. W. Repr. 876. Actual notice supplies the want of registry. Portis v. Hill, 30 Tex. 529- s. c. 98 Aui. Dec. 481 ; Littleton v. Giddings. 47 Tex. 109; Brother- ton V. AVeathersby (Tex.), 11 S. W. Repr. 505; Slayton v. Singleton, 72 Tex. 209; .s. C. 9 S. W. Repr. 876; Link v. Page, 72 Tex. 592; Wilson v. Williams, 25 Tex. 54; Bonner v. Stephens, 60 Tex. 616; Harrison v. Bor- ing, 44 Tex. 253. Possession is notice. Glendenning v. Bell, 70 Tex. 632; s. c. 8 S. W. Repr. 324; Evans v. Templeton, 69 Tex. 375; S. C. 5 Am. St. Rep. 71; 6 S. W. Repr. 843; Smith v. Miller, 63 Tex. 72; Watkiiis v. Edwards, 23 Tex. 443; Wiraberly v. Bailey, 58 Tex. 222; except that of a grantor after the recoid of a deed of the premises from biin. Eylar v. Eylar, 60 Tex 319; Alstin v. Cmidlff, 52 Tex. 450; ante, §§230, 231. Becftals that suggest inquiry chargu notice. Carter v. Hawkins, 62 Tex. 393; Nye v. Moody, 70 Tex. 434; s. C. 8 S. W. Repr. 606; Kirk v. Navigation Co., 49 Tex. 213; Webb v. Burney, 70 Tex. 322; s. c. 7 S. ^y. Repr. 841; if in the chain of the title: Holmes v. Buckner, 67 Tex. 107; s. C. 2 S. AV. Repr. 452; Jenkins v. Adams, 71 Tex. 1; s. c. 8 S. W. Repr. 603; ante. §§158, 163. Resulting trusts and vendors' liens not within nor affected by the rei^istry laws. Senter v. Lamb >th. 59 Tex. 256; McKamey v. Thorpe, 61 Tex^ 648; Parker v. Coop, 60 Tex. Ill; Calvert v. Roche, 59 Tex. 463; Blankeuship v. Douglass, 26 Tex. 292; s. C. 82 Am. Dec. 60S. §473. Mortgage.s of Realty. Deeds of tru^t and mortgages are recorded in a separate set of books ;^ otherwise they are recorded in the same manner as deeds, and with like effect. They are dis- charged of record by a release or quit-claim, duly acknowl- edged and recorded; there being no statutory provision on the subject.^ 1 Rev. Stats., §4304. Assignments of mortgages are to be recorded. Henderson v. Pilgrim, 22 Tex. 464. ' Steffian v. Bank, 69 Tex. 515; 8. 0. 6 S. W. Repr. 823; Perkins v. Sterne, 23 Tex. 561; s. C. 76 Am. Dec. 72; Haldeman v. Knight, Dallam, ,556; Breedlove v. Ewing, 45 Tex. 47; Byler v. .Johnson, 45 Tex. 509; Bank v. Ackerman, 70 Tex. 429; s. C. 8 S. W. Repr. 451; Turner v. Phelps. 46 Tex. 2.51; .Jackson v. Jones, 11 S. VV. Repr. 1061; Lumpkins V. Adams, 11 S. W. Repr. 1070. 634 Ch. 11.] TEXAS [§473. As to creditors under the recording acts. Ayres v. Diiprey. 27 Tex. 607; s. C. 86 Am. Dec. 657; Barrett v. Barrett, 31 Tex. 344; Catlia v. Bennatt, 47 Tex. 166; Stevenson v. Tex. & P. Ry. Co., lO.i U. S. 703; Ovorstreet v. Planning, 67 Tex. 657; .s. c. 4 S. W. lU'pr. 248. As to valuable consideration. Spurlocli v. Sullivan, 36 Tex. 511 ; Slator V. Neal, 64 Tex. T2->; Morton v. Lowell, 56 Tex. 643; Beaty v. Whitaker, 23 Tex. 526; Evans v. Templeton, 69 Tex. 375; ,s. c. 5 Am. St. Kep. 71 ; Fletcher v. Ellison, 1 Tex. Un. Cas. 661 ; Case v. Jennings, 17 Tex. 673; Huyler v. Dohoney, 4S Tex. 239; Fraim v. Fredericlt, 32 Tex. 294. Actual notice to a creditor is effectual. Glendenning v. Bel], 70 Tex. 632; s. C. 8 S. W. Repr. 324; Woodson v. Collins, 56 Tex. 175; but it must be before his lien i,s fixed : Grace v. Wade, 45 Tex. 522 ; Freiberg V. Magale. 70 Tex. 116; S. C. 7 S. W. Repr. 684; Kaoney v. Hogan, 1 Tex. Un. Cas. 2.52. Purchaser by quit-claim not bona fide. Thorn v. ]S"e\vsom, 64 Tex. 161; s. C. 53 Am. Rep. 747; Fletcher v. Ellison, 1 Tex. Un. Cas. 66; Harrison v. Boring, 44 Tex. 255; ante, §§27, 183. Purchaser from heir protected. Slayton v. Singleton, 72 Tex. 209; S. C. 9 S. W. Repr. 876; Tayloi'- v. Harrison, 47 Tex. 454; Holmes v. Johns, 56 Tex. 52; Lewis v. Cole, 60 Tex. 341; ante, §184. Purchaser with actual notice, from one without notice, protected. Moore v. Curry, 36 Tex. 668; ante, §155. • Purchaser without actual notice of a prior unrecorded deed is pro- tected, thouo-h such prior deed be tlien recorded before his own deed. Ranney v. Hogan, 1 Tex. Un. Cas. 257; ante, §§13-15, 165-167. §473. Acknowledgment or proof for record may be made within the state before a clerk of the district court, judse or clerk of the county court or a notary public; Without the state and within the United States, before a clerk of some court of record having a seal, commissioner of deeds for Texas or a notary public. In foreign countries, before a minister, commissioner or charge d'affaires of the United States, a consul general, consul, vice-consul, commercial agent, vice-commercial agent, deputy consul or consular agent of the United States, or a notary public. ^ The officer must place his certificate on the instrument, with his official seal affixed thereto ;2 and must certify the identity of the grantor. ^ Corporations may convey by deed under the corporate seal, signed by the president or presiding member or trustee, and acknowledged by such officer to be the act of the corporation, or proved in the 635 Ch. 11.] STATUTORY PROVISIONS. [§474. manner prescribed for other conveyances.* By statutory suit, or proceeding in court, an imperfect certificate of ack- nowledgment may be corrected, or an instrument may be proved for record, the judgment in such case being equiva- lent to a certificate of acknowledgment or proof.^ ' Rev. Stats., §§4305-4309. A judge iu another state is not now authorized to take acknowledgments for Texas. Talbert v. Dull, 70 Tex. 675; s. C. 8 S. W. Repr. 530. Clerks may act by a lawfully authorized deputy. Werty. Schneider, 64 Tex. 327; Rose v. Xewman, 26 Tex. 131 ; ante, §62. The officer may use abbreviations in stating his title. McDonald v. Morgan, 27 Tex. 504; BIythe v. Houston, 46 Tex. 67; ante, §72. See further as to the officer, Willis v. Lewis, 28 Tex. 185; Brown v. Moore, 38 Tex. 645; Wilson V. Simpson, 68 Tex. 312; s. C. 4 S. W. Repr. 489; Titus v. John- son, 60 Tex. 224; Pererson v. Lowry, 48 Tex. 408; Sample v. Irwin, 45 Tex. 567. = Rev. Stats., §§4308, 4311. Official seal mu=t be used, Kingv. Rus- sell, 40 Tex. 124, 130; Texas Land Co. v. Williams, 51 Tex. 51 ; McKellar V. Peck, 39 Tex. 381 ; ante, §73; but the recorder need not copy the seal on the record. BnUard v. Perry, 28 Tex. 347, 3J4; ante, §74. Certificate may be attached by mucilage, etc. Schramm v. Gentry, 63 Tex. 583; ante, §86. The certificate cannot he aided, or its omissions supplied, by parol. Coffey V. Hendricks, 66 Tex. 676; s. C. 2 S. W. Repr. 47; Titus v. .John- son, 50 Tex. 224. Material omissions and errors are fatal. Huff v. Webb, 64 Tex. 284; McDonald v. Xeedham, 61 Tex. 269; ante, §81; but not of formal matters and dates. Monroe v. Arledge, 23 Tex. 478; Webb V. Huff, 61 Tex. 677; ante, §82. Substantial compliance is sufficient. Belcher v. Weaver, 46 Tex. 293; s. c. 26 Am. Rep. 227; Talbert v. Dull, 70 Tex. 675; s. C. 8 S. W. Repr. .530; ante, §79. s Rev. Stats., §4309 ; Watkins v. Hall, 57 Tex. 1 ; Schramm v. Gentry, 63 Tex. 583; Little v. Wetherford, 63 Tex. 638; ante, §77. Proof of identity need not be indorsed on the certificate. Sowers v. Peterson, 59 Tex. 216. * Rev. Stats., §600; Muller v. Boone, 63 Tex. 91; ante, §60. Conveyance by an attorney in fact may be acknowledged in the ordi- nary form for a deed in the maker's own right. Giddens v. Byers, 12 Tex. 75 ; ante, §59 ; and see Link v. Page, 72 Tex. .592 ; Hough v. Hill, 47 Tex. 148 5 Rev. Stats., §§4353-4355; Pegram v. Owens, 64 Tex. 475; Johnson ^ V. Taylor, 60 Tex. 360; ante, §94. Validating acts. Rev. Stats., §§4356-4358; Crayton v. Hamilton, 37 Tex. 269; Baker v. Westcott, 11 S. W. Repr. 157; Butler v. Dunagan, 19 Tex. 559; ante, §97. §474. Acknowledgment of Married "Women. The wife's ante-nuptial property, and that acquired after marriage by gift, devise or descent, is her separate prbp- 636 Cll. 11. J TEXAS. [§474. erty; but the husband must join in her conveyances of realty.^ Property acquired by onerous title during the marital relation. is community property, and during the coverture is subject to disposal by the husband only, unless it be the homestead, in which case the wife must join in the conveyance.^ Estates of dower and curtesy are not recog- nized. The statute provides for registering a schedule of the wife's separate property.^ A convfeyance of or by the wife must be personally ack- nowledged by her, a separate examination being necessary. The form of joint certificate may be as follows : State of > County of ) Before me (name and title of officer) on this day person- ally appeared , and , his wife, known to me (or proven to me on the oath of ) to be the persons whose names are subscribed to the foregoing in- strument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed; and the said , wife of the said , hav- ing been examined by me privily and apart from her said husband, and having the same fully explained to her, she, the said , acknowledged such instrument to be her act and deed, and declared that she had willingly signed the same for the purposes and consideration therein ex- pressed, and that she did not wish to retract it. Given under my hand and seal of office this day of , A. D., 18. .. [seal. J if Signature and title).* 1 Eev. Stats., §§2S51, 559; Oline v. upton, 56 Tex. 319; Pearce v. Jaclison,. 61 Tex. 642 ; Ross v. Kornrumpf , 64 Tex. 390 ; Stoker v. Bailey, 62 Tex. 299; Dixon v. Sanderson, 72 Tex. 359; Dooley v. Montgomery, 72 Tex. 429; Morrison v. Clark, 55 Tex. 437; ante, §§114, 186. 2 Kev. Stats., §§2852, 560; Peet v. Commerce Ky. Co., 70 Tex. 522; S. C. S S. W. Repr. 203; Stevens v. Matthews, 69 Tex. 340; s. C. 6 S. W. Eepr. 367; Tom v. Sayers, 64 Tex. 339, and cases cited ante. §114. ■Where the title of community property Is in the name of the husband only, a purchaser from him, without actual notice of the real status of 637 Ch. 11. J STATUTORY PKOVISIONS. [§475. the property, will be protected against the claims of the wife and her heirs. Edwards v. Brown, 68 Tex. 329; S. C. 4 S. W. Repr. 380; Hill v. Moore, 62 Tex. 610. As to when wife may convey without the husband's joinder, see Hector V. Knox, 63 Tex. 613; Clements v. Ewing, 71 Tex. 370; S. C. 9 S. W. Kepr. 312; Zimplema»v. Kobb, 53 Tex. 274; ante, §118. 3 Rev. Stats., §§4344-4349. No consequence is attached to a failure to register sucli schedule. Edringtonv. Mayfleld, 5 Tex. 363; Braden v. Gose, 57 Tex. 37; ante, §185. * Rev. Stats., §§4310, 4312, 4313; Clements v. Ewing. 71 Tex. 370; S. c. 9 S. W. Repr. 312; Johnson v. Bryan, 02 Tex. 623; Belcher v. Weaver, 46 Tex. 293; s. c. 26 Am. Rep. 267; Davis v. Agnew, 67 Tex. 206; s. c. 2 S. W. Repr. 43, 376; Ruleman v. Pritchett, 56 Tex. 482; Berry v. Donley, 26 Tex. 737; Coorabes v. Thomas, 57 Tex. 321; Cole v. Bammel. 62 Tex. 108; Langton v. Marshall, 59 Tex. 296; Burliett v. Scarborough, 59 Tex. 496; Jones v. Goff, 63 Tex. 255; Looney v. Adam- son, 48 Tex. 619. A wife's deed without due certiftcate of acknowledgment not admis- • Bible in evidence as an ancient instrument. Parlter v. Chancellor (Tex.) , 11 S. W. Repr. 503; see ante, §95. Privy examination of a widow not necessary. Seville v. Jones (Tex.), 11 S.' W. Rejjr. 1128. The wife may convey by power of attorney. Pattou v. King, 26 Tex. 685; s. C. 84 Am. Deo. 596; Warren v. Jones, 69 Tex. 462; s. C. 6 S. VV. Repr. 775; but not by a power made to the husband. Conner v. Bout- well, 53 Tex. 627; Pealt v. Brinson, 71 Tex. 310; s. C. 11 S. W. Repr. 269; ante, §117. §475. Proof by Witnesses. Proof for record may be made of any conveyance by a subscribing witness. Ttie identity of the witness must be certified as known or as proved. The officer, in taking the proof, is authorized to employ interpreters, issue subpoenas and to punish for contempt. ^ Proof for reoord may also be made by other witnesses testifying to the hand-writing of the grantor and one subscribing witness, in cases where the grantor and all the subscribing witnesses are dead, non- resident, or their testimony cannot ba had.^ The statutory certificate of proof by a subscribing witness is as follows: The State of ' ' County of Before me (name and title of ofiicer) on this day person- ally appeared , known to me (or proved to me on the oath of ) to be the person whose name is sub- scribed as a witness to the foregoing instrument of writing, 638 Ch. 11.] TEXAS. [§476. and after being duly sworn by me, stated on oath that he saw , the grantor, or person who executed the' foregoing instrument, subscribe the same (or the grantor or person who executed such instrument of writing acknowl- edged in his presence that he had executed the same for the purposes and consideration therein expressed), and that he had signed the same as a witness at the request of the grantor (or person who executed the same). Given under my hand and seal of office this day of , A. D. 18. .. [seal.] (Signature and title. ) 1 Kev. Stats., §§4314, 4315, 4321 ; Talbert v. Dull, 70 Tex. 675; s. c. 8 S. W. Repr. 530; McDaniel v. Needham, 61 Tex. 269; H;mrick v. Pat- rick, 11,9 U. S. 56; Hardin V. Sparks, 70 Tex. 429; s. c". 7 .S. W. Repr. 769; Cavitt V. Archer, 52 Tex. 166; Stramler v. Coe, 15 Tex. 211 ; Downs V. Porter, 54 Tex. 59; Deen v. Willis, 21 Tex. 642; Dora v. Bert, 15 Tex. 62. 2 Rev. Stats., §§4317-4320; Waters v. Spofford, 58 Tex. 115; Secrest V. Jones, 21 Tex. 121. The deed of a married woman cannot be proved by witnesses. Berry V. Donley, 26 Tex. 737, 747; Groesbeck v. Bodman (Tex.), 11 S. W. Repr. 322. §476. Chattel Mortgages not accompanied by change of possession, are absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees or lien holders in good faith, unless forthwith filed for record, or a true copy thereof, in the county where the property is then situated, or if the mortgagor be a resi- dent of the state, then in tlie county in wlaich he resides.' A copy can be filed only when the original lias been ac- knowledged.^ The instrument is not recorded at length, but is fully indexed in a chattel mortgage record, whereon an entry of satisfaction may also be made by the mortgagee or the clerk. ^ A duly certified copy sufiiciently proves the fact and time of filing, but no other fact.* If the property be removed to another county, the mortgage must be filed in such other county within four months after the removal.' Conditional sales of personal property reserving title in the 639 Ch. 11. J STATUTORY PROVISIONS. [§476. vendor must be registered as chattel mortgages.® Bills of sale of live-stock and marks and brands thereof, are to be recorded;'^ also agisters' liens upon the dam and progeny of live-stock in certain cases. ^ Notices of mechanics' liens must be filed in the office of the county clerk by an original contractor within four months, and by a sub-contractor or laborer within thirty days after the indebtedness shall have accrued.^ Kev. Stats., Appendix, pp. 15, 16; Sayles' Civ. Stats., §31906; Laws 1879. p. 134; Crow v. Red Elver Bank. 52 Tex. 362; Chaytor v. Brunswick, 71 Tex. 591; s. c. 10 S. W. Repr. 250; Keller v. Smalley, 63 Tex. 512; Cook v. Halsell, 65 Tex. 1. Actual notice of an unfiled chattel mortgage is of no effect as .against creditors. Overstreet v. Manning, 67 Tex. G57; s. C. 4 S. W. Repr. 248; ante, §269. Chattel mortgages are governed by the statute, and a parol lien, unaccompanied by possession, does not affect the property, and hence notice of it would not affect a subsequent incumbrance. Lazarus V. Henrietta Bank, 72 Tex. 354. 2 Acknowledgment is not required if the original be filed. Hicks v. Ross, 71 Tex. 358; S. C. 9 S. W. Repr. 315. 3 Sayles' Civ. Stats., §31906; Brothers v. Mundell, 60 Tex. 240. A contract termed upon its face "a chattel mortgage," and registered as such, cannot be shown by parol to be something else. Wilber v. Kray (Tex.), 11 S. W. Repr. 540. If of a stock of goods, and the mortgagor remain In possession, continuing to sell, the mortgage is void. Id. Sayles' Civ. Stats., §65r. * Sayles' Stats., §31906 Qi) ; -ante, §272. Such copy does not prove the execution of the mortgage. Boydstonv. Morris, 71 Tex. 697; S. C. 10 S. W. Repr. 381. 6 Rev. Stats., §4341 ; ante, §§265, 266. 6 Laws 1885, p. 86; Sayles' Civ; Stats., §3190a; Key v. Brown, 67 Tex. 300; s. C. 3 S. W. Repr. 443; Lang v. Rickmers, 70 Tex. lOS; S. C. 7 S. W. Repr. 527; Sinker v. Comparet, 62 Tex. 470; ante, §§249-251. ^ Rev. Stats., §§4562-4566; 4628, 4644, et seq; Morrow v. State, 22 Ct. App. 239. Bill of sale of live-stock on the range does not pass title, even as between the parties, until duly registered. §4564. Black v. Vaughan, 70 Tex. 47; S. C. 7 S. W. Repr. 604; ante, §189. 8 Laws 1889, p. fl5; Sayles' Stats., add. vol., §3190c. The lien is in favor of the keeper of any stallion, jack or bull, who stands the same for profit. Id. Laws 1889, p. 110; Sayles' Stats., add. vol., §§3164-3179; Rev. Stats., §§3164-3171; Basset v. Bowers (Tex.), 12 S. W. Repr. 229; Lyon v. bzee, 66 Tex. 95; Stuart v. Broomp, 59 Tex. 466; Odum v. Loomis, 1 Tex. Civ. App. §524; Mundine v. Bervviu, 62 Tex. 341; ante, §§45, 46. The lien is given by the constitution (art. 16, §37), and when duly filed, relates back and takes precedence over intervening incumbrances. Keating I. & M. Co. v. Marshall E. L. Co. (Tex.), 12 S. W. Repr. 4S9; see Odum v. Loomis, supra. 640 UTAH TEERITORY. 5477. Effect of Record. Conveyances not duly acknowledged and recorded are void as against subsequent purchasers in good faith and for n valuable consideration, when such subsequent purchasers have their deeds first duly recorded. Notice of the contents of the instrument is given to every person from the time it is filed for record. A power of attorney when recorded can be effectually revoked only by having the revocation also recorded. 1 A duly recorded instrument, or certified copy thereof where the absence of the original is accounted for, may be read in evidence as sufficient prima facie proof of execution.^ 1 Corap. Laws 1876, §§617-619; Laws 1867, ch. 28; Wells v. Smitb, 2 Utah, 39. Actual notice supplies want of registry. Marier v. Lee, 2 Utah, 460. Possession by a polygamous wife held not notice. Townsend v. Hooper, 2 Utah, 548; Townsend v. Little, 109U. S. 509. 2 Gomp. Laws, §§624, 625. Conveyances are ineffectual unless at- tesled by one witness. §617. Tarpey v. Desert Salt Co. (Utah), 14 Pac. Eepr. 338. A scroll will suffice for a seal. §478. Mortgages, Real and Cbattel. Mortgages of realty are recorded as other conveyances and with like effect. ^ A mortgage of real property, what- ever its terms, is not to be deemed a conveyance so as to enable the owner of the mortgage to recover possession *of the real property without a foreclosure or sale under a power. ^ Mortgages are discharged by an entry in the mar- gin of the record, or by a separate instrument of release duly executed and recorded.^ Chattel mortgages are not good against third parties, unless possession is delivered to and retained by the mortgagee, or the mortgage provides that the mortgagor may retain possession, and unless ac- companied by an affidavit of the parties of the good faith of the parties, and that it is not intended to hinder or delay the creditors of the mortgagor. They must be acknowl- edged by the> grantor and attested by one witness, and, together with the affidavit, be filed for record in the county (41— Reg. of Title.) 641 Ch. 11.] STATUTORY PROVISIONS. [§479. in which the 'mortgagor resides. ' The record is good for one year from the date of the mortgage, but only ninety days after the debt is due. Chattel mortgages cannot in- clude property exempt from execution, except for the pur- chase money thereof. They are foreclosed and discharged of record in the same manner as mortgages of real prop- erty. This act shall not apply to contracts made by any railway company owning or operating a railway in this ter- ritory, for the possession, use and conditional purchase of rolling stock, etc., to operate the same, and containing the condition that the title shall not pass until full payment of the purchase price; and such contracts shall be valid as to all persons without recording the same.* 1 Comp. Laws, §618; Singer v. Chalmers, 2 Utah, 542; Wells v. Smith, -2 Utah, 39. 2 Code Civ. Proc. 1884, §626. s Laws 1S84, ch. 42; Comp. Stats., §§648, 649. 4 Laws ]8S4, ch. 21; §§1-9; Laws 1886, ch. 39, §13. The penalty for selling mortgaged property without the written consent of the mort- gagee, his legal representatives or assigns, is a fine not exceeding three times the value of the property, or imprisonment in the county jail not more than six months, or both, at the discretion of the court. §479. Acknowledgment may be made within the terri- tory before a judge or clerk of a court having a seal, or a notary or county recorder, or a justice of the peace of the county where the real estate is situated. Without the territory and within the United States, be fore a judge or clerk of a United States court, or by judge or clerk of a court of record of a state or territory, or by a notary, or by a commissioner of deeds for Utah. In foreign countries, before a judge or clerk of a court having a seal, or a notary, or a minister, commissioner or consul of the United States appointed to reside in the country where the deed is executed. ^ An officer authorized to take acknowledgments or proof may act by a lawfully appointed deputy. The identity of the grantor must be certified as known or proved to the 642 * a Ch. ll.j UTAH TERRITORY. [§480. officer. It is not necessary for the husband to join with the wife in a conveyance of her real estate.^ A married woman may convey as if sole, and a separate examination is not necessary. The certificate of joint acknowledgment may be as follows : State or Territory of County of On this day of , a. d., 18.. ., before me (name and title of officer), in and for said county, person- ally appeared A. B., and C. B., his wife, personally known to me (or satisfactorily proven to me on the oath of a competent and credible witness, for that purpose by me duly sworn ) to be the same persons described in and who executed the foregoing instrument, and acknowledged to me that they executed the same freely and voluntarily, and for the uses and purposes therein mentioned. In witness whereof, I have hereunto set my hand and af- fixed my official seal the day and year last above written. [seal.] (Signature and title. )^ 1 Comp. Laws, §§214-221, 632. 2 Code Civ. Proc, §569 et leq. All property owned by either spouse before marriage, and that acquired afterwards by gift, bequest, devise, descent or purchase, Is the separate property of such spouse. §569. 2 Comp. Laws, §§636, 637. The certificate is not conclusive. Comp. Laws, p. 255, §9; Tarpey v. Desert Salt Go. (Utah), 14 Pac. Bepr. 338. §480. Proof by Witnesses. A deed requires at least one attesting witness, and unless so witnessed it is not etfeotual to convey title. i Proof for record may be made by a subscribing witness. The form of certificate in such case may, be as follows : State or Territory of ) County of ^ On this day of , a. d. 18. ., before me (name and title of officer), in and for said county, person- ally appeared C. D., personally known to me (or satisfac- torily proved to me by the oath of E. F., a competent and 643 Ch. 11. j STATUTORY PROVISIONS. [§480. credible witness, for that purpose by me duly sworn) to be the same person whose name is subscribed to the an- nexed instrument as a witness thereto, who being by me duly sworn deposes and says that he resides in.,......, county of , and (state) or territory of , that he was present and saw G. H., personally known to him to be the same person described in and who executed the annexed instrument as a party thereto, sign, seal and deliver the same, and heard him acknowledge that he ex- ecuted the same freelyand voluntarily, and for the uses and purposes therein mentioned, and that he, the deponent, thereupon signed his name as a subscribing witness thereto at the request of the said G. H. In witness whereof, I have hereunto set my hand and affixed my official seal the day and j^ear first above written. [seal.] (Signature and title. ) 1 Comp. Laws, §617. Tarpey v. Desert Salt Co. (Utah), 14 Pac. Eepr. 33S. Claims for mechanics' lier,< verified by affidavit, must be filed with the county recorder by an original contractor within ten days after the completion of his contract, and by others within thirty days after the completion of the building or work. The lien is not preserved unless suit to foreclose it is brought within ninety days after the filing, or after the credit expires. Code Civ. Proc, §§1057-1066. VERMONT. §481. Effect of Record. A deed is not effectual in law to hold the land conveyed against any person but the grantor and his heirs, unless it is acknowledged and recorded as provided by statute. A deed made under a power of attorney has no effect and is not admii^sible in evidence, unless such power of attorney is signed, sealed, attested and acknowledged and recorded in the office where the deed is required to be recorded.^ Deeds require a seal, a scroll not being sufficient, and the attestation of two subscribing witnesses. Wills'must be re- corded in the probate court, and also in the town clerk's office in every town containing real estate upon which they operate.^ 1 Rev. Laws Vermont 1S80, §§1931 , 1935 ; Havt v. Farmer's Bank, 33 Vt. 252; Johnson V. Borden, 40 Vt. 567; s. C. 94 Am. Dec. 486; Smith ■ V. South Koyalton Bank. 32 Vt. 341; s. C. 76 Am. Dec. 139; Pratt v. Bank of Bennington, 10 Vt. 293; s. c. 33 Am. Deo. 201; Day v. Clark. 25 Vt. 397; Spragne v. Bookwell, 51 Vt. 401; Oatman v. Fowler, 43 Vt. ■462; Holley v. Hawley, 39 Vt. 525; s. c. 94 Am. Dec. 350; Perrin v. Reed, 35 Vt. 2; Stevens v. Brown, 3 Vt. 420; Sanger v. Craigue, 10 Vt. 555; Ferris v. Smith, 24 Vt. 27; Potter v. Dooley, 55 Vt. 512; Leach v. Beattie, 33 Vt. 195; Jarvis v. Aiken, 25 Vt. 635; Passumsic v. Nat. Bank, 53 Vt. 82. 2 Actual notice supplies want of registry. Ellison v. Wilson, 36 Vt. 67; Miller v. Bingham, 29 Vt. 82; Ste\'ens v. Goodenough, 26 Vt. 676; Morrill v. Morrill, 53 Vt. 74; Corliss v. Corliss, 8 Vt. 475; Stafford v. Ballou, 17 Vt. 329; Brackett v. Wait, 6 Vt. 411; Blaisdell v. Stevens, 16 Vt. 179. Possession is notice. Wright v. Bates, 13 Vt. 341 ; Wing v. Hall, 47 Vt. 182. As to filing and indexing the record. Johnson v. Borden, 40 Vt. 567; s. c. 94 Am. Dec. 436; Sawyer v. Adams, 8 Vt. 172; Barrett v. Prentiss, 57 Vt. 297. §482. Mortgages of Realty are recorded as other c6n- veyances and with like effect. They may be discharged .of record by an entry on the margin of the record signed by the mortgagee, his representative or assignee; or by such entry on the mortgage deed, signed, sealed and witnessed, and afterwards noted in the margin of the record by the clerk. The wife is not required to join in the discharge 645 Ch. 11. J STATUTORY PROVISIONS. [§483. of a mortgage. Neglect for ten days after request to make a proper discharge or to execute a deed of release, renders the party liable for all actual damages occasioned thereby. i 1 Eev. Laws, §§1950-1952; GitHn v. Barr, 60 Vt. 599; Seymour v. Darrow, 31 Vt. 122; Stafford v. Ballou. 17 Vt. 329; Ladd v. Campbell, 56 Vt. 529; Palmer v. Palmer, 48 Vt. 69. The discharge may also be in the common form of a separate release. §1952. As to creditors, see Hackett v. Callender, 32 Vt. 97. 483. Acknowledgment may be made within the state before a justice of the peace, notary public or master in chancery. Without the state, before a justice of the peace, notary public or commissioner for Vermont, or any other officer by the laws of such state authorized to take acknowledgment of deeds. The husband must join in conveyances of the wife's separate property; but it is not necessary for her to join in his conveyances in order to bar her dower. Separate acknowledgment or private examination of the wife is not required. . The form of joint certificate may be as follows : State of ) County of \ At ,this day of ,18.., person- ally appeared , and , his wife, the signers and sealers of the above written instrument, and acknowledged the same to be their free act and deed. (Signature and title. )^ 1 Eev. Laws, §§1927, 1946; Wood v. Cochrane, 39 Vt. 544; Brooks v. Chaplin, 3 Vt. 281; s. c. 23 Am. Dec. 209; McDaniel v. Flower Brook, '22Vt. 274; Middlebuj-y College v. Cheney, 1 Vt. 336; Perrin v. Reed, 35 Vt. 2; Johnson V. Borden, 40 Vt. 567; S. C. 94 Am. Dec. 436; Pope V. Henrv, 24 Vt. 560; Bogue v. Bigelow, 29 Vt. 179; Chandler v. Spear, 22 Vt. 388. A sheriff's deed is not effectual without acknowledgment. Clarke vs. Tucker, 6 Vt. 81; Pratt v. Battels, 2S Vt. 685. As to damages against the clerk, see Giffin v. Barr, 60 Vt. 599. 646 Ch. 11, J VERMONT. [§§484, 484a. §484. Proof by AVitnesses. The statute requires that conveyances have two subscrib- ing witnesses; and without them the record is ineffectual. i lu certain cases proof for record may be made by the sub- scribing witnesses before a judge or court in the State of Vermoiit.2 Where the grantor refuses to acknowledge, the statute authorizes process by a justice of the peace to com- pel acknowledgment.^ 1 Kev. Laws, §1945; Morrill v. Morrill, 60 Vt. 74. The witness must have no certain legal interest in the property. Tillotson v. Pritchard, 60 Vt. 94; Bay V. Adaras, 45 Vt. 510. 2 Kev. Laws, §§1938-1940. Kev. Laws, §§1947-1949. §484a. Chattel Mortgages not accompanied with pos- session of the property must be recorded in the office of the clerk of the town in which the mortgagor resides at the time of making the mortgage, or if he resides out of the state, in the town in which the property is situated. An affidavit by the mortgagor and the mortgagee as to the bona fides of the debt is required. Without record and such affidavit, chattel mortgages are not valid against any person except the mortgagor, his executors and administra- tors.^ When a corporation is a party to the mortgage, the affidavit required may be made and subscribed by any direc- tor, cashier or treasurer thereof, or by any person author- ized on the part of such corporation to make or receive such mortgage; when made by or to a firm, one partner may make the required affidavit ; when taken by an agent or attorney of the mortgagee, in the absence of the mortgagee, such agent or attorney may sign and swear to the affidavit instead of the mortgagee. If the mortgage is given to in- demnify the mortgagee against liability assumed, or to secure the fulfillment of any agreement other than the pay- ment of a debt due from the mortgagor to the mortgagee, such liability or agreement shall be stated truly and specifi- cally in the condition of the mortgage, and the statutory form of affidavit shall be so far varied as to verify the va- lidity, truth and justice of such liability or agreement. 647 Ch. 11.] STATUTORY PROVISIONS. [§'484a. Chattel mortgages may be discharged in the same manner as mortgages of real estate. If, after condition broken, there be a foreclosure through a sale made by a public offi- cer, such officer makes a return of his doings on such sale, which is to be filed and recorded in the town clerk's office, where the mortgage is recorded, and operates as a dis- charge of the mortgage. The statute requires registry of conditional sales of per- sonal property as against creditors of and purchasers from the conditional vendee, the registry to be made withm thirty days from the delivery of the property ; and provides also that a creditor of such vendee may, by attachment, take his place in relation to the property, and extinguish the right of the vendor to it by making payment of the amount remaining due. The lien of the vendor may ba discharged by an entry on the margin of the record, or on the instrument creating the lien, or by a separate release. ^ 1 Laws 1878, pp. 58, 59; Courtis v. Crane, 32 Vt. 232; Woodward v. Gates, 9 Vt. 358; Skiff v. Solace, 23 Vt. 27; Russell y. Fillmore, 15 Vt. 130; Barker v. Kiohardson, 57 Vt. 408. The affidavit must be \a substance as follows : "We severally swear that the foregoing mortgage is made for the purpose of securing the debt specified in the conditions tliereof. and for no other purpose what- ever, and that the same is a just debt, honestly due and owing from the mortgagor." See Gilbert v. Vail, 60 Vt. 261; s. C. 14 Atl. Eepr. 542; ante, §271. The mortgagor is forbidden to execute any second or subsequent mortgage of personal pi-operty while the same is subject to a previously existing mortgage or mortgages given by such mortgagor, unless the fact of the existence of such previous morignge or mortgages be set forth in the subsequent mortgage. A violation of this provision, or a sale or pledge of the property without the consent of the mortgagee in writing upon the back of the mortgage and on the margin of the record thereof, subjects the mortgagor to liability to a fine of double the value of the property. 2 Kev.-Laws, §§1186, 1902; Laws 1886. p. "63; Kelsey v. Kendall, 48 Vt. 24; Phelps v. Hubbard. 51 Vt. 489; Duncan v. Stone. 15 Vt. 123: Fales V. Roberts, 3S Vt. 503; Touner v. Bliss, 51 Vt. 59; Whitcomb v. Wood- worth. 54 Vt. 544; Bugbee v. Stevens, 53 Vt. 389; Laws 1884, pp. 95. 96. A claim of mechanic's lien for work ormaterinls in erecting, repairin?, altering or removing buildings must be recorded in the town clerk's of- fice of the town where the property is situated, and must be followed by an action on tlie claim within three months alter filing the mem- orandum, if the debt is then due, or within three months after the debt be- comes due, if not due when the memorandum is filed. Rev. Laws, §1983. 648 VIRGINIA. §485. Effect of Record. Conveyances, contracts, trust deeds and mortgages of real estate or goods and chattels shall be void as to credi- tors and subsequent purchasers, for valuable consideration without notice, until and except from the time they are duly admitted to record in the counties where the propei ty is situate. Excepting deeds of trust and mortgages, convey- ances ai-e, if recorded within twenty days, valid and effect- ual as recorded instruments from the day of acknowledg- ment.^ Creditors and purchasers are defined by the statute to include not only creditors of and purchasers from the grantor, but also all creditors and purchasers who but for the deed or writing would have title to the property con- veyed or a right to subject it to their debts. ^ Of two instruments executed on the same day, the first recorded has preference.^ The vendor's equitable lien is abolished, except where expressly reserved in the deed.* Executory contracts affecting real estate and not in writing are de- clared void both at law and equity as to purchasers for value without notice and creditors, but if in writing and re- corded, their record is effectual as that of other conveyances.® A lis pendens record is kept by the recorder, and suits filed are not notice to third parlies until a proper memorandum thereof is recorded.^ A power of attorney may be recorded in any county, and where the original of a recorded instru- ment has been lost, a certified copy thereof may be recorded in another county.^ ' Code of Va. 1887, §§2464-2467; Smith v. ProfCatt, 82 Va. 832; First Nat. Bank of Harrisonburg v. Paul, 75 Va. 594; s. c. 40 Am. Rep. 740 Horton v. Bond, 28 Gratt. 815; Herman v. Oberdorfer, 33 Gratt. 497 Kaines v. Wallier, 77 Va. 92; Armentrout v. Gibbons, 30 Gratt. 632 Tompljlns v. Powell, 6 Leigh, 576; Mundy v. Vawter, 3 Gratt. 518 Yancey v. Mauok, 15 Gratt. 300; Pollard v. Lively, 2 Gratt. 216; Dos- well V. Buchanan, 3 Leigh, 365; s. C. 23 Am, Dec. 280. 2 Code, §2472; Wickham v. Lew'is, 13 Gratt. 427. See as to rights of creditors under the recording acts, and that they cannot be affected by actual notice: Doswell v. Buchanan, supra; Briscoe v. Ashby, 24 Gratt. 454; Lamar v. Hall, 79 Va. 147; Gregg v. Sloan, 7a Va. 497; Young v. Devries, 31 Gratt. 304; Moore v. Holcombe, 3 Leigh, 397; Ballow v. 649 Ch. 11.] STATUTORY TROVISIONS. [§4=86. Hudson, 13 Gratt. 672; Floyd v. Harding, 29 Gratt. 401; Dobyns v. Waring, 82 Va. 159; Cowardin v. Anderson. 78 Va. S^; Gray v. Mo=eley, 2 Mumt. 545; Guerrant v. Anderson, 4 Rand. 208; Marsh v. Chambers, 30 Gratt. ■>i conveyances. The place of record is the county wherein the property is situate but a power of attorney may be recorded in any county Code ch' 73, §§1, 2; Kelly's Rev. Stats., ch. 65, §1. ' ' 6,")8 Ch. 11.] WEST VIRGINIA. [§495,496. §495. Mortgages, Real and Chattel. Mortgages of realty are recorded as other conveyances and with like effect. The wife should ioin in morto-a^es and deeds of trust, as otherwise she will not be barred of dower, except where they are given to secure purchase money. They are released of record by writing signed and acknowledged by the- person entitled to the benefit of the lien, and recorded in the proper county, with an entry b}' the recorder on the margin of the record of the lien. In case of refusal to execute a release, the circuit court may direct the recorder to execute such release.^ Chattel mort- gages and deeds of trust are recorded with like effect as other conveyances in the counties wherein the property, or any part thereof, is situated. If the property be removed to a different county, the mortgage must, within three months after such removal, be again recorded in such other county.^ 1 Code 18S7, ch. 74, §§4, 5; ch. 76, §2; Code 1870, ch. 76. The statute provides that the release may be in form or effect as follows: "I, A. B., hereby release a mortgage (or deed of trust) made by C. D. to me (or to E. F., my trustee, or to , and assigned to me), dated the day of , 18 . . , and recorded in the office of the clerk of the county court of county, West Virginia, in deed book , page ^q- j n . t. " (bigned.) A. B. Acknowledged before the subscriber, this day of ,18.. G. H., Justice (or Notary Public, etc., as the case may be)." Code, cii. 74, §7; Kelly's Eev. Stats., ch. 93, §7; Code 1S70, ch. 74, §§5-8; McGinnis v. Savage, 29 W. Va. 362; s. C. 1 S. E. Repr. 746. §496. Acknowledgment may be made within the state before a clerk of the county court. Without the state and within the United States, before a justice, notary public, clerk of a county court, prothonotary, clerk of any court within the United States, or commissioner of deeds for West Virginia. . In foreign countrie'5, before a minister plenipotentiary, charge d'affaires, consul-general, consul, vice-consul, or commercial agent of the United States, or the proper officer 659 Ch. 11. j STATUTOKY PROVISIONS. [§407. of any court of such country, or the mayor or other chief mawislrate of any city, town or corporation therein. ^ 1 Code 1S87, ch. 73, §4; Kelly's Rev. Stats., cb. 65, §3; Bank v. Xeal, 28 W. Vm. 744; Henning v. Fisher, 6 W. Va. 2(8; Cox v. Wayt, 2fi W. Va. 807; McMullen V. Eagan, 21 W. Va. 233; Henderson v. Smith, 23 M'. Va. S29; s. C. 63 Am. Kep. 139; xVdams v. Medsker, 2.") VV. Va. 12S; Davis v. Living, 9 S. E. Repr. 84; Wise v. Postlewait, 3 W. Va. 452; Oney v. Clendennin, 28 W. Va. 34; Fleming v. Ervin, 6 W. Va. 215. The officer is not required to certify the identity of the grantor. No special form for an acknowledgment on behalf of a corporation is pre- scrihed. The following form is deemed sufficient : State of '■ 1 County op to-wit : j I (name and title of officer), do certify that A. B., president (or other officer or agent of the corpoiation, who executes the deed in the name of the corporation and affixes its seal) of the (Dame of the corporation), whose name is signed to the writing above, bearing date on the day of 18. . , has this day acknowledged the same as and for the act and deed of the (name of the corporation), before me in my said county, etc. . Given under my hand, etc. [seal.] (Signature and title.) §497. Acknowledgment of Married Women. The husband must join in conveyances of the wife's sep- arate property, unless she is living separate and apart from him.^ A separate examination of the wife is necessary to her acknowledgment. The form of joint certificate may be as follows : State of ) County of 5 ' I (name and title of officer), do certify that , and , his wife, whose names are signed to the writing above (or hereto annexed), bearing date on the day of , 18. . . , personally appeared before me, in the state and county aforesaid (or if it be a commissioner, in the state, territory or district aforesaid), and beinff ex- amined by me privily and apart from her said husband, and having the said writing faWy explained to her, she, the .«aid , acknowledged the said writing to be her act, and declared that she had willingly executed the same, and does not wish to retract it. 660 Ch. 11. J WEST VIRGINIA. [§498. Given under mj hand and official seal this day of , 18... [seal.] (Signature and title. )2 ^ Where a conveyance is executed by a married woman who, at the time of its execution and acknowledgment is living separate and apart from her husband, and such deed be for real estate which is her sole ;ind separate property, such tacts shall be recited in the deed, and if her husband has not joined therein, no person authorized by law to take the acknowledgment of a married woman shall take and certify the same uutil it is proved to his satisfaction that such real estate is the sole and separate property of such married woman, and that she was and is liv- ing separate and apart from her husband at the date of such deed and the acknowledgment thereof; aud it shall be stated in the certificate of such acknowledgment that all of the said facts were shown to the satis- faction of the person taking the'same. Such certificate shall in all cases, where the validity of any such deed comes iu question, be prima facie evidence of the facts therein stated. Code 1SS7, ch. 66, §§1-4; Kelly's Rev. Stats., ch. 65, §6. A married woriian may convey by po%ver of at- torney. Id. §12. 2 Code, oh. 73, §4; Kelly'sRev. Stats., ch. 65, §4; Pickens v. Knib;ely, 29 W. Va. 1; s. c. 6 Am. St. Rep. 622; Jarrell v. Jarrell, 27 W. Va. 43; Blair v. Sayre, 29 W. Va. 604; s. c. 2 S.E. Repr. 97; Watson v. Michael, 21 W. Va. 56S; Laidley v. Cent. Land Co., 30 W. Va. 505; S. C. 4 S. E. Repr. 705; Laidley v. Knight, 23 W. Va. 735; Laughlin v. Tream, 14 W. Va. 322; Leftwich v. Neal, 7 W. Va. 569; Bartlett v. Fleming, 3 W. Va. 163; Linn v. Fatten, 10 W. Va. 187. §498. Proof by Witnesses. Conveyances which are acknowledged do not require wit- nesses. Otherwise they must be attested by two witnesses, by whom proof for record may be made before the recorder of the county wherein the land lies, or before a consul in a foreign country.^ 1 Code 18S7, eh. 73, §§1-3. It is deemed safer in all cases to take the personal acknowledgment of the grantor. The following form of cer- tificate of proof may be used: The State of West Virginia \ County of f^^' In the clerk's office of the county court'of county (or consul- ate of the United States of America, at, etc.), I, , clerk of the county court of county (or I , consul of the United States of America, at, etc.), do hereby certify that the foregoing deed, bearing date on the day of ,18.., was this day proved before me as to A. B., the grantor (or one of the grantors) therein, by C. D. and E. F., two witnesses thereto, who declared upon oath before 661 Ch. 11.] STATUTORY PROVISIONS. [§498. me that it was his act and deed, and that they had seen him execute it. Given under my hand, etc. , . , s [SEAL.] (Signature and title.) Notice of claim of mechanic's lien, verified by affidavit, must be filed in the office of the county clerk of the county wherein the work was done, or in which the principal office, work*, real estate, or personal property of an incorporated company, against wbich the lien is claimed, is situated, within sixty days after tlie lien claimant has ceased to work or furnish material. Code 1887, ch. 76, §3. Notice of lis pendens is given by filing a memorandum, etc., of the suit, to be recorded in the book of deeds in the county clerk's office of the county wherein the property affected is situate. Code 1887, ch. 139, §13. Kelly's Rev. Stats., ch. 163, §14; Lecamp v. Oarnahan, 26 W. Va. 839; White v. Perry, 14 W. Va. 66. The statute requires the county clerk to set up at the door of the court-house a list of deeds recorded by him since the last term of the county court, and also to enter such list in his order book. Code 18S7, ch. 139, §13; Kelly's Kev. Stats., ch. 65, §9. 662 WISCONSIN. §499. Effect of Record. Every conveyance not recorded' in the oiEce of the regis- ter of deeds for the county where the land lies, is void as against any subsequent purchaser in good faith and for a valuable consideration, whose conveyance shall first be duly recorded.^ A certified copy of a recorded deed may be re- corded in other counties wherein a part of the lands may lie. A revocation of a recorded power of attorney must also be recorded. The statute provides for the record of patents, judgments affecting lands, attachment liens, notices of lis 2}e7ide7is and certificates of judicial sales. ^ Deeds, when filed, are to be fully indexed by the recorder, and are notice from the time they are properly filed and indexed.^ 1 Kev. Stats. 1878, §2241; Fallasa v. Pierce, 30 Wis. 442; Ely v. "Wil- cox, 20 Wis. 523; s. C. 91 Am. Dec. 43ti; Pringle v. Dunn, 37 Wis. 449; s. C. 19 Am. Kep. 772; Newman v. Tymesoa, 13 Wis. 172; s. C. 80 Am. Dec. 735; Hovt v. Jones, 31 Wis. 389; Chipman v. Tucker, 38 Wis. 43; S. C. 20 Am. Rep. 1 ; Troy City Bank v. Wilcox, 20 Wis. 671 ; Goodell v. Burnett, 22 Wis. 565; Straight v. Harris, 14 Wis. 503; Shore v. Lascar, 22 Wis. 142. Actual notice supplies want of registry. Parker v. Kane, 4 Wis. 1; S. c. 65 Am. Dec. 283; Owens v. Roberts, 36 Wis. 258; Congar v. C. & K. W. Ry. Co., 24 Wis. 157; Bergeron v. Richari1ott,.55 Wis. 129; Parker V. Kane, 21 Wis. 27; Brinkman v. Jones, 44 Wis. 498; Ely v. Wilcox, supra; Helms v. Chadbourne, 45 Wis. -60; Hoppin v. Doty, 25 Wis. 573; Avery v. Johann, 27 Wis. 246; Gilbert v. Jess, 31 Wis. 110. 2 Rev. Stats., §§2233-2236, 2246; Wisconsin Cent. Ry. Co. v. Wiscon- sin Kiver Land Co., 71 Wis. 94; S. c. 36 N. W. Eepr. 837. Possession is notice. Wickes v. Lake, 25 Wi^. 71; Caaningham v. Brown, 44 Wis. 72; Schwallback v. Chicago, etc., 69 Wis. 292; s. C. 2 Am. St. Rep- 740; 34 N. W. Repr. 128; Lamoreux v. Meyers, 68 Wis. 34; S. 0. 31 N. W. Repr. 331; Pepper v. O'Dowd, 39 Wis. 538; Perry v. Pleiffer, 18 Wis. 510; Denton v. White, 26 Wis. 679. 3 Rev. Stats., §§758,759; Oconto v. Jerrard, 46 Wis. 317; Houghton v. Burnham, 22 Wis. 301; Pringle v. Dunn, supi-a; St. Croix Land Co. v. Ritchie (Wis.), 41 IST. W. Eepr. 345; Lane v. Duchac (Wis.), 41 N. W. Repr. 962; Lombard v. Culbertson, 59 Wis. 537; s. C. 18 N. W. Repr. 399; Smith V. Waggoner, 50 Wis. 155; Swift v. Hall, 23 Wis. 532; In- surance Co. V. .Scales, 27 Wis. 640. Quit-olainj purchaser protected. Cutler v. James, 64 Wis. 173; s. C. 54 Am. Rep. 603 ; Rev. Stats., §2207. Record may be partly written and partly printed. Maxwell v. Hartman, 50 Wis. 660. A scroll will suffice for the grantor's seal. As to record of plats, sea Kev. Stats., §646; Trerice v. Barteau. 54 Wis. 99. 663 Cll. 11. j STATUTORY niOVISIONS, [§500. §500. Mortgages of Realty. When a deed purports to be an absolute conveyance in terms, but is made, or intended to be made, defeasible by force of a deed of defeasance, or other instrument for that purpose, the original conveyance is not thereby defeated or affected as against any person other than the maker of the defeasance, or his heirs or devisees, or persons having ac- tual notice thereof, unless the instrument of defeasance shall also have been duly recorded.^ An assignment of a mort- gage, if indorsed on the back of the mortgage, may be re- corded without acknowledgment.^ Mortgages are dis- charged of record by au entry in the margin of the record, signed by the mortgagee or his personal representatives, and attested by the recorder; or by a certificate duly ex- ecuted, acknowledged and recorded. Neglect to execute a proper discharge for seven days after request, renders the party liable in a penalty of one hundred dollars damages, and also all actual damages.^ 1 Rev. Stats. 1S7S. §2243; Knovvlton v. Walker, 13 Wis. 264; Ries v. Ludington, 13 Wis. 270: s. c. SO Am. Dec. 741; Potter v. Straiisliy, 48 Wis. 235; Bassett v. JIuDonald, 13 Wis. 444; Newman v. Tymesoa, 13 Wis. 172; s. c. 80 Am. Deo. 735; Deaster v. McCamus, 14 Wis. 509. 2 Rev. Stats., §2210. Tlie record of tiie assignment is not notice to the mortgagor. §2244; Girardin v. Lamp, 58 Wis. 267. • As to creditors and purciiasei's under thie recording acts, see Elile v. Brown. 31 Wis. 405; Kellev v. Wtiitney, 45 Wis. 110;'s. C. 7 N". W. Repr. 126; Funlv- v. Paul, 64 \Vis."35; s. C. .54 Am. Rep. .576; 24 NT. W. Repr.4l9. 3 Rev. Stats., §§2247-2256; Teetshorn v. Hall, 30 Wis. 162. Circuit courts m.ay order mortgages discharged on proof that the mortgage has been fully paid and satistied, aud that the mortgagee is deceased, or a non-resident of the county. A mortgage of the homestead is not valid, unless the wife join; but she need not join in a purchase money mortgage in order to bar hsr dower. A mortgage uiay be in the common form, or in a brief form, which the statute prescribes as follows : A. B., mortgagor, of county, Wisconsin, hereby mortgages to C. D., mortgagee, of county, Wisconsin, lor the sum of dollars, the following tract of land in county (here describe the premises). Tliis mftrtgage is given to secure the following indebtedness (here state amiiunt or amoirits and form of i id 'br-e lne Kev. Stats. 1887, §§8-11. 670 Ch. 11. J WYOMING TERRITORY. [§506. 2 Kev. Stats., §2. A married woman's acknowledgment taken out of the territory may be taken as if she "were sole. §13. A conveyance or mortgage of the homestead is void unless the wife of the grantor, if he have one, separate and apart from her husband, shall sign and acknowl- edge the same, after being apprised of her right, and the effect of such act. §2784. ^ • ^ Kev. Stats., §8. A register of deeds who receives and records any instrument not executed, acknowledged or proved according to law, is liable to a fine of $100, payable to the aggrieved party. §29. Claims of lien by mechanics and materialmen must be filed for rec- ord within ninety days after the work is finished, or the last item of material furnished. §1511. 671 Table of Cases. TABLE OF CASES. [A number of late cases, cited in the body of the work by reference only to the volumes of the Reporter system, are here given with reference to the vol- umes of the State Reports in wliich they subsequently appeared.] Abadie v. Lobero, 36 Cal. 390. §44. Abbott V. Cottage City, 143 Jlass. 521. §49. Abel V. Howe, 43 Vt. 403. §241. Abrams V. Ervvin, 9 Iowa, 87. §02. Acer V. Westeott, 49 N. Y. 8S4; s. C. 7 Am. Kep. 35.5. §§4, 152, 177, 223. 267. Ackert V. Piillz, 7 Barb. 386. §117. Adair v. Davis, 71 Ga. 769. §§132, 133. Adam v.Mengel (Pa.), 8 Atl. Repr. 606. §64. Adams v. Buchanan, 49 Mo. 64. §§20, 54. . V. Cook, 55 Tex. 161. §47. V. Daiinis, 29 La. Ann. 315. §§173, 18!). 1V16, 217. V. Edgerton, 48 Ark. 419, §147. V. Hayaen,60Tes. 223. §§6, 134, 1S8. ■ V. Medsker, 25 W. Va. 128. §§70, 71. V. Odum (Tex.), 12 S. W. Kepr. 34. §191. Addis V. Graham. 8S Mo. 197. §150. ^tna Life Ins. Co. v. Bishop, 69 Iowa, 645. ^§143. 171. V. Ford, 89 111. 2.52. §181. Ahem v. White, 39 M2. §276. • V. Thompson, 15 Iowa, 504. §164. -V. Walker, 21 Conn. 168. §28. Ballard v. Burgett, 40 N. Y. 314. §§248, 250. V. Perry, 28 Tex. 347, 364. §§56, 74, 150. Ballow V. Hudson, 13 Gratt. 672. §51. BnUimore & O. Ry. v. McKenzie, 81 Va. 71. §244. Banco de Lima v. Anglo-Peruvian Bk., 8 Ch. Dlv. 25 Eng. B. 160-. §244. Bank v. Ackerman, 70 Tex. 429. §172. V. Ammon, 27 Pa. St. 172. 154. §228. V. Kichardson, 9 Hare, 734. ■ V. Tindall, 59 Tex. 530. §20. • V. Trammel], 27 Tex. 317. §44. Baird v. Evans, 5S Ga. 350. §127. Baker v. Bliss, 39 N. Y. 70. §§170, 227. v. Clepper, 26Tex.629. §172. V. Griffin, 50 Miss. 158. §21. V.Martin, 12 Wall. 150. §192. V. Mather, 25 Mich. 51. §178. V. Pierson, 5Mich.476. §44. V. Power, 7 Mont. 326. §271. V. Woodward, 12 Or. 3. §§1S3, 192. V. Vining, 30 Me. 21. §213. Baldwin v. Baldwin, 2 Humph. 476. §195. V. Crow (Ky.) , 7 S. W. Eepr. 146. §268. ■ V. Marshall, 2 Humph. 116. §93. 206 — V. Peet, 22 Tex. 718. §210. — V. Richardson, 33 Tex. 16. 57, 128. V. Sager, 70 111. 503. §§205. §147. V. Anderson, 14 Iowa, 544. §175. V. Carpenter, 7 Ohio, 68. §§17, 217. V. Clapp, 76 X. c. 482. §15. V. Darien, 1 Stew. (Ala.), 280. §244. V. Flagg, 3 Barb. Ch. 316. §236. V. Hunt, 11 Wall. 391. §213. V. Jones, 59 Ala. 123. §54. V. Neal, 28 W. Va. 744. §§8, 218, 196. V. Noe, 86 Tenn. 21. §196. V. Paul, 75 Va. 594; s. c. 40 Am. Rep. 740. §71. ■ V. Sawyer, 38 O. St. 339,343. §177. Bank of America v. McKeil, 10 Bush, 54. §238. Bank of Augusta v. Earle, 13 Pet. 586. §263. Bank of Commerce v. Lanaham, 45 Md. 396. §210. Bank of Greensboro v. Clapp, 76 N. C. 4S2. §39. Bank of Healdsburg v. Baillhache. 65 Cal. 406; s. C. 4 Pac. Eepr. §101. Bank of Louisville v. Gray, 84 Ky. 565. §117. Bank of New Jlilford v. Town of New Milford, 36 Conn. 93. 239, 243. 676 BANK.] TABLE OF CASES. [beal. Batik V. M'fng Co., (16 jST. C. 298. §§12, 14, 16.5, 109, 190, 216, 217. Bank of U. S. v. Benning, 4 Cranch C. Ct. 81. §237. V. Davis, 2 Hill, 415. §238. V. Lee, 13 Pet. (38 U. S.) 107. §266. Bankhead v. Owens, 60 Ala. 457. §20. Banks' Appeal, 36 Pa. St. 170. §164. Banks v. Lee, 73 Ga. 25. §57. V. Ogden. 2 Wall. 57. §49. Banning v. Banning, 80 Cal. 271. §121. V. Edes, 6 Minn. 402. §172. Bannon v. Bowler, 34 Minn. 416. §§246, 261. Banta v. Vreeland, 15 N. J. Eq. 103. §175. Barber v. Richardson, 57 Vt. 408. §245. Barbour v. Wiehle, 116 Pa. St. 308. §§238, 240. 241. Barclay V. Howell, 6 Pet. .')13. §234. Barelle v. Delassus, 16 La. Ann. 280. §173. Barker v. Bell, 37 Ala. 354. §42. V. Stacy, 25 Miss. 471. §266. Barnard v. Campau, 29 Mich. 162. §§17, 227. V. Campbell. 58 jST. Y. 73; s. C.17Am. Kep.208. §§154,245. Barnes v. McClinton, 3 Penn. 67. §§222, 237. V. Mott, 64 N. T. 397. §175. V. Trenton Gas Co., 27 N. J. Eq. 33. §§243, 244. ■V. Union, 91Ind. 301. §222. Barnett v. Barnett, 15 Serg. & If. 72; s. C. 16 Am. Dec. 518. §§S7, 97, 102, 107, 120. V. Preskauer, 62 Ala. 486. §90. Barvev v. Sutton, 2 Watts, 31. §§S, 52, 73. V. McCarty, 15 Iowa, 515; s. c. 83 Am. Dec. 427. §§16, 17, 142. V. H. B. Ins. Co., 110 N. Y. 1. §24. Barnhart v. Greenshields, 9 Moore P. C. 36. §236. Barnum v. Landon, 25 Conn. 137, 14'. §2i. BaiT V. Cannon, 69 Iowa, 20. §§253, 273. ' V. Gratz, 4 Wheat. 213. §§95, 234. Barrett v. Barrett, 31 Tex. 344, 350. §§4, 194. 196. 2U3. V. Prenti.ss, 57 Vt. 297. §142. Bairows v. Turner, 50 Me. 127. §265. Bartlett v. Bangor, 67 Me. 460. §49. V. Boyd, 34 Vt. 256. §272. V. Fleming, 3 W. Va. 163. §109. ■ V. Glasscock, 4 Mo. 62. §224. V. Simmons, 4 Jones Law, 295. §233. Barton v. Hosner, 24 Hun. 468. §211. V. Morris, 15 Ohio, 408. §§23, 79, 81, 97, 121. Baskin v. Vernon, 74 Ga. 370. §2G7. Bass V. Estill, 50 Miss. 300. §55. Bas.'iett V. McDonald,, 13 Wis. 444. §171. V. Hathaway, 9 Mich. 28. §171. Basshor v. Stewart, 54 Md. 376. §81. Batchelor v. Brereton, 112 U. S. 396. §69. Bateraan v. Backus (Dak.), 34 N. W. Repr. 66. §44. Bateraan's Petition, 11 E. I. 393. §§107. 110. Bates V. Norcross, 14 Pick. 224. §162. Batey v. Woollolk, 20 La. Ann. 385. §173. Batte V. Stone, 4 Yerg. 168. §§126, 14.i. Battin v. Bigelow, 1 Pet. C. C. 452. §168. Batts V. Scott, 37 Tex. 59. §19. Bauner V. Ward, 12 Fed. Repr. 820. §233; Baxter v. Bodkin, 25 lud. 172. §100. Bay V. Coddington, 20 .Johns. 037; S. c. 11 Am. Dec. 342. §§207, 208. Bayley v. Greenleaf, 7 Wheat. 40. §§20, 200. Baynard v. ISTorris, 5 Gill. 483; s. C. 46 Am. Dec. 647. §§181, 182, 216, 228. Baze V. Arper, 6 Minn. 220. §§61, 73. 192. Bazemore v. Davis, 55 Ga. 504. §1.58. Beach v. Derby. 19 111. 617. §253. Beadles v. Miller, 9 Bush, 405. §179. Beal V. Gordon, 55 Me. 482. §§12, 221, 222, 229. 677 BEAL. 1 TABLE or CASES. [bigelow. Beal V. Stevens, 72 Cal. 451. §34. Beals V. Hale, 4 How. 37. §§31, 136, 188. Beall V. Williamson, 14 Ala. 55. §§265, 267. Beaman v. Whitney, 29 Me. 413. §67. V. Lowton, 37 Me. 513. §254. Bean v. Edge. 84 N. Y. 510. §250. V. Smith, 2 Mason, 252. §155. Beatie v. Butler, 21 Mo. 313. §236. Beatty v. Whitaker, 23 Tex. 526. . §§96, 205. Beaumont v. Preston, 65 Tex. 448. §96. V. Yeatman, 8 Humph. 542. §§59, 02. Beavers v. Lane, 6 Duer, 238. §250. Beavev v. Blanker, 94 111. 175. §§78, 146. Beck V. Blue, 42 Ala. '32; s. C. 94 Am. Deo. 630. §250. Becker v. Quigg, 54 111. 390. §115. Beckwith v. Windsor Co., 14 Conn. 594. §60. Bedford v. Tupper, 30 Hun. 174. §142. , Beebe v. Coleman, 8 Paige, 392. §28. Beene v. Eandall, 23 Ala. 514. §216. Beers v. Waterbury, 8 Bosw. 896. §260. Belbazev. Eatto, 69Tex.63C. §143. Belcher v. Fox, 60 Tex. 527. §56. v. Weaver, 46 Tex. 294; s'. c. 26 Am. Pep. 267. §§19. 79, 82, 98, 109,111, 112. Belden v. Meeker, 47 N". Y. 307. §33. Belknap v. Wendell, 31 N. H. 92. §271. Bell V. Duncan, 11 Ohio, 192. §§177, 180. V. Fry, 5 Dana, 341. §66. V. Lyle, 10 Lea, 44. §§76, 113. V. Teague (Ala.), 3 South. Eepr. 861. §47. V. Thomas, 2 Iowa, 384. §12. V. Twilight. IS N. H. 159; s. C. 45 Am. Dec. 367. §155. V. Twilight, 22 N". h. 500. §235. ■ V. Tyson, 74 Ala. 353. §226. Bellas V. McCarty, 10 Watts, 13. §§4, 14, 19, 35, 203, 227. Belo V. Maver, 79 Mo. 67. §§66, 71, 104, 105. Benedict v. Smith, 10 Paige, 126 §136. Buuham v. Keane, 1 John. & H. 685. §216. Benjamin v. Davis, 73 Iowa, 715. §44. Benner v. Puffer, 114 Mass. 376. §249. Be'nnett v. Powkes, 1 Xeb. 465. §166. • V. Paine, 7 Watts, 334; s. c. 32 Am. Dec. 765. §§70, 71. 87. V. Eobinson, 27 Mich. 26. 67. §231. V. Shipley, 82 Mo. 448. §§35, V. Titherington, 6 Bush, 196. §§132, 203, 239. Bent V. Coleman, 89 111. 364; S. C. 7 Am. Eep. 366. §147. Benton v. Beer, 35 Barb. 78. §101. V. NichoU, 24 Minn. 221. §§31,137, 142. Benzein v. Lenoir, 1 Mur. (X. C), 194. §29. Bercaw v. Cookerill, 20 O. St. 163. §§165, 196, 217. Bergeron v. Eichardott, 55 Wis. 129. §216. Bernard v. Elder, 50 Miss. 336. §109. Bernstine v. Smith, 10 Kan. 60. §25. Berry v. Donley, 26 Tex. 737, 739. §§87, 98, 93, 94, 101, 123. V. Mut. Ins. Co., 2 Johns. Ch. 603. §§28, 209. Berson v. Nunan, 63 Cal. 550. §§252, 254. Berwin v. Weiss, 28 La. 363. §§12, 165. Best V. Staple, 61 N. Y. 71. §275. Betser v. Eankin, 77 111. 289. §135. Belz v.Mulin.62Ala.365. §§7, 132. Bevans v. Boltou, 31 Mo. 437. §265. Bickley v. Keenau, 60 Ala. 293. §§246, 261. 262. Bieman v. White, 23 S. Car. 490. §228. Biencourt v. Parker, 27 Tex. 558. §64. Bierce v. Eed Bluff Hotel Co., 31 Cal. 160. §§241,244. Bigelow V. Booth, 39 Mich. 624. §S5. V. Foss, 59 Me. 162. §§99, ia2. §59. V. Livingston, 28 Minn. 57. 678 BIGELOW. ] TABLE "OF CASES. [bonnee. Bigelow V. Topliff, 25 Vt. 274; s. c. 60 Am. Dec. 264. §272. Bigley v. Jones, 114 Pa. St. 510. §238. Billgery v. Ferguson, 30 La. Ann. 84. §204. Billings V. Martin (Me.), 10 Atl. Kepr. 445. §47. V. Stark, 15 Fla. 297. §144. Billington v. Welch. 5 Binn. 129; S. C. 6 Am. Dec. 406. §§234, 235. Bingham v. Jordan, 1 Allen, 373; S. C. 79 Am. Dec. 748. §§41, 213, 218,.254, 269. V. Kirtland, 34 N. J. Eq. 229. §§157, 160. Bird V. Dennison, 7 Cal. 297. §4. V. Wilkinson, 4 Leigh, 266. §§165. 255. Birdsall v. Russell, 29 N. T. 220, 249. §§220, 221. Birnie V. Main, 29 Ark. 591. §§21, 162, 163, 164, 172. Bisoo V. Banbur}^ 1 Ch. Gas. 287. §181. Biscoe V. Byrd, 15 Ark. 655. §§61, 65. Bishop V. Cook, 13 Barb. 326. §148. V. Schneider, 46 Mo. 472; s. C. 2 Am. Kep. 533. §§23, 61, 142, 145. 204. Bissell V. Hopkins. 3 Cow. 166; s. C. 15 Am. Dec. 359. §254. V. JSr. Y. Cent. By. Co., 23 N. Y. 61; S. C. 26 Barb. 63. §49. V. Nooney, 33 Conn. 411. §28. Biteler v. Baldwin, 42 O. St. 125. §257. Bither v. Buswell, 51 Me. 601. §261. Black V. Justice, 86 N. C. 504. §§122, 130. V. Vaughan, 70 Tex, 47. §§54. 189. Blackburn v. Gregson, 1 Bro. Ch. 420. §20. V. Pennington, 8 B. Men. 219. §109. Blackwell v. Walker, 5 Fed. Repr. 419. §249. Blades v. Blades, 1 Eq. Cas. Abr. 858. §2. Blair v. Sayre, 29 W. Va. 604. §§U0, HI. V. Ward, 10 K. J. Eq. 119. §164. Blake v. Graham, 6 O. St. 580. s. C. 67 Am. Dec. 360. §§162, 184. Blalock V. Newhill, 78 Ga. 245. §12. Blanchard v. Taylor, 7 B. Mon. 647. §88. •V. Tyler, 12 Mich. 339; s. C. 86 Am. Dec. 57. §§144. 216, 202. Blankenship v. Douglass, 26 Tex. 229; s. C. 82 Am. Dec. 608. §§10, 19. Blatohford v. Boyden, 122 111. 657. §§172, 269. Blatohley v. Osborn, 33 Conn. 226. §§4, 155, 182, 222, 224. Bledsoe, v. Rogers, 3 Sneed, 466. §167. Blight V. Banks, 6 Mon. 192; s. C. 17 Am. Dec. 136. §§155, 203, 205. Blondy v. Benedict, 42 0. St. 298. §271. Blood V. Blood, 23 Pick. SO. §55. V. Wood, 1 Met. 528. §234. Bloomv. Noggle, 4 0.St. 45. §§189, 211, 216, 217. V. Sims, 27 S. Car. 90. §190. Bloomer v. Henderson, 8 Mich. 395, 405; s. c. 77 Am. Dec. 453. §230. Blouchard v. Tyler, 12 Mich, 339; S. C. 86 Am. Deo. 57. §202. Blount V. The City of Janesville, 31 Wis. 648. §§97, 120. Blumenthal v. Brainerd, 38 Vt. 402. §241. Blunt V. Norris, 123 Mass. 55. §§34, 175. Blythe v. Dargia, 68 Ala. 370. §117. V. Houston, 46 Tex. 67, 79. §§72, 96. Board v. Babcock. 5 Or. 472. §142. Boatmen's Sav. Bk. v. Grewe, 84 Mo. 478. §175, 204. Boggs V. Anderson, 50 Me. 161. §231. V. Varner, 6 Watts & S. 469. §§14, 166, 180, 181, 237. Bogue V. Bigelow, 29 Vt. 179. §§57, 78. Bolles V. Carli, 12 Minn. 113. §172. Boiling V. Teel, 76 Va. 487. §§107, no. Bolton V. The J. L. Pendergast, 30 Fed. Repr. 717. §275. Bondurant v. Watson, 103 U. S. (13 Otto), 281. §173. V. Watson, 20 La. Ann. 385. §173. Bonnell v. AUerton, 51 Iowa, 166. §232. Bonner v. Stephens, 60 Tex. 616. §§2, 114, 216, 219. 679 BONNER. ] TABLE OF. CASES. [briggs. Bonner v. Ware, 10 Ohio, 465. §177. Boody V. Davis, 20 N. H. 140; s. C. 51 Am. Dec. 210. §144. Boon V. Barnes, 23 Miss. 136. §§204, 207. Boone v. Ctiiles, 10 Pet. 177. §§155. 204, 205. Booth V. Cook, 20 111. 129. §73. v.Kehoe,71K.Y.341. §§28, 252. Boothroyd v. Engle, 23 Mich. 19. §57. Borland v. Walrath, 83 Iowa, 130. §§87, 90. Borst V. Empie, 5 N. Y. 33. §130. Boston V. Cummings, 16 Ga. 102. §174. Bosiwick V. Powers, 12 Iowa, 456. §143. Boswell V. Goodwin, 31 Conn. 74. §§164, 165. Bours V. Zachariah, 11 Cal. 281 ; s. C. 70 Am. Deo. 779. §92. Boursotv. Savage, L.R., 2 Eq. 134, 142. §§238, 243. Boutwell V. Steiner, 84 Ala. 307; s. C. 5 Am. St. Kep. 375. §§151, 175. Bowlby V. Thunder, 3 Atl. Kep. (Pa.) 588. §§S2. 91. Bowles V. Rogers, 6 Ves. 95. §20. Bowling V. Cook, 39 Iowa, 200. §§33, 175, 209. Boyoe V.Grundy, 3 Pet. 310. §§178, 223. V. Stanton, 15 Lea (83 Tenn.) , 346. §§140, 163. Boyd V. Beck, 29 Ala. 713. §§10, 261. V. Mundorf, 30 N. J. Eq. 545. §§160, 172. V. Schlossinger, 59 N. Y. 301. §§40, 1 V. Turpin, 94 N. C. 137. V. Yerkes, 25 111. App.' 527. §116. §242. Boydston v. Morris, 71 Tex. 697. §272. Boykin V. Rain, 28 Ala. 332; s. c. 65 Am. Dec. 349. §§5, 108, 109. Boyle Ice Co. v. Gould, 73 Cal. 1.53. §252. Boynton V. Libby, 62Me. 253. §2.51. V. Rees. 8 Pick. 329; s. c. 19 Am. Dec. 326. §1.55. Brace v. Marlborough, 2 P. Wms. 491. §192. Bracken v. Jones, 63 Tex. 184. §234. V. Miller, 4 Watts & S. 102. §§155, 241. Bracklen v. Fonda, 12 Johns. 468; S. C. 7 Am. Dec. 339. §121. Bradbury v. Johnson. 41 Me. 582; 66 Am. Dec. 264. §275. Braden.v. Gose, 57 Tex. 37. §1S5. Bradford v. Dawson, 2 Ala. 203. §52. V. Miller, 12 Iowa, 14. §16. V. Tupper, 30 Hun. 174. §16. Bradlee v. Whitney, 108 Pa. St. 362. §245. Bradley v. Mo. P. Ry. Co., 91 Mo. 493. §104. V. Riches, L. R., 9 Ch. D. 189. §238. V. West, 60 Uo. 33. §66. Bradshaw v. Atkins, 110 Iil. 323. §§9, 100. V. Warner, 54 Ind. 58. §249. Bradstreet v. Clarke, 12 Wend. 673. §128. V. Pratt, 17 AVend. 44. §49. Bragg V. Paiilk, 42 Me. 502. §27. Braley v. Byrnes, 25 Minn. 297. §41. Branch V. Atlantic, etc., Ry. Co., 3 Woods, 481. §210. —V. Griffin, 99 N.C. 173. §154. Brasher v. Christopher, 10 Colo. 284. §253. Bratt V. Bratt, 21 Md. 578. §20. Bratton v. Rogers, 62 Miss. 281. §236. Bray v. Clapp, 80 Me. 277; s. C. 6 Am. St. Rep. 197. §186. Bravley v. Ellis, 71 Iowa, 155. §§33, 175. V. Bymes, 25 Minn. 297. §254. Breckinridge v., Todd, 3 Mon. 54. §7- Breed y. Conley, 14 low.i, 269; S. C. 81 Am. Dec. 485. §143. Breese v. Bange, 2 E. D. Smith, 474. §§28. 252. Brennan v. Swasev, 16 Cal. 140; s. c. 76 Am. Dec' 507. §46 Brewster v. Carnes, 103 N. Y. 556. §164. Bridgeford v. Adams, 45 Ark. 136. §2il. Bi-idgman v. Wells, 13 Ohio, 43. §28. Bi-io' Atlantic. Xewb. .514. §275. Bi-jufos V. Fleming, 112 Ind. 313. §§7, 254, 269. 680 BKIGGS.] TABLE or CASES. [brown. Brings V. Hodgdon, 78 Me. 514. §176. V. Leitelt, 41 Mich. 79. §41, 21.3. 260. V. Mette,42Mich.l2. §§258, V. Rice, 130 Mass. 50. §204. V.Ripley, 37 Minn. 78. §180. Brigham v. Brown, 44 Mich. 59. §140. V. Weaver, 6 Cush.29S. §205. Bright V. Boyd, 1 Story, 480. §108. Brinckerhoff v. Lansing. 4 Jolins. Ch. 65; s. C. 8 Am. Dec. 528. §§171. 226. Brinkerhoff v. Brinkerhoff, 23 N. J. Eq. 477. §§99. 102. Brinkley v. Tomeny, 9 Baxt. 275. §91. Brinkman v. Jones, 44 Wis. 498. §§1S2, 222. 229, 299. Brinley v. Mann, 2 Gush. 377; 48 Am. Dec. 669. §,59. Brinton v. Seevers, 12 Iowa, 89. §§3, 23, 97. Briscoe v. Ashby, 24 G-ratt. 45. §§19, 43, 202, 203. V. Bronaugh,lTex.326. §20. Brittain v. Work, 13 Neb. 347. §144. Britton v. Janney, 21 La. Ann. 204. §173. V. ISTorment, 20 La. Ann. 486. §173. Britton's Appeal, 45 Penn. St. 172. §§12, 198. Broach v. Smith, 75 Ga. 159. §§20, 209. Brock V. Barr, 70 Iowa, 399. §253. Brockenhorough v. Melton, 55 Tex. 493. §148. Brogan v. Savage, 5 Sneed, 689. §124. Brohawu v. Van Ness, 1 Cranch G. Ct. 366. §2S. Bron.son V. CahiU, 4McL. 19. §216. Brook V. Headen, 13 Ala. 370, . §50. Brookfleld v. Goodrich, 32 111. 363. §168. Brook'sAppeal, 64Pa. St. 127. §16. Brooks V. Chaplin, 3 Vt. 281; s. C. 23 Am. Dec. 209. §§70, 84. V. Davey, 109 N. Y. 495. §43. V. Lester, 36 Md. 65. §§47, 164. V. Marbury, 11 Wheat. 78. §211. Broome v. Beers, 6 Conn. 198. §§171, 226. Brophy v. Brophy, 15 Nev. 101. §§209, 228. Brophy Co. v. B. & D. Co., 15 Nev. 101. §28. Brothers v. Mundell, 60 Tex. 240. §§41, 218, 234, 256, 269. 284. Broughton v. F6ster, 69 Ga. 714. §§221, 238. Biowell V. Curtis, 10 Paige, 217. §211. Brown v. Bankers, etc., Co., 30 Md. 39. §210. V. Banner Coal Co.. 97 111. 214; s. C. 37 Am. Rep. 105. §§27, " V. Dean, 3 Wend. 213. §§31, 138. 108. -V. Farron,3Ohio,140. §§70, §43. 216. §253. V. Goodwin, 75 N. Y. 409. ■ V. Hanauer, 48 Ark. 551. §§4, V. Holmes, 13 Kan. 4^2. V. Kimbrough, 55 Ga. 41. V. Kirkman, 1 O. St. 116. ■v. Lunt, 37 Me. 423. §§S. 64. V. Manning, 6 Ohio, 29s. §49. V. Matthews, 3 La. Ann. 198. §28. V. MoCormick, 6 Watts, 60. §100. §143. §161. ■ V. Metz, 33 111. 339. §57. - V. Moore, 38 Tex. 645. §§35, 67. V. Phil. Bank, 6 Serg. & R. 484. §§.54, 66. • V. Pierce, 7 Wall. 205. §§192, 197. V. Simons, 44 N. H. 475. §21, 164. - V. Simpson, 4 Kan. 76. §§20, 23. 53. V. , 67 Tex. 225. §95. V. Swift (Ky.), 1 S. W. Repr. 474. §§61, 69. V. Terrell, 83 Ky. 418. §20. — ■■ V. Volkening. 64 N. Y. 76, 82. §§232, 233, 235, 237. V. Ward, 6 Rich. Eq. 155. §203. 254. V. Webb, 20 Ohio, 389. §§41, V. Welch, 18 111. 343; 8. C. 68 Am. Dec. 549. §204. 681 BROAVNBACK.J TABLE OF CASES. [butler. Brownbnck v. Ozins, 117 Pa. St. S7, 92. §§lu(i, 174, 178. Bi'uce V. Bonnev, 12 Gray (78 Muss.), 107. §175. , /n re, 16 N'at. B. Reg. 318. §21;-!. V. Nelson, 35 Iowa, 157. §«1G9, 175. V. .Slemp, 82 Va. 352. §144. Bnin(l:ige v. Camp, 21 III. 330. §250. Branson v. Brooke, 68 Ala. 248. §235. Brunswick v. Brackett, 37 Minn. 58. §§6a. 78, 79. V. Clay, 7 Neb. 137. §254. V. Hoover, 95 Pa. St. 508. §2,-)0. Brush V. Scribner, 11 Conn. 388. §204. V. Ware, 15 Pet. 93. §§178, 181, 216. Bryan v. Ramirez, 8 Cal. 461; S. C. lis Am. Dec. 340. §^69. 81. Brvant v. Carsen. 3 >.py. 313; s. c. 93 Anl. Dec. 403. §24. Brydon v. Campbell, 40 Md. 381. i;!i31, 146. Buchanan v. BalkLira, 60 N. H. 406. §181. V. Int. Bank, 78 111. 500. §§4,152, 178. V. Morgan, 7 La. Ann. 249. !J15S. Buck V. Collins, 51 Ga. 391; s. c. 21 Am. Rep. 236. §151. V. HoUoway, 2 J. J. Marsh. 163. §223. V. Holt, 74 Iowa. 294. §233. V. Paine, .50 Miss. 648. §221. Biiclcingham v. Hanna, 2 0. St. 551. §160. BuckleY V. Earley, 72 Iowa, 550, §§23," 97. B\iell V. Irwin, 24 Mich. 145. §§73, 79, SI, 82, Biillington V, Garrish, 15 Mass. 156. §i0r'. Biio-bee's Appeal, 110 Pa. St. 331. §225. Biio-bee v. Stevens, 53 Vt. 389. §251. Bull V. Coe, 77 Cal. .54. §107. Bullard v. Long, 68 Ga. 821. §209. Bullock V. Battenhousen, 108 III. 28. §171. V. Wallingford, 55 N, H, 619. §§140. 150. V. Williams, 16 Pick. 33. ' §41. Bumpus V. Plainer, 1 Johns. Ch. 213. §155. Bunting v. Jones, 78 N. C. 242. §172. V. Ricks, 2Dev. &B.,ch.l30. §§182, 219, 222, 226. Biinton v. Cardwell, 53 Tex. 408. §234. v. Palm (Tex.) , 9 S. W. Repr. 182. §242. Bnntyn v. Shippers' Co., 63 Miss. 94. §52. Burbank v. Crocker, 7 Gray, 158. §219. Burch V. Jones (Ky.), 5 S. W. Repr. 408. §117. Burditt V. Hunt. 25 Me. 419. §253. Burhans v. Hutcheson, 25 Kan. 625. §204. Burke V. Abbott, 103 Ind. 1; s. C. 57 Am. Rep. 474, §169. V. Adams, 80 Mo. 504; S. C. .50 Am, Rep, 510. §144. V, Anderson, 40 Ga. 535. §17. V. Elliott, 4 Ind. 355. §64. Burkett v, Senrborough, 59 Tex. 49(i. §§107, 110, Burlev V.' Marsh, 11 Neb. 291. §41. Burn V. Burn, 3 Ves. 582. §§10, 192, 212. Burnham v, Brennan, 42N. Y. Sup. Ct. 51. §219, Burnhart v. Greenshields, 9 Moore's P, C. C. 36, §224, Burns v. Berry, 42 Mich, 176. §31. V. McGregor, 90 N. C. 222. §117. Burt V. Batavia Paper Co., 86 111. 66, §244, v, Cassety, 12 Ala. 734. §12. V. Wilson, 28 Cal. 632. §20. Burwell v. Fauber, 21 Gratt. 446. §181. Buspiibnrke v. Kamey, 53 Ind. 499. §§208. 20t). Bu.sh V. Golden, 17 Conn. 594. §§19,48,232. v, Lathrap, 22 N. T. 539. §155. Busheli V. Bushell, 1 Sch. & L. 90. §2. Bussing V. Crane, 8 B. Men. 593. §151, Butcher v. Yocum, 61 Pa. St. 168; s. C. 100 Am. Dec. 625, §§216, 224, Butler V. Barclay, 61 Iowa, 491. §183. 682 BUTLER. ] TABLE OF CASES. [CARLI. Butler V. Buckingham, 5 Day, 492; 8. C. 5 Am. Doc. ]74. §§9,' 98. V. Douglass, 1 McOrai-y, 630. §202. V. Diinagan, 19 Tex. 565. §§63,97, 190. V. Maury, 10 Humph. 420. §§8S, 194, 196 V. Stevens, 26 Me. 4S4. §§38, 225, 233. 23.5. . V. Viele, 44 Barb. 166. §12. Butt V. Broughton, 72 Ala. 294. §117. Butte V. Sullivan, 7 Mont. 307. §271. Buiterfield v. Beale, 3 Ind. 203. §105. Butters v. Haughwout, 42 111. IS; S. C. 89 Am. Deo. 401. §154. Button V. Rathbone, 43 Hun. 137. §§196, 254. Buttrick V. Holden, 3 Met. 335. §223. Butts V. Norcross, 14 Pick. 224. §§158, 182. Bybee v. Hawkett, 12 Fed. Eepr. 649. §§207, 209. Byer v. Entyre, 2 G-ilm. (111.), 150; S. C. 41 Am. Dec. 410. §71. Byers v. Engles, Iti Ark. 543. §228. Byler v. Johnson, 45 Tex. 609. §IC3. Byles V. Tome, 39 Md. 401. §§33. 175. Bynum v. Carter, 4 Ired. 310. §233. Byram v. Gordon, 11 Mich. 531. §2,53. Byrd v. Wilcox, 8 Baxt. 65. §166. V. Wilkinson, 4 Leigh. 266. §139. Byrne v. Fagan, 19 Tex. 891. §96. Cabell V. Grubbs, 48 Mo. 353. §81. Cabeen v. Breckinridge, 48 111. 91, 95. §§15,1.56. Cady V. Whaling. 7 Biss. 434. §211 . Cahall V. Citizen's Association, 61 Ala. 233. §§92, 119 Cahill V. Palmer. 45 N. i. 484. §235. Gaboon v. Miers, 67 Md. 573. §24. Cain V. Cox. 23 W. Va. 594. §216. Cairrell v. Higss, 1 Tex. Un. Gas. 56. §§123, 127, 130. Cake's Appeal, 23 Pa. St. 186. §172. Calais v. Scudder, 2 Black. 372. §203. Calder v. Chapman, 52 Pa. St. 359. §§22, 31, 158. 160, 199. Caldwell v. Bowen, 4 Sneed, 415. §210. V. Carrington, 9 Pet. 86. §203. V. Center, 30 Gal. 539; s. C. 81 Am. Dec. 131. §§49, 149. V. Head, 17 Mo. 561. §1S4. V. Trowbridge, 68 Iowa, 150. §253. V.Woods, 3 Watts, 197. §231. Caldwell's Appeal (Pa.), 7 Atl. Repr. 211. (jlie. Call V. Gray. 37 N. H. 428; s. O. 75 Am. Dec. 141. §254. V. Seymour, 40 O. St. 670. §249. Callaway v. Fash, 50 Mo. 420. §76. Calumet Co. v. Russell, 68 111. 426. §82. Calvert v. Fitzgerald, Little's Sel. Gases, 388. §09. v. Roche, 59 Tex. 463. §199. Cambridge Bank v. Delano. 48 N. Y. 326. §§152, 178, 181. 182, 219. Cameron v. Hull, 26 Kan. 622. §218. V. Marshall, 65 Tex. 7. §45. Campbell's Appeal, 36 Pa. St 247; S. C. 78 Am. Dec. 375. §§45, 172. . Brackenridge, 8 Blackf. 471. §29a. V. Moon, 16 S. Car. 107. §§111, 1S6. v.Roach,45 Ala. 667. §§181, 205, 21(i. V. Vedder,3Keves,174. §33. V.Walker, 114 N". Y. 7. §431. etc., Co. V. Walker, 22 Fla. 412. §219. Canal Boat Independence, 9 Ben. 395. §257. Canal Go. v. Russell, 68 111. 426. §§90, 216. Cannon v. Boutwell, 53 Tex. 626 §117. Caraway v. Caraway, 27 S. Car. 576, "§194. Carey v. White, 52 N". T. 138. §5204. 20H. Card v. Patterson, 5 0. St. 319. §110. Carlisle v. Carlisle, 78 Ala. 542. §85. Carli V. Khuer, 27 Minn. 293. §64. 683 CARMIGHAEL.] TABLE OF CASES. [chapman. Carmiohael v. Buck, 10 Kich. 332; s. C. 70 Am. Deo. 2215. §247. Carn v. Haisley, 22 Fla. 317. §119. Carnall v. Duval, 22 Ark. 136. §§29, 144. Oarnis v. Jones, 5 Yerg. 249. §196. Carnogv.FuUer, 30Iowa, 212. §33. Carpenter V. Allen, 16 La. Ann. 435. §229. V. Carpenter, 30 Kan. 712. §121. V. Dexter, S Wall. 513. §§23, 56, 66, 69, 70, 76, 125, 128. ■ v. Hall, 83 Ala. 171. §55. Carr v. Hobbs, 11 Md. 285. §20. V. Wallace, 7 Watts, 394. §226. Carrier v. Hampton, 11 Ired. 307. §§122, 128, 130, 188. Carroll v. .Johnston, 2 Jones' Eq. 120. §205. Carson v. Phelps, 40 Md. 73. §§19, 36 139. — V.' Raisback, 3 Wash. 168. §97. Carter v. Campion, 8 Conn. o49. §§126, 127,145. V. Chandron, 21 Ala. 72. §52. 127. §236. ■ V. Corley, 23 Ala. 612. §§93, -V. Hallihan, 61 Ga. 314. §261. V. Hawkins, Cfe Tex. 393. §147. V. Le Grange, 60 Tex. 638. V. Strapham, Cowp. 201. §§102, 119. Caruthers v. Eldredge, 12 Gratt. 670. §95. V. McLaran, 56 Miss. 371. §83. Case V. Burnstead, 24 Ind. 429. §§37, 200. . V. Hargadine, 43 Ark. 144. §§16, 254. V. Jennings, 17 Tex. 662. §§205, 247. ■ V. Jewett, 13 Wis. 498; s. C. 80 Am. Dec. 752. §§256, 257. ■ Co. V. Campbell, 14 Or. 460. §268. ■ Threshing Co. v. Smith, 16 Or. 381. §258. Casey v. Inloes, 1 Gill, 430; s. C. 39 Am. Dec. 658. §181. Cashman v. Henry, 75 N. Y. 103. '§100. Cass V. ■ Gunnison, 58 ilich. 108. §253. Cassell V. Cooke, 8 Serg. & E. 268; s. c. 11 Am. Dec. 610. §71. Catlin V. Bennatt, 47 Tex. 166. §196. V. Douglass, 33 Fed. Kepr. < 569. §46. V. Ware, 9 Mass. 218. §56. Cavazos v. Trevino, 35 Tex. 134. §175. Cave V. Cave, L. K., 15 Oh. D. 639. §243. Cavitt v. Archer, 52 Tex. 166. §82. Center v. Bank, 22 Ala. 743. §196. Central Bank v. Copeland, IS Md. 305; s. C. 81 Am. Dec. p97. §§89, 90. Investment Co. v. Wabash, 29 Fed. Repr. ,546. §147. Cessna's Appeal (Pa.), 10 Atl. Repr. 1. §45. Chad wick v. B.aker, 54 Me. 9. §275. V. Turner, 34 Beav. 634. §50. Chnffe V. Halpin, 62 Miss. 1. §§13, 144. 166, 195. V. Heyner, 31 La. Ann. 591. §206. ■ V. Oliver, 39 Ark. 531. §108. V. Walker, 39 La. Ann. 35. §42. Chamberlain v. Bell, 7 Cal. 292; s. C. (JS Am. Dec. 260. §§93, 147, 150. V. Smith, S Wright (44 Pa. St.), 431. §§248,2,50. v. .Spai-gur, 86 N. Y. 603; s. C. 22 Hun. 437. §§48, 54, 161, 165, 166, 196, 218. Chamblee v. Tarbox, 27 Tex. 140. §57. Chance v. McWhorter, 26 Ga. 315. §207. Chandler v. Burnham, 15 Tex. 441. §245. V. Chandler, 55 Cal. 267. §1. V. Spear, 22 Vt. 388. §§1S, 57, 78, 234. Chapin v. Cram, 40 Me. 561. §149. Chapman v. Beardsley, 31 Conn. 115. §§20, 29. V. Coats, 26 Iowa, 291. §199. V. Gray, 15 Mass. 439. §28. V. Hamilton, 19 Ala. 121. §226. - V. Holding, 60 Ala. 522. §216. V. Miller, 130 Mass. 289. §§30, 209. 684 CHAPMAN. Chapman v. Sims, 53 Miss, §§S3, 274. Charauleau v. Woffenden, 1 Ariz. 243. §114. Charjvin v. Wagner, IS Mo. 541. §106. Chavle v. Saffold, 13 Tex. 112. §234. Charleg v. Claggett, 3 Md. 82. §§139. 271. Charleston v. Eyan, 22 S. Car. 339; s. C. 53 Am. Kep. 713. §175. Chase v. Ingall, 122 Mass. 381. §249. Chatham v. Bradford, 50 Ga. 327. §142. Chauncey v. Arnold, 24 N. Y. 330. §146. Chaytor v. Brunswicli, 71 Tex. 591. §§246, 261. Cheek v. Bellows, 17 Tex. 613. §118. Cheever v. Fair, 5 Cal. 337. §164. Chemical Co. v. Johnson. 9S N. C. 123; s. c. 3 S. E. Repr. 723. §251. Cliester v. Greer, 5 Humph. 26. §§196, 226. V. Rumsey, 26 111. 97. §83. Chestnut v. Shane, 16 Ohio, 599. §§57. 104. 105, 107, 120. Cheval v. Nichols, 1 Stra. 664. §216. Chew V. Barnett, 11 S. & R. 389. §203. Chicago, B. & Q. Ry. v. Lewis, 4 N. W. Repr. S42. §91. V. Hay, 119 111. 493. §233. V. Witt, 75 111. 211. §§159, 234, 225. Child V. Baker, 24 Neb. 188. §127. Chikls V. Stoddard, 130 Mass. 610. §175. Chilton V. Braiden, 2 Black. 458. §20. Chiuiquy v. Catholic Bishop, 41 111. 148. §§57, 70. Chinn v. Taylor, 64 Tex. 385. §177. Chipman v. Tucker, 38 Wis. 43; s. C. 20 Am. Rep. 1. §164. Chipron v. Feikert, 68 111. 284. §§41, 254. Chivington v. Colo. Co., 9 Colo. 597. §52. Choteau v. Jones, 11 111. 300. §§8, 14, 169. V. Thompson, 2 O. St. 114. §149. Chouteau V.Allen, 70 Mo. 290. §§80, 83. TABLE OF CASES 163. [ CLARK. Christian v. Clark, 10 Lea, 630. §§169, 170. Christy v. Burch (Fla.), 2 South. Repr. 258. §189. Church V. Church, 1 Casey, 278. §165. V. Ruland, 64 Pa. St. 432. §155. Churchill V. Moore, 1 R. I. 209. §110. Cirode v. Buchanan, 22 Gratt. 205. §43. City Bank v. Goodrich, 3 Colo. 139. §207. City Council v. Page, Speer's Eq. 159. §§2S, 155. V. Ryan, 22 S. Car. 339. §34. City Nat. Bank's Appeal, 91 Pa. St. 160. §172. V. Dayton, 116111. 257. §198. Citizen's Bank V. Terry, 32 La. Ann. 310. §131. Clabough V. Byerly, 7 Gill. 354. §§153, 171, 178, 220. Clutlin V. Duncan, 74 Ga. 348. §§182, 223. Claiborne v. Holmes, 51 Miss. 146. §§7, 132, 236. Claraoi'gan v. Lane, 9 Mo. -446. §§38. 140. Clapp V. Bromaghan, 9 Cow. 552. §234. V. Halliday, 48 Ark. 259. §52. ■ V. Nordmeyer, 25Fed. Repr. §211. ■ V. Trowbridge, 74 Iowa 650. §253. Clark V. Akers, 16 Kan. 166. §144. V. Arnold, 2 Hay, 287. §132. V. Barnes, 72 Iowa, 563. 71. §207. §229. V. Bosworth, 51 Me. 528. V. Bullard, 66 Iowa, 747. §§169. ISO. V. Butler, 32 N. J. Eq. 664. §45. §191. V. Connor, 28 Iowa, 311. V. Courtney, 5 Pet. 319. §§59, 234. V. Finlon, 90 111. 245. §231. V. Flint, 22 Pick. 231; s. c. 33 Am. Dect. 733. §§207, 211. V. Fu.tjn, 39 Conn. 238. §239. 685 CLARK. ] TABLE OF CASES. [COMSTOCK. Clark V. GraHam, 6 Wheat. 577. §145. V. Holland, 72 Iowa, 34. §§158, 159, 160, 172, 223. V. Mackin, 30 Hun, 411. §33. V. Monroe, 14 Mass. 351. §172. §268. §253. §176. V. Keins, 12 Gratt. 103. §117. V. Tarbell, 58 N. H. 88. • V. Troy, 20 Cal. 219. §56. ■ V. Tucker, 6 Vt. 81. §54. V. Voorhes, 36 Kan. 144. V. Watson, 141 Mass. 248. v. White, 12 Pet. 178, 197. §§54, 132. 166 ■ V. Wilson, 127 111. 449. §S5. Clay V. Holbert, 14 Tex. 189. §96. Clayton v. Frazier, 33 Tex. 92. §102. V. Rose, 87 N. C. 106. §§9, 105. Clement v. Bartlett, 33 N. J. Eq. 43. §200. Clements \. Ewing, 71 Tex. 370. §§42, 118. V. Pearce, 63 Ala. 284. §125. demons v. Elder, 9 Iowa, 273. §§31, 137. Clevinger v. Eoss, 109 111. 349. §■231. Clif t V. Stockdon, 4 Litt. 215. §28. Cline V. Upton, 56 Tex. 319. §114. Close V. Close, 28 N. J. Eq. 472. §42. Clouse V. Elliott, 72 Ind. 302. §222. Cluder v. Thomas, 89 Pa. St. 343. §l.i6. Coal Co. V. Pasco, 79 111. 170. §93. Coal Creek Co. v. Heck, S3 Tenn. (15 Lea), 497. §§92, 120. 1G3. Cobb V. Buswell. 37 Vt. 337. §266. V. Chase, 54 Iowa, 253. §256 V. Dyer, 69 Me. 495. §175. Coble V. Jfonenmaker, 78 Pa. St. 501. §209. Coburn v. Herriugton, 114 111. 104. §§76, 113. Cocke V. Brogan, 5 Ark. 693. §161. V. Halsey, 16 Pet. 71. §64. Cockev V. Milne, 16 Md. 200. §271. Coe V. Ry. Co., lOO. St. 372. §171. Coffev V. Hendricks, 66 Tex. 676. §§'1, 74. Cogan V. Cook, 22 Minn. 137. §§32, 154. Coggell V. Hartford, 3 Gray (69 Mass.), 545. §249. Coggeshall v. Po tter, 1 Holmes, 75 ; s. C. 4N. B. Reg. 73. §213. Coggswell V. Griffith, 23 Neb. 334. v. Stout, 32 N". J. Eq. 240. §164. Cohen v. Chandler, 79 Ga. 427. §261. Colby V. Kenniston, 4 N. H. 262. §235. V. McOmher, 71 Iowa, 469. §71. Cole V. Baramel, 62 Tex. 108. §§105, 117. V. Berry, 42 N. J. L. (13 Vroom), 308. §249. V. Kerr, 19 Neh. 553. §273. V. Mann, 62 N. Y. 1. §§24, V. Raymond, 9 Gray, 2lt. 250. §161. V. Wright, 70 Ind. 179. §73. Coleman v. Barklew, 27 JST. J. L. 357. §§13, 1G6, 233. V. Billings, 89 111. 183. §103. — — V. Carhart, 74 Ga. 392. §168. V. Coleman, 37 La. Ann. 566. §118. ■ V. State, 79 Ala. 49. §127. Coles V. Beri-yhill, 37 Minn. 58. §§25, 191, 194. Collerd v. Huson, 34 N. J. Ea (7 Stew.), 38. §170. Collins V. Boyd, 5 Dana, 316. §73. V. Cook, 40 Tex. 238. §154. V. Cooper, 65 Tex. 460. §242. Jure . 12 Blatch. .548. §211. V. ililler, 04 Tex. 118. §212. Colomer v. Morgan, 13 La. Ann.' 202. §130. Coll on V. Scavey, 22 Cal. 496. §65. Columbia Bank v. Jacobs, 10 Mich. 349. §§10.32,44,154. Columbus Buggy Co. v. Graves, 108 111.459. §194. Comer v. Cunningham, 77 N". Y. 391. §§247. 250. Compton V. Bunker Hill Bank, 96 111. 301; s. C. 36 Am. Rep. 147. §108. Commissioners v. Wood, 10 Pa. St. 93; s. c. 49 Am. Dec. 582. §49. Commonwealth v. Moorebead, 118 Pa. St. 344; s. C. 4 Am. St. Rep. 599. §49. 686 CONDEB. ] TABLE OF CASES. [coward. Conder v. Holllman, 71 Ga. 93. §251. Condit V. "Wilson, 36 N". J. Eq. (9 Stew.), 370. §§199, 212. Congar v. 0. & iST. "W. Ry. Co., 24 Wis. 157. §244. Conklin v. Bush, 8 Pa. St. 517. §119. V. Shelley, 28 N. T. 360; s. C. S4 Am. Dec. 348. §253. Conlan v. Grace, 36 Minn. 281. §144. Conlee v. McDowell, 15 Neb. 184. §236. Conley v. Campbell, 78 Ga. 369. §127. Connelly v. Bowie, 6 -Har. & J. 141. §§70,71. Conner v. Boutwell, 53 Tex. 627. §117. V. Whitmore, 52 Me. 185. §175. Connihan V. Thompson, 111 Mass. 270. §216. Connolly v. Branstler, 3 Bush, 702. ■ §99. Connor v. Stanley, 65 Cal. 183. §204. Constant v. Am. Society, 53 JST. Y. Sup. Ct. 170. §241. Converse v. Blumrich, 14 Mich. 109; s. C. 90 Am. Dec. 290. §219. V. Porter, 45 N.H. 400. §16. Conway v. Cook, 66 Md. 290. §§45, 239. Cooke V. Bremond, 27 Tex. 457. §§114, 177. Cook V. Dillon, 9 Iowa, 407. §§163, 164. V. Hager, 3 Colo. 386. §§65, 262, 263. • V. Hall, 6 111. (1 Gilm.), 575. §148. §256. V. Halsell, 65 Tex. 1. V. McChristian, 4 Cal. 23. §§40, 188. V. Parham, 63 Ala. 456. §209. V. Parhawe, 63 Ala. 476. §30. V. Stone, 63 Iowa. 352. §33. ■ V. Travis, 20 N. Y. 400. §§4, §§246, 155. Cool V. Eoche, 20 Neb. 550. 265. Cooleyv. Gillan, 54Conn.80. §249. Coombes v. Thomas, 57 Tex. 321. §§79, SO, 105. Cooper V. Bigley, 13 Mich. 463. §§21, 163. ■ — V. Blakey, 10 Ga. 263. §199. V. Brock, 41 Mich. 488. §2.55. V. Koppes, 45 O. St. 62.). §§246, 257, 258. V. Newton, 45 N. §247. H. 339. Coover v. Johnson, 86 Mo. 533. §2.il. Copeland v. Bosquet, 4 Wash. C. Ct. 5SS. §249. Coppin V. Fernyhough, 2 Bro. C. C. 291. §181. Corbin v. Kincaid, 33 Kan. 649. §§170, 253. V. Sullivan, 47 Ind. 356. §162. Corbitt V. Glenny, 52 Ala. 480. §181. Covdeviolle V. Dawson, 26 La. Ann. 531. §§31.138. Cordier v. Cage, 44 Tex. 532. §57. Cordova v. Hood, 17 Wall. 1. §§181, 216. Corlies v. Rowland, 26 N. J. Eq. 311. §20. Corliss V. Corliss, 8 Vt. 475. §28. Corn V. .'iims, 3 Met. 391. §§36, 38. Corning v. Murray, 3 Barb. 652. . §§167, 171. Correy v. Caxton, 4 Binn. 140. §35. Coryelle v. Holmes, 3 Tex. Law Jour. 481. §126. Coster V. Peters, 7 Kobt. 386. §191. Cosler's Executors v. Bank ol Ga., 24 Ala. 37. §§13, -155, 166, 170. Cothay v. Sydenham, 2 Bro. Ch. 291. §223. Cotton V. Marsh, 3 Wis. 221. §41. Couch V. Sutton, 1 Grant's Cas. 114. §99. Coulson V. Walton, 9 Pet. 62. §95. Council Bluffs v. Billups, 67 Iowa 674. §171. Courtis V. Crane, 32 Vt. 232; s. C. 76 .\m. Dec. 174. §247. Cover v. Black, 1 Pa. St. 493. §§10, 25. V. Manaway, 115 Pa. St. 338; s. c. 2 Am. St. Rep. 552. 84, 90, 144. Cowan V. Beall, 1 MacArth. 270. §§61, 65. V. Williams, 49 Tex. 381. §96. Coward v. Culver, 12 Heisk. 541. §§1S9, 268. 687 COWARD IN. J TABLE OF CASES. [dalton. Brown, IS Hun, 461. 3 Colo. 21. 60. Cowardin v. Ander.son, 78 Va. S8. §§196, 197, 218. Cowdry v. Vanderburg, 101 U. S. 572. §247. Cowen V. Loomis, 91 111. 132. §234. Cowles V. Hardin, 91 N. C. 231. §187, Cox V. Gill, 83 Ky. 669. §§S7, 90, 97, 101, 102. — V. Wayt, 26 W.Va. 807. §§5.5, 196. Craddock v. Merrill, 2 Tex. 495. §§8, 155. Craig V. Cartwright, 65 Tex. 413. §§12, 234, 414. V. Dimock, 47 111. 308. §255. V. Leiper, 2 Terg. 193; s. C. 24 Am. Dec. 479. §§19, 203. V. Zimmerman, 87 Mo. 475; S. C. 56 Am. Rep. 466. §§27, loo. Crandall v. §254. Crane v. Chandler §§246, 269. V. Eeeder, 21 Mich §145. V. Turner, 7 Hun, 357; S. C. 67 N". Y. 437. §§22, 155, 159, ISO, 179. Crassen v. Svvoveland, 22 Ind. 427. §§222, 223, 231. Crawford v. Burton. 6 Iowa, 476. §71. Crenshaw v. Julian, 26 S. Car. 283; s. c. 4 Am. St. Kep. 719. §99. Crews V. Taylor, 56 Tex. 461. §§16, 18, 77. Crippeu V. Fletcher, 56 :Mich. 386. §254. Criscoe v. Hambrick, 47 Ark. 235. §§54, 186. Crisfleld v. Neal, 36 Kan. 278. §253. Crispeu v. Hannavan, 50 Mo. 536. §235. Crocker v. Crocker, 31 N". Y. 507. §§40, 226. V. G-illespie, 44 Me. 491 ; s. C. 69 Am. Dec. 118. §249. Crockett v. Campbell, 2 Humph. 411. §124. V. Maguire, 10 Mo. 34. §162. Crofton V. Ormsby, 2 Sch. & Lef 583. §228. Crosby v. Baker, 6 Allen (88 Mass.) , 295. §274. •V. Huston, 1 Tex. 203, 239. §§134, 210, 262, 267. Crosby v. Vleet, 3 N. J. Law, SB. §§19, 57, 78. Cross V. Evarts, 28 Tex. 502. §§101, no, 117. Crowley v. Wallace, 12 Mo. 143. §83. Crowning v. Belln, 10 B. Men. 386. §150. Crum V. Brown, 63 Miss. 495. §121. Crumbaugh v. Kugler, 2 O. St. 373. §65. Cryer v. Andrews, 11 Tex. 170. §216. Cucullu V. Hernandez, 103 U. S. 105. §173. Culbertson v. Witbeck Co., 127 U. S. 326. §§77, 125, 145. Cullers V. Henry, 66 Tex. 497. §118. Curaraings v. Tovey, 39 Iowa, 195. §285. Cunningham v. Brown, 44 Wis. 72. §221. ,v. Pattee. 99 Mass. 248, 252. §236. ■ V. Tucker, 14 Fla. 251. §276. V. Woodbridge, 76 Ga. 302. §§221 239. Curme v. Rauh, 100 Ind. 247. §245. Currie v. Kerr, 11 Lea (Tenn.), 138. §.52. Curtis V. Blair, 4 Cush. 309. §§182, 223. V. Hunting, 6 Iowa, 536. §25. V. Leavitt, 15 N. Y. 194. §23. V. Lunn, 6 Munf. 42. §155. V. Millard, 14 Iowa, 128. §26. V. Mundy. 3 Met. (44 Mass.), 405. §§222, 223. 224. V. Boot, 20 111. 53. §§122, 169. Ourts V. Cissna, 7 Biss. 260. §206. Gushing v. Ayer, 25 Me. 383. §6. V. Hurd, 4 Pick. 252; S. C. 16 Am. Dec. 335. §223. Cutler V. James, 64 Wis. 173; s. C. 54 Am. Rep. 603. §§27, 185. D. Dail V. Moore, 51 Mo. 589. 73. Dailey v. Warren, 80 Va. 512. Dakes v. Jones, 6 Jones, 14. Dale V. Arnold, 2 Bibb. 605. Dalton V. Rust, 22 Tex. 134. 688 §§59, §245. §139. §132. §102. DAME. J TABLE OF CASES. [deckek. Dame v. Baldwin, 8 Mass. 521. §^247, 248. Dana V. The U. S. Bank, 5 Watts &Serg. 223. §128. Danburv v. Kobinson, 1 McCart. 213; 's. C. 82 Am. Dec. 244. §§202. 216. Danolade v. EUas, 80 Cal. 65. §118. Daniels V. Davidson. 16 Beav., Sr., 249. §§210, 228, 236. Dargin v. Beclier, 10 Iowa, 571. §147. Darland v. Levins (Wash.), 20 Pac. Repr. 309. §268. Darling v. Wilson, 60 N. H. 59. §24. Darst V. Bates, 51 111. 439. §144. V. Gale, 83 111. 136. §§35, 67. Daubenspeck v. Piatt, 22 Cal. 330. §231. Daughaday v. Paine, 6 Minn. 443. S20. Davar v. Cardwell, 27 Ind. 4. §§79, 80. Davenport v. Turpen, 41 Cal. 100. Davis V. Kennedy, 58 Tex. 516. §89. V. Life Ins. Co., 84 111. 508. §43. §59. -V. Living, 32 W. Va. 174. V. Lofton, 6 Tex. 4SU. §261. V. Lutkieweis, 72 Iowa, 254. §§160,223. V. Ownsbv, 14 Mo. 170; s. C. 55 Am. Dec. 105. §199. V. Eoosvelt, 53 Tex. 305. Davidson v. Cowan, 1 Dev. Eq. 470. §§14, 196. V. Gorham, 6 Cal. 343. §275. V. Little. 22 Pa. St. 245; s. C. 60Am. Dec. 81. §204. Davie v. McDonald, 47 Ga. 195. §133. Davis V. Agnew, 67 Tex. 206. §§9, 98, 101. 1 10. V. Alvord, 94 U. S. 545. §46. V. Andrews, 30 Vt. 681. §100. §243, §45. ■V. Bk. of U. S., 2 Hill, 451. • v. Beasley, 75 Va. 491. §67. V. Bilsland, 18 Wall. 659. V. Bogle, 11 Heisk. 315. §77. ■ V. Demming, 12 W. Va. 246, 282. §231. V. Gaines, 104 U. S. 386. §§51, 191. 212. V. Hisgins, 91 N. C. 382. §73. V. Slrathmore, 16 Ves. 419. §§42. 216. Davison v. Bloomer, 1 Dall. 123. §130. Daw V. Llttlejohn, 2 Ired.Eq. 495. §19K. Daws V. Craig, 62 Iowa, 515. §§33, 175. Dawson v. Daubury, 15 Mich. 489. §■230. v. Meade. 71 Iowa, 295. §43. v. Shirley, 6 Blackf. 531. §§99, 104. Day v. Adams, 45 Vt. 510. §127. V. Clark, 25 Vt. 397, 402. §§22, 156, 157. V. Griffith, 15 Iowa, 104. §§144, 256. V. Munson, 14 O. St. 488. §258. V. Walmsey, 33 Ind. 145. §241. Davton v. People's Sav. Bk., 23 Kan. 421. §2-8. Deal v. Palmer, 72 N". C. 582. §217. Dean v. De Lezardi, 24 Miss. 424. §31. V. Hutchinson, 40 K. J. Eq. (13 Stew.), 83. §252. Long, 122 111. 447. §§178, 181, 221. V. Nelson, §250. 10 Wall. 158. §§122, 129, 130. V. Hopkins, 15 111. 519. §12. V. Inscoe, 84 N. C. 396. §§189, 217. V. Jewett, 3 Greene, 226. §171. V. Scott. 67 Iowa. 233. §20. DeArnaz v. Escandon, 59 Cal. 486. §§57,89, 104, 105. Deason v. Tavlor, 53 Miss. 697. §§181, 216, 227. De.aherage v. Woods, 37 Kan. 59. §§46. 271 . Decker v. Boice, 19 Hun, 152. §§33, 170, 174. ■ V. Clarke, 26 N. J. Eq. 163. §28. (44— Eeg. of Title.) 6S9 DE COURCEY.J TABLE OF CASES. [dixon. De Courcev v. Collins, 21 N. J. Eq. 357. §§166. 262. Deere v. Nelson, 73 Iowa, 186. §144. DeeiT v. Cray, 5 Wall. 795, 806. §§50, 80, 105. DeHaven's Appeal, 38 Pa. St. 373. §54. Deliiinger v. McConnelI,41 111. 228. §§97, 168, 169. Delafield v. Bradley, 108 N.Y. 524. §118. Delancy v. McKeen, Wash. C. Ct. .525. §§3, 134. DeLancy v. Stearns, 66 N. Y. 157. §203. Delane v. Moore, 14 How. 253. §§132, 266. Delespiae v. Campbell, 52 Tex. 4. §178. Delop V. Windsor, 26 La. Ann. 185. §266. Demarest v. Wynooop, 3 Johns. Ch. 129; s. c. 8 Am. Dec. 427. §154. Den V. Geiger, 4 Halst. (9 N. J. Law), 233. §§104.108. V. Lewis, 8 Ired. 70; S. C. 47 Am. Dec. 338. §98. V. Richman. 13 X. J. L. (1 Green), 43. §§133, 167, 212. V. Roberis, 4 N. J. L. 315. §31. Denn v. Reid, 10 Pet. 524. §97. Dengenhart v. Cracraft, 36 O. St. .5-19. §§97. rOS. Denham v. Hollman, 26 Ga. 191. §286. Dennis v. Tarpenny, 20 Barb. 371. §§104, 109. Denny v. Bennett, 128 U. S. 489. §267. . V. Faulkner, 22 Kan. ' 89. §268. -V. Lincoln, 13 Met. 200. §218. Denton v. White. 26 Wis. 679. §230. Dentzel v. Waldie. 30 Oal. 138. §§97. 102. 120. Derbes v. Romero, 32 La. Ann. 283. §§173, 196,217. Derr v. Dellinger, 75 N. C. 300. §§3S, 217. De Wiiint Germain V. Wind, 3 Wash. 189. §249. De Seoo'iid v. Culver, 10 Ohio,' 188. §§06, 75. Deshon v. Bigelow, 8 Gray, 159. §249. De Sepulveda v. Baiigh, 74 Cal. 468; s. C. 5 Am. St. Rep. 455. §§178, 181. De St. Romes v. Blanc, 31 La. Ann. 48. §173. Deuster v. McCamus, 14 Wis. 509. §164. DeVandell v. Hamilton, 27 Ala. 156. §§10, 199. De Veaux v. Fosbender, 57 Mich. 579. §27. Devinney v. Reynolds, 1 Watts & S. (Pa.), 328. "§82. Devlin v. O'Neill, 6 Daly, 305. §250. Dewey v. Campau, 4 Mich. 565. §§5, -57, 80, 104, 105, 111. V. IngersoU, 42 Mich. 17. §164. DeWolf V. Strader, 26 111. 231. §31. Dey V. Dunham, 2 Johns. Ch. 182. §§12, 31, 137, 138, l^^O. De Yaiiipert v. Brown, 28 Ark. 106. §158. Dick V. Balch. 8 Pet. 30. §171. Dickerson v. Bowers, 42 N. J. Eq. 295. §§151, 238. V. Colgrove, 100 U. S. 678. §§27, 183. v. Davis, 12 Iowa, 353. §S2. v. 'I'albot, UB. Mon.60. §65. ■ V. Tillinghast, 4 Paige, 215; S. C. 25 Am. Dec. 528. §§204. 205, 207, 209, 212. Dickey V. Henarie. 15 Or. 351. §198. V. Lyon, 19 Iowa, 544. §23(i. Dickson v. Hynes, 36 La. Ann. 684. §192. Digljy V. Jones. 67 Mo. 104. §177. Digman v. JlcCoUum. 47 Mo. 372. 376. §§4, 22, 159, 161. Dillingham v. Bolt. 37 N. Y. 19*; S. C. 4 Abb. Pr. N. S. 221. §§257. 260. V. Ladue, 35 Barb. 38. §257. Dillon V. Shugar, '73 Iowa. 434. §216. Dimon v. Dunn, 15N. Y. 498. §171. Diiigens v. Clancey, 56 Barb. 566. §99. Dinkins v. Moore, 17 Ga. 64. §§S. 52. Di.'ique V. Wright, 49 Iowa, 638. §§17, 147. Dixon V. Caldwell, 15 O. St. 412; S. C. 86 Am. Dec. 487. §247. V. Cook, 47 Jliss. 226. §19.^. V. Doe, 1 Sm. &M.70. §198. 690 DIXON. ] Dixon V. Hunter, 57 Ind. 27S « 134, 209. Dobbins v. Stevens, I Dev. & Bat. L. 6. §234. Dobyns v. Waring, 82 Va. 159. SSIO, 196, 197, 218. ^ ' Dodd V. Arnold, 28 Tex. 98. §247. V. Bowles, 3 Wash. 383. §493. V. Parker, 40 Ark. 536, 540. §§12, 30, IBS, 189, 196, 217. Dodds V. Neel, 41 Ark. 70. §273. Dodge V. Briggs, 27 Fed.Eepr. 160. TABLE OF CASES §§33 [duke. V. Evans. 43 Miss. 570. §20. V. Holllngshead, 6 Minn. 25 ; S. C. SO Am. Dec. 433. §§87, 121. V. Littler (Tex.) 11 S. W. Kepr. 331. §135. V. Potter, 18 Barb. 193. §§148, 151. Doe V. Naylor, 2 Blackf. 32. §23. V. Prettyman, 1 Houst. 339. §56. Doe ex dem. Truluck v. Roe, 1 Ga. 3. §70. Doherty v. Stimmel, 40 O. St. 294. §154. Dolde v. Vodicka, 49 Mo. 100. §49. Dolin V. Gardner, 15 Ala. 758. §t!21. 129,162. Dominguez v. Lee, 17 La. 296. §114. Donahue v. Mills, 41 Ark. 421. §§S8. Ill, 112, 210. Doualdson v. Bank, 1 Dev. Eq. 103. §207. ■ V. Farwell, 93 U. S. 631. §250. Douglass v. McCracken, 52 Ga. 596. §§155, 267. V. Peele, Clarke (N". Y.), 563. §31. Dow V. Gould, 31 Cal. 646. §117. V. Jewell, 18 N. H. 340. V. Mitchell, 82 Ky. 47. V. Johnson, 2 Chand. 160. §§41, 218. v. Phelps, 18 Penn. St. 170. Dooley v. Wolcott, 4 Allen (86 Mass.), 400. §229. DoolUtle V. Cook, 75 III. 354. §§158, 159. 163. Dore V. Sellers, 27 Cal. 588. §45. Dorland v. Magilton, 47 Cal. 485. §231. Dorn V. Best, 15 Tex. 62. §§79, 125. Dorsey v. Thompson, 37 Md. 2a. §191. Doswell V. Buchanan, 3 Leigh, 365 ; s. C. 23 Am. Dec. 280. §§19, 22, 36, 152. 160, 203. 205. Doty Y. Gorham. 5 Pick. 487; S. C. 16 Am. Dec. 417. §64. 691 §100. Dowell §105. V. Stewart, 83 111. 538. §41. Downing v. Blair, 75 Ala. 216. §§89, 208. Dows V. Kidder, 84 N. Y. 121, 127. §§247, 248, 250. Doyle V. Wade, 1 South. Eepr. 576. §§42, 198, 199. V. Peerless Co., 44 Barb. 239. §§22, 161. V. Stevens, 4 Mich. 87. §§234, 269. Drake v. Crowell, 40 N. J. L. 58. §43. V. Glover, 30 Ala. 382. §§99, 102. Draper v. Bryson. 26 Mo. 108; s. C. 69 Am. Dec. 483. §§83, 197, 212. Draude v. Eohrer, 9 Mo. App. 249. §186. Dresser v. Mo. Ry. Co., 93 U. S. 92. §§205, 206. v. Wood, 15 Kan. 344. §43. Drew V. Arnold, 85 Mo. 126. §106. V. Norbury, 3 Jo. & Lat. 267. §2. V. Smith, 59 Me. 393. §251. V. Htreeter, 137 Mass. 460. §§7, 254. Drurv v. Foster. 2 Wall. 24; s. C. 1 Dillon, 460. §§S7, 99, 101, 116. Dubois V. Barker, 4 Hun, 80. §224. Dudley v. Abner, 52 Ala. 572. §248. Duff V. Duff, 71 Cal. 513. §220. V. Wynkoop, 74 Pa. St. 300. §69. Dugan V. §235. Dugger V. Collins, §223. Follett, 100 111. 581. 69 Ala. 324. Dugger, 84 Va. 130. McKesson. 100 N. C. 1. §61. Duke V. Balme. 16 Minn. 306. §§20, 289. V. Clark, 58 Miss. 465. §212, V. Strickland, 43 Ind. 494. §274. I DUKES. ] TABLE or CASES. Fellinbor. Dukes V. Jones. 6 Jones (N. C), L. 14. §255. Dulaney v. Tilghmau, 6 Gill. & J. 461. §102. Duly V. Brooks, 30 Mo. 515. §65. Duncan v-. Louisville, 13 Bush, 378. §204. V. Stone, 45 Vt. 123. §251 . Dundas v. Hitchcock, 12 How. 256. §§108, 115. Dundy v. Chambers, 23 111. 309. §62. Dungan v. Am. Life Ins. Co., 52 Pa. St. 253. §31. Dunham v. Dey, 15 Johns. 555; s. C. 8 Ajn. Dec. 282. §§2, 138,149, 216, 220. Dunklee v. Crane. 103 Mass. 470. §45. Dunlap v. Daugherty, 20 III. 297. §§66, 70. Dunn V. Adams, 1 Ala. 527. §73. ■ V. Elser. 2 Tex. Civ. App. §720. §§217, 248. V. G-aines, 1 McLean, 321. §S7. Duphney v. Frenage, 5 Stew. & Port. 215. §§61, 206. Durand's Appeal. 116 Pa. St. 93. §144. Durant v. Crowell, 97 X. C. 367. §§216, 217. Durfee v. Garvey, 63Cal. 406. §119. V. Grinnell, 69111.371. §246. Dusenburg v. Hurlburt, 59 N. Y. 541. §§160, 170. Dussaume v. Burnett, 5 Iowa, 95. §§8, 67. Dutton V. Stewart, 41 Ark. 101. §§115, 120. Duval V. Covenhoven,4 Wend. 501. §71. V. Wilson, 9 Barb. 487. §204. D wight V. Scranton (Mich.), 36 N. W. Repr. 752. §254. Dyer v. Witler, 89 Mo. 81. §235. Dyke V. Dyer, 14 La. Ann. 701. §52. Dyson v. Simmons, 48 Md. 207. §171. E. Eadie v. Slimmon, 26 N. Y. 9 §10S. Earle V. Earle, 1 Spen. 347. §116 V. Fisk, 103 Mass. 491. §§4 18, 152. East V. Pugh, 71 Iowa, 162. §§97, 1,54. Eaton V. Freeman, 63 Ga. 538. §§124, 129. V. Tusou, 145 Mass. 218. §249. Echols V. Cheney, 28 Gal. 157. §59. Eck V. Hatcher. 58 Mo. 235. §'l7li. Ede V. Johnson, 15 Cah 53. §§261 271. Edgerly v. Bush, 81 l!}^. Y. 199. §206 Edgerton v. Jones, 10 Minn. 427. §§105. 108. Edmondson v. Harris, 2 Tenn. Ch. 427. §109. Edrington v. Mayfield, 5 Tex. 363. §185. Edwards v. Barwise. 69 Tex. 84. §§0, 1.50, 153. 1S7, 220, 272. V. Derriokson, 4 Dutch: 39. §47. V. Drinker, 9 Dana, 69. §S8, 199, 218. ■T. Flannagan, 104 U. S. 562. §§11, 74. ■ V. James, 7 Tex. 375. §96. V. McKernau, 55 Mich. 520; s. c. 22 N.W. Repr. 20. §§20, 36, .39, 201. V. Thompson, 71 jST. C. 177. §§217, 221, 228, 236. V. Thorn, 5 South. Repr. 707. §52. V. Trumbull, 50 Pa. St. 509. §§32. 138, 174. Effinger v. Hall, 81 Va. 94. §216. V. Lewis, 32 Pa. St. 367. §§12. 219, 234. Eggeman v. Eggeman, 37 Mich. 436. §169. Eggleston v. Bradford, 10 Ohio, 312,315. §11. V. Watson, 53 Miss. 339. §147. Ehle V. Brown, 31 Wis. 405. §§198, 236. ^* Eiehelberger v. Sifford, 27 Md. 320. §.56. Eidson v. Huff, 29 Gratt. 338. §§196, 197. Einstein's Sons v. Shouse, 24 Fla. ■ ; s. c. 5 South. Repr. 380. §§246, 254. 2,55. Ellicott v. Pearl, 10 Pet. 442. §§233, 234. , j Ellinbor v. Brakken, 36 Minn. 156. I §^54. 692 ELLINGEK. j TABLE or CASES. [faircloth. Ellinger v. Crowl, 17 Md. 361. §204. Elliott V. Peirsoll, 1 McLean, 11. §§23, 88, 92, 93, 101, ]20. V. Wood, 45 N. Y. 71; S. C. 53 Barb. 285. §210. Ellis V. Martin, 60 Ala. 394. §273. V. Smith, 10 Ga. 253. §§158, 184. ^'^ ' Ellison V. Wilson, 36 Vt. 67. §§153, 219. Ellsworth V. Cent. Ky. Co., 34 N. J. L. 93. §144. Elsey V. Lutzens, 8 Hare. 159. §14. Elson V. , Barrier, 66 Miss. 394. §265. Elstor V. Castor. 101 Ind. 246. 443; S. C. 51 Am. Rep. 754. §175. Blwell V. Shaw, leMass. 42. §59. Ely V. Carnlev, 3 E. D. Smith, 489. S. C. 19 N. Y. 496. §260. V. Schofield, 35 Barb. 330. §§33. 34. 204. V. Wiloox, 20 Wis. 523; s. c. 91 Am. Dec. 436. §§8, 14, 20, 22, 75, 142, 1.57. 158, 210. 233. Emmons v. Murray, 16 N. H. 398. §§■.'32, 234, 236, 237. Emory v. Seavy, 148 Mass. 566. §374. BmiDire Drill Co. v. Allison, 94 N. C. 548. §§250. 251. England v. Hatch. 80 Ala. 247. §95. English V. Waples, 13 Iowa, 57. §168. Enlow V. Klein, 79 Pa. St. 488. §247. Ennor v. Thompson, 46 111. 214. §§71, 87. Enos V. Cook, 65 Cal. 175. §33. Ensworth v. King, 50 Mo. 447. §144. Enterprise Transit Co. v. Sheedy, 103 Pa. St. 492. §§92, 119. Eplev V. Withrow, 7 AVatts, 163. §§220, 226. Epperson v. Jones, 65 Tex. 425. §182. Eppricht V. Nickerson, 78 Mo. 483. §60. Eq. Life Ins. Co. v. Slye, 45 Iowa, 615. §45. Erickson v. Eafferty, 79 111. 209. §147. Erskine v. Davis, 25 111. 251. §57. Erwin v. Shuey, 8 O. St. 509. §§211. 217. Eslinger v. Eslinger, 47 Cal. 62. §114. Espin V. Pemberton, 3 DeG. & J. 5+7. §§22], 242. Estubrook v. Messersmith, 18 Wis. 551. §211. Estate of Prudhomme, 35 La. Ann. 984. §150. Etheridge v. Ferebee, 9 Ired. 312. §110. V. Hilliard, 100 N". C. 250. §274. Etzler V. Evans, 61 Ind. 56. §175. Evans v. Ashley, 8 Mo. 177. i;4S. V. Etheridge, 99 N. C'. 43. §66. §207. §10. §54. ■ V. Greenhow, 15 Gratt. 153. ■V. Lee, 11 Nev. 194. §66. V. McGlasson, 18 Iowa, 150. V. Eichardson, 76 Ala. 329. V. Summerlin, 19 Pla. 858. §§115. 186. V. Templeton, 69 Tex. 375; S. C. 5 Am. St. Rep. 71. §204. V. Wells, 22 Wend. 325. §39. Evei'ett V. Brown, 64 Iowa, 420 §253. V. Stone, 3 Story, 446. §192. Everman v. Robb, 52 Miss. 653. §28. Everston v. Sawyer, 2 Wend. 507. §48. Everts V. Agnes, 4 Wis. 343; s. C. 65 Am. Dec. 314. §§204, 206. Evitts V. Roth, 61 Tex. 81. §234. Ewing V. Bm-nett, 11 Pet. 53. §§233, 234. Excelsior Co. v. Keyser, 62 Miss. 155. §§174. 190. Exchange Bk. v. Knox, 19 Gratt. 739. §207. Bx parte Ames, 1 Low. 561, 567. §252. Fitz, 2 Lowell, .519. §40. EyKir v. Eylar, 60 Tex. 319. §§228, 230, 23J. Eyster v. Hathawav. 50 111. 521; S. c. 99 Am. Dec. 537. §94. 'Ezzard v. Frick, 76 Ga. 512. §248. F. Fair v. Stevenot, 29 Cal. 486. §232. Fairbanks v. Phelps. 22 Pick. 535. §219. Fairclothv. Jordan,18Ga. 350. §160. 693 FAIRriKLD.J TABLE or CASES. [riSK. Fairfield Bk. v. Chase, 72 Me. 226. §244. Fairfield Bridge Co. v. Nye, 60 Me. 372. §253. Fairthorn v. Davis, 28 La. Ann. 728. §.i2. Fales V. Roberts, 38 Vt. 503. §251. Fall V. Koper, 3 Head. 485. §§91, 92, 123. Fallass v. Pi«rce, 30 Wis. 442. §§13, 92, 97, 142, 155, 156, 162, 200, 210. Fallon V. Kehoe, 38 Cal. 44; s. C. 99 Am. Dec. 347. §§57, 78. Fargason v. Edrinofton, 49 Ark. 207. 216. §§10. 12, 35, 155, 170, 1S3, 202, 209, 210, 216. Farley v. Carpenter, 27 Hun, 359. §176. V. Lincoln, 51 JST. H. 579; s. C. 12 Am. Rep. 182. §247. Farmer's Bank v. Bronson, 14 Mich. 361. §§40, 150, 188. ■ V. Butterfield, 100 Ind. 229. §175. §64. §44. §244. §228. V. Chester, 6 Humph. 458. ■ V. Drury, 38 Vt. 426. §144. T. Fletcher, 44 Iowa, 252. V. Payne, 25 Conn. 444. V. Sperling, 113 111. 273. V. Wallace, 45 O. St. 152. §§154, 208, 285. Farmer'.^ Loan Co. v. Hendrickson, 25 Barb. 484. §§41, 2.52, 270. V. MaltbV. 8 Paige, 361. §§22, 160, 206, 234. Farnum v. BiiJifum, 4 Cush. 260. §73. Farrar v. Payne, 73 III. 82. §§35, 177, 210. Farvvell v. Houghton Works, 8 Fed. Repr. 66. §244. Fash V. Ravesies, 32 Ala. 451. §S10, 199, 205. Fasset v. Smith, 23 N. Y. 252. §235. Faugh t V. Hoi way, 50 Me. 24. §234. Faulke v. Bond, 41 N. J. L. 527. §235. Fawcett v. Osborn, 32 111. 411 ; s. c. 83 Am. Dec. 27S. §§1,54, 245. Fawell V. Heelis, Amb. 724. §20. Fay V. Valentine, 12 Pick. 40; s. c. 22 Am. Dec. 397. §§172, 226. Feirbough v. Masterson, 1 Idaho, 135. §§228, 233. Fell V. I'oung, 63 111. 106. §95. Felton V. Pitman. 14 Ga. 536. §]5S. Fenuo v. bavre, 3 Ala. 458. §159. Fergus v. Woodworth, 44 111. 374. §191. Ferguson v. Ashbell, 53 Tex. 249. §45. ■ V. Clifford, 37 X. H. 86. §§266, 268, 272. — -v. Glasslord (Mich.), 35 N. W. Repr. 820. §175. Ferris v. Boxell, ,34 Minn. 392. §56. V. Smith, 24 Vt. 27. §16. Ferry v. Pfeiffer, 18 Wis. 510. §28. Feurt V. Rowell, 62 Mo. 524. §§254, 265. Field V. Gellerson, 80 Mo. 270. §2.51. V.Moore, 19 Beav. 176. §116. Filley v. Duncan, 1 Neb. 134. §20. Final v. Backus, IS Mich. 218. §§71, 72. Finch v. Shaw, 19 Beav. 500. §241. V. Winchelsea, 1 P. Wms. 277. §§10. 25, 192. Fipp V. McGehee, 5 Port. 413. §128. Fii-by v. Miller, 1 Casey, 264. §155. Firebaugh v. Ward, 61 Tex. 409. §169. First Nat. Bk. v. Christopher, 40 N. J. 435. §240. V. Comfort, 4 Dak. — ; s. c. 28 N. W. Repr. 855. §274. V. Daram, 63 Wis. 249. §§246, 254, 255, 261. V. Hayzlett, 40 Iowa, 659. §§192. 212. V. Loyhed, 28 Minn. 396. §244. Paul, 75 Va. 594; s. C. 40 Am. Rep. 740. §§87, 92. Fish V. Benson, 71 Cal. 428. §36. — V. N. y. Paper Co., 29 N. J. Eq. 010. §2,57. Fisher v. Butcher, 19 Ohio, 406; s. C. 53 Anv Dec. 436. §56. V. Johnson, 5 Ind. 492. §20. V. Kqox, 11 P. St. 622. §14. V. Meister, 24 Mich. 447. §69. V. Tunnard, 25 La. Ann. 179. §§31, 13S, 2.52. Fisk V. Miller, 13 Tex. 226. §101. V. Potter, 2 Abb. App. Dec. 138. §20. 694 FITCH. J TABLE OF CASES. [fox. Fitob V. Boyer, 51 Tex. 336. §187. V. Humphrey, 1 Den. 163. §•260. Fitzgerald v. Fitzgerald, 100 111. 385. §90. V. Goff. 99tnd. 28. §144. Flagg V. Mann. 2Sumn. 510. §§12, 27, 224, 227. t2S, 239. Flanagan v. Boggess, 43 Tex. 335. §21. V. Brown, 70 Cal. 254. §29. V. Young, 2 Har. & McH., 38. §69. Plaster v. Fleming, 56 111. 457. §191 . Fleetwood v. Brown, 109 Ind. 571. §27. Fleming v. Bergin, 2 Ired. Eq. 584. §§30, 189, 217. V. Ervin, 6 W. Va. 215. §8. V. Potter, 14 Ind. 486. §103. V. Keed. 37 Tex. 152. §128. Flescliner v. Sumpter, 12 Or. 161. §§75, 133. Fleicher v. Beck, 6 Cranch, 36. §155. V. Ellison, 1 Tex. Un. Cas. 661. §§54, 183, 205. 206, 213. V. Holmes. 32 Ind. 297. §172. V. Home, 75 Ga. 134. §144. V. Morey, 2 Story, 555. §213. Flint V. Auditor-Gen., 41 Mich. 635. §210. V. Clinton Co., 12 N. H. 430. §60. Florence t. Hopkins, 46 N. Y. 182. §236. Flory V. Comstock, 61 Mich. 522. §257. Flowers v. Wilkes, 1 Swan, 408. §16. Floyd V. Harding, 28 Gratt. 401. §§10, 187, 192. Flynt V. Arnold, 2 Mete. 619. §§162, 181, 214. Fogarty v, Finlay, 10 Cal. 239; s. c. 70 Am. Dec. 714. §§17, 18, 87, 121. V. Sawyer, 23 Cal. 570. §73. Fogg V. Holcomb, 64 Iowa, 621. §§71, 97. Folger V. Weber, 16 Hun, 512. §276. Foisom V. Fowler, 15 Ark. 280. §250. Founlaine v. Beers, 19 Ala. 722. §276. V. Boatmen's Bank, 57 Mo. 553. §144. 121. §234. Foorman v. Wallace, 75 Cal. 552. §§52, 212. Forbes v. Parker, 16 Pick. (33 Mass.), 462. §254. Ford V. Cobb, 20 N. Y. 344. §252. V. Gregory, 10 B. Mon. 177. §115. -v.Osborne,45 0. St. 1. §§90. • V. Teal, 7 Bush, 158. §87. V. Wilson, 35 Miss. 50i. V. White, 16 Beav. 120. §§152, 165, 216. Fords V. Vance, 17 Iowa, 92. §212. Fordyce v. Neal, 40 Mich. 705. §253. Forrest v. Jackson, 56 N". H. 357. §§222, 228. Fort V. Burch, 6 Barb. 60. §3. Fortune v. Watkins, 94 N. 0. 304. §§189, 217. Fosdick V. Schall, 99 U. S. 235. §250. Foster -f. Beardsley Scythe Co., 47 Barb. 505. §190. V. Chapman, 4 McCord, 291. §42. §11. V. Dennison, 9 Ohio, 121. ■V. Dugan, 8 Ohio, 87; S. C. 31 Am. Dec. 432. §§150. 163. ■ V. Essex Bank. 16 Mass. 245. §97. ■ V. Paine, 63 Iowa, 85. §175. — —V.Perkins, 42 Me. 168. §§2.54. 275, 276. V. Stallworth, 62 Ala. 547. §223. Foster's Appeal, 3 Pa. St. 79. §172. Fouche V. Swan, 80 Ala. 153. §16. Foulke V. Bond, 12 Vroom, 527. §237. Foushee v. Grigsby, 12 Bush, 75. §§45, 46. Fowler v. Evans, 26 Tex. 636. §135. V. Merrill, 11 How. 375. §§190, 296. V. Shearer, 7 Mass. 19. §59. . V. Stoneum, 11 Tex. 478, 511. §250. Fowke V. Woodward, Speer's Eq. 233. §186. Fowlke V. Zimmerman, 14 Wall. (81 U. S.), 113. §51. Fox V. Hall, 74 Mo. 315; S. C. 41 Am. Rep. 316. §27. V. Hinton, 4 Bibb. 559. §234. 695 rox.] TABLE OF CASES. [GAINES. Fox V. Thibault, 33 La. Ann. 32. §^18, 148. Fiaim v. Frederick, 32 Tex. 294. 308. «?20,i, 206. Francis v. Wells, 2 Colo. 660. ii20. Frank v. Miner, 50 111. 444. §§.55, 65. US. Fraukt'ort Bank v. Anderson, 3 A. K. Marsh. 932. §60. Frankland v. Moulton, 5 Wis. 1. §•252. Franklin v. Kesler, 28 Tex. 138. §25. Fraser v. Gilbert, 11 Hun, 634. §§196, 254. Frasier v. G-eJston, 35 Md. 298. §99. Frazee v. Inslee, 2 N. J. Eq. 239. §175. Fredenwold v. Mullen, 10 Heisk. 22(). §186. Freeman v. Deming, 3 Sandf. Ch. 327. §205. V. McKean, 25 Barb. 474. §250. §170. V. Schroeder, 43 Barb. 618. §225. Freiberg v. Magale, 70 Tex. 116. §§16, 198. Frey v. Clifford, 44 Cal. 335. §183. French Bank v. Beard, 54 Cal. 480. §106. French v. De Bow, 38 Mich. 708. §175. V. French, 3 N. H. 234. §145. V. Loyal Co., 5 Leigh, 627. V. Strumberg, 52 Tex. 109. §114. Frankle v. Hudson, 82 Ala. 158. §243. Fresno Canal Co. v. Eowell, 80 Cal. 114. §294. Frick's Appeal, 101 Pa. St. 485. §§163. 164. Priedlay v. Hamilton, 17 Serg. & K. 70. §31. Frink v. Dowdall, 14 111. 304. §161. Frisby v. Withers, 61 Tex. 134. §234. Fromme v. Jones, 13 Iowa, 474. §216. Frost V. Beekman, 1 Johns. Ch. 288. §§31, 205, 206. Frosthurg v. Brace, 51 Md. 508. §§60, 145. V. Hamill, 55 Md. 313. §§216, 217. • Fry V. Clifford, 44 Cal. 335. §207. Fry V. Martin. 33 Ark. 203. §§12, 165, 189, ]96, 212. V. Porter, 1 Mod. 300. §225. V. Schnee, 55 Ga. 210. §171. Frye v. Bank of 111., 11 111. 367. §164. V. Partridge, 82 111. 267. §216. Fryer v. Rishell, 84 Pa. St. 521. §216. V. Eockafeller, 63 X. Y. 268. §,§76, 77. Fuller V. Bennett, 2 Hare, 394. §§221. 241. V. Cunningham, 105 Mass. 442. §§140, 150. 272. V. Paige, -26 111. 358; s. c. 79 Am. Dec. 376. i,iC,<). V. O'Neal. 69 Tex. 349; s. C. 5 Am. St. Kep. 59. §24. V. Scribner, 76 X. Y. 190. §43. Fullerton v. Doyle, 18 Tex. 4. §118. Fulton V. Bayne, 18 Tex. 50. §96. Bk. V. X. Y. Canal Co., 4 17 Paige. 127. §§238, 243. 244. Fund Commissioners v. Glass Ohio, .542. §73. Funk V. Paul. 64 Wis. 35; s. c. 54 Am. Kep. 576. §§207. 245, 269. V. Staats, 24 111. 632. §246. Funkhouser v. Lay, 78 Mo. 458. §155. Furhman v. Loudon, 13 Serg. & E. 386; s. C. 15 Am. Dec. 608. §70. 6. Gabbert v. Schwartz 9 In i 0. §204. Gabbey v. Porgeous. ;> K 62. §121. Gaffney v. Peeler. 21 S. Car. o5. §9. Gage V. Dubuque, 11 Iowa, 310. §73. V. Wheeler fill.), 21 N. E. Kepr. 1075. §§76. 246. G.'igneux's Succession, 40 La. Ann. 707. §358. Gainer v. Cotton. 49 Tex. 101. §96. Gaines v. Catron, 1 Humph. 514. §97. V. De LaCroix, 6 Wall. (73 U.S.), 719. §51. V. Saunders, 50 Ark. 322. §179. GAINES. ] TABLE OF CASES. [gilbert. Gaines v. Xew Orleans, 6 Wall. 612. §216. Gaither v. Mumford. Taylor's Term (N. C), 167. §2i55. Gale V. Blaikie, 129 Mass. 206. §40. V. Morris, 29 N. J. Eq. 222. §§:H9, 153, 20L V. aijillock (Dak.), 29 N. "\V. Repr. 601 . §2H4. V. Ward, 14 Mass. 352. §2.=)2. Gallard v. Jackinan, 26 Gal. 79. §223. Galpin v. Abbott, 6 Mich. 17. §§28, 145. Gait V. Dibrell, 10 Yerg. 147. §97. Galway v. Mal'ehow, 7 Neb. 2S.5. §§10, 42, 166. 169, 192, 196. Gammon v. Hodges, 73 111. 140. §1S7. Gan^en v. Tomliuson, 23 N. J. Eq. 403. §31. Gardiner v. Parmalee, 31 Ohio, 551. §271. Gardner v. Case, 111 lud. 494. §§109. 121. V. Earley, 72 Iowa, 51>;. §§13, 1.54. 100, 109, 232, 235. 239. V. EberLeart, 82 111. 316. §48. 145. -V. Emerson. 40 111. 296. §171. ■V. Moore, 51 Ga. 268. §§126, Garland v. Harrison, 17 Mo. 282. §175. Garnet v. Stockton, 7 Humph. (Tenn.), 84. §76. Garner v. Thompson, 1 Tex. Law Kev. 286. §114. Garrett v. Moss, 22 111. 363. §§103, 109. V. Puckett,15Ind. 485.~§181. Garrison v. Crowell, 07 Tex. 626. §154. V. Hiiyden, 1 J. .1. Marsh. 222; 8. C. 19 Am. Dec. 70. §§134, 187. Garth v. Fort, 15 Lea, 083. §§90, 91. Garwood v. Eldredge, 2 N. J. Eq. 145; s. c. 34 Am. Dec. 195. §216. Garwood v. Garwood, 4 Halst. I93. §198. Giiss V. Hampton, 16 Nev. 189. §§41, 247. • Gassen v. Hendrick, 74 Cal. 444. §207. Gassner v. Patterson, 23 Cal. 299. §§41, 218. Gaston V. Merriam, 33 Minn. 275. §187. Gates V. Hester, 81 Ala. 357. §§112, 113. Gate wood v. Hart, 58 Mo. 261. §§23, 61. Geary v. City of Kansas, 61 Mo. 378. §150. Geib V. Reynolds, 35 Minn. 331. §175. Gen. Ins. Co. v. U. S. Ins. Co. 10„ Md. 517; S. C. 69 Am. Dec. 174. §§12, 39, 216,244. Genesee Nat. Bank v. Whitney, 103 U. S. 99. §171. George V. Kent, 7 Allen, 16. §§178, 181. V.Wood, 9 Allen, 80. §§163, 164. Gerdin v. Menace (Minn.), 43 N. W. Repr. 91. "§381. Gere v. Gushing, 5 Bush, 304. §45. Gerow v. Castello, 11 Colo. 560. §§250. 269. Getchell v. Moran, 124 Mass. 404. §46. Gherson v. Pool, 31 Ark. 85. §§204, 210. Gibbes v. Cobb, 7 Rich. Eq. 54. §186. Gibbons v. Gentry, 20 Mo. 468. §62. Gibbs V. Jones, 46 111. 319. §250. Gibert v. Peteler, 38 N. Y. 165; s. C. 97 Am. Dec. 785. §§147, 178, l.^I. Gibler V. Trimble, 14 Ohio, 823. §■205. ■ Gibson v. Chouteau, 39 Mo. 536. §161. V. EUer, 13 Ind. 124. §231. V. Keyes, 112 Ind. 568. §168. §120. V. Hibbard, 13 Mich. 217. • v. Hough, 60 Ga. 5SS. §137. • V. Seymour, 4 Vt. .518. §137. V. Warden, 14 Wall. 244. §2.55. V. Winslow, 46 Pa. St. 380; S. c. 84 Am. Dec. 552. §182. Giddens v. Byers, 12 Tex. 75. §59. Gitlin V. Barr, 60 Vt. 599. §§18, 150. Gilford T. Kookett, 121 Mass. 431. §57. Gilbert v. Jess, 31 Wig. 110. §§12, 1-59, 238. V. Vail, 60 Vt. 261. §271. 697 GILBEAITH.J TABLE OF CASES. [graham. Gilbraith v. Gallivan, 78 Mo. 452. §§(34, 91. Gilchrist v. Gouo;li. 63 Ind. 570; s. c. 30 Am. Kep. 2.-)n. §§17. 14i. 170, 17S, 181, •!07, 208, 209, 210. Gildersleeve v. Landon, 73 N. Y. 709. §2tj9. Gill V. Fauntleroy, 8 B. Mon. 177. §§6S, B9. — V. Hardia. 48 Ark. 409. §283. V. Pinney, 12 O. at. 38. §131. Gillett V. Giiffney, 3 Col. 351. §§2, 162. Gillespie v. Brown, 16 Neb. 457. §150. ■ V. Cammack, 3 La. Ann. 248. §136. V. Jones, 26 Tex. 343. §234. V. Remington, 66 Tex. 109. V. Rogers, 146 Mass. 610. §§16, 57. Gillia: V. Maas, 28 N". Y. 191. §142. Gillihmd v. Kendall (Neb., 1889), 2S Cent. Law -J. 543. §274. Gilman, etc.,Ry. v. Kelley, 77 111. 426. §242. Gilpin V. Page, IS W.ill. 3.50. §224. Gilson V. Boston. 11 Nev. 413. §216. Givanovitch v. Hebrew Congrega- tion, 36 La. Ann. 272. §§131, 172. Girardin v. Lamp, 58 Wis. 267. §33. Gitt V. Watson, 18 Mo. 274. §§57, 78. Gittings V. Hall, 2 H. & Johns. 112. §§65, 234. Given v. Doe, 7 Blackf. 210. §1. Glading v. Frick, SS Pa. St. 460. §16. Glaze V. Blake, 56 Ala. 379. §247. Glendenning v. Bell, 70 Tex. 632. §§159, 198, 221, 228,236. Glidden v. Hunt, 24 Pick. 221. §§154, 1,57, 204. Goddard v. Prentice, 17 Conn. 546. §198. V. Sawyer, 9 Allen, 78. §11. Godfrey v. Thornton, 46 Wis. 677. §99. Goelet V. McManus, 1 Hun, 306. §156. Goff V. Pope, 83 N. C. 127. §253. V. Roberts, 72 Mo. 570. §1U0. Golden V. Coekrill, 1 Kan. 259; s. C. 81 Am. Dec. 510. §§253,254,262. Goldsborough V. Turner, 67 N. C. 403. §§19, 203. Gooue V. smith, 13 Cal. 81. §108. Goodel V. Burnett, 22 Wis. 265. §161. Goodenough v. Warren, 5 Saw. 494. §§55, 101. Goodenow v. Dunn, 21 Me. 86. §275. Gonding V. Riley, 50 N. H. 409. §269. Goodman v. Simonds, 20 How. (U. S.). 343, 371. §208. Goodrich v. Michael, 3 Colo. 77. §§211, 213, 2."i4. Goodsell V. Sullivan, 40 Conn. 83. §132. Goodwin v. Col. M. Inv. Co., 110 U. S. 1. §4>:. Goodyear v. Goodyear, 72 Iowa, 329. §109. V. HuUihen, 2 Hughes, 492. V. Williston, 42 Cal. 11. §71. §273. Goodykootz v. Olsen, 54 Iowa, 174. §23. Gordon v. Avery, 102 N. C. 532. §433. V. Bell, .^lO Ala. 213. §20. V. Hobart, 2 Sumn. 401, §62. V. Knox, 31 La. Ann. 284. §§173, 2.5,s. V. Leech, 81 Ky. 229. §§62, 82, 111. V. Rixley, 76 Va. 694. §§20, 33. 40, 174, 209. 214, 246. Gorham v. Summers, 25 Minn. 81. §§1-10, 255. Goiman v. Stanton, 5 Mo. App. .585. §109. Goss V. Furman, 21 Fla. 406. §117. Gossard v. Ferguson, 54 Ind. 519. §48. Gott V. Powell, 41 Mo. 416. §191. Gould V. Woodward, 4 Greene, 82. §77. Gower v. Doheney, 33 Iowa, 38. §199. Grace v. Wade, 45 Tex. 522. §§10, 42. 192, 196, 202, 212. Graff V. Middleton, 43 Cal. 341. §§27, 1S3. Graham v. Anderson, 42 111. 514; s. c. 92 Am. Dec. 89. §70. V. Evant., 39 Minn. 382. §380. v. Hawkins, 38 Tex. 635. §182. 698 GRAHAM. ] TABLE OF- CASES. [gEOTENKEMPEK. Graham v. liawkins, 1 Tex. Un. Cas. 514. §P7S, 223. -• V. Long, Go Pa. St. 380. §105. V. Nesmith, 24 S. Car. 2S5. §§199. 228, 23i;. Grandiu v. Anderson, 15 O. St. 286. §178. . V. Hunt, 80 Ala. 116. §24. Grand Island Co. v. Frey, 25 Neb. 66. §§261, 265. Grand Tower Co. v. Gill, 111 111. 541. §74. Granger v. Adams, 90 Ind. 87. §264. Grant V. Bissett, 1 Caines" Cas. 112. §4. V. Burr, 54 Cal. 208. §210. V. Cole, 8 Ala. 519. §240. V. Dodge, 43 Me. 489.' §172. V. Strong, 18 Wail. 623.' §4. Graves v. Ward, 2 Duv. 301. §29. Gray v. Moseley, 2 Mumf. 546. §§197, 218. V. Parpart, 106 U. S. 679. §224. Greeley v. Smith, 3 Woodb. & M. 236. §276. Green v. Abraham, 43 Ark. 420. kei, 97. V. Carrington, 16 O. St. 548; s. o. 91 Am. Deo. 103. §142. ■ ■ V. Deal, 4 Hun, 703. §§167, 170. V. DeMoss, 10 Humph. 371. ■ V. Drinker, 7 Watts & S. 440. §23, 97. — V. Early, 39 Md. 223. §181. — V. Ely, 2 Greene, 508. §45. — V. Goodall,! Cold. 412. §196. ■V. Green, 16 Ind. 253; s. C. §20. 79 Am. Dec. 428. §45, ■ V. Harmon, 4 Dev. Law, 158. §233. §234. V. Liter, 8 Cranch, 229. V. Kick, 121 Pa. St. 130; s. C. 6 Am. St. Kep. 760. §175. V. Scranage, 19 Iowa, 461 ; s. C. 87 Am. Dec. 447. §§89, 121. V. VanBnskirk, 7 Wall. 139; S. C. 5 Wall. 307. §§267, 268. V. Warnick, 64 N. Y. 220. §§31, 167, 170. V. Weissenberg, 57 Pa. St. 433; s. C. 98 Am. Dec. 237. §97. Green v. Witherspoon, 37 La. Ann. 751. §147. Greeueaux v. Wheeler, 6 Tex. 515. §40. Greenleaf v. Edes, 2 Minu. 204. §§■(2, 192, 199, 212. Greeno v. Barnard, 18 Kan. 518. §20. Greenwood v. Jenswold, 69 Iowa, 533. §§66, 71. Greer v. Higgins, 20 Kan. 420. §222. Gregg V. Owens, 37 Minn. 61. §186. V. Sanlord, 24 111. 17; s. C. 76 Am. Dec. 725. §273. V. Sloan, 76 Va. 497. §§211, 214, 254. Gregory v. Ford, 5 B. Mon. 471. §§98. "103, 107. V. North Pacific, 15 Or. 447 §253. V. Paul, 15 Mass. 31. §118. ■ V. Perkins, 4 Dev. 50. §§31, V. Thomas, 20 Wend. 17. §§258, 269. Grellett v. Heilshorn, 4 Nev. 526. §§31. 137. Gress v. Evans, 1 Dak. 387. §223. Griee v. Haskins, 77 Ga. 700. §140. Gridly v. Hopkins. 84111. 528. §49. Griesler v. McKennon, 44 Ark. 517. §52. Griffln v. Cunningham, 20 Gratt. 31. §64. V. New Jersey Oil Co., 11 N. J. Eq. 49. §164. ■ V. Sheffield, .38 Miss. 359; S. 129. 0. 77 Am. Dec. 646. §150. V. Wertz, 2 Bradw. 487. §254. Griffith V. Douglass, 73 Me. 532: s. C. -10 Am. Rep. 3r>9. §§245, 274. V. Griffith, 1 Hoff. Oh. 153. §§220, 221. Grignon's Lessee v. Astor, 2 How. 319. §50. Grimes v. Connell, 23 Neb. 187. §253. Grimstone v. Carter, 3 Paige, 421 ; S. C. 24 Am. Dec. 230. §§19, 36, 13S, 205, 228, 231. Griswold v. Davis. 31 Vt.390. §208. Groesbeck v. Bodman (Tex.), 11 S. W. Kepr. 322, §123. V. Seeley, 13 Mich. 329. §67. Groft V. Ramsey, 19 Minn. 44. §228. Grotenkemper v. Carver, 10 Lea, 280. §§64, 90, 104. OROTON SAV. BK.J TABLE OF CASES. [harang. Groton Sav. Bk. v. Beatty, 30 X. J. Eq. 133. §230. Grove v. Todd, 41 Md. 633; s. C. 20 Am. Rep. 76. §§61,97.98. V. Zumbro, 14 Gratt. 501. §110. Gudger v. Henseley, 82 IST. C. 56. §236. Guerrant V. Anderson, 4 Eand. 208. §§10, 196, 197. Guillander v. Howell, 35 N". Y. 657. §268. Guinn v. Turner, IS Iowa, 1. §142. Guion V. Knapp, 6 Paige, 36; s. C. 29 Am. Dec. 741. §164. Guiteau v. Wisely, 47 111. 433. §§42, 212. Gully V. May, 84 IST. C. 434. §§31, 139. Haak v. Lindermann, 64 Pa. St. 490. §§248, 250. Hacker v. Horiemus (Wis.), 41 BT. W. Repr. 965. §234. Haokett v. Baily, 86 111. 74." §99. V. Callender, 32 Vt, 97. §§26, 192. V. ilanlove, 14 Cal. 85. §254 Haokleman v. Goodman, 75 Ind. 202. §274. Hackney v. Butts, 41 Ark. 394. §54. Hackwith v. Damroh, 1 Mont. 235. §228. Hafter v. Strange, 65 Miss. 323. §230. Hagenbuck v. Phillips, 112 Pa. St. 284. §84. Hager v. Spect, 52 Cal. 579. §§29, 152. 177. Hagerman v. Shirley, 88 Mo. 424. §203. V. Sutton, 91 Mo. 519. §§29, 176. Haggerty v. Palmer, 6 Johns. Oh. 437. §250. Haiues v. Crane, 2 Pick. 610. §254. Halbert v. McCuUooh, 3 Met. 456. §209. Hale V. Christy, 8 N"eb. 264. §100. V. Omaha Bank, 33 N. J. Sup. Ct. 40. §208. Hall V. Delaplain, 5 Wis. 206; s. C. 68 Am. Dec. 57. §202. V. Edwards, 43 Mich. 473. §164. V. Gusfin, 54 Mich. 624. §43. Hall V. Hall, 47 Ala. 290. §.50. V. Hinks, 21 Md. 406. §2.=)d. V. Hurd, 40 Kan. 374. §351. V. Livingston, 3 Del. Ch. 348. §225. -V. Patterson, 51 Pa. St. 289. §89. V. Pillow, 31 Ark. 32. §266. Halloway v. Plainer, 20 Iowa, 121 ; s. C. 89 Am. Dec. 517. §§199, 212. Halls V. Thompson, 1 Sm. & M. (9 Miss.). 443. §§79, 80. Hall's Lessee v. Ashby, 9 Ohio, 96; S. C. 34 Am. Dec. 424. §51. Halstead v. Bk. of Kentucky, 4 J. J. Marsh. 554. §§39, 155, 162, 207. Hamilton v. Boggess, 63 Mo. 233. §159. V. Maas, 77 Ala. 283. §273. V. Nutt, 34 Conn. 501. §§178, 181. 221. Hamlin v. Cassafer, 15 Or. 456. §64. Hammell v. Hammell, 19 Ohio, 17. §144. Hammers v. Dole, 61 111. 307. §67. Hammond v. Paxton, 58 Mich. 393. §43. Hanbury v. Litchfield, 2 My. & K. 629. §236. Hance v. Antone. 1 Tex. Civ. App., §800. §275. , Hancock V.J3everly, 6 B. Mon. 531. §184. V. Byrne, 2 Dana. 40. §29. V. Tram Lumber Co., 65 Tex. 225. §§66, 134. Hand v. Hand, 68 Cal. 135. §118, V. McKinney, 25 Ga. 648. §§7. 132. Handley v. Howe, 32 Me. 560. §256. Hanes v. Tiffany, 25 O. St. 549. §§211, 271. Hankinson v. Barber, 29 111. 80. §229. Hanlan v. Doherty, 109 Ind. 37. §175. Hanrick v. Barton, 16 Wall. 166, 173. §59. V. Patrick, 119 U. S. 166. §130. V. Thompson, 9 Ala. 409. §234. Harang v. Plattsmier, 21 La. Ann. 426. §§12, 165, 189, 196, 217. CO HAKBINSON. ] TABLE OF CASES. [hartley. Harbinson v. Harrell. 19 Ala. 753. §129. Hardaway v. Semmes, 24 Ga. 305. §§41, 25.-,. V. ,38 Ala. 657. «§19G, 268. Harden v. Crate, 78 III. 673. §144. Hardenbiu-g v. Larkin, 47 N. Y. 113. §117. Hardin v. Harrington, 11 Bush, 367. §§l.i4, 202. V. Kirk, 49 111. 153; s. C. 95 Am. Dec. 519. §70. V. Osborne, 60 HI. 93. S870, 71,75. V. Sparks. 70 Tex. 429. §205. Harding v. Coburn. 12 Met. (53 Mass.), 333. §253. — V. Curtis, 45 111. 252. §§61, 66. Hardy v. Norfolk. SO Va. 404. §144. Harkins v. Forsvthe. 11 Leigh, 294. §§89, 90, 1.01, 121. Harkness v. Eu'.pell, 118 U. S. 663. §§247, 249, 250. Harkreader v. Clayton, 56 Miss. 383; s. C. 31 Am. Kep. 369. §154. Harlan v. Seaton, 18 B. Mon. 312. §184. Harland v. Howard, 79 Ky. 373. §95. Harman v. Oberdorfer, 33 Gratt. 497. §144. Harmon v. Magee, 57 Miss. 410. §§91, 93. Harpending v. Wiley, 14 Bush. 380. §87. Harper v. Barsh, 10 Rich. Eq. 149. §145. V. Bibbs, 34 Miss. 472; s. C. 69 Am. Dec. 397. §202. V. Tapley. 35 Miss. 506. §134. Harral v. tiavertv, 50 Conn. 46. §§12, 221. 222, 229. Harrell v. Goodwin, 102 ST. C. 330. §433. — . V. Gray, 10 Xeb. 186. §§166, 169, 192. Harrington v. Allen, 4S Miss. 493. §§4, 12, 216. V. Brittan, 23 Wis. 541. §§253, 254. V. Erie Co. Bank, 101 ST. Y. 257. §154. ■ v. Fish, 10 Mich. 415. §§74, 75, 79. V. Fortner, 58 JI o. 46S. §146. Harris v. Arnold, 1 R. I. 125. §§12, 22'^, 229. V. Burton. 4 Harr. 66. §65. V. Cook, i2S N. J. Eq. 345. §175. V. Hanks, 25 Ark. 510. §20. V. Horner, 1 1.'.-v. & Bat. 445 ; S. C. 30 Am. Dec. 142. i§ili)7, 211. V.Jones, 83 N.C. 317. §261. V. Kennedy, 48 Wis. 500. §253. • V. Mclntyre, 118 111. 275. ■ V. Norton, IG Barb. 264. §205. V. Price, 14 B. Mon. 333. §§01, 69. ■ V. Seinsheimer, 67 Tex. 356. §22; §200. ■ V. Walworth, 129 U. S. 355. §§267, 268. V. Woodard, 96 N. C. 232. §253. . Harrison v. Boring, 44 Tex. 256. §§27, 49, 183, 223. V. Burlingame, 48 Hun, 212. §252. ■ V. Cochelin,23Mo. 117. §19. V. McMurry, 71 Tex. 122. §§151, 187. V. McWhirter, 12 Neb. 152. §§54, 189. V. Oakman, 56 Mich. 390. §105. Phillips, 12 Mass. 456. §§31, 137. V. Simmons, 55 Ala. §73. 510. ■V. Strother.l Bay,332. §134. V. Wade, 3 Cold. 505. §§92, 120. 129. 150, 163. Harrisonburg Bk. v. Paul. 75 Va. 594; s. C. 40 Am. Rep. 740. §§9, 98, 105. Harrold v. Owen (Mich.), 31 N. W. Repr. 420. §205. Harshburger v. Foreman, 81 111. 364. §20. Hart V. Caffery, 39 La. Ann. 894. §173. V. Carpenter, 24 Conn. 427. §249. V. Farmers' Bank, 33 Vt. 252. §§154, 224. 238. V. Felder, 4 Desaus. Eq. 202. §212. Hartley v. Ferrell. 9 Fla. 374. §105. V. Frosh. 6 Tex. 208; s. C. 55 Am. Dec. 772. §§89, 121. 701 HAETON. ] TABLE OF CASES. [hendeickson. Harton v.Hagler, 1 Hawks. 48. §69. Hartshorn v. Dawson, 79 111. 108. §§S2, 112. Harty v. Ladd, 3 Or. 353. §105. Harvey v. Crane, 2 Biss. 496. §213. V. CuiumiDgs, 68 Tex. 599. §§83. 128. Haseltine v. Espey, 13 Or. 301. §§31,137. Hasselman v. McKernan, 50 Ind. 441. §174. Hassler v. King, 9 Gratt. 115. §66. Hastings v. Cutler, 24 N. H. (4 FostO, 483. §§92, 145, 159, 221, 223 '- V. Nissen (Neb.), 31 Fed. Eepr. 597. §184. ■ V. Vaughan, 5 Cal. 315. §§8, 52, 56, 73, Hatch v.Bigelow,39 111. .546. §233. v.Haskins, 17Me. 391. §140. Hathaway v. Howell, 54 N. Y. 97. §256. Hathorn v. Maynard, 65 Ga. 168. §154. Haughwout V. Murphy, 21 N. J. Eq. 118. §§204, 205, 206. Hausman v. Keigwin, 39 Tex. 34. §202. Havens v. Bliss, 26 N. J. Eq. 363. §12. Hawk V. Senseraan, 6 Serg. & E. 21. §235. Hawkins v. Burress, 1 Har. & J. 513. §§5, 108. Hawley v. Bennett, 5 Paige, 104. §§13, 166. V. BuUock, 29 Tex. 223. §§134, 204, 225, 228. Haworth v. Taylor, 108 111. 275. §140. Hay V. Hill, 24 Wis. 285. §140. Hayden v. Bucklin, 9 Paige, 572. §43. V. Wesoott. 11 Conn. 129. §§76, 78. Hayes v. Prey, .54 Wis. 503. §100. V. Wilcox, 61 Iowa, 732. §2.=)3. Hiivnian v. Jones, 7 Hun, 238. §254. Hayner v. Eberheart, 37 Kan. 308. §170. Haynsworth v. Bischoff. 6 S. Car. 169. §209. Hays V. Mercer, 22 Neb. 656. §46. V. Pacific, etc., Co., 17 How. 596. §275. Haywood v. Nat. Ins. Co., 52 Mo. 181. §§241, 244. Haz.ird v. Cole, 1 Idaho, 276. §169. Heacock v. Lubuke, 107 111. 396. §187. Head v. Fordyce, 17 Cal. 149. §45. V. Goodwin, 37 Me. 181. §§16, 140, 150. 236. 255, 272. Hearn v. Smith, 59 Ga. 704. §127. Heaton v.Prather, 84111. 330. §§35, 164, 177. 182, 187. Hector v. Glasgow. 79 Pa. St. 79. §68. V. Knox, 63 Tex. 613. §118. Hedger v. Ward, 15 B. Mon. 106. §65. Heflin v. Slay, 78 Ala. 180. §2.55. Heglerv. Eddy, 53 Cal. 597. §249. Heidenheimer v. MeKeen, 63 Tex. 229. §182. V. Thomas, 63 Tex. 287. §118. Heil y. Redden, 38 Kan. 255. §78. Heilbrun t. Hammond, 13 Hun, 474. §§5.j, 65. Heinbockel v. Zugbaum, 5 Mont. 344; S. C. 51 Am. Kep. 59. §249. Heiue v. Ellis, 49 Mich. 241. '§43. Heinrich v. Simpson, 66 111. 57. §113. IIeiniicli« v. Wood, 7 Mo. App. 236. §211. Heisier v. Green, 48 Pa. St. 962. §20. Heistner V. Fortner. 2 Biun. 40: s. c. 4 Am. Dec. 417. 10, 25, 192. Helm v. Helm, U Kan. 19. §108. Helmer v. Krolick, 36 Mich. 371. §204. Henderson v. Downing, 24 Miss. 106. §199. V. Grewell, 8 Cal. 581. §§53, SI. V. Morgan, 26 111. 431. §246. V. Pilgrim, 22 Tex. 464. §§33, 174. V. Rice, 1 Coldw. 223. §§108, 109. V. Smith, 23 W. Va. 829; s. C. 53 Am. Rep. 139. §89. V. Terry, 62 Tex. 281 . §89. Hendley v. Howe, 22 ^le. 560. §143. Hendon v. White, 52 Ala. 597. §§.54, 145, 163. Hendrlckson v. Wooley, 39 N. J. Eq. (12 Stew), 307. §169. 702 HENDEICKSON.J TABLE OF CASES. [hob AN. Hendriokson's Appeal, 24 Pa. St. 363. §§31,32,168,169. Hendry v. Smitb, 49 Hun, (56 N. Y. Sup. Ct.), 510. §204. Henisler v. Nickum, 38 Md. 270. §172. Henning v. Fisher, 6 W. Va. 238. §64. Heury v. Rainian, 25 Pa. St. 354; S. C. 64 Am. Dec. 703. §204. Henshaw v. Sumner, 23 Pick. (40 Mass.), 446. §253. Herbert v. Herbert, Breese, 354; s. C. 12 Am. Dec. 192. §144. V. Mechanics' Ass'n, 2 C. E. Green, 497; s. c. 90 Am. Dec. 601. §§192, 199. Herkelrath v. Stookey, 58 111. 21. §246. Herman v. Deming, 44 Conn. 124. §147. V. Oberdorfer, 33 Gratt. 497. §214. Herndon v. Bascom, 8 Dana, 113. §29. V. Kimball, 7 Ga. 472. §55. Herring v. Cannon, 21 S. Car. 212 . S. C. 53 Am. Rep. 661. ii251. V. Happort, 15 N. Y. 409. §248. Harrington v. Williams, 31 Tex. 448. §§19, 36. Herryford v. Davis, 102 U. S. 235. §247. Hervey v. K. I. Locomotive Works, 93 U. S. 664. §§250, 267. V. Smith, 22 Beav. 299. §221. Hetberinsfton v. Clark, 30 Pa. St. 393. §162. Hetzel v. Barber. 69 N. Y. 1. §160. Hewes v. Wiswell, 8 Me." 94. §237. Hewitt v. Loosemore, 9 Hare, 449. §§221, 227, 228, 238, 243. Hevder v. Excelsior Ass'n, 42 N. J. Eq. 403; S. C. 59 Am. Eep. 49. §175. Hibbar^ v. Zenor, 75 Iowa, 471. §143. Hibberd v. Smith, 50 Cal. 511. §42. Hickman v. Link. 97 Mo. 482. §234. — V. Perrin, 6Cold. 135. §§30, 140. Hicbs V. Boss, 71 Tex. 358. §246. V. \'^illiams, 17 Barb. 523. §§265, 275. Hi>=rn v. Mill, 13 Ves. 120. §177. Bii)-gins V. Johnson, 20 Tex. 393; S. C. 70 Am. Dec. 394. §182. Higgings V. Lodge, 68 Md. 229; s. C. 6 Am. St. Kep. 437. §24.".. High V. Batts, 10 Yerg. 335. §§203, 204, 205. Hightower v. Stiffler, 21 Md. 338; s. c. 83 Am. Dec. 593. §90. V. Wells, 6 Yerg. 249. §130. Hilesv.LaFlesh,59Wis.465. §§76, 113. Hill V. Ahern, 135 Mass. 148. §201. V. Bacon, 43 111. 477. §68. V. Barlow, 6 Rob. 142. §144. . V. Epley, 31 Pa. St. 335. §§1.53, 219. - V. McCarter, 27 N. J. Eq. 41. V. MclSTichol, 76 Me. 314. §16-i §16. §184. V. Meaker, 24 Conn. 211. v. Moore, 62 Tex. 610, 615. §§219, 221, 223. ■ V. Samuel, 21 Miss. 307. §54. HiUegas v. Hartley, 1 Hill Ch. 106. §§69, 128. 186. Hilton V. Young, 73 Cal. 196. §§2, 37, 216. Hinehliff v. Hinman, 18 Wis. 135. §56. Hinchman v. Town, 10 Mich. 508. §31. Hi'nde v. Longworth, 1. Wheat. 199. §.57. . V. Vattier, 7 Pet. (32 U. S.), 252. §223. Hine v. Dodd, 2 Atk. 275. §§216, 221). V. Eoberts, 8 Conn. 347. §16. Hines V. Perry, 25 Tex. 443. §§219, 223. Hinson v. Bailey, 73 Iowa, 544. §144. Hinterminster v. Lane, 27 Hun, 497. §250. Hintonv. Leigh, 102 N". C. 28. §217. Hirschorn V. Conway, 98 Mass. 149. §249. Hiss V. McCabe, 45 Md. 77. §78. Hitz V. Jenks. 123 U. S. 298. §§52, 54, 87, 89. 98, 121. V. National Bk., Ill U. S. 722. §198. Hoadley v. Hadley, 48 Ind. 452. §2.55. Hoag v. Howard, 55 Gal. 564. §§10, 166. Hoban v. Piquette, 52 Mich. 346. .§57. 703 HOBSON.] TABLE OF CASES. HORTON. Hohsoa V. Kissam,8 Ala. 357. §§32, 79. 81, 84. HockenhuU v. Inmau, SO Ga. 89. §133. Hodge V. Amerman, 40 If. J. Eq. (13 Stew.). 99. §228. Hodges V. Powell, 96 N. C. 64. §119. V. Spioer, 79 N. C. 223. §§189, 216, 217. Hodgson V. Butts, 3 Crancti, 140. §§126, 128. 218. V. Warner, 60 Ind. 214. §249. Holer's Appeal, 116 Pa. St. 360. §46. Hoffman v. Blume, 64 Tex. 334. §230. — V. Mackall, 5 O. St. 124; s. C. 64 Am. Dec. 637. §151. V. Wilhelm, 68 Iowa, 510. §175, Hog V. Perry, 1 Lit. 172. §132. Hogan V. Hogan, 89 111. 427. §98. V. Stray horn, 65 N. C. 279. §3. Hogans v. Carruth, 19 Pla. 752. §67. Hogden v. Guttery, 58 Ind. 431. §4. Hoit V. Kemlck,ll N. H. 285. .§261. . V. Kussel, 56 N. H. 559. ■ §216. Holbrook v. Dickinson, 56 111. 497. §■!■ Holeombe v. Ray, 1 Ired. L. 340. §§32, 139. Holcleman v. Knight, Dallam, Tex., 556. §55. Holden V.Garrett, 23 Kan. 98. §§10, 192, 212. V. N Y. Bank, 72 N. Y. 286. §§241, 242, 243. Holladay v. Cromwell, 26 Tex. 189. §71. -v. Daily, 1 Colo. 460. §§53, 246. V. , 19 Wall. 609. §116. Holland v. Carter, 79 Ga. 139. §56. Holley V. Hawlev, 39 Vt. 525; s. c. 94 Am. Dec. 350. §163. Holliday v. Franklin, 16 Ohio, 533. §217. Holllngsworth v. Flint, 101 U. S. j)91. §§56. 119. T. McDonald, 2 Har. & J. 230; S. C. 3 Am. Dec. .540. §§79, 108, 120. Hollo wav V. Plainer, 20 Iowa, 121; s. c. 89 Am. Dec. 517. §147. . Hoi man v. Doran, 56 Ind. 358. §§2.55, 256. Holmes v. Buckner, 67 Tex. 107. §§1.54, 158, 159, 162, 200. 212. V. Coryelle, 58 Tex. 68o. §12G. ■ V. .Johns, 56 Tex. 52. §184. V. Powell, 8 De G. M. & G. 572. §228. ■ V. Sprowl, 31 Me. 73. §§143, 255. V. Stont, 10 N. J. Eq. (2 Stockt. Ch.), 419; 3 Green's Ch. 492. §§155, 233. Home Build. Ass'n v. Clark, 43 0. St. 427. §§12, 16.5, 189, 219. Homeopathic Go. v. Marshall. 32 N. J. Eq. 106. §§68, 89, 90, 98, 102, 117. Homer v. Schonfleld, 84 Ala. 313. §108. Houore v. Bakewell, 6 B. Mon. 67; s. c. 43 Am. Dec. 147. §216. V. Wilshire, 109 III. 103. §52. Hood V. Brown, 2 Ohio. 266. §190. V. Fahnestock, S Watts, 489. §§225, 241. V. Mathers, 2 Mar. (Ky.), 558. §56. Hooker v. Hammill, 7 Neb. 231. §246. V. Pierce, 2 Hill, 650. §157. Hope File Ins. Co. v. Camhrelling, 1 Hun, 493. §§170, 242. Hope V. Liddell. 21Beav. 183. §181. V. Sawyer, 14 111. 254. §62. Hopkins v. Delaney, 8 Cal. S5. §77. V. Garrard, 7 B. Mon. 312. §231. V. Menderback, 5 Johns. 234. §§65, 68. Hoppin V. Doty, 25 Wis. 573. §§179, 222. Hoppock V. Johnson, 14 Wis. 303. §240. Hord V. Taubman, 79 Mo. 101. §117. Hordinv. Sparks, 70 Tex. 429. §127. Hornbeck v. Building Assooi.ition, 88 Pa. St. 64. §§68, 77, 82, 107. Horner v. Stout. 6 Colo. 166. §§245, 254. Horsley v. Garth, 2 Gratt. 471 ; s. C. 44 Am. Deo. 393. §§16, 84, 134, 272. V. Hairsine (Iowa), 41 X. W. Kepr. 579. §248. Horton v. Bond, 28 Gratt. 815. §214. 704 HORTON.J TABLE or CASES. [hunsingee. Horton v. Crawford, 10 Tex. 338. §234. V. Cutler, 28 La. Ann. 331. §175. V. Williams, 21 Minn. 187. §§4l, 254. Hosier v. Hall, 2 Ind. 556; S. C. 54 Am. Dec. 460. §212. Hoskinson v. Adkins, 77 Mo. 537. §§9, 97. Host V. Kemiok, 11 N. H. 285. §265. Hottenstein v. Lerch, 104 Pa. St. 454. §§225, 22S. Houfes V. Schultze, 2 Bradw. (111.), 196. §1G8. Houghton V. Burnham, 22 Wis. 301. §§140, 255. V. Jones, 1 Wall. 702. §5G.' V. Mariner, 7 Wis. 244. §43. Housatonio Bk. v. Martin, 1 Met. (44 Mass.), 294. §244. House V. Beatty, 7 O. St. 84. §222. Houseman v. Mut. Build. Ass'n, 81 Pa. St. 256. §§241, 244. Houston V. Blythe, 71 Tex. 719. §187. V.Houston, 67 Ind. 276. §172. V.Stanton, 11 Ala. 412. §144. Hovey v. Blanchard, 13 N. H. 145. §221. Howard v. Chase, 104 Mass. 249. §§31,41, 170, 171, 181, 269. v. Colquhoun, 28 Tex. 134. §§95, 129. V. Halsev, 4 Sandf. 565; s. C. 8N. y. 271. "§181. • Ins. Co. V. Halsey, 8 If. Y. 271 ; s. C. 59 Am. Dec. 478. §§162, 163, 164. V. Mclntyre, 3 Allen, 572. §65. 120. • V. Most, 64 ISr. Y. 268. §§97, ■ v. Selma"n,77Ga. 604. §154. Howe V. Thayer, 49 Iowa, 1 54. §142. V. Wildes, 34 Me. 566. §101. Howell V.Howell, 7 Ired. 491. §172. v.McCrie, 36 Kan. 636. §119. V. Kay, 92 N. C. 510. §130. Hoy V. Allen, 27 Iowa, 208. §§10, 192 199. V. Braniliall, 19 N. J. Eq. 593; s.C. 97 Am. Dec. 687. §§182, 219. Hoyt V. Jones, 31 Wis. 389. §§154, 162. Hoxie V. Carr, 1 Sum. 173. §224. Hronske v. Janke, 66 Wis. 252. §130. Hubbard v. Andrews, 76 Ga. 177. §§246, 266, 267. V. Turner, 2 McLean, 633. §33. ■ V. Walker, 19 Neb. 94. §198. Hubbardson Lumber Co. v. Covert, 35 Mich. 254. §§41, 264. Iluber V. Bossar't, 70 Iowa, 718. §162. Huck V. Gaylord, 50 Tex. 582. §45. Hudson V. Isbell, 5 Stew. & Port. 67. §231. V. Warner, 2 Har. & Gill, 415. §§182, 209, 226, 227. Huffman v. Blum, 64 Tex. 334. §209. V. Huffman, 118 Pa. St. 458. §§94, 99. Huff V. Farwell, 67 Iowa, 298. §§175, 244. V. Webb, 64 Tex. 284. §§81, 82, 83. Hughes V. Cannon, 2 Humph. 589. §23. V. Coleman, 10 Bush, 248. §§S7, 90. . ■ V. Debnamy, 8 Jones, 127. §17. . V. Lane, 11 111. 123. §110. • V. Menifee, 29 Jlo. App. 192. §§41, 218. 223, 2.54, 269. ■ V. United States, 4 Wall. 232. §§221,233. V. Wilkinson, 37 Miss. 482. §§29, 65. Huiett V. Mut. Ins. Co., 114 Pa. St. 142. §154. Hulings V. Guthrie, 4 Pa. St. 123. §198. Hull V. Noble, 40 Me. 459, 480. §216. , V. Powell, 4 Serg. & R. 465. §234. V. Sullivan, 63 Ga. 126. §§171. 181. Hulsizer v. Opdyke (N. J.), 13 Atl. Kepr. 669. §269. Hultz V. Ackiey, 63 Pa. St. 142. §74. Humphries v. Bartee, 10 Sm. & Mar. 282. §5137, '247. v. Merrill, h-2 Miss. 92. §10. Humphreys v. ISTewman, 51 Me. 40. §178. Hundley v. Mount, 8 Sm. & M. 3S7. §134. Hunsinger v. Hoffer, 110 Ind. 390. §205. (45— Keg. of Title.) 705 HUNT. J TABLE OF CASES. [IVES. Hunt V. Bay State Iron Co., 97 Mass. 279. §'254. V. Bowen, 75 Ga. 662. §§246, 262. V. Bullock, 23 111. 320. §2.53. V. DLinn, 74 Ga. 120. §§16S, 182, 219. V. Grant, 19 Wend. 90. §42. Johnson, 19 N. Y. 2f9. §§39, 77 V. Thompson, 19 N. Y. 279. §§3. 56, 61.128 Hunter v. Watson, 12 Cal. 373; s. C. 73 Am. Dec. 543. • §§189, 207, 221. Hunton v. Nichols, 55 Tex. 217. §21. Hurd , V. Brown, 37 Mich. 384. §§137, 255. Hurry v. Hurry, 2 Wash. 145. §276. Hurst V. McXeil, 1 Wash. C. Ct. 70. §203. Hurt V. Cooper, 63 Tex. 362. §§230, 231. V. McCartney, 18 111. 129. §80. Huston V. Curl, 8 Tex. 239; s. c. 58 Am. Dec. 110. §182. Hutchins v. Bacon, '46 Tex. 409. §§96, 219. V. Chapman, 37 Tex. 612. §205. . V. Field, 10 La. Ann. 237. §210. Hutchinson v. Ainsworth, 63 Cal. 286. §§91, 107. V. SSwartseller, 31 N. J. Eq. 205. §175. Hutchison v. Bust, 2 Gratt. 394. , §87. Hutzler v. Phillips, 26 S. Car. 136. §39. Huvler V. Dahoney, 48 Tex. 239. §206. Hyatt V. Cochran, 69 Ind. 436. §187. Hyde v. Noble, 13 N. H. 494; s. C. 32 Am. Dec. .538. §247. I. §21, Iglehart v. Crane, 42 III. 261. 162. Illinois Central v. McCuUough, 59 111. 160. t)231. V. HawJdns, 65 Miss. 200. §389. Illinois Central v. Johnson, 40 111. 35. §74. Ing V. Brown, 3 Md. Ch. 521. §§137, 255. Ing'alls V. Newhall, 139 Mass. 268. §§27, 183. lugersoU V. Sergeant, 7 Barr, 340; 3 Harris, 343. §35. Ingraham v. Grigg, 13 S. & M. 22. §83. Ingram v. Morgan, 4 Humph. 66. §208. In re Brighfs Trusts, 21 Beav. 430. §§182, 223. Collins, 8 Ben. 59. §213. Collins, 12 Blatch. 548. §213. 254. Drlscoll, 1 I. K. Eq. 285. §2. Griffiths,! Lowell, 431. §213. . Gurney. 7 Biss. 414. §213. ■ Guyer, 69 Iowa, 585. §251!. Lelnnd, 10 Blatohf. 503. §§246. 257. ■ Pearl Street, 111 Pa. St. 565. §49. ■ Soldiers' Business, etc., Co., 3 Ben. 204. §264. Werner, 5 Dill. 119. §§213, Wynne, Chase's Dec. 227. 254. §213. Ins. Co. V. Eldredge, 102 U. S. 545. §175. V. Nelson, 103 U. S. 544. §§S7, 108. ■ V. Scales, 27 Wis. 640. §17. Insolvent Est. of Leiman, 32 Md. 225. §217. Int. Wrecking Co. v. MoMorran (Mich.), 41 N. W. Repr. 510. §244. Iowa Loan & Trust Co. v. King, 58 Iowa, 598. §235. Irish V. Sharp, 89 111. 261. §§36, 39. Irving V. Brownell, 11 111. 402. §§70, 74, 84. . V. Smith, 17 Ohio, 226. §§131, 132,191. Irwin V. Dixon. 9 How. 30. §49. V. Jeffers, 3 Ohio St. 389. §191. 75. • V. Welch, 10 Neb. 479. §§55. Ishara V. Bennington, 19 Vt. 251. §60. Ives V. Kimball, 1 Mich. 308. §80. V. Stone, 51 Conn. 446. §§31, 32, 139. 706 IVEY.] TABLE OF CASES Ivey V. Petty, 70 Tex. 17S. §234. J. [JENKINS. Jackraan v. Gloucester, 143 Mass. 380. §46. Jackson v. Allen, 30 Ark. 110. §§54, 189. V. Austin, 15 Johns. 477. §109. V. Bain, 74 Ala. 328. §273. V. Blackwood, 4 MacArth. 18S. §176. V. Burgott, 10 Johns. 457. §§1S9, 201. V. Center, 19 Johns. 281. §§13, 166. V. Chamberlain, 8 Wend. 625. §§3, 199. V. Golden, .4 Cow. 266. §§65, 87, 99. V. Cunningham, 28 Mo. App. 354. §24. V. Davidson (Mich.), 32 N. W. Repr. 720. §43. V. Dennison, 4 Wend. 558. §28. V. Dubois, 4 Johns. 216. §§101, 212. V. Gilchrist, 15 Johns. S9. §§93, 95 ■ V. Given, 8 Johns. 137. §§4, 155. V.Gould, 7 Wend. 366. §129. V. Gumaer. 2 Covi'. 552. §77. V. Harby, 65 Tex. 710. §210. V. Humphreys, 1 Johns. 498. §05. V. Lamphire, 3 Pet. 280. §§23, 174. ■ V. Livingston, 6 Johns. 149. §128. §155. • V. McChesney, 7 Cow. 360. v. McKenny, 3 Wend. 233. ■ V. Osborn, 2 Wend. 555 ; s. C. 20 Am. Dec. 649. §§77, 128, 129. V. Phipps, 12 Johns. 418. §172. §144. §156, 134. - V. Post, 9 Cow. 120. §14. . V. , 15 Wend. 588. V. Rice, 3 Wend. 180. §§56, V. Richards, 6 Cow. 617. §§190, 209. Jackson v. Schoonmaker, 4 Johns. 161. §66. V. Shephard, 2 Johns. 77. §56. V. Town, 4 Cow. 405. §156. V. Van Valkenburgh, 8 Cow. 260. §§4, 225, 227. V. Waldron, 13 Wend. 178. §12^ §234. V. Warford, 7 Wend. 62. V. Warren, 32 111. 331. §50. V. Winslow, 9 Cow. 13. §205. ■ V. Woodruff, 4 Cow. 276. §234. Jacobs V. Dennison, 141 Mass. 117. §§148, 272. Jacoby v. Crowe, 36 Minn. 93. §172. Jaco way v. Gault, 20 Ark. 190 ; s. C. 73 Am. Dec. 494. §§52, 79, 81, 217. Jacques v. Weeks, 7 Watts, 261. 207. §§32, 30, 73, 138, 199, 225, 236. James v. Brown, 11 Mich. 25. §§162, 164. T. Johnson, 6 Johns. Ch. 417. §33. V. Morey, 2 Cow. 246; s. C. 14 Am. Dec. 475. §§6, 28, 136, 138, 209. V. Stiles, 14 Pet. 322. §§59, 78. .Jamison v. Jamison, 3 Whart. 457; s. c. 31 Am. Deo. 536. §87. Janes v. Penny, 70 Ga. 796. §§127, 133. Jansen v. McCahill, 22 Cal. 563; S. C. 83 Am. Dec. 84, 593. §§90, 100. Janvrin v. Fogg, 49 N. H. 340. §247. Jaques v. Lester, 118 111. 240. §228. Jarman v. Farley, 7 Lea, 141. §203. Jarrell v. Jarrell, 27 W. Va. 743. §90. Jarvis v. Aikens, 25 Vt. 685. §161. V. Dutcher, 16 Wis. 307. §39. Jefferson v. Oyler, 82 Ind. 394. §233. Co. V. Heil, 81 Ky. 513. §§14, 41, i Jenkins v. Adams, 71 Tex. 1. §§162, 17S. V. ISTelson, 11 Mart. 437. §§45, 173. 707 JENNINGS. TABLE OF CASES. [ JONES. Jenninns v. Gage, 13 III. 310. §§245, 250. Jerrardv. Saunders, 2 Ves., Jr., 454. §W- Jessup V. City Bk., 15 Wis. 604. §191. Jewett V. Palmer, 7 Johns. Ch. 65. §204. V. Tuclier, 139 Mass. 566. §207. J. I. Case Threshing Co. v. Smith, 16 Or. 381. §25S. .loerdens v. Schriiupf, 77 Mo. 383. §175. Johns V. Scott, 5 Md. 81. §§52, 189. Johnson v. Badger, etc., Co., 3 Kev. 351. §i)79, S2. ■ V. Brown, 25 Tex. Sup. 126. §40. 99. ■ V. Bryan, 62 Tex. 623. §§93, V. Burden, 40 Vt. 667; s. C. 94 Am. Dee. 436. ii§16, 27, 87, 144, 148, 187. 256, 271. V. Bush, 3 Barb. Ch. 207. §60. §273. 254. V. Clark, IS Kan. 157, 164. ■ V. Farley, 45 N. H. 505. §144. -V. Graves, 27 Ark. 557. §207. V. Grissard, 51 Ark. 410. V. Jeffries, 30 Mo. 423. §§41, §275. - V. MoGehee, 1 Ala. 186. §131. V. Merrill, 122 Mass. 153. -V. Moser, 72 Iowa, 6.54. §251. V. Newman, 43 Tex. 628. V. Parker (Ark.), 11 S. W. Eepr. 6S1. §§11.5, 12U. V. Patterson, 2 Woods, 443. §14. §§41, 213, 255. V. Frewitt, 32 Mo. 553. §129. V. Kichardson, 44 Ark. 365. §§97, 120. V. Shortridge, 93 Mo. 227. §244. ■ V. Stagg, 2 Johns. 510. §30. V. Taylor, 60 Tex. 360. §§91, 94, 97, 120. V. Thweatt, 18 Ala. 741. §176. V. Turner, 70hio, 216. §127. • V. Van Velsor, 43 Mich. 208. §§S9, 121. Johnson v. Walton, 1 Sneed, 258. §§99, 101, 186. V. Wheelock, 63 Ga. 623. §§154, 209. V. Williams, 37 Kan. 179; s. C. 1 Am. St. Rep. 2-13. §lh'.3. Co. V. Thayer, 5 Cent. Law J. 245. §208. Johnston V. Gwathmev, 4 Litt. S17; S. C. 14 Am. Deo. 13o. §§181, 216. ■ V. Haines, 2 Ohio. 55; s. c. 15 Am. Dec. 533. §§61. 71. ■ V. Irwin, 3 Serg. & K. 291. §234. V. Wallace. 53 Miss. 331 ; s. C. 24 Am Rep. 699. §§89, 90, 98, 121. V. Williams, 37 Kan. 179; S. C. 1 Am St. Rep. 243. §27. Jolland V. Stainhridge, 3 Ves., Jr., 478. §225. Jones V. Bach, 48 Barb. 568. §76. Berkshire, 15 Iowa. 24S; S. C. 83 Am. Dec. 412. §§75, 143, 1,58. V. Chamberlain, '5 Heisk. (Tenn.),210. (^34 V. Cohen. )S2 N". C. 75. §121. Crossthwaite, 17 Iowa, 393. §101. V. Goff, 63 Tex. 255. §§110, 117. V. Graham, 77 N. Y. 628. §§196, 2.i4. V. Gurtie, 61 Miss. 423. §121. -v. Hough, 77 Ala. 477. §130. V. Hudson, 23 S. Car. 494. §32. ■ V. Jenkins, 83 Ky. 391. §24. V. Johnston, 18 How. 150. ■ V. Keen, 115 Ma^ss. 170. §276. ■ V. Lewis, 8 Ired. L. 70. §§69, V. Loftin, 16 Fla. 189. §56. V. Marks, 47 Cal. 242. §216. V. Martin, 16 Cal. 166. §150. V. McXarrin, 68 Me. 334; s. C. 28 Am. Rep. 66. §§17. 43. — — V. Menard, 1 Tex. 771. §234. V. Monies, 15 Tex. 351. §96. V. Morey, 2 Cow. 246; S. C. 14 Am. Dec. J75. §32. V. Parks. 22 Ala. 446. §7S. §49. 109. V. Phelps, 2 Barb. Ch. 440. §§31, 170. — — V. Porter, 59 Miss. 628. §§35, 67. 708 JONES, j TABLE OF CASES. [kerfoot. 65 Tex. 207. Jones* V. Powers §§134, 188. V. Roberts, 65 Me. 273. §144. V. Rnffin, 3 Dev. 404. §127. V. Shaddock, 41 Ala. 362. §210. Smith, 1 Hare. 43. §§181, 182, 220, 221, 223, 22S, 236, 237. V. Taylor, 7 Tex. 240. §100. • V. Williams, 24 Beav. 47. §223. Jordan v. Corey, 2 Ind. 385; s. c. 52 Am. Dec. 517. §§91, 94, 103. V. Farnsworth, 15 Gray, 517. §§152, 220, 255. V. McNeill, 25 Kan. 459. §§10, 209. V. Kobson, 27Tex. 612. §56. Jovirdan v. Jourdan, 9 Seig. & K. 268; s. O. 11 Am. Dec. 724. §§S7, 90, 105, 119. .Journeay v. Gibson, 56 Pa. St. 57. §§97. 120. Jumel V. Jumel, 7 Paige, 591. §178. Kaiser v. Leinbeck, 3 Iowa, 520. §172. Kanaga v. Taylor, 7 O. St. 134; s. C. 70 Am. Dec. 62. §§246, 2ul, 265, 266. 267. Kane v. Kice, 10 Nat. Bank Reg. 469. §264. V. Roberts, 40 Md. 590. §194. Kansas City Land Co. v. Hill, 87 Tenn. 589. §49. Karns v. Olney, 80 Cal. 90. §294. • Kauffelt V. Bower, 7 Serg. & R. 64. §20. Kauffman v. Robey, 60 Tex. 308. §§238, 241. Knvanaugh v. Day, 10 R. I. 393.- §§107, 109. Kay V. Jones, 7 J. J. Marsh. 38. §115. Kearnes v. Hill, 21 Fla. 185. §1,54. Kearney v. Macomb, 16 N. J. Eq. 189. §117.^ V. Taylor, 15 How. 517. §120. Kedder v. Stevens, 60 Cal. 414. §144. Keeley v. Hannah, 52 Mich. 635. §175. Keen v. Coleman, 3 Wright, 299. §87. KeicWine v. Keichline, .54 Pa. St. 76. §§56, 69. Keiser v. Houston. 38 111. 252. §6. Keith V. Bingham, 97 Mo. 196. §209. V. Catchiugs, 64 Ga. 773, §139. Keller v. Nutz, 5 Serg. & R. 246. §§159, 162. V. Paine, 107 jST. Y. 83. §276. V. Sraalley, 63 Tex. 519. §§41, 211, 2.54. Kelley v. Caltioun, 95 U. S. 710. §§3, 60, 69, 77, 79. V. Mills. 41 Miss. 267. §§19, 20, 36, 42, 192, 196, 199, 212. . V. Rosenstock, 45 Md. 389. §84. V. Stanberry, 13 Ohio, 408, 426. §222. V. Whitmore, 41 Tex. 648. §118. V. Whitney, 45 Wis. 110. §204. Kellv V. Boylan, 32 N". J. Eq. .581. §252. V. Reid, 57 Miss. 89. §2.53. V. Thompson, 2 Heisk. 281. §38. Kellogg V. Vickory, 1 Wend. 406. §U9. Kelsey v. Kendall, 48 Vt. 24. §251. Kemp V. Earp, 7 Ired. Eq. 167. §231. V. Porter. 7 Ala. 138. §62. Kemper v. Campbell, 44 O. St. 210. §§31. 132, 133. 137, 139. Kendall v. Lawrence, 22 Pick. (39 Mass.)', 540. §§23(), 237. V. Miller, 9 Cal. 591. §105. Kenedy v. Northrup, 15 111. 158. §184. Kennedy v. Daly, 1 Sob. & Lef . 355. §155. V. Green, 3 My. & K. G99. §§22, 238. 242, 243. V. House, 41 Pa. St. 39; s. C. 80 Am. Dec. 594. §46. V. Shaw, 38 Ind. 474. §§41, 269. ■ V. Ten Broeck, ll*Bush. 250. §90. Kenyon v. Stewart, 44 Pa. St. 179. §3. Keohane v. Smith, 97 111. 15^. §175. Kerfoot v. Cronin, 105 111. 609. §162. 709 KERNS. J TABLE OF CASES. [kottman. Kerns v. Swope, 2 Watts, 75. ii§134, 149, l.o9. Kerr V. Day, 14 Pa. St. 112. §§227, 228, 23B. V. Kitchen, 17 Pa. St. 433. §181. V. Moon, 9 Wheat. 565. §§11, 50. V. Russell, 69 III. 666; ,s. c. IS Am. Kep. 634. §§68, 89, 98, 121. V. Watts, 6 Wheat. 550. §135. Keryea v. Berry, 84 111. 600. §1S7. Kesner v. Trigg, 98 U. S. 50. §§35, 210. Kessler v. State, 24 Ind.' 213. §16. Ketcham v. Wood, 22 Hun, 64. §164. Ketohum v. Brennan, 53 iliss. 596. §247, 249. V. Watson, 24 111. 591. §250. Kev V. Brown. 67 Tex. 300. §250. Keys V. Test. 33 111. 316. §205. Kezartee v. Marks, 15 Or. 529. §46. Kilbourn t. Fury, 26 O. St. 153. §90. Kilbourne v. Fay, 29 O. St. 264. §254. Kiigore v. Graves, 2 Civ. App. (Tex.), §410. §177. Kilpatrick v. Kilpalrick, 23 Miss. 124. §20. Kimball v. Blaisdell. 5 N. H. 533. S. C. 22 Am. Dec. 476. §161. V. Finner, 12 N. H. 248. §204. V.Johnson. 14 Wis. 674. §68. V. Sattley, .55 Vt. 285; s. C. 45 Am. Eep. 614. §274. V. Semple, 25 Oal. 440. §76. King V. Bales, 44 lud. 219. §92. V. Bates, 57 N.H. 446. §281. V. Elson. 30 Tex. 246. §96. V. Fraser, 23 S. C. 543. §§7, 132, 196, 199, 254. V. Merritt (Mich.), 34 N. W. Repr. 689. §§95, 109. •V. Paulk,S5Ala.l86. 198. 134. V. I'ortis, 77 jST. 0. 25. ■V.Russell, 40 Tex. 124 §§192, §§42, §§73, 74, 91. Kinney v. Cay, 39 Minn. 210. §251. V. Consolidated Mining Co., 4 Saw. 382. §204. Kingsland v. Ciilp, 85 Mo. 548. §251. Kingsley v. Ilolbrook, 45 X. H. 320. §145. KiiiDston Building Ass'n v. Rains- fo?d, 10 U. C. Q. B. 236. §28. Kinsman v. Loomis, 11 Ohio, 475. §§65, 68. KiV'k V. Navigation Co., 49 Tex. 215. §§114. 177. 182. Kirkland v. Biune, 31 Gratt. 136. §§214, 246. KiV'ksey v. Bates. 7 Port. 529; s. C. 31 Am. Dec. 722. §§61, 73. Kiser v. Henstou, 38 111. 252. §16. Kitchell V. Mudgett, 37 Mich. 81. §§169, 181. KiVteridge v. Chapman, 36 Iowa, 34S, §§205, 206. Klein v. Richardson, 64 Miss. 41. §54. Knapp V.Bailey, 79 Me. 164. §§179, lS:i, 222, 223. V. Deitz. 64 Wis. 31. §253. Knight v.Bowyer, 2 DeG. & .J. 421; S. C. 23 Beav. 600. §§236, 237. V. Paxton-, 124 U. S. 552. §§9, 98. 101. V. Williams, 6 Bush, 51 ; s. C. 99 Am. Dec. 652. §151. Knighton v. Smith, 1 Or. 276. §79. Knittel v. Gushing, 57 Tex. 354; s. C. 44 Am. Rep. 598. §§248, 250. Knoblock v. Mueller, 17 N. E. Rep. (111.), 696. §51. Knolls V. Barnhart, 71 K. Y. 424. §144. Kiiorr v. Raymond, 73 Ga. 749, 775. §§178, 181. Knowles V. Knowles, 86 III. 1. ■ §90. V. Masterson, 3 Humph. 619. §246. Knowlton v. Walker, 13 Wis. 264. §§154, Knox V. Silliway, 10 Me. 201. 158. Koch V. Branch, 44 Mo. 542; s. C. 100 Am. Dec. 324. §247. Koerper v. St. Paul Ry., 40 Minn. 132. §187. Koevenig v. Schmitz, 71 Iowa. 175. §§168, 172. Kohl V. Lynn, 34 Mich. 360. §206. Koon V. Trammel, 71 Iowa. 132. §230. Koplin V. Anderson, 88 111. 120. §§55, 148. 246. Kottman v. Ayer, 1 Strobh. 552. §§111, 186. 710 KRAMKR.J TABLE OF CASES. [laughlin. Kramer v. Arthurs, 7 Barr, 161. §35. Kraiise v. Commonwealth, 93 Pa. St. 418. §2.=)0. Krider v. Lafferty, 1 Whart. 303. §■233. Krone V. Phelps, 43 Ark. 350. §273. Kuhn V. Graves, 9 Iowa, 303. §§138, 255. Kunkle v. Wolfersberger, 6 Watts, 126. §205. Kurtz V. Hollingshead, 3 OranchC. Ct. GS. §171. Kyle V. Thompson, 11 O. St. 616. §163. ■ V. Ward, 81 Ala. 120. §§219, 223. I. Lacey v. Giboney, 36 Mo. 320. §24. , Ladd V. Campbell, 56 Vt. 529. §§33, 174, 175. Ladue v. Detroit & M. K. R., 13 Mich. 380; s. C. 87 Am. Dec. 759. §164. La Farge v. Morgan, 11 Mart. (La.) , 46-2. §174. La Farge Ins. Co. v. Bell, 22 Barb. 54. §243. Lafayette v. Metcalf, 29 Mo. App. 384. §§246, 266, 267. La Frombois v. .Tackson, 8 Cow. 604. §234. Lahr's Appeal, 90 Pa. St. 507. §§172, 216. Laidley v. Cent. Land Co., 30 W. Va. 505. §§110,111. V. Knight, 23 W. Va. 735. §§104, 107. Laird v. Scott, 5 Heisk. 314. §§108, 109. Lake v. Campbell, 18 111. 106. §28. Lake View v. LeBahn, 120 111. -92. §49. Lalanne v. Morean, 13 La. 431. §§50, 51. Lally V. Holland, 1 Swan, 396. §§17, 147. Lamar v. Hall, 79 Va. 147. §205. V. Baysor, 7 Rich. 509. §§69, 128. ly.iinar Co. v. Clements, 49 Tex. 354. §49. Lamb v. Davis, 74 Iowa, 719. §154. V. Pierce, 113 Mass. 72, Lambert v. Newman, 56 Ala. 623. §225. V. Weir, 27 TeX. 359. §§21, 96. Lamberton v. Merchant's Bk., 24 Minn. 281. §192. Lament v. Ctiesire, 65 N. Y. 30. §43. V. Stimson, 5 Wis. 443. §225. Lamoreux v. Meyers, 68 Wis. 34. §231. Lumorque v. Langston, 8 Mo. 328. §76. Lamson v. Moffatt, 61 Wis. 153. §§273, 274. Landers v. Bolton, 26 Cal. 393. §§S7, no. Land Co. v. Chisholm, 71 Tex. 523. §134. Lane v. Dolick, 6 McLean, 200. §115. V. Dushac, 73Wis. 646. §143. V. Lutz, 1 Keyes, 213. §254. V. Mason, 5 Leigh, 520. §§190, 265. V. MoKeen, 15 Me. 304. §117. V. Nelson, 79 Pa. St. 407. 221, 222, 229. §120. V. Schlenimer, 114 Ind. 296; S. C. 5 Am. St. Rep. 621. §§89, 109, l.")4. . . V. Shields, 3 Yerg. 405. §78. Lang V. Kickmers, 70 Tex. 108. §§249, 250. Langton v. Marshall, 59 Tex. 296. §§105, 107. Langworthy v. Myers, 4 iQwa, 18. §234. Lank v. Hiles, 4 Houst. (Del.), 87. §144. Lanning v. Dolph, 4 Wash. C. C. 624. §56. Lansing v. Russell, 3 Barb. Ch. 325. §130. Larkins v. Saffarans, 15 Fed. Repr. 147. §174. Lasell V. Powell, 7 Coldw. 277. §48. Lash V. Edgerton, 13 Minn. 210. §31. V. Hardick, 5 Dill. 505. §§194, 196. Latch V. Bright, 16 Grant's Ch. 613. §28. Lathe v. Schaff, 60 N. H. 34. §262. Latouche v. Lord Dunsany, 1 Dr. & War. 459. §2. Laughlin v. Tream, 14 W. Va. 322. §110. 711 LAVEBTY. ] TABLE OF CASES. [LIGGETT. La verty v. Moore. 33 N. y. (G Tiff .) , 65S; s. c. 32 Barb. 347. §§36. 37. Lawrence v. Evarts. 7 O. St. 194. ((253. V. Hodges, 92 N. C. 672; s. C. 53 Am. Eep. 436. §27.5. V. Stratton, 6 Cusb. ]63. §198. Lawton v. Gordon, 37 Cal. 202. §;i24. Lazarus v. Henrietta Nat. Bank, 72 Tex. 354. §476. Lea V. Polk Co. Copper Co., 21 How. 493. §§y4. 154. Leach v. Ansbacber, 55 Pa. St. 85. §§205, 22S. V. Beattie, 33 Vt. 195. §178. V. Cassidy, 23 Ind. 449. §64. Learned v. Allen, 14 Allen, 109. §65. V. Eiley. 14 Allen, 109. §68. Leathwhite V. Bennett (N. J.), 11 Atl. Repr. 29. §44. Lebanon v. Warren Co., 9 Obio, 80. §49. Leeamp v. Carnaban, 26 W. Va. 839. §43. Ledos V. Kupfrian, 28 IST. J. Eq. -161. §20. Ledyard v. Butler, 9 Paige, 132. §156. Lee V. Birmingbam, 30 Kan. 312. §16. V. Cato, 27 Ga. 637. §§154, 216. V. Clark, 89 Mo. 553. §175. V. Darraraou, 3 Eob. 160. V. Munroe, 7 Crancb, 366. • V. Phelps, 54 Tex. 368. §47. ■ V. Wharton, 11 Tex. 61. §96. Leftwicb v. Neal, 7 W. Va. 569." §109. Leger V.Doyle, 11 Rich. 118. §133. Leggett V. Bullock, Busb. 283. §165. Le • Gierse v. Moore, 59 Tex. 470. §185. Le Grand v. Eufala Bank, 81 Ala. 123; s. C. 60 Am. Rep. 140. §§154, 245. Leibe v. Hebersmith, 39 La. Ann. 10,50. §§130,14 5. Leiby v. VVoU, 10 O. 83. §§21, 164. 178. Leigbton v. Stuart, 19 Neb. 546. §253. §138. §226. Leinenkugel v. Kebl. 73 Wis. 238. §54. Le'iiHuan's Estate, 32 Md. 325. §4. Leitoh V. Wells, 48 N". Y. 585. §43. Leland v. Isenbeok, 1 Idaho, 469. §27. V. The Medora, 2 Woodb. & M. 'J-l. §276. Lemay v. Williams, 32 Ark. 166. §254. Lemon v. Staats, 1 Cow. 592. §168. V. Waterman, 2 Wash. 485. §§114, 185. LeXi>vp V. LeXeve. Amb. 436; s. C. 1 Vp^. 64; 3 Atk. 6^6. §§1, 99, 165, 200, 216, 220, 242. Leonard v. N. Y. Bay Co., 28 N. J. Eq. 192. §191. Leonis v. Lazzarovich, 55 Cal. 52. §9. Leopold V. Silverman, 7 Mont. 266. §271. Leppoc V. Union Bank, 32 Md. 136. §144. Leslie v.Hinson, 83 Ala. 266. §§16, 273. V. Richardson, 60 Ala. 563. §191. Letcher v. Norton, 5 111. 575. §254. Levi V. Booth. 58 Md. 305; s. C. 42 Am. Dec. 332, 337. §§247, 248, 250. Levvitt V. Lamprey, 13 Pick. 383. §115. Levy V. Cox, 22 Fla. 546. §144. Lewis V. Baird, 3 McLean, 56. §§56, 134. — V. Caperton, 8 Gratt. 148. §20. V. Cole, 60 Tex. 341. §184. V. Coxe, 5 Harr. 401. §117. V. Curry, 74 Mo. 49. §67. V. Terrell, 51 Conn. 216. V. Hinman, 56 Conn. 55. V. Johnson, 68 Tex. 448. §§135, 203. V. Klotz, 39 La. Ann. 259. §§16, 28, 136. V. Palmer, 28 N. Y. 271. §2.57. Libby v. Staples. 39 Me. 166. §251. Lickman v. Harding, 65 111. 505. §§6S. 90. Lieiirick v. Stable, 68 Iowa, 515. §236. Liggett V. Himie, 38 Minn. 421. §175. §175. §231. 712 LIGGETT. ] TABLE OF CASES. [lowry. LiS2;ett v.Wall, 2 A. K. Marsh, 149. §•210. Lightner v. Moouey, 10 Watts, 407. §§133, 158, 162. 167. Lillard v. Ruckers, 9 Yerg. 64. §190. LlDcoln V. Hass, 10 Neb. 581. §142. V. Quinn, GS Md. 299; s. C. 6 Am. St. Rep. 446. §250. V. ThorapsQn, 75 Mo. 613. §§71, 78, 82, 232. Lindley v. Cross, 31 Ind. 106; s. c. 99 Am. Deo. 610. §46. V. Smith, 46 111. 524. §§76, 87, 100, 113. 115. Lindsey v. Rankin, 4 Bibb. 282. §155. v.Veasey, 62 Ala.421. §216. Link V. Page, 72 Tex. 592. §471. Lionberger v. Baker, 88 Mo. 447. §204. Lipp V. Land Syndicate, 24 Neb. 692, 699. §228. Lissa V. Posey, 64 Miss. 352. §§20, 196, 200. Lister v. Allen, 31 Md. 543. §247. Little V. Dodge, 32 Ark. 453. §§52, 73. V. Weatherlord, 63 Tex. 638. §77. V. White, 29 S. Car. 170. §129. Littleton v. Giddings, 47 Tex. 109. §§178, 1S2, 216, 219, 224, 226, 227, 239. Livingston v. McDonald, 9 Ohio, 168. §66. V. Kettelle, 1 Gilm. 116; s. C. 41 Am. Dec. 166. §§52, 70, 76, 77, 80. ■ V. Peru, 9 Wend. 511. §2.34. Lloyd \-. Banks, L. R. 3 Ch. App. 488. §216. V. Lloyd, 4 D. & W. 369. §20. Lock V. Alexander, 2 Hawks, 155; s. C. 11 Am. Dec. 750. §59. Lockland v. Smiley, 23 O. St. 94. §49. Lockwood V. Slavin, 26 Ind. 135. §§41, 218. Lodge V. Siraonton, 2 Pen. & Watts. 439. §178. Loeb V. Hirsch, 21 Neb. 392. §§246, 254, 256. V. Miluer, 21 Neb. 702. §265. Logan V. Smith, 62 Mo. 455. §204. V. Williams, 76 111. 175. §23. Logwood V. Robertson, 62 Ala. 107. §20. Lombard v. Culberson, 59 Wis. 537, §143. Long V. Dollarhide, 24 Cal. 218. §159. Lonffworth v. Close, 1 McLean, 282. §131. Lookout Bank v. Noe, 86 Tenn. 21. §§189, 198, 218. Loomis V. Busb, 36 Mich. 40. §154. V. Pingree. 43 Me. 299. §144. Looney v. Adamson, 48 Tex. 619. §87. Lord V. Pal man, 57 Ala. 615. §54. Lorton v. Fowler, 18 Neb. 224. §254. Losey v. Simpson, 11 N. J. Eq. (3 Stockt.), 246. §§15, 21, 155, 158, .159, 16U, 242. Loth V. Carty, 85 Ky. 591. §274. Louden V. BIythe, 16 Pa. St. 532; S. C. 55 Am. Dec. 527. §89. V. , 27 Pa. St. 22; s. C. 67 Am. Dec. 442. §109. Loughridge v. Bowland. 52 Miss. .^46. §§195, 199, 212. 227, 228. Louisiana State Bk. v. Senecal, 13 La. 525. §244. Love V. Berry, 22 Tex. 378. §184. V. Francis, 63 Mich. 181. §144. V. Harbin, 87 N. C. 253. §§69, 122, 128, 130. V. Robertson, 7 Tex. 20; s. C. 56 Am. Dec. 41. §182. V. Taylor, 26 Miss. 567. §§104, 207 Lovejoy v. Raymond. 58 Vt. 509. §181. Lovellv. Osgood, 60 N.H. 71. §271. Lovett V. German Reformed Chm-ch, 12 Barb. 67. §191. V. The Steam Saw Mill Co., 6 Paige, 54. §60. Loviug V. Johnson, 68 Tex. 273. §250. Low V. Pettingill, 12 N. H. 337. §256. Lowe V. Allen, 68 Ga. 225. §194. Lowell V. Wren, 80 111. 238. §90. Lowells V. Daniels, 2 Gray, 161. §§99, 100, 101. Lowery v. Harrison, 2 N. J. L. 51. §260. Lowry v. Harris, 12 Minn. 255. §29. v. Mayo (Minn.), 43 N. W. Repr. 78. §381. 713 LOWTHER.J TABLE OF CASES. [marston. Lowther v. Carlton, 2 Atk. 242. Sinn. . Loyd V. Ljfnch, 28 Pa. St. 419; 70 Am. Dec. 137. §204. Lovns V. Tedder, 7 6. Car. 69. §273. Lucas V. Campbell, 88 111. 447. §250. V. Claflin, 76 Va. 269. §151. V. Cobbs, 1 Dev. & B. 228. §§69, 109. Luce V. Moorehead, 73 Iowa, 498. §253. Liich's Appeal, 44 Pa. St. 519. §§32. 137, 138. Ludden v. Dusenbury, 27 S. Car. 464. §251. Ludlow V. Kidd, 3 O. St. 541, 550. §28. V. O'Neil, 29 O. St. 181. §§98, 101. 186, 189. V. Van Ness, 8 Bosw. 175. §§36. 37. LuflboroLigh v. Parker, 12 Serg. & K. 4S. §69. Lnfkin v. Curtis, 13 Mass. 223. §115. V. N"unn, 11 Ves. 170. §199. Lumber Co. v. Hancock, 70 lex. 312. §27. Lund v.Kice, 9 Minn. 50. §56. Lyle V. Ducoml), 5 Binn. 585. §45. V. Richards, 19 Serg. & R. 351. §113. Lynch V. Livingston. 8 Barb. 463; 6N.Y. 422. §§62.65.68. Lyon V. Gleason.'40 Minn. 434. §51. V. Kain. 36 111. 362. §57. V. Logan, 68 'I'ex. 521. §47. V. Ozee, 66 Tex. 95 §47. Lyons v. Field, 17 B. Mon. 543. §210. V. Leahy, 15 Or. 8. §223. M. MaoCabe v. Blymyer, 9 Phila. 615. §267. Machette v. Wanless, 1 Colo. 225. §253. Mackreth v. Symmons, 15 Ves. 336. §§2, 20. Macon v. Sheppard, 2 Humph. 335. §§222, 233. Ma gee v. Carpenter, 4 Ala. 469. §210. Magne.ss v. Arnold, 31 Ark. 103. S§"7, 78. Maguiac v. Thompson, 7 Pet. 348. §195. Maguire v. DeFremery, 76 Cat. 401. §114. Malioney v. Jliddleton, 41 Cal. 41. §156. M:ijors V. Cowell, 51 Cal. 478. §43. Mallory v. Stodden, 6 Ala. SOI. §S132, 154. Mailoy V. Bruden, 88 N. C. 305. §§61, 104. Manaudfis v. Mann, 14 Or. 450. §§12. 216. Manchester v. Hough, 5 Mason, 67. §111. Manly V. Culver, 20 Tex. 143. §§70, 74. V. Gibson, 13 111. 308. §49. V. Slason, 21 Vt. 271. §20. Mann v. Martin, 4 Md. 124. §6. Manstield v. Gregory, 8 Neb. 432. §§192,214. Manwaring v. Jemison, 61 Mich. Hi'. §§257, 258, 260. Mara v. I'^jerce, 9 Gray, 306. §§12, 222, 229. ilnrbury v. Madison, lCranch,137. §16. Mai-chbanks v. Banks, 44 Ark. 48. 200. Marcum v. Coleman, 8 Mont. 196. §■-54. Marier v. Lee. 2 Utah. 460. §2. Marigold v. Barlow. 61 Miss. 593; S. C. 48 Am. Rep. 84. §16. Mariner v. Saunders, 5 Gilm. 113. §§9. 101. Marks v. Cowles. 61 Ala. 299. §191. V. Robinson, 82 Ala. 69. §274. Marquette v. Jefferey, 49 Mich. 283. §249. Marsden v. Cornell, 62 N. Y. 215. §§56, 257, 259. Marse v. Beale. 68 Iowa, 463. §54. Marsh v. Chambers, 30 Gratt. 299. §§10, 196, 197. V. Lee, 2 Vent. 337. §171. V. Mitchell, 26 N. J. Eq. 497. §§89. 105. V. Wade (Wash.), 20 Pao. Repr. 578. §§247, 253. Mniston v. Brackett, 9 N. H. 336. §171. V. Bradshaw, IS Mich. 81; S. C. 100 Am. Dec. 152. §85. V. Brittenham, 76 111. 611. §90. 714 M ARTEL.] TABLE OF CASES. Martel v. Somers, 28 Tex. 5.51, 561. §§■2-23, 2'24. 2-25. Martin v. Brown, 4 Minn. 2S2. §§27, 183. V. Gamble, 72 Ind. 67. §223. V. Davidson, 3 Bush, 574. §§103, 107. 110, 111. V. Di-yden, 1 Gilm. 187. §§166, 169v V. Dwelly, 6 Wend. 9; s. c. 21 Am. Dec. 245. §§99, 100. V. .Jacl{*on, 27 Pa. St. 509. §§.51, 181, 20rf. V. Nasd, 31 Miss. 324. §185. V. Xeblett, 86 Tenn. 383. §178. §96. V. Povlier, 26 Tex. 253. V. Eeed, 30 Ind. 218. §210. V. Roberts, 57 Tex. 664. §47. V. Rothschild, 42 Hun, 410. §§196, 254. 261. ■ V. Sale, 1 Bail. Eq. 1. §§6, 132, 1.54, 216. V. Thompson, 63 Cal §273. -V.Williams, 27 Ga. 406. 4. §§H, 133, 167. M:irtindale v. Price, 14 Ind. 115. §28. Marvin v. Xorton, 48 N. J. L. 412; S. C. 57 Am. Rep. 566. §§247, 249, 2.50. Marx V. Hanthorn, 30 Fed. Repr. 579. §62. Mason V. Black, 87 Mo. 329. §§182, 224. V. Brock, 12 111. 27.^; s. c. 52 Am. Dec. 490. §§9, 73, 98, 101. Massey v. Hubbard, 18 Fla. 688. §228. V. Wescott, 40 111. 160. §§10, 169: 199. Massle v. Greenhow, 2 Pat. & H. 255. §226. Masterson v. West End Ey., 5 Mo. App. 64, §§216.233. Mather v. Jenswold. 72 Iowa, 5.50, 553. §§169, 175, 180. Matlock V. Straughn, 21 Ind. 12S. §218. Matthews v. Puffur, 19 N". H. 348. §9. V. Riggs, 80 Mo. 107. §238. Mauderschid v. Dubuque, 29 Iowa, 73. §49. [m'call. 21. Maul V. Rider, .59 Pa. St. 167. 159, 162, 221. 227. Mau])in V. Emmons, 47 Mo. 304. §182. 222. Maury v. \Valsh, S Cow. 243. §21.5. Maxey v. Wise. 25 Ind. 1. §120. Maxwell v. Brooks, 64 Ind. ij.s. §12. V. Hartman, 50 Wis. 660. §§73, 136, 150. V. Wallace, 3 Ired. Eq. 593. §118. Mav V. LeClaire, 11 Wall. 217. §§27, 221. ■ V. Sturdivant, 75 Iowa, 116. §535. Mavhee v. Moore, tO Mo. 340. §§2, 217. Mayberry v. Morris, 62 Ala. 113. §43. Mayes v. Bruton, 1 Tex. Civ. App. §699. §247. Mayfield v. Averitt, 11 Tex. 140. §223. Mayham v. Coombs, 14 Ohio, 42S. §§12, 30, 31, 165, 189, 196, 216, 217. Mayo V. I^egget, 96 N. C. 237. §228. Mays V. Frazee, 4 Litt. 391. §116. V. Hedges, 79 Ind. 2SS. §§89. 157. . V. Price. 95 Mo. C03. §121 . MoAdow V. Black, 6 Mont. 601. §§59. 177. 183, 199, 207. McAfee v. Wheelis, 1 Tex. Un. Cas. 65. §200. McAlplne V. Burnett, 23 Tex. 650. §20. McAnely v. Chapman, 18 Tex. 198. §40. McArthur v. Garman, 71 Iowa, 34. §273. V. Thomas, 2 Ohio, 415. §21. McBeth V. Trabue. 69 Mo. 642. §§49,99,101. McBride v. Wilkinson, 29 Ala. 662. §94. McOaa v. Wolf, 42 Ala. 389. §99. McCrtbp V. Grey, 20 Cal. 509. §§4, 163, 178. McCaffrey v. Benson, 40 La. 10. §114. McCagg V. Heacock, 34 111. 476. §ii219, 223. McCain v. Wood. 4 Ala. 258. §177. McCall V. Powell, 64 Ala. 254. §247. V. Rogers, 77 Ala. 349. 209. 715 m'camant. ] TABLE OF CASES. [m'kee. McCiimnnt v. Patterson, 39 Mo. no. §§28. ]S4. McCan v. Bradley, 38 La. Ann. 482. §13S. McCandish v. Keen, 13 Gratt. 621. §■^0. MoCandless v. Engle, 51 Pa. St. 309. §104. McCarthy v. Grace. 28 Minn. 182. §239. ■ V. Nicrosi, 72 Ala. 332; S. C. 47 Am. Kep. 418. §235. McCarty v. Mann, 19 Wall. 20. §161. McCleerey v. Wakefield, 76 Iowa, 529. §§230, 232. McClurg V. Phillips, 57 Mo. 214. §1J6. McClure v. Roman, 52 Pa. St. 458. §164. V. Tallman, 30 Wis. 515. §184. McOomb V. McDonald, 82 Va. 903. §249. V. Spangler,71 Cal. 419, 427. §§114,117,182. McConnell v. Brown, Lit. Select Cases, 462. §§7, 132. ■ ■ V. Keed, 2 Scam. .371. §52. McCord V. Cooper, 30 Ind. 9. §41. McCorkle v. Montgomery, 11 Rich. Eq. 132. §§20, 200. V. Amarini, 12 Ala. 17. §128. McCormack v. Phillips (Dak.), 34 N. W. Repr. 39. §46. V.Woods, 14 Bush, 78. §101. McCormick v. Bauer, 122 111. 673. §§173, 174, 209. V. Hadden, 37 111. 370. §250. V. Wheeler, 36 111. 114. §§241, 243. McCoy V. Bailey, 21 Pla. 803. §§57, 76. V. Rhodes, 11 How. 131. §§165, 196. V. Trustees, etc., 5 Serg. & R. 254. §162. McCuUoch V. Eudlay, 3 Yerg. 346. §§154, 158. V. Myers, 1 Dana, 522. §65. McCusker v. McEvey, 9 R. I. 525. §161. McDaniel v. Harris, 27 Mo. App. 5to. §246. V. Needham, 61 Tex. 269. §§69, 79, 81, 125. McDaniels v. Flower Brook, 22 Vt. 274. §59. MoDannell v. Horrell, 1 Tex. TJn. Cas. 521. §§S9. 120. McDonald v. Bear River Co., 13 Cal. 235. §.59. V. Morgan, 27 Tex. 504. §§70, 71, 72. V. Willis, 143 Mass. 452. §46. McDowell V. Stewart, 83 HI. 564. §§254. 269. McFadden v. Worthington, 45 111. 362. S§166, 169, 199. McFarlaue v. Griffith, 4 Wash. C. Ct. 585. §203. McFarran v. Knox, 5 Cold. 217. §38. McGhee v. Gindrat, 20 Ala. 951. §226. V. McKenzie, 43 Ark. 156. §186. McGinn v. Tobey, 62 Mich. 252; s. C. 4 Am. St. Rep. 848. §1.54. McGinnis v. Savage, 29 W. Va. 362. §249. Mc.Given v. Wheelock, 7 Barb. 22. §175. McGou-an v. Reid, 27 S. Car. 262. §§126, 145. Mcixraw v. McGraw, 79 Me. 257. §144. V. Williams, 33 Gratt. 513. !}64. McGiiire v. Barker, 61 Ga. 339. §§13, 133, 166. V. Hay, 6 Humph. 419. §130. McHendry v. Reilly, 13 Cal. 75. §20. McHenry v. Day, 13 Iowa, 445. §121. Mcllvain v. Mutual, etc.. Co., 93 Pa. St. 30. §164. Mcllvaine v. Legare, 34 La. Ann. 923. t)§20, 178, ISO. Mcllwrat'h v. Hollender, 73 Mo. 105; s. c. 39 Am. Rep. 487. §43. Mcintosh V. Beam, 47 Ark. 353. §249. Mclntvre v. Kamm, 12 Or. 253., §§122, 128. V. Wafd, 5 Binn. 801. §§79, 106. McKaraey v. Thorpe, 61 Tex. 653. §§144, 204. 207. McKean v. Mitchell, 35 Pa. St. 269; s. C. 7S Am. Dec. 335. §149. McKechnie v. Hoskins, 23 Me. 230. §231. McKee v. Mining Co., 8 Colo. 392. §269. 716 m'keen.J TABLE OF CASES. [messick. MoKeen v. Delancy, 5 Cr. 22. §§56, McKellar v. Peck, 39 Tex. 3S1. §§73, 186. McKieruaa v. Fletcher, 2 La. Ann. Jb8. §213. McKianey v. Matthews (Tex.), 6 S. W. Kepr. 79o. §101. McKinnon v. McLean. 2 Dev. & Bat. 79, 85. §§88, 127, 149. MoKinzie v. Pen-ill, lo O. St. 162. §222. McKissock v. Colquhoun, 18 Tex. 149. §§125, 129. 187. McKnight v. Gordon, 13 Rich. Eq. ■222; s. C.94 Am. Dec. 164. §§133, 193. 194. 199, 212. McLanahan v. Reeside, 9 Watts, 508; s. c. 36 Am. Dec. 136. §§31, 181. McLaue v. Paschal, 47 Tex. 365. §210. McLarren v. Thompson, 40 Me. 284. §§255, 2.i6. McLaughlin v. Shepherd, 32 Me. 143. §222. McLearn v. McLelland, lOPet. 625. §20. McLeod V. First >«"ational Bk., 42 Miss. 99. §208. McMechan v. Griffing, 3 Pick. 149; S. C. 15 Am. Dec. 198. §§216, 232. McMulIen v. E.igan, 21 W. Va. 233. §92. McMurtrie v. Riddell, 9 Colo. 497. §§163, 169, 212, 214. McJ^'amee v. Huckabee, 20 S. Car. 190. §§131, 133. McNeil V. Finnegan, 33 Minn. 375. §269. McNutt V. Turner, 16 Wall. 352. §§51, 199, 212. McPhaul V. Lapsley, 20 Wall. 264. §96. McPhee v. Broderick, 145 Mas8. 565. §46. V. Litchfield, 145 Mass. 565; 1 Am. St. Rep. 482. §46. McPherson v. Rollins, 107 N. Y. 317; s. C. 1 Am. St. Rep. 826. §§4, 34, 152, 176. 178. McQuiddy v. Ware, 67 Mo. 74. §235. McK.ae v. Merrifleld, 48 Ark. 100. §249. McRaven v. McGuire, 1 S. & M. (17 Miss.), 34. §§62,132. McShirley v. Burt, 44 Ind. 382. §155. McTaggart v. Rose, 14 lud. 230. §254. McVay v. English, 30 Kan. 368. §254. Meacham v. Steele, 93 111. 135. §164. Mead v. N. Y., etc., Ry. Co., 45 Conn. 199. §198. Mechanic's Bk. v. Seton, 1 Pet. 299. §244. Meddock v. Williams, 12 Ohio, 377. §69. Meech v. Patchiu, 14 IST. Y. 71. §§257, 258. Meehan v. Williams, 48 Pa. St. 238. §237. Meier v. Blume, 80 Mo. 179. §§221, 223, 238. Meighen v. Strong, 6 Minn. 177. §171. Meherin v. 0.aks, 67 Cal. 57. §254. Mer\i v. Rathbone, 21 Ind. 454. §§7, 132. Menzies v. Dodd, 19 Wis. 443. §2.59. Merchant's Bank v. Harrison, 39 Mo. 4.33; s. c. 93 Am. Dec. 285. §§66, 71, 72. Merkerman v. Day, 35 Kan. 46. §8. Merriam v. Boston R. R., 117 Mass. 241, §99. Merrick v. Avery, 14 Ark. 370. §275. V. Wallace. 19 111. 486. §§16, 69, 143, 147, 179. Merrill v. Montgomery, 25 Mich. 73. §60. V. Bessler, 37 Minn. 82; 5 Am. St. Rep. 822. §§252, 253. V. Sandford, 49 Me. 566. §254. Merrills v. Swift, IS Conn. 257; §144. Merriman v. Bartlett, 34 Minn. 524.- §§46, 47. Merritt v. Harris, 102 Mass. 326. §161. V. Home. 5 O. St. 307. §146. V. The Northern R. R. Co., 12 Barb. 605. §202. V. Yates, 71 111. 636; s. c. 22 Am. Rep. 128. §§5, 88, 92, 111, 112. Meskiraen v. Day, 35 Kan. 46. §73. Me.^serschmidt v. Baker, 22 Minu. 81. §48. Messick v. Sunderland, 6 Oal. 297. §37. 717 METCALFE,] TABLE OF CASES. [MONTGOMERY. Metcalfe v. Brandon, 60 Miss. 685. §H4. Metropolitan Bk. v. Godfrey, 23 111. 579. 5P07, 231, 236. Metts V. Bright, 4 Dev. & Bat. 173; S. C. 32 Am. Dec. 683. §140. Metz V. State Bank, 7 Neb. 165. §42. Meuley v. Zeigler, 23 Tex. 88. §240. Meyer v. Fegaly, 39 Pa. St. 429. §42. V. Gossett, 38 Ark. 377. §S9. V. Kinzer, 12 Gal. 252, §lvS2. Meyers v. Buchanan, 46 Miss. 397. §187. Michener v. Cavender, 38 Pa. St. 334; s. c. 80 Am. Dec. 486. §§S8, 89, 90. Miebigan Cent. Ky. v. Dolan, 32 Micti. 670. §244. Michigan Ky. v. Phillips, 60 111. 190. §250. Mickel V. Gardner, 41 Ark. 491. §109. Middlebury College v. Cheney, 1 Vt. 336. §63. Miles V. King, 5 S. Car. 146. §§199, 212. V. Langley, 1 Euss. & My. 39. §237. Milholland v. Tiffany, 64 Md. 455. §30. Millaiidan v. Allord, 2 La. Ann. 551 . §144. Millard v. McMullen, 68 N. Y. 345. §235. Miller v. Alexander,' 8 Tex. 45. §37. . V. Bingham, 29 Vt. 82. §§171, 226. Bradford, 12 Iowa, 14. §17. V. Estill, 8 Yerg. 452. §42. V. Fisli, 1 Ariz. 232, 243. V. Henshaw, 4 Dana, 325. §100. §73. V. .Jones, 15 ISTat. Bank Reg. 1.50. §260. V. Koertge, 70 Tex. 162. §143. §101. §24. V. Piatt, 5 Duer, 272. §233 V. Powell. 53 Mo. 2.52. §91 - V. Shackelford, 3 Dana, 299 - V. Shotwell, 38 La. Ann. 890 Miller V. Tharel, 75 K. G. 148. §189. V. Ware, 31 Iowa, .524. §17. V. Wentworth, 82 Pa. St. 280. §§87. 121. V. Yturria, 69 Tex. 549. §14. Millhizer v. Erdwin, 98 ^f. C. 282; S. C. 2 Am. St. Rep. 334. §433. Milligan v. Dickson, Pet. G. Ct. 433, 438. §188. V. Mayne, 2 Cr. C. Ct. 210. §75. Mills V. Penny, 74 Iowa, 172; S. C. 7 Ain. St. Rep. 172. §343. V. Smith, 8 Wall. 27. §155. V. . 4 Biss. 442. §§159, 180. Milner v. Turner's Heirs, 4 Mon. 240. §101. Miltenberger v. Drebroca, 33 La. Ann. 313. §173. Miltonv.Turner, 38Tex. 31. §§134, 187. Minis V. Mims, 35 Ala. 23. §16. Miner's Ditch Co. v. Zellerbach,37 Gal. 543. §60. Minis V. Minis. 35 Ala. 23. §31. Minton v. Pickens, 24 S. Gar. 592. §210. Miss. Valley Co. v. Ry. Co., 58 Miss. 854. §§19, 20. 195. Mitchell V. Aten, 37 Kan. 33; S. c. 1 Am. St. Rep. 231. §155. V. Churchman, 4 Humph. 218 §234 Mitlord V. Mitf ord, 9 Ves. 87. §213. Mixer v. Bennett, 70 Iowa, 329. §56. Mobile Go. v. Randall, 71 Ala. 220. §207. Mobile Bank v. Tishamingo, 62 Miss. 250. §§31, 137, 138. Moffattv. Hardin, 22 S. Car. 9. §33. Moline Plow Co. v. Braden, 71 Iowa, 141. §250. Monaghan v. Longfellow, 81 Me. 298. §255. Money v. Horsey, 7 Sm. & M. 15. §§192, 197. Monks V. Jenkins, 2 Hill. Ch. 9. §128. ^Monroe v. Arledge, 23 Tex. 478. §§52, 81. V. Hamilton, 60 Ala. 227. §177. Montana Imp. Co. v. Coulter, 7 Mont. 541. §185. Montgomery v. Kopperl, 75 Gal. 128. §219. 718 MONTGOMERY, j TABLE OF CASES. [moss. Monta;omery v. Noyes (Tex.), 11 S. W. Repr. 13S. §§114,182. V. Wight, 8 Mich. 143. §§2.53, 262, 269. Moody V. Bhick, 117 Mass. 23; s. c. 19 Am. Rep. 394. §§154. 245. V. Butler, 63 Tex. 210. §235. V. Dryden, 72 Iowa, 461. §144. Moore v. Bennett. 2 Ch. Gas. 246. §182. V. Curry, 36 Tex. 608. §155. V. Fuller, 6 Or. 272. §§89, 121. §20. §253. ■ V. Hill, 59 Ga. 760. §75. ■ V. Holcombe, 3 Leigh, 397. V. Jones, 63 Cal. 12. §182. V. Lehman, 30 Kan. 514. ■ V. Moore, 3 O. St. 154. §65. V. Nelson, 3 McLean, 383. §11- V. Pierson. 6 Iowa, 279 ; s. C. 71 Am. Dec. 409. §228. V. Simonds, 100 U. S. 145. §275. • V. Thomas, 1 Or. 201. §§3, 14, 31, 165, 216. ■V. Thompson, 69 JS". C. 121. §237. -V. Vance, 1 Ohio, 1. §65. V. Walker, 3 Lea, 656. §209. V. Young. 4 Biss. 128. §§213, 218, 269. Mooring v. Campbell, 47 Tex. 37. §234. Moorman v. Board, 11 Bush, 185. §§106, 108. V. Gibbs, 75 Iowa. 537. §192. Morau v. Palmer, 13 Mich. 367. §25. 678. Morecock v. Dickens, Amb. §§2, 36. Moreland v. Laurence, 23 Minn. 84. §145. V. Richardson, 24 Beav. 33. §§228. 234. Morgan v. Chicago, 90 U. S. 716. §49. V. Curtenius. 4 McLean, 366. §76. V. Elam, 4 Yerg. 375. §195. V. Shinn, 15 Wall. 105. §276. V. Snell,3 Baxt. 382. §38. V. Way, 16 Ohio, 469. §24. Moring v. Dickerson, 85 N. C. 466. §172. Morrill v. Morrill, 60 Vt. 74. §§12. 127, 145. V. Sanford, 49 Me. 566. §§41, 261. Morris v. Cain, 39 La. Ann. 712. §170. ■ — V. Daniels, 35 O. St. 405. §216. V. Harris, 9 Gill. 19. §100. V. Murray, S2 Ky. 36. §171. V. Sargent, IS Iowa, 199. §§0, 98, 101. V. White, 36 N. J. Eq. 324. §§12, 216. — V. Word, 36 N. Y. 6S7. §204. Morrison v. Brown, 83 111. 564. §ii.")3, 154, 172. V. Clark, 55 Tex. 437. §114. V. Funk, 23 Pa. St. 421. §§199. 212. V. Kelley, 22 111. 610; s. C. 74 Am. Dec. 169. §§153,156,181, 219, 221. V. March, 4 Minn. 422. §§223, 236. V. Phillips, 35 Minn. 192. §46. V. Porter, 35 Minn. 425. §56. V. White, 16 La. Ann. 100. §66. Morrow v. Graves, 77 Cal. 218. §294. V. Reed, 30 Wis. 81. §§41, 242, 254. V. State, 22 Tex. Ct. App. 239. §56. Morse v. Clayton, 21 Miss. 373. §78. V.Curtis, 110 Mass. 113; s. C. 54 Am. Rep. 456. §157. V. Godfrey, 3 Story, 364. §217 V. Hunter, 1 Gilm. 317. §§177,180. V. Jones, 63 Cal. 12. §114. ■ V. Wright, 60 Cal. 260. §204. Morton v. Lowell, 56 Tex. 643. §20.-1. • V. Robards. 4 Dana, 258. §§10, 19, 36. 38, 192. v. Smith, 2 Dill. 316. §75, Moseley v. Shattuck, 43 Iowa, 540. §251. Mosely v. Hawkinson, 23 S. Car. .519. §115. :\Ioshier v. Meek, 80 111. 79. §20. Moss V. Atkinson, 44 Cal. 3. §228. 719 MOTT. ] TABLE OF CASES. [neeley. Mott V. Clark, 9 Pa. St. 399 ; s. C. 49 Am. Dec. 566. §§155, 174, 203. V. Smith, 16 Cal. 533. §63. Mount V. Kesterson, 6 Coldw. 452. §§29, 77, lOS. Mounlford v. Scott, Turn. &E. 274. §241. V. , 3 Madd. 40. §241. Mowbray v. Cady, 40 Iowa, 604. §i51. Mowrey v. Walsh, 8 Cow. 238. §248. Moyer v. McCullough. 1 Ind. 211. §135. Mueller v. Engein, 12 Bush, 441. §180. Miiir V. Blake, 57 Iowa, 662. §§253, 273. V. Gallaway. 61 Cal. 498. §§79, 98, 112. V. Jolly, 26 Beav. 143. §230. Mullen V. His Creditors, 39 La. Ann. 397. §41. MuUer v. Boggs, 25 Cal. 175. §62. . V. Boone, 63 Tex. 91. §60. llulliken v. Graham, 72 Pa. St. 484. §224. Mullins V. Weaver, 61 Tex. 5. §§76, 81. Mullis V. Gavins, 5 Blackf. 77. §56. Mullison's Estate, 68 Pa. St. 212. §■227. Mumfordv. Cante.50 111. 370. §266. V. Wardwell, 6 Wall. 423. §136. Muneie v. Brown, 112 Ind. 474. §73. Mundee V. Freeman (Fla.), 3 South. Eepr. 153. §67. Mundin v. Berwin, 62 Tex. 341. §47. Miiudy V. Vawter, 3 Gratt. 518. §U7. Munn v. McDonald, 10 Watts, 270. §§202, 208. Munroe v. Eastman, 31 Mich. 283. §227. Muijson v. Ensor, 94 Mo. 504. §§140, 183. V. Fraser, 73 Iowa, 177. §343. Murrh v. Wright, 46 111. 487; B. C. 95 Am. Dec. ini,. §250. Murphy v. Hendricks, 57 Ind. 598. §147. v. Welder, 58 Tex. 235. §233. Murray v. Charleston, 96 U. S. 432. §268. Murray v. Lylburn, 2 Johns. Ch. 443. §33. Murrell v. Watson, 1 Tenn. Ch. 342. §222. Muse v. Latterman. 18 Serg. & R. 167. §14. Musgrove v. Bosner, 5 Or. 813; s. C.'20Am. Rep, 737. §§75, 81, 82, 92, 142. I.i9, 219, 221. Mut. Ass'n Society v. Stone, 3 Leigh, 218. §203. Mut. Ins. Co. V. Eowand, 26 If. J. Eq. 389. §§19J. . Mutual Life Ins. Co. v. Dake, 1 Abb. N. C. 381. §142. V. Wilcox, 55 How. Pr. QS. Y.),43. §34. Mut. Loan Co. v. Elwell, 38 K. J. Eq. 18. §170. Myers v. Boyd, 96 Pa. St. 427. §71. V. Ross, 3 Head, 60. §§216, 238, 241. Myrick v. McMillan, 13 Wis. 188. 191. §128. Nail V. Temple, 12 Iowa, 276. §§45, 46. Nailer v. Young, 7 Lea, 737. §211. Nanty v. Bailey, 3 Dana, 111. §104. Nash V. Norment, 5 Mo. App. 545. §§2o3, 254. Nathans v. Arkwright, 66 Ga. 179. §204. Natioa.al Bank v. Conway, 14 Nat. Brink Reg. Reg. 513; s. c. 1 Hughes, 37. §§3. 67, 213. V. Morse, 73 Iowa. 174; s. C. 5 Am. St. Rep. 670. §144. -5 V. Sprague, 21 N. J. Eq. 530. §§257, 258. 269. Whitney, 103 U. S. 99. §§14, 31. National Bank of Fredericksburg, V. Conway, 1 Hughes (Cir. Ct.), 37. §18. National Security Bk. v. Cushman, 121 Mass. 490. §§239, 244. National State Bank v. Morse, 71 Iowa, 174. §256. Nazro v. Ware', 38 Minn. 443. §144. Neal v. Perkerson, 61 Ga. 345. §235. Nebe, In re., 11 Nat. Bank Eeg. 289. §73. . Neeley V. Searight, 113 Ind. 316. I §§45, 46. 720 NEIDE. j TABLK OF CASES. [NUGENT. Neide v. Pennypacker, 9 Phila. 86. I §§174,209.' , :N'eidig v. Whiteford, 29 Md. 178. §175. ifeil V. Kinney, 10 O. St. 67. §20. Neilson V. Iowa East Ey. Co., 44 Iowa, 71. §45. Nellis V. Muiison, 24 Hun, 575. §48. V. , IDS N. Y. 453. §§54, 165, 198, 218. JNelson v. Boyce, 7 J. J. Marsh, 401. §38. V. Dunn, 15 Ala. 501. §12. V. Graff, 44 Mich. 433. §83 . V. Hagerstown Bank, 27 Md. 51. §271. V. Xeil. 15 Hun, 3S3. §263. V. Nelson, 117 Pa. St. 278. §228. V. Wade, 21 Iowa, 49. §147. ISTeshit v. Worts, 37 O. St. 382. §271. Neslin v. Wells, 14 Otto (104 U. S.), 42S. §§6, 14. New V. Wheaton, 24 Minn. 406. §231. Newberry v. Bulkley, 5 Day, 384. §32. Newburg Car Co. v. Union, etc., Co., 4 Blatchf. 1. §244. Newell V. Anderson, 7 O. St. 12. §119. V. Warner, 44 Barb. 258. §§257, 258, 260. Newhall v. Burt, 7 Pick. 157. §§16, 154. V. Pierce, 22 Mass. (5 Pick.), 451. §230. Newkirk v. Dalton, 27 111. 413. §248. Newman v. Davis, 24 Fed. Kepr. 609. §212. V. Samuels, 17 Iowa, 528. §§8, 97, 210. V. Tymeson, 13 Wis. 172 ; s. C. 80 Am. Dec. 735. §§147, 149, 171. New Orleans v. Labrouohe, 31 La. Ann. 839. §229. V. U. S., 10 Pet. 498. §49. New Orleans, etc., Co. v. Mont- gomery, 5 Otto (95 U. S.), 18. §35. N. Y. Ins. Co. V. Nat. Prot. Ins. Co., 20 Barb. 468. §244. N. Y. Life Co. V. Smith, 2 Barb. Ch. 82. §§33, 204. N. Y. Life Ins. Co.' v. Covert, 6 Abb. N. S. 154. §§153, 177. V. Cutler, 3 Sandf. Ch. 176. §§230, 237. Staats, 21 Newsom v. Kurtz, 86 Ky. 277. §352. Newton v. McLain, 41 Barb. 285. §154. New York Co. v. White, 17 N. Y. 469. §§136, 140. ^46— Keg. of Title.) 721 Barb. 570. §145. N. Y. Ry. Co. v. Schuyler, 34 N. Y. 30. §247. Nichol \. Henry, 89 Ind. 54. §142. Nichols v. Hampton, 46 Ga. 253. §§67, 73, 132, 254. V. Mone, 25 Hun, 640. §266. V. Stewart, 15 Tex. 225. §74. Nicholson v. Golden, 27 Mo. App. 132. §247. Niokdnv. Betts, 11 Or. 406; s. c. 50 Am. Eep. 477. §§137, 170, 255. Nicols V. Ruggles, 76 Me. 25. §281. Nippel V. Hammond, 4 Colo. 211. §§76, 105, 107. Nitchie v. Townshend, 2 Sandf. 299. §259. Nolan V. Grant, 53 Iowa, 392. §97. Nolen V. Gwyn, 16 Ala. 725. §204. Noll V. Swineford, 6 Pa. St. 187. §45. Norman v. Wells, 17 Wend. 137. §128. Norris' Appeal, 30 Pa. St. 122. §45. Norris v. Hix, 74 Iowa, 524. '§273. North V. Belden, 13 Conn. 376. §139. ^ — V. Henneberry, 44 Wis. 306. §59. North Brit. lus. Co. v. Hallett, 7 Jur. N. S. 1263. §218. North West Forwarding Co. v. Mahaffey, 36 Kan. 162. §§168, 192. Northrop v. Wright, 7 HilL 476. §§77, 91. Northrup v. Bremer, 8 Ohio, 392. §§13, 133, 166, 167. • Norton v. Meailer, 4 Sawy. 603, 625. §§57, 104, 105. ■^ V. Shelby County, 118 U. S. 425. §64. V. Williams, 9 Iowa, 528. §§10, 192. Noyes v. Hall, 97 U. S. 34. §§198, 228. '- V. Horr, 13 Iowa, 570. §143. Nutrent V. Priebastch, 61 Miss. 402. §§10, 196, 198, 199, 212. NUTE.J TABLE OF OASES. [palmer. mite V. Kute, 41 N. H. 60. §?1S^, 222. Nye V. Moody, 70 Tex. 434. §§147, 149. 0. Oakland v. Murphy, 9 Pao. Ilepr. 483. §77. Oakly V. Ballard, Hemp. (U. S. C. Ct.),475. <;202. Oatman v. Fowler, 43 Vt. 462. §.56. Oconto V. Jerrard, 46 "Wis. 317. §§142, 143. Odd Fellows v. Masser, 24 Pa. St. 307 ; s. c. 64 Am. Dec. 675. §46. Odd Fellows Bk. v. Banton. 46 Gal. 603. §167. Odiorne v. Mason, 9 N. H. 30. §§65, 68. Odum V. Loomis, 1 Tex. Civ. App. §524. §45. O'Farrall v. Simplot, 4 Iowa, 381. §§92, 107, 121. Ogden V. Wallers, 12 Kan. 2S2. ^^G, 82, 152, 17S. -Ogle V. Ogle, 41 0. St. 359. §118. V. turpin, 102 111. 148. §175. Oglesby v. HoUister, 76 Cal. 'l36. §294. Oglesby Coal Co. v. Pasco, 79 111. 164. §§99, 101. Ohio Life Ins. Co. v. Ledyard, 8 Ala. 866. i?«4, 199. O'Keefe v. Handy, 31 La. Ann. 832. §§87, 119. Old Dominion Granite Co. v. Clarke, -is Gratt. 617. §42. Oliver v. Piatt, 3 How. (44 U. S.), 333. §§1.55, 210, 223. V. Sanborn, 60 Mich. 346. §224. Olivier v. Townes, 2 Mart. (N. S.), 93. ■ §2(57. Olson V. Heath, 37 Minn. 298. §45. O'Neill V. Douthitt, 40 Kan. 689; s. C. 39 Kan. 316. §175. V. Seixas, S5 Ala. 80. §19. V. Wabash, 4 Biss.4S2. §163. Oney v. Clendenin, 28 W. Va. 34. §70. Orcutt V. Moore, 134 Mass. 48. §254. Oregon Trust Co. v. Shaw, 5 Saw. 336. §§33, 174, 209. Ormsby v. Budd, 72 Iowa, SO. §89. V. Nolan, 69 Iowa, 130. §253. O'Kourke v. O'Connor, 39 Cal. 442. §198. Orrv. Lacy, 4 McLean, 243. §§61, 73. V. O'Brien. 55 Tex. 149. §50. Orth V. .Tennings. 8 Blackf. 420. §§10, 192, 199, 212. Orvis V. Newell, 17 Conn. 97. §§152, 176. Osboru V. Carr, 12 Conn. 195, 198. §205. V. Osborn, 62 Tex. 495. §182. Osborne v. Tunis, 1 Dutch. 633. §60. Oster V. Kobeneau,46 Mo. 595. §47. Oswald V. Grenet, 22 Tex. 94. §49. Otis V. Payne, 86 Tenn. 663. §§205, 216. V. Sill, 8 Barb. 102. §§257, 258. Owen V. Norrls, 5 Blackf. 479. §79. Owens V. Miller. 29 Md. 144. !jl2. V. Roberts, 36 Wis. 258. §238 P. Pacific Co. V. Anglin. 82 Ala. 492. §121. Padgett V. Lawrence, 10 Paige, 170; s. c. 40 Am. Dec. 272. §§207, 208. Page V. Arnim, 29 Tex. 53. §§7S, fiS. V. Ordway, 40 N. H. 253. §§253, 271. V. Waring, 76 X.Y. 463. §21. 722 Paige V. Chapman, 58 N. H. 333. §204. V. Lindsey, 69 Iowa, 593. §143. Paine v. Baker, 15 R. 1. 100. §107. ■ V. Benton, 32 Wis. 491. §253. -V.French. 4 Ohio, 318. §§171, 226. V. Hall's Safe Co., 64 Miss. 175. §§249. 251. V. Mason. 7 O.St. 198. §§12, 28, 2,52, 2.57. 25s. 269. V. Mooreland, 15 Ohio, 435; s. C. 45 Am. Dae. .585, §§199, 212. Palmer v. Bates, 22 Minn. 532. it!j:U, 232. v. Howard, 72 Cal. 293. §§24S 250. V. Palmer, 9 Gray (75 Mass.), 56. §58. V. , 48Vt. 69. §171. -V. Stevens, 11 Cush. 147. §62. PALMER. ] TABLE OF CASES. [PEASLET.; Palmer v. Williams, 24 Mich. 328. §§204, 205. Panoake v. Cauffman, 114 Pa. St. 113. §§32, 154. Papot V. S. W. Ry. Co., 74 Ga. 296. §§50, 134, 23S. Pardun v. Dobesberger, 3 Ind. 389. §105. Paris V. Lewis, 85 111. 597. §§154, 181. Parish Board v. Edrington, 40 La. Ann. 633. §§96, 187. Parke v. jSTeeley, 90 Pa. St. 52. §181 .' Parker v. Baines, 65 Tex. 605. §§233, 234. V. Baxter, 86 N. Y. 586. §250. V. Chance, 11 Tex. 518. §114. V. Conner, 93 N. Y. 118; S. C. 45 Am. Eep. 184. §§176, 178, 245. V. Coop, 60 Tex. 111. §§19, 114, 200. -v. Hall, 2 Head. 64l. §§40, 245. V. Hill, 8 Mete. (49 Mass.), 447. §1J4. V. Jacoby, 3 Grant's Cas. 300. §164. V. Kane, 4 Wis. 1; s. C. 65 Am. Dec. 283. §§1S0, 182, 221, 225, 239. V. Middlebrook, 24 Conn. 207. §40. V. Morrison, 46 X. H. 280. §271. V. Osgood, 3 Allen(S5Mass.), 4S7. §§221,222. -V.Phillips, 9 Cow. 94. §§129, 140. V. Spencer, 61 Tex. 155. §163. V. Washoe Mfng. Co., 49 N. J. L. 465. §146. Parkhurst v. Hosford, 21 Fed. Eepr. 827. §224, Parkistv. Alexander, 1 Johns. Ch., • 394. §§3, 4, 6, 152. Parraelee v. Simpson, 5 Wall. 81. §§144, 163. Parmenter v. Oakley, 69 Iowa, 388. §33. Parmentier v. Gillespie, 9 Barr, 86. §164. Parrett v. Shaubhut, 5 Minn. 323; s. c. 80 Am. Dec. 424. §§17, 145. Parry v, Kelly, 52 Gal. 334. . §114 Parsons v. Boyd, 20 Ala. 112. §§80, 129, 150. V. Lent, 34 N. J. Eq., 67. §136. Partridge v. Chapman, 81 111. 137. §205. V. Smith, 2 Biss. 183. §§147, 179, 207. Patrick v. Howard, 47 Mich. 40. §144. Patten v. Ins. Co., 40 N. H. 375. §241. — : Y. Moore, 32 N. H. 382. §§204, 205, 232. Patterson v. Collier, 75 Ga. 419. §95. V. De La Eonde, 8 Wall. 292. §§165, 173, 217. V. Gillies, 64 Barb. 563. §260. V. Lawrence, 90 111. 174. §118. Patton V. Brown, 1 Cooke, 119. §71. V. King, 26 Tex. 685; s. c. 84 Am. Dec. 596. §117. V. McDonald, 43 Mo. 93. §192. Patty V. Pease, 8 Paige, 277; S. C. 35 Am. Dec. 6S3. §21. Paul V. Carpenter, 70 N. C. 502. §61. V. Fnlton, 25 Mo. 156. §206. Faulk V. King, 86 Ala. 332. §§192, 277. Payne v. Bensley, 8 Cal. 260; s. C. 68 Am. Dee. 318. §204. V. McKinney, 30 Ga. 83. §56. V. Pavey, -29 La. Ann. 116, 117. §§4. 12, 16, 165, 173, 217. V. Treadwell, 16 Cal. 238. §120. Peabody v. Penton, 3 Barb. Ch. 451. §179. Peak V. Brinson,71Tex. 310. §117. Pearce v. Foreman, 29 Ark. 563. §20. • V. Jackson, 61 Tex. 642. §§114, 204. Pearsonv. Boyd,62Tex. .541. §234. V. Powell, 100 ]Sr. C. 86. §§148, 154. Pease v. Barbiers, 10 Cal. 436. §105. V. Kelly, 3 Or. 417. §20. ■ V. Odenkirchen, 42 Conn. 415. §265. Peasley v. McPadden, 68 Cal. 611. §§221,228, 238 " 723 FEAY. J TABLE OF CASES. [PHILLY. §74. Peay v. Pickett. 3 McCord (S. Cir.), 318. §riK. Peck V. Conway, 119 Mass. 5-10. §138. . V. Mallams, 10 JST. Y. 509. §17. V. McKellar, 33 Tex. 234. V. Vandenburg. 30 Cal. 11. §18-2. Peckham v. Haddock, 36 111. 38. §175. V. Hendren, 76 Ind. 47. §§■243, 244. Peet V. Commerce Ry. Co'., 70 Tex. 522. §114. V. spencer, 90 Mo. 384. §§211, 247, 2.50. 251. Pegram v. Owens, 64 Tex. 475. §§J0, 48, 94, 245. Pel'l V. McElroy, 36 Cal. 268. § .'31. Penfleld v. Dunbar, 64 Barb. 239. §205. Penning v. Jones, 57 Iowa, 37. §274. Penn. Salt Co. v. Neel, 54 Pa. St. 19. §174. People V. Bristol, 35 Mich. 28. §§41 , 151. V. Butler (Mich.), 42 jST. W. Repr. 243. §148. V. Clark, 7 N. Y. 385. §174. V. Hamilton, 17 111. App. 599. §269. V. Register of N. Y. 6 Abb. 180. §§63, 66, 71. V. Snyder, 41 N. Y. 397. §§66, 69, 87, 144. V. Spicer, 99- IST. Y 525 §§174. 190." People's Saving Bank v. Bates, 120 U. S. 556. §207. Peppard v. House, 37 Minn. 280. §242. Pepper v. George, 51 Ala. 190. §209. V. O'Dowd, 39 Wis. 538. §234. Pepper's Appeal, 77 Pa. St. 373. §§33, 40, 174, 209. Pereau v. Frederick, 17 Neb. 117. §89. Perkins v. Emerson, 59 Me. 319. §§275, 27G. — ■■ — V. Sterne, 23 Tex. 561; s. C. 76 Am. Dec. 72. §§204. 205. •V. Strong, 22 Neb. 725. §§16, 151. Perrin v. Reed, 35 Vt. 2. §134. Periy v. PeriT, 99 N. C 270. §102. V. Priebatsoh, 61 Mi.-s.-402. §200. Pelers v. Clements, 46 Tex. 115. §55. V. Ham, 62 Iowa, 656. §143. V. Parsons, 18 Neb. 191. §253. Peterson v. Kaigler, 78 Ga. 245. §§246, 267. -^ V. Kilo-ore, 58 Tex. 88. §144. Lowry, 48 Tex. 408. §§48, 55, 65. V. McCuUough, 50 Ind. 35. §235. Peto V. Hammond, 29 Beav. 91. §§103, 165. Petrie v. Woodworth, 3 Cal. 219. §42. Petry v. Ambrosher, 100 Ind. 510. §§12, 216. Peychand v. Citizens' Bank, 21 La. Ann. 262. §4. Peyton v. Barton, 53 Tex. 298. §234. Pfeap V. .Tones, 50 Md. 263. §194. Plielan v. Brady, 19 Abb. N. Cas. 2S9. §233. Phelps V. Barnhart, 88 N. C. 333. §§7, 54, 132.189, 216, 217. rockier. 61 Iowa, 340. §172. V. Hubbard, 51 Vt. 489. §251. V. Morrison, 24 N. J. Eq. 195. §205. Phifer v. Barnhart. 88 N. C. 333. §§7, 54, 132, 189, 216, 217. Philbrcok v". Delano, 29 Me. 414. §§4, -20, 203. Phillips V. Bank, 18 Pa. St. 394. §209. V. Clarke, 4 Met. 348; S. C. 83 Am. Dec. 471. §151. V. Green. 3 A. K. Marsh. 7; S. C. 13 Am. Dec. 124. §105. V. Johnson, 64 N. H. 393. §271. §75. ■ V. People, 11 111. App. 340. V. Porter. 3 Ark. 18; S. C. 36 Am. Dec. 448. §181. V. Ruble, L'itt, Sel. Cas. 221. V. South Park Bk., 119 111. 626. §177. Philly V. Sanders, 11 O. St. 490. S22. 724 PI ATT. TABLE OF CASES. [potts. riatt V. St. Clair, 7 Ohio. 165. §181. V. Vattier, 1 McLean, 146. §2-25. Pjclvens V. Knisely, 29 W. Va. 1; s. C. (i Am. St. Kep. 622. §§9, 86, 90, 98, 111, 121. 186. Pickerina; V. Busk, 15 East. 44. §27. Plcketl V. B.inks, 11 Sm. & M. 446. §§196, 198. V. Barron, 29 Barb. 505. V. Jones, 63 Mo. 195, 199. §204. ^210. Pico V. Gallardo, 52 Cal. 206. §32. Pierce V. Fannce,47 Me. 547. §209. V. Fort, 60 Tex. 464. §89. V. Hokes, 11 Harris, 231. §70. V. Indseth, 16 Otto. (106 U. S.), 546. s;73. V. Taylor, 23 Me. 246. §160. V. Turner, 5 Cranch, 154. §195. Pierson v. Manning, 2 Mich. 464. §211. Piesler v. Piester, 22 S. Oar. 139. §§133, 135, 194. Pike V. Colvin, 67 111. 227. §246. V. Gavin, 29 Me. 183. §22. ■ V. Gooduow, 12 Allen, 472. §180. Pilcher V. Smith, 2 Head. 209. §117. Pillow V. Roberts, 13 How. (U. S.), 472. §73. V. Shannon, 3 Yerg. 508. §205. Pincknev v. Burrage, 31 N. J. L. 21. §76. Piper V. May, 51 Ind. 283. §118. Pique V. Arendale, 71 Ala. 91. §228. Pitman v. Sofley. 64 111. 135.. §225. Pixley V. Huggius, 15 Cal. 127. §§114. 192, 212. Piano Co. V. Griffith, 75 Iowa, 102. §253. Plant V. Shryock, 62 Miss. 821. §§153,177. V. Smvthe, 45 Cal. 161. §25. Piatt V. Preston, 3 Fed. Repr. 394. §254. V. Squire, 12 Met. (53 Mass.), 494. §§171, 226. ■ V. Stewart, 13 Blatchf. 481. §§260. 261. Plumb V. Fluitt. 2 Anstr. 432. §221. Plumer v. Robertson, 6 Serg. & R. 179. §232. Poage V. Wabash, 24 Mo. App. 199. §§178, 181, 221. Point Pleasant v. Cranmer, 40 X. J. Eq. 81. §49. Polk V. Chaison, 72 Tex. 500. §471 . V. Cosgrove, 4 Biss. 437. §§180, 239. V. Gallant, 2 Dev. & Bat. Eq. 395; S.C. 34 Am. Dec. 395. §212. V. Reynolds. 31 Md. 106. !;28. Pollard V. Cocke, 19 Ala. 188. §199. V. Lively, 2 Graft. 216. §56. Pomeroy v.' Latting, 15 Gray, 435. §§31, 170. V. Stevens, 11 Met. 244. §§222, 229. Ponder v. Scott, 44 Ala. 241. §182. Ponton V. Ballard, 24 Tex. 619. §232. Pontz V. Reggio, 35 La. Ann. 637. §173. Pope V. Allen, 90 N. Y. 298. §§233, 234. V. Durant, 26 Iowa, 233. §210. 238. ■ V.Graham, 44 Tex. 196. §47. ■ V. Henry, 24 Vt. 560. §8. ■V.Pope, 40 Miss. 516. §§210, Port V. Embree, 54 Iowa, 14. §208. Porter v. Byne, 10 Ind. 146; s. c. 71 Am. Dec. 305. §147. V. Dement, 35 111. 478. §§55, ,56. 148. V. .Judson, 1 Gray. 175. §74. V. Parmley, 52 N. Y. iss. §257. • V. Robinson, 3 A. K. Marsh, 2.53. §191. Portis V. Hill, 30 Tex. 529; s. c. 98 Am. Dec. 481. §§189.216. Portwood V. Outton, 3 B. Mon. 247. §146. Po'st V. Embree. 54 Iowa, 14. §210. Potter V. Dooley, 55 Vt. 512. §§16, 17. V. Irish. 10 Gray (76 Mass.), 416. s^275. V. McDowell, 43 Mo. 93. §§199, 212. V. Sanders. 6 Hare. 1. §2. V. Strausky, 48 Wis. 235. §§145, 174, 175. Potts V. Davenport, 79 111 . 455. §48. ». Dowdall, 3 Houst. 369. §161. V. N. J. Arms, etc., Co., 17 N. J. Eq. 395. §252. 725 POUNS. TABLE OF CASES. [eandall. Pounsv.Winiams,48Tex. 141. Powell V. Monsom, 3 Mason, §115. Powers V. Bryant, 7 Port. 9. V. Freeman, 2 Lans. §261. V. Green, 14 111. 386. V. Jackson, 50 Cal. 429. V. Lafler, 73 Iowa, §§168. 170 V. JEcFerran, 2 Serg. 44. §§158, 184. Poydras v. Laurans, 6 La. 770. §229. Pratt V. Battels, 28 Vt. 685. . ■ 109. V. Clark, 57 Mo. 189. Prescott V. Beyer, 34 Minn §89. , 349. §73. 127. §250. §49. 283. & K. Ann. §§105, §20. , 493. V. Hayes, 42 N. H. 56. §64. Preston v. Nash, 76 Va. 1. §§86, 203, 205, 228. V. Southwiok, 42 Hun, 291. §§139,255. V. Witherspoon, 109 Ind. 457; s. C. 58 Am. Rep. 417. §247. Prewett v. Graves, 5 J. J. Marsh, 119. §§9S, 101. Price V. Cole, 35 Tex. 461. §42. V. Hart, 29 Mo. 171. §119. V. Martin, 46 Miss. 489. §154. V. McComas, 21 Neb. 195. §253. V. McDonald. 1 Md. 403; s. C. 54 Am. Dec. 057. §§181, 182, 189, 205, 217, 222, 226. ■ Priest V. Eice. 1 Pick. 164. §198. Pringle v. Dimn, 37 Wis. 449; s. C. 19 Am. Rep. 772. §§S, .55, 126, 136, 143, 145, 154, 181, 182, 226, 240. Pritchett V. Sessions, 10 Rich. Law, 293. §241. Proctor V. Cooper, 2 Drew. 1. §42. Prosser v. Rice, 28 Beav. 68. §219. Prouty V. Clark, 73 Iowa, 55. §20. Provost V. De la Houssaye, 5 La. Ann. 610. §114. Prudent V. Alden, 23 Pick. 184; s. C. 34 Am. Dec. 51. §181. Pry V. Pry, 109 111. 466. §154. Puffer V." Reeves, 35 Hun. 480; s. C. 15 Abb. N. Cas. 388. §250. Pulvertorl v. Pulvertorf, 18 Ves. 84. §199. Purdy V. Coar, 109 N. T. 369; s. C. 4 Am. St. Rep. 491. §144. Purdy V. Huntins-ton,46Barb. 389; s. c. 1 Am. St.Tlep. 532. §§136, 138, l.")6, 170, 174. 209. V. ,42 N. Y. 343. §31. Purvis V. Robinson, 1 Bay, 485. §56. Putman v. Cushing, 10 Gray (76 Mass.), 334. §274. Putnam V.White, 76 Me. 551. §§19, 32, 39. Pyle V. Maulding, 7 J. J. Marsh, 204. §§1, 126. V. Warren, 2 Neb. 241. §254. Q. Quattlebaum v. Black, 24 S. C. 48. §175. Quick V. Milligan, 108 Ind. 419; s. C. .58 Am. Kep. 49. §1.54. Quimby v. Boyd, 8 Colo. 194. §82. Quimet v. Siriois, 124 Mass. 162. §57. Quincy Coal Co. v. Hood, 77 111. 68. §244. Quinnv. Davis, 78Pa. St.l5. §247. V. Logan, 67 Tex. 601. §§47, 136. Quiriague v. Dennis, 24 Cal. 154. §273. E. Racklefe v. Norton, 19 Me. 274. §84. Eacouillat v. Rene, 32 Cal. 450. §182. V. Sausevain, 32 Cal. 376. §146. \ Railroad v. Phillips, 60 111. 193. §250. Railway Co. v. Joliet, 79 111. 25. §49. Raines v. Walker, 77 Va. 92. §§54, 144, 189. Ralls v. Graham, 4 Mon. 120. §184. Ralston v. Moore, 83 Ky. 571. §§69, 91. 92, 97. Ramsay's Appeal, 2 Watts, 232. §10. Ramsdell v. Fuller, 28 Cal. 38. §§177, 182. Ramsey v. Jones, 41 O. St. 685. §154. V. Riley, 13 Ohio, 157. §150. Randall V.Baker, 20 N.H. 335. §271. V. Silverthorn, 4 Pa. St. 173. §230. 726 KANDOLPH.j TABLE OF CASES. [kiuer. Karidolph v. Meeks, Mart. & Y. 58. §233. ■Kaimey v. Hardy, 43 O. St. 157. §§164, 216, 222, 228, 235. — V. Hogan, 1 Tex. Un. Gas. 253. §§14,, 37, 166, 199. Kansom V. -Sohmela, 13 ISTeb. 77. §196. Ransone v. Frayser, 10 Leiarh, 592. §231. Ratcliff V. Longston, 18 Md. 391. §211. Kateau V.Bernard, 3 Blatchf. 244. §245. Katteree v. Conley, 74 6a. 153. §225. Eaverty v. Fridge, 3 McLean, 230. §§97, 120. Eawles v. Deshler, 3 Keyes, 572. §§2+7, 250. Eavvley v. Berrian, 12 111. 198. §72. Eawlingsv. Bean, SOMo. 614. §§41, 218, 269. V. Hunt, 90 N. C. 270. §273. Eawson v. Eichards, 69 Wis. 643. §251. V. Tuel, 47 Me. 506. §251. Eay V. Crouch, 10 Mo. App. 321. §106. V. Ray, 1 Idaho. 566. §114. Raymond v. Morrison, 59 Iowa, 371. §27. Raynor V.Wilson, 6 Hill, 469. §§162, 214. Bead v. Richman, 1 Q-reen, 49. §3. Reasoner V. Edmundson, 5Ind. 393. §75. Record v. Williams, 7 Wheat. 59. §28. Redden v. Miller, 95 111. 336. §§216, 283 Redewill v. Glllen (N. M.), 12 Pac. Eepr. 872. §§247, 249. Reed v. Burlington, etc., Jiy., 72 Iowa, 166. §244. V. Douthit, 62 111. 348. §144. V. Eanes, 19 111. 595. §250. V. Gannon, 50 N. Y. 345. §§40, 245. V. Gorman, 3 Daly, 414. §204. 56. -V. Howard, 71 Tex. 204. §95. -V. Kemp, 16 111. 445. §§53, - V. Ownby, 44 Mo. 204. §10. Reeder v. Burr, 4 Ohio, 446, 458. §§177, 222. Reeder v. The George's Creek, 3 Hughes, 584. §270. Rees v. Chicago, 38 111. 322. §49 V. Coats. 65 Ala. 256. §273. Reese v. Corlew, 60 Tex. 70. §47. Reeves v. Hayes, 95 Ind. 521. §§33, 173, 175. • V. Vinacke, 1 McCrary, 213. §181. Reisv.Lawrenoe, 63Cal. 129. §118. Eenick v. Dawson, 55 Tex. 102. §§177, 181, 213. v.Frazier,55Tex. 102. §221. V. Ludington, 14 W. Va. 367 . §42. Repp V. Repp, 12 Gill & J. 341. §207. Eeyuolds v. Case, 60 Mich. 76. §§-i.57, 261. V. Darling, 42 Barb. 418. §163. ■ — y. Harris, 14 Cal. 667; s. C. 76 Am. Dec. 459. §§48, 191. ■ V. Kingsbury, 15 Iowa, 238. V. Euckman, 35 Mich. 80. §79. §224. Rhea v. Rhenner, 1 Pet. 105; s. C. 7 Curtis, 478. §118. Rhines V.Phelps, 3 Gilm. 460. §250. Rhodes v. Canfield, 8 Paige, 545. §§31, 170. Rhutasel v. Stephens, 68 Iowa, 627. §§233, 253. Rice V. Cobb, 9 Cush. 303. §266. ^v. Dewy, 54 Barb. 455. §§171, 226. V. Kohn, 70 Wis. 323. §258. V. Peacock, 37 Tex. 392. §§107,111. V. Eice, 2 Drew. 1. §230. Rich V. Flanders, 39 N. H. 304. §97. V. Roberts, 48 Me. 548. §§41, 210, 264. Richards v. Myers, 63 Ga. 762. E§§133, 169, 192. V. Randolph, 5 Mason, 115. §73. Richardson v. Henry (Iowa), iO'S. W. Repr. 115. §19. V. White, IS Cal. 102. §43. Riohesou v. Richesou, 2 Gratt. 497. §169. V. Simmons, 47 Mo. 20. §118. Ricks V. Reed, 19 Cal. 551. §54. Rider v. Edgar, 54 Cal. 127. §274. 727 KIDGLEY. ] TABLE OF CASES. [roney. Eklgley v. Howard, 3 H. &. McH., 211. §89. Rklgwny & Co.'s Appeal, 15 Pa. St. 177. §42. Kidley v. McGee, 2 Dev. 40. §151. Riecke v. We^tenlioff, 10 Mo. App. S5S. §§90, 95. Kies V. Luilington. 13 Wis. 276; s. C. 80 Am. D'eo. 741. §172. Rigsr V. Fuller, 54 Ala. 141. §235. Kiggs V. Boylan, 4 Biss. 445. §§87, 119. Righter v. Forrester, 11 Bu.sh, 278. §212. Rigler v. Cloud, 2 Harris, 361. §79. Riley v. Quigley. 50 111. 304; s. C. 99 Ara. Dec. 516. §228. V. Rice, 40 O. St. 441. §217. Ring V. Steele, 3 Keyes, 450. §156. Ringgold V. Waggoner, 14 Ark. 69. §§222, 224. Ringo V. Wing. 49 Ark. 457. §255. Ringoldv. Bryan, 3 Md. Ch.'4SS. §222. Ripoll V. Morena, 12 Rob. 560. §184. Rippetoe v. Dwyer, 65 Tex. 703. §239. Roach V. Riverside Co., 74 Cal. 263. §43. V. Karr, IS Kan. 529. §§240, 241. Roads V. Symmes, 1 Ohio, 315. §54. Roane v. Baker. 120 111. 308. §172. Koarty v. IMitehell, 7 Gray, 243. §111. Robbing V. Harris, 96 N". C. 557. §110. ■ V. Moore (111.), 21 N". E. Repr. 934. §154. Roberts v. Austin, 26 Iowa, 327. §§211, 2.14. ■ V. Bauer, 35 La. Ann. 453. §§147, ISO. ■ V. Bourne, 23 Me. 165; s. c' 39 Am. Deo. 614. §§27, 183. V. Grace, 16 Minn. 126. §216. V. Halstead, 9 Pa. St. 32; 49 Ara. Dec. 541. §175. V. McClelland, 82 111. 534. §48. •v.Mosley,C4 JIo. 407. §§216, 222. Robertson v. Brown, 5 La. Ann. 154. §136. V. Kennedy, 1 Stew. 245. §56. Robertson V. Queen (Tenn.), 11 S. W. Repr. 38. §186. Robeson's Appeal, 117 Pa. St. 62S. §201. Robidoux V. Cassilegi, 10 Mo. App. 516. §70. Robinson v. Lake, 14 Iowa, 424. §223. • V. Levi, 81 Ala. 134. §245. — V. Rice, 3 Mich. 235. §276. V. Thrailkill, 110 Ind. 117. §233. V. VVilloughby, 70 N". C. 358. §§12, 30. 165. Rochereau v. Delacroix. 26 La. Ann. 584. §§187,196, 217. Eockafellow v. Oliver, 41 Ark. 169. §117. Rockwell V. McGovern, 69 ST. Y. 294. §204. Rodemeyer v. Rodman, 5 Iowa, 426. §101. Rodgers v. Burchard, 34 Tex. 453, . §184. V. Gibson, 4 Yeates, 111. §199. Roe V. Maund, 48 Ga. 461. §133. • V. Tranmar, Willes, 682. §125. Rogersv.Adams, 66Ala. 600. §§76, 79, 125. V. Benner, 45 K. Y. 379. §§192, 199. V. Gibson, 4 Yeates, 111. §10. V. Haskins, 14 Ga. 166. §224. V. Jones, 8 N. H. 264. §§182, 220, 228. ' ■ V. Tucker, 94 Mo. 346. §§168, 172. V. Wiley, 14 111. 65; s. C. 56 Ara. Dec. 491. §§182. 223. V. Whitehouse, 71 Me. 222. §251. Rogers' Locomotive Works v. Lewis, 4 Dill. 158. §248. Rohrer v. Roanoke B'ank, 83 Va. 589. §§98,101,186. Roll V. Rea, 50 N. J. L. 266. §§154, 236. ^^ ' Rolland v. Hart, L. R., 6 Ch. 678. §§216, 242. 243. Rollins V. Henry, 78 N. C. 342. §§43, 130. v. Menager, 22 W. Va. 461. Roney v. Moss, 76 Ala. 491, ISS106. .107. 728 KOOD.] •TABLE OF CASES. [SANDERS. Kood V. Welch, 28 Conn. 157. §253. Roouey v. Michael, 84 Ala. 585. §§117, 119. Root V. Harl, 6'i Mich. 420. §2.56. Roseman v. Miller, 84 111. 21)7. §§204, 205. Rosenheim v. Hartsock, 90 JIo. 357. §43. Rosenthal v. Griffin, 23 Iowa, 263. §77. V. Mayhugh, 33 O. St. 155. §118. V. Ruffin, 60 Md. 324. §29. Ross V. Kornrumpf, 64 Tex. 390. §§114, 200. ■ V. McLuug,6Fet. 2S3. 128. §S7, V. Prentiss, 4 McLean, 106. §200. V. Whitson, 6 Yerg. 50. §20. V. Worthington, 11 Minn. 438; S. C. SS Am. Dec. 95. §§97, 145. Rosserv. Cheney, 61 Ga. 468. §221. Rountree v. Britt, 94 IST. C. 104. §273. Routh V. Spencer, 3SInd. 393. §§4, 14. Rowley v. Bartholomew, 37 Iowa, 374. §253. V. Bigelow, 12 Pick. 307. §245. Roxborough v. Messick, 6 Ohio St. 448; S. C. 67 Am. Dec. 346. §§202, 204, 208. Royal V. Lisle, 15 Ga. .545. §234. Roylance v. San Luis Hotel, 74 Cal. 273. §46. Ruffier -v. Womack, 30 Tex. 332, 340. §231. Ruftner v. McLenan, 16 Ohio, 639. §§100, 103, 108. Ruggles V. Williams, 1 Head. 141. §§4, 132. Ruls V. Chambers, lo Tex. 586. §96. Ruleman v. Pritchett. 56 Tex. 482. §§107, 110. Rumlelt V. Clemens, 10 Wright, 455. §99. Rupert V. Mark, 15 111. 540. §§158, 237. Rush V. Mitchell, 71 Iowa, 333. §205. Rushin v. Shields, 11 Ga. 636; s. C. 56 Am. Dec. 436. §§124, 129. Buss V. Wingate, 30 Miss. 440. §§71, 72. Russell V. Baptist Union, 73 111. 341. §90. V. Fillmore, 15 Vt. 130. §S41, 247, 254. V. Petree, 10 B. Mon. 184. §§1S2, 223, 226. V. Rumsey, 35 111. 362. §97. ■ V. Sweezey, 22 Mich. 235. §§226, 241. Rust V. Goff,94Mo.511. §§90,121. Ruth V. Ford, 9 Kan. 17. §207. Rutherford v. Tracy, 48 Mo. 3:^5. §49. Ryan v. Carr, 46 Mo. 483. §823, 26, 54. V. Chew, 13 Iowa, 589. §173. V. Clanton, 3 Strobh. L. 411. §266. S. Sacerdotte v. Duralde, 1 La. 485. §150. Sacrider v. Brown, 3 McLean, 483. §64. Saddler v. Lewes, 42 Ark. 148. §245. Saffold V. Wade, 51 Ala. 214. §207. Saint Andrews Church v. Tomp- kins, 7 Johns. Ch. 14. §17}. Saint Ci'oix Land Co. v. Ritchie, 73 Wis. 409. §}43. Saint John v. Conger, 40 111. 537. §§56, 158. V. Spalding. 1 Thomp. & C. (N. Y.), 483. §209. Salisbury v. Cutting, 50 Conn. 113. §161. Salter v. Baker, 54 Cal. 140, §§30, 209. " ' Saltus V. Everett, 20 Wend. 267; s. c. 32 Am. Dec. 541. §§40, 154, 245, 248. Sample V. Irwin, 45 Tex. 567. §67. Sampson v. Ohleyer, 22 Cal. 200. §44. V. Thornton, 8 Mete. 275. §144. Sanborn v. Adair, 29 IST. J. Eq. 338. §§13, 133. 166. V. Robinson, 54 N. H. 239. §180. Sanders v. Harris, 5 Humph. 343. §4. V. Keber, 28 O. St. 630. §249. V. McAfee, 42 Ga. 250. §202. V. Papoon, 4 Fla. 465. §§57, 246, 255. 729 SANDFORD. ] TABLE OF CASES. [SCRUGGS. Sandford v. Wilson, 2 Tex. Civ. App., i?-248. (;24S. Sanford v. Bulkley, 30 Conn. 344. §78. V. Weeks. 3S Kan. 319; s. C. 16 Pac. Kepr. 4(i:>. §§8, 233. Sang-amon Coal Co. v. Wiggerhaus, 122 lU. 279. §244. Sanger v. Craigiie, 10 Vt. 555. §147. V. Freie Press Co. (Wis.), 41 N". W. Kepr. 43S. §256. V. Guenther, 73 Wis. 354. ^§196, 2,50. San key v. Havvley, 118 Pa. St. 30. §32. San Leandro v. LeBreton, 72 Cal. 170. §49. Sappington v. Oesohli, 49 JIo. 244. §§10, i;i2. Sargent v. Howe, 21 III. 148. §210. • V. Metcalf, 5 Gray, 306; "s. c. 66 Am. Dec. 368. §249. ■ V. Sturm, 22 Cal. 350. §§208, 212. Sartor V. Bolinger, 59 Tex. 411. §75. Sartwell v. North, 144 Mass. 188. §238. Satchell v. Doram, 4 O. St. ,542. §49. Satterfield v. Malone, 35 Fed.Repr. 445. §§162.224.239,241. Saunders v. Hartvvell, 61 Tex. 680. §48. Sawver V. Adams, 8 Vt. 172. §§136, 142. V. Cox, 63 111. 130. §60. V. I'enuell, 19 Me. 167. §§16, §144. V. Prickett, 19 Wall. 146. §204. Savior V. Romanet, 52 Tex. 562. §112. Sayre v. Hewes. 32 'N. J. Eq. 652, 1..56. §§41.270. Scales V. AVilsey, 11 Iowa, 261. §143. Scanlan v. Wright, 13 Pick. 523; s. c. 25 Am. Dec. 344. §62. Scarborough V. Arrant, 25 Tex. 129, 132. §38. Soharfenburg v. Bishop, 35 Iowa, 60. §82. Schell V. Stein, 76 Pa. St. 398; s. C. 18 Am. Rep. 416. §§17, 142, 170. Scherfy v. Argenhright, 1 Heisk. (Tenn.)., 128. §64. Schleicher v. Markword, 61 Tex. 99. §42. Schley v, Pullman Car Co., 120 U. S. .575. §§9. 76. 77, 80, 81, 106. Scamidt v. Bender, 39 Kan. 437. §258. Sc'hnee v. Schnee, 23 Wis. 377. §135. Schofield V. Jennings, 68 Ind. 232. §78. SchoUenberger, ^x parte, 96 U.- S. 377. §263. School Di=t. V. Taylor, 19 Kan. 287-. §228. Schrader V. Decker, 9 Barr, 14; s. C. 49 Am. Dec. ,538. §§87, 89, 90. Schramm v. Gentry, 63 Tex. 583. §86. Schroeder v. Gurney, 73 N. Y. 430. §§10,192. Sc'hultz V. Moore, 1 McLean, 520. §§S, 52, 68, 71. Sch'ultze V. Honfes, 96 111. 335. §§205, 210. Schumpert v. Dillard, 55 Miss. 348. §§208, 210. Schuster v. La Londe, 57 Tex. 28. §38. Sehutt V. Large, 6 Barb. 373. §§4, 153, 155, 156, 219. Schuyler v. Broughton, 70 Cal. 282. §182. Schwallback v. Chicago, etc., .69 Wis. 292; s. C. 2 Am. St. Rep. 740. §§177. 228, 233. Schweiss v. Woodruff (Mich.), 41 N. W. Repr. oil. §49. Scionneaux v. Wagnespack, 32 La. Ann. 283. §173. Scott V. Battle, 85 N. C. 184. §117. V. Calvit, 3 How. (Miss.), 158. §50. V. Delahunt, 65 N. Y. 128; s. C. 3 Lans. 372. §276. V. Elkins, 83 N. C. 424. §234. V. Gallagher, 11 Serg. & K. 347; s. c. 16 Am. Dec. 508. §§70, 71, 230. V. Hickman, Hemp. 275. §17. Leather, 3 Yeates, 184. §§56, 134. V. Middleton, etc., Ry., 86 N. Y. 200. §242. V. Scott, 95 Mo. 300. §144. Soribner v. Lockwbod,9 Ohio, 184. §§199. 212. Scruggs V. Scruggs, 41 Mo. 242. §108. 730 SECREST.] TABLE OF CASES 121 [SHIRLEY. Seorest v. Jones, 21 Tex. §§129. 130. V , 30 Tex. 596. §§.i6, Seevessv. Delashmut, lllowa, 174; S. C. 77 Am. Dec. 139. §§10. 209. Seixas V. Citizen's Banli, 38 La. Ann. 424. §§238, 244. Sellers v, Sellers, 98 N. C . 13. SS84, 131, 150. Seltan v. Gerdan, 48 Hun, 537. §247. Semon v. Terhune. 40 N. J. Eq. 364. §§142, 160, 161. Seneca Bk. v. Neass, 5 Denio, 329. §244. Senter v. Lambeth, 59 Tex. 259. §20. Sergeant v. Ingersoll, 15 Pa. St. 343. §223. Sessions v. Reynolds. 7 Sm. & M. (15 Miss.), 130. §69. Setter v. Alvey, l.i Kau. 157. §154. Sewall V. Haymaker, 127 U. S. 719. §§71, 87, 88, 98, 101, 117, 186, 189. Seward v. Jackson, 8 Cow. 406. §204. Sewellv. Holland. 61 Ga. 608. §2.28. Seymour v. Darrow, 31 Vt. 122. §§31, 137, 180. , V. McKinstry, 106 N. Y. 230. §231. Shackelford v. Beck, 80 Va. 404. §45. Shaffer v. Pickrell, 22 Kan. 619. §253. Shaller V. Brand. 6Binn.435; s. c. 6 Am. Dec. 489. §109. Shanks v. Lancaster, 5 Gratt. 110. §39. Shannon v. Hall, 72 111. 354; S. C. 22 Am. Rep. 148. §§30, 187. Share v. Anderson, 7 Serg. & R. 43; s. C. 10 Am. Dec. 421. §65. Sharp V. Fly, 9 Baxt. 4. §§20, 211. V. Hamilton, 12 IST. J. L. 108. §§80, 91. V. Lumley. 34 Gal. 611 . §44. V. Shea. 32 N. J. Eq. (6 Stew.), 43. §§199,212. Sharpe v. Orme, 61 Ala. 263. §78. V. Pearce, 74 JST. C. 600. §253. Shattuck V. Beardsley, 46 Conn. 386. §47.- V. The People, 4 Scam. 477. §72. Shaughnessey V. Lewis, 130 Mass. 355. §254. Shaw V. Chandler, 36 Miss. 296. §276. V. Neale, 6 H. L. Cas. 581. §42. V. Poor, 6 Pick. 86; s. C. 17 Am. Dec. -347. §§58,78. V. Wiltshire, 65 Me. 485. §§174. 235. Shawhan v. Wherritt, 7 How. 627. §213. . Shearn v. Robinson, 22 S. Car. 32. §228. Sheets-Tf. Allen, 8^ Pa. St. 47. §28. Sheldon v. Benliam, 4 Hill, 129; s. C. 40 Am. Dec. 271. §64. V. Conner, 48 Me. 584. §§41, 218. V. Holmes, 58 Mich. 138. §175. V. Stryker. 42 Barb. 284; s. C. 27 How. 387. §§56, 77, 79, 129. Shelley v. Winder, 38 La. Ann. 182. §20. Shellhouse v. State, 110 Ind. 509. §49. Shelton v. Aultman, 82 Ala. 315. §§90. 121. Shepard v. Shepard, 36 Mich. 173. §225. Shephardv. Carriel,19Ill. 313. §76. Shepherd v. Burkhalter, 13 Ga. 443 ; s. C. 58 Am. Dec. 523. §§27,143, 146, 199. V. Orleans, 2 La. Ann. 100. §173. Sheppard V. Harrison, 54 Tex. 91. §'i6. Sherman v. Bemis, 58 Wis. 343. §43. V. Kane, 86 iSr. Y. 57. §231. Sherrill V. Sherili, 73 N. C. 8. §217. Sherrins:ton v. Yates, 12 Moes. & Wei. 855. §213. Shields v. Dyer, 86 Tenn. 41, 44. §§169. 170. V. Netherland, 5 Lea, 193. §§87, 89. — V. Shiff, 124 U. S. 351. §173. ShifSiet V. Morelle, 68 Tex. 382. §40. Shinn v. Hicks, 68 Tex. 277.. §95. Shippen v. Whittier, 117 111. 252. §1.54. Shirley V. Fearne, 33 Miss. 653; s. C. 69 Am. Dec. 375. §126. 731 SIItRRAS. ] TABLE OF CASES. [smith. Shirras v. Craig, 3 Cranch, 34. §§49, 149. 203. Stionk V. Brown, 61 Pa. St. 320. §97. Short V. Conlee, 28 111. 219. §81. Shove V. Larsen, 22 Wis!. 142. §§6, 143. Show V. Wiltshire, 65 Me. 485. §31. Shryer v. Nickell, 55 Mo. 264. §94. Shryock v. Cannon, 39 Ark. 454. §186. Shuler v. Boutwell, 18 Hun, 171. §•269. Shumate v. Keavis, 49 Mo. 333. §222. Sibley v. Haslam, 75 Ga. 490. §131. — V. Lefflngwell, 8 Allen, 584. §§222, 229. Sidener v. Bible, 43 Ind. 230. §§41. 254. V. Parey, 77 Ind. 241 . §175. Sidwell V. Burney, 69 Mo. 144. §§66, 70, 84. Sieman v. Sohurck, 29 N". Y. 528. §§190, 212. Siemers v. Kleburg, 56 Mo. 196. §67. Sigourney v. Larned, 10 Pick. 72. aai. — V. Munn, 7 Conn. 324. §224. Sigworth V. Meriam, 66 Iowa. 477. §192. Silver Bow Co. v. Lowrey, 6 Mont. 288. §§248, 249. Simmons v. Havens. 101 N. Y. 427. — v. North. 3 Sm. & M. 67. §212. Sirams v. Morse, 4 Hughes, 579. §223. V. Kichardson, 2 Litt. 274. §205. Simon v. Sewell, 64 Ala. 261. §151. Simpson v. Blount, 3 Dev. L. 34. §223. V. Levering, 3 Bush, 458; s. C. 96 Am. Dec. 252. §§64. 84. ■ V. Montgomery, 25 Ark. 36."); S. C. 99 Am. Dec. 228. §§61, 94, 155, 216. V. Morris, 3 Jones, 411. §261 . V. Shackelford, 49 Ark. 63. §247, V. Simpson, 93 N. C. 373. §§98, 129. Sims V. Hammond, 33 Iowa, 368. §§156, 168. Sims V. Kay, 96 N. C. 87. §110. Sinclair v. Slawson, 44 Mich. 123; s. C. 38 Am. Kep. 235. §143. Singer v. Chalmers, 2 Utah, 542. §209. V. Rook, 84 Pa. St. 442; s. c. 24 Am. Kep. 204. §§89, 121. V. Scheible, 109 Ind. 575. §181. Singer Co. v. Graham, 8 Or. 17; s. c. 34 Am. Rep. 566. §149. Singleton v. School Dist. (Ky.), 10 S. W. Repr. 793. §223. V. Young, 3 Dana, 559. §261. Sinker v. Comparet, 62 Tex. 470. §§247, 249. Sisters v. Catholic Bishop. 86 III. 171. §90. Sitler V. McComas, 66 Md. 135. §§71, 75. Skiff V. Solaco,, 23 Vt. 279. §267. Skinner v. Fletcher, 1 Ired. 813. §10.i. Slaton V. Singleton, 72 Tex. 209. §.51. Sloan V. Owens, 79 Mo. 206. §57. Small V. Stagg, 95 III. 39. §164. Smilpy V. Smiley, 114 Ind. 258. §144. Smith V. Acker, 23 Wend. 653. §254. V. Allen, 5 Allen, 454. §204. V. Allis, 52 Wis. 337. §§71, 87, 89. 108. V. Anderson, 33 Minn. 25. §134. V. Ayer, 101 U. S. 320. §§221, 238. V. Benson, 1 Hill. 176. §252. V. Board of Water Com'rs, . 38 Conn. 208. §244. V. Boyd, 101 N". Y. 473. §80. V. Bynum, 92 N. 0. 108. §§169, 171. V. Clews, 105 K. Y. 283. 251. 241. 78. •V. Dall,13Cal. 510. §150. - V. Denton, 42 Iowa, 48. §§216, ■ V. Elliott, 39 Tex. 201. §81. ■ V. Fields, 79 Ala. 335. §273. ■ V. Garden. 28 Wis. 685. §76. ■ V. Head, 75 Ga. 755. §119. ■ V. Hunt, 13 Ohio, 260. §§57, — — V. Hutchings, 30 Mo. 385. §266. V. Jenks, 1 Den. 580. §§261, 274. 732 SMITH.] TABLE OF CASES. [SPAKROW. Smith V. Jones, 35, Kan. 492. §254. V. .roi-dan, 25 Ga. 647. SS42, 199,212. V. Keohane, B Bradw. (III.), 585. §§a3, 209. V. Kidd, 08 Iv". Y. 130. §175. V. Knickerbocker, 84 N. Y. 589. §209. V. Lindsev. 89 Mo. 76. §187. V. Lowry,' 113 Ind. 37. §§17, 169, 171, 174, 177,181, 221. V. Lozo, 42 Mich. 6. §249. V. Lynes, 5 ]Sr. Y. 41. §§244, 250. V. McGuire, 67 Ala. 34. §§90, 108. V. McLean, 24 Iowa, 322. §§253, 265 V. Miller, 63 Tex. 72. §§228, 236. V. Moore, 11 N. H. 55. §§254, 262. V. Neilson, 13 Lea, 461. §§19, 36. V. Pollard, 19 Vt. 272. §183. ■ V. Portland, 30 Fed. Eepr. 734. §49. V. Proffatt, 82 Va. 832, 851. §§12, 216. V. Eoth, 61 Tex. 81. §25. • V yarver (Pa.), 7 Atl. Repr. 99. §46. V. Simmons, 1 Hoot, 318. §28. 137. ■V. Smith, 13 O.St. 532. §§31, ■V. , 12 Cal. 216; s. c. 73 Am. Dec. 533. §114. V. South Eoyalton Bk., 32 Vt. 341; s. c. 76 Am. Dec. 179. §154. V. The Bank, 21 Ala. 24. §27. V. Van Gilder, 26 Ark. 527. §§66, 74. V. Waggoner, 50 Wis. 155. §§252, 254. 2.->6, 272. V. Ward, 2 Koot, 378; s. C. lAm. Dec. 80. §§88,121. V. Water Com'rs, 3S Conn. 208. §2.38. V. White, 1 B. Mon. 19. §61. ■ V. Williams, 44 Mich. 240. §191. , 38 Miss. 48. §80. V. Yule, 31 Cal. 180; s. c.89 Am. Dec. 107. §§107, 210, 228, 232, 233. Smithwick v. Smlthwick, 49 N". Y. 517. §120. Sneed v. Ward, 5 Dana, 188. §150. Snell V. Levitt. 110 N. Y. 595. §48. Snodgrass v. Ricketts, 13 Cal. 359. §204. Snow V. Lake, 20 Fla. 656; s. C. 1 Am. St. Rep. 625. §§27, 183. Snowden v. Tyler, 21 Neb. 199. §§183, 204. Snyder V. Sponable, 1 Hill, 567; S. C. 7 Hill, 427. §239. Solomon v. Hathaway, 126 Mass. 484. §2.50. Solomon's Lodge v. Montmallin, 58 Ga. 547. §60. Somes V. Brewer, 2 Pick. 184. §8-1. Sonfleld v. Thompson, 42 Ark. 46. §73. Sorrells v. Stamper, 27 La. Ann. 630. §173. Souder v. Morrow, 33 Pa. St. 83. §§133, 167. Soule V. Corbley, 65 Mich. 109. §33. V. Shotwell, 52 Miss. 236. §207. Southard v. Benner, 72 N. Y. 427. §211. r- V. Cent. R. Co., 26 N. J. L. 13. §97. South Car. Loan Co. v. McPherson, 20 S. Car. 431. §132. Southerland v. Hunter, 93 N. C. §180. Souvinet v. Landreaux, 1 La. Ann. 219. §173. Sowden V. Craig, 26 Iowa, 156; S. C. 96 Am. Deo. 125. §§4, 59, 152, 252. Sowers v. Peterson, 59 Tex. 216. §77. Spackman v. Ott, 65 Pa. St. ISl.' §211. Spader v. Lawler, 17 O. St. 371. §164. Spadone v. Manvel, 2 Daly, 263. §240. Spafford v. Warren, 47 Iowa, 47. §119. V. Weston,- 29 Me. 140. §180. Sparks v. State Bank, 7 Blackf. 469. . §170. Sparr v. Trimble, 1. Marsh. 279. §148. Sparrow v. Hovey, 44 Mich. 63. §233. 733 SPARROW. ] TABLE OF CASES. [STEVENS. Sparrow v. Sparrow, 41 Mich. 708. §§86. 73. Spaiilding v. Scanlan, 6 B. Mon. 863. §168. Speck V. Kiggin, 40 Mo. 405. §222. Speed V. Brooks, 7 J. J. Marsh. 119. §144. Spencer v. Barnett, 35 N. T. (8 Tiff.), 96. §45. Splelman v. Kliest, 9 Stew. (36 N. J. Eq.), 199. §§28, 160, 241. Spitznagle v. Vanhessch, 13 Neh. 338. '§§80, 81. Spivey v. Grant, 96 N. C. 214. §253. Sprague v. Kockwell, 51 Vt. 401. §33. T. White, 73 Iowa, 670. §230. Spraights v. Hawley, 39 N. T. 141 ; S. C. 100 Am. Dec. 452. §§247, 248. Spofford V. Weston, 29 Me. 140. §222. Spoor V. Phillips, 27 Ala. 193. §26. Spurlock V. Sullivan, 36 Tex. 511. §§204, 207, 208, 224. Stadtfield v. Huntsman, 92 Pa. St. 53. §250. Stafford v. American Mills Co., 13 R. I. 310. §263. — — V. Ballon, 17 Vt. 329. §171. V. Van Rensselaer, 9 Cow. 316. §170. Stallcup V. Pyron, 33 La. Ann. 1249. §§52, 56. Standard Paper Co. v. Guenther, 67 Wis. 101. §§196, 254, 256. Staudiford \. Standilord, 97 Mo. 231. §144. Stanhope v. Dodge, 52 Md. 483. §§133, 194, 271. V. Varney, 2 Eden, 81. §§14, 153. Stanley v. Chamberlain, 39 N. J. L. 5G5. §§221, 238. V. Gaylord, ICiish. 536; s. C. 48 Am. Dec. 643. §247. ■ V. Green, 12 Cal. 148. §239. Stannis v. Nicholson, 2 Or. 332. §192. Stansberry v. PtJpe, 4 Bibb. 492. §61. Stansell v. Roberts, 13 Ohio, 148. SS;!0, 132, 172. SiMiiion V. Button, 2 Conn. 527. <\. §§4, 152. l.-iy. 17.. 1S4, li)5. Vose V. Moi'ton, 4 Cash. 27; s. c. 50 Am. Dec. 7.">0. §1^9. Vredenburg V. Burnet, 31 N. J. Eq. 229. §§31, 170, 182, 221. Vreeland v. Olafliu, 24 N. J. Eq. 313. §167. W. Wade V. Strachan (Mich.), 39 N. W. Repr. 382. §259. Wagner v. Hodge, 34 Hun (41 N. Y. Sup. Ct.), 524. §§13.5, 138, v. Watts, 2 Cr. C. Ct. 169. §2.-.3. Wailes v. Cooper, 24 Miss. 208. §§203, 225. 740 WAIT. J TABLE OF CASES. [ WATSON. Wait V. Smith, 92 111. 3S.o. §17. Waldron v. Sloper, 1 Drew. 193. §175. Walker v. Cuoullu, 15 La. Ann. 689. §175. V. Goldsmith, 14 Or. 125. §191. §43. §34. 254. V. Hill, 22 JT. J. Eq. 514. V. Mebane, 90 N. C. 259. V.Miller, 11 Ala. 1081. §§211, V. Mitchell, 25 Hun, 527. §§248. 25J. §212. V. Moody, 65 N. C. 599. V. Schreiber, 47 Iowa, 529. §221. Wallace v. Campbell, 54 Tex. S7. §§114. 177, 212. V. Evans, 1 Dak. 387. §181. V. Furber, 62 Ind. 103. §147. V. Moody, 26 Cal. 387. §146. V. Silsby, 13 Vrooin, 1 . §1 72. Wallis V. Taylor, G7 Tex. ■131. §2.")y. Waltee v. Weaver, 57 Tex. 569. §§59, 104, 105. Walter v. Hartwig, 106 Ind. 123. §§92, 135, 159. Walton V. Hargrove, 42 Mis*. 18; s. C. 97 Am. Dec. 429. §§19, 20, 192, 199, 203. Wambole v. Foote, 2 Dak. 1. §98. Wannal v. Kem, 51 Mo. 150. §§91, 93. Warburton v. Lauman, 2 Greene, 420. §147. Ward V. Dougherty, 75 Cal. 240. §§77, 104. V. Drouthett, 44 Tex. 369. §234. V. Hague, 25 N. J. Eq. 397. §§163, 164. V. Mcintosh, 12 O. St. 231. §§103, 110. V. Walters, 63 Wis. 39. §80. V. Warren, 82 N. Y. 265. §238. V. Watson, 24 Neb. 592. §246. Warden v. Sabins, 36 Kan. 165. §45. V. Williams, 24 111. 67. §156. Wardlaw v. Mayer, 77 Ga. 620. §67. • V. Miller, 69 Tex. 395. §182. Ware v. Egmont, 31 Eng. L. & Eq. 89. §§177, 178. v. Lord Egmont, 4 De G. M. &Gw460. !j22S. v. Nesiiit,H4N.C.664. §121. Wark v. Willard, 13 X. H. 3S9. §^22. 161. V. , 22 N. H. 468. §54. Warner v. Comstock, 55 Mich. 615. ij256. V. Conn., 109 U. S. 357. §69. V. Hall. 53 Mich. 371. §121. — ■ V. Hardy, 6 Md. 525. 79. V. Peck, 11 R. I. 431. V. Whitaker, 6 Mich. §186. 133. §202. V.Wilson, 73 Iowa, 719. §253. V. Winslow, 1 Sandf. Ch. 480. §§31, 190. Warren v. Branch, 15 AV. Va. 21. §20. V. Brown, 25 Miss. 66; s. C. 57 Am. Dec. 191. §104. V. Fenn, 28 Barb. 334. §20. V. Hall, 53 Mich. 371. §89. ■ V. Jones, 69 Tex. 462. §§110, 117. V. Sweet, 31 N. Y. 332. §223. V. Syine, 7W.Va. 474. §147. Warrick v. Hull, 102 111. 280. §90. V. Warrick. 3 Atk. 291. §2il. Wart V. 'Green, 36 N. Y. 556; S. c. 35 Barb. 585. §250. Wjishburn v. Burnham, 63 N. Y. 132. §28. . V. Eoesch, 13 111. App. 268. §90. Washington v. Trousdale, Mart. & Yerg. 385. §196. Washington Bk. v. Lewis, 22 Pick. 24. §244. Wasson v. Conner, 54 Miss. 352. §§68, 88. Waters v. Connelly, 59 Iowa, 217. §234. V. Cox, 2 Bradw. 129. §§247, 250. V. Spofford, 58 Tex. 115. §§57, 97, 128, 129, 130. -V. Slickney.l2Allen,15. §51. Watkins v. Edwards, 23 Tex. 443. §§204, 221. v. Hall, 57 Tex. 1. §77. Watrous v. McGrew, 16 Tex. 506. §96. Watson V. Bailev, 1 Binn. 470; s. c. 2 Am. Deo. 462. §§87,103,105. 741 WATSON.] TABLE or CASES. [WETHEEELL. AVatson v. Chalk, 11 Tex. 89. §§96, 1.57. V. Dundee, 12 Or. 474. §§33. 174, 209. V. Mercer, 8 Pet. 88. §§23, 97, 102, 120. V. 27 Tex. 637. §29. V. Michael, 21 W. Va. 568. §§104, 106, 107. V. Spence, 20 Wend. 264. §163. V. Thompson, 49 Ark. 83. §§246, 254, 263, 269. Thurber, 11 Mich. 457. §100. Watts V. Griswold, 20 Ga. 732. §233. Wau^hler v. Franklin, 70 Mo. 650. §249. Way V. Lyon, 3 Blackf. 76. §204. Weathersbee v. Farrar, 90 N. C. 106. §§L63, 165, 171, 217. Weathersby v. Weathersby, 40 Miss. 462; s.c'. 90 Am. Dec. 344. §250. Weaver v. Barden, 49 N. Y. 286. §205. ■ V. Chunn, 99 N". C. 431. §§246,261. . V. Ooumbe, 15 Neb. 167. §28. V. Lapsley, 42 Ala. 601; s. c. 94 Am. Dec. 671. §250. . V. The S. G. Owens, 1 Wall., Jr.. 359. §276. Webb V. Burney, 70 Tex. 322. §§89,121,179,204. V. Chisholm, 24 S. C. 487. §54. 102. V. Den, 17 How. 578. §§97, V. Ho.selton, 4 Neb. 308. §§•204, 210. V. Huff, Gl Tex. 677. §§53, 74, 79, 81, SI. V. Mnllins, 78 Ala. 111. §85. V. Robbins, 77 Ala. 176. §223. . V. Webb, 87 Mo. 540. §§90, 104, 106. V. Wilcher, 33 Ga. 565. §§133, 184. Weber v. Armstrong, 70 Mo. 217. §:i47. . V. Bridgman, 113 N. Y. 600; 23 Sup. Ct. 674. §175. V. Christen. 121 111. 91; s. C. 2 Am. ,St. Rei). 68. §144. Webster v. Hall, 2 Har. &McH.19; S. C. 1 Am. Dec. 370. §§105,112. Webster v. Maddox, 6 Me. 236. §§222.231. V. Van Steenburg, 46 Barb. 211. §§154, 181, 207. Wedel V. Harmon, 59 Cal. 507. §§92, 93. Weed V. Stanley, 12 Fla. 166. §254. Weeks v. Tomes, 16 Hun, 349. §43. Weidner v. Thompson, 69 Iowa, 36. §169. Weil V. Lapeyre, 8S La. Ann. 303. §154. Weinberg v. Kempe, 15 W. Va. 829. §209. Weisberger v. Wisner, 55 Mich. 246. §232. Weisbrod v. Chicago, etc., 18 Wis 41. §117. Weisenburg v. Truman, 58 Cal. 63. §181. Weisser v. Denison, 10 N. Y. 68 §240. Weld V. Madden, 2 Cliff. 584. §198. Welles V. Cole, 6 Gratt. 645. §§63, 66. Wells V. Atkinson, 24 Minn. 161. §§69, 75, 79. V. Morrow, 38 Ala. 125 SS20, 203. V. Wilcox, 68 Iowa, 70S. §253. , Wells, Fargo & Co. v. Smith AISTes- lin. 2 Utah, 39. §§4, 40, 152, 188. Welsh V. Foster, 12 Mass. 96. §1. V. Hill, 2 Johns. 373. §62. -v. Lewis, 71 Ga. 387. §127. Welton V. Tizzard, 15 Iowa, 495. §209. Wert V. Xaylor, 93 Ind. 413. §207. West V. Fitz, 109 111. 425. §210, V. Krebaum. 88 111. 263. §67. V. Reid, 2 Hare. 260. §165. V. Schneider, 64 Tex. 327. §62. West Point Co. v. Reymert, 45 N. Y. 703. §77. Westbrook v. Gleason, 79 N Y. 23. §§33, 154, 170, 203, 204, 205, 209, 228. Western Co. v. Peytona, S W. Va. 406. §228. Westervelt v. Voorhis, 42 N. J. Eq. 179. §169. ^ V. Wyckoff. 32 N. J. Eq. 188. §1S1. Wethered v. Boon, 17 Tex. 143. §§178. 182, 223, 225. Wetherell v. Spencer, 3 Mich. 123. §257. 742 WETMORE. TABLE OK CASES. [WILLES. Wetinpre v. Laird, 5 Biss. 160. §§5, 69, 74, 79, 81. Wheaton v. Dyes, 15 Conn. 307. §§13, 166, 205. Wheeler v. Becker, 68 Iowa, 723. §253. V. Kirtland, 24 N. J. Eq. 552. §42. Wheelwright v. DePeyster, 4 Ed. Oh. 232. §162. Whelan v. McCreary, 64 Ala. 319. §30. V. Whelan. 3 Cow. 537. §204. Whight V. Wood,23Pa. St.l20, 130. §233. Whitacre v. Fuller, 5 Minn. 508. §171. Whitbread v. Jordan, 1 You. & Coll. Ex. 303. §219. Whitcomb V. Woodworth, 54 Vt. 544. §251. White V. Burnly, 20 How. (61 U. S.), 225. §§64, 234. V. Carpenter, 2 Paige, 217. §180. V. Denman, 1 O. St. 110. §§10, 52. V. Fisher, 77 Ind. 65; s. c. 40 Am. Kep. 287. §§224, 241. V. Foster, 102 Mass. 375. §§2, 4, 12, 178, 222, 223. V. Graves, 107 Mass. 325; s. c. 9 Am. Rep. 38. §§89, 100, 121 V. Hampton, 13 Iowa, 259. §143. §138. V. Moore, 1 Paige, 551. V. Nashville Ry. Co., 7 Heisk. 518. §§19, 203. ■ V. Patten, 24 Pick. 324. §§22, 161. §46. §101. §230. ■ V. Perry, 14 W. Va. 66. §43. V. Stanton, 111 Ind. 540. V. Wager, 26 N. T. .328. V. Wakefield, 7 Sim. 401. ■ V. White, 105 111. 313. §233. White's Bank v. Smith, 7 Wail 646. §§275. 276. White Lake Co. v. Russell, 22 Neb. 126; s. c. 3 Am. St. Rep. 262. §§45, 46. Whitehead v. Foley, 28 Tex. 289. §234. Whitehorn v. Cranz, 20 Neb. 392. §216. Whitehurst v. Hunter, 2 Hayw. 401. §104. Whitemark v. Noe, 3 Stark's Ch. 321. §47. Whitfield V. Riddle, 78 Ala. 99. §§199, 209. Whitney v. Arnold, 10 Cal. 631. §§83, 128. Whittemore v. Smith, 50 Conn. 376. §28. Whittier v. Blakeley. 13 Or. 546. §46. Whittington v. Wright, 9 Ga. 23. §235. Whittlesey v. Hughes, 39 Mo. 13. §210. Wickersham v. Chicago, etc., 18 K:in. 481: S. C. 26 Am. Rep. 784. §§239, 2-13. V. Reeves, 1 Iowa, 413. §81. WicUes V. Caulk, 5 Har. & J. 36. §84. — V. Lake, 25 Wis. 71. §§221, 228, 233. Wickham v. Lewis, 13 Gratt. 427. §§35, 210. Wiele V. U. S. 7 Ct. CI. 539. §29. Wiggv. Wigg, l,Atk. 382. §§203, 2013. Wiibraham v. Livesey. 18 Beav. 206. §181. Wilcox v. amith, 5 Wend. 231; S. C. 21 Am. Dec. 213. §64. Wilcoxen v. Miller, 49 Cal. 193. §§10,42. 192. : V. Osborn, 77 Mo 621. §78. Wild v. Brooks, 10 Minn. 50. §§19. 36. 1.52. 267. Wilderman v. Harrinarton, 2 Tex. Civ. App. §820. §247. Wildgood v. Waylaud, Gouldsb. 147. §225. Wiles V. Clapp, 41 Barb. 645. §2.58. Wiley V. Aultman. 53 Wis. 560. §271. V. Knight, 27 Ala. 336. §241. V. Shars, 21 Neb. 7t2. §253. Wilhelm v. Mertz, 4 Greene, 54. §28. Wilkins V. Wright, 6 McLean, 340. §210. Wilkinson v. King, 81 Ala. 156. §265. Willard v. Cramer, 36 Iowa, 22. §§55, 70. V. Reas, 26 Wis. 540. §20. Willes V. Greenhill, 4 DeG. F. & J. 147. 150, §§238, 239. '43 WILLEY. ] TABLE OF '-^ASES. [WISWALL. Willey V. SnyJer, 34 Mich. fiO. ^ Wilson v. Le=lie._ 20 Ohio, 161. §253. ■Williams v. Baker, 71 Pa. St. 476. §§(iS, 87. SO. 99. -^ V. Beard, 1 S. Car. 309, §§14, 133, 194. 205. V. Burbanlis, 11 Md. :i50. §§133, 141. -io.'), 26{i. V. McCiiUoui^h, 23 Pa. St. §194. V. Bm-beck, Hoff. (N. Y.), 359. §§28, 209. V. Cudd. 20 S. Gar. 213. V. Downiua:. 18 Pa. St. 60. 441); s. 0. 62Am.Dec.347. §§182 219, 225. 22G. V. McEwan, 7 Or. 87, 104. §115. §28 V. Griffin, 4 Jones (N. C), I v. Rndd, 70 Wis. 98. §45. V. Simpson. bS' Tex. 312. §128. V. MiUigan, 75 Mo. 41. §§41, 218, 269. V. Minn. Pire Ass'n. 36Minu. 112, §§241,214. V. Peeples. 61 Ga. 218. §172. V. Prouty, 70Cal. 196. §§27.1, 274. L. 31. §56. V. Hobson. 6 O. St. 510. §68. V. HoUingsworlh, 1 Strob. Eq. 303. §204. V. .Jackson. 107 U. p'^. -178. §176. ■ V. Jones, 95 N. 0. 304. ^')-i. V. Livingston, 9 ,N^. W. Kcpr. (Minn.), 31. §59. V. Lord, 75 Va. 390. §211. V. Robson. 6 Ohio- St. 510. §186. §202. V. Shelby, 37 N. Y. 375. V. Tatnall, 29 111. .5,5:1. §198. V. Windsor, 12 R. I. 9. §§211. 254. Williamson v. Brown, 15 N". Y.354. §§12, 153, 182, 219, 221, 223. 227, 238. V. Carskadden, 36 O. St. 6S4. §§68, 88. V. Moore, 68 Ga. 585. §127. V. N. J. etc., Ry. Co. 29 N". J. Eq. 311. §§252, 270. V. N. J. S. By. 28 N. J. Eq. 277. §254. Willink V. Miles, Pet. C. Ct. 429. §69. Willis V. Gattman, 63 Miss. 721. §105. V. Gay, 48 Tex. 463. §20. V. Henderson, 4 Scam. 13. §211. Willoughby v. Willoughby, 1 T. R. 763. 767. §§202, 209; AVilson V. Conway, 4 R. I. 141, 152. §240. v.Eifler,llHeisk. 188. §§189. 218. - V. Hunter, 30 Ind. 466. §§152, 178, 227. §§63, 12C,. V. Second Nat. Bk. (Pa.), 7 Atl. Repr. 145. §244. V. Traer. 20 Iowa, 233. §67. V. Tronp. 2 Cow. 195. §29. V. Voigbt. 9 Colo. 614. §254. V, Wall, 6 Wall. 83. §226. Williams, 25 Tex. 54. 744 §§1,53. 220, 227. Wilt V. Cutler, 38 Mich. 189. §§56, 134. 150. Winchester v. Carman, 109 Ind. 31. §§247, 251. — v.Ry.Co.,4Md. 231. §§242, 244. Windle v. Bonebrake, 23 Fed. Repr. 165. §175. Winrtom v Schappeil (Minn.), 38 >f. W Repr. 757. §§144,162,191. Wing V. JIcDowell. Walk. (Mich.), 175. §160. V. Hall, 47 Vt. 182. §§36, 140. Wiiigo V. Parker, 19 S. Car. 13. §§98. 111. Winkler v. Iliggins. 9 O. St. .:>99. .§'^6. AVinlockv. 'lai'dy, 4Lit.472. §132. Winn V. Pattor'son, 9 Pel. 663. §95. Winsor v. McLeilaud, 2 St-rv, -192. §§213, 254. Winsted v. Siienccr, 26 Conn. 195. §145. T/isooiisin Cei.1. _l(y. v. Wii. River Land Co., 7l W;-'. 94. §44. Wise V, .Postlewait, 3 AV.' Y-.i. 452. §§57, 78. V. Wise. 2 Jones x Lat. 403. §238. Wiswall V. McGowan, 2 I;,arb. 281 ; S. C. Hoffman's Ch. 126. §239. WITHERS. ] TABLE or CASES. [WUIGHT. Withers v. Baird, 7 Watts, 227; s. C. 32 Am. Dec. 7U. §67. v.-Carter, 4Gratt. 407. §197. V. Little. 56 Cal. 370. §207. Witter V. Dudley, 42 Ala. 616. §226. Witters v. Sowles, 32 Fed. Kepr. 768. §244. Woffurd V. McKinna, 23 Tex. 36. §§-.il, 29. Wolf V. Fogarty, 6 Cal. 224; s. c. 65 Am. Dec. 509. §§76, 77. Wolfe V. Dyer, 95 Mo. 54-5, §17S. Wolfolk V. Graniteville Co., 22 S. C. 332. §§11,122. Womack v. Hughes, Llttell's Sel. Cas. 292. §61. V. Womack, 8 Tex. 397. §102. Womble v. Battle, 2 Ired. Eq. 182. §§4, 20. Woodbourne v. Gorrell, 66 N. C. 82. §§68,101.- Woodbury v. Fisher, 20 Ind. 387; s.C. S3 Am. Dec. 325. §§144,164, 190. Wood V. Bach, 54 Barb. 134. §70. V. Chapin.l3N.Y. .-)09, 515; S. C. 67 Am. Deo. 52. §§10, 154, 199, 204, 212, 214. ■ V. Cochrane, 39 Vt. 544. §57. • V. Farmere, 7 Watts, 382; s. C. 32 Am. Dec. 772. §§50, 61. ir^. 228, 230, 232. V. Harrow, 11 Johns. 434. §129, ^ V. Ingraham, 3 Strobh. Eq. 105; s. c. 61 Am. Dec. 671. §144. -. V. Jackson. 3 Wend. 9; s. C. 22 Am. Dec. 603. §191. V. Lake, 62 Ala. 489. §210. V. Lordier, 115 Ind. 519. §168. §2.54. V. Lowrv, 17 Wend. 492. V. Mann, 1 Sumn. 503. §154. V. Reeves, 23 S. C. 382. , 128. V. Weimar. 104 U. S. (14 Otto), 786. §§246, 267, 259. V. Welder, 42 Tex. 397. Woodcock V. Bennett, 1 Cow. 711. §191. Woodfolk V. Blount, 3 Hayw. 147; s. C. 9 Am. DeC; 739. §183. Woodliff V. Harris, 95 N. C. 311. §273. Woodruff V. McHarry, 58 HI. 218. Woodruff V. Phillips, 10 Mich. 500. §141. V. Kobb, 19 Ohio, 212. §260. Wood's Appeal, 82 Pa. St. 110. §16. Woods v. Transportation Co., 84 Ala. 560. §95. Woodson V. Allen, 54 Tex. 551. §16. V. Collins, 56 Tex. 175. §S198, 236. AVdodward v. Boro, 16 Lea (84 Tenu.),67S. §10. V. Gates, 9 Vt. 368. §267. Woodworth v. Paige, 6 0. St. 70. §226. Woolen V. Hillen. 9 Gill. 1S6; s. C. 52 Am. Dec. 690. §175. Wooster v. Sherwood, 26 N. Y. 278. §40. Worcester Bank v. Cheeney, 87 111. 602. §140. Worcester v. Lord, 56 Me. 266; S. c. 96 Am. Dec. 456. §§228, 229, 233. Word V. Box, 66 Tex. 596. §§21, 159, 162. V. Hollins,14Md.l58. §190. V. Krebbs, 30 Graft. 708. V. McKinney, 25 Tex. 258. V. Watson, 24 Neh. 592. §181. §96. §2.56. Work V. Brayton, 5 Ind. 396. §207. V. Harper, 24 Miss. 61 7. §§8, 52. Workman v. Wright, 33 0. St. 406; s. c. 31 Am. Rep. 546. §119. Worlev V. Suite, 7 Lea. 382. S§19, 48, 203. Wormley v. Wormley, 8 Wheat. 449. §§204, 206. Wiirthy V. Caddy, 76 N. 0. 82, §204. Wragg V. Conipt,-Gen,. 2 Dcsans (S. Car.), 509. §20. Wray V. Fedderke, 43 N. Y. Sup. Ct". 335. §258. Wredi^ V. Cloud, 52 lowii, 37J. §232. Wren v. Peel. 64 Tex. 374. §1S2. Wright V. Bates, 13 Vt. 341. §231. V. Bundy, 11 Ind. 398. §§90, 210, 263. V. Douglass, 10 Barb. 9;. §§207, 212. V. Dufiield, 2 Baxt. (53 Tenn.), 218. §§106, 117. 745 WEIGHT. ] TABLE OF CASES. [zUCHMAlt Wright V. Graham, 43 Ark. 141. §§ao, 79, 07. V. Hays, 10 Tex. 130. §U8. V. Lancaster, 48 Tex. 250. §147. V. Lasslter, 71 Tex. 640. §§154, 234. ■V. Player, 72 N. C. 94. §§GS, 121. V. Eemington, 41 N. J. L. 48; s. C. 32 Am. Rep. 180. §108. V. Solomon, 19 Cal. 64; S. C. 79 Am. Dec. 196. §247. V. Wilson, 17 Mich. 192. §§70, 71, 74. V. Wood, 23 Pa. St. 170. §236. V. Wooters, 46 Tex. 383. §172. Wyatt V. Barwell, 19 Ves. 435. §§4, 17. 50, 165. 216. V. Elam, 19 Ga. 335. §167. V. Stewart. 34 Ala. 716. §198. Wylles V. Haun, 47 Iowa. 614. §77. Wylliev. Pollen, 3 DeG. J. & S. 696; S. C. 32 L. J. Ch. 782. §240. Wynne, /)( re, Chase's Dec. 227. §213. Yancey v. Mauck, 15 Gratt. 300. §20. Yeatman v. Savings Institution, 95 U. S. 764. §§213. 254. Yeaton v. Fry, 5 Cranch, 535. §74. Yerger v. Young, 9 Yerg. 37. §4. Yoe V. Montgomery, 68 Tex. 338. §19. York V. McNutt, 16 Tex. 14; s. c. 67 Am. Dec. 607. §203. Yorty V. Paine, 62 Wis. 15-1. §84. Young V. Boardman, 97 Mo. 181. §62. V. Bradlev, 68 111. 553. §247. V. Devries, 31 Gratt. 304. §42. V. Duvall, 109 U. S. 573. §§09, 89, 90. V. Guy, 87 ISr. Y. 457. §164. V. Keilar, 94 Mo. 581; s. c. 4 Am. St. Rep. -105. §205. V. Ringo. 1 Mon. 30, §56. V. Shauer, 73 Iowa, 555; s. c. 5 Am. St. Rep. 701. §§169, 238. V. Tarhell, 37 Me. 509. §172, V, Thompson, 2 Kan. 83. §§31, 137, 13S. V, Young, 27 S, Car. 201. §126. Youngblood v. Vastine, 46 Mo, 239, §184, Younge v, Gilbeau, 3 Wall, 636, §144, Youngs V, Wilson, 27 N. Y, 351, §§31, 171, Youst -v. Martin, 3 Serg, & E. 423. §14. Z. Zimmerman v, Kinkle, 108 X. T. 2S2. §210, Zimplernan v. Robb, 53 Tex. 274. §§114, 158, 182, 184, 186. ZoUman v. Moore, 21 Gratt. 313. §35, Zorn V. Ry, Co., 5 S. Car, 90. §207, Zuchman v, Roberts, 109 Mass, 53; s. c. 12 Am. Rep. 598. §8247. 249. 746 INDKX. [THE REFERENCES ARE TO THE SECTION NUMBERS.] ABBREVIATIONS— may be used by officer in stating his official title, 72. ABAN'DON'MEN'T OF WIFE— authorizes her to convey without privy examination, when, 118. ABSTRACT OP JUDGMENTS— record of, required in some states, 42. ABSTRACTS OF TITLE— made evidence by st-itute in New Mexico, 422. ACCIDBNr OR JliSl'AKE— In the release and Ciineellalion of mortgages, 34, 175. when relieved against in equity, 34, 175. acknowledgment- Its Purpose and Effect, 52-56. purpose of the acknowledgment, 52. not necessary to record In what states, 53, 54. necessary to title passing, when, 54. as supplying proof of execution of the instrument, 56. By Whom to be Made, 57-60. acknowledgment by a firm, 57. by one of several grantors, 58. by attorney in fact, 59. by trustee, sheriff's deputy, etc., 59. or deeds by corporations, 60. Before Whom to be Made, 61-68. officers named in the various statutes, 61. deputies, magistrates, etc., 62. ex officio and de facto officers, 63, 64. , local jurisdiction of the officer, 65. presumptions as to the officer's jurisdiction, 66. disqualification by interest, 67. by relationship, 68. The Certificate of Acknowledgment, 69-86. general requisite — must state the facts, 69. caption and locality, 70. must show official capacity, 71. officer may use initials and abbreviations, 72. official seal must be used, when, 73. must be shown, how, 74. double certificate of miiigistracy and conformity, 75, 877 note. identity of grantor to be shown, when, 76. the statutory words of identitv, 77. stating the grantor's name, 78, 57. 747 ACKNOWLEDGMENT. INDEX. ACTUAL NOTICE. ACKyOWLEDGMEXT— Continued. substantial compliance sutHcient, 79. equivalent expression-* may be used, 80. omission of material words, 82. clerical omissions and mistakes, 83. surplusage does not vitiate, S3. dating the certificate not material, 84. signature of the otficer necessary, 85. certificate to be on same sheet with deed, when, 86. When and of What the Cektieicate is Conclusiye, 87-90. is by statute only prima facie evidence, where, 87. how far it should be conclusive, 88. may be impeached for fraud or forgery, 89. what evidence necessary to overcome the certificate, 90. Amendment of Cektificate, When Allowed, 91-94. ill case of married women, 93. correction of certificate by statute and in equity, 94. "Validation and Miscellaneous Matters. acknowledgment of ancient deeds, 06. testimoidos and public acts of sale, 97, 3.59 note. validating statutes, 97. deeds of married women, 120. acknowledgment of chattel mortgages, 246. ACKN^OWLEDGMENT OF MARRIED WOMEN"— TiiEOKY AND Distinctive Features op the Law, 98-102." Is statutory, and requisite to tit,le passing, when, 98., distinctive features of her asjkiiowledgment, 99. modern changes in the law, 100. the earlv and later theories of ihe law, 101. the modern view — not necessary to title, when, 102. The Four Usual Statutory Requisites. 103-110. the sepai-ate examination, and how certified, 104, 105. the explanation of the deed, and how certified, 106, 107. the voluntary execution, and how certified, lOS, 109. the continued assent, or wish not to retract, 110. Matters Relating to the Certificate, 111-115. substantial compliance sometimes sufficient, 111. joint certificate of husband and wife, 112. identity of the wife shown, how, 113. acknowledging deed of community property, 114. relinquishment of dower, 115. As Affected bt Wife's Disabilities, 116-121. acknowledging deed with blanks therein, 116. wife may convey by power of attorney, when, 117. re-acknowledgment and ratification, 119. abandonment — wife as /erne sole, 118. validating acknowledgment of the wife, 120. impeaching certificate of wile's acknowledgment, 121. because taken by telephone, p. 195. ACTUAL notice- Origin AND Extent of the Doctrine, 10, 165. 215-218. actual notice supplies want of registry, 10. origin and prevalence of the doctrine. "21.t, 216. exceptions to the rule in various states. 217. exceptions as to certain kinds of instruments, 218. The Several Kinds and Degrees of .Ictcal Notice, 219-222. actual notice and knowledge distinguished, 219. 748 ACTUAL NOTICE. INDEX. AGENT. I ACTUAL XOTICE— Continued. defl-nitions ot notice and actual notice, 220. constructive, express and implied notice,. 221. statutory distinctions as to actual notice, 222. The Doctrines as to Putting on Inquiry, 223-227. sources of the information, 224. vague statements and rumors not notice, 225. inquiry should be prosecuted, when and how, 226. the presumption of notice is rebuttable, 227. Possession a Species of Actual Notice, 228-237. general rule that possession gives notice, 228. exceptions to the rule in several states, 229. grantor remaining in possession not notice, 230. contra — such possession held to charge notice, 231. possession will be referred to a title of record, 232. must be open and notorious. 233. must be actual, not constructive, 234. joint possession not usually notice, 2.J^. as notice of wife's title, 235. possession by tenant, notice of landlord's title, 236. must be existing and continuous, 237. Notice to Agent is Xotice to Principal, 238-244. the general rule .md its reason, 238. scope of the rule — partners, t ustees, officers, etc., 239. character of the agency — scope of employment, 240. notice to be iu same transaction, when, 211. where agent acts for both parties, nnd for his own benefit, 242. notice not imputed where agent guilty of fraud, 243. notice to offlcers and agents of corporations, 244. Miscellaneous Matters. actual notice as affecting creditors, 197, 270. of cliattel mortgage. 269. to an execution purchaser, too late, when, 199, 200. of release of morlgage, effectual, 175. does not -affect purctiaser from a bona fide vendee, 155. as supplying break in the record title. 159. no difference iti effect belween actual and constructive notice, 153. of claim of homestead exemption — when not effectual, 48. of mechanic's lien — when effectual, 45, 40. of a title imposes tlie duty of searching the records for mortgage of such title. lUO. of intention to execute deed, not effectual, 223 note. is in time, when. 205. of trust is effectual, 210 note. AFFIDAVIT— of bona fides sometimes requisite to mortgage, 30. especially chattel mortgages, 271. of proof for record by witness, 128. signature of witness not usually necessary. 128. may be made "to the best of affiant's belief," 128. to claim for mechanic's lien. 46, 47. will not answer for acknowledgment of deed. 83 note. AFTER- ACQUIRED TITLE— relates back so as to give the effect of notice to a prior record, 161. AGENT. See Actual Notice. notice to, is notice to principal, 238-244. 749 AGENT. INDEX. ATTORNEY. AGENT— Oontinned. grantor as agent in filing the conveyance, 140, 144. withdrawal of chattel mortgage by, 256. ALABAMA— statutory provisions relating to registry, 277-283. acknowledgment not essential to record, 53. priority of record not required of second deed, 14. mortgages of growing crops, 273, 274. acknowledgment or attestation essential to title passing, 283. AMENDMENT— of certificate of acknowledgment by officer, 92, 93. of the record of an instrument by the recorder, 150. ANTECEDENT DEBT— not usually held to be "valuable consideration," 207. the rule does not obtain in some states, 207. extension of time, etc., is sufficient, 208. AEIZONA TERRITORY— statutory provisions relating to registry, 284-288. community property, rights of wife, 114. ARKANSAS— statutory provisions relating to registry, 289-293. certificate of acknowledgment, hi note, 291. actual notice of mortgage ineffectual, 217. conveyances of wife's property, 18B note. ASSIGNEE— in bankruptcy not a purchaser, 211. for benefit of creditors not a purchaser, 211. held a purchaser in Virginia and Tennes- see, 211 note, of mortgage protected, how far, 33, 174. ASSIGNMENT— of mortgage held a "conveyance" within the recording acts, 33, 174. contra — held not a conveyance, 33, 174. now specified in many of the registry statutes, 33. of choses in action not usually recordable, 245. ATTACHMENTS— levy of writs of, when and how recorded, 44. ATTESTATION— of witnesses necessary to the record, when, 145. unacknowledged deeds without, are not good, where. 218, 54. & > I ATTORNEY. See Power of Attorney. in fact — acknowledgment by, 59. release of mortgage by, 175. notice to, is not notice to client, when, 240, 241. effect of a record showing one to be, 176. chargeable with notice of legal defects, when, 224 note, refusing to answer inquiry — ^effect of, 226 note. 750 BILL or SALE. INDEX. CERTIFICATE. B. BILL OF SALE— when recordable as chattel mortgage, 139 note, 255. how far within the registry statutes, 245, 246. of vessels, where to he recorded, 275. record essential, when, 189. BLANKS— in wife's conveyance to be filled before acknowledgment, 116, 117 note, mistake in filling with wrong name, 78 note. BONA FIDE PURCHASER— definition of, under the registry laws, 202. valuable consideration necessary, 204. must be without actual notice, 215. BOND FOR TITLE— usually within the recording acts, 38. not so held in all instances, 38, 203 note. assignee of, takes subject to what equities, 203 note. BOOKS OF RECORD— separate, required where and for what, 136. effect of record in wrong book, 136. recording mortgage in book of deeds, 137-139. BREAK IN" RECORD TITLE— effect of, as to notice, 158, 159. the rule in Louisiana, 158 note. C. CALIFORNIA— statutory provisions relating to registry, 294-298. deeds of separate and community property as notice, 182 note, 177 note. wife's acknowledgment not necessary to deed of community prop- erty, 114. wife may convey by power of attorney, 117. antecedent debt held valuable consideration, 207. sheriff's acknowledgment not necessary to certificate of sale, 52 note. CANCELLATION OF MORTGAGES— on the record — when and how made, 175. if wrongful, subsequent purchaser not protected, when, 175. CERTAINTY— necessary in certificate of acknowledgment, 69-86. of proof by witness, 128. in description of real estate, 147. of personal property, 253. CERTIFICATE. See Acknowledgment. of single acknowledgment, 69-86. of wife's acknowledgment, 98-121. necessarv to wife's title passing, when, 101, 186. of sheriffs' sales, recordn'ole, 169, 48. and withoui acknowledgment in California, 52 note, of recorder — how far conclusive, 148, 272, 95 note, 47. as to filing of chattel mortgage. 272. of magistracy and conformity, when required, 75, 377 note. 7.=>1 CHAIN OF TITLE. INDEX. CONNECTICUT. CHAIN" OF TITLE— of record protects a purchaser, 154. record, notice only to claimants in same, 162. CHATTEL MORTGAGES— general features as to record of, 41, 245. chattels real, fixtures, etc., 252. description of the property, 253. filing and recording, 264. time within which to be filed, 255. filing and withdrawal, 256. re-filing, and when to be made, 257, 258. excused by possession, 259. affidavit of renewal, 200. place of record — residence of mortgagor, 261. in case of non-residents, 262. non-resident corporation. 263. in case of partnership, 264. removal of property, and re-record, 265. to another state — comity, 266, 267. lex s^t^ls controls, when, 268. actual notice of, effectual, when, 269, 270. afiidavit of good faith, 271. recorder's certificate of filing, 272. of growing crops, 273, 274. of ships and vessels, 275, 276. CHOSES IN ACTIOX— transfer of not usually recordable, 245, 214, 177 note. CLERICAL ERRORS— do not vitiate certificate of acknowledgment, 82. the transcribed record of a conveyance, 150. COLORADO— statutory provisions relating to registry, 29fl-301. acknowledgment, not essential to record, 53. COMITY OF STATES— how recognized in the recording acts, 11. in the enforcement of chattel mortgages, 266, 267. COMMOJ^ LAW— registry unknown to, 1. appealed to in proof for record by witnesses, 122. rights of creditors at, 192. COMMUNITY PROPERTY— system of, prevails in what states, 114. conveyance to wife presumed, when, 114, 177 note. recitals as notice of separate or, 182, 177 note. CONDITIONAL SALE— purchaser from conditional vendee not protected, 249. contra — is entitled to protection, 250. statutes requiring registr, of, 251. CONNECTICUT— statutory provisions relating to registry, 302, 303. possession not of itself notice, 229, 302 note, record of deed not notice of mortgage, 139. unacknowledged, notice of contract to convey, 302. 752 €ONSIDERATIOX. INDEX. DAKOTA CONSIDERATION. See Valuable Consideration. what is sufficient under the recording acts, 204. what is not sufficient, 206, 207. CONSTRUCTIVE NOTICE— afforded by registry is conclusive, 4, 152. except as to recitals putting on inquiry, 178-183. extent to which the record is, 176, 177. definitions of, 221 note, as distinguished from actual, 220, 221. CONTRACTS. See Executory Contracts. not always within the registry acts, 37. example of, within the registry statute, 203 note. CONVEYANCES. See Deeds, etc. held to include assignment of mortgage, 33, 174. statutory detinitions of, 284, 294, 329. COPY— of an instrument not recordable without aid of the statute, 56. certified copy conclusive to what extent, 148, 272. of chattel mortgage may be filed, 257. CORPORATIONS— deeds of, how acknowledged, 60. statutory provisions on the subject, 420. notice to agent of, is binding, 244. to stockholders and directors, 244. chattel mortgages by, 263. COUNTY— deeds usually recordable in what, 134. unorganized — place of record, 134; also see note on p. 16. chattel mortgages, 261-263. CREDITORS— rights of at common law, 192. how affected by actual notice, 218, 197. are purchasers, when, 194-196. pi'e-existing debt as valuable consideration, 207. usually only lien creditors protected, 106. statutory provisions and their diversity, 10, 193. what creditors are protected, 194. fully protected in Virginia and some other states, 218, 195. subsequent and prior creditors, 194. as affected by unfiled chattel mortgage, 270, 218. of estate, with probated claim, a lieu creditor, 196 note. CROPS— growing and to be grown — record of chattel mortgages of, 273. how described in the mortgage, 274. lien of, not good against purchaser, when, 274. CUSTOM— as determining the book of record, 137, 188^ as authorizing proof by witnesses, 122. D. DAKOTA— statutory provisions relating to registry, 304-308. community and separate property of wife, 114, 185. (4S— Reg. of Title.) 753 DATE. INDEX. DIST. OF COLUMBIA. DATE— not usually essential to certilicate of acknowledgment, 84. where dates are conflicting, 84. delivery presumed at, when, 144. DECREE. See Judgment. as affecting holder of an unrecorded deed not a party to the suit, 191. as a link in chain of title. 162 note, abstract of, to he recorded, when, 42. setting aside joint deed because of defective acknowledgment of wife, 121 note. DEDICATION— of streets to public by recorded plat, 49. DEEDS. See Quit-claim; Trust Deed. English statute requiring enrollment of, 1. sheriffs' deeds requiring acknowledgment. 26, 54. quit-claim, as notice of imperfect title, 27, 183. what statutory requisites essential to the record of, 142, 144-147. deed absolute as mortgage, 137-139. deed of trust usually treated as mortgage, 35, 210, 175 note. surrender and cancellation of, revests title, when, 189 note. DEFEASANCE. See Mortgages. statutes requiring record of, 32. effect of want of record of, 32, 137-139. DEFINITIONS— of notice, actual and constructive, 219-221 and notes. of bona fide purchaser, 202. of valuable consideration, 204. statutory definitions of "conveyance," 284, 294, 329. DELAWARE— statutory provisions relating to registry, 309-311. what creditors protected by recording acts, 10, 309, 193. corporation deeds acknowledged, how, 311. DELIVERY— of deed essentia! to valid record, 144, 154. recording when a delivery, 144. presumed at what date, 144. for a simultaneous, see 168 note. DESCRIPTION— of real estate in deed, 147. of property in chattel mortgage, 253, 273. DEPUTY— may take acknowledgment, when, 62. acknowledgment by, how made, 59. DILIGENCE— requisite where one is put on inquiry, 226. in obtaining prior record, 216 note. DISCHARGE OF MORTGAGE. See Mortgage. statutes and decisions relating to, 34, 175. DISTRICT OF COLUMBIA— statutory provisions relating to registry, 312-316. wife must join in mortgage of exempt property' 313 754 DOWEK. INDEX. EVIDENCE. DOWER— relinquishments of, by wife, 115. DURESS— certificate of wife's acknowledgment when impeachahle for, 121, 88, 89. E. EASEMENT— conveyance of, within recording acts, 48., user as notice of, 233 note. EFFECT OF RECORD— in the United States the record imparts absolute notice, 4, 152. and the notice is conclusive, 152. record protects a bona fide purchaser, 154. subsequent record o£ a prior deed charges notice, when, 156. not notice to prior parties, 163, 164. priority in registration, 165-170. extent to which the record is notice, 176-183, 153 note, destroyed, second recording not necessary, 187. as giving validity to the instrunjent, 189. as notice "to all 'the world," 21, 22. record of deed of trust with power of sale is notice of sale, 35. made operative by subsequent matters, when, 190. record necei=sary in Texas to extend possession to boundaries in deed, 234 note. ENGLISH LAW— statute of enrollments, 1. record not constructive notice, 2. registry system limited, 2. possession by tenant as notice, 236. EQUITABLE TITLES— usually within the registry laws, 19, 36, 39. the earlier decisions, 36, 203. the rule not universal, 36, 203. EQUITY— will not enforce or reform wife's defective acknowledgment, 94. will afford relief against wrongful discharge of mortgage, when . and how, 175. relief in oases of part payment before notice, 206. in cases of substituted and prior recorded liens, 171. ESTOPPEL— enures to benefit of grantee m the first deed, 161. acknowledgment estops grantor to deny his signature, 52 note. by refusal to give information, 226. by silence as to prior mortgage, 226 note. grantor in possession estopped by his deed, 230. EVIDENCE— parol, when admissible to impeach certificate of acknowledg- ment, 87-89. amount of, necessary to overcome the certificate, 90, 121. what is, to charge notice and put on inquiry, 221-223. whether admissible to vary certificate of record, 148, 272. not admissible to show oflficer's authority to take acknowledg- ment, 71. ^^g EXECUTION PUKCHASEE. INDEX. GOOD FAITH. EXEOUTIOlSr PURCHASER— when protected by the recording acts, 199. when notice to, is eiifectiial, 200. EXECUTORY CONTRACTS— are now usually within the registry acts, 37, 19. must in some way be speoiQed, and are not embraced by "con- veyances" and "deeds," 37, 352. EXPRESS NOTICE— a degree of actual notice, 219-221. F. FEES— payment of recorder's, not essential to notice, 151. FEME SOLE. See Married Woman. wife may convey as, when, 118. FILING— flven the full effect of notice, when, 16, 140. ling and withdrawal not notice, 140, 256. of chattel mortgages, 254. FIXTURES— chattel mortgages of, how recorded, 252. FLORIDA— statutory provisions relating to registry, 317-321. proof of execution of deed must show its delivery, 321 note. FORGED DEED— record of, not notice, 154 note. FRAUD— record is not constructive notice of fraud against creditors, 176 note, effect of fraudulent release of mortgage, 175. when certiflcate of acknowledgment impeachable for, 89, 90, 121. FUTURE ADVANCES— mortgages for — ^record effectual to what extent, 170 note, 164, 171 note. G. GEORGIA— statutory provisions relating to registry, 322-328. priority in record of deeds and mortgages, 167, 323. conveyances attested for record, how, 52. mortgages void for usury, by statute, 154 note. purchase money mortgages — priority of, 172 note. record of title to personal property, 328. creditovs as affected by the recording acts, 192 note, 194, GOOD FAITH. See Actual Notice. purchase not in, not protected, 215. what is necessary to, 202. as an element of "purchaser for valuable consideration ," 201. as defined in Massachusetts, 201 note, as applied to creditors, 218, 194, 200. 756 GRANTOR AND GRANTEE. INDEX. INQUIRY. GRANTOR A>TD GRA"NrTEE. See Acknowledgment. stating grantor's name in ttie certificate, 78. omission of names from blanlis, 81, 82, 112 note. from the transcribed record, 82. GROWING CROPS— chattel mortgages of — record notice, when, 273, 274. H. HANDWRITING. See Witnesses. deed recordable on proof of, when, 130. HEIR— purchaser from, protected against unrecorded deed of ancestor, 184, 158. HOMESTEAD- statutory record in conveyances of, 48. HUSBAND AND WIFE. See Married Woman. joint certificate of aclinowledgment by, 112. joint conveyances of wife's property, 186. community property of, 114. notice to husband is notice to wife, when, 239. I. IDAHO TERRITORY— statutory provisions relating to registry, 329-333. acknowledgment of deeds by corporations and agents, 331. IDENTITY— of grantor to be shown in certificate of acljnowledgment, when, 76. how made to appear in the certificate, 77. of wife, how shown, 113. ILLINOIS— statutory provisions relating to registry, 334-337. acknowledgment of chattel mortgages, 246. purchaser from conditional vendee protected, 250. INDEX— not usually essential to the record, 142. special statutory index in' some states, 143, 343. indexing necessary to notice, when, 142, 143, 343. of judgment satisfaction charges what notice, 175 note. INDIANA— statutory provisions relating to registry, 338-342. chattel mortgages to be recorded within ten days, 255, 342. INFORMATION. See Putting on Inquiry. source and certainty of, 224. INNOCENT PURCHASER. See Bona Fide Purchaser. how defined, 202. INQUIRY. See Actual Notice. when and how to be prosecuted, 223-226. what is sufficient to put upon, 223-225, 181 note. 757 INTEREST. INDEX. LEX SITUS. INTEREST— mortgage to show rate of, 171. usury as rendering mortgage void, 154 note. ESTTERPBETEK— officer may use, to explain deed, etc., 57. IOWA— ^_, statutory provisions relating to registry, 343-346. noting in Index and transfer book essential to record, ii6, 14;}. JOESTT PURCHASERS— notice to one is notice to the others, when, 239. JOINT TENANTS— possession by, as notice, 235, 236. JUDGMENT— purchaser under, chargeable with notice of invalidity of, 212 note, abstract of, to be recorded, when, 42. as a link in chain of title, 162 note, when reversal of, destroys sale made under, 191 note, as affecting an unrecorded deed, 191. on an acknowledgment, how affected by subsequent validating statute, 97. JUDGMENT CREDITOR. See Creditor. where protected by the registry acts, 196. how and to what extent protected, 197-200. E. KANSAS— statutory provisions relating to registry, 347-351. law as to acknowledgment, 52. actual notice of chattel mortgage does not affect creditors, 270, 357. of deed, what sufficient, 222. KENTUCKY— statutory provisions relating to registry, 352-356. married woman's power of attorney, 117, 354 note, bond for title held not recordable, 38. KNOWLEDGE. See Actual Notice. statutes requiring actual knowledge, 222. possession must be known, when, 229. what sufficient to put on inquiry, 216, 223-228. of agent charges principal, when, 240-244. one with knowledge of fraud takes subject, 89, 121. LEASE— as affected by the recording acts, 28. LEX SITUS— controls as to acknowledgment, 11. as to chattel mortgage, when, 268. 758 LIENS. INDEX. MARYLAND. LIEN'S. 8ee Mortgages. record of attachment and execution, 44. mechanic's liens, 45, 46. priority in record of, 169. priority as between judgment and mortgage in Texas. 109. of judgment attaches though deed to debtor not recorded, 192 note. LIS PENDENS— record of notices of, 43. LOUISIANA— statutory provisions relating to registry, 357-360. acknowledgment not essential to record, 52 note, actual notice of no effect, 217. record of privileges, 360. of mortjjag-es, 358. deed of trust will not answer for a mortgage, 210. mortgage of realty embraces, what, 154 note. re-inscription of mortgages, 173. M. MAINE— statutory provisions relating to registry, 361-364. how far possession is notice, 229, 361 note. the law as to actual notice, 222. MANNER OF KECORD— various details reliiring to, 150. copying seal, signing the record, etc., 150. MAPS— law relating to record of, 49, 149 note dedication by record of town-plat, 49 MARITIME LIEN— not required to be recorded, 275, 276. MARK— sufficient signature in proof of handwriting, 130. MARRIAGE— is deemed valuable consideration, 204. MARRIED WOMAN. See Acknowledgment by; Wife. acknowledgment by — -conflict of statutes, 8. the law relating to her conveyances, 98-102. acknowledgment of her deeds, 103-110. \ her disabilities as affecting her conveyances, 116-125. joinder of husband necessary, when, 186. registry of her separate property, 185. joint possession with husband as notice, 235. as affected by notice to the husband, 239. validating deeds of, 120. impeaching certificate of her acknowledgment, 121. deed by, alone, charges notice, when, 158 note. deed to, whether separate or community property, 114, 177 note. MARYLAND— statutory provisions relating to registry, 370-374. purchaser from conditional vendee protected, 250. mortgages require affidavit of bona fldes, 366, 3ti9, 271. creditors as aflected by the recording acts, 194 note. 769 MASSACHUSETTS. INDEX. MOKTUAGE, MASSACHUSETTS— statutory provisions relating to registry, 375-37S. the law of actual notice, 222. possession as affording notice, 229. MECHANICS' LIENS— law relating to registry of, 45, 46. MICHIGAN— statutory provisions relating to registry, 375-379. wills required to be recorded, 376 note. MINNESOTA— statutory provisions relating to registry, 380-384. priority of purchase mon«y mortsfage, 172. "purchaser" defined by statute, 380. Mississippi- statutory provisions relating to registry, 385-389. acknowledgment of deed must show its delivery, 3S7 note, purchaser at execution sale protected, when, 212 note, 195 note. possession of grantor not notice, 230 note. MISSOUEI— statutory provisions relating to registry, 390-395. actual notice of chattel mortgage unavailing, 269. sheriffs' deeds not valid without acknowledgment, 54. 392 note. law as to actual notice, 222. MISTAKE— of grantor's name in certificate of acknowledgment, 78 note, in record discharge of mortgage, 175. in copying deed or mortgage into the record, 16-18, 171. what notice is imparted by erroneous record, 16-18. subsequent purchaser without notice not affected by, 154. MONTANA TERKITORY— statutory provisions relating to. registry, 396-400. MORTGAGE— conveys legal title in what states, 24. general features relating to registry of, 30. record of deed absolute is notice of, 139. contra — is not effectual as notice, 137, 138. priority in the record of, 170, 166. simultaneous — -rule as to priority, 170. delay in recording, not prejudicial, when, 171. rate of interest to be shown, as against subsequent lien, 171. loss of priority of record not relieved in equity, 171. doctrine of tacking not applied, 171. priority of purchase money mortgages, 172, 223 note. record of mortgage before deed to mortgagor, 160, 161, 223 note. re-inscription of mortgages in Louisiana, 173. to secure future advances — lien to what extent, 164, 170 note, 171 note, release of part of property, without payment, .after notice of a subsequent mortgage, 171 note, agreement for extension to be recorded, when, 171 note. musi state the amount of indebiedness secured, 171 note, by ancestor, though unrecorded, good over judgment .igainst heir. 171 note, transfer of negotiable note carries mortgage, 204 note. 7fiO MORTGAGE. INDEX. NOTICE. MORTGAGE— Continued. substituted, loses priority ot record, wtien, 171 note, 169 note, assignment of, to be recorded, when, 33, 174, 209. failure to record does not cause a merger because ot re-conveyance, 174 note, discharges and releases of, by record, 175. failure to record— subsequent purchaser protected, 175 note, release not good against holder of the note, 175 note, actual notice of release sutflcient, 175. mortgagee a purchaser, 209. purchaser under, with notice, protected, when, 199 note. N. NAME— stating grantor's, ia certificate of acknowledgment, 78. mistake in filling blank with wrong, 78 note, identity of, prima facie sufficient, 78 note. NEBRASKA— statutory provisions relating to registry, 401-405. creditors as affected by the registry acts, 192 note. wills required to be recorded, 401. lien of judgment has priority, when, 169. NEVADA— statutory provisions relating to registry, 406-410. NEW HAMPSHIRE— statutory provisions relating to registry, 411-415. NEW JERSEY— statutory ijrovisions relating to registry, 416-421. NEW MEXICO— statutory provisions relating to registry, 422-426. NEW YORK— statutory provisions relating to registry, 427-431. actual notice of deed unacknowledged and unattested is inef- fectual, 218. as to record of executory contracts, 37. record of deed absolute not notice of mortgage, 138. NORTH CAROLINA— statutory provisions relating to registry, 432-436. actual notice of mortgage ineffectual, 217. law pertaining to deeds and mortgages, 217. making tar on land as possession of it, 233 note. NOTARY PUBLIC— authorized to take acknowledgments, when and where, 61. use of notarial seal by, 73. NOTICE. See Actual Notice; Effect of Becord. definitions of, 220 note, different kinds and degrees of, 219-221. record is constructive, 152. the law of ^actual notice, 215-244. notice to creditors, 197, 270. to purchasers, 199-202. "to all the world"— limitations, 21, 22. 761 OFnCERS. INDEX. PERSONAL PROPERTY. 0. OFFICERS— authorized to take acknowledo;ments, 61. official capacity to be stated, 71, 72. double certificate necessary, when, 75. recorders and clerks, 148. their liability lor damages, 148. of corporations — notice to, 244. OHIO— statutory provisions relating to registry, 437-442. actual notice of mortgage ineiifectual, 217. record of deed absolute as mortgage, 13S. knowledge of unrecorded deed — what is, 222. OREGON— statutory provisions relating to registry, 443-447. creditors as affected by the recording acts, 192 note. PAROL EVIDENCE. See Evidence. admissible to impeach certificate of acknowledgment, when, 87-89. amount necessary to overcome the certificate, 90, 121. PARTITION— by parol, exempt from the recording acts, 48 note. PARTNER— notice to, is notice to the firm, 239. notice of partnership has what effect, 224 note. chattel mortgage by — place of record, 264. PART PAY5IEXT— is sufficient consideration, when, 206, 205. relief afforded pro tanto, 206. PATENTS— when required to be recorded, 25. recitals in, as charging notice, 177. PENNSYLVANIA— statutory provisions relating to registry, 449-453. record of deed absolute not notice of mortgage, 138. purchaser from conditional vendee protected, 250. PERSONAL PROPERTY. See Chattel Mortgages. general features of the law of record, 40. general principles of registry apply to, 245. what embraced within the recording acts, 40, 245. the rule of construction as to, 245. statutory distinctions. 246. possession of, as evidence of title, 247.. does not protect purchaser, 247, 248. conditional sales of — law of record as to, 249-251. removal of, and lex situs, 265-268. chattel mortgages — law of record, 252-274. mortgages of ships and vessels, 275, 276. 762 PLACE OF KECOED. INDEX. PRIVILEGES. PLACE OF RECORD— in county where the land lies, 13.4. in what offices— general land office, 135. as to chattel mortgages, 201-265. of deed of assignment in Xew York, 211 note. PLATS— of towns and cities — law of record, 49. dedication of streets and lots by record of plat, 49. POWER OF ATTORNEY— usually within the recording acts, 29. when and where to be recorded, 29. of wife, not valid, when, 117. revocations of, to be recorded, 29. to assign and discharge mortgage, held not recordable, 209 note. POSSESSION— is notice — reason of the rule, 228. exceptions to the rule, 229. must be known to subsequent purchaser, when, 229, 222. by grantor, after deed made, not notice, 230. contra — held notice, 231. will be referred to a title of record, 232. must be open and notorious, 233. must be actual — character of defined, 234, 233. imder junior title, must be actual, how far, 234 note. joint, not notice, when, 235. by husband and wife, tenants in common, 235, 232. by tenant is notice of landlord's title, 236. not notice to landlord of adverse claim, 236. must be existing and continuous — vacant premises, 237. under statutes of limitation, 234. by mortgngee, notice to what extent, 232. under written instrument, extends how far, 234. PRESUMPTION— in favor of officer's jurisdiction, 66. of ancient deeds and acknowledgments, 95. of notice from facts putting on inquiry is rebuttable, 153, 227. PRINCIPAL AND AGENT. See Agent. notice to principal is notice to agent, 238. application and limitations of the rule, 239-244. acknowledgment of deed by agent, 59. where agent is guilty of fraud, 243. where agent acts for both parties, 242. notice to be in same transaction, when, 241. PRIORITY— of record gives priority of right under same statutes, 13, 166. the rule where not determined by statute, 14, 166. the reason and equity of the matter, 13-16, 165-168. in the record of liens, 169. of purchase money mortgages, 172. of mortgages in general, 170, 171. in conveyances and x-eoords of same date, 169. simultaneous conveyance is not a subsequent one, 167, 170. PRIVILEGES— record of, in Louisiana, 360. 763 PEOBATE. INDEX. REGISTKATION. PKOBATE— of deeds for acknowledgment in North Carolina, 69. PKOMISSORY NOTE— giving, constitutes payment, when, 205. holder of, secured by mortgage, protected against release of the mortgage, 175. with vendor's lien, may be recorded, 48 note, 360 note, transfer of, carries mortgage, when, 204 note. PUBLIC POLICY— registry laws conducive to, 19. PURCHASER. See Subsequent Purchaser. protected by the l-ecording acts, when, 199-214. PUTTING ON INQUIRY. See Actual Notice. charges with notice, whea, 223, 219. what is sufficient and not, 224, 225. inquiry to be prosecuted, and how far, 226, 227. recitals in title papers as, 178-181, 221 note. Q. QUIT-CLAIM— gives notice of imperfect title, 27, 183. contra — purchaser by, protected, 27, 188. R. RATIFICATION— by wile, of deed with defective acknowledgment, 119. of acts of agent by principal, 242 note. RECITALS— of purchase money paid, sufficient, when, 204. to other instruments charge notice, 181. as supplying gap in recorded title, 159, 160 note. to matters of fact put on inquiry, 182. general rules as to recitals, 178. in same chain of title charge notice, 221, 181 note, 178. unusual and imperfect recitals, 179, 180, 174. RECORDER. See Certificate. waives payment of fees in advance by filing conveyance, 151. duties and liabilities of, 148. should correct the record by recording anew, 191 note. RECORDED TITLE— protects a purchaser, when, 154. when it does not protect, 154, 156. EE -PILING. See Chattel Mortgage. of chattel mortgages, 257-259. excusea by possession being taken, 259. REGISTRATION- the English system, 1, 2. the American theory and system, 3, 4, 152. extension of the system of, 19, 36, 39. 764 EESIDENCE. INDEX. STATE. RESIDENCE. See Chattel Mortgage; Corporation. of mortgagors as place of record, 261-264. of owner of ship at home port, 275. EESULTING TRUST— not within operation of the registry laws, 19, 20. when purchaser not protected against, 200.. EEVOCATIOiSr— of powQr of attorney to be recorded, when, 29. RHODE ISLAND— statutory provisions relating to registry, 455-459. RIGHT-OF-WAY- grant of, to be recorded, 48. user as giving notice of, 233 note. RUMORS- not sufficient to charge notice, 225. SALE. See Conditional Sale; Bill of Sale. of personal property not usually to be recorded, 40, 245. of 'mortgaged crop — vendee protected, when, 274. SATISFAOTION. See Mortgage. rules as to record entry of, 34, 175. SCHEDULE— to be recorded with deed or mortgage, 149. SCROLL— will usually suffice for private seal, 146. SEAL— official, to be used by officer, when, 73. how refen-ed to in the certificate, 74. how made to appear on the record, 74, 150. SEPARATE PROPERTY. See Community Property. what recitals charge notice of, 114, 182 note, 177 note. SHERIFFS' DEEDS— acknowledgment necessary to validity, where, 26, 54. certificates of sale— record of, 26, 54. vendee in, protected, when, 199, 200. record of no avail, when, 157 note. GTTTT>0 registry of bills of sale and mortgages of, 275, 276. SI&NATURE- of officer necessary to his certificate, S.i. of recorder not necessary to record, 150. record of deed without, 146. SOUTH CAROLINA- statutory provisions relating to registry, 460-464. rights of creditors under the registry acts, 194. OPTi A T'TT protected as a "purchaser," 200 note. 765 STATUTES. INDEX. TIME. STATUTES— conflict of, as to registry among ttie several states, 5. summary of state, relating to registry, 277-506. registry dependent entirely upon, 23. the early English statute quoted, 1. where permissive — effect of non-registry, 188 note, 40. STOCKHOLDER— notice to, not notice to corporation, 244. STREETS— dedication by recorded plat, 49. SUBSEQUENT PURCHASER. See Purchaser. protected "by the regiifry acts, 198-211, 154. may purchase with actual notice, when, 199, 200, 155. must be bona fide, 201, 202. at execution and bankrupt sales, 212, 213. of same property from same grantor, 214. at mortgage sale, with notice, protected, when, 199 note. SURETY— not entitled to subrogation as against a. subsequent mortgage, when, 176 note. payment of note by, is valuable consideration, 205 note. T. TACKING— doctrine of, not applicable under the registry acts, 171, TAX DEED — record of, not notice of what, 177 note. holder of unrecorded, not affected by suit, when, 191. TELEPHONE— acknowledgment taken by, valid, p. 195. TENANT— possession by, is notice of landlord's title, 236. and of the tenant's right in the premises, 236. TENANT IN COMMON— possession by, notice, how far. where one is affected with actual notice, 155 note. TENNESSEE— statutory provisions relating to registry, 465-470. creditors as protected by the recording acts, 194, 214, 196. conveyance by wife of her separate property, 186 note. TESTIJIONIOS— authentication and record of, 97. TEXAS— statutory provisions relating to registry, 471-476. wife may convey by power of attorney, 117. community and separate property deeds, 114. actual notice does not affect creditors of chattel mortgagor 270. registry of wife's separate property, 185. ' possession under statutes of, 234 note. TIME— recording may be done at any time, 131. statutory time within which record may be made with risht of priority, 7, 132. ^ effect of record within and after the, 133, 167. 766 TIME, INDEX. VENUE. TIME.— Continued. chattel mortgages to be filed within what, 255. time when actual notice given will be effectual, 205. extension of, as valuable consideration, 208. TITLE— does not pass without acknowledgment, when, 54. without record, when, 189. TRUST. See Trustee; Besulttng Trust. actual notice of, is binding, 210 note. TRUSTEE— is alone authorized to release trust deed, when, 176 note. is regarded as a purchaser, when, 210, 35. for benefit of creditors, not a purchaser, 210, 211. notice to, is notice to cestui que trust, when, 239. cannot take acknowledgment of deed of trust to himself, 35, 67. TRUST DEED— usually regarded as a form of mortgage, 35, 210, 175 note, rule not universal, 35, 358 note, release of, when not effectual, 175 note, not assignable like a mortgage, 210 note. r. USAGE— recognized as determining the proper book of record, 37, 188. and as to proof for record by witnesses, 122. USURY— mortgage Invalidated by, in Alabama and Georgia, 154 note, 209. UTAH TERRITORY— statutory provisions relating to registry, 477-480. possession by polygamous wife not notice, when, 235 note. VALIDATING STATUTES— a frequent exercise of legislative power, 28. constitutionality of such statutes, 23, 97. of defective acknowledgments, 97, 190 note. of deeds of married women, 120. of defective records, 190. as affecting two adverse deeds of same property, 168 note. as affecting sheriffs' deeds, 26, VALUABLE CONSIDERATION— defined, under the registry acts, 204, 205, 206. antecedent debt as, 207.' extension of time as, 208. VENDOR'S LIEN— how far exempted from the operation of the registry laws, 20. implied, now abolished in many states, 20. prohibited by general policy of registry acts, 20, 200 note. VENUE— statement of in certificate of acknowledgment, 70. 767 VERMONT. INDEX. WYOMING TERKITORT. VERirON^T— statutory provisions relating to registry, 481-484. VESSELS— ^ ^ ,-. bills of sale and mortgages of, to be registered, where, ^/&. state and Federal legislation on the subject, 276. VIKGESriA— statutes relating to registry. 485-488. creditors protected to what extent, 193, 196, 197, 211 note, deed of married woman not effectual until recorded, 186. antecedent debt is valuable consideration, 207, 211 note. VOID DEED— record of, is not notice, 154 note. W. WARRANTY— where deed is with, after-acquired title enures to benefit of first recorded conveyance, 161. WASHINGTON TERRITORY- statutory provisions relating to registry, 489-493. registry of wife's separate property, 185. WEST VIRGINIA— statutory provisions relating to registry, 494-498. creditors as protected by the recoi-ding acts, 196. WIDOW— ratification by, of deed defectively acknowledged as wife, 119. WIFE. See Married Woman. acknowledgment of deeds by, 103-110. conveyances by and to, 116-125, 186. WILLS— laws relating to the record of, 50. recorded as conveyances in some states, 51. WISCONSIN— statutory provisions relating to registry, 499-503. WITHDRAWAL— , of deed after filing — effect of, 140, 256. of chattel rnortgage, 254. WITNESSES— proof for record by, as at common law, 122. general features of the statutes, 123. summary of statutory provisions, 124. are of grantor's selection, when, 125. proof by one when statute requires two, 126. to deed, not chargeable with notice of it long afterwards, 223 note, defined — when disqualified, 127, the certificate and affidavit of proof by, 128. other statutory matters as to proof by, 129. proof of handwriting, 130. subscribing, essential to record, when, 145. statutory certificates of proof by, 321, 326, 341, 345, 350. WYOMING TERRITORY— statutory provisions relating to registry, 504^-507. 768