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THE COMPUTERIZATION OF LAND RECORDS:
HOW ADVANCES IN RECORDING SYSTEMS
AFFECT THE RATIONALE BEHIND SOME
EXISTING CHAIN OF TITLE DOCTRINE
Emily Bayer-Pacht ∗
INTRODUCTION
The system of publicly recording land title documents originated in
the United States in 1640, in the Plymouth and Massachusetts Bay
Colonies. 1 Under this system, recording is not required for purchasers
to take possession of property or for deeds to be effective. Rather,
recording deeds protects subsequent purchasers who take title without
notice of prior conveyances that are either recorded in a manner that
does not impart adequate notice, or are not recorded at all. 2 Recording
an instrument, however, does not protect subsequent purchasers from
prior conveyances that have been properly recorded. Therefore,
purchasers must search diligently for prior recordations in their chains
of title to ensure they are receiving good title. 3 Today, real estate
attorneys or title insurance companies usually perform these searches. 4
Still, disputes can arise between subsequent purchasers and prior
title holders over which party has better title to a parcel of property. At
∗ Managing Editor, Cardozo Law Review. J.D. Candidate (June 2011), Benjamin N.
Cardozo School of Law. My gratitude goes out to Stewart E. Sterk, whose incredible guidance
throughout both the Note writing process and law school has proved invaluable; my Notes Editors
Jonah Wexler and Amy Wolper, and Nolan Robinson, who tirelessly provided insightful and
perceptive feedback that allowed this Note to reach its full potential; my fellow staff members of
the Cardozo Law Review who supported and urged me through the process; and my entire family,
whose example I set as my standard and whose encouragement consistently pushes me forward.
Lastly, I wish to thank those extra editors whose advice I treasure and rely on daily.
1 JESSE DUKEMINIER, JAMES E. KRIER, GREGORY S. ALEXANDER & MICHAEL H. SCHILL,
PROPERTY 559 (2006).
2 John L. McCormack, Torrens and Recording: Land Title Assurance in the Computer Age,
18 WM. MITCHELL L. REV. 61, 67-68 (1992).
3 For a basic explanation of the recording process and the title search process, see CARYL A.
YZENBAARD, RESIDENTIAL REAL ESTATE TRANSACTIONS ch. 5 (2005). Generally, purchasers
wishing to ensure that they have perfect record title to property search property records to ensure
that there is no prior recorded interest that conflicts with their title.
4 Dale A. Whitman, Digital Recording of Real Estate Conveyances, 32 J. MARSHALL L.
REV. 227, 229-30 (1999).
337
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common law, the first in time purchaser always prevailed over
subsequent purchasers in these disputes. 5 However, recording acts,
which are in place in every state, supersede common law and protect
subsequent purchasers who meet the requirements of these acts. 6
Through this protection, subsequent purchasers can defeat the common
law first in time rule and prevail in title disputes. In this way, the
recording system is aimed at resolving conflicts between parties
asserting title to the same property. 7 In doing so, the recording system
determines which party has superior title to the land.
To resolve land title disputes, courts have developed chain of title
doctrines so that subsequent purchasers are protected from the burden of
searching for deeds that are recorded irregularly, as these deeds are
difficult to find in the grantor/grantee system. 8 Chain of title doctrines
protect subsequent purchasers by allowing them to prevail in a title
dispute with a prior purchaser whose deed the subsequent purchaser
does not find because of the manner in which it was recorded. These
doctrines hold that irregular recordations do not impart constructive
notice 9 on subsequent purchasers. 10 Under these doctrines, subsequent
purchasers are only bound by irregular recordations if they have actual
notice of the prior interest. 11
5 DUKEMINIER ET AL., supra note 1, at 560 (“At common law, as between successive
grantees, priority of title was determined by priority in time of conveyance.”).
6 See, e.g., CAL. CIV. CODE § 1214 (West 2005) (“Every conveyance of real property or an
estate for years therein . . . is void as against any subsequent purchaser or mortgagee of the same
property . . . in good faith and for a valuable consideration, whose conveyance is first duly
recorded, and as against any judgment affecting the title, unless the conveyance shall have been
duly recorded prior to the record of notice of action.”).
7 DUKEMINIER ET AL., supra note 1, at 560.
8 Grantor/grantee indices are usually located at the County Recorder or Recorder of Deeds
Office in either book or computerized form. BLACK’S LAW DICTIONARY 775 (7th ed. 1999).
The grantor/grantee index lists all recorded transfers of title by grantor, whereas the
grantee/grantor index lists transfers by grantee. Id. Both are usually organized alphabetically by
grantor and grantee name. Id. As such, every conveyance is recorded twice—under both the
grantor’s name and the grantee’s name. An index includes the date the transfer occurred and
references to the page and book where the document can be found. A grantor is the person who
conveys the property and a grantee is the person who receives the property. Id.; see also
DUKEMINIER ET AL., supra note 1, at 561.
9 Under the recording acts, subsequent purchasers have constructive notice of all deeds
properly recorded in the chain of title. This notice is imputed to a purchaser by the fact that a
deed was recorded and does not rely on a purchaser having actual knowledge of the prior
conveyance. Constructive notice is explained in depth infra at Part II.
10 An example of this is the wild deed doctrine, illustrated in Board of Education of
Minneapolis v. Hughes, 136 N.W. 1095 (Minn. 1912). This doctrine protects subsequent
purchasers from having to find deeds that are “wild” and almost impossible to find because the
deed that precedes it was not recorded. While subsequent purchasers are usually deemed to have
constructive notice of prior recordations in their chain of title, the wild deed doctrine removes the
imputation of constructive notice for deeds that are difficult to find because of a problem in the
chain of title. This allows subsequent purchasers to gain the protection of the recording act
despite the prior recordation. See infra Part III.A.
11 Purchasers have actual notice when they have knowledge of the recordation.
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Until quite recently, the property recording system in the United
States had undergone little change. 12 Title searchers were limited to
searching for recorded documents through a grantor/grantee index and
then locating those documents in books housed at a county clerk’s
office. 13 This system was, and still is, not only slow and tedious, but
limited in the amount of information it provides to the title searcher.14
Recently, counties and towns began computerizing their land
records so that records can be searched electronically either on a
computer at the clerk’s office or online. 15 In the most technologically
advanced counties, indices of land records are searchable online and
actual deeds have been scanned and uploaded online to allow title
searchers to view electronic versions of deeds on their own computers. 16
In general, this trend toward computerization of land records calls into
question the necessity and effectiveness of existing chain of title
doctrines. Further, the effect computerization has on the need for
existing chain of title doctrines depends on the type of computerized
system in place, which varies from county to county. 17
This Note analyzes the effects of the computerization of recording
systems on four existing chain of title doctrines: (1) the “wild deed”
doctrine; 18 (2) the Morse v. Curtis rule; 19 (3) the Luthi v. Evans rule; 20
12 See, e.g., Spencer Hale, Real Property E-Conveyances and E-Recordings: The Solution or
Cause of Mortgage Fraud?, 5 OKLA. J.L. & TECH. 44 (2009), available at
http://www.okjolt.org/images/pdf/2009okjoltrev44.pdf (explaining that until 2000, the recording
system “continued to provide information in the same way as the first primitive American system,
developed in 1620, in the Massachusetts Bay Colony”).
13 For a more detailed description of the recording system and specifically how purchasers
conduct a title search, see DUKEMINIER ET AL., supra note 1, at 560-64.
14 YZENBAARD, supra note 3 (“The use of a grantor/grantee index may prevent notice of
some deeds.”); see also JOYCE D. PALOMAR & CARROLL G. PATTON, PATTON AND PALOMAR ON
LAND TITLES ch. 4 (3d ed. 2009).
15 See, e.g., McCormack, supra note 2; Gretta C. Spendlove, The Anatomy of a Real Estate
Title, in HOW TO OBTAIN GOOD TITLE IN REAL ESTATE TRANSACTIONS, at 13, 15 (Nat’l Bus.
Inst. 2006), available at WL, 34555 NBI-CLE 13.
16 See, e.g., Clerk of the Circuit Court, Sarasota County, FL, Official Master Records Index,
http://www.clerk.co.sarasota.fl.us/oprapp/oprinq.asp (last visited Aug. 30, 2010).
17 Compare
id,.
with
Hawaii
Land
Records
and
Deeds
Directory,
http://publicrecords.onlinesearches.com/Hawaii-Land-Records-and-Deeds.htm (last visited Aug.
30, 2010). An image of Sarasota’s land records dating back to 1957 can be viewed online
whereas Hawaii land records must be sent to the searcher by mail or found on the computers at
the clerk’s office.
18 See supra note 10 and accompanying text.
19 2 N.E. 929 (Mass. 1885). In this Note, the Morse decision is compared to the decision in
Woods v. Garnett, 16 So. 390 (Miss. 1894). In Morse, the court found that subsequent purchasers
did not have constructive notice of recorded deeds from a common grantor that were recorded
after a subsequent purchaser’s grantor recorded. In Woods, however, the court found that
subsequent purchasers had constructive notice of recorded deeds from a common grantor that
were recorded after a subsequent purchaser’s grantor recorded. Id. at 392.
20 576 P.2d 1064 (Kan. 1978). The Luthi v. Evans court held that subsequent purchasers are
not on constructive notice of information contained in a “Mother Hubbard Clause” that is not
property specific. A Mother Hubbard Clause “applies the terms of an agreement to ‘everything in
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and (4) the Spring Lakes v. O.F.M. Co. rule. 21 This Note argues that the
computerization of land records—which make searches easier, quicker
and more informative 22 —affects three out of the four doctrines by
removing the primary reason for their creation, that is, to protect
subsequent purchasers from having to find irregularly recorded deeds.
Further, this Note argues that since the computerized systems remove
the justification for these doctrines, the purchaser prescribed to prevail
under these doctrines should not automatically win in a title dispute.
Accordingly, state legislatures should re-examine the wild deed
doctrine, the Morse rule and the Spring Lakes rule to decide whether the
doctrines should be overruled or amended by statute in jurisdictions that
have computerized their land records. 23
Part I of this Note provides background information on the
transition to computerized recording systems. Part II describes the
recording process. Part III gives a detailed explanation of the four chain
of title doctrines reviewed herein (the wild deed doctrine, the Morse
rule, the Luthi rule, and the Spring Lakes rule). Part IV explores the
status of computerized recording systems throughout the United States.
Part V examines the effects of the computerized systems on these
doctrines. Part VI discusses the kinds of changes that should be made
to these doctrines and the best mechanisms for effecting this change.
I. THE TRANSITION TO COMPUTERIZED RECORDING SYSTEMS
The consistent trend in the past quarter-century has been to move
towards computerized land records. 24 Many counties are actively
pursuing this goal by (1) digitally scanning the most recent land records,
and (2) developing systems that are electronically searchable by terms
other than grantor/grantee information; for example, by property
the cupboard’ whether named or not, and (sometimes) whether in the cupboard now or later.”
Patrick A. Randolph, Jr., Daily Development for Monday, February 20, 2006,
http://dirt.umkc.edu/FEB2006/DD_02-20-06.htm (last visited Aug. 30, 2010).
21 467 N.E.2d 537 (Ohio 1984) (holding that purchasers do not have constructive notice of
restrictions not contained in their own chain of title but contained in deeds to adjacent property
conveyed from a common grantor).
22 Recall that these searches are now usually performed by title search companies, title
insurance companies and/or attorneys. See Whitman, supra note 4, at 229-30.
23 Not all computerized systems are the same and the kind of system in place impacts the
effect the new systems have on each doctrine. See infra Part IV.
24 The first locale to install an electronic land recording system was Ontario, Canada. Work
on the Province of Ontario Land Registration Information System (POLARIS) began in the late
1980s. See Ontario, Electronic Land Registration, http://www.ontario.ca/en/information_bundle/
land_registration/content/STEL02_165314 (last visited Aug. 30, 2010).
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location. 25 As a result, many title searches can now be performed on a
computer, often a personal computer, making searches quicker, simpler
and more efficient. 26 The transition to computerized systems is
motivated not only by the desire for efficiency and speed in title
searching, but also because chain of title issues are less problematic if
electronic systems are in place. 27
The move to computerized recording systems has been furthered
by three recent pieces of suggested legislation created by the National
Conference of Commissioners on State Law: the Uniform Electronic
Transaction Act (UETA), 28 the Electronic Signature in Global and
National Commerce Act (E-Sign), 29 and the Uniform Real Property
Electronic Act (URPERA). 30 While these acts have played specific
roles in the move towards computerized recording, they do not address
the effects the computerized systems will have on title searching and
existing chain of title doctrines. For the purposes of this Note, these
model statutes, which subsequently have been adopted by many states,
evidence three important facts: (1) there is a trend and a desire to
increase the presence of computerized recording systems; 31 (2) there has
25 See id.; see also Kraettli Q. Epperson, A Status Report: On-Line Images of Land
Documents in Oklahoma County, OKLA. CITY REAL PROP. LAW. ASS’N (June 11, 2004),
http://www.eppersonlaw.com/Papers/164E-imagesOkCountyf.pdf.
26 McCormack, supra note 2, at 73-74.
27 Id.; see also DUKEMINIER ET AL., supra note 1, at 579-80 (“Computerization of property
records has already had an impact on the law.”); PALOMAR & PATTON, supra note 14, § 67, at ch.
3. Palomar and Patton’s treatise discusses how the computerization of land records—and
specifically the new ability to conduct a computerized search using classifications other than
grantor/grantee information—makes it possible for a searcher to find recordations that were
previously difficult to locate. It specifically mentions “wild deeds” and “early and late recorded”
deeds and explains that when a recording system is computerized, a purchaser may be required to
do a more thorough search than was previously required because it is no longer difficult to find
these deeds. The treatise suggests that the definition of a “diligent search” may depend on
whether the land records in the area have been computerized. Id. (citing First Citizens Nat’l Bank
v. Sherwood, 817 A.2d 501 (Pa. Super. Ct. 2003), rev’d on other grounds, 879 A.2d 178 (Pa.
2005)). First Citizens reversed a trial court’s decision that held that a mis-indexed mortgage
could not give constructive notice to a subsequent mortgagee. The court found that the issue of
whether purchasers have constructive notice is a factual determination that needs to take into
account the recording system in place. The court noted that the computerization of land records
“lightens for the purchaser the burden which existed only a few years ago. What in the past may
have been considered a diligent search may no longer be so considered because of the ease of
retrieving computerized information relevant to encumbrances on property.” 817 A.2d at 505.
28 UNIF. ELEC. TRANSACTIONS ACT § 7(a), 7A U.L.A. 211 (Supp. 2001). The UETA was
promulgated by the National Conference of Commissioners on Uniform State Laws in 1999.
29 15 U.S.C. § 7001(a)(1) (2006).
30 UNIF. REAL PROP. ELEC. RECORDING ACT (2005), available at http://www.law.upenn.edu/
bll/archives/ulc/urpera/URPERA_Final_apr05-1.pdf. For a detailed explanation of the effects of
this legislation on electronic recording, see Hale, supra note 13; see also David E. Ewan, John A.
Richards & Margo H.K. Tank, It’s The Message, Not the Medium!, 60 BUS. LAW. 1487, 1487-88
(2005) (arguing that E-Sign & UETA give States the “authority” to “accept electronic
documents”).
31 This is important here because as computerized systems become more prevalent and more
advanced, more states will need to make changes to the chain of title doctrine they have adopted.
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been little discussion about the important effects this move will have on
title searching and existing chain of title doctrines; and (3) since state
legislatures are aware of the shift toward computerized land records,
they have the information needed to effectuate the changes this Note
proposes.
Each model statute has served a role in allowing and encouraging
states to adopt computerized recording systems. The UETA recognizes
the legal validity of electronic recordations, 32 and both the prefatory
note 33 and the Act itself explicitly mention and anticipate application to
real estate transactions. As of 2009, forty-eight states have adopted the
UETA, 34 demonstrating the widespread commitment states have made
to conducting transactions electronically. 35 E-Sign 36 has furthered the
purpose and effect of the UETA by providing that a signature or
recordation can be given legal efficacy when it is in electronic form. 37
Together, these two acts give legal effect to electronically recorded real
estate documents, allowing the transaction to be enforced against its
parties. 38 The legislation, however, was incomplete insofar as the laws
did not explicitly authorize states to accept electronic documents and
many states continued to require recordings to have original signatures
for the recorder to accept them. 39
32 The statute states in relevant part: “A record or signature may not be denied legal effect or
enforceability solely because it is in electronic form.” UNIF. ELEC. TRANSACTIONS ACT § 7(a),
7A U.L.A. 211 (Supp. 2001). The UETA further provides that any law that requires that a record
be in writing can be satisfied by an electronic recordation, and that an electronic signature can
satisfy any law requiring a signature. Id. § 7(c)-(d). Notably, the UETA does not force states to
conduct transactions electronically; it merely allows them to do so.
33 In fact, the note explicitly states that “[a]n exclusion of . . . real estate transactions would
be particularly unwarranted in the event that a State chose to convert to an electronic recording
system . . . .” UNIF. ELEC. TRANSACTIONS ACT prefatory note, available at www.law.upenn.edu/
bll/archives/ulc/fnact99/1990s/ueta99.pdf. The prefatory note mentions that the explicit question
of whether the real estate transactions should be “validated by this Act if done via electronic
medium” was previously raised and that “[no] sound reason was found” for excluding these
transactions. Id. at 3.
34 See Uniform Law Commissioners, A Few Facts About The Uniform Electronic
Transactions Act, http://www.nccusl.org/Update/uniformact_factsheets/uniformacts-fs-ueta.asp
(last visited Aug. 30, 2010).
35 Ann M. Burkhart, Real Estate Practice in the Twenty-First Century, 72 MO. L. REV. 1031,
1067 (2007).
36 E-sign was signed into law by President Clinton in 2000.
37 15 U.S.C. § 7001(a)(1) (2006) (“[A] signature, contract, or other record . . . may not be
denied legal effect . . . solely because it is in electronic form.”). The statute was enacted in part to
persuade states to adopt the UETA, as well as to allow electronic documents and signatures to
have legal validity in states that had not adopted the UETA. See Hale, supra note 12.
38 UNIF. REAL PROP. ELEC. RECORDING ACT prefatory note, http://www.law.upenn.edu/
bll/archives/ulc/urpera/URPERA_Final_apr05-1.pdf.
39 Hale, supra note 12, at 49. This problem was compounded by the fact that the UETA and
E-Sign apply to “transactions,” and many states do not identify the recording of land titles as
“transactions.” Id. (“[T]he UETA and E-Sign only addressed ‘transactions,’ and many states did
not classify recording land documents in the county registry as a transaction.” (citing Robert A.
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The National Conference of Commissioners on Uniform State
Laws (NCCUSL) promulgated URPERA to effectuate the desired
change that E-Sign and UETA had failed to create—getting states to
switch to electronic recordation systems. URPERA was thus drafted
with the intent 40 that it would further the existence of electronic
recordation systems 41 by explicitly allowing recorders within states to
accept and record electronic documents. 42 URPERA has been formally
adopted by thirty-four states and five more are considering it this year. 43
While drafting URPERA, NCCUSL did not conduct a
comprehensive survey of existing computerized systems. 44 This may be
because recording systems are regulated by state law and are run by
local county officials, 45 meaning that different types of recording
systems can, and often do, exist within one state. 46 This procedure
makes the creation of a national survey quite difficult.
Wittie, Electronic Records and Signatures Under the Federal E-Sign Legislation and the UETA,
56 BUS. LAW. 293 (2000))).
40 The Act clearly states its purpose: “[T]o remove any doubt about the authority of the
recorder to receive and record documents and information in electronic form.” UNIF. REAL PROP.
ELEC. RECORDING ACT (2005), http://www.law.upenn.edu/bll/archives/ulc/urpera/URPERA_
Final_apr05-1.pdf.
41 For more on the goals of URPERA and its implementation, see PROP. RECORDS INDUS.
ASS’N, URPERA ENACTMENT AND ERECORDING STANDARDS IMPLEMENTATION GUIDE (2006),
available
at
http://www.pria.us/files/public/Committees/Real_Property_Law/2006_Docs/
PRIAURPERAGuideCertified2006.pdf.
42 Hale, supra note 12, at 13. The Act’s prefatory note states that the Act’s purpose is to
encourage states and counties to electronically record their land titles. UNIF. REAL PROP. ELEC.
RECORDING ACT (2005). The prefatory note goes on to discusses how there is “uncertainty and
confusion about whether those electronic documents may be recorded in the various local land
records offices in the several states.” Id. Separate from its general goal, URPERA serves several
functions. First, it recommends state standards for recording offices so that there can be a
uniform system within each state. Id. This idea is not only practical, but it also gives states the
potential to one day have a state database of land records instead of separate county systems. Id.
URPERA also sets forth specific standards for recording offices to use, which specify what must
be done to create a successful electronic recording system. Id.
43 Id.
44 However, the URPERA Enactment and eRecording Standards Implementation Guide does
include an old list of “eRecording Jurisdictions.” See PROP. RECORDS INDUS. ASS’N, supra note
41, at 23.
45 In some states, however, such as Vermont, land records are organized by town and are kept
in town clerk offices. The searcher thus has to search for property in the town where it is located.
See McCormack, supra note 2, at 67.
46 See, e.g., Sarah Linley Clingman & Amy Michelle Landers, Marketable Title, in
EXAMINING AND RESOLVING TITLE ISSUES IN SOUTH CAROLINA, at 1, 7 (Nat’l Bus. Inst. 2005),
available at WL, 29761 NBI-CLE 1 (“In South Carolina, each county has an elected Clerk of
Court or Recorder of Deeds who is responsible for maintaining and indexing the records
associated with real property located in that county. The manner of indexing and maintaining
these records differs from county to county. Many counties have computerized records; some
even make the records available on the internet. Others still record conveyances by hand in direct
and cross indices. It is important to be familiar not only with the county geographically, but also
with the methods of indexing employed by the county recorder before any examination is
undertaken.”). Most states’ records (e.g., Florida, Utah, South Carolina, and North Carolina) are
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UETA, E-sign and URPERA, however, demonstrate that the
widespread goal of moving state and local governments to electronic
recordation systems is being accomplished. 47 In fact, numerous
counties have computerized systems in place 48 and, even in the areas
where records are not yet computerized, a computerized search of the
land records is often possible. 49 Over time, it is likely that more
counties and states will move to electronic recordation systems. The
unanswered question, then, is what effect the transition from paper to
computerized recording systems will have on title searching and
existing chain of title doctrines.
II. THE RECORDING SYSTEM: BACKGROUND INFORMATION
There are two types of recording acts in effect in the United States:
race-notice and notice. 50 To gain protection of a race-notice statute, a
organized by county and, if they have not been computerized, the searcher must go to the county
clerk’s office to search the records. Id.
47 This is one of the reasons why it makes sense for legislatures to effectuate changes to the
chain of title doctrines instead of leaving it up to the courts. See infra Part VI.B.
48 E-recording Counties Hits 400 Mark, AM. LAND TITLE ASS’N (Aug. 10, 2009),
http://www.alta.org/news/news.cfm?newsID=8944 (last visited Aug. 30, 2010); see also Landata
Technologies, eRecording Counties by State, http://www.landata.com/eRecording/countylist.html
(last visited Aug. 30, 2010) (listing counties that have e-recording in place).
49 See, e.g., Telephone Interview with Lynn Brelsford, Lands Clerk, Burlington, Vermont
Land Records (Nov. 21, 2009). The Clerk explained that while the Burlington system is not
advanced—and still in book form—the searches can be done on a computer. The most advanced
systems, however, not only allow purchasers to view the recordations electronically through the
internet, but also allow purchasers to search the system with property information instead of
limiting the search criteria to grantor/grantee information. See, e.g., Sarasota County Property
Appraiser, Property Search, http://www.sc-pa.com/Content/search_real_property.asp (allowing
anyone to search Sarasota County, FL land records online and to view the actual recordations on
his or her own computer once they have been scanned into the system).
50 There are actually three general types of recording acts: race, notice, and race-notice,
however race statutes have fallen out of favor. See DUKEIMINIER ET AL., supra note 1, at 580-82.
Approximately half of the states now have notice statutes and the other half have race-notice
statutes. Notice statutes developed from the idea that subsequent purchasers should not prevail
over previous purchasers when they have notice of prior unrecorded conveyances. Id. at 580. An
example of a notice statute is as follows:
No conveyance . . . of real property . . . shall be good and effectual in law or equity
against creditors or subsequent purchasers for a valuable consideration and without
notice, unless the same be recorded according to the law.
Id. at 582 (quoting FLA. STAT. ANN § 695.01(1) (West 1994)). When following a race-notice
statute, subsequent purchasers only gain protection against prior unrecorded instruments if they
record before the prior conveyance is recorded and do so without notice. Id. at 581. An example
of a race-notice statute is as follows:
Every conveyance of real property . . . is void as against any subsequent purchaser or
mortgagee of the same property . . . in good faith and for a valuable consideration,
whose conveyance is first duly recorded, and as against any judgment affecting the
title, unless the conveyance shall have been duly recorded prior to the record of notice
of action.
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subsequent purchaser must be a bona fide purchaser 51 who records
before a prior purchaser. 52 Under a notice statute, a subsequent
purchaser must only be a bona fide purchaser to gain protection of the
act. 53
For subsequent purchasers to prevail under the recording acts, they
must also take title without notice of prior conveyances. There are two
types of notice that a purchaser can have: actual and constructive.
Purchasers have actual notice when they have knowledge of an
applicable conveyance, deed, or restriction. 54 Actual notice, however,
is very difficult to prove, as it requires inquiries into the state of mind of
purchasers, some of whom may be unavailable. 55 Under the recording
acts, subsequent purchasers have constructive notice of all properly
recorded deeds in their chains of title if they could have discovered
them by conducting a reasonable title search, regardless of whether they
actually discovered them. 56 Subsequent purchasers who do not conduct
a thorough title search bear the risk that prior recordations could conflict
with their title and, more importantly, that prior purchasers could
challenge the validity of their title and prevail. 57 In addition, placing a
subsequent purchaser on constructive notice of properly recorded deeds
reduces the number of cases in which title disputes will turn on a
purchaser’s actual notice. This simplifies adjudications because
constructive notice, unlike actual notice, can be easily proven by
examining the record.
As briefly discussed supra, while interpreting and applying the
recording acts, courts have developed chain of title doctrines. These
doctrines enable subsequent purchasers to prevail over prior purchasers
whose deeds were recorded irregularly, such that they would have been
Id. (quoting CAL. CIV. CODE § 1214 (West 2005)). It will be noted if and when the doctrines
discussed in this Note are affected by the type of recording act in place.
51 A “bona fide purchaser” is a purchaser who buys something for value without notice of
another’s claim to the property and without actual or constructive notice of any
defects . . . against the seller’s title; one who has in good faith paid valuable consideration for
property without notice of prior adverse claims.” BLACK’S LAW DICTIONARY 1355 (8th ed.
2004).
52 See, e.g., CAL. CIV. CODE § 1214 (West 2005).
53 See, e.g., FLA. STAT. § 695.01 (1994).
54 In this regard, the purchaser’s knowledge “actually” exists.
55 While subsequent purchasers who are a party to the title dispute will likely be available,
prior purchasers in the chain of title may not.
56 Put another way, constructive notice of prior recordations in a subsequent purchaser’s
chain of title is imparted on him through the recording acts. Subsequent purchasers therefore are
deemed to have knowledge of recordations in their chain of title even if they do not actually
possess such knowledge.
57 Often these challenges will be in the form of a quiet title action, where purchasers seek a
declaration from a court that they have title to the property against everyone else. A quiet title
action is defined as “[a] proceeding to establish a plaintiff’s title to land by compelling the
adverse claimant to establish a claim or be forever estopped from asserting it.” BLACK’S LAW
DICTIONARY 30 (8th ed. 2004).
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difficult for subsequent purchasers to find using the grantor/grantee
system. The chain of title doctrines protect subsequent purchasers from
the risk that a prior purchaser, whose deed subsequent purchasers
cannot find because of the way it was recorded, would prevail over the
prior purchaser in a title dispute. The doctrines accomplish this by
holding that irregular recordations do not impart constructive notice to
subsequent purchasers.
III. CHAIN OF TITLE DOCTRINES
Understanding the doctrines courts use to resolve chain of title
disputes is necessary to understand how the move to computerized
recording systems affects the rationale behind them.
A.
The Wild Deed Doctrine
The wild deed doctrine allows a purchaser to gain the protection of
the recording acts against a prior purchaser who has recorded his own
deed, but whose chain of title includes an unrecorded deed. 58 Because
the unrecorded deed makes subsequent recordations nearly impossible
to find in a jurisdiction that uses grantor/grantee indexes, 59 the wild
deed doctrine holds that a recorded deed does not provide constructive
notice to subsequent purchasers unless all of the deeds in the chain from
the common source of title to the prior purchaser have been properly
recorded. Purchasers do not have constructive notice of recordations 60
that follow an unrecorded deed, as these recordations are “wild.” 61
58 Wild deed is defined as “[a] recorded deed that is not in the chain of title, usually because
previous instrument connected to the chain of title has not been recorded.” BLACK’S LAW
DICTIONARY 446 (8th ed. 2004).
59 Usually purchasers are deemed to have constructive notice of all prior recordations in their
chain of title, and because of this will lose under the recording acts against prior purchasers who
properly recorded. See, e.g., CAL. CIV. CODE § 1214 (West 2005). Under race-notice statutes
such as this, purchasers are deemed to have constructive notice of previously recorded
conveyances.
60 Recall that in order to gain protection from the recording acts, the purchaser must be a bona
fide purchaser—meaning they are taking without notice, actual or constructive, for valuable
consideration. See supra text accompanying note 51. Thus, if a purchaser was deemed to have
constructive notice of deeds recorded out of order, they could not gain the protection of the act.
61 For a recent example of the wild deed doctrine at work see First Properties, L.L.C. v.
JPMorgan Chase Bank, National Association, 993 So. 2d 438 (Ala. 2008). In that case, the
Supreme Court of Alabama found that a subsequent purchaser did not have constructive notice of
a foreclosure deed because it was a wild deed. Id. at 442. The court specifically noted that the
wild deed was “outside the chain of title, and the fact that it was recorded did not impart
constructive notice” to the subsequent purchaser. Id. The foreclosure deed was wild because it
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While subsequent purchasers usually are deemed to have constructive
notice of prior recordations of a property’s title, the wild deed doctrine
requires actual notice for these deeds to be enforceable against
subsequent purchasers, allowing subsequent purchasers to gain
protection of the recording act despite the prior recordation.
The wild deed doctrine is illustrated in Board of Education of
Minneapolis v. Hughes. 62 In Hughes, 63 the grantee to a deed recorded
before its grantor recorded, thus the grantee’s deed followed an
unrecorded deed and the record gave no indication of how the grantee
received title or whether he or she had good title. The question raised
was whether a subsequent purchaser had constructive notice of a
did not list the record owner, and instead listed the winning bidder as the grantor and the grantee
of the property. Id. at 440.
62 136 N.W. 1095 (Minn. 1912).
63 The facts are as follows: Hoerger owned property that was vacant and subject to unpaid
taxes. In 1906 Hughes offered to pay for the lot and his offer was accepted. Hughes sent money
and a deed and his check was cashed. The deed was recorded on December 1, 1910. In April
1909, Duryea & Wilson paid Hoerger for a quitclaim deed to the lot, which was not recorded
until December 21, 1910. However, before this recordation, on November 19, 1909, Duryea &
Wilson conveyed the deed to the plaintiff, who recorded on January 27, 1910—before Duryea &
Wilson recorded. Hence, the grantee of the deed recorded before its grantor recorded. The
question in the case was whether Hughes had constructive notice of the deed from Duryea &
Wilson to plaintiff. Id. The situation in Hughes can be illustrated as follows:
Owner conveys to Purchaser A, who does not record.
Owner conveys to Purchaser B, who does not record.
Purchaser B conveys to Purchaser C. Purchaser C records.
Purchaser A records.
Purchaser B records.
Purchaser C vs. Purchaser A in a title dispute over the property that Owner conveyed.
In a dispute between Purchaser A and Purchaser C over who has better title, Purchaser A would
win even though Purchaser C recorded before Purchaser A. This is because when Purchaser A
does a title search right before recording, Purchaser A has no way of finding Purchaser C’s
recorded deed. Purchaser A will look in the grantor index under Owner’s name and will not be
able to discover Owner’s conveyance to Purchaser B since Purchaser B has not yet recorded.
Without discovering the conveyance to Purchaser B, Purchaser A has no way of finding Purchaser
B’s conveyance to Purchaser C since the only way Purchaser A could find this conveyance would
be by searching under Purchaser B’s name. Without the “wild deed” doctrine, Purchaser A would
be deemed to have constructive notice of Purchaser C’s recordation (even though it is highly
unlikely Purchaser A could discover this recordation since Purchaser A will not know Purchaser
B’s name and thus will not discover the deed from Purchaser B to Purchaser C) and would lose
because constructive notice would prevent Purchaser A from being a bona fide purchaser. Not
being a bona fide purchaser would prevent Purchaser A from gaining protection under the
recording act. For another example of the “wild” deed doctrine at work see Far W. Sav. & Loan
Ass’n v. McLaughlin, 246 Cal. Rptr. 872 (Cal. Ct. App. 1988). In McLaughlin, as in Hughes, the
court found that a subsequent purchaser did not have constructive notice of a previously recorded
wild deed. The court explained that the deed in the case was conveyed by the grantee before the
grantee “obtained record title. Therefore, it must be termed a ‘wild’ document, i.e., one recorded
outside the chain of title. As such, a search of the grantor/grantee indices could not have
disclosed its existence. ‘One who is not connected by any conveyance whatever with the record
title to a piece of property and makes a conveyance thereof, does not thereby create any defect in
the record title of another. . . . Such a deed would not even be constructive notice.’” Id. at 87576 (quoting Bothin v. The Cal. Title Ins. & Trust Co., 96 P. 500 (Cal. 1908)).
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recordation by a grantee who recorded before his grantor recorded. 64 In
general, if subsequent purchasers have constructive notice of this type
of recordation, they cannot receive protection from the recording act 65
and the holder of the wild deed (in Hughes the grantee-plaintiff) will
prevail in a title dispute. 66
The difficulty with requiring subsequent purchasers to have
constructive notice of these recordations is that they are almost
impossible to find in the grantor/grantee systems. This is because
subsequent purchasers cannot look up wild deeds in the index as they
lack the name of the grantor or grantee of the relevant deed, since the
grantor did not record. 67 Because of this, the court in Hughes removed
this searching burden on subsequent purchasers by essentially finding
that the grantee’s wild deed did not impart constructive notice: 68 The
court found that the wild recordation was outside the chain of title 69
because it was recorded before a deed that preceded it in time. The wild
deed doctrine, as set out in Hughes, 70 stands for the general principle
that recorded deeds that follow an unrecorded “missing” deed, do not
impart constructive notice to subsequent purchasers. 71
64 This Note addresses only the issue of whether subsequent purchasers have constructive
notice of wild deeds. It does not address the issue of whether the holder of a wild deed can gain
protection under the recording acts. This issue was addressed in Salt Lake Cnty. v. Metro W.
Ready Mix, Inc., 89 P.3d 155 (Utah 2004), where the court found that “a purchaser who acquires
property through a wild deed will be held to have been on notice of a defect in his grantor’s title
and will not qualify as a subsequent purchaser in good faith” under the recording statute. Id. at
159.
65 This is because he or she would not be a bona fide purchaser who took without notice, as
required by both race-notice statutes and notice statutes.
66 He or she would win in a title dispute because he or she would have superior title. Recall
that the subsequent purchaser needs to gain protection of the recording act to defeat the common
law rule that the first-in-time purchaser prevails over the subsequent purchaser. See supra text
accompanying notes 1-7.
67 This is because they would look up the grantee’s name to find the recordation.
68 The court in Hughes did not frame the issue as being one of constructive notice. Instead,
the court found that Hughes had recorded before the plaintiff (the Board) because the plaintiff’s
recording was not complete until the grantor (D & W) recorded. Because of this, the court found
that under Minnesota’s race-notice statute Hughes prevailed because he had recorded first.
69 This recordation outside of the chain of title has been described as one that is “executed by
one who is a stranger to the title as it is shown by the records—that is, by a grantor who does not
appear in the chain of recorded conveyances, or other title records . . . .” Brannan v. Marshall, 63
So. 1007, 1008 (Ala. 1913) (citing Fenno v. Sayre, 3 Ala. 458 (1842)). The Supreme Court of
Alabama went on to say that this recordation “is not constructive notice to a subsequent purchaser
in the regular chain of title. Id. Brannan was cited by the Supreme Court of Alabama as recently
as 2008, in First Properties, L.L.C. v. JPMorgan Chase Bank, National Association, 993 So. 2d
438 (Ala. 2008). See supra text accompanying note 62.
70 There are, of course, other factual situations where a deed will become wild and outside of
the chain of title. See, e.g., Anthony J. Fejfar, The Wild Deed and Real Property Law, A Tract
Book Essay (2007) (unpublished manuscript), http://www.scribd.com/doc/210501/The-WildDeed-and-Real-Property-Law (giving an example of how a wild deed could come about in the
distribution of property held in a tenancy by the entirety).
71 Bd. of Educ. of Minneapolis v. Hughes, 136 N.W. 1095, 1097 (Minn. 1912) (stating that
under the Minnesota Recording Act, “priority” could not be given “to a deed recorded before,
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In making this decision, the court evaluated the searching and
recording burdens and decided to place the burden of accurate recording
on prior purchasers, instead of requiring subsequent purchasers to find
wild deeds. 72 This burden requires prior purchasers who hold wild
deeds to ensure that their grantors record first. If they do not, the prior
purchasers run the risk of losing a potential title dispute with subsequent
purchasers. This result is necessary in a grantor/grantee system, as there
is no realistic way for searchers to find wild deeds, except by chance, as
those deeds are not connected to chains of title. 73 By making this
decision, the court placed an incentive on prior purchasers to ensure
their deeds are recorded in the proper order. This makes sense in noncomputerized systems because a holder of a wild deed is the only party
who can solve the problem by making sure that his or her grantor
recorded before he or she recorded.
B.
The Morse v. Curtis Rule and the Limitations of a
Chronological Search System
The Morse v. Curtis 74 rule states that subsequent purchasers are not
on constructive notice of a deed from a common grantor that is
conveyed before, but recorded after, another recorded deed from the
same grantor. In jurisdictions that follow Morse, a subsequent
purchaser, upon discovering that his or her grantor has perfect record
title at the time the grantor recorded, 75 does not have a duty to search
further. While this is the majority rule, some jurisdictions follow the
which shows no conveyance from a record owner. It was necessary, not only that the deed to
plaintiff should be recorded before the deed to [purchaser] but also that the deed to plaintiff’s
grantor should be first recorded.”).
72 Another way of looking at this is in terms of protecting the prior purchaser’s investment.
In general, it is important to protect purchasers’ investments in their property and in recording
their deeds. This is why prior purchasers who record often prevail. If, however, prior purchasers
completely ignore the apparent risk that subsequent purchasers might not find their recordations,
then their investments will not be protected.
73 While the court in Hughes justified its decision on the fact that wild deeds are almost
impossible to find in the grantor/grantee system, there is another justification for this doctrine:
Without it, subsequent purchasers would be forced to conduct off the record searches to
determine whether the holder of the wild deed actually received good title. Off the record
searches are difficult because old title holders may have passed away or be hard to find. In
addition, an unrecorded deed could easily be lost or thrown away. For more on this issue see
infra Part V.A.
74 2 N.E. 929, 931 (Mass. 1885) (“[I]f a purchaser, upon examining the registry, finds a
conveyance from the owner of the land to his grantor, which gives him a perfect record
title . . . he is entitled to rely upon such record title, and is not obliged to search the records
afterwards.”).
75 This means that, upon searching through only her chain of title, the searcher finds that her
grantor has acquired valid title through a series of conveyances.
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rule articulated in Woods v. Garnett. 76 This rule requires subsequent
purchasers, who already discovered their grantor has perfect record
title, 77 to also search forward in time from each grantor in the chain of
title to the present day to determine whether a grantor, before conveying
to the purchaser in the chain, conveyed to another party who recorded
late. 78
The Morse v. Curtis rule 79 can be illustrated as follows:
Owner O conveys to Purchaser A, who does not record.
O conveys to Purchaser B, who has actual notice of the conveyance
from O to Purchaser A. 80
Purchaser B records; then Purchaser A records.
Purchaser B conveys to Purchaser C, who has no actual notice of
the deed from O to Purchaser A.
Purchaser C records. 81
Purchaser C vs. Purchaser A.
In Morse jurisdictions, when a conflict arises between two parties
in a chain of title (Purchaser C and Purchaser A here) over who has
better title, Purchaser C prevails because he is not deemed to have
constructive notice of the deed from O to Purchaser A. Instead, once
Purchaser C finds that his grantor, Purchaser B, has perfect record title,
76 16 So. 390 (Miss. 1984).
77 Usually, purchasers must
only search back in time from their grantors, and forward in time
from the “original” grantees. “Original” means either the first person to receive from the
sovereign or the first person to receive in the statutory period. The diligent title searcher
simultaneously searches back from his or her grantor and forward from the original grantee. For
example, suppose the chain of title were as follows: A conveys to B; B then wants to convey to C.
C would search B’s name in the grantee index first to see how B received title. C would find the
conveyance from A to B. After finding A’s name, C would search A’s name in the grantor index
to make sure A actually conveyed to B. By doing this, C is searching back from C’s grantor (B)
and forward from the original grantor (A).
78 The minority rule, described in Woods v. Garnett, 16 So. 390, 391 (Miss. 1984), states that
a purchaser is on constructive notice of deeds recorded prior to the date the grantor received title,
creating a duty to search forward from all grantors in the chain of title. In other words,
purchasers must search for deeds from common grantors that were recorded after other deeds
from the same grantor.
79 For another case that articulates the majority rule, see Kiser v. Clinchfield Coal Corp., 106
S.E.2d 601, 606 (Va. 1959) (“In order for a deed and its recitals to operate as constructive notice
to a bona fide purchaser of land it must be a link the purchaser’s chain of title. No purchaser is
chargeable with constructive notice of all matters of record but only with such as the title deeds of
the estate refer to or put him on inquiry about.”).
80 At this point Purchaser A prevails over Purchaser B since Purchaser B has actual notice of
the prior conveyance and therefore is not a bona fide purchaser under the recording act.
81 The “shelter rule” allows a subsequent purchaser to “take shelter” from his or her grantor’s
good title over previous purchasers. Purchaser C, however, cannot invoke this rule since
Purchaser C’s grantor, Purchaser B, took title with notice and did not gain the protection of the
recording act. This prevents Purchaser C from “taking shelter” in Purchaser B’s good title since
Purchaser B does not have good title. See DUKEMINIER, supra note 1, at 581 n.9.
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Purchaser C has no duty to search further. Because of this, Purchaser C
would not search for conveyances forward from O—a grantor in
Purchaser C’s chain of title—that were conveyed before Purchaser C’s
grantor received title but recorded after his grantor recorded. Since
Purchaser A recorded after Purchaser C’s grantor (Purchaser B),
Purchaser C would not have discovered the conveyance from O to
Purchaser A.
In a minority of jurisdictions, however, the rule expressed in
Woods v. Garnett 82 is followed and purchasers are deemed to have
constructive notice of the conveyance from O to Purchaser A. 83 Thus,
Purchaser C, after discovering his grantor, Purchaser B, has perfect
record title, must search forward from each grantor in the chain to the
present day to ensure that a grantor did not convey to a purchaser
outside the chain of title before conveying to a purchaser in the chain,
who recorded late. During this search, Purchaser C would search
forward from O 84 and discover the deed from O to Purchaser A that was
conveyed before the deed from O to Purchaser B but recorded after.
The rationale behind the Morse rule is that the alternative—the
Woods rule—imposes too heavy a burden on subsequent purchasers
because it requires them to do an exhaustive search. 85 This search is
difficult because the actual deeds in a grantor/grantee system are in
books kept in chronological order, which prevents the title searcher
from easily discovering deeds in the chain of title that were recorded
late (for instance, the deed from O to Purchaser A). Here, Purchaser C
will have no reason to search the books that contain recordations made
after the conveyance from O to Purchaser C’s grantor, Purchaser B.
The normal title searcher stops searching after discovering her grantor
82 16 So. 390.
83 As one minority
case explains, “a property owner should not be divested of title by a
subsequent purchaser when the owner has done all that the law requires him to do.” Angle v.
Slayton, 697 P.2d 940, 942 (N.M. 1985). The recording statute in Angle was a notice statute and
the court noted that for a purchaser “[t]o prevail over a subsequent purchaser under this type of
statute, an owner of an interest in real property must record before the acquisition of a conflicting
interest in the same property by the subsequent purchaser.” Id. The New Mexico Supreme Court
found that the previous purchaser, Angle, “did all that was required by statute to protect her
interest” since she “record[ed] her interest prior to the [subsequent purchaser’s] acquisition of the
lease by quitclaim deed.” Id. The court reasoned that the subsequent purchaser was on
constructive notice of the prior recordation and therefore could not gain protection of the
recording act, even though the deed was recorded late. The court explained that “[t]here is no
requirement that an instrument be recorded within a particular period of time.” Id.
84 Purchaser C would search forward from O because O is one of the grantors in Purchaser
C’s chain of title.
85 The goal of the Morse rule then is not to overburden subsequent purchasers (here,
Purchaser C). Note that because most purchasers now hire real estate attorneys or title search
companies to do the search for them, the burden on purchasers in minority jurisdictions may be
that they have to pay attorneys higher fees to do the extensive search. See DUKEMINIER ET AL.,
supra note 1, at 453. Thus, the burden of actually conducting the time consuming searches will
most likely fall on the attorneys, not on the purchasers.
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has perfect title. To find the late recordation, Purchaser C would need
to search for deeds from O conveyed after Purchaser C’s grantor
received title.
The court in Morse evaluated the burdens and determined that the
burden of recording in a timely fashion should fall on prior purchasers
instead of placing the burden of finding the late recorded deed on
subsequent purchasers. 86 This makes sense in a non-computerized
system because the prior purchaser (Purchaser A) was in a better
position to solve the problem 87 by recording in a timely manner.
C.
The “Mother Hubbard” Problem as Illustrated by Luthi v. Evans
Luthi v. Evans 88 illustrates the rule that a recorded deed does not
provide constructive notice to subsequent purchasers when the deed
does not specifically identify the property conveyed. 89 This occurs
when a deed contains a “Mother Hubbard clause,” also known as a
general assignment, that conveys all of the grantor’s property in a given
area, without identifying which parcels it conveys and where the parcels
are located. 90 The particular clause in the Luthi deed assigned “all
interest of whatsoever nature in all working interests . . . in all Oil and
Gas Leases in Coffey County, Kansas.” 91 This type of assignment does
not inform subsequent purchasers what specific interests are included
and conveyed 92 in the assignment. 93 This is why the court in Luthi
86 The Woods rule allocates the burden to subsequent purchasers, who have to find late
recordations or else risk prior purchasers prevailing in a title dispute.
87 In that same vein, the prior purchaser was the party that caused the problem by recording
late.
88 576 P.2d 1064 (Kan. 1978).
89 Id. at 1070 (“[A] specific description of the property conveyed is required in order to
impart constructive notice to a subsequent purchaser.”).
90 The court in Luthi explained that a deed that conveys property that it describes as “all of
the grantor’s property in the county” is called a “Mother Hubbard” instrument. Id. at 1067.
91 Id. The Court explained that this was a “Mother Hubbard” clause. Id. The facts of Luthi
are as follows: An international tours company acquired rights to all “Owens” oil and gas
interests in Coffee County, Kansas. The instrument conveying these interests specifically
described seven leases and also included a separate clause conveying all of the interests in oil and
gas that the grantor held in the county.
92 In Luthi, the subsequent purchaser apparently never read the deed containing the general
assignment, as the description in the grantor/grantee index did not describe the property that the
purchaser was interested in acquiring. The general assignment prevented the register of deeds
from entering the property information because it did not specify what property was being
conveyed. The subsequent purchaser therefore had no reason to examine the deed, as the index
did not refer to the property he was interested in acquiring. Id. at 1067. This, however, does not
seem to have been a determinative factor in the court’s decision. See infra note 98.
93 Since the general assignment does not specifically describe the property listed, in a case
like Luthi, the subsequent purchaser would have to find all of the grantors’ interests in oil and gas
leases in the county. The subsequent purchaser would then have to check to see whether its
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determined 94 that a recordation must specifically describe the property
so that subsequent purchasers can identify it in order for subsequent
purchasers to have constructive notice of its contents. 95 The court
found that the clause at issue in Luthi was not specific enough to impart
constructive notice, 96 thus it was only binding against subsequent
purchasers who had actual notice of the assignment. 97
There are two distinct problems with Mother Hubbard clauses that
the rule illustrated in Luthi seeks to combat. First, since the clause does
not identify the property’s location, there is no way for a county records
office to index the deed properly. 98 As a result, holding that the deed
imparts constructive notice would require purchasers to read every deed
from each grantor in its chain of title, rather than limiting the search to
deeds whose index entries specifically describe the property the
purchaser seeks to purchase. Second, even if a purchaser were to read
the deed, the purchaser would not know what property the deed
conveyed without examining every deed to and from its grantor. Thus, it
would be too heavy a burden to require subsequent purchasers to (1)
find the general assignment and (2) read through numerous recordations
to determine which property the assignment conveys. 99
Specifically in Luthi, the subsequent purchaser would need to
search through all deeds from its grantor to find the deed containing the
Mother Hubbard clause. Then, in order to determine what “all interests
. . . in all Oil and Gas Leases . . . in Coffey County, Kansas” refers to, a
subsequent purchaser would have to search through the index to find all
conveyances pertaining to the grantor in Coffey County. From there,
grantor acquired the property before executing the general assignment, in which case the grantor
would have had no property to convey to the subsequent purchaser.
94 This determination was largely based on an interpretation of Kansas’ statutes and the
legislative intent behind them. Luthi, 576 P.2d at 1070.
95 Id.
96 Id. (“From a reading of all of the statutory provisions together, we have concluded that the
legislature intended that recorded instruments of conveyance, to impart constructive notice to a
subsequent purchaser or mortgagee, should describe the land conveyed with sufficient specificity
so that the specific land conveyed can be identified.”).
97 Id. The court reiterated that the clause was enforceable between the parties to the
instrument and against purchasers who had actual notice of the conveyance.
98 Note that the court in Luthi did not seem to place any weight on the burden of actually
finding the deed that contains the general assignment because it explicitly stated that the failure to
properly index property, which causes the burden of finding the deed, does not prevent the
subsequent purchaser from having constructive notice. Id. at 1070 (“[S]ituations where an
instrument of conveyance containing a sufficient description of the property conveyed is duly
recorded but not properly indexed . . . by the register of deeds will not prevent constructive notice
under” the Kansas statute.).
99 If, for example, the subsequent purchaser in Luthi, Burris, had found the deed and realized
that the general assignment conveyed title to the Kufahl lease, he would have checked to see
whether Grace had executed the general assignment prior to conveying the Kufahl lease to Burris.
If Grace had, then Grace would have had no interest to convey to Burris and Burris could not
have gained the protection of the recording act since he would have had notice of the prior
conveyance.
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the purchaser would need to go through numerous books—which are in
chronological order so one volume does not contain all recordations
pertaining to a particular grantor—to read every deed from the grantor
in Coffey County to see whether it is an oil or gas lease. This exercise
would extend beyond the usual burdens of title searching because title
searchers normally do not need to determine whether the recordation
refers to the property in question 100 or read through every recordation
from a grantor. Instead, searchers can immediately identify from the
index whether the recordation refers to their property, and they only
have to read those recordations that do. The Luthi court, finding this
search to be too difficult, determined that the burden of recording with
specificity should be placed on prior purchasers. 101
This rule
incentivizes grantees to ensure that their deeds specifically describe the
interests conveyed, because if they do not, subsequent purchasers could
acquire better title to the interests by recording their interest without
actual notice of the general assignment. 102 The principles discussed in
Luthi were reaffirmed as recently as 2007. 103
D.
The Spring Lakes v. O.F.M. Co. Rule
The Spring Lakes v. O.F.M. Co. rule states that a subsequent
purchaser is not on constructive notice of restrictions not contained
within the subsequent purchaser’s own chain of title, but instead
contained within the deed to an adjacent lot conveyed by a common
grantor. 104 The Supreme Court of Ohio found that such restrictions did
not impart constructive notice even though the subsequent purchaser’s
deed referenced the restrictions. 105 The Spring Lakes rule, followed in
100 This is because normally title searchers immediately see from the index that the recordation
refers to the property in question.
101 The other alternative was to place the burden of finding and reading through the interests
conveyed in the general assignment on the subsequent purchaser.
102 Luthi is not followed in all jurisdictions. For example, in Texas Consolidated Oils v. E.J.
Bartels, 270 S.W.2d 708 (Tex. Ct. App. 1954), the Texas Court of Civil Appeals held that a
subsequent purchaser has constructive notice of a general assignment in a deed.
103 Jeremiah 29:11, Inc., v. Seifert, 161 P.3d 750 (Kan. 2008). The deed in Jeremiah did not
have the same issues as the deed in Luthi but the Court used Luthi as “guidance on the general
issue of constructive notice.” Id. at 754.
104 Spring Lakes, Ltd. v. O.F.M. Co., 467 N.E.2d 537, 540 (Ohio 1984) (“[I]n order for a
purchaser of real property to be charged with constructive notice of an encumbrance contained in
a prior recorded instrument, the prior instrument must be recorded in the purchaser’s chain of
title.” (citing Sternberger v. Ragland, 48 N.E.2d 811 (Ohio 1897))). See also Witter v. Taggart,
577 N.E.2d 338, 338 (N.Y. 1991) (The subsequent purchaser is “not bound by or charged with
constructive notice of a restrictive covenant which does not appear in their direct chain of title to
the allegedly burdened land.”).
105 The facts of Spring Lakes are as follows: Scott, the common grantor in this case, owned
three lots numbered 85, 86 and 95. Scott conveyed lots 85 and 95 to O.F.M. with an easement for
using a sewer system over lot 86. Later, Cleveland Federal Savings and Loan Association
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approximately half of American jurisdictions, requires that restrictions
be contained within a subsequent purchaser’s chain of title in order to
impart constructive notice. 106 The Spring Lakes court reasoned that it
would be too burdensome to require subsequent purchasers to find the
restrictions in the grantor/grantee system because subsequent purchasers
would have to look up each grantor in their chain of title to see if they
owned other adjacent lots, and, by putting restrictions on the other lots,
had also restricted the purchaser’s property. 107 Since the recordations
are chronological, a purchaser must search through numerous books to
find every recordation from the common grantor in the county.
Accordingly, the Supreme Court of Ohio, and those jurisdictions that
follow Spring Lakes, evaluated the comparable burdens and allocated
the burden of recording the restrictions in a subsequent purchaser’s
chain of title to prior purchasers instead of requiring subsequent
purchasers to find the restrictions. 108
While many jurisdictions follow the Spring Lakes rule, nearly half
of American jurisdictions 109 instead follow the rule set forth in Guillette
v. Daly Dry Wall: 110 A purchaser of a lot in a subdivision is on
constructive notice of restrictions that appear in deeds to other lots
within the subdivision, even when the purchaser’s deed does not contain
the restrictions but does refer to a general plan. 111 The Massachusetts
Supreme Court reached this conclusion in Guillette despite the fact that
the restrictions at issue were also not in the plan. 112 Under Guillette, a
acquired lot 86 through a foreclosure action and conveyed it to Spring Lakes, Ltd. Spring Lakes’
deed, however, did not contain the easement. Instead, the deed only generally referenced the
restrictions. The issue in Spring Lakes was whether Spring Lakes Ltd. had constructive notice of
the easement that was not within its chain of title.
106 See PALOMAR & PATTON, supra note 14, § 72, at ch. 3 (noting that jurisdictions are split on
whether to follow the rule illustrated in Spring Lakes, and that jurisdictions that do not follow
Spring Lakes hold that such restrictions do impart constructive notice to the subsequent
purchaser).
107 Spring Lakes, Ltd., 467 N.E.2d at 540 (“The rationale for this rule is apparent . . . . ‘A
purchaser of other land from the same grantor is not charged with notice of building restrictions
contained in an earlier deed not in his chain of title . . . [because] it would impose an intolerable
burden to compel him to examine all conveyances made by every one in his chain of title.’”
(citing Glorieux v. Lighthipe, 96 A. 94 (N.J. 1915))).
108 See Hancock v. Gumm, 107 S.E. 872, 876 (Ga. 1921) (finding that “where . . . a recorded
deed to a lot forming part of a larger tract contains restrictive covenants, which by the terms of
the deed are not only to apply to the lot conveyed, but . . . to other lands of the grantor, a
purchaser of one of the lot is not charged with notice of the covenant contained in a prior deed
from the common grantor to another lot or parcel of the general tract.”).
109 See PALOMAR & PATTON, supra note 14.
110 325 N.E.2d 572 (Ma. 1975).
111 This is a plan for the subdivision that describes how the grantor wanted the lots to be
restricted.
112 In Guillette, a grantor subdivided land and restricted it to single-family homes by referring
to either a 1967 or 1968 plan. Eight deeds either contained the restrictions or incorporated them.
Guillette’s deed and one other deed stated that the restrictions would apply to the rest of the
grantor’s lots. Guillette brought an action against the defendant to stop him from building an
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subsequent purchaser of a lot in a subdivision has a duty to search the
deeds pertaining to the other subdivision lots. 113 The court reasoned
that it would not be too burdensome to require subsequent purchasers to
perform this search, 114 even though it requires purchasers to examine
every conveyance pertaining to the subdivision. 115
apartment building on their property. The defendant’s deed did not contain restrictions but did
refer to the 1968 plan. The plan, however, did not contain the restrictions, and the defendant took
without notice of them. 325 N.E.2d 572.
113 More specifically, under Guillette a subsequent purchaser must perform this search when
his or her deed refers to some sort of “plan.” The Guillette rule is not only applied to
subdivisions but also to factual situations similar to those discussed in Spring Lakes. See, e.g.,
Mansur v. Muskop, 977 A.2d 1041 (N.H. 2009) (discussed infra note 115).
114 See Guillette, 325 N.E.2d at 359 (rejecting defendant’s argument that searching every deed
from a common grantor in a subdivision is “an almost impossible task” and finding instead that
“[a] search for such deeds is a task which is not at all impossible”).
115 Despite this, the reasoning in Guillette was re-affirmed in 2009 by the Supreme Court of
New Hampshire, which found that purchasers had constructive notice of an easement not
contained in their own deeds. Mansur, 977 A.2d at 1048-49. In Mansur, the Court explained that
“bona fide purchasers are deemed to have notice of recorded interests affecting their land that
have been previously conveyed by a common grantor in their chain of title.” Id. at 1048 (citing
Soukup v. Brooks, 977 A.2d 551 (N.H. 2009)).
A similar rule is illustrated in Sanborn v. McLean, 206 N.W. 496 (Mich. 1925). The
Sanborn rule states that purchasers of lots in a subdivision have constructive notice of restrictions
that do not directly refer to the subsequent purchasers’ lots and are not in the subsequent
purchasers’ deeds. Specifically, the Supreme Court of Michigan held that a reciprocal negative
easement exists when a common grantor conveys part of his property with restrictions that benefit
the grantor’s retained property. The reciprocal negative easement attaches at the time of the
conveyance and binds the conveyed and retained property to the restrictions, even though the
restrictions are not in the deed(s) of the retained property and do not explicitly pertain to such
property. Id.
The facts of Sanborn are as follows: In 1891 a plot of 91 residential lots was recorded. Id.
at 497. The deeds to most of the lots contained a restriction that imposed a restrictive negative
easement on the land requiring it to be used for residential purposes only. Id. The deeds for the
other lots did not contain the restriction. Id. The defendant, McLean, purchased a lot whose deed
did not contain the restriction and started constructing a gas station on his lot. Id. at 496-97.
Sanborn and other neighbors brought an action seeking an injunction to stop the construction.
They claimed that the construction violated the restriction that the land be used only for
residential purposes. Id. Specifically, Sanborn claimed that McLean’s lot was subject to a
“negative restrictive easement” that was imposed on all of the lots, even those not containing the
restrictions in their deeds. Id. The Supreme Court of Michigan found for Sanborn and held that a
negative reciprocal easement is created when a common grantor conveys one or more lots with
restrictions that benefit the land that the grantor keeps. Id. at 497. At the time of the conveyance,
the easement becomes “mutual” and restricts both the conveyed land and the retained land. Id.
McLean’s lot was one of the lots the grantor retained and thus was subject to the restrictions that
appeared in Sanborn’s and other lot owners’ deeds. Id. Note that the restrictions did not directly
refer to McLean’s property. Instead, the restrictions were put on lots conveyed by the common
grantor. The restrictions were put in place for the benefit of the lots retained, and when the
restricted lots were conveyed the negative reciprocal easement attached to the retained lots. Id.
This situation is distinct from Guillette, where the restrictions specifically referred to the
subsequent purchaser’s lot. The court in Sanborn pointed to numerous pieces of evidence to find
that a negative restrictive easement existed: (1) a plan that was referenced or used in deeds, sales
and conveyances, (2) the history of the development, i.e., if the lots were used in the same
manner, (3) the purpose of the initial restriction, i.e., who did it burden and who did it benefit,
and, (4) the intent of the common grantor. Id. at 497-98.
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The issue common to all four doctrines described above is whether
subsequent purchasers have constructive notice of prior irregularly
recorded deeds. In instances where such a purchaser has actual notice
of the irregular recordation he or she will be bound by it and is unlikely
to prevail in a title dispute with a prior purchaser. Actual notice,
however, is very difficult to prove, which creates the possibility that
subsequent purchasers with actual notice will still prevail under these
doctrines. Thus, to alleviate both the judicial burden of determining
whether actual notice exists and the potential for fraudulent conduct, it
is beneficial to limit situations where actual notice is the determinative
factor in deciding a title dispute. 116
IV. THE CURRENT ELECTRONIC RECORDATION SYSTEMS:
AN OVERVIEW
Although the computerized recording systems in place throughout
the country are not uniform, every computerized system has the ability
to perform a non-chronological search, and the most advanced systems
have the ability to conduct searches with property information (such as
the address of the property or its lot number). 117 These two features
affect the chain of title doctrines discussed here.118
Sanborn, however, like Guillette, is not followed in all jurisdictions. Vermont, for
example, does not apply the doctrine of negative reciprocal easements.
See, e.g., Patch v.
Springfield Dist. Sch. Dist. 989 A.2d 500, 508 n.5 (2009) (citing Fasser v. Okemo Mountain Inc.,
536 A.2d 930, 932 (Vt. 1987). Instead, in Vermont and similar jurisdictions, a written easement
or restriction must be incorporated in the subsequent purchaser’s deed at least by reference to
enforce the restriction against a subsequent purchaser. Id. at 509. Thus, in those jurisdictions that
decline to adopt Sanborn, the burden is allocated to the prior purchasers instead of to subsequent
purchasers. The burden is on prior purchasers to record restrictions that pertain to the subsequent
purchasers’ property in that property’s chain of title, either explicitly or by reference, if they want
the property to be restricted.
116 See infra Part VI.A. Constructive notice, on the other hand, is very easy to prove.
117 The most advanced systems have the ability to search by address, lot number, and
information other than the name of the grantor/grantee.
118 While not every county has a computerized system, the consistent trend is to move towards
these systems. This trend is illustrated by the continued efforts in Burlington, Vermont to move
to a computerized recording system. There, the land clerk is consistently scanning in the records
and working towards allowing computerized searches by both grantor/grantee information and
property information. The trend is advancing slowly in some places in part because there are no
uniform recording requirements in place, and because recording systems differ from county to
county instead of operating on a statewide basis. See OFFICE OF THE VT. SEC'Y OF STATE,
REPORT OF THE COMMITTEE ON THE COMPUTERIZATION OF LAND RECORDS (Jan. 15, 1999),
available at http://www.vermont-towns.org/land/comprprt.htm (last visited Aug. 30, 2010)
(finding that “computerization of land records, which can cover anything from creating index
databases to paper records to the filing of electronic records, is technically feasible and generally
desired by those who routinely use land records (by land records [they] mean municipal records
affecting title to property)”). The fact that counties and states are moving towards computerized
recordation systems was noted as early as 1992. See McCormack, supra note 2, at 115 (“A
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In general, the computerized systems actually serve the same
underlying purpose as the doctrines—removing the burden on
subsequent purchasers of finding irregularly recorded deeds—and
thereby negate the primary reason the four doctrines discussed here
exist, rendering them obsolete. 119 Furthermore, there is no longer a
reason for subsequent purchasers to prevail in these title disputes, as
they do not need protection from having to find irregularly recorded
deeds. Instead, the prior purchaser should prevail. 120 If however, the
doctrines remain in place, subsequent purchasers will automatically
win. 121
These conclusions assume that the computerized systems are
virtually infallible. Since the actual deeds are scanned in, the only
potential error in the computerized systems is that the property will be
indexed incorrectly. However, this potential error also existed in the
grantor/grantee system and is already dealt with by state law.
Furthermore, the computerized systems actually reduce these risks by
indexing documents according to a variety of criteria instead of just by
grantor/grantee information. In Utah County, Utah, for example, a
search can be conducted by grantor/grantee, information, property
description, serial number and/or subdivision. 122 This process of
indexing according to multiple criteria reduces the risk that a county
recorder will make an error. If he does, he will likely catch it while
indexing the document. In addition, subsequent purchasers can easily
check actual deeds for errors by conducting computerized title searches
without having to go to a county clerk’s office and manually inspect
recordations.
world-wide movement is advancing toward computerized land title record systems.”); see also
PALOMAR & PATTON, supra note 14, §§ 166, 704, at ch. 15 (“Computerization of land title record
systems also has begun and is advocated as a means of improving both data management and
retrieval capability.”).
119 This makes it sensible for subsequent purchasers to have constructive notice of these deeds.
120 The “wild deed” doctrine can be used to illustrate this point. The reason why the
subsequent purchaser wins in “wild deed” situations is because it would be too heavy a burden to
require him or her to find the “wild deed,” which is almost impossible to find. Since some
computerized systems that allow property searches remove this burden, there is now no reason for
the subsequent purchaser to win. Instead, the recorder of the “wild deed” should win as he or she
would win if the “wild deed” doctrine did not exist. Thus, if the doctrine is not overruled in these
jurisdictions, the “wrong” party—the subsequent purchaser—would prevail even though there is
no reason for him or her to win. This issue is discussed further infra Part VI.A.
121 In addition, as discovery of irregular recordations becomes easy and likely, the risk of
subsequent purchasers who have actual notice prevailing in title disputes increases. Thus, these
title disputes should not turn on whether subsequent purchasers have actual notice.
122 See Web Access to Utah County Land Records, http://www.co.utah.ut.us/LandRecords/
Index.asp (last visited Aug. 30, 2010).
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The Ability to Conduct Fast Non-Chronological 123
Grantor/Grantee Searches
A non-chronological search can be conducted on all computerized
systems by simply entering in the name of a grantor/grantee. Once the
name is entered, the title searcher is able to view a list of all
recordations pertaining to that grantor/grantee instead of having to look
chronologically through the books to find all deeds pertaining to one
grantor. This new way of searching is both quick and efficient. 124
Moreover, purchasers are no longer limited to chronological
searches, 125 and instead can view, within minutes, all recordations from
a single grantor/grantee regardless of when those recordations were
made. 126 This may undermine the reasons behind some chain of title
doctrine. 127
B.
The Ability to Conduct Searches with Property Information
and its Effect on the Chain of Title Doctrines
In the most advanced computerized systems, title searchers have
the ability to search by property description, such as the address or lot
number of the property. 128 This searching ability releases title searchers
123 For purposes of this Note, non-chronological searches refer to the ability to view all
recordations pertaining to one grantor/grantee without having to chronologically go through each
conveyance in the chain of title.
124 Specifically, title searches in these systems can be conducted quickly because searchers can
pull up all the recordations that pertain to any grantor/grantee within minutes. The searches are
more efficient because searchers are not limited to conducting a chronological search.
125 The burdens of searching chronologically are discussed supra Part III.B. As discussed, this
burden is part of the reason why the majority of jurisdictions follow Morse v. Curtis, 2 N.E. 929
(Mass. 1884), instead of Woods v. Garnett, 16 So. 390 (Miss. 1894). See supra Part III.B. In a
non-computerized recording system, subsequent purchasers have difficulty finding deeds from a
common grantor that were conveyed before the subsequent purchasers’ grantor received title but
recorded after (recall, this was the issue in both Morse and Woods). In a computerized system,
subsequent purchasers will find this late deed because they will search under the common
grantor’s name and see the conveyance.
126 See, e.g., Telephone Interview with Lynn Brelsford, supra note 49. In Burlington,
recordations are slowly being scanned in, but as of now the only part of the process that is
completely computerized is the search itself. The clerk feels that this system is very far behind
compared to most. As the records get scanned in, the clerk is also in the process of making it
possible to search by property information instead of grantor/grantee. Her goal is for the searcher
to be able to search using the property address. As discussed supra, the recordations that have
been scanned in only go back to a certain date, and searchers are not able to electronically view
documents recorded prior to that date.
127 As discussed infra Part V, the ability to conduct non-chronological searches undermines
the rationale behind Morse v. Curtis, Luthi v. Evans and Spring Lakes.
128 See, e.g., Automated City Register Information System (ACRIS), New York City Finance,
http://a836-acris.nyc.gov/Scripts/Coverpage.dll/index (last visited Aug. 30, 2010). Searches on
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from the limitations of having to search only by grantor/grantee
information. 129 Searchers who may not have all the grantor/grantee
information can conduct a comprehensive search and find recordations
that were nearly impossible to locate in a grantor/grantee system.130
Additionally, many computerized jurisdictions make their
recordations available online, allowing searchers to view scanned
images of deeds from any computer 131 instead of having to go to a
county clerk’s office to view an actual deed. 132 This feature eases the
burdens associated with title searching by enabling searchers to view
numerous documents relating to a specific grantor or grantee within a
specific area in an efficient manner. 133 However, it is the ability to
conduct non-chronological and property information searches, allowing
subsequent purchasers to quickly find irregularly recorded deeds, which
undermines the chain of title doctrines discussed supra. 134
ACRIS can be done by either grantor/grantee information or borough, or by block and lot
information that can be found by entering the street address. See also Web Access to Utah
County Land Records, supra note 122 (allowing the searcher to search by street address). In the
New York and Utah systems, searchers can search using both grantor/grantee information and
various property descriptions.
129 The grantor/grantee system is inherently limited because in order to use it, the purchaser
must know the name of the grantor or grantee. A purchaser will not know the names of previous
grantor/grantees and thus must rely on the recordations to find out this information (i.e., by going
backwards from their grantor until he or she gets to the “original” grantor). If, however, a deed in
the property’s chain of title is not properly recorded, the purchaser may not be able to find it
because he or she won’t have the information necessary to look up the deed (i.e. grantor/grantee
name). This is why the wild deed doctrine and others exist.
130 To use the wild deed doctrine as an example, the purchaser cannot find the wild deed
because a grantee has recorded before the grantee’s grantor, and thus the purchaser has no way of
finding the grantee’s name to use to look for the deed. The purchaser does, however, have
information about the property, such as the address or lot number. Therefore, if the purchaser
could search with this information, he or she would be able to locate the wild deed because it
would be recorded under the property information.
131 See, e.g., Automated City Register Information System (ACRIS), supra note 128.
132 Compare Hawaii Land Records and Deeds Directory, supra note 17, with Automated City
Register Information System (ACRIS), supra note 128.
133 For two examples, see Hawaii Land Records and Deeds Directory, supra note 17, and
Clerk of the Circuit Court, Sarasota County, FL, Official Master Records Index, supra note 16.
Usually, this search can be done online from any computer. Id. Both Hawaii and Sarasota,
Florida have their recordations information available online, but only in Sarasota can the searcher
view the actual recordation.
134 The ability to view the scanned electronic version of the deed only further undermines the
rationale behind the doctrines.
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V. THE EFFECTS OF COMPUTERIZED SYSTEMS ON THE
FOUR CHAIN OF TITLE DOCTRINES
A.
The Wild Deed Doctrine
Wild deeds are difficult to find because subsequent purchasers do
not know the names of the parties to the wild deeds and therefore cannot
search for them in the grantor/grantee index. Non-chronological
searches, where the searcher is unable to search with property
information, require purchasers still to search with the names of the
grantor and grantee to the deed. Thus, this searching function does not
help purchasers find the wild deed. Purchasers are under the same
constraints—in terms of what information they can use to search—as
they were before the records were computerized. 135
Systems that allow purchasers to conduct title searches with
property information instead of the names of the grantor/grantee 136
eliminate the problem that the wild deed doctrine addresses: the burden
of finding recorded deeds that have an unrecorded or missing deed in
their chain of title. Subsequent purchasers who search with property
information 137 can easily find wild deeds because those deeds are
indexed to the property information. Thus, this search function removes
135 This is because in these systems purchasers do not have the ability to search with property
information. Instead, they have to search with grantor/grantee information, which, as discuss
supra at text accompanying note 117, makes it very difficult, if not impossible, for purchasers to
find a “wild deed.”
136 See PALOMAR & PATTON, supra note 14. Palomar specifically mentions how the
computerization of land records—and specifically the new ability to do a computerized search
using classifications other than grantor/grantee info—makes it possible for the searcher to find
recordations that previously were difficult to locate. In doing so, Palomar specifically mentions
“wild deeds” and “early and late recorded” deeds as examples of doctrines that could be effected
by the computerization of land records. She further explains that where the recording system is
computerized, the purchaser may be required to do a more thorough search than was previously
required because it is no longer difficult to find these deeds.
137 The rationale behind the wild deed doctrine is that absent an ability to search for
recordations with property information, the deeds are hard or almost impossible to find because
the purchasers will not have the grantor/grantee information needed to find the wild deed. Recall
the problem in First Properties, L.L.C. v. JPMorgan Chase Bank, National Association, 993
So.2d 438 (Ala. 2008), where the foreclosure deed did not bear the name of a record owner
because there was an unrecorded conveyance from the record owner (Dumas) to the fire district.
A subsequent purchaser would have no way of finding the foreclosure deed in a grantor/grantee
system because he or she would not know to look under the fire district’s name because their
name does not appear in any of the records to the property. Similarly, recall that the problem in
Board of Education of Minneapolis v. Hughes, 136 N.W. 1095 (Minn. 1912), was that the grantee
recorded before his or her grantor recorded, making it so that the purchaser doing the title search
had no way of knowing the grantee’s name (the purchaser would usually get this information
from the grantor’s recordation), and thus could not search and find the deed.
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the basic rationale behind the wild deed doctrine. 138 Similarly, there is
now less of a need to incentivize prior grantees to ensure that their
grantor recorded, as subsequent purchasers using these computerized
systems will discover any wild deeds.
While this new searching capability removes the primary rationale
upon which the wild deed doctrine was founded, it does not remove a
second justification for the wild deed doctrine: eliminating the difficulty
of conducting off-the-record searches. Without the wild deed doctrine,
subsequent purchasers who find a wild deed will still need to inquire
into how the wild deed holder acquired title so they can determine
whether the wild deed holder has good or superior title to the property.
Tracking down this information will require actually searching for the
unrecorded deed to ascertain whether the wild deed holder received
good title. This off-the-record search may be time consuming, difficult
and at times impossible if the unrecorded deed has been lost or
destroyed or if the holder of the deed cannot be found. Since the
computerized systems will have no affect on this issue without the wild
138 Returning to the illustration from Hughes may help explain why the purpose of the wild
deed doctrine is negated by the ability to search with property information:
O conveys to Purchaser A who does not record.
O conveys to Purchaser B who does not record.
Purchaser B conveys to Purchaser C. Purchaser C records.
Purchaser A records.
Purchaser B records.
Purchaser C vs. Purchaser A.
The issue is whether Purchaser A, when doing a title search before recording, is able to find the
deed from Purchaser B to Purchaser C since Purchaser B, Purchaser C’s grantor, did not record.
In a grantor/grantee system, Purchaser A would look under O as the grantor but would not find
the deed from O to Purchaser B since Purchaser B did not record. Purchaser A therefore would
not know to look under Purchaser B’s name to find the deed from Purchaser B to Purchaser C. In
systems where subsequent purchasers can search with property information, Purchaser A, after
entering the property information, would see the recorded deed from Purchaser B to Purchaser C.
Since it would now be easy to find this recordation, it is appropriate to say that Purchaser A has
constructive notice of the defective recordation from Purchaser B to Purchaser C. This prevents
Purchaser A from being a bona fide purchaser under the recording act. Purchaser C, who took
without notice—constructive or actual—of the conveyance from O to Purchaser A, is a bona fide
purchaser under the act who recorded first. Thus Purchaser C would prevail over Purchaser A.
This conclusion does not depend on whether the jurisdiction has a race-notice or notice recording
statute in place because the “wild deed” doctrine serves the same purpose under both statutes: to
remove the burden on purchasers of having to find deeds that are recorded out of order. Since
computerized systems negate this purpose, it is irrelevant which statute is in place. This also
makes sense because the outcomes in First Properties and Hughes remain the same whether
applied in a race-notice or notice jurisdiction. The statute in place in Hughes was a race-notice
statute. If it had been a notice statute, the last person taking the property without notice—actual
or constructive—would prevail. In Hughes, that person was the defendant, and thus Hughes
would prevail under both a notice and a race-notice statute. 136 N.W. at 406. Thus, if Hughes
was decided in a computerized jurisdiction that allowed property information searches, it likely
would have been decided differently. Hughes would have had no problem finding the deed from
Duryea & Wilson to the plaintiff in a computerized system, even though the plaintiff (the grantee)
recorded before Duryea & Wilson (the grantors), because the plaintiff’s recordation would come
up when Hughes entered the property information.
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deed doctrine, the courts will need a system for determining whether the
wild deed holder actually holds superior title to the subsequent
purchaser. As discussed in the concluding sections of this Note, the
best mechanism for accomplishing this may be to require subsequent
purchasers to inquire about the unrecorded deed when they discover it
exists, and document such inquiry. If subsequent purchasers have a
record of their inquiry but such inquiry proves unsuccessful, they would
still prevail in a later title dispute with a wild deed holder. If, however,
subsequent purchasers fail to make this inquiry, the wild deed holder
can contest their title but the wild deed holder would have the burden of
proving superior title. To prove superior title, the wild deed holder
would have to either produce the unrecorded deed or produce other
reliable evidence to show that she acquired good title to the property. If
she fails to meet this burden, then the subsequent purchaser may still
prevail as they would if the wild deed doctrine was in place. 139 Because
of the difficulty of conducting these types of off-the-record searches,
state legislatures may decide that the wild deed doctrine should remain
in place. This Note does not attempt to make this decision for
legislatures. Rather, since the effects of the new recording systems on
the wild deed doctrine are complicated, 140 this Note merely seeks to
point out how the systems affect this doctrine so that legislatures can
make educated decisions about whether the doctrine should remain in
place in computerized jurisdictions. 141
B.
The Effect of the Computerized Systems on the
Morse v. Curtis Rule
The ability to perform non-chronological searches undermines the
reasons for following Morse instead of Woods because this feature
makes it easy to find a late recorded deed. Recall that the two decisions
disagree on whether a subsequent purchaser has to search forward in
time from every grantor in his or her chain of title 142 after discovering
139 Because of this issue, states may decide that it does not make sense to overrule the wild
deed doctrine. This is a close decision and depends upon the opinion of state legislatures.
140 The effect of computerized recording systems on the wild deed doctrine is complicated
because the systems undermine the primary reason for the doctrine—preventing purchasers from
having to find wild recordations that are virtually impossible to find in a grantor/grantee system.
The systems, however, do not negate the other reason for the doctrine: preventing purchasers
from having to conduct difficult off-the-record searches
141 Cf. PALOMAR & PATTON, supra note 14, § 69, at ch. 3 (explaining that in areas that have
computerized recording systems, which allow purchasers to search with property information,
subsequent purchasers should “be held to at least inquiry notice” of wild recordations as the
systems “cure the inability of the former grantor/grantee indices to uncover” wild deeds).
142 This is what minority rule jurisdictions require.
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that his or her grantor has perfect title. 143 To protect subsequent
purchasers, the Morse rule removes this complicated searching
burden, 144 a burden made onerous by the inherent limitations of a
chronological search. 145
If a computerized system is in place, searchers have the ability to
discover all conveyances from one grantor and need not search
chronologically through catalogues of recordations to find a late
recorded deed. Instead, they can discover it as soon as they search for a
common grantor’s name and, accordingly, late recording is of little
consequence. Similarly, there is no longer a reason to incentivize prior
purchasers to record in a timely fashion as subsequent purchasers can
easily find the irregular recordation. Thus, there is no reason to follow
the Morse rule in any jurisdiction that has a computerized recording
system. 146 Instead, the Woods rule should be followed.
The ability to perform searches with property information also
removes the difficulties of finding a late recorded deed. This is because
upon entering the property information into a computerized system,
subsequent purchasers will quickly notice that a grantor conveyed twice
143 In majority jurisdictions, purchasers only have to look back from their own grantor until
they find the “original” grantee. Recall that the purpose behind the majority rule is to prevent
purchasers from shouldering the burden of searching back from their grantors, forward from their
“original” grantees, and forward from every grantor in the chain of title.
144 The court does this by not requiring subsequent purchasers to perform the more extensive
search. In the Morse hypothetical, Purchaser C would enter O’s name into the computerized
system in the “grantor” search and would immediately see all recordations out from O. Thus he
or she would see that O conveyed to Purchaser A and Purchaser B. In examining the deeds,
Purchaser C would discover that O had conveyed to purchaser A before O conveyed to Purchaser
B. Purchaser C could find this information within minutes, and it thus would not be too heavy a
burden to say that Purchaser C has constructive notice of the deed from O to Purchaser A.
145 In a majority jurisdiction, purchasers must only search back through their chains of title to
make sure that their grantors have good title. In minority jurisdictions, a purchaser must do this,
but he or she must also make sure that a common grantor in the chain of title did not make a
conveyance prior to the recorded conveyance from that grantor, which was recorded later in time.
In the hypothetical from Morse, O was an example of one of these grantors. O conveyed to
Purchaser A first but Purchaser A did not immediately record. O then conveyed to Purchaser B
who did immediately record, but had actual notice of the deed from O to Purchaser A, thus
preventing Purchaser B from being a bona fide purchaser and gaining protection of the recording
act. Purchaser A then records. At this point, Purchaser A has better title than Purchaser B. The
question is if Purchaser B conveys to Purchaser C, is Purchaser C deemed to have constructive
notice of the deed from O to Purchaser A? If Purchaser C has constructive notice of this type of
conveyance, Purchaser C must search forward from every grantor in the chain of title (here just
O) to make sure that the grantor (O) did not convey title to a party (Purchaser A) before he or she
conveyed to the party within the chain of title (Purchaser B).
146 As with the wild deed doctrine, this conclusion does not depend on the type of recording
act in place. This is because the analysis is essentially about notice and the burden that
constructive notice places on purchasers. Under both statutes, a purchaser cannot be “bona fide”
if he or she has notice—actual or constructive—of prior recordations. The fact that computerized
recording systems remove much of the burden on purchasers of finding these recordations is an
equally persuasive reason for adopting the minority rule in race-notice and notice jurisdictions.
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and thereby find the late recorded deed. 147 To find such a deed,
subsequent purchasers do not need to search through every deed that a
property information search reveals; instead, they only need to search
through deeds from a grantor in their chain of title. In doing so,
subsequent purchasers can easily discover the later recorded deed from
the common grantor. 148 In sum, each feature of the computerized
systems, on its own, removes the need to protect subsequent purchasers
from finding late recorded deeds and thus renders the Morse rule
obsolete in all computerized jurisdictions. 149
C.
The Effect of Computerized Systems on the Mother Hubbard
Clause Problem
The general rationale for the rule illustrated by Luthi v. Evans 150 is
the same as that for the other doctrines: not placing too heavy a
searching burden on subsequent purchasers. However, the use of
Mother Hubbard clauses poses two distinct problems for subsequent
purchasers: (1) finding the deed that contains the clause, 151 which
requires searching through the conveyances from each grantor in the
chain of title; and (2) determining which interests the clause conveys,
which requires a search for all the deeds that the grantor may have used
to convey his or her property. 152 The ability to perform nonchronological searches does not alleviate the first Mother Hubbard
147 In the Morse v. Curtis situation, this is the deed that was conveyed before the purchaser’s
grantor received title, but recorded later. By entering the property address, a purchaser will see
every recordation that pertains to the property and thus will notice if one grantor in the chain of
title has conveyed the property twice. The property information search also removes the
chronological limitations of the grantor/grantee search, which is a key to the rationale behind the
majority rule. It is the removal of this limitation that really speaks to and undermines the
rationale behind the majority rule. If, however, there was an area where purchasers could search
only with property information, there still would be no reason to follow the majority rule, since
the burden that it seeks to prevent from falling on purchasers would actually be no burden at all.
148 Returning to the Morse hypothetical, Purchaser C, after entering the property information,
would see that O conveyed to both Purchaser A and Purchaser B, since both conveyances would
be indexed to the property information.
149 This conclusion is based on the fact that all computerized systems have the ability to
perform non-chronological searches, and this feature, in and of itself, removes the rationale of
following Morse.
150 576 P.2d 1064 (Kan. 1978).
151 Recall that the deed is difficult to find because it is not indexed properly to the parcel(s) of
land it conveys. This is because the Mother Hubbard Clause does not specifically identify which
parcels the deed conveys, and this prevents the county reporter from indexing the deed properly.
152 It seems that part of the rationale in Luthi was that it was too heavy a burden on purchasers
to require them both to find all the interests that the general assignment referred to and to examine
all the recordations. Thus the court decided that a general assignment was valid as between the
parties to the deed but that it did not impart constructive notice to subsequent purchasers because
it did not specifically describe the property conveyed. 576 P.2d at 1070.
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problem: actually finding the deed. This problem arises from the
clause’s general language, which prevents the county reporter from
properly indexing the deed to the actual parcels it conveys. Nonchronological searches will not assist the purchaser in discovering this
deed because this search mechanism has no bearing on how the property
is indexed. Thus, in the computerized systems—just as in the old
grantor/grantee systems—the purchaser will have to actually read
through the conveyances from each grantor in his or her chain of title to
find the deed with the Mother Hubbard clause. The deed will not be
directly indexed to the purchaser’s property.
The second problem of Mother Hubbard clauses, that of
determining which interest the clause conveys, is somewhat alleviated
by the ability to perform non-chronological searches. If, as in Luthi, the
general assignment conveys all interests that a grantor has in a given
county, these interests will appear when the purchaser searches for the
grantor’s name in the computer system. 153 The purchaser however,
must still read through these deeds to determine what property the
grantor possessed (and therefore conveyed) at the time the grantor
executed the deed with the Mother Hubbard clause. In addition, in a
Luthi situation, the purchaser would need to determine which deeds
were oil and/or gas leases. While this process is made easier by the
ability to quickly review all recordations pertaining to one grantor in a
given county, the burdens associated with this search are by no means
eliminated. Still, the purpose behind Luthi is somewhat undermined by
the ability to conduct a non-chronological search because the purchaser
is now able to quickly see all the interests that pertain to a single grantor
in a given county.
The ability to search by property information does not affect the
Luthi rule because subsequent purchasers in a Luthi situation do not
know what property a general assignment conveys, so they cannot find
an assignment by conducting such a search.
D.
The Effects of Computerized Systems on the Spring Lakes Rule
Computerized recording systems make it sensible for jurisdictions
that follow Spring Lakes to abandon it and instead follow the Guillette
rule. In Guillette, the court decided that subsequent purchasers have the
burden of finding restrictions not contained in their own deeds.154 In
doing so, the court found that it would be relatively easy to discover
153 As explained, the systems only extend back to a certain date, so the search would pull up
all interests the grantor had in the county back to the earliest date the systems contain.
154 Guillette v. Daly Dry Wall, 325 N.E.2d 572 (Ma. 1975).
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such restrictions, and computerized systems make discovery even
easier. 155
The ability to perform a non-chronological search allows a
subsequent purchaser in a Spring Lakes situation to find the restrictions
by searching the computerized system for deeds in the common
grantor’s name 156 until they come across a deed containing the
restrictions. This search would be quick, efficient and straightforward
because subsequent purchasers would not need to search through all
deeds pertaining to a common grantor in a county but only those
indexed to adjacent lots. In a Guillette situation, a subsequent purchaser
would only need to search through the deeds from the common grantor
pertaining to the subdivision.
In addition, in systems that allow searches to be conducted with
property information, subsequent purchasers could find the restrictions
by searching for the property information of adjacent lots, or other lots
in the subdivision, 157 and searching through deeds until finding one with
restrictions. 158 Since this search would be limited to adjacent lots or
lots within the subdivision, it would not be very difficult or time
consuming. Thus, with the new ease with which purchasers can find
restrictions, it is sensible for computerized jurisdictions that follow the
Spring Lakes rule to instead follow Guillette. 159
A remaining issue in even the most advanced systems is how far
back in time the records have been computerized. 160 This matters
155
156
157
Id.
The common grantor here is the subdivider.
They would search the other lots in the subdivision in the factual scenario described in
Guillette.
158 In addition, in some jurisdictions, searchers have the option of searching for deeds by
subdivision. See, e.g., Web Access to Utah County Land Records, supra note 122. They can do
this simply by choosing to search by subdivision or development name. Since this ability is now
rare, this Note does not discuss its effects on the Spring Lakes rule. If, however, more systems
add this feature, this would only further the argument that Guillette should be followed because
the restrictions would be even easier to find.
159 Similarly, jurisdictions like Vermont that decline to follow Sanborn v. McLean, 206 N.W.
496 (Mich. 1925), should now adopt its rule, as subsequent purchasers will easily be able to find
the restrictions by either conducting a non-chronological search under the common grantor’s
name, or by entering in the property information for other lots in the subdivision and searching
through those deeds until the restrictions are found. The ease with which the restrictions could be
found, coupled with the evidence of the common scheme, would make it easy for subsequent
purchasers to determine that the restrictions apply to their property.
160 Computerized systems vary in terms of how far back in time they go. New York City, for
example, has scanned in their records back to 1966. See Automated City Register Information
System (ACRIS), supra note 128. Utah County, Utah has scanned in their land records back to
1957. See Web Access to Utah County Land Records, supra note 122. There also may be a
difference between how far back the indexes are computerized and what actual documents are
available. In Virginia Beach, Virginia, for example, the indexes are computerized back to
October 1, 1965, but the actual documents cannot be viewed prior to the 1980’s. See Megan E.
Burns, The Process of Title Examination, in TITLE LAW IN VIRGINIA (Nat’l Bus. Inst. 2008),
available at WL, 41791 NBI-CLE 117; see also Robert Arnold & Leonard T. Lincoln, Searching
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because the common practice is for subsequent purchasers to search
back for a prescribed amount of time before they can gain protection of
the recording acts. 161 This issue however, does not alter the reality that
the computerized systems call into question some existing chain of title
doctrine by undermining the primary purpose of the various rules. 162
VI. HOW TO EFFECTUATE CHANGES TO THE EXISTING
CHAIN OF TITLE DOCTRINES
A.
Why Change is Needed
In general, laws whose purpose has been eliminated by changes in
technology need to be reexamined and at times overruled. Here, there is
another reason to overrule these doctrines: 163 Subsequent purchasers
should not gain the advantage of automatically prevailing in these title
disputes. By removing the rationales that influenced the courts to
develop the doctrines, computerized systems can make it more
appropriate for a different party, the prior purchaser, to win the
dispute. 164 Prior to the computerized systems, it made sense for the
courts in Hughes, Morse, Luthi, and Spring Lakes to protect subsequent
purchasers from having to find irregularly recorded deeds by allowing
them to prevail over prior purchasers. In doing so, the courts
incentivized prior purchasers to ensure that their recordation was timely
and accurate. 165 Now, because subsequent purchasers can easily find
for and Examining Title, in FLORIDA REAL PROPERTY TITLE EXAMINATION AND INSURANCE §
3.12 (The Fla. Bar 2006), available at WL, RPTE FL-CLE 3-1 (“As a general rule, computers
provide only the most recent title information. Searches for earlier periods are done in the
traditional method of manually searching the plant’s property description and name indexes.”).
161 The number of years a purchaser is required to search back depends on the statute in place
in the jurisdiction. In some jurisdictions a purchaser must search back until he or she finds the
first conveyance from the sovereign to the original grantee. DUKEMINIER ET AL., supra note 1, at
564. In other jurisdictions, purchasers are required to search back sixty years, and in some areas
the requirement is even less. Id. Thus, if purchasers in New York City were required to search
back sixty years, they would need to search beyond the date of the earliest scanned in recordation
(1966, or forty-three years ago). So while the search back to 1966 would be simple, the search
back the required seventeen years beyond 1966 would involve the familiar difficulties of using
both a grantor/grantee index and hard copies of the recordations. If these doctrines are overruled
by statute, the statute could clarify that the doctrines remain valid in both non-computerized
systems and for irregular deeds that predate the new systems.
162 See Hale, supra note 12, at 14. (“By providing the ability to perform title searches through
grantees or through the specific property, many of the past problems created by late, early or nonrecorded deeds can be solved.”).
163 The four doctrines referred to are the wild deed doctrine, and the Morse, Luthi and Spring
Lakes rules.
164 See infra part VI.C.
165 As discussed, it makes sense to think of this burden as self-imposed because the courts, of
course, are not forcing the burden on purchasers. Instead, if prior purchasers do not record
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the irregular recordations, prior purchasers do not need this incentive
and subsequent purchasers do not need protection. Thus, prior
purchasers should prevail in the title disputes discussed here. 166
Essentially, before computerized systems, courts decided that
while the usual goal is to protect a prior purchaser’s investment in the
property and in the recording process, this investment will not be
protected if he or she ignores the risks associated with recording
irregularly, namely, that a purchaser in the chain will lose title to a
subsequent purchaser who does not find the recordation. 167 Due to the
computerized systems, there is often no real risk that subsequent
purchasers will not find prior recordations when conducting their title
search. 168 Since prior purchasers are not ignoring any real risk, courts
can protect the investment of purchasers who irregularly recorded. In
addition, since subsequent purchasers can easily find the deeds, they are
in the best position to avoid the economic loss associated with a
purchase by choosing not to purchase the property. Prior purchasers,
however, have already made an investment by recording and purchasing
and thus cannot avoid the loss in the same way.
Furthermore, the computerized systems make it more likely that
subsequent purchasers will have actual notice of irregularly recorded
deeds. It remains, however, that actual notice is very difficult to prove.
This raises the potential that under the doctrines, subsequent purchasers
who have actual notice of prior irregular recordations could still prevail.
This result would work a fraud on prior purchasers and the recording
system in general. Thus, the burden of finding irregular recordations, a
burden that is minimal because of the computerized systems, should be
allocated to subsequent purchasers.
accurately they run the risk of losing their titles in title disputes with subsequent purchasers who
record without notice of previous purchasers’ recordations. Thus the courts are giving them an
incentive to record accurately, and they have a self-imposed duty to do so in order to avoid the
risk of losing their title.
166 Note that these prior purchasers are not the parties who actually irregularly recorded.
Rather, it is a party back in the prior purchaser’s chain of title who has made the error. For
example, with the wild deed doctrine, it is the prior purchaser’s grantor who failed to record, and
in Luthi it was the prior purchaser’s grantor who did not record with adequate specificity. Thus,
this Note does not suggest that the innocent party (the subsequent purchaser) should prevail over
the party who made an error recording.
167 Hence, the courts chose not to protect the investment of prior purchasers who irregularly
recorded because they ignored the risk that a subsequent purchaser would not find the
recordation. Recall that if the subsequent purchaser finds the irregularly recorded deed prior to
recordation, then they cannot gain protection of either a notice or a race-notice recording statute
as needed to defeat the common law rule that the first purchaser in time prevails. This is because
in this situation the subsequent purchaser has actual notice of the prior recordation and thus
cannot qualify as a bona fide purchaser under the recording acts.
168 See supra Part V for the analysis of which computerized systems remove this risk from the
various doctrines.
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In sum, there are two reasons to overrule these doctrines: (1)
computerized systems remove the rationale upon which these doctrines
were enacted, rendering them obsolete; and (2) the party that would win
in a title dispute under the doctrines, the subsequent purchaser, should
no longer prevail because, due to the computerized systems, there is no
reason for them to win. 169
B.
Who Should Make the Change?
The necessary changes to the chain of title doctrines should be
made by state legislatures, not the courts. The reasons why are as
follows: (1) implementing change depends on knowledge that the courts
do not readily possess; 170 (2) the courts would have to wait until a
controversy arose before they could change the existing doctrine and the
changes they make might need to be tailored to the specific facts before
the court; and (3) separation of powers principles suggest that the courts
in general should not make changes to statutes enacted by the
legislature—here the recording acts. As explained above, state
legislatures are already familiar with this issue, have shown a desire to
implement the computerized systems, and presumably know what type
of system is in place in the state. 171 Further, the legislature has the
ability to gather the necessary information and make an informed
decision about what makes sense in that state depending on the
recording system in place.
C.
What Changes Should be Made?
Legislatures in jurisdictions whose computerized systems can
conduct searches with property information can, if they wish, amend the
wild deed doctrine by statute. The statute would need to include the
following points:
169 This does not mean, however, that in all circumstances the prior purchaser prevails.
Rather, what this Note argues is that due to the computerized recording systems, subsequent
purchasers can be on constructive notice of deeds that they will be able to find easily in the new
recording systems. Because of this, prior purchasers will be able to prevail if a title dispute
should arise, but they will not automatically do so in all circumstances. While prior purchasers
are the party who could have most easily fixed the irregular recordation, they are also the party
that has already invested in both the property and the recording process. Thus, to protect the
already made investment, it would make sense for prior purchasers to be able to prevail in these
title disputes when subsequent purchasers—who have not yet made a similar investment—can
easily discover the irregular recordation.
170 The change will depend on factors like the type of system in place throughout the state and
how far back that system goes.
171 See supra Part I.
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1. Purchasers are on constructive notice of recordations pertaining
to the property they wish to purchase. If a recordation is missing,
as where the record does not reflect how a grantee received title,
the purchaser has a duty to inquire into the unrecorded deed.
2. If, after documented due inquiry has occurred, the purchaser is
unable to find the unrecorded deed, the purchaser has a right to
take possession of the property and prevail in any future title
dispute against a wild deed holder.
3. If the purchaser fails to make such inquiry, then a prior purchaser
can contest the subsequent purchaser’s right to take possession by
relying on the unrecorded deed. The prior purchaser, however,
has the burden of either producing the unrecorded deed or
producing reliable evidence showing that the grantee whose title
is in question had good title to the property. 172 If the prior
purchaser fails to meet this burden the subsequent purchaser will
prevail.
Furthermore, if a computerized recordation jurisdiction follows the
Morse rule, the legislature should overrule the decision and adopt the
Woods rule. States could do this by adopting a statute that includes the
following:
Purchasers are on constructive notice of recordations pertaining
to the property they wish to purchase regardless of whether a
recordation is recorded late or out of order.
In addition, computerized jurisdictions that follow the Spring
Lakes rule should instead adopt the Guillette rule. 173 States could do
this by adopting a statute that includes language similar to the
following:
172 If the only justification for the wild deed doctrine is that wild deeds are difficult to find
(which is how the courts usually describe it), then the statute could simply read: “Purchasers are
on constructive notice of recordations pertaining to the property they wish to purchase, even
where a recordation is missing.” The problem with this is that it does not deal with what
subsequent purchasers should do in the event that they find a wild deed. As explained above,
upon discovering a wild deed, a subsequent purchaser will often not know whether the grantor of
the wild deed actually had good title to convey because this conveyance will be missing from the
record. Further, it cannot be that the previous purchaser relying on the missing deed
automatically prevails over the subsequent purchaser, because prior purchasers could then ensure
victory over subsequent purchasers in title disputes by having their grantors not record. In
addition, without due assurance that the wild deed holder has good title (and to know this the
subsequent purchaser must know whether the person who conveyed to the wild deed holder had
good title to convey), there is no reason for the prior purchaser to prevail. This is why the statute
proposed here seeks to balance the competing interests of the prior and subsequent purchasers in
the wild deed situation.
173 Similarly, those jurisdictions that decline to adopt Sanborn v. McLean, 206 N.W. 496
(Mich. 1925), should now do so.
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Purchasers of lots in a subdivision are on constructive notice of
restrictions contained in the deeds to adjacent lots as well as other
lots in the same subdivision. 174
For computerized jurisdictions that (1) allow purchasers to search
with property information, (2) follow the Morse rule and (3) follow the
Spring Lakes rule, a comprehensive statute could be adopted that
addresses all three doctrines.
Unlike the other three doctrines, the computerized recording
systems do not significantly alleviate the problems caused by Mother
Hubbard clauses. Thus, the Luthi rule should remain in place. 175
CONCLUSION
The computerization of land records, which is occurring rapidly
throughout the country, undermines the rationale behind three of the
four chain of title doctrines discussed herein. 176 The affected doctrines
allocate the burden of properly recording to prior purchasers and
thereby alleviate the searching burdens on subsequent purchasers by
allowing them to prevail in land title disputes when there are previous
irregular recordations in their chains of title that conflict with their
interests. 177 Since the computerization of land records eases the
searching burdens that these doctrines address, to the point that at times
these burdens are non-existent, the systems render the doctrines
obsolete—subsequent purchasers will now be able to find easily the
irregular recordation. Because of this, state legislatures in computerized
jurisdictions should overrule these doctrines, and, when appropriate,
adopt a rule that allocates the burden of finding irregular recordations to
subsequent purchasers.
174 Because recording acts in each state vary significantly, the exact language of each of these
statutes will depend on each state’s recording statute.
175 If legislatures do determine that the computerized systems have significantly undermined
the Luthi rule, then a rule similar to that expressed in Texas Consolidated Oils v. E.J. Bartels, 270
S.W.2d 708 (Tex. App. 1954), holding that subsequent purchasers are on constructive notice of
general assignments, should be followed.
176 This by no means suggests that these are the only chain of title doctrines affected by the
computerized recording systems.
177 Recall that the doctrines do this by allowing subsequent purchasers to not have constructive
notice of these recordations. This then relieves them of the burden of having to find the
recordations.