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subsequent purchaser from such grantee, shall suffer for the mistake of the recorder. By some courts it is said that a deed filed for record and recorded is notice to subsequent purchasers, notwithstanding the failure of the officer to index it, or error in indexing it; the index, it is said, is not a part of the record.16 It is constructive notice, perhaps, as the courts may have reasoned, because the validity of the record of a conveyance depends upon the act of recording, and not upon the index, as in the case of the validity of a judg ment which we know depends upon the entering, and not upon the index. But it would seem that under modern statutes, where the recorder is required, as a part of his official duty in connection with making record of instruments, to make the proper indexes, that both the making of the index and the record constitutes the recording.

§ 174b. Same Subject Further Considered-Effect of Improperly Indexed Record, or of No Index upon Rights of Subsequent Purchasers-Its Bearing on Liability of Recorder in Tort.-Considerable has been said by the courts upon the question as to the effect of an improperly indexed record of a conveyance, or one which is not indexed, upon the rights of subsequent purchasers, and it appears to be conceded by one line of cases that an index to the record of a conveyance is not necessary to make the record effective notice to a subsequent purchaser; that a deed filed for record and recorded is notice to subsequent purchasers, notwithstanding the failure of the officer to properly index it or to make an index at all.17

16 As to index not being part of record, see Green v. Garrington, 16 Ohio St. 548, 91 Am. Dec. 103; Mutual Life Ins. Co. v. Duke, 1 Abb. N. C. 381; Board etc. v. Babcock, 5 Or. 472; Chatham v. Bradford, 50 Ga. 327, 15 Am. Rep. 692.

17 Green v. Garrington, 16 Ohio St. 548, 549, 91 Am. Dec. 103;

In a recent case in California it is said: "Whether subsequent purchasers or mortgagees are charged with constructive notice of the contents of an instrument that has been filed for record in the recorder's office, notwithstanding such instrument is afterward incorrectly or improperly copied into the books kept therefor, has been decided differently in different states, but it was held at an early day in this state, and must be regarded as a settled rule, that they have constructive notice of only such matters as appear from the instruments as copied into the proper books."18 The record of a deed in which appear defects which, had they appeared in the original, would have made it void, does not import notice. In considering what is necessary to complete a record, it will not answer to say that the record may be so made as entirely to defeat the object for which it was designed.19 For example, the record of a mortgage of "three thousand dollars" as one for "three hundred dollars" does not import notice of more than appears on its face.20 And so a deed of the "west" half of certain property recorded as a deed of the "east" half does not affect subsequent purchasers.21

Curtis v. Lyman, 24 Vt. 338, 58 Am. Dec. 174; Bishop v. Schneider, 46 Mo. 472, 2 Am. Rep. 533; Schell v. Stein, 76 Pa. St. 398, 18 Am. Rep. 416; Pattison v. Jordon, 3 Ohio C. C. 233; Schell v. Stein, 76 Pa. St. 398, 18 Am. Rep. 416; Chatham v. Bradford, 50 Ga. 327, 15 Am. Rep. 692.

18 Cady v. Purser, 131 Cal. 552, 82 Am. St. Rep. 391, 63 Pac. 844; Chamberlain v. Bell, 7 Cal. 292, 68 Am. Dec. 260; Donald v. Beals, 57 Cal. 399; Watkins v. Wilhoit, 104 Cal. 395, 38 Pac. 53; Battenhausen v. Bullock, 11 Bradw. 665; Galway v. Machon, 7 Neb.

285.

19 Sawyer v. Adams, 8 Vt. 172, 30 Am. Dec. 459. 20 Beekman v. Frost, 18 Johns. 544, 9 Am. Dec. 246. 21 Sanger v. Craigue, 10 Vt. 555.

The courts maintaining the rule that a record without an index imports constructive notice rightly make a distinction with reference to a mistake in recording. The decisions sustaining the rule that the record without a proper index, or without any index, operates as constructive notice were, without doubt, based upon the peculiar language of statutes, though some of the statutes would have justified a contrary holding. We find, however, decisions under the statutes of some states that a failure to index deprives the record of the power of imparting constructive notice of the existence of a mortgage or deed.2

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If there has been an error, which is material and misleading, in making an index, and it does mislead, an injury may be done; but if the error is slight, and enough appears to put a reasonably prudent person on his guard, it should then be operative as constructive notice. If one deals with property upon which there is a prior encumbrance, or if there is another conveyance, which is not disclosed to the one so dealing, whom we may call "subsequent purchaser," or "lienholder," because there is no index, or the record is improperly indexed, and such person loses the property or his money by reason of the existence of a prior valid conveyance or lien which was recorded but not indexed, he suffers a loss through the fault of some one. If the record, without the index, or with an index erroneously made, is to operate against him as constructive notice, then he is bound in law to know of such prior conveyance or lien, which is warning to him not to deal with respect to the property. If he does so deal, in the face of the construc

22 Barney v. McCarty, 15 Iowa, 510, 83 Am. Dec. 427; Nickson v. Blair, 59 Iowa, 532, 13 N. W. 641.

tive notice, and suffers injury, he cannot complain of the recorder because of his improper index, as the record of the prior conveyance or lien operates against him, and he is held in law to be in fault. He must then look to his grantor or mortgagor for breach of covenant, perhaps, or for fraud. The subsequent purchaser or lienholder can only complain of a recorder in tort when his commission or omission is with respect to some duty enjoined by law upon him, which operates as an efficient cause of his injury.

There is no sound principle which can be called in aid of a personal liability in tort on the part of a person who presents an instrument, deed or mortgage to the recorder-whom we call grantee for the neglect of the recorder in recording it, or in indexing the record. If a subsequent grantee or lienholder is injured because of some error in the record of such instrument, it may be caused by the act or omission of the recorder, or it may be caused by the act of the grantor himself, the one who leaves the instrument with the recorder, or by the concurrent acts of both these parties, each of whose acts are of a wholly different character. If the person who leaves the conveyance with the recorder does not lay himself liable in his dealing with his "subsequent grantee," but such person is injured solely because of the neglect of the recorder, there is no reason or logic which can hold the now grantor, the one who left the instrument with the recorder, in tort. The recorder is a public officer, charged with the performance of certain public duties for the benefit of an individual having occasion to examine the records, and be guided in his actions by what he finds there.

§ 174c. Subject Continued-Authorities Conflicting on Question Whether Party Filing Instrument with Recorder must See that Valid Registration is Made-True Rule as to Effect of Mistake of Record or of No Index in View of All Authorities Stated.-We are somewhat embarrassed in this discussion by so many cases which hold and contend that the current of authority is to the effect that it is the duty of the party filing the instrument, as between him and a subsequent bona fide purchaser, to see that all requisites of a valid and complete registration are complied with;23 and in a very recent case, which was an action to quiet title, it is held that "a recorder is the agent of the person who records an instrument, for the purpose of correctly transcribing it into the appropriate book of record, and errors or omissions of the former in making such transcription are, in law, the errors and omissions of the latter." It is claimed that the principle upon which the rule rests is that if a grantee of an interest in lands desires to protect himself against subsequent purchasers or encumbrancers, he must give notice of his interest, and as the statute provides constructive notice in the place of actual notice, it is incumbent upon him to comply with all the requirements prescribed for such constructive notice, one of which is the correct transcription of the instrument into the appropriate book.24 But there are authorities equally as numerous which hold that where a party

23 Sawyer v. Adams, 8 Vt. 175, 30 Am. Dec. 459; Sanger v. Craigue, 10 Vt. 555; Frost v. Beekman, 1 Johns. Ch. 288; Jansen v. Hilton, 10 Johns. 554; Jennings v. Wood, 20 Ohio, 261; Terrell v. Andrew Co., 44 Mo. 309; Shepherd v. Burkhalter, 13 Ga. 443, 58 Am. Dec. 523; Pringle v. Dunn, 37 Wis. 449, 19 Am. Rep. 772; Potter v. Dooley, 55 Vt. 512; Smith v. Lowry, 113 Ind. 37, 15 N. E. 17; Peck v. Mallams, 10 N. Y. 509.

24 Cady v. Purser, 131 Cal. 552, 82 Am. St. Rep. 391, 63 Pac. 844; citing Neslin v. Wells, 104 U. S. 428; Terrell v. Andrew County, 44 Mo. 309.

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