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26 Cards in this Set
- Front
- Back
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D. Recording Acts – 3 types
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What are the 3 types of Recording Acts?
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1. Race 2. Notice 3. Race/notice
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Define: Race [recording acts]– \\Do you have to part with value? What are the virtues of this scheme?
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1. Race – the person who wins the race to the records prevails. Knowledge is irrelevant a) EX - O to A doesn’t record. O to B for valuable consideration. B knows of the A grant. B records. B prevails over A under race statute. B owns B/A. (1) You have to part w/value in race Jx, but you can have knowledge b) 2 virtues (1) Efficiency – race limits potential purchaser’s inquiry as to off-record information. (such as B’s knowledge or lack thereof) (2) Encourages recording
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Define: Notice [recording act] – \\\\ Who does it protect? a notice statute only protects subsequent purchases for value who have no notice. B must be a saint.
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2. Notice – a notice statute only protects subsequent purchases for value who have no notice. B must be a saint. a) A notice statute does not punish B, the subsequent purchaser, in his relationship w/A, for failing to record. B’s motivation to record is his concern about C
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EX – O to A doesn’t record. O to B for valuable consideration. B knows nothing. Who wins in a NOTICE jurisdiction?
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B wins in notice Jx. (1) B wins even though he did not record O to B deed. The virtue of the notice statute is fairness to B. c) A is stupid and lazy, he deserves to be shit on by the law
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NOTICE JURISDICTION: EX#2 – O to A doesn’t record. O to B (BFPFV). A records. C wants to buy from B. \\\ What does C need to know? How could C safely buy from B? Does C have notice of A and how?
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(1) C needs to know (a) that B is a BFPFV. (b) that B didn’t know about A’s claim (c) that B paid (2) We are in notice Jx. If B buys w/o notice and parts w/value, he is a BFPFV. B takes before A. The statute takes from A and gives to B. C could safely buy from B. B can give good title to C. (3) C has notice of A because of A’s recording, but C can take B’s title under the shelter rule. (a) Shelter rule – a person who takes from a BFPFV takes shelter under their title.
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Define: Shelter rule –
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(a) Shelter rule – a person who takes from a BFPFV takes shelter under their title.
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Define: Race/notice –
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3. Race/notice – The subsequent purchaser (B) is protected against the prior unrecorded deed only if he is: a) A BFPFV (purchased w/o notice) AND b) He wins the race to the records
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c) EX – O to A doesn’t record. O to B (BFPFV – no notice of A). A records. B records. \\\\ Who prevails?
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A prevails over B because even though B had no notice, B did not record before A did. (1) Race/notice is compromise between race or notice Jx
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Who prevails under: a) Notice Statute – A v. B \\ Examples -– O to A doesn’t record. O to B (BFPFV) doesn’t record. A records and then sells to C. C is a BFPFV. B records. C records.
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(1) B wins because he is a BFPFV. B bought w/o notice (A didn’t record)
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Who prevails under: b) Notice statute – B v. C \\\ Examples -– O to A doesn’t record. O to B (BFPFV) doesn’t record. A records and then sells to C. C is a BFPFV. B records. C records.
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(1) C wins because he is a BFPFV. To win in a notice Jx, you have to part w/value and be a person w/o notice. When A recorded, B was still the owner, but B’s title is taken away when A transfers to C.
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Who prevails under: c) Race/notice statute – A v. B – \\\ Examples -– O to A doesn’t record. O to B (BFPFV) doesn’t record. A records and then sells to C. C is a BFPFV. B records. C records.
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(1) A wins. First in time is first in right. B’s only hope is that the statute will take A’s title and give it to B. A keeps his first in time title because B didn’t’ qualify, A won the race to the record (B recorded after A)
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Who prevails under: d) Race/notice statute – B v. C \\\ Examples -– O to A doesn’t record. O to B (BFPFV) doesn’t record. A records and then sells to C. C is a BFPFV. B records. C records.
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(1) C wins. Shelter rule. Once you give A his title back, then he’s got to be able to sell it. Even though C would “know” of B’s recording, it is too late because A has transferred title to C
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What does Messersmith v. Smith say about physically copied deeds? \\\ How were there 2 O to B deeds? At common law? Race/notice Jx? How to get protection of recorindg act?\\\ FACTS: O and A are owners of B/A. O grants quitclaim deed to A, O to A Then she conveys her half to someone else, O to B. Then B to C. B records and C records.
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"just because a deed is physically copied on the record does not make it “recorded” or of the record, it must be authorized (notarized). This type of “recorded” deed will not give constructive notice, although it will give actual notice." \\\\ a) There were 2 O to B deeds. The deed was not notarized (only over the phone – doesn’t count). B’s recording doesn’t work. 6. At common law – B has nothing, therefore C has nothing. C is hoping for statute. 7. Race/notice Jx. – Court says that neither B or C can use the statute (B’s deed not recorded) a) Court’s bullshit – C did not record his whole “chain of title”. He didn’t record the deed from O to B. This is not recordable. 8. If you want the protection of the recording act, you have to show that all the deeds that connect you to the record title have been recorded. a) You have to show that your whole chain of title has been recorded. – C only recorded his own deed. He did record his whole chain of title, but there was a latent defect in it. 9. Dobie thinks this outcome was unwise a) The record “looked” perfect, how was C to know the notarization was done over the phone (1) Decisions like this (court may have thought there was fraud – city slickers looking for oil - ) based on emotions, prohibits commerce (2) No one will want to buy if they get screwed looking at a perfect record.
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O to A. O to B. B to C (BFPFV). C records. A records. B records. \\\ Titles? Did C win the race to the records?
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a) Race/notice – A v. C (1) C is BFPFV (no notice requirement satisfied). (2) Did C win the race to the records? – NO because B hadn’t recorded. C can’t record his whole chain of title. Like running a lap w/o a baton
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O to A who thinks his deed is recorded but isn’t (deed recorder forgot to copy the last page). O to B records. \\\\ Titles?
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a) B would be a BFPFV if he never saw the partial deed in the record. If he actually saw it, he would have actual notice – this is a flaw in the system. Punishing the good guy. (1) How can A protect himself – have his lawyer check the deed after it has been recorded to ensure its validity.
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O to A doesn’t record. A to B records (oops, A hadn’t recorded yet). O to C (BFPFV w/no actual knowledge.) C records. \\\\ v? who wins?
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b) B v. C – notice or race/notice - (1) C wins because the deed from A to B is wild deed. It is wild because it is not chained down. It gives no constructive notice. B made the mess, let B eat it. (a) Unless tract index was used – rare \\\ Chain of title
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Problem/case-- Who owns B/A \\ at C/L? Race? Notice? Race/Notice? \\\\Board of Ed. of MN v. Hughes – O to Hughes but deed was left blank. Name wasn’t filled in till later when it was recorded 12/1910. O to D&W recorded after Hughes. Then D&W to Board of ed. 3. The first person to receive an actual deed was D&W. A deed isn’t given effect until it is filled in. a) A is D&W, B is Board of Ed, C is Hughes 4. A bought land from O (first in time). A failed to record their deed. B recorded B’s deed from A, but not A’s from O. C had no actual knowledge and he recorded.
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5. Who owns B/A a) At C/L – B wins. A owned it (first in time) and then sold it to B. C is later in time because a deed isn’t valid until there is a name b) Race – C wins. B failed to record the whole chain of title. Even though he recorded first, A did not record. c) Notice – C wins. C didn’t have any notice of this because B’s deed is wild. C would be looking for a conveyance by O (not by A) d) Race/notice – C wins – (1) He had no notice, and he won the race (a) B ran the race w/o a baton (A didn’t record). B should have made A record the deed. They bought a title based on an unrecorded deed. (2) Record your deed and never buy from an unrecorded grantor. (a) If there was tract index – B would win – the deed from A-B would be on record.
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Wild deeds – What about notice? What about meeting recording requrements in a race or race/notice Jx?
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6. Wild deeds – a) Don’t give notice b) Don’t meet recording requirement in a race or race/notice Jx
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Example - involves interests in an adjacent or nearby lot owner (A) created by a person (O) who once owned the adjacent lot (B/A) as well as the tract at hand (W/A) – O, owner of B/A and W/A, conveys B/A to A by deed that also gives A an easement over W/A. A records and it is described in index as deed to B/A (but really includes easement). O then conveys W/A to B (BFPFV – no notice of easement). B records. \\\\\ a) Does the deed of B/A (as recorded) from O to A give constructive notice of the easement to purchasers of W/A?
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(1) If it gives no notice then B is a BFPFV, it if it does, then B is deemed to know. A would prevail and B takes W/A subject to easement (2) This decision depends on Jx. Some yes (easement was first in time) and some say no
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If you buy from a developer in X estates, you are bound by the _____ the _____ made to _____ in the ______, even if those _____ aren’t in your _____ ______ of title.
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a) If you buy from a developer in X estates, you are bound by the promises the developer made to others in the development, even if those promises aren’t in your paper chain of title.
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For reference: What did Guilette v. Daly Dry Wall – Do?
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2. Gilmore (promised all deeds would have single family restrictions) to: a) Guilette (Lot 1) – promised to keep single dwelling. Recorded as transfer affecting their lot only (actually affects other lots) b) Daly Bros – (Lot 22) – deed says nothing about restrictions. Says “see plan” They buy knowing it is in planned subdivision 3. When Gilmore made his promise, a “cloud blew over” lot 22. There was a restriction and a reduced right of use a) If the FSA is a bowl, the Guilette family crest is engraved on it when it is handed to the Daly Bros. (and it is prior in time – would win at C/L) b) The restrictions on Lot 1 also imposed those restrictions on lot 22 because of the promise that Gilmore made in the deed to lot 1. 4. Daly argues that the recording act applies (no actual notice of restriction) – act has removed engraving from the bowl a) Daly claims BFPFV status (no notice – nothing in the record) b) Court says that Daly should have found out about the restrictions from Guilette’s deed – part of a reasonable search. 5. Split of authority – this is not the rule in every Jx 6. RECAP – a) If you buy from a developer in X estates, you are bound by the promises the developer made to others in the development, even if those promises aren’t in your paper chain of title. 7. Better result than the example – there it only affected one plot of land, here it pertains to many
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Estoppel Grantee -O (doesn’t own B/A) to A records (general warranty). O subsequently acquires the title to B/A from X. A is now the estoppel grantee. O is estopped from claiming he didn’t have title when he granted to A. \\\\ b) Estoppel grantee should _____..... in order to protect himself. – general warranty provides for further production of documents needed to record.
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b) Estoppel grantee should record something after grantor becomes owner of B/A in order to protect himself. – general warranty provides for further production of documents needed to record. (1) Estoppel grantee is happy to have a general warranty deed
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Estoppel Grantee -O (doesn’t own B/A) to A records (general warranty). O subsequently acquires the title to B/A from X. A is now the estoppel grantee. O is estopped from claiming he didn’t have title when he granted to A. \\\\ a) Title “magically” passes to A by virtue of estoppel. Then O to B (no notice, for value) who records. Who wins, A or B (is B really a BFPFV)? in New and Old cases?
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(1) Older cases – held that A wins because A is first in time. (2) Majority – B wins. B wins to support efficient, rational searches of the record. (a) Hard to tell B to look for conveyances by O before O owned B/A (as far as the record shows). A is also the least cost avoider, should have recorded when O got the deed to B/A.
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O to A doesn’t record. O to B knows of conveyance to A. B records. A records. Then B to C who has no knowledge of O to A. C records. a) A v. C – split of authority\\ Who wins?
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a) A v. C – split of authority (1) Better answer – C wins, he performed a reasonable search. Recording act took away first in time. We do that for BFPFV’S because we want commerce to thrive. (a) Shouldn’t’ have to look for recordings of transfers by O after (later in time) than the record shows O to B.
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O to A doesn’t record. O to B knows of conveyance to A. B records. A records. Then B to C who has no knowledge of O to A. C records. b) Official tract index – A’s _____ would be there. C would have ____ _____. ____ would win, timing of recording is irrelevant (1) Dobie rejects book – Dobie says a ______....
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b) Official tract index – A’s recording would be there. C would have actual notice. A would win, timing of recording is irrelevant (1) Dobie rejects book – Dobie says a deed that gives no notice that is physically in the record is not “on the record”
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