Miller v. Bradford

Weight, J. — I. Eor the purpose of bringing home to defendant, or those under whom he claims, notice of an outstanding title, plaintiffs proposed to prove possession of the premises in controversy, and improvements made thereon by' them, or those from whom they claim, at the time of the inception of defendant’s title. The rejection of this testimony was correct under the rule established, in Hopping v. Burnam, 2 G. Greene. 39, and Wilhelm v. Mertz, 4 Ib. 54. When the deed was not recorded, the statute then in force, required actual notice. This statute has been long since repealed. It on two several occasions, received a construction as above, which we are not disposed to change, whatever might be our view, if now presented for the first time. II. This was an action of right. The deed^under which defendant’s claim ^ was made, filed for record, and recorded prior to that under which plaintiff claims. Plaintiff had no actual notice of the prior deed, and claims that he had no constructive notice. The deed under which defendants claim, was improperly recorded, that is to say, the recorder made a material mistake in transcribing it. The question is, whether the defendants or plaintiff, shall suffer the consequences of this mistake. The court below held, that the record of the deed under which defendants hold was not constructive notice to plaintiff, and that plaintiff’s title must therefore, prevail. Upon authority the question is not free from difficulty. The leading case in this country, is Frost v. Beekman, 1 John. Ch. 288, which clearly sustains the position of appellee. And while counsel for appellants (following probably the remarks of the court in McGregor v. Dailing, 3 Stew. & [19] Port., 401,) fall into tbe error of saying that this ease was reversed on this point, in the Court of Errors, (18 John, 544,) an examination will show that it was not reversed on this ■question, but another, and that the doctrine of Chancellor Kent, was expressly affirmed. And this view, we think, is better sustained by the authorities, as well as by reason and argument; and we hold, therefore, that in this respect the court below, did not err. The authorities are collected and presented in the brief of counsel, and we need not refer to them. EH. Appellants insist, however, that under the statute of 1839, in force at the time of depositing their deed for record, the deposit with the recorder ivas all that was necessary to give the notice required by the statute, and that whether recorded or not, or however defectively recorded, they are not to suffer. In this inquiry we have nothing to do with the validity of the deed from Muir to Gaines, under whom defendants claim, as between them. Nor are we considering a case where the deed was deposited for record, remaining in the recorder’s office, with no attempt to record, but a case where a deed was deposited, and so incorrectly recorded, as to mislead a subsequent purchaser, and then withdrawn, leaving the record as the only notice of the conveyance. The statute of 1839 provided that an instrument in writing, certified and acknowledged as required by the statute, “ shall from the time of filing the same with the recorder for record, 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. ” And again, that until deposited with the recorder for record, no such instrument should be valid except between the parties thereto, and such as have actual notice thereof. Sections 30-31, acts of 1839, ch. 28, p 35. This statute in our opinion was only intended to fix the time from: which notice to subsequent purchasers was to com20 menee, and not to make such filing or depositing notice of the contents after the same was recorded. After the record of the deed, the record itself is the constructive notice of its contents, and it never was the intention of the legislature to hold a subsequent purchaser, buying after the recording, bound by the contents of a deed, ever so improperly and incorrectly recorded, because at some time, a deed correct in the description of the property, was filed with the recorder. Judgment affirmed.