broker is usually entitled to his commissions when he has produced one ready, willing and able to purchase at the terms proposed by the principal, or when he has produced one with whom a contract of sale is actually made, still, if the person produced is able to purchase only by resort to an unlawful device, the broker has not earned his commission. Where, under such circumstances, an executory contract of sale has been entered into between the principal and the proposed purchaser, the principal being aware that its execution involves the perpetration of a fraud upon a third person, and refuses to consummate the contract, the broker is not entitled to his commission. Zittle v. Schlesinger, 46 Neb. 844 (65 N. W. Rep. 892).

Sec. 738. Double commission. Where there is an agreement to pay a middleman for services of value rendered, honestly entered into, it cannot be avoided on the ground that another person, with distinct and independent interests, has agreed by a separate contract to pay for the same services. If the broker only undertakes to bring the parties together, so that they may make a contract, if they choose, without his interference in the contract itself, as the agent of either party, he is entitled to compensation from both, on an agreement from each. Childs v. Ptomey, 17 Mont. 502 (43 Pac. Rep. 714). Citing, Rap. Real Est. Brokers, p. 176; Rupp v. Sampson, 16 Gray, 398 (77 Am. Dec. 416); Herman v. Martineau, 1 Wis. 151 (60 Am. Dec. 368).

Sec. 739. Miscellaneous notes. Where a man merely employs an agent to buy an estate, who buys it for himself, and denies the trust, and no part of the purchase money is paid by the principal, and there is no written agreement, he cannot compel the agent to convey the estate to him, as that would be in violation of the statute of frauds. Nash v. Jones, 41 W. Va. 769 (24 S. E. Rep. 592). In an action for commissions, the defense that the plaintiff was employed by both parties, and his double employment not disclosed, must be pleaded; it is competent for a purchaser to testify that it was through the plaintiff's efforts that he bought; and the variance is fatal where the complaint alleges authority to sell at a fixed

price and the evidence shows a sale for less price than that pleaded. Childs v. Ptomey, 17 Mont. 502 (43 Pac. Rep. 714).

RECORDS AND RECORDING.

EPITOME OF CASES.

Sec. 740. As to what instruments may be recorded. Applying a statute (Wis. Rev. Stat., § 2216) which requires the execution of a deed to be witnessed in order for it to be admitted to record, it is held that where a deed was executed by several grantors and it appears upon its face, from the manner in which the attestation of the witness is made, that the signatures of only part of the grantors were witnessed, it is not admissible of record as the deed of the grantors whose signatures are not witnessed. Harrass v. Edwards, 94 Wis. 459 (69 N. W. Rep. 69). Construing Minn. Gen. Stat. 1894, § 1624, which provides that no deed can be recorded until the county auditor endorses thereon, "taxes paid and transfer entered," it is held that mandamus will not lie to compel the auditor to make such endorsement upon a deed purporting to convey the title to or affecting an interest, legal or equitable, in several parcels of real property, and the taxes are paid upon one parcel, but are delinquent and unpaid upon the other parcels. State ex rel. Prince Inv. Co. v. Weld, 66 Minn. 219 (68 N. W. Rep. 1068). As to constitutionality of such a statute, see Vol. III, § 632. In Tennessee it is held that a deed is not binding until properly registered and that it can not be registered until proven or acknowledged according to the provisions of the statute. Alabama Marble & Stone Co. v. Chattanooga Marble & S. Co., Tenn. (37 S. W. Rep. 1004). Mo. Rev. Stat., 1879, § 2305; Rev. Stat., 1889, §§ 4864, 4865, applied-recording unacknowledged deeds. Geer v. Missouri Lum. & Min. Co., 134 Mo. 85 (34 S. W. Rep. 1099; 56 Am. St. Rep. 489).

Sec. 741.

Unrecorded deeds. A purchaser having notice of an unrecorded deed takes subject thereto. Hender

son v. Cameron, 73 Miss. 843 (20 So. Rep. 2). Under N. J. Revision, p. 706, par. 22, an unrecorded mortgage although given for purchase money will be postponed to a subsequent mortgage having priority of record and taken for a valuable consideration by one not having notice. Protection Bldg. & L. Ass'n. v. Knowles, 54 N. J. Eq. 519 (34 Atl. Rep. 1083). Under Mo. Rev. Stat. 1889, § 2420 (see Vol. II., § 586), a trust deed which is recorded is superior to another unrecorded trust deed previously executed of which the later grantee had no notice. Ladd v. Anderson, 133 Mo. 625 (34 S. W. Rep. 872). Under Neb. Comp, Stat. 1895, § 4108, for text of which see Vol. II, § 588, it is held that a prior unrecorded deed, passing the legal title, made in good faith, for a valuable consideration, will take precedence of a title based on a judicial sale made under an attachment or execution, if such deed be recorded before the evidence of the title based on the judicial sale is recorded. Sheasley v. Keens, 48 Neb. 57 (66 N. W. Rep. 1010). Under Mills' Ann. Colo. Stat., § 446, providing that until recorded deeds shall not “take effect as to subsequent bona fide purchasers and incumbrancers by mortgage, judgment or otherwise not having notice thereof," it is held that a grantee who does not record his deed until the land has been duly attached by the grantor's creditor, who has no notice of the deed, holds subject to the attachment lien. Jerome v. Carbonate Nat. Bank, 22 Colo. 37 (43 Pac. Rep. 215). The same is held in Wahrenberger v. Waid, 8 Colo. App. 200 (45 Pac. Rep. 518), applying Colo. Gen. Stat., 215. In South Dakota it is held that title acquired by an unrecorded deed is prior and superior to that obtained by a purchaser at an execution sale under an attachment subsequently made by the grantor's creditors. Roblin v. Palmer, 9 S. Dak. 36 (67 N. W. Rep. 949). Citing, Bateman v. Backus, 4 Dak. 433 (34 N. W. Rep. 66); Plant v. Smythe, 45 Cal. 161; Runyan v. McClellan, 24 Ind. 165; Norton v. Williams, 9 Iowa 529; Banking Co. v. Duncan, 86 N. Y. 221.

A statute (McClel. Fla. Dig. p. 215, § 6) making recording of a conveyance necessary in order for it to be effectual "against creditors or subsequent purchasers for a valuable consideration and without notice," protects as an innocent purchaser, a judgment creditor who purchases at an execution

sale under his judgment without any notice, actual or con. structive, of an unrecorded deed of the judgment debtor conveying the property purchased. Lusk v. Reel, 36 Fla. 418 (18) So. Rep. 582; 51 Am. St. Rep. 32). A creditor who obtains judgment.or sues out an attachment after the record of a valid mortgage is not entitled to protection under the statute as an innocent purchaser, although the debt upon which the judgment or attachment was based was contracted after the execution of the mortgage, and before its record. Rogers v. Munnerlyn, 36 Fla. 591 (18 So. Rep. 669). An unrecorded deed is good and effectual against subsequent purchasers, unless such purchasers bought the premises without notice of the former conveyance, and for a valuable consideration. The want of notice on the part of a purchaser of premises which his grantors had previously conveyed by an unrecorded deed need. not be shown otherwise than by showing the absence of a record, which is prima facie sufficient. The burden of proof is upon the party who claims by virtue of a priority of record, against a prior but unrecorded deed, to show affirmatively the payment of a valuable consideration, which must be shown by some other evidence than the mere recital of it in a deed. Lake v. Hancock, 38 Fla. 53 (20 So. Rep. 811; 56 Am. St. Rep. 159).

Sec. 742. What constitutes notice of an unrecorded deed-Proof. Recitals in a deed showing the existence of an unrecorded mortgage upon the premises conveyed are notice to all persons claiming under such deed. Reichert v. Neuser, 93 Wis. 513 (67 N. W. Rep. 939); Tate v. Clement, 176 Pa. St. 550 (35 Atl. Rep. 214). Where a cashier of a bank which is authorized by its articles of incorporation "to act as an agent in the investment of funds," and "to transact any business that may properly be done by a financial agent,' negotiates a loan of a customer's money deposited in such bank, takes the acknowledgment of the mortgage, holds possession of the same while unrecorded and receives interest from the mortgagor which he places to the credit of such customer, the bank will be charged with notice of such unrecorded mortgage. Christie v. Sherwood, 113 Cal. 526 (45 Pac. Rep. 820). The title of a subsequent purchaser, who first places his deed

on record, will not be defeated upon the ground that he had notice of a prior unrecorded deed of the same premises, unless the proof of such notice is so clear and positive as to leave no reasonable doubt that the taking of the second conveyance was, under the circumstances, an act of bad faith toward the first purchaser. The fact of notice must be proved by direct evidence, or by other facts from which it may be clearly inferred; and the inference must not be probable, but necessary and unquestionable. "Bare suspicion will not raise an inference of fraudulent intent." Robertson v. Wheeler, 162

Ill. 566 (44 N. E. Rep. 870).

Sec. 743. Destroyed records. Where the record links in the chain of title have been destroyed by fire, a proceeding under the burnt record act will be sustained although other questions as to title are involved. Gage v. Thompson, 161 Ill. 403 (43 N. E. Rep. 1062). Illinois burnt record act applied. Quinn v. Perkins, 159 Ill. 572 (43 N. E. Rep. 759). Applying Mo. Rev. Stat. 1889, § 2419, providing that deeds duly acknowledged, certified, and recorded, "shall, from the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed in law and equity to purchase with notice," it is held that the effect of the record as notice is not affected by its destruction by fire. Geer v. Missouri Lum. & Min. Co., 134 Mo. 85 (34 S. W. Rep. 1099; 56 Am. St. Rep. 489).

Sec. 744. Records as notice-Indexes.

The record

of an instrument not entitled to be recorded will not constitute notice of rights claimed under it. Snider v. Udell Woodenware Co., 74 Miss. 353 (20 So. Rep. 836). The effect of the record of a mortgage as notice is unaffected by mere clerical mistakes in transcribing, which do not affect the sense and provisions as to the amounts secured, description of property, etc., or obscure the meaning of the instrument. Royster v. Lane, 118 N. C. 156 (24 S. E. Rep. 798). Citing, Lumber Co. v. Ritchie, 73 Wis. 409 (41 N. W. Rep. 345, 1064). In Kansas it is held that when an instrument entitled to be recorded has been duly filed for record, subsequent purchasers