Hunter v. Watson

Baldwin, J., delivered the opinion of the Court—Field J., concurring.

We have given the important questions raised by the record, our most serious attention. The amount involved in this particular case is not considerable, but the principles are of the greatest importance. The questions are not free from difficulty; indeed, they are full of embarrassment, arising not only from several decisions of our own Court, which, to say the least, do not seem altogether consistent, and from the conflicting nature of the decisions in other States and in Great Britain. Upon no subject is it more important that the law should be beyond doubt as to its construction, and simple and precise in its provisions. And it may well merit legislative consideration, whether the Statutes of Registration should not be thoroughly revised, so as to secure uniform and certain rules for the disposition and protection of real estate in the future.

It is not necessary to review the various decisions of this Court. The questions we are considering turn upon the proper construction of the twenty-fourth and twenty-sixth sections of the Recordation Act of 1850. This is the language of the twenty-fourth section, as amended in 1855 : “ Every conveyance of real estate, and every instrument of writing, 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 recorded 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 twenty-sixth section is as follows: “ Every conveyance of real estate within this State, hereafter made, which shall not be recorded as provided in this Act, shall be 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.”

It would seem that the Legislature designed, in the twenty-fourth section, to hold that the recording of the deed was necessary to give notice of it to third persons, and supposed that the want of such notice [374]invalidated the deed as to them; but that afterwards the twenty-sixth section was inserted, wThich was intended to qualify and limit the effect of this provision. The twenty-sixth section is taken from the legislation of New York on that subject, and is in the words of a section of a statute of that State. Taking both sections together, it seems evident that the true construction is, that the failure of a grantee to record a deed, does not absolutely and without exception avoid the deed as to third persons ; for, if it did, it is impossible to give effect to the words “ bona fide purchaser for a valuable consideration.” The failure to register only protects this class of persons. Under the registration laws of England and the American States, (which did not contain this limitation) Courts of Equity engrafted this exception, and held, in numerous cases, that the purchaser of lands, knowing them to have been before sold by the vendor, though the deed was not recorded, was not within the protection of the statute. (Sec. 10, John. 457) The Irish Registry Act makes no exception or qualification, but the record is the only notice ; and, in some of the States—Massachusetts, Maine, and perhaps others—actual notice is the only substitute for the notice by the registry.