whom the title is transferred by operation of law, occupy no better position than any other subsequent purchaser.1

$268. Time of Filing for Record Fixed by Statute. -In those states where a certain period of time is fixed by statute within which the instrument is required to be lodged with the officer for registration, the failure to deposit it for record within the time prescribed, does not always, as we have seen,2 operate to invalidate the record. It is, in general, good for all the purposes for which it was originally designed, from the date of its filing for record, whenever that is after the time prescribed.3 But it has been decided that a voluntary deed to be effectual as against creditors of the grantor without notice, should be recorded within three months of the delivery of the deed, where that was the statutory time fixed. The statute was construed with the same strictness in favor of a subsequent mortgage given to secure the debt of the husband, where the prior voluntary deed was from the husband to the wife.5

$269. Recording After Death of Grantor. It has also been neld that the registration of a deed after the death of the grantor, was not good as against creditors of the grantor, who had no notice of such conveyance;" but the application of this rule would be controlled in a great measure by statutory pro visions, as well as by the peculiar circumstances of any case in which it might be invoked.

$270. Examining Records Insufficient Inquiry. A purchaser, who, previous to the purchase is informed of a prior unregistered deed to the same premises, and who searches the records without finding any entry of the prior deed, will not be protected as a purchaser in good faith, merely because he examined the records after receiving information of the prior deed. He should have made personal inquiry from those most

1 Corn v. Sims, 3 Met. (Ky.), 391.

Ante, §§ 102, 225.

3 Ib.

*Fulcher v. Royal, 55 Ga., 68.

Sumner v. Bryan, 54 Id., 613.

"Lank v. Hiles, 4 Houst. (Del.), 87.

likely to possess knowledge of the conveyance, and from the character of the discoveries made in the course of such inquiry, been warranted in believing that no such deed had ever been executed and delivered.1

$271. Unrecorded Chattel Mortgage. - Under a statute which rendered a mortgage of chattels void, except as against the mortgagor and his heirs, unless recorded, it was held that such a mortgage was good against an attaching creditor with notice. And also that notice to the officer levying the attachment, was notice to the creditor by whom the attachment was directed.2

In some cases con

$272. Description of Debt in Mortgage. siderable strictness has been required in mortgages, to render their registration effectual, in the description, not only of the property incumbered, but of the debt thereby secured. In general, however, more recent decisions have favored such. modifications of the rules in regard to specification of the amount of debt, and the nature of the evidences thereof, that mortgages to secure future advances, are permitted, when the amount to be secured is necessarily uncertain.3

'Shotwell v. Harrison, 30 Mich., 179. "Tucker v. Tilton, 55 N. H., 223. 'Witczinski v. Everman, 51 Miss., 841. See also United States v. Hooe, 3 Cranch, 73; Shirras v. Caig, 7 Cranch, 34; Leeds v. Cameron, 3 Sumn., 488; Commercial B'k v. Cunningham, 24 Pick., 270; Goddard v. Sawyer, 9 Allen ̧ 78; James v. Morey, 2 Cow., 246, 292. It is held in the latter case, however, that the record of an assignment of a mortgage will not be notice to subsequent purchasers, because it is not required to be registered. It is laid down in Jones on Mortgages (§365), as the English rule, with respect to notice, as it affects mortgagees for future advances, that notice to such a mortgagee of a subsequent incumbrance, will render any advances made thereafter, subservient to the lien of the second mortgagee. But such does not seem to be the rule in this country.-Jones on Mortgages, §§ 365, 366, 367, and casts cited.

III. NOTICE BY POSSESSION.

§ 273. General Doctrine.

274. Modified by Registry Laws.

275. Evidence of Actual Notice.

276. Sufficient to put Purchaser upon Inquiry.

277. Same.

278. Effect of Knowledge of Possession.

279. Voluntary Ignorance.

280. Character of Possession.

281. Possession by Tenant.

282. Notice of Interest claimed by Occupant.

283. Notice of Interest of Occupant's Creditors.

284. Tenant's Occupancy, Notice of Landlord's Title.
285. Same.

286. Consistency of Foregoing Doctrine.

287. Possession no Evidence of Title in Stranger.

288. Must be Actual, Notorious and Continuous.

289. Occupancy by Church Society.

290. Exclusive.

291. Unequivocal.

292. Doubtful in Extent.

293. Same.

294. Possession and Right Claimed, Contemporaneous.

295. Instance of Exception to the Rule. 296. Effect of Abandoning Possession. 297. Possession Referred to Record Title. 298. Same.

299. Claim Consistent with Record Title.

300. Notice of Reservation of Easement.

301. Exception to Rule Requiring Consistency.

302. Possession to Begin with Unrecorded Title.

303. Possession as Lessee Changed to Possession as Owner.

304. The Rule in Mississippi.

305. Creditors Affected with Notice.

306. Possession of Chattels.

$273. General Doctrine. The doctrine seems quite firmly established, by successive judicial decisions, both in this country

and in England, that open, notorious and exclusive possession of real estate, under an apparent claim of ownership, is notice to those who subsequently deal with the title, of whatever interest the one in possession has in the fee; whether such interest be legal or equitable in its nature.1 In general, the possession upon which such claimants rely as notice to purchasers, is held under and pursuant to an unrecorded deed, or a contract of purchase, which if in writing is unrecorded, and if merely a parol agreement, depends upon its partial execution, to entitle the covenantee to specific performance.

$274. Modified by Registry Laws. —The application of this doctrine to possession under unregistered conveyances, has, it is true, been somewhat modified by the registry laws; and in one state, at least, it has been so frequently held, under the recording act of that Commonwealth, that possession under an unrecorded deed, will not amount to notice of the title by which the possessor holds, that it may now be regarded as a settled rule of property, so far as the jurisdiction of her courts extends." There, the statute provides in substance that nothing short of actual notice of an unrecorded deed will suffice to invalidate the title of a subsequent purchaser or mortgagee, and it is held that proof of such notice is not made out, simply by showing that the grantee under the unrecorded instrument was in open occupation of the land,

'McLaughlin v. Shepherd, 32 Me., 143; Hardy . Summers, 10 Gill & J., 316; Wickes v. Lake, 25 Wis., 71; McCulloch v. Cowher, 5 Watts & Serg., 427; Woods v. Farmere, 7 Watts, 385; Bailey v. White, 13 Tex., 114; Davies v. Hopkins, 15 Ills., 519; Lea v. Polk County Copper Company, 21 How., 493; Hughes v. United States, 4 Wall, 232; Shumate v. Reavis, 49 Mo., 333; Chesterman v. Gardner, 5 Johns, Ch., 29; Tuttle v. Jackson, 6. Wend., 213; Morton v. Robards, 4 Dana, 258; Macon v. Sheppard, 2 Humph., 335; Burt v. Cassety, 12 Ala., 734; Dixon v. Doe, 1 Sm. & Marsh., 70; Johnston v. Gloncy, 4 Blackf., 94; Harris v. Arnold, 1 R. I., 125; Cunningham . Buckingham, 1 O., 127; Rogers v. Jones, 8 N. H., 264; Bailey v. Richardson, 15 Eng. L. & Eq., 218; Havens v. Bliss, 26 N. J. Eq., 363. 'Sibley v. Leffingwell, 8 Allen, 584; Dooley v. Wolcott, 4 Allen, 406; Mara o. Pierce, 9 Gray, 306; Pomroy v. Stevens, 11 Metc., 244.

and the subsequent purchaser had knowledge of such occupation. Possession is at most considered as sufficient to put subsequent purchasers upon inquiry, and under the strict provisions of the statute, this is not equivalent to notice, for the reason that the purchaser is not bound to inquire beyond the public record of conveyances, and his failure to do so does. not cast upon him either an imputation of fraud or gross negligence.

$275. Evidence of Actual Notice.-Under a statute of precisely similar import, in the State of Missouri,' the Supreme Court, by repeated decisions, have settled the law upon a construction of the statute, directly opposite to that adopted by the court of last resort of Massachusetts. And even in Beatie

3

v. Butler, where a similar construction is given to the statute as in the Massachusetts cases, Judge Scorr in rendering the opinion, says: "The fact that another is in possession, when known to a purchaser, may be submitted to a jury, in connection with other circumstances, to show that he had actual notice of an adverse title." And again-" Actual notice does not require positive and certain knowledge, such as seeing the deed; but that is sufficient notice, if it be such as men usually act upon in the ordinary affairs of life. When it is shown

that purchasers are affected with a knowledge of such circumstances, then the foundation is laid from which the inference of actual notice may be drawn." That portion of the opinion of the learned judge, which repudiates the doctrine that actual notice may be derived from the possession of the premises by the adverse claimant, is a mere dictum which does not meet with the concurrence of his associate."

1 Wag. Stat. P., 277, § 26.

Vaughan v. Tracy, 22 Mo., 415; S. C., 25 Mo., 318; Contra Beatie v. But. ler, 21 Mo., 313.

Supra.

See also Curtis v. Mundy, 3 Metc., 405.

Separate opinion by Judge RYLAND, in same case, 21 Mo., 325.