Recording Acts

Chapter 32 closed with a deed that had been executed, delivered, and accepted. Title had passed. Nothing in that chapter required the instrument to be recorded, because between grantor and grantee recording is ordinarily irrelevant. Chapter 33 begins with the question Chapter 32 deferred: what happens when the deed enters, or fails to enter, the public land records, and a third person later claims the same land.

The organizing proposition of this chapter is simple to state and constantly misapplied. A conveyance may be entirely valid between the parties although unrecorded. Recording does not create the conveyance. Recording statutes determine the consequences of a valid conveyance as against certain later claimants. Everything in this chapter is an elaboration of that sentence.

1. Recording is not a source of title. An unrecorded deed that was validly executed, delivered, and accepted conveys the estate it describes as between grantor and grantee and against most of the world.
2. Recording statutes reallocate priority, not ownership. They tell a court which of two competing claimants derived from a common source prevails; they do not manufacture an interest where none was created.
3. The common-law baseline is temporal priority. Qui prior est tempore potior est jure. The recording act must be identified and applied before that baseline is displaced.
4. There are three statutory systems, and their requirements differ. Race statutes ask who recorded first; notice statutes protect a later purchaser who took for value without notice; race-notice statutes require both the absence of notice and prior recording.
5. No national recording statute exists. Recording law is state law, the statutory language varies materially, and a rule drawn from one State's decisions cannot be assumed to travel.
6. Only a qualifying claimant is protected. Most statutes protect purchasers for value without notice; the coverage of mortgagees, judgment creditors, lessees, and donees depends on the words of the particular statute.
7. A donee, heir, or devisee ordinarily receives no recording-act protection. Such a taker gave no value and therefore takes subject to the prior interest, however unrecorded.
8. Notice comes in three forms. Actual notice is knowledge in fact; record or constructive notice is imputed by law from a properly recorded and properly indexed instrument; inquiry notice arises from facts that would prompt a reasonable person to investigate.
9. Possession inconsistent with the record ordinarily charges inquiry notice. A purchaser who sees, or who could see on reasonable inspection, that someone other than the record owner occupies the land is generally charged with what a reasonable inquiry would have revealed.
10. Recordability and validity are different questions. An instrument may be perfectly valid inter partes yet not entitled to record for want of acknowledgment, and an instrument may be recorded although it conveys nothing.
11. Recording an instrument that is not entitled to record ordinarily gives no constructive notice. In many States a defectively acknowledged deed, though physically in the records, is treated as unrecorded for notice purposes; other States have cured the problem by statute.
12. An instrument outside the searcher's chain of title generally gives no constructive notice. The wild deed is the paradigm; the deeper analysis belongs to Chapter 34.
13. Indexing is part of the system, and errors in it produce a jurisdictional split. Some courts hold that a grantee who properly submits an instrument has done all the law requires; others hold that an unindexed instrument is undiscoverable and therefore imparts no notice.
14. Recording cannot validate a void instrument. A forged deed conveys nothing, and its recording does not make a subsequent purchaser's title good; a voidable deed, by contrast, may become unassailable in the hands of a bona fide purchaser.
15. The shelter rule protects transferees of a protected purchaser. One who takes from a person protected by the recording act ordinarily succeeds to that protection, even with notice, subject to the rule against a wrongdoer reacquiring title.
16. Payment must precede notice. A purchaser who learns of the prior interest before paying value is ordinarily not protected, and partial payment produces proration or comparable equitable adjustment in many States.
17. Electronic recording changes the medium, not the doctrine. URPERA and electronic-transactions legislation authorize digital submission, signature, and indexing; notice, priority, chain of title, and bona fide purchase are unaffected.
18. Marketable record title acts are distinct from recording acts. They extinguish stale interests after a statutory period measured from a root of title unless preserved, and their adoption and terms are far from uniform.
19. The public records do not disclose every interest affecting land. Adverse possession, prescriptive easements, implied easements, short-term leases, mechanics' liens before filing, and matters of survey or possession may bind a purchaser without appearing of record.
20. Title examination is a legal method, not a database query. It reconstructs a chain, tests each link, reads the instruments for recitals and references, and then applies the recording statute of the situs.

1. Explain why recording systems exist and what problem of private conveyancing they were designed to solve.
2. State the common-law priority baseline and explain precisely how a recording statute displaces it.
3. Distinguish nine separate questions: valid execution, creation of the interest, recordability, actual recording, place of recording, indexing, constructive notice, statutory qualification, and priority.
4. Classify a recording statute as race, notice, or race-notice from its operative language.
5. Apply each of the three systems to the same fact pattern and explain why the outcomes differ.
6. Identify who qualifies as a purchaser for value without notice and who does not.
7. Distinguish actual, record, and inquiry notice, and identify the facts that trigger a duty of inquiry.
8. Explain the effect of possession, visible use, and recitals in recorded instruments on the notice inquiry.
9. Explain why an instrument may be physically present in the records and yet impart no constructive notice.
10. Analyze the jurisdictional split concerning recorder indexing errors.
11. Distinguish void from voidable instruments and state the consequences for a subsequent purchaser.
12. Explain the shelter rule and its limits.
13. Describe the mechanics of electronic recording and explain why it does not alter substantive priority.
14. Distinguish a marketable record title act from an ordinary recording act.
15. Perform a structured title examination and identify the point at which the recording statute is applied.
16. Correct the principal misconceptions about recording, notice, and ownership.

• Statute of Uses, 27 Hen. 8, c. 10 (1536)
• Statute of Enrolments, 27 Hen. 8, c. 16 (1536)
• An Act for Prevention of Frauds and Perjuries (Statute of Frauds), 29 Car. 2, c. 3 (1677)
• Massachusetts Bay Colony recording ordinance of 1640 and the colonial registry acts modeled upon it
• N.C. Gen. Stat. § 47-18 (pure race recording statute)
• Del. Code Ann. tit. 25, § 153 (race statute for deeds)
• Mass. Gen. Laws ch. 183, § 4 (notice statute)
• Tex. Prop. Code § 13.001 (notice statute)
• Cal. Civ. Code § 1214 (race-notice statute)
• N.Y. Real Prop. Law § 291 (race-notice statute)
• Mich. Comp. Laws § 565.29 (race-notice statute)
• Uniform Real Property Electronic Recording Act (Unif. L. Comm'n 2004, rev. 2005)
• Uniform Electronic Transactions Act §§ 7, 16 (Unif. L. Comm'n 1999)
• Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §§ 7001–7006
• Model Marketable Title Act (1960) and the enacting state statutes (e.g., Fla. Stat. §§ 712.01–712.12; Mich. Comp. Laws §§ 565.101–565.109)
• Uniform Simplification of Land Transfers Act art. 3 (Unif. L. Comm'n 1976)
• Restatement (Third) of Property: Servitudes §§ 2.1, 7.14 (Am. L. Inst. 2000)
• Restatement (Third) of Property: Mortgages § 7.1 (Am. L. Inst. 1997)
• Messersmith v. Smith, 60 N.W.2d 276 (N.D. 1953)
• Luthi v. Evans, 576 P.2d 1064 (Kan. 1978)
• Guillette v. Daly Dry Wall, Inc., 325 N.E.2d 572 (Mass. 1975)
• Sanborn v. McLean, 206 N.W. 496 (Mich. 1925)
• Waldorff Insurance & Bonding, Inc. v. Eglin National Bank, 453 So. 2d 1383 (Fla. Dist. Ct. App. 1984)
• Mortensen v. Lingo, 99 F. Supp. 585 (D. Alaska 1951)
• Board of Education v. Hughes, 136 N.W. 1095 (Minn. 1912)
• Ayer v. Philadelphia & Boston Face Brick Co., 34 N.E. 177 (Mass. 1893)

Statutory citations are given as representative examples of drafting patterns. Classification of a State's statute is a question of its current text and of its construction by that State's courts; the examples below are illustrative and must be verified against the governing law of the situs before use.

• 2 William Blackstone, Commentaries on the Laws of England *296–*343 (1766)
• 4 James Kent, Commentaries on American Law *169–*175 (1830)
• 2 Frederick Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I (2d ed. 1898)
• A. W. B. Simpson, A History of the Land Law chs. 5–8 (2d ed. 1986)
• John Baker, An Introduction to English Legal History chs. 13–14 (5th ed. 2019)
• 4 Herbert Thorndike Tiffany, The Law of Real Property §§ 1259–1318 (3d ed.)
• 11 Richard R. Powell, Powell on Real Property chs. 82–84
• 14 Thompson on Real Property (Thomas ed.) chs. 92–93
• 4 American Law of Property §§ 17.1–17.34 (A. James Casner ed. 1952)
• Patton and Palomar on Land Titles §§ 6–70 (3d ed.)
• Charles Szypszak, Public Registries and Private Solutions: An Evolving American Real Estate Conveyance Regime, 24 Whittier L. Rev. 663 (2003)
• John L. McCormack, Torrens and Recording: Land Title Assurance in the Computer Age, 18 Wm. Mitchell L. Rev. 61 (1992)

A conveyance is complete when a competent grantor delivers, and the grantee accepts, an instrument manifesting a present intent to convey. That proposition was established in Chapter 32 and is not qualified here. The recording system operates entirely downstream of it. Recording presupposes a conveyance; it does not supply one.

The consequence is that the failure to record is never, by itself, a defect in the grantee's title. It is an exposure. The unrecorded grantee owns the land and may eject a trespasser, enjoin a nuisance, convey the estate onward, devise it, and defend it against the grantor. What the unrecorded grantee lacks is protection against a particular and narrow class of later claimants: those whom the recording statute of the situs elects to prefer.

This is why the analysis of a recording problem must proceed by discrete questions rather than by intuition. Nine questions recur, and each is separately dispositive. Was the instrument validly executed? Was an interest legally created, including by delivery and acceptance? Was the instrument eligible for recording under the statutes governing form, acknowledgment, and content? Was it in fact recorded? Was it recorded in the correct office for the situs of the land? Was it properly indexed? Did the recording, so made and indexed, impart constructive notice? Does the competing claimant qualify for protection under the statute? And only then: which interest has priority?

A student who answers these questions in sequence will rarely reach a wrong result. A student who begins with the last question will frequently reach one, because the shortcut invites the assumption that recording and ownership are the same subject.

The problem the recording system solves is the problem of the hidden interest. Land is durable, it is transferred repeatedly over centuries, and the interests that may burden it are numerous and largely invisible. A buyer inspecting a parcel can see a fence, a path, a building, and an occupant. The buyer cannot see a mortgage executed in a lawyer's office, an easement granted in a private deed, a covenant restricting use, a life estate, or a conveyance made a decade earlier and never disclosed.

Without a public record, the buyer's only protection is the seller's honesty and the buyer's ability to compel production of the seller's own muniments of title. That protection is weak, and it fails precisely in the case where protection matters: the dishonest or insolvent seller who conveys the same land twice. The recording system responds by creating a public, searchable, and permanent repository of instruments affecting land, and by attaching a legal consequence to the choice to use it or not.

The consequence is the recording system's real innovation. A mere archive would be useful but not decisive. What makes the system work is the statutory rule that an unrecorded interest may be defeated by a later claimant who satisfies specified conditions. That rule converts recording from a convenience into an incentive, and it makes the public records substantially, though never entirely, reliable.

Three limits on that reliability should be stated at the outset, because they discipline everything that follows. First, some interests bind land without ever appearing of record, including title by adverse possession under Chapter 6, easements by prescription and implication under Chapter 21, and short-term leases exempted by statute under Chapter 25. Second, the records disclose instruments, not their validity; the recorder does not adjudicate. Third, the records are searchable only through their indexes, so an instrument that the indexes do not reveal is, for practical and often for legal purposes, invisible.

Recording does not convey. The recorder's acceptance of an instrument effects no transfer; the transfer, if any, occurred at delivery. Recording does not validate. An instrument void for forgery, for want of delivery, or for the incapacity of the grantor remains void after recording. Recording does not adjudicate. The recorder examines an instrument for statutory formalities and fee payment, not for legal effect, and the acceptance of a document is not a determination that it does anything.

Recording does not guarantee. No recording statute makes the State an insurer of the accuracy of the records; that function, where it exists at all, belongs to Torrens registration and, in the American market, to title insurance, treated in Part XII. Recording does not complete the searcher's task either, because possession, survey conditions, and unrecorded interests must still be investigated.

What recording does is narrow. It places an instrument where a diligent searcher is expected to find it, it thereby charges later claimants with constructive notice of its contents, and it secures for the recording party whatever protection the local statute confers on those who record. That is a great deal in practice and very little in theory, and the difference between the two accounts is the source of most confusion in this field.

English conveyancing of freeholds was originally public but not recorded. Feoffment with livery of seisin, examined in Chapter 32, achieved publicity through ceremony and community memory rather than through a register. Its virtue was notoriety; its defect was that memory decays and that the ceremony left no durable evidence for a purchaser two generations later.

The Statute of Uses, 27 Hen. 8, c. 10 (1536), destroyed even that publicity by executing passive uses into legal estates. A bargain and sale for money raised a use in the bargainee which the Statute converted into a legal estate, and the conveyance could be accomplished by a private writing with no ceremony and no witnesses beyond the parties. Secret conveyancing had arrived by accident.

Parliament's immediate response was the Statute of Enrolments, 27 Hen. 8, c. 16 (1536), requiring that bargains and sales of freeholds be enrolled within six months. It was the first English registration statute of general application, and it was evaded almost at once by the lease and release, which used a bargain and sale of a term of years, outside the statute, followed by a release of the reversion. Conveyancers thus demonstrated within a generation the proposition that a registration requirement is only as effective as the breadth of the transactions it reaches.

The Statute of Frauds, 29 Car. 2, c. 3 (1677), required writings for interests in land but did not require registration. England went on to establish local deeds registries in Middlesex and in the Yorkshire ridings in the early eighteenth century, and eventually adopted title registration rather than deed recording. The American colonies took the other road.

American recording began early and for practical reasons. The Massachusetts Bay Colony required the recording of conveyances by the ordinance of 1640, and comparable requirements followed in Plymouth, Connecticut, and elsewhere in the seventeenth century. The colonists had no established conveyancing bar, no inherited local memory of seisin, and an abundance of land transferred rapidly among strangers. A public register was the obvious solution, and it was adopted before English law had settled on one.

Two features of the colonial system persisted and shaped everything after. Recording was local, organized by town and later by county, because land is immovable and a searcher must know where to look. And recording was of instruments rather than of titles: the register received copies of deeds and mortgages and made no determination of who owned what. The American system is therefore a system of evidence, not of adjudicated title, and the burden of constructing a title from the evidence falls on the searcher.

During the nineteenth century every State enacted a general recording act, county recording offices were established across the expanding territory, and the grantor-grantee index became the standard finding tool. Statutory drafting was not coordinated. Some legislatures wrote pure race statutes, protecting the first to record; most wrote notice or race-notice statutes, importing the equitable bona fide purchaser doctrine into the statutory scheme. The resulting diversity is not an accident of neglect but the product of fifty separate legislative histories, and it is the reason a recording problem cannot be analyzed without the statute in hand.

The twentieth century added photographic and then electronic reproduction, the tract index in a minority of jurisdictions, marketable record title legislation, and the title insurance industry that now performs, privately, much of the assurance function the records themselves do not provide. The twenty-first century has added electronic submission and remote notarization. None of these developments altered the underlying doctrinal structure created in the colonial period.

At common law the rule was temporal: qui prior est tempore potior est jure, first in time is stronger in right. If O conveyed Blackacre to A on Monday and purported to convey the same land to B on Tuesday, A prevailed. The reason is not a policy preference for early claimants but the logic of derivative title. After Monday, O had nothing left to convey; the Tuesday deed operated on an estate its grantor no longer owned.

Equity qualified the rule in one important respect long before the recording acts. Where the earlier interest was equitable and the later claimant acquired a legal estate for value and without notice, the bona fide purchaser took free of the equity. That doctrine supplied the vocabulary, value and notice, that American notice and race-notice statutes later adopted wholesale.

The recording acts displace the temporal baseline only within their terms, and only in favor of the claimants they describe. Outside those terms the baseline governs. This is why the first analytical step in every recording problem is to identify the statute and read it, and the second is to ask whether the later claimant is a person the statute protects. A later claimant who took as a gift, or who took with notice under a notice statute, or who failed to record first under a race-notice statute, is simply outside the statute and loses to the earlier interest under the ordinary rule.

It follows that the recording acts are best understood as exceptions to a rule rather than as a rule of their own. Statements of the form “whoever records first wins” are not merely imprecise; they invert the structure of the analysis.

Recording is local. Instruments affecting land are recorded in the office designated by statute for the county, parish, or town in which the land lies, variously styled the register of deeds, county recorder, county clerk, or clerk of court. Where a parcel straddles a county line the instrument must ordinarily be recorded in each county as to the land within it, and where a State maintains a separate registry district or a Torrens section, the instrument must reach the correct one.

Recording in the wrong county is a nullity as to the land elsewhere. The instrument may be perfectly valid and duly recorded somewhere, but the searcher in the county of situs will not and need not find it, and the statutory consequences of recording do not attach. The point is elementary and is nonetheless a recurring source of loss in multi-parcel transactions.

The records themselves consist of the images or transcriptions of instruments, arranged in books and pages or by document number, together with the indexes that make them findable. The instrument as recorded is a copy; the original is returned to the party. Errors in transcription are the recorder's, and their consequences are treated below with indexing errors.

Recording is complete, in most States, upon delivery of the instrument to the recorder with the required fee and its acceptance for record, and the time of receipt is stamped and governs priority as against other instruments received the same day. Statutes commonly provide that the instrument is deemed recorded from the moment of filing, which protects the depositing party against delay in the office's internal processing.

Recording statutes specify which instruments the office may receive. The list is broad and typically includes deeds of every description, mortgages and deeds of trust, assignments of mortgage, releases and satisfactions, easements and grants of profit, declarations of covenant and of common-interest-community regimes and their amendments, leases or memoranda of lease, options and rights of first refusal, contracts for deed, powers of attorney used in conveyancing, affidavits of title and of heirship, notices of lis pendens, mechanics' liens, tax liens, and judgment abstracts or transcripts where the statute makes the land records the place for docketing.

Two qualifications matter. First, a document not authorized by statute to be recorded is ordinarily treated as unrecorded even if the office accepts it, so that its physical presence in the records imparts no constructive notice. Second, several important claims are perfected elsewhere: federal tax liens under their own filing regime, security interests in fixtures and in personal property under UCC Article 9, judgments in jurisdictions that docket in the clerk's judgment records rather than the land records, and probate proceedings that transfer title by operation of law with only an incidental record in the land books.

Instruments creating future interests deserve separate mention because their doctrinal classification, established in Chapters 12 through 15, is unaffected by recording. A deed creating a contingent remainder or an executory interest is recordable, and recording it gives constructive notice of the interest; but whether the interest is vested or contingent, and whether it survives the Rule Against Perpetuities, are questions of Chapter 15, not of this chapter. Recording affects the priority and discoverability of the instrument, never the classification of the estate it creates.

Similarly, instruments creating or evidencing trusts affecting land are recordable in most States, though many permit or require the recording of a certificate or memorandum of trust in place of the full instrument, in order to establish the trustee's authority without exposing the dispositive terms.

An instrument is entitled to record only if it satisfies the statutory formalities, and those are not identical to the formalities of validity. The recurring requirements are a writing signed by the grantor, an acknowledgment before a notary or other authorized officer (or, in some States, proof by subscribing witnesses), the names of grantor and grantee sufficient for indexing, a legal description of the land sufficient to identify it, and compliance with formatting and fee requirements. Many States add a mailing address for the grantee, a preparer's name, or a transfer-tax declaration.

Acknowledgment is the requirement that generates the most litigation, because its defect can be latent. The classic treatment is Messersmith v. Smith, 60 N.W.2d 276 (N.D. 1953), where a deed was notarized although the grantor had not appeared before the notary and had not in fact acknowledged the instrument in the manner the statute required. The court held that the defectively acknowledged deed, though physically recorded, was not entitled to record and therefore imparted no constructive notice, with the result that a later claimant took as though the deed had never been recorded at all. The doctrinal significance of the decision is its insistence that the recording act's protection attaches to instruments the statute authorizes to be recorded, not to whatever happens to be in the books.

Many legislatures have moderated that result. Curative statutes commonly provide that an instrument of record for a stated period is deemed validly acknowledged, or that specified defects in acknowledgment do not impair the notice given. The existence and reach of such a statute must be checked; the Messersmith rule and the curative response coexist across the country in varying combinations.

The description requirement is functional. It must identify the land or supply the means of identifying it, and it must do so well enough that the instrument can be indexed and found. Luthi v. Evans, 576 P.2d 1064 (Kan. 1978), is the leading case on the point: an assignment conveying “all” of the assignor's interests in a county, a so-called Mother Hubbard clause, was held valid between the parties but insufficient, as recorded, to give constructive notice to a subsequent purchaser of a specific tract, because the recording system could not index a description that identified no particular land. The case is a precise illustration of the chapter's organizing distinction: valid as a conveyance, ineffective as a record.

The records are useless without indexes, and the structure of the index determines the structure of the search. Most American jurisdictions maintain two alphabetical indexes: a grantor index, listing instruments by the name of the party conveying, and a grantee index, listing them by the name of the party receiving. A searcher runs the grantee index backward to construct the chain of ownership, then runs the grantor index forward against each owner for the period of that owner's tenure, to find what each did with the land while holding it.

A minority of jurisdictions maintain a tract index, in which all instruments affecting a given parcel are collected under a parcel identifier. The tract index is superior for finding purposes and largely dissolves the wild-deed problem, but it requires the office to determine which instruments affect which parcel, a determination the name indexes avoid. Torrens registration, adopted in a limited number of American jurisdictions and largely in decline, goes further still: the State adjudicates title, issues a certificate, and the certificate rather than the chain is the object of the search. Torrens is best treated here as a comparative model that shows what the recording system deliberately declines to do.

Name indexes fail in predictable ways. Names are misspelled, abbreviated, transposed, or entered under a variant; corporate and entity names change through merger and conversion; individuals use middle initials inconsistently or marry and take a different surname. The doctrine of idem sonans, treating names that sound alike as the same for indexing purposes, mitigates some of this but is applied with varying generosity, and it does not help where the variance is visual rather than phonetic.

The recurring doctrinal question is the recorder's own error. Suppose a grantee properly submits an acknowledged deed with the correct fee, and the office records the image but omits or misindexes the entry, so that a later searcher exercising due diligence cannot find it. Jurisdictions divide. One line of authority holds that the depositing party has done everything the statute requires and that priority attaches upon delivery to the recorder, placing the loss on the searcher; the other holds that constructive notice depends on discoverability, that an unindexed instrument is not discoverable, and that the loss falls on the party who could have verified the index. A third, statutory approach fixes the rule expressly, sometimes coupled with a remedy against the recorder or a recording-office indemnity fund. No national rule exists, and a confident statement of one is a reliable sign of error.

American recording statutes fall into three families. The classification is a tool for reading a statute, not a substitute for reading it, and a number of statutes are hybrids or have been construed by their courts in ways that their words alone would not predict.

A race statute protects the claimant who records first, without regard to notice. Its operative language typically provides that no conveyance is valid as against any subsequent purchaser for value “but from the time of registration.” North Carolina is the standard modern example, N.C. Gen. Stat. § 47-18, as is Delaware for deeds, Del. Code Ann. tit. 25, § 153. The virtue of the race system is certainty: the contest is decided by the timestamps in a public office, and litigation about what a purchaser knew is largely eliminated. Its cost is that it will occasionally prefer a purchaser who knew perfectly well of the earlier conveyance and hurried to the courthouse, and most States found that cost unacceptable.

A notice statute protects a subsequent purchaser who takes for value and without notice of the earlier interest, whether or not that purchaser records first. Typical language provides that an unrecorded conveyance is void as against any subsequent purchaser in good faith and for value “without notice.” Massachusetts, Mass. Gen. Laws ch. 183, § 4, and Texas, Tex. Prop. Code § 13.001, are examples. Under a pure notice statute the protected purchaser prevails at the instant of purchase, and a later recording by the earlier grantee does not divest that protection, because the statute measures notice as of the time value was given.

A race-notice statute protects a subsequent purchaser only if that purchaser took for value, without notice, and recorded before the earlier claimant. California, Cal. Civ. Code § 1214, New York, N.Y. Real Prop. Law § 291, and Michigan, Mich. Comp. Laws § 565.29, are examples. The system combines the equitable concern of the notice statute with the evidentiary discipline of the race statute, and it has the practical merit of rewarding prompt recording, which improves the records for everyone.

Two drafting details repay attention. First, the class protected varies: some statutes say “purchasers,” others add “mortgagees,” “creditors,” or “lien creditors,” and the presence or absence of those words decides cases. Second, some statutes speak of good faith in addition to want of notice, and a few courts have given the phrase independent content. Neither detail can be supplied by classification alone.

The table states the dominant pattern within each family. Jurisdiction-specific qualifications are common, particularly as to whether mortgagees and judgment creditors are within the protected class and as to whether the statute requires good faith in addition to want of notice. Verify the governing statute and its construction before applying the table to a live problem.

Classification proceeds from the operative clause. Isolate the sentence that states when an unrecorded instrument is void, or when a subsequent taker prevails, and identify three variables: whether the statute conditions protection on the absence of notice, whether it conditions protection on recording, and whom it names as protected.

If the clause conditions protection on recording alone, the statute is race. If it conditions protection on the absence of notice alone, the statute is notice. If it requires both, and in particular if it protects a subsequent purchaser “whose conveyance is first duly recorded,” the statute is race-notice. The phrase “first duly recorded” is the most reliable single marker of the race-notice family, and the word “duly” carries the Messersmith point: recording that the statute did not authorize is not due recording.

Two cautions follow. A State may have one statute for deeds and another for mortgages or for leases, with different classifications, so the instrument in question determines which statute applies. And judicial construction may have added requirements the text does not contain, most often a requirement of good faith or a rule about the effect of a quitclaim, so the statute must be read together with its leading decisions.

The protected claimant under a notice or race-notice statute is a purchaser for value without notice, commonly called a bona fide purchaser. Each element carries doctrinal weight.

Purchase means acquisition by the act of the parties rather than by operation of law. It includes a buyer of the fee, a mortgagee taking a security interest, a lessee taking a term, and a grantee of an easement, subject to the statutory description of the protected class. It excludes those who take by descent, devise, or gift, because they are not purchasers at all and have parted with nothing.

Value means consideration that is substantial rather than nominal, and it need not equal market value. A recital of one dollar is generally insufficient standing alone. The cancellation of an antecedent debt is treated as value in some States and not in others, a division of practical importance for mortgagees taking security for an existing obligation and for creditors accepting a deed in lieu.

Timing is critical: the purchaser must have given value before receiving notice. A purchaser who learns of the prior interest after contracting but before paying is ordinarily not protected as to payments made thereafter. Where payment has been partial, courts apply one of several remedial approaches, awarding the purchaser a pro tanto interest measured by payments made before notice, allowing rescission with restitution, or granting the land subject to a lien for the amounts paid.

Good faith, where the statute requires it, adds a subjective dimension to the objective inquiry into notice. Most courts treat the two as substantially coextensive, but a purchaser who deliberately avoids inquiry in order to remain ignorant may fail the good-faith requirement even where no single fact would have charged inquiry notice.

Whether a grantee under a quitclaim deed may be a bona fide purchaser divides the States. One line of authority holds that a quitclaim, because it purports to convey only whatever the grantor has, puts the grantee on notice that the title may be defective and therefore disqualifies the grantee from protection. The prevailing modern view rejects the categorical rule, treats the form of deed as one circumstance bearing on notice, and permits a quitclaim grantee who paid value and knew nothing to claim the statute's protection. The rule of the situs must be identified; neither position may be stated as the American rule.

The judgment creditor's position illustrates why the statutory text controls. A judgment lien attaches by operation of law to the debtor's interest in land in the county where the judgment is docketed. If the debtor had already conveyed the land away by an unrecorded deed, the debtor owned nothing to which the lien could attach, and under the common-law analysis the creditor takes nothing. A recording statute that protects only “purchasers” leaves that analysis undisturbed. A statute that protects “creditors” or “lien creditors” reverses it and permits the docketed judgment to defeat the unrecorded deed. The two results follow from two different sentences in two different statute books, and there is no general principle that resolves the question.

Donees, heirs, and devisees stand outside every recording act that requires value, and the reason is that the statutes exist to protect reliance purchased at a price. A volunteer who receives land gratuitously has changed no position and suffers no injustice in taking subject to interests the grantor had already created.

The shelter rule addresses the transferee of a protected purchaser. Once a bona fide purchaser has taken free of a prior interest, that purchaser may convey the title so cleared, and the transferee succeeds to the protection even if the transferee has actual knowledge of the defeated interest. The rule protects the market value of what the protected purchaser acquired, since a title that could not be resold would be worth less than the statute intended to give. Its principal limit is that a person who was himself bound by the prior interest cannot improve his position by conveying to a bona fide purchaser and reacquiring the land.

Notice is the pivot of the notice and race-notice systems, and it exists in three forms that must not be conflated. Actual notice is knowledge in fact of the competing claim, however acquired: from the grantor, from a neighbor, from a title report, or from having read the earlier deed. It is proved like any other fact, and it defeats protection under any statute that requires the absence of notice.

Record notice, also called constructive notice, is knowledge imputed by law. A person acquiring an interest in land is charged with knowledge of the contents of every instrument that is properly recorded and properly indexed within the chain of title that a reasonable search would examine, whether or not that person searched. Record notice is not a presumption about what the purchaser knew; it is a rule about what the purchaser is treated as knowing, and it is unrebuttable by proof of ignorance.

Inquiry notice is imputed knowledge of a different kind. Where a person is aware, or would be aware on the inspection and search the law requires, of facts suggesting that another may hold an interest in the land, that person is charged with whatever a reasonable investigation of those facts would have disclosed. Inquiry notice thus operates in two steps: a triggering fact, and an imputation of the knowledge that following up would have produced. A purchaser who makes the inquiry and is thwarted by the concealment of the party in possession stands differently from one who never asked.

The terminology is not uniform. Some courts describe record notice as a subspecies of constructive notice alongside inquiry notice; others use constructive notice to mean record notice only and treat inquiry notice as a third category; and a few statutes define the terms expressly. The analytical content is stable even where the labels move, and an examinee should define the terms being used rather than assume the reader's usage matches.

The most important trigger of inquiry notice is possession inconsistent with the record title. The rule, accepted in substance nearly everywhere, is that open, visible, and exclusive possession by a person other than the record owner charges a purchaser with notice of whatever interest that possessor holds and would disclose on inquiry. The justification is practical: an inspection of the land costs little, and possession is the oldest and most reliable public indicator of a claim.

The rule has limits. Possession must be open and apparent, so that a reasonable inspection would reveal it; equivocal or seasonal occupancy may not suffice. Possession consistent with the record, such as occupancy by the record owner's tenant on terms the records disclose, ordinarily triggers nothing. And in a minority of jurisdictions statutes qualify the doctrine, particularly for short-term leases.

Waldorff Insurance & Bonding, Inc. v. Eglin National Bank, 453 So. 2d 1383 (Fla. Dist. Ct. App. 1984), illustrates the operation of the doctrine against an institutional lender. The occupant held an unrecorded contract for the purchase of a condominium unit and was in open possession; the bank later took a mortgage covering the unit. The court held that the occupant's possession charged the lender with inquiry notice of the occupant's equitable interest, so that the mortgage took subject to it. The significance of the case is that recording-act protection is not available to a claimant who declined to look at the land.

Visible use short of possession may also trigger inquiry. A worn roadway across the parcel, a utility installation, a drainage structure, or a party wall may put a purchaser on notice of an easement or a profit even where no instrument appears of record, and Chapter 21's implied and prescriptive easements arise in exactly this way. A purchaser who buys land traversed by an obvious road and later insists on the silence of the record will ordinarily lose.

A purchaser is charged with the contents of instruments in the chain of title and, in most jurisdictions, with the further duty to pursue what those instruments disclose. A deed that recites “subject to an easement of record in favor of the adjoining owner,” or that refers to a declaration, a plat, an unrecorded agreement, or a prior instrument, charges the purchaser with inquiry into the matter referenced, whether or not the referenced instrument is itself recorded.

The principle extends to the muniments the purchaser actually examines. A mortgage that recites an assignment, a deed that recites the grantor's authority under a power of attorney, or a release that recites a modification each supplies a fact from which inquiry must proceed. It is no answer that the referenced instrument was not found; the question is whether reasonable diligence following the reference would have found it.

Guillette v. Daly Dry Wall, Inc., 325 N.E.2d 572 (Mass. 1975), and Sanborn v. McLean, 206 N.W. 496 (Mich. 1925), illustrate the reach of the doctrine in the servitude context. In Guillette a common grantor imposed restrictions in deeds to other lots in the subdivision; the later purchaser's own deed was silent, yet the court charged the purchaser with notice of the restrictions contained in the common grantor's other deeds. In Sanborn the court found a reciprocal negative servitude and charged the purchaser with inquiry notice arising from the uniform residential character of the neighborhood. Both decisions expand the searcher's burden beyond the direct chain and are, for that reason, controversial and not universally followed; Chapter 34 examines the chain-of-title dimension of the problem in detail.

Constructive notice cannot be defined without the concept of the chain of title, because the law charges a purchaser only with what a reasonable search would reveal, and the scope of a reasonable search is fixed by the indexing system. The chain of title is the sequence of recorded conveyances by which title passed from a chosen starting point to the present record owner, together with the instruments each owner executed during the period of ownership.

The standard search has a definite shape. The searcher fixes the property and its legal description, identifies the apparent current owner, selects a search period determined by statute, custom, or a marketable-title root, and runs the grantee index backward from the current owner to establish how each owner acquired. The searcher then reverses direction and runs the grantor index forward against each owner in the chain, from the date that owner acquired to the date the owner conveyed, capturing mortgages, easements, covenants, leases, options, and liens created during the tenure.

Two consequences follow, and they are the whole of the chain-of-title foundation required for this chapter. First, an instrument recorded outside that search pattern is generally not discoverable by a diligent searcher and therefore generally imparts no constructive notice, notwithstanding its physical presence in the records. Second, whether a particular instrument falls inside or outside the pattern depends on the timing of its recording and on the identity of its parties, not on its importance.

This chapter stops there. The construction of chains across gaps, the treatment of instruments recorded too early or too late, estoppel by deed and after-acquired title in the recording system, deeds from a common grantor to other parcels, and the sequencing of multiple competing claims are the subject of Chapter 34, which takes the framework built here and applies it to the difficult cases.

A wild deed is an instrument that is recorded but that cannot be found by a search of the indexes conducted in the standard way, because it lies outside the chain of title. The paradigm case is a deed from a grantor who does not appear in the record chain: O conveys to A, A fails to record, A conveys to B, and B records. B's deed is in the books, but a searcher tracing the grantee index backward from the record owner will never encounter A, and running the grantor index against O will never disclose the A-to-B deed, because O was not its grantor. B's deed is wild.

The consequence is that the recorded wild deed ordinarily imparts no constructive notice. A later purchaser from O, who searches correctly and finds nothing, takes without notice; the earlier line loses under a notice or race-notice statute, and often under a race statute as well, on the ground that recording outside the chain is not the recording the statute contemplates. Board of Education v. Hughes, 136 N.W. 1095 (Minn. 1912), is the classic authority for the proposition that a deed recorded before the grantor's own acquisition appears of record does not give notice, and the wild-deed cases apply the same discoverability logic.

Two observations complete the treatment appropriate to this chapter. A tract index dissolves the problem, because the search key is the parcel rather than the names, which is one reason tract-index jurisdictions report fewer of these cases. And the wild-deed rule is not a punishment for the earlier line's recording but a recognition of the limits of the finding system: the instrument gives no notice because it cannot be found, and the remedy is for the earlier grantee to record the missing link.

The deeper problems, deeds recorded late, deeds recorded early, and instruments from a common grantor affecting other parcels, are reserved to Chapter 34.

It is useful to gather in one place the situations in which an instrument physically present in the public records fails to impart constructive notice, because the pattern is counterintuitive and recurs throughout the remainder of Part XI.

An instrument not entitled to record gives no notice in most States, the defective acknowledgment of Messersmith being the leading illustration, subject to curative statutes. An instrument recorded in the wrong county gives no notice as to land elsewhere. An instrument whose description is too indefinite to identify the land, as in Luthi, gives no notice to a purchaser of a specific tract. An instrument outside the chain of title gives no notice under the wild-deed rule. An instrument omitted from or misindexed in the indexes gives no notice in those jurisdictions that measure notice by discoverability. And a document of a type the statutes do not authorize to be recorded gives no notice even though the office accepted it.

The unifying principle is that the recording acts protect a searcher who searches correctly. Constructive notice is the price of a system that permits a diligent purchaser to rely on a finite search; it attaches where the search should have found the instrument, and it does not attach where it should not.

The distinction announced in the opening section must now be stated in its operational form. Four questions arise about every instrument, and their answers are independent.

Execution asks whether the instrument satisfies the requirements for creation: a competent grantor, an identifiable grantee, words of present grant, a sufficient description, and a signature. Delivery asks whether the grantor manifested the intent that the instrument become presently operative and surrendered control over it. Recording asks whether the instrument entered the public records in a manner the statutes authorize. Priority asks whether the interest prevails against a competing claimant.

The permutations are the substance of the chapter. A deed may be valid but unrecorded, in which case it conveys and remains vulnerable. It may be valid and recorded, the ordinary case. It may be invalid despite recording, as with a forgery. It may be recorded but outside the chain of title, in which case it conveys and gives no notice. And it may be fully enforceable between the parties while losing priority to a protected subsequent purchaser, which is the recording act's characteristic result and the one that most often surprises the loser.

Recording cannot make a void instrument operative. A forged deed is the clearest example: the purported grantor never executed it, never delivered it, and never intended anything by it. Because the forgery conveys nothing, the forger's grantee acquires nothing, and a subsequent purchaser from that grantee, however innocent and however diligent, acquires nothing either. The recording acts do not apply, because they allocate priority between competing derivative interests and there is no derivative interest to allocate. This is the harshest rule in the field, and it is the principal reason title insurance exists.

A deed procured by fraud in the inducement stands differently. The grantor executed and delivered it, intending to convey, though the intent was induced by a lie. The deed is therefore voidable, not void: it passes title subject to the grantor's power to rescind. If, before rescission, the fraudulent grantee conveys to a purchaser who pays value without notice, the purchaser's title is ordinarily good and the defrauded grantor is left to a personal remedy. The distinction between fraud in the inducement and fraud in the factum, where the grantor was deceived as to the very nature of the instrument signed, is decisive: the latter is generally treated as producing a void deed.

Other defects sort along the same line. A deed executed by a person wholly without capacity, or by an agent whose authority never existed, or delivered without any intent that it operate, is commonly void. A deed obtained by undue influence, executed by a person of impaired but not absent capacity, or delivered under a mistake, is commonly voidable. Defective execution may render an instrument invalid, unrecordable, or merely irregular depending on the statute, and defective acknowledgment ordinarily affects recordability alone.

A fraudulent conveyance in the creditor sense, a transfer made to hinder or delay creditors, is a further category and is governed not by the recording acts but by uniform fraudulent transfer legislation. Such a conveyance is valid between the parties, is recordable, and is avoidable by creditors on statutory grounds independent of anything in this chapter.

The servitudes examined in Chapters 21 through 24 are peculiarly dependent on the recording system, because they are nonpossessory and frequently invisible. An easement granted by deed, a profit à prendre, a real covenant, an equitable servitude, and a common-interest-community declaration with its amendments are all recordable, and recording them charges subsequent purchasers of the burdened land with record notice of the burden.

Two features of servitude law complicate the picture. First, servitudes may arise without any instrument: by implication from prior use, by necessity, by prescription, or by estoppel. Such servitudes bind subsequent purchasers without appearing of record, and the purchaser's only protection is inspection of the land, since a visible way, pipe, or drainage course supplies inquiry notice. Second, servitudes are often imposed by a common grantor in a series of deeds to different parcels, and whether a purchaser of one parcel is charged with restrictions contained in deeds to other parcels is the chain-of-title question raised by Guillette and Sanborn and reserved to Chapter 34.

Common-interest communities under Chapter 24 present the recording system at its most orderly. The declaration is recorded before or during the initial sales, each purchaser takes with record notice of the entire regime, and amendments recorded in accordance with the declaration bind subsequent purchasers on the same theory. The Restatement (Third) of Property: Servitudes § 7.14 and the uniform acts assume this recorded structure throughout.

Leases occupy a special position because possession usually accompanies them. Statutes in most States require the recording of leases exceeding a stated term, commonly one, three, five, or seven years, and exempt shorter terms from the recording requirement altogether. An exempt short-term lease binds a subsequent purchaser without recording, and a long-term lease that should have been recorded and was not may be defeated by a protected purchaser, subject always to the inquiry notice arising from the tenant's occupancy.

Commercial practice frequently records a memorandum of lease rather than the lease itself: a short instrument identifying the parties, the premises, the term, and any option or right of first refusal, executed and acknowledged so as to be recordable, and designed to give record notice of the leasehold without publishing the rent and the covenants. The memorandum gives notice of what it recites, and a purchaser who reads it is on inquiry as to the underlying document.

Tenant possession is the dominant practical fact. A purchaser who inspects and finds a tenant in occupancy is charged with notice of the tenancy and, in most jurisdictions, of its terms, including options to purchase or to renew contained in the unrecorded lease. The complete treatment of leasehold estates, assignment, and sublease belongs to Chapters 25 through 27; the point here is only that the recording system's protection is unavailable to a purchaser who ignores the occupant.

A mortgagee is, in the ordinary case, a purchaser for value within the recording acts, and a mortgage takes and loses priority by the same rules that govern deeds. The mortgagee who lends new money on the faith of a clean record and records promptly is protected against prior unrecorded conveyances and encumbrances to the extent the statute allows; the mortgagee who fails to inspect the land, or who takes security for an antecedent debt in a State that does not treat that as value, may not be. The full analysis of mortgage priority, subordination agreements, purchase-money priority, future advances, and the effect of modification and refinancing belongs to Part XIII, and to Chapter 38 in particular.

Future interests present a narrow but recurring question. An instrument creating a reversion, a remainder, or an executory interest is recordable, and recording it charges later purchasers of the possessory estate with notice of the future interest. Recording does not, however, alter the classification of the interest, the applicability of the Rule Against Perpetuities, or the destructibility rules examined in Chapters 12 through 15. A contingent remainder does not become vested because it is recorded, and an interest void under the Rule is not saved by appearing in the books. The recording system speaks to discoverability and priority; the estate system speaks to what was created.

Trusts affecting land follow the same pattern. Recording a deed to a trustee, or a certificate of trust, gives notice of the trustee's record title and authority; it does not adjudicate the beneficiaries' equitable interests, and a purchaser dealing with a trustee must ordinarily satisfy itself of the trustee's power to convey.

The mechanics of recording have been transformed and the doctrine has not. The Uniform Real Property Electronic Recording Act, promulgated in 2004 and revised in 2005, has been enacted in a large majority of States. Its operative provisions are modest by design: an electronic document satisfies any requirement that a document be in writing or be an original; an electronic signature satisfies any signature requirement; a physical or electronic notarial act may be evidenced electronically; and a recorder that accepts electronic documents must do so under standards adopted by a designated commission. URPERA authorizes; it does not reallocate priority.

The Uniform Electronic Transactions Act and the federal E-SIGN Act, 15 U.S.C. §§ 7001 through 7006, supply the general law of electronic signatures and records against which URPERA operates. Remote online notarization statutes, widely adopted after 2019, permit the notarial act to be performed by audiovisual communication with identity-proofing and tamper-evident sealing requirements. Electronic submission has correspondingly shortened the interval between closing and recording, which reduces the gap in which competing instruments can intervene, a practical improvement in priority safety that is not a change in the rules of priority.

Three cautions attend the digital records. Electronic indexes typically cover only recent decades, so a search of the statutory period will usually require the older books, and a reliance on the online index alone is a common source of professional liability. Data-entry errors propagate through automated systems and reproduce the indexing problems discussed above in a new medium. And the availability of images online does not enlarge the chain of title: an instrument that would be wild in a paper system is wild in a digital one, because the legal question is what the required search reveals, not what a full-text query could turn up.

The proposition to carry forward is straightforward. Electronic recording changes the form of submission, the speed of indexing, and the convenience of retrieval. It does not abolish notice, priority, chain of title, or bona fide purchase.

A recording act allocates priority; a marketable record title act does something different. It extinguishes. Modeled on the Model Marketable Title Act of 1960 and enacted in a substantial minority of States, such statutes provide that a person holding an unbroken record chain for a statutory period, commonly thirty or forty years, measured from a root of title, holds a marketable record title free of interests arising before the root, unless those interests were preserved by re-recording a notice, by an exception in the root itself, or by falling within a statutory exception.

The mechanism should be distinguished from the recording acts in three respects. Its operation does not depend on any competing purchaser; it runs by the passage of time. Its effect is to destroy the older interest rather than to subordinate it. And it requires affirmative action by the holder of an old interest, in the form of a preservation notice, rather than mere recording at the outset.

The exceptions are extensive and are the reason such statutes have not simplified American titles as much as their drafters hoped. Typical exceptions preserve interests of the United States and of the State, rights of persons in possession, visible easements and utility easements, mineral interests in some States, and matters disclosed in the muniments constituting the chain. Adoption is uneven and the statutory periods and exceptions vary. The full treatment of title assurance, including title insurance and the abstract-and-opinion practice, is reserved to Part XII, and this section is confined to distinguishing the marketable-record-title device from the recording act.

Doctrine becomes usable only when it is attached to a method. The following workflow states the ordinary sequence of a title examination in a name-index jurisdiction. Actual professional practice varies with the jurisdiction, the recording system, local title standards, and the scope of the engagement, and nothing here substitutes for the standards of the situs.

The examiner identifies the property and obtains a legal description sufficient to fix it, ordinarily from the current deed or an existing survey. The examiner identifies the apparent current record owner and establishes the search period, whether by the marketable-title root, by a statutory period, or by local title-standard custom. The examiner then runs the grantee index backward from the current owner, link by link, until the period is satisfied, recording for each link the date of the instrument, the date of recording, the parties, and the interest conveyed.

The examiner reverses direction and runs the grantor index forward against each owner in the chain, from the date that owner acquired to the date the conveyance out was recorded, capturing every instrument that owner executed while holding: deeds, mortgages, assignments and releases, easements, covenants, leases and memoranda, options, contracts for deed, and any liens or judgments docketed against that owner during the period. The examiner reads each instrument rather than relying on the index description, because recitals, exceptions, and references to other documents are found only in the text.

The examiner then leaves the records. Possession must be investigated: who occupies, under what claim, and whether any occupancy is inconsistent with the record. Visible conditions must be examined for evidence of servitudes, encroachments, and boundary discrepancies. Off-record sources must be checked as the jurisdiction requires: tax records, probate and divorce proceedings affecting owners in the chain, corporate good standing and authority for entity grantors, UCC filings for fixtures, and federal tax lien indexes where they are separately maintained.

Finally the examiner reasons. Gaps in the chain, anomalous instruments, defective acknowledgments, instruments recorded out of sequence, and name variances must each be resolved or noted as exceptions. Recordability is separated from validity, and validity from priority. The recording statute of the situs is then applied to any competing claim identified, and the examiner determines whether further investigation, curative action, or an exception in the title commitment is required.

The following questions, asked in order, resolve nearly every recording-priority problem encountered in practice or on an examination.

1. What interests are claimed, by whom, and from what common source?
2. Was each interest validly created, as a matter of execution, delivery, and acceptance?
3. Is any instrument void rather than merely voidable?
4. Which State's recording statute governs, and what are its exact words?
5. Is the statute race, notice, or race-notice, and whom does it protect?
6. Is the later claimant a purchaser, a mortgagee, a creditor, or a volunteer?
7. Did the later claimant give value, and how much of it was given before notice?
8. Was each instrument entitled to record, and was it recorded in the county of situs?
9. Was each instrument properly indexed, and if not, what does this State do about it?
10. Is each recorded instrument within the chain of title a diligent searcher would examine?
11. Did the later claimant have actual notice?
12. Was the later claimant charged with record notice?
13. Did possession, visible use, or a recital charge the later claimant with inquiry notice?
14. Under the statute as applied to these facts, who prevails?
15. Does the shelter rule alter the result for any downstream transferee?

Unless otherwise stated, O is the common grantor, A is the earlier grantee, and B is the later claimant. Each illustration states facts, the governing rule, the analysis, and the result.

1. “An unrecorded deed is automatically invalid.” A validly executed, delivered, and accepted deed conveys the estate it describes whether or not it is recorded. Recording affects exposure to certain later claimants, not validity.
2. “Recording creates ownership.” Recording is an act of publication. Ownership was created by delivery of the instrument, and no amount of recording will create an interest that the instrument failed to convey.
3. “Whoever records first always owns the property.” That is the rule only under a pure race statute, and only as between claimants the statute protects. Under notice statutes recording order may be irrelevant, and under race-notice statutes recording first is necessary but not sufficient.
4. “Every state follows the same recording statute.” Recording law is state law with fifty separate legislative histories. States divide among race, notice, and race-notice systems, and within each family the protected class and the required elements differ.
5. “A recorded instrument always gives constructive notice.” It does so only if it was entitled to record, recorded in the county of situs, properly indexed in jurisdictions that so require, and within the chain of title a diligent searcher would examine.
6. “Anything physically located in the recorder's office is automatically in the chain of title.” The chain of title is defined by what the required search pattern reveals. An instrument the indexes do not connect to the searcher's chain is outside it, however prominently it sits in the books.
7. “Actual notice is the only type of notice that matters.” Record notice is imputed by law without regard to knowledge, and inquiry notice charges a purchaser with what a reasonable investigation of known facts would have revealed. Most recording cases are decided on one of these two rather than on actual knowledge.
8. “Constructive notice and inquiry notice are identical.” Record notice arises from the contents of a properly recorded instrument in the chain. Inquiry notice arises from facts outside the record, such as possession or visible use, and extends to what diligent follow-up would have disclosed.
9. “A purchaser can ignore someone visibly occupying the property.” Open possession inconsistent with the record ordinarily charges the purchaser with notice of the occupant's interest. Failure to inspect the land is one of the most common ways recording-act protection is lost.
10. “A wild deed gives constructive notice simply because it was recorded.” A wild deed cannot be found by a correct search, and an instrument that cannot be found imparts no constructive notice. The cure is to record the missing link in the chain.
11. “A forged deed becomes valid once recorded.” A forgery is void. It conveys nothing, its recording changes nothing, and a subsequent purchaser from the forger's grantee ordinarily acquires nothing. Title insurance, not the recording act, is the protection against this risk.
12. “Recording cures defects in execution.” The recorder examines form and fees, not legal effect. Some States have curative statutes that validate specified defects after a period of record, but those are legislative exceptions, not a general principle that recording cures.
13. “A quitclaim grantee can never be a bona fide purchaser.” That was the older rule and survives in some States. The prevailing modern view treats the deed form as one circumstance bearing on notice and permits a quitclaim grantee who paid value without notice to claim the statute's protection.
14. “Judgment creditors always receive the same protection as purchasers.” A judgment lien attaches only to what the debtor owns and is protected against prior unrecorded conveyances only where the recording statute expressly extends to creditors.
15. “Electronic recording changes the substantive priority rules.” URPERA and electronic-transactions legislation authorize digital submission, signature, and indexing. Notice, priority, chain of title, and bona fide purchase are untouched.
16. “The recorder guarantees that a recorded document is legally valid.” The recorder is a custodian, not an adjudicator. Acceptance for record certifies compliance with filing formalities and nothing about the instrument's legal operation.
17. “The public records reveal every enforceable interest affecting land.” Adverse possession, prescriptive and implied easements, exempt short-term leases, unfiled mechanics' claims, boundary and survey conditions, and matters of possession may bind a purchaser without appearing of record.
18. “Title examination means searching only the current owner's name.” A correct examination runs the grantee index backward through each link in the chain and the grantor index forward against each owner for that owner's tenure, then leaves the records to investigate possession and off-record sources.

Chapter 33 has established the American recording system and the statutory framework that governs recorded and unrecorded interests. The system exists because private conveyancing hides interests that later purchasers cannot discover, and it responds not by creating title but by publishing instruments and by attaching consequences to the choice to publish or not. Recording is downstream of conveyance throughout: it presupposes a valid instrument, and it decides only which of two competing claims derived from a common source prevails.

The chapter traced that system from livery of seisin through the Statute of Uses, the Statute of Enrolments, and the Statute of Frauds to the colonial ordinances and the nineteenth-century county recording acts, and it identified the common-law baseline of temporal priority that the recording acts displace only within their terms. It examined recordability, situs, and indexing, and showed why an instrument may be valid and yet ineffective as a record, as in Messersmith and Luthi.

It then developed the three statutory systems. Race statutes ask who recorded first. Notice statutes protect a later purchaser who gave value without notice. Race-notice statutes require both. Around those systems the chapter built the doctrine of the protected claimant, distinguishing purchasers, mortgagees, lessees, judgment creditors, donees, heirs, and quitclaim grantees, and the doctrine of notice in its actual, record, and inquiry forms, with possession and visible use as the dominant practical triggers.

The chapter separated four questions that are routinely conflated: execution, delivery, recording, and priority. It explained why recording cannot validate a void instrument and why a voidable one may become unassailable in the hands of a bona fide purchaser, and it stated the shelter rule and its limits. It introduced the chain of title only so far as constructive notice requires, sketched the wild-deed problem as the paradigm of a record that gives no notice, analyzed the jurisdictional split on indexing errors, distinguished electronic recording from substantive change, distinguished marketable record title acts from recording acts, and reduced the doctrine to a title-examination workflow, an analytical checklist, twenty worked illustrations, and eighteen corrected misconceptions.

Part XI now continues. Chapter 34 — Chain of Title and Priority takes the framework developed here and applies it to the harder problems: how a chain of title is constructed across gaps and defects, which instruments fall inside and which outside the chain, deeds recorded too early and too late, estoppel by deed and after-acquired title within the recording system, restrictions imposed by a common grantor on other parcels, special indexing problems, and the sequencing of priority among three or more competing claimants. This chapter supplied the statute and the concept of notice. The next supplies the search.

• 4 Herbert Thorndike Tiffany, The Law of Real Property §§ 1259–1318 (3d ed.) (recording, notice, and bona fide purchase)
• 11 Richard R. Powell, Powell on Real Property chs. 82–84 (the recording system and its operation)
• 4 American Law of Property §§ 17.1–17.34 (A. James Casner ed. 1952)
• Patton and Palomar on Land Titles §§ 6–70 (3d ed.) (recording practice, indexing, and title examination)
• A. W. B. Simpson, A History of the Land Law chs. 5–8 (2d ed. 1986) (uses, enrolment, and conveyancing evasion)
• John Baker, An Introduction to English Legal History chs. 13–14 (5th ed. 2019)
• Charles Szypszak, Public Registries and Private Solutions: An Evolving American Real Estate Conveyance Regime, 24 Whittier L. Rev. 663 (2003)
• John L. McCormack, Torrens and Recording: Land Title Assurance in the Computer Age, 18 Wm. Mitchell L. Rev. 61 (1992)
• Uniform Real Property Electronic Recording Act (Unif. L. Comm'n 2004, rev. 2005) and the enacting state statutes
• Model Marketable Title Act (1960) and the enacting state statutes