$142. Delivery after Recording. Where a deed was executed and acknowledged by the grantor, who of his own motion filed it for record, and after it had been duly copied upon the records, delivered it to the grantee, the record was held not to impart notice from the date of filing, for the reason that until delivered it was not a completed instrument, as the title to the property was still in the grantor.1 $143. Same-Effect of Subsequent Delivery.-Where, however, the deed is delivered after it has been recorded, it does not lose all the benefits of the registration, but the record will he notice to all who purchase subsequent to the delivery; but those who may have purchased during the time between the registration and the delivery of the deed, without notice, and for value, will be as effectually protected as though the instrument had never been recorded at all.2 $144. Must be Recorded by Proper Officer. It would seem scarcely necessary to add that in order to render the recording effectual, it should be the act of an officer duly authorized and empowered to act in the premises. The mere copying an instrument upon the records by a volunteer who had not been previously deputized or authorized to perform the work, would not amount to constructive notice. --- $145. Recorded by Officer De Facto. - But where an officer is acting under a government de facto, though it be unlawful. and revolutionary, if it be of paramount force within the district where the officer exercises his functions, his official acts, not directly in aid of the war power of the unlawful government, will be regarded as valid and binding. $146. Same. So the registry of a deed by a clerk who continued to exercise his official duties in the State of Virginia after the passage of the ordinance of secession, while the county was under control of the military power, was held valid." 1Parker v. Hill, 8 Metc., 447; Life Ins. Co. v. Rowand, 26 N. J. Eq., 389. 'Parker v. Hill, 8 Metc., 447; Jones v. Roberts, 65 Me., 273, Henning v. Fisher, 6 W. Va., 238; see, also, Texas v. White, 7 Wall., 733; Thorington v. Smith, 8 1d., 1; Griffin v. Cunningham, 20 Gratt., 31; Sherfy $147. Effect of Error in Record. The record, in order to fulfill its proper function, should be an exact copy of the words and figures contained in the original, set forth in their proper order of arrangement. The greatest care is usually taken in recording, to produce a literal transcript of the instrument filed for record-even to the perpetuation of its errors and omissions. But in prosecuting his labors with the exact nicety required to avoid trifling errors, the officer occasionally commits errors of a graver sort, by which the record is liable to mislead. Errors of this kind have been held to vitiate the record and destroy its efficiency as constructive notice.1 $148. Errors in Description. As where the statute rendered the filing of the instrument constructive notice to all purchasers subsequent to the date of such filing, regardless of the time of copying the instrument upon the records, it was held that after the record was completed, purchasers without actual notice of the contents of the original had only constructive notice of what such record would disclose; and there being an error in the description, by which it appeared that the interest conveyed was the undivided interest, whereas, in the original Ideed it was the individual interest, it was held that the notice was only of the conveyance of the undivided half, as appeared by the records. So where the recorder inserted the name of the wrong person as grantor, the record was treated as notice of a conveyance by the individual whose name was erroneously entered upon the records as executing the instrument.8 2 $149. Effect of Filing and Subsequent Error in Recording.— Many of the recent authorities seem to favor the view that when the instruments have been spread upon the records, they only give notice of the contents of such as are correctly recorded, although previous to their being recorded, the filing v. Argenbright, 1 Heiskell, 128; Harrison v. Farmers' Bk. of Va., 6 W. Va., 1. 1 Jennings v. Wood, 20 O., 261 ; Terrel v. Andrew County, 44 Mo., 309. 2 Miller v. Bradford, 12 Ia., 14. for record is complete notice of the contents of the original. The purchaser is protected in placing complete reliance upon the records as he finds them, and is not bound to take notice of errors in recording of which he has never been actually informed. This doctrine is fully maintained and ably set forth in the case of Terrel v. Andrew County,' by Judge WAGNER, who, in delivering the opinion of the court, says: "The obligation of giving the notice rests upon the party holding the title." If his duty is imperfectly performed, the consequences must fall upon him, and not an innocent purchaser. In this case the filing is recognized as sufficient to protect the grantee, even where the deed has not been recorded. In examining titles, one first searches the records, and then examines the files in case he finds nothing recorded. But if the record shows a conveyance he will be guided by that, and will not consult the files in order to examine the original. It is held that the bond given by the recorder for the faithful performance of his duties, is for the benefit of every person injured by his dereliction of duty, and not merely for the benefit of subsequent purchasers. In this case, for the one who deposited the deeds and paid for having them recorded. According to the views of the learned Judge, it would seem to be incumbent upon the grantee to supervise the work of the officer, or at least to examine the record when completed and compare it with the original. The officer seems to act in the capacity of agent of the grantee. - §150.-To Whom is the Officer Responsible for Errors? — If this were a purely speculative question, and not one which must be determined by the weight of authority, one might be led to inquire why it is that for such acts of non-feasance or misfeasance these officers are not always required to answer to the same class of persons. As will presently appear, the innocent purchaser is in some instances regarded as the one whose rights are prejudiced by acts of negligence, somewhat similar 144 Mo., 309; see also Lally v. Holland, 1 Swan (Tenn.), 396; Brydon v. Campbell, 40 Md., 331; Barnard v. Campau, 29 Mich., 162; Pringle v. Dunn, 37 Wis., 449. to those treated of in the opinion above quoted, and the record remains unquestioned.1 8151. Different Construction of the Statute. The case of Terrel v. Andrew County may be regarded as settling the law upon this question for the state within whose jurisdiction it was decided; but the principles upon which the decision is based not only may be questioned, but confronted by a very respectable array of authorities expressing opposite views. § 152. The Notice Unaffected by Errors in Recording. — In a case where the records had been mutilated and partially destroyed, BREESE J., who delivered the opinion of the court, in commenting upon the doubts raised as to whether the deed had been properly recorded in the first instance, says: "But assuming that the deed was not properly recorded in the first instance, we then say that it is sufficient that the deed was left for record by the grantee." $153. Partial Omission. So in another case arising in the same state, it was held that when the deed is left with the officer, the grantee has done all he is required to do, and his rights will be protected though the recorder records only a part of the deed.3 $154. Entire Omission. So, also, was it held in the case of Throckmorton v Price, that a grantor leaving his deed for record is not bound to see that it is recorded. His filing it is regarded as equivalent to its registration so far as he is concerned, and his rights will be protected though it be not recorded at all.5 § 155. Views of Early American Authorities 1793. That there is no novelty in this view of the law, will appear by consulting the earlier American authorities. In the case of Franklin v. 1 Throckmorton v. Prince, 28 Tex., 605; Franklin . Cannon, 1 Root (Conn.), 500; see also Infra. 2 Merrick v. Wallace, 19 Ill., 486. 'Riggs. Boylan, 4 Biss., 445; Oats v. Walls, 28 Ark., 244. 28 Tex., 605; McGregor v. Hall, 3 Stewart & Porter (Ala.), 397. B Pasch. Dig, § 21075. Cannon,1 decided in Connecticut as early as 1793, it was held where a deed had remained for a long time in the office of the clerk, without being recorded, through no fault of the grantee, that he should not be prejudiced by the negligence of the officer, but the deed should be regarded as recorded from the time it was left with the officer for that purpose.2 § 156. Same - 1794.- In another case a mortgage was delivered to the clerk for registry, on June 26, 1766, and after an indorsement was made thereon to the effect that it was then duly registered, it was returned to the mortgagee. Subsequently in the year 1771, the land was conveyed by the mortgagor to another, and the deed was recorded the same year. The land was conveyed by deed to still another purchaser without notice in 1772, and the deed recorded immediately; the purchaser going into possession in 1773. The mortgage was not actually copied upon the records until as late as 1794; yet in an action of ejectment by the mortgagee, he was held to be entitled to the possession as he was not at fault in the matter of registration. The deposit of the mortgage with the clerk was all the duty which the law imposed upon him, and all subsequent purchasers were thereby constructively notified of the incumbrance.s - $157. Destruction of the Records Does not Affect Notice. It has also been decided that where the deed has been once recorded, a subsequent burning or other destruction of the records will not render the same ineffectual as notice to subsequent purchasers. This latter position will hardly be disputed, yet it is supported by the same reasoning as that urged in defense of the constructive notice of a deed properly deposited for record, and omitted, or improperly transcribed by a negligent officer. 2 ' Root, 500. Hartmyer v. Gates, 1 Root, 61 [decided in 1774]; McDonald v. Leach, Kirby (Conn.), 72, [1786]. Judd v. Woodruff, 2 Root, 298. Alvis v. Morrison, 63 Ill., 181. |