of

contract for the sale of land does not create any greater rights in the purchaser than he had before the record was made; but the only effect of recording the contract is to give notice of rights, so that where an executory contract for the sale of land, which has been forfeited by reason default of the purchaser, has been recorded, after default was made, an attaching creditor of the purchaser cannot levy on the property, since the interests of the purchaser, created by contract, have been forfeited, and cannot be revived by the fact that the contract was recorded after the forfeiture. Hayes v. Carey (1919) 287 Ill. 274, 122 N. E. 524.

Though the record of an executory contract for the sale of real property is, by virtue of statute, constructive notice of the contract, the rights of a party to a deed of the land embraced in the recorded contract, executed prior to the execution of the contract, but not recorded until after the contract was recorded, have become fixed before notice of the rights under the contract, and no preference over the existing deed can be secured by the superior diligence in recording the tract before the deed was recorded. Thorsen v. Perkins (Minn.) supra.

con

In Mills v. Marriott (1912) 17 B. C. 171, 20 West. L. R. 917, 2 West. Week. Rep. 150, 3 D. L. R. 266, it is held that the fact that an application for registration of an executory agreement for the sale of land, together with the agreement itself, was on file in the land registry's office at the time a subsequent purchaser took the land, must be taken to give notice of the contract, and specific performance will be decreed against the subsequent purchaser, at the instance of the vendee named in the contract for sale.

It was said in Kinberger v. Drouet (1922) 149 La. 986, 90 So. 367, that a promise of sale of real property, duly recorded, confers a real right upon the purchaser, which cannot be defeated by a subsequent purchase of the same property by a third party, recorded prior to execution of deed pursuant to the recorded contract of

sale, where it was held that a sale of property, in the face of the record of an option, still in effect, was null and void.

b. Where no authority is given to record, or where the contract has not been executed in compliance with recording act.

If no provision is made or authority given for recording executory contracts for the sale of real property, and record of such an instrument is in fact made in the book of records, no effect as constructive notice can be given the record. Thus, in Kendrick v. Colyar (1904) 143 Ala. 597, 42 So. 110, it was held that an unattested deed, which amounted only to a contract to convey, was not, under statute, entitled to be recorded, and the fact that it was recorded did not operate as constructive notice to any

one.

Where record of executory contracts for sale of real estate is authorized, the record of such a contract, which has not been properly executed or acknowledged, so as to entitle it to record, will not constitute constructive notice of the contract. Walter v. Hartwig (1886) 106 Ind. 123, 6 N. E. 5; McBee v. O'Connell (1911) 16 N. M. 469, 120 Pac. 734; Bilansky v. Hogan (1916) 190 Mich. 463, 157 N. W. 13; Nelson v. Scofield (1922) 219 Mich. 595, 189 N. W. 185; Fairthorne v. Davis (1876) 28 La. Ann. 725; Fowles v. Bentley (1909) 135 Mo. App. 417, 115 S. W. 1090.

The act of the registrar in copying into the records an executory contract on which was written an assignment and an acknowledgment of the assignment did not constitute legal record of the contract, such as would be binding notice on third parties, since the statute required the contract itself to be acknowledged before it could be recorded. McBee v. O'Connell (1911) 16 N. M. 469, 120 Pac. 734, supra.

An unacknowledged contract for the sale of real property is not entitled to be recorded, and if such contract is, in fact, recorded, its record will not constitute constructive notice (Fowles v. Bentley (Mo.) supra); so

that where an unacknowledged contract for the sale of real property has been recorded, the record of the contract will not be sufficient notice of the contract to establish a lien on the land for purchase money paid under the terms of the unacknowledged contract, as against a subsequent purchaser of the land embraced in the contract, and this, even though one of the parties in the chain of title, through whom the present owner claims, had actual knowledge of the unacknowledged contract.

An unacknowledged executory contract for sale of real property is not entitled to be recorded, and the fact that it is recorded is of no effect. Nelson v. Scofield (1922) 219 Mich. 595, 189 N. W. 185, where by statute it is provided that a contract for sale of land shall be executed and acknowledged in the presence of witnesses, and that the record of such contract shall be of like force and effect to subsequent purchasers or encumbrancers of the land as the record of a deed.

A contract for the sale of land is not entitled to be recorded unless the contract is acknowledged; and the record of an unacknowledged contract, illegal, since it is unauthorized, may be canceled, as a cloud on title. Walter v. Hartwig (Ind.) supra.

That an executory contract for the sale of land is not entitled to be recorded unless the contract is acknowledged is held in Bilansky v. Hogan (1916) 190 Mich. 463, 157 N. W. 13. The controversy there was between the original parties to the contract, and the court indicated that, as between the parties to the contract, it was immaterial whether the contract was recorded or not.

The record of a contract for the sale of real property does not impart constructive notice of the contract, there being no proof that the contract was acknowledged, and so has no effect against a subsequent purchaser of the property who did not have notice of the contract. Fairthorne v. Davis (1876) 28 La. Ann. 725.

In the reported case (KEESE V. BEARDSLEY, ante, 1538), it is held that

the record of an executory contract, acknowledged only by the vendee in the contract, does not constitute constructive notice of the contract, since the California statute provided that, in order to entitle an instrument to be recorded, it must be acknowledged by the person executing the instrument.

A bond for title, not proved in the mode re,uired to entitle it to be recorded, acquires no authenticity by reason of being in fact recorded, and so cannot be admitted in evidence without proof of its execution by subscribing witnesses, or proof that the witnesses could not be brought before the court. Craddock v. Merrill (1847) 2 Tex. 494.

The record of an executory contract for the sale of land, made after the contract has been forfeited and the right to enforce it gone, will be canceled as a cloud on title. Hayes v. Carey (1919) 287 III. 274, 122 N. E. 524, supra.

See also the New York cases cited supra, II., which hold that the only e..ect of recording an executory contract is to facilitate proof of the contract; and that it does not impart constructive notice.

IV. Failure to record where record of contract is authorized or requ.red.

The object and purpose of the recording acts is to prevent persons who have, in good faith, acquired real property, or some interest therein, fro.n being injured by prior secret or fraudulent sales or encumbrances of the property; so that it is generally held that the failure to record an executory contract for the sale of land, where, by statute, such record is authorized or required, only operates to render the contract invalid as against subsequent purchasers or encumbrancers of the land, who have acquired the land or a lien thereon without knowledge of the contract, in reliance upon the record title; while, as between the parties to the contract, and between subsequent purchasers or encumbrancers who have taken with actual knowledge of the contract, the contract is as valid and en

forceable as though it were recorded. Randall v. Allen (1919) 180 Cal. 298, 180 Pac. 941; Akerberg v. McCraney (1918) 141 Minn. 230, 169 N. W. 802; Edwards v. Thompson (1874) 71 N. C. 177; Freeman v. Bell (1909) 150 N. C. 146, 63 S. E. 682; Linn v. LeCompte (1877) 47 Tex. 440. See also Bilansky v. Hogan (1916) 190 Mich. 463, 157 N. W. 13, supra.

But the failure of a vendee to record his executory contract for the sale of land does not give a subsequent purchaser of the land a better right, when, at the time of the subsequent purchase, the vendee under the first contract was in possession (Randall v. Allen (Cal.) supra), provided the occupancy was open and visible.

Failure to record an executory agreement to purchase back land sold under execution does not invalidate the contract where, by statute, it is provided that such contract may be recorded, though in many respects such a contract resembles a mortgage, which, by statute, if not recorded, is void; and the contract may be enforced against subsequent purchasers of the land who have actual notice or reasonable grounds to know of the existence of such contract. Edwards v. Thompson (1874) 71 N. C. 177.

The failure to record an executory contract for the sale of real property where, by statute, record of such contract is required, bars any claim to rights in the property as against subsequent purchasers who relied upon the record title, even though the purchasing party under the contract had gone into possession, and remained on the property until his death. Akerburg v. McCraney (1918) 141 Minn. 230, 169 N. W. 802.

Failure to record an executory contract for the sale of real property renders the contract void as against a subsequent creditor of the vendor who acquires a lien upon the land without notice of the contract (Linn v. LeCompte (1877) 47 Tex. 440); and a purchaser under execution by the attaching creditor will be protected from the effects of such contract even though, at the time of the execution 26 A.L.R.-98.

sale, the purchaser knew of the contract; he is protected through the rights of the creditor.

And in Freeman v. Bell (1909) 150 N. C. 146, 63 S. E. 682, it is held that the fact that a contract for the sale of land was not registered is immaterial as against a subsequent purchaser if, at the time of the subsequent purchase, the vendee named in the contract was in possession of the land.

It is said in Jordan v. Hanover F. Ins. Co. (1909) 151 N. C. 341, 66 S. E. 206, that it is elementary that an unrecorded bond for title is good as between the parties to the bond, and, as between them, will be enforced.

And it is held in Guaranty Invest. & Loan Co. v. Athens Engineering Co. (1922) 152 Ga. 596, 110 S. E. 873, that bonds for title to real estate, though authorized, are not required to be executed and recorded with the formality prescribed for the execution of deeds to land, so that a transferee of an unrecorded bond for title acquires an equitable interest in the land which will be superior to a subsequent materialman's lien.

But that no notice, however formal, will supply the place of registration, where, by statute, it is provided that no conveyance, contract to convey, or lease of land shall pass any property as against creditors or bona fide purchasers but from the date of registration thereof, see Wimes v. Hufham (1922) N. C., 116 S. E. 402. The court in that case, however, was dealing with an unrecorded deed, and not with an executory contract for the sale of land.

The Louisiana recording act provides that the failure to record an executory contract for the sale of land shall render it void except as between the parties; so that the rule there is that an unrecorded executory agreement for the sale of lands cannot be enforced against a subsequent purchaser of the land, even though he may have had notice of the existence of the contract.

So, where a person has gone into possession of land under an agreement, which was not recorded, that

the owner would convey title to him, he is not entitled to rely on his unrecorded contract, as against a subsequent purchaser of the land. Sorrell v. Hardy (1910) 127 La. 843, 54 So. 122. The court said: "The law is that all contracts affecting immovable property which shall not be recorded in the parish where the property is situated 'shall be utterly null and void except as between the parties thereto;' and that knowledge of such unrecorded contract is not equivalent to its registry, and does not affect the rights of third persons acquiring such property upon the faith of recorded title."

It was said in Boagni v. Stamen (1916) 139 La. 851, 72 So. 417, that all sales, contracts, or judgments concerning immovable property, not recorded according to law, are declared to be utterly null and void, except as between the parties; and it is held that where a person is in possession of land with an 'understanding' with the owner that the owner would transfer title to him, he has no rights in the property as against a subsequent purchaser of the property, sold under execution against the owner.

V. Book in which record must be made.

Generally, no provision is made in the recording acts, designating the book in which an executory contract for the sale of real estate must be recorded, in order for its record to be effective. Such an instrument is usually treated as an instrument affecting title to real estate, or as an instrument analogous to a conveyance, so that it is usual to record contracts for the sale of land with the records of deeds or conveyances; and so it is held that if the contract be recorded in the mortgage records, or among the miscellaneous records, its record will not be effective to constitute notice. Thus it was held that recording an executory contract for the sale of land in the book of miscellaneous records does not give constructive notice of the contract. Bernard v. Benson

(1910) 58 Wash. 191, 137 Am. St. Rep. 1051, 108 Pac. 439, where it was said that instruments affecting title to real estate have been so long recorded in deed records that the court would take judicial notice of that fact as well as of the fact that it was the uniform custom to record instruments affecting title to personalty in the miscellaneous records; and in Riggs v. Eicholz (1911) 127 La. 745, 53 So. 977, it was held that the record of an agreement to transfer a half interest in property the subject of litigation, in consideration that second party to contract should act as attorney, in the mortgage records, conveys no notice to subsequent purchasers of the property; but that record of such agreement, in order to be notice, should be made in the records of conveyances.

In the reported case (KEESE v. BEARDSLEY, ante, 1538) it is held that an agreement to convey an equity of redemption in land was properly recorded in the book of deeds; since the effect of such an instrument was to convey or transfer equitable title, it was, therefore, a conveyance within the meaning of the recording statute.

The record of an executory contract for the sale of real property being, under the statute, effective only for purposes of facilitating proof, and not as imparting constructive notice, it was held in Puglisi v. Bilansky (1922) 118 Misc. 336, 193 N. Y. Supp. 357, that such a contract having been actually recorded in records of mortgages, the record should be canceled. The court distinguished Boyd v. Schlesinger (1874) 59 N. Y. 301, and Washburn v. Burnham (1875) 63 N. Y. 132, holding that the record of such a contract would not be canceled as a cloud on title, since it did not, under the statute, have the effect to impart constructive notice, upon the ground that in those cases the instrument was recorded as a contract; meaning, apparently, that the record was not made in the book of mortgages.

G. S. G.