James W. Throckmorton et al. v. Mary P. Price et al., 28 Tex. 605

Moore, C. J. —There was no controversy as to the facts in this case. The only question in it arises upon the instruction given to the jury by the judge in the court below. The evidence clearly shows that the deed of trust under which the appellants claim, though filed with the county-clerk for record, and so indorsed by him sometime prior to the date of the deed to the appellees, was not, in fact, recorded until after their purchase of the land.

It is also unquestionably true, that all reasonable diligence was used in behalf of the appellees to ascertain whether the land was free from incumbrance, and that it was bought and paid for by them on the assurance of the county clerk that there was no evidence in his office of any conflicting right to it.

On the other hand, it is not even charged that the appellants were guilty of any fraud or deception in the matter, or had failed to do all in their power to secure their rights under the deed of trust, unless the duty devolved upon them not only to deposit their deed with the county clerk for record, but also of seeing that it was duly recorded by him, to enable them to set it up against a subsequent, bona fide,, purchaser without notice.

That such was their duty is evidently held to be the law of the case in the instructions given the jury by his honor who presided on the trial of the cause in the district court. In whatever manner the question presented in this case is decided, it must operate to the injury of innocent parties; there is therefore no equitable consideration favoring a preference of the parties on one side over those on the other. The point in issue between them must be determined by an application of the provisions of the registration laws to the facts of the case.

When this is done, there cannot be the slightest doubt as to a correct decision of the question before us, and that the instruction given to the jury was erroneous. But for the registration law, the older title would obviously convey the better right.

And it is the uniform provisions of these laws that such instruments as must be recorded shall be valid as to all subsequent purchasers for a valuable consideration without notice, and as to creditors from the date when such instrument shall be properly acknowledged, proved, or certified and delivered to the clerk for record, and from that time only. (O. & W., Arts. 1726, 1727, 1730, 1731.) And lest there should be any doubt in the matter, it is further enacted, that any instrument required to be recorded shall be considered as recorded from the time it was deposited-for record with the clerk. (O. & W., Art. 1709.) And to enable all persons who may wish to examine the office to ascertain what instruments have been deposited for record, it is also made the duty of the clerk, (O. &.

W., Art. 1707,) when any instrument has been deposited for record, to enter in alphabetical order, in a book to be provided for that purpose, the names of the parties to such instrument, the date and nature thereof, and the time of its delivery for record.

And, as a further facility and security for persons wishing to make an examination in the office of the recorder for instruments required by law to be recorded, the clerk, after recording any such instrument, is directed to enter the same in the index-books which he is required to keep of recorded instruments. (O. & W., Arts. 1710, 1711, 1712.) If the clerk has neglected to comply with these plain and simple requirements of the statute, and appellees have been thereby misled to their injury, they cannot claim redress for such injury from appellants, who have been in no default.

The law did not impose upon them the responsibility of seeing that the duties prescribed by the statute for the protection and security .of other parties were in fact faithfully discharged by the clerk. Registration laws of a general similarity to ours have been enacted in most of the other States, yet we have been able to find ho case in which the first deed has been postponed in favor of the second from the failure of the clerk to record the prior deed as directed by the statute, while the contrary has been frequently decided.

In Kentucky it is emphatically declared that deeds lodged for record are valid against subsequent purchasers and ereditors. (Bank of Kentucky v. Hagegan, 1 A. K. Marsh., 306.) And in Connecticut it is said, “If a deed, after'it is received and entered up ‘received for record remain unrecorded, through no fault of the grantee, until an attachment of said land, it shall not prejudice the grantee.” (Franklin v. Cannon, 1 Root; Hartmyer v. Gates, Id., 61; McDonald v. Leach, Kirby, 72; Judd v. Woodruff, 2 Root, 298.) The same principle is also recognized in Alabama. (McGregor v.

Hill, 3 Stew. & Port., 397.) The judgment is reversed, and the cause Remanded.