
    E. F. Poplin v. Robert Mundell.
    1. Conveyance; Oh. 145K Laws of 1877, Object of. Ch. 145, Laws of 1877, (Comp. Laws 1879, p. 214,) relating to the transfer of real estate in the name of the owner, has for its object only the facilitating of the assessment and taxation of real estate, and does not repeal, amend or modify the provisions of ch. 22, Comp. Laws of 1879, regulating conveyances of real estate, so as to forbid the filing and recording of conveyances under its terms from imparting notice to all subsequent purchasers, although such conveyances are not transferred in the office of the county clerk of the county before being deposited and filed for record.
    2. Becord oe Deed, Relates to Filing; Notice. Where an instrument in writing which conveys real estate, properly acknowledged and certified, is left for record with the register of deeds in the usual way, and at the time of being thus deposited is, by such register, indorsed filed of the date of deposit, although not recorded until some time after it is so left, yet, when recorded, the record has relation back to the time the deed is so left and filed for record. Held further, that every such instrument in writing, certified and recorded in the manner prescribed by the statute, does, from the time of filing the same for record, impart notice to all persons of the contents thereof; and all subsequent purchasers shall be deemed to purchase with notice, notwithstanding the register, at the time of the reception of such conveyance, neglects to immediately enter the same upon his receiving book, and no entry of the transfer of such conveyance is, at the time of filing, of record in the office of the county clerk, and although such entry and transfer are not made until after the subsequent purchaser has obtained his deed.
    3. Conveyance, Considered as Recorded; Register’s Relay. Every instrument in writing that conveys any real estate, acknowledged and certified as required by the act relating to conveyances, is considered as recorded from the time it is left for record with the register of deeds in the usual way, and is filed by him for record; and the party so filing his conveyance for record is not responsible for the fault or delay of the register in failing to enter immediately such conveyance upon his reception book, or in delaying the actual recording thereof a few months.
    4. Deday; Reed Imparting Notice. Where a.deed dated June 30,1876, was left with the register of deeds for record in the usual way, on March 3, 1880, and was then filed by the register, with the date of March 3,1880, thereon, but such deed was not, at the time of being deposited with the register, transferred on the records of the county clerk, and at the time the register received such deed he did not immediately make an entry thereof upon his receiving book, and the transfer of such deed and the entry on the receiving book, and the actual record of such instrument, were not made until about May 7,1880, held, such deed, so deposited and filed, imparted notice from the time of filing to all persons of the contents thereof, notwithstanding the delay in the entry on the reception book and in the actual recording thereof.
    
      Error from Anderson District Court.
    
    Ejectment, brought by Poplin against Mundell, to recover the possession of certain real estate in Anderson county. The petition was filed May 14,1880, and alleged that Poplin had a legal and equitable estate, and was entitled to the immediate possession of the premises described. Mundell answered by a general denial; that he was in legal and actual possession of the premises; alleged that the plaintiff had no right, title or interest to the land; and prayed judgment that defendant be decreed to-be the legal and equitable owner thereof, and that his title be duly quieted. Plaintiff filed a reply to the answer, denying each and every allegation therein inconsistent with her petition. The first trial was had at the September Term, 1880; the second trial at the March Term, 1881, before the court and a jury. The plaintiff, to maintain her cause of action on her behalf, read the following stipulation of facts:
    “The parties to the above-entitled action agree upon the .following statement of a portion of the facts in the above-entitled action, and submit the same to the court as true:
    “1. That on the 9th day of July, 1874, E. P. Trautwein was the owner in fee simple of the lands described in plaintiff’s petition, except the claim of A. G. Barber, under a tax sale mentioned in No. 2.
    “2. That on July 9, 1874, the tax deed recorded in book 18, page 382, in the office of the register of deeds of Anderson county, Kansas, was executed to A. G. Barber, of S. J of S.W.isec. 9, T.20, R.21.
    “3. That on February 13, 1875, said A. G. Barber and wife made and delivered to F. P. Trautwein in the deed to said S.J-of S.W.i sec. 9, T. 20, R. 21, recorded in .book 24, p. 326, in said register’s office, of S.J of S.W. J of S.W.jjc, 9-20-21.
    “4. That on June 30, 1876, F. P. Trautwein and wife sold and conveyed to M. B. V. Wisker, and made and delivered to M. B. V. Wisker a deed of the lands described in plaintiff’s petition, recorded in said register’s office, book 24, page 327.
    “5. That on March 30, 1877, M. B. "V. Wisker and wife sold and conveyed all of said lands to J. W. Dowler, by deed recorded in book 24, )iage 328, in said register’s office.
    “ 6. That said defendant claims said lands by and under the deed of date December 26, 1879, from said J. W. Dowler and wife to Robert Mundell, the defendant, recorded in book 24, page 117, in said register’s office.
    
      “7. That said plaintiff claims title to said land under the following: That on April 10, 1880, said F. P. Trautwein and wife sold and conveyed said lands to the plaintiff, E. F. Poplin, by deed recorded in book 24, p. 271, in said register’s office; that A. G. Barber and wife, on April 24, 1880, sold and conveyed the said S.J of S.’W’.-]- of sec. 9, T. 20, R. 21, to E. F. Poplin, plaintiff, by deed recorded in book 24, p. 254, in said register’s office. /
    
    “All questions as to the time of filing said deeds for record, or any of them, as to the time of recording said deeds, or any of them, and as to the time of presenting said deeds, or any of them, to the county clerk for transfer, and as to the transferring of the same by the county clerk, and all questions as to notice or lack of notice,, and of good faith or want of good faith, and all questions of fraud, and all other questions not herein expressly agreed upon, are not to be affected by this stipulation; and said parties reserve the right to offer any further legal evidence to the court upon the trial of this action as to all facts not'hereinbefore expressly agreed upon.
    A. Bergen, for Defendant.
    
    October 7, 1880. H. L. Poplin, for Plaintiff.”
    
    R. L. Row testified on the part of the plaintiff, as follows:
    “I am register of deeds, and have been ever since January, 1880. This is the reception record kept by me in my office, [producing receiving book.] Here the record is read in evidence, as follows:
    RECEPTION RECORD.
    
      Time of recepName of grantors. Name of grantees To whom delivered. Fee received.
    
    April 13,1880.... F. P. Trautwein, Amelia H. Trautwein. E. F. Poplin....... H. L. Poplin.. 75e. Pd.
    May 7, 1880....... Albert G-. Barber, Sarah J. Barber........... E. F. Poplin....... H. L. Poplin.. 75c. Pd.
    “I aim to enter deeds upon the reception record as soon as I receive them for record. As soon as I receive a deed for record I enter it on the reception record. There is no entry of any deed from Trautwein to any other person on the reception record in order previous to this from Trautwein to Poplin. The deed from Trautwein to M. B. Y. Wisker is after the one from Trautwein to Poplin on the reception record; there are five entries below in order on the reception record after that of Trautwein to Poplin, before that of Trautwein to Wisker. The first entry on the reception record above that of Trautwein to Wisker is of date May 5,1880, and the first entry below that of Trautwein to Wisker is of date May 6, 1880. The deed of Trautwein to Poplin is recorded in book 24 of deeds, at page 271. The deed of Trautwein to Wisker is recorded in the same volume, at page 327. It is the general custom to put instruments on the record in the order in which they are received for record. The deed from Trautwein to Poplin is written first in order on the numerical indexes and the general indexes of the register’s office. These are all the records in the register’s office that the deeds are entered upon. I made the entry of the deed from Trautwein to M. B. Y. Wisker on the reception record on May 5, 1880, and put it on record May 6,1880. I put the filing on the back of the deed on March 3,1880, and put it away with the deed from Wisker to Dowler and Barber to Trautwein, in a pigeon-hole in my safe, and I overlooked it until some time afterward, and Mr. Mundell told me when he left them that he was not in a hurry to get his deeds back; that was what he said to’ me. I do not know whether they were transferred or not. I remember that Mr. Poplin was in the office May 6th, or the 7th, when I was recording them, and asked to see them. I do not know who was in the office at the time. I am not positive whether the deed from Trautwein to Wisker was turned over to the county clerk by me on the 5th or 6th of May, and I am not positive whether they were ■ recorded before transfer; they may have been.”
    
      (Gross - examination.) “I am deputy county clerk, and have been for some time. There was a great press of business in April and May, so I could not keep up in recording. I do not remember what Mundell said about recording the deeds, only that he was in no hurry. Mr. H. L. Poplin was frequently in the office. He never asked me if there was any unrecorded deed from Trautwein to any other person. The deed from Dowler to Mundell was filed for record Feb. 3, 1880, and recorded in book 24, at page 217. The deed from Trautwein to Wisker was marked, 'Filed by me, March 3, 1880/ and was given to me by Mundell, and I understood that it was to be recorded, but that he was in no hurry about it. The deed from. Wisker was left at the same time, and marked 'Filed’ on the back of the deed. Do not remember what was said about it.”
    
      (.Reexamination.) “I have never acted as deputy county clerk in the transfer of instruments. I have never transferred any instrument on the transfer record, and I have never made a certificate of transfer on any instrument. All the transfers and certificates of transfers are made by the county clerk himself.”
    
      [Re-cross-examination.) “I have received papers from the county clerk as his deputy, but I never made any transfers of real estate as his deputy.”
    H. L. Poplin, produced as a witness on the part of the plaintiff, among other things testified:
    “I knew of the purchase of the lands in controversy; I, purchased them as agent of plaintiff for the plaintiff from F. P. Trautwein and wife, on the 10th of April, 1880. I received the deed on the 13th day of April, 1880, and had it. filed for record in the office of register of deeds on the same day, April 13, 1880. I examined the records in the register’s office as to the title of these lands before I made the purchase, and at the time I made the proposition to purchase, and I did not find any transfer of the lands from Trautwein to any person. I examined all the records in the register’s office, the receiving book, the general indexes and the numerical indexes of these lands, and there was no entry of any deed from Trautwein to any person of these lands on any of the records in the register’s office, or' at the time I purchased the lands for plaintiff and had the deed filed for record. I also examined the transfer record in the office of the county clerk, and there was no entry of transfer of said lands from F. P. Trautwein to any person when I purchased the lands for plaintiff and had the deed to her transferred by the county clerk and deposited the same with the register of deeds for record.”
    Defendant, among other evidence, introduced the following testimony:
    A warranty deed from J. W. Dowler and wife to Robert Mundell, of date December 26, 1879, for all the lands in controversy in this action for $300, indorsed: “This instrument was filed for record on February 3, 1880, at 1 o’clock p. M., and duly recorded in book 24 of deeds, at page 117. — R. L. Row, Register of Deeds. Transferred Feb’y 3, 1880. — T. W. Foster, Co. Clerk.”
    Also, a warranty deed from M. B. V. Wisker and wife for all the lands to J. W. Dowler, of date March 30, 1877, for $1,000, indorsed: “This instrument was filed for record on the 3d day of March, 1880, at — o’clock — M., and duly recorded in book 24 of deeds, at page 328.— R. L. Row, Register of Deeds. Transferred March 30, 1880. — T. W. Foster, Co. C’ierk.”
    Also, a deed from Anderson county to A. G. Barber for S. § S.W. sec. 9, T. 20, R. 21, of date July 9, 1874, for $83.45, indorsed: “This instrument was filed for.record on the 3d day of March, 1875, at — o’clock —'M., and duly recorded in book 18 of deeds, at page 382. — Wit. H. Mellen, Register of Deeds.”
    Also, a deed from A. G. Barber and wife to F. P. Trautwein for S. S. W. see. 9, T. 20, R. 21, of date February 13, 1875, for $100. Indorsed: “This instrument was filed for record on the 3d day of March, 1880, at — o’clock — M., and duly recorded in book 24 of deeds, at page 326. — R. L. Row, Register of Deeds. Transferred March 3, 1880.— T. W. Foster, County Clerk.”
    Also, a warranty deed for all of said lands from F. P. Trautwein and wife to M. B. V. Wisker, dated June 30, 1876, for $1,000. Indorsed: “This instrument was filed for record on the 3d day of March, 1880, at — o’clock — M., and duly recorded in book 24 of deeds, at page 327. — R. L. Row, Register of Deeds. Transferred March 3, 1880. — T. W. Foster, County Clerk.”
    The jury returned a verdict for the defendant, and also made the following special finding of facts:
    “1. When the deed from Trautwein and wife to E. F. Poplin was received and transferred by the county clerk and deposited with the register of deeds for record, had the deed to M. B. Y. Wisker from Trautwein and wife been entered on tlie receiving book kept by the register of deeds, or upon the indexes of the records, or upon any of the records in the office of the -register of deeds ?
    “A. Filed, but not entered on any of the books named.
    
      “2. Had E. F. Poplin any knowledge of the deed from Trautwein and wife to M. B. Y. Wisker, or the deed from Wisker and wife to Dowler, at the time that Trautwein made the deed to E. F. Poplin?
    
      “A. Had knowledge of deed from Trautwein to Wisker.
    “ 3. Did the defendant Mundell leave the deed from Trautwein and wife to M. B. Y. Wisker, and the deed from'Wisker and wife to J. W. Dowler, and the deed from A. G. Barber to Trautwein with the register of deeds, without having them or any one of them transferred by the county clerk? At the same time of leaving them with the register, tell the register that he need not record them until he had leisure, as he, Mun-dell, was in no hurry to have them recorded ?
    
      “A. First question, yes. Second question, no.
    
      “4. When were the deeds from Trautwein and wife to Wisker and the deed from Wisker and wife to Dowler entered on the receiving book of the register of deeds?
    - “A. May 5, 1880.
    
      “ 5. When were the deeds from Trautwein and wife to M. B. Y. Wisker, and the deed from Wisker and wife to J. W. Dowler, and the deed from A. G. Barber and wife to Trautwein entered on the transfer record by the county clerk, and attached his certificate of such transfer to the deeds?
    “A. From May 5th to May 7th, 1880.”
    A motion for judgment for plaintiff upon the special findings of the jury was filed, and also a motion for a new trial. The hearing upon these motions was continued until the September Term, 1881. At such term the motions of plaintiff were overruled, and judgment rendered in favor of the defendant for all costs. The plaintiff excepted, and brings the case here.
    
      Johnson & Poplin, for plaintiff in error:
    The court erred in admitting the record of tax sales and redemptions over the objections of plaintiff. It was incompetent to prove any issue in the case, and tended to mislead •the jury. The court should have given instructions 1 to 12, inclusive, asked by plaintiff. The first embodied the admitted facts, and was proper to show the jury what facts were taken as true; and it contained the substance of § 21, ch. 22, Comp. Laws 1879. The second and third are substantially the statute relative to conveyances, and need no citation of authority to support them. The fourth is §§ 33 and 35, ch. 22, Comp. Laws 1879; and 4-J is in harmony with said § 35, which expressly prohibits the record of such instrument until it has been properly transferred.' This law took effect March 16, 1877. Before that, a deed duly acknowledged could be properly- deposited for record, under § 21, ch. 22, Laws 1868. But the law of 1877 requires a certificate of transfer by county clerk, in addition to the acknowledgment theretofore required, to entitle a deed to be recorded or deposited for record; and filing or recording it without complying with the statute is a nullity. (18 Kas. 486; 30 Wis. 444.) The fifth is the law as decided by this court, (18 Kas. 486,) and provided for by '§§ 90 and 92, ch. 25, and § 35, ch. 22, Comp. Laws of 1879. The sixth is the requirement of § 92, ch. 25, Comp. Laws of 1879, with a statement that a failure to so file a deed and enter it on the receiving book would not impart notice of such ■deed. The evidence had shown just such a state of facts as •contemplated by this instruction. That the statute should be complied with, see 15 Iowa, 510; 12 id. 14. The seventh ■is to the effect that the statute must be complied with to impart notice to anyone of a deed. (15 Kas. 133; 29 Mich. 163; 20 Wis. 551; 20 Ohio, 261.) The eighth should have been given to define actual notice. The rights of the parties are determined by the statute of conveyances; and actual notice is the language of the act. (Comp. Laws 1879, ch. 22, § 21.) 'See also 2 G,. Greene, 41; 4 id. 54; 2 Bouvier’s Law. Die.' 236. The ninth should have been given under the state of the evidence and facts in thé case. Where parties to a deed .are out of chain of title, the record of a deed is not notice of •any prior unrecorded deed of the same land. (10 Ohio, 83; 20 id. 366; 15 Kas. 134.) The tenth is in strict accordance with the law, and proper under the facts of the case. (31 Wis. 399, 401; 25 id. 80-98, diss. op.) The eleventh was, in view of the uucontradicted testimony of the register of deeds, applicable and proper. The twelfth should have been given. It had been admitted and shown that plaintiff purchased the-lands from Trautwein; and defendant claimed under a deed that depended on the same source, through intermediate conveyances; hence it was incumbent on him to show compliance with the statute as to having the deeds showing his chain of title duly transferred and deposited for record, or to show actual notice to plaintiff of them. It was a matter of defense, and the burden was on him to show it satisfactorily. (31 Wis. 404.)
    The instructions given by the court do not contain the substance of any of those refused, and are erroneous. The first given is on the assumption that nothing more is necessary under our registry laws, to give constructive notice and knowledge to all persons of a deed, than delivery of it by the grantee to the register of deeds for record, duly acknowledged; that it is not necessary that it be transferred as required by §33, ch. 22, Comp. Laws 1879; that §35 of the same law has no requisites essential; that the register need not comply with the statute that requires him to indorse day, hour and minute of reception on the deed; that he need not enter it on his receiving book, nor upon any record that the statute provides in his office. All that is essential is for the grantee to leave it with the register for record; it need never be recorded — just received for record. Such a theory would render the registry laws a snare instead of a protection against secret or concealed conveyances and charges on estates. (22 Mo. 415; 14 Serg. & R. 333; 22 Barb. 349; 6 Ga. 103; 31-Wis. 401.) While there are some cases that seem to support this theory by losing sight of the intent of the registry laws and sound reason, the current of authority and well-considered cases support the doctrine that, as between a grantee and a subsequent bona fide purchasei’, it is necessary that all the prerequisites of valid registration be complied with. That all these requirements of the statute, as to filing, entering .on reception record, etc:, (and transfer under our statute,) in a well-considered case, under a statute similar in most steps to ours, has been held necessary to valid registry. (15 Iowa, 510; 25 id. 184; 30 Wis. 454, 482 ; 3 Washb. on Real Pr., 3d ed., p. 286, § 54, note 2.)
    The second is equally erroneous and misleading. The first instruction says that leaving the deed for record with the register, charges all persons with notice; and the second says if it be left for record, and the grantee expected it to be recorded, any subsequent purchaser is presumed to have knowledge of the contents of the deed. Under the authorities cited above, this instruction is erroneous; and under the facts 'of this case, it is very misleading. There was no evidence of what the defendant expected when he left the deeds with the register; and what he expected was not an issue in the case, but wbat was done. Nor was there any testimony that warranted that part of the instruction as to the register’s being deputy county clerk. The evidence did not tend to show that he was such deputy when those deeds were claimed to have been left for record, but the contrary.
    The third instruction was misleading, and in this case erroneous, There was no evidence of actual, open, visible and notorious possession of the lands by plaintiff.
    The fourth instruction given is misleading in this, that it takes from the jury, substantially, all the testimony as to putting the deeds away and not recording them, for the court, by previous instructions, had in substance said to the jury that the fact that defendant left the deeds with the register without having them transferred, was not to be considered; that none of the register’s acts in putting deeds away in his safe, and his failure to enter them on the reception record, or any record in his office, were to be considered by the jury; that, as between defendant and plaintiff, a subsequent purchaser, without actual notice, as shown by all the testimony on the subject, the defendant was under no obligation to see that the deeds forming his chain of title were properly transferred and properly filed and entered on the proper books of the register’s office; that all the defendant need do was to leave such deeds with the register, expecting them to be recorded; and then this fourth instruction says to the jury: “Leave out what defendant said to the register, in regard to the return of his deeds ‘that he was in no hurry for his deeds.’” This instruction substantially says to the jury: If the defendant said or did anything to induce the register to put away the deeds in a private place, then they were not properly deposited for record; but I have said, and now say, that he did not do or say any such thing.
    The refusal to give the instructions asked for, and the failure to embody the same- in those given, violates the rule that statutes relating, to the same subject-matter are to be construed together. (17Kas. 414. See. also 21 id. 88; 12 id. 54, 413; 2 id. 227; 7 id. 35; 19 id. 43; Potter’s Dwarris, 126, 193, 204.)
    
      A. Bergen, for defendant in error:
    1. Before plaintiff had paid for the land, and before he had made any contract for the purchase thereof, defendant had paid the taxes on' the land and had entirely inclosed it with a fence, thus having actual, visible, open and notorious possession. All persons are bound to take notice of all equitable interests which any person may have in real estate of which he is in the actual possession. (7 Kas. 455; 12 id.-291; 18 id. 164; .19 id. 287; 20 id. 420; 21 id. 263; 88 111. 378.) The plaintiff had not only actual notice, but knowledge of the deed made by Trautwein to Wisker, as well as of the deed to defendant, before plaintiff paid for the land or contracted to purchase it, as testified by Trautwein, and as. specially found by the jury. (12 Mich. 339; 34 id. 68'; 3 Washb. on Eeal Pr. 290.)
    2. All the deeds under which defendant claims title were duly deposited and filed with the register of deeds for record before the plaintiff even commenced negotiating for a quitclaim, and were duly transferred and recorded. The “act in relation to the transfer of real estate in the name of the owner,” (Comp. Laws, p. 214,) has for its object only to facilitate the assessment and taxation of real estate. It in no way purports to affect matters of title, or notice or the rights of individuals as between themselves. It does not require the grantee, or any party interested in the deed, to have it transferred before depositing or filing it with the register for record, nor abridge any of his rights if he should fail to have it transferred. It merely forbids the register of deeds from- recording unless the instrument shall have been transferred, and imposes upon him a liability to a penalty of $5 for each violation of the act. However, in this case, the same person was both register of deeds and deputy county clerk. With this person, who was lawfully competent to do all that was in any view of the ease requisite to be done in connection with the recording, the deeds were duly deposited for record by the defendant, before the plaintiff claims to have obtained any interest in the land. They were duly transferred and recorded as soon as in the pressure of such work in the office it could be done; and, we contend, impart notice of their contents to all persons from the time of filing said deeds with the register of deeds for record.
    In those states whose statutes differ from ours, the tendency of the courts is to hold that the recording relates back to the time of filing. All those that hold that anything more than the depositing and filing for record is required to be done by the grantee, have statutes widely different' from ours. In this connection, see 6 111. 575; 1 Root, 500; A. I£. Marsh. 306; 1 R. I. 30; 1 Bay, 364; 28 Tex. 605; 25 Vt. 635; 1 Rand. 102; 4 Biss. 437; 37 Cal. 202; 3 Stew. & P. (Ala.) 397; 3 Washb. on Real Pr. 285.
    3. The county treasurer’s record of the redemption of this land from sale was properly admitted in evidence. It is an official record. (Comp. Laws 1879, ch. 107, § 129.) It was competent in connection with other evidence, which showed that plaintiff’s husband, agent and attorney probably saw the record within a week after it was made, and thus had knowledge sufficient to put him upon inquiry as to the rights of defendant Mundell. It thus, with other facts, has a bearing upon the question of his bonafides towards defendant in this transaction.
    4. As to the twelve instructions asked for and refused: In the first instruction asked, the plaintiff assumes to state the facts admitted, but does not in this instruction or any other asked, state the whole of the stipulation, nor mention nor allude to its limitations and qualifications. The law as asked was substantially given by the court in its first instruction. The second and third instructions asked are objectionable, because they assume that E. F. Poplin was a bona fide purchaser of the land, ignore the evidence of actual possession and improvement by Mundell, and like nearly all the other instructions, might be misleading, in requiring that for the defendant to sustain his rights E. F. Poplin must personally have had actual notice of the deed to Trautwein. Her agent, H. L. Poplin, may have had actual notice, fully binding upon her in law, without any actual notice to her in the ordinary unjuridical sense of the term. Instructions four, four-and-a-half and five all have reference to the law as to transfers on the county clerk’s record. They were immaterial because the transfer is not designed as a means of notice to individuals, nor to affect their rights among themselves; and if it does so affect such rights, that these deeds under the evidence were properly transferred and recorded. The sixth instruction asked the court to enter minutely into the details of the official duties of the register of deeds. This, we claim, was not appropriate in the case. Besides, it assumes as one of its conditions, that there was no record of the deed at all. This was contrary to the stipulation which showed that the deeds were recorded. The seventh instruction is objectionable for the same reasons as the second and the third, and for the additional réason that it transcends the law in saying that if Poplin’s deed was filed before the deed of Trautwein to Wisher was transferred by the county clerk on his records, Wisher’s deed would be of no validity. The eighth is subjecfc to the same objections, as also to the objection which runs through nearly all the instructions asked by plaintiff, “That actual notice under the law can only be communicated by express information to or personal service upon the party interested in the notice.” This, as applied to the facts of this case, would have been misleading because it excludes from consideration all those facts, a knowledge of which is held by the law sufficient to put a person upon inquiry, as to the rights of others, and might lead a jury to understand that there was some necessity for pergonal service of notice like the service of legal process upon the party to be charged with notice. Whatever is sufficient to put a person on inquiry is considered in equity as conveying notice. (7 Conn. 324.) Plaintiff’s business in this matter was all transacted by her agent. If the court had given the instruction, the jury might well have concluded that no notice to the agent could have been sufficient notice to the principal. The ninth is liable to all the objections mentioned to any of the other instructions asked. So far as the tenth states the law, it was substantially given by the court. The eleventh is conditional upon a state of facts which there was no evidence tending to prove. Mundell did not tell the register “he need not record the ■deed until he had leisure, as he (Mundell) was in no hurry to have it recorded.” The twelfth instructs the jury to find for the plaintiff, unless the defendant has proved either one or the other of two certain things, thus ignoring the necessity of the plaintiff’s proving anything, and the fact that whatever plaintiff had proved, the defendant had introduced evidencetending to prove several other facts, either one of which in connection with the admissions stipulated was sufficient to defeat the plaintiff’s claims.
   The opinion of the court was delivered by

Horton, C. J.:

The principal controversy in this case arises over the instructions given to the jury by the trial judge. It appears from the testimony that the plaintiff and the defendant claimed title from the same source — the latter through intermediate conveyances. The title of each was derived as follows: On February 13, 1875, F. P. Trautwein and wife were the owners in fee simple of the lands in dispute. The defendant held a conveyance from J. W. Dowler and wife of the date of June 26, 1879;. consideration paid, $300. Dowler and wife held a conveyance from Wisher and wife of the date of March 30, 1877; consideration, $1,000. Wisher and wife purchased from Trautwein and wife on June 30, 1876, and paid as consideration $1,000. The plaintiff held a conveyance in the form of a quitclaim •from Trautwein and wife of the date of April 10, 1880; consideration paid, $50. At one time A. G. Barber had a tax deed upon the premises, but on February 13, 1875, said Barber and wife executed a deed therefor to Trautwein for $100, and on April 24, 1880, Barber and wife executed a quitclaim deed to plaintiff for $5. The conveyances to the plaintiff were obtained through the agency of her husband, H. L. Poplin, who attended to the plaintiff’s business for her in these transactions. The prior deed of Trautwein and wife to Wisher, of the date of June 30, 1876, was deposited with the register of deeds for Anderson county on March 3,1880; and on said day the register properly indorsed the filing of March 3 on the bach of the deed, and then put it with the deeds from Wisher to Dowler and Barber to Trautwein, in a pigeon-hole in his safe. But when such instrument was filed by him, he did not immediately mahe entry of the same in his receiving booh, nor was such deed actually recorded in full in the boohs of records of the office, nor entered upon the booh of general- indexes, or the booh of numerical indexes, until after the deed of April 10, 1880, from Trautwein and wife, had been transferred by the county cleric, filed with the register of deeds, and entered upon his receiving booh. The date of the transfer, filing and entry of the latter deed to plaintiff was April 13, 1880, while the deed from Trautwein and wife to Wisher, 'although filed March 3, 1880, was not entered on the receiving booh until May 5,1880, nor entered on the transfer record of the county clerk until sometime from May 5th to May 7th, 1880. Again, the subsequent deed of Trautwein and wife to plaintiff was recorded in book 24 of deeds, at page 271, while the prior deed of Trautwein and wife to Wisker, although filed earlier, was recorded afterward in the same book, on page 327. The prior deed, therefore, was not put on record in the order in which it was received; and was not actually recorded until about the 7th of May, 1880, and whether recorded just before the transfer by the clerk, or just after, it is difficult to tell. Upon these facts, counsel for plaintiff asked various instructions, to the effect substantially that a deed of conveyance of real estate cannot be properly deposited for record with .the register of deeds until it has been transferred by the county clerk and his certificate thereof attached to the conveyance, and that therefore the deed from Trautwein and wife to Wisker, of June 30, 1876, was no.t properly deposited with the register of deeds for record, because it had not been prior to such deposit transferred by the county clerk; further, that there was no such compliance with the law relating to registration of deeds as to impart notice to anyone of the contents of the. conveyance from Trautwein and wife to Wisker, because, when such conveyance was filed by the register of deeds he did not immediately make an entry of the same in his receiving book. In brief, counsel contend that if there is no entry of the transfer of a conveyance of real estate in the book of records kept by the county clerk therefor, and no transfer of the conveyance actually made by the county clerk, and no immediate entry of the reception of the conveyance on the receiving book kept by the register when the instrument is filed, the deed is not properly deposited for record, and is of no validity except between the parties thereto, and such as have actual notice thereof, although such conveyance be left for record in the usual way and be accepted and filed by the-register at the time it is so deposited. All of the instructions embracing these and similar views were refused. Instead thereof, the court charged the jury if they found from the evidence that the deeds from Trautwein and wife to Wisker, and from Wisker and wife to Dowler, were each deposited with the register of deeds of Anderson county for record on the 3d day of March, 1880, such deeds being duly acknowledged as they purported to be, then plaintiff was chargeable with notice of such conveyances from the time of the deposit of such deeds with the register. And again, the court directed the jury, if they found from the evidence that said deeds were left with the register of deeds for record; that the register of deeds was then the deputy county clerk; that defendant expected said deeds when he so left them for record would be duly and regularly recorded, and that they would have been so recorded had not the officers neglected their duty, then such deeds imparted notice of their contents from the time of such delivery for record, and any purchaser of the said premises after said deeds were so delivered would be presumed to have knowledge of the contents thereof.

We think the instructions of the court sufficiently declared the law in the case, and that no error existed in refusing the instructions asked for, or in the direction given. It appears from the evidence that R. L. Row, the register, was also the acting deputy county clerk, and when the deed of Trautwein and wife to Wisker was deposited with him, we can see no good reason why as such deputy county clerk he did not enter on the transfer record of the county the transfer of the lands mentioned in the conveyance, and attach the certificate of the county clerk to the conveyance. But waiving this suggestion, as the register testified that although acting as deputy county clerk he had never transferred any instruments on the transfer record, we may remark, the act in relation to the transfer, of real estate embodied in ch. 145, Laws of 1877, has for its object only the facilitating of the assessment and taxation of real estate. Neither the book of record of the county clerk, nor the certificate of the transfer attached to the conveyance, has anything to do with imparting notice to parties of the contents thereof. Such transfer and such certificate are required by the statute for a wholly different purpose. It is true that § 3 of said chapter prescribes that in “no case shall the register of deeds record any instrument conveying' real estate, unless such instrument shall have been transferred as required by, law.” Yet, we construe this provision, as all the other pro- . visions of the chapter, as having reference to the purpose of assessment and taxation — not as having any regard to the question of imparting notice to subsequent purchasers of the real estate described in conveyances. In this case, however, the instrument was transferred as required by law about the time the deed was actually recorded in the book of records in the office of the register of deeds. And while it may be that such deed was actually recorded a day or two before such transfer, yet the transfer and the recording having been at so near a date together, the object of the provisions of ch. 145 was substantially complied with. The finding of the jury is, that the deed from Trautwein and wife to Wisker was entered on the transfer record by the county clerk, and his certificate attached to the deed sometime from May 5th to May 7th, 1880. The register upon this point testified:

“ I am .not- positive whether this deed was turned over to the county clerk .by me on the 5th or 6th of May, and I am not positive whether they were recorded before transfer; they may have been. I remember that Mr. Poplin was in the office May 6 th or 7th, when I was recording the deeds, and' asked to see them.”

Therefore, the delay in the transferring of the deed from Trautwein and wife to Wisker we do not think figures in the ease to -the prejudice or detriment of any party. Secs. 19, 20 and 21 of ch. 22, Comp. Laws of 1879, p. 212, are as follows:

“Sec. 19. Every instrument in writing that conveys any real estate, or whereby any real estate may be affected, proved or acknowledged, and certified in the manner hereinbefore prescribed, may be recorded in the office of the register of deeds of .the county in which such real estate is situated.

“Sec. 20. Every such instrument in writing, certified and recorded in the manner hereinbefore prescribed, shall, from the time of filing the same with the register of deeds for record, impart notice to all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed to purchase with notice.

“Sec. 21. No such instrument in writing shall be valid except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record.”

Clearly, under the reading of these sections, where a deed duly acknowledged and certified is left for record in the usual way, with the register of deeds, and is properly marked filed by him for record at the time of receiving such deed, it imparts notice to all persons of the contents thereof, and all subsequent purchasers must be deemed to purchase with notice; and when recorded, the record has relation back to the time the deed is so left and filed for record. But counsel insist that these sections are only a detached portion of the acts relating to registration, and that as §§ 91 and 92, ch. 25, Comp. Laws of 1879, p.292, require every register to keep a receiving book and general index book, for the purpose of making an entry of every instrument when filed in the receiving book, and of making correct entries in the general index book so soon as the instrument is recorded, that any delay of any of these steps deprives the, record thereof of the power of imparting constructive ' notice of the existence of the deed and its contents, although the party depositing such instrument for record is in no fault. Now in this case the actual recording of the deed from Trautwein and wife to Wisker, and the entry thereof upon the general index or the numerical index records, need not be considered, because it cannot be expected that a register of deeds in the discharge of his duties shall write out each instrument in the record books on the date of its filing, and of course he is not to enter the same upon the general index or numerical index until the instrument is actually recorded in the books of the office. At least, it is not necessary for him to perform this duty until the instrument is recorded. Therefore the only material question as affecting the matter of imparting constructive notice to the plaintiff as a subsequent purchaser of the premises described in the prior deed of Trautwein and wife to Wisker, is the temporary omission, or rather the delay of the register in making the entry in his receiving book of the reception of such instrument. As it was received and filed March 3, 1880, the register should have made an entry of the same in his receiving book under the appropriate heads upon the same date. He neglected, however, to make such entry until May 5,1880, and until a time subsequent to the execution of the deed from Trautwein and wife to plaintiff. Did this temporary omission or delay deprive the record of the power of imparting constructive notice of the existence of the deed and its contents? There is a wide diversity in the authorities respecting the question whether the grantee in an instrument or a subsequent purchaser shall suffer for the mistakes or omissions of the officer in registering a conveyance of real estate, or neglecting to register it. On the one side it is held that the obligation rests on the party holding the conveyance to give the notice required by the statute. It is said that he controls the conveyance, and can put it on record or not, at his pleasure; that if from any cause he falls short of giving legal notice, the consequences must fall on himself; that it is his own business, and that he must suffer the consequences of its being imperfectly performed; that it is the duty of- the party filing the instrument, as between him and subsequent bona fide purchaser, to see that all of the prerequisites-of a valid and complete registration are complied with. (Miller v. Bradford, 12 Iowa, 14; Barney v. McCarty, 15 Iowa, 570; Jennings v. Wood, 20 Ohio, 261; McLaren v. Thompson, 40 Me. 284.)

On the other hand, it is held by many authorities, that when a deed is left for record in the usual way, and not recorded until some time after it is so left, yet when recorded the record has relation back to the time the deed is so left and filed for record; and further, that the party filing the conveyance for record is not bound to see that the officer performs his duty by actually recording it; nor is he responsible to other parties for the officer’s neglect of his duty, or failure to comply with the requirements of the statute with respect to registration.' By these authorities, it is considered that where the party has duly deposited his deed with the proper officer for record, he has performed his whole duty, and consequently the subsequent mistake or neglect of the officer of registration will not affect him or invalidate his title. (Throckmorton v. Price, 28 Tex. 605; Beverly v. Ellis, 1 Rand. 102; Dubose v. Young, 10 Ala. 368; Bank v. Haggin, 1 A. K. Marsh. 225; Nichols v. Reynolds, 1 R. I. 30; Jarvis v. Aikens, 25 Vt. 635; Judd v. Woodruff, 2 Root, 298; Cook v. Hall, 1 Gilm. 575; Curtis v. Lyman, 24 Vt. 334.)

4. imparting If the question of a total omission on the part of the register of deeds was before us, we would be inclined to hold that the law does not impose upon the party holding the title the responsibility of seeing that the duties prescribed by the statute upon the register for the protection and security of of other parties are in fact faithfully discharged by such officer. It seems to us that when the party holding the title presents his deed, duly acknowledged and certified, to the register of deeds for record, and demands that it be placed upon record, and.the register thereupon accepts the same, and duly indorses it filed of the date it is so presented, such party has discharged his whole duty to the public, and his muniment of title cannot be shaken by any subsequent purchaser. If any subsequent purchaser be iniured by the neglect or delay of the register as to his duties in the registrati0n of such conveyance, such injured party has his action against that officer. In this case, if the plaintiff has been injured by the neglect or delay of the register, she ought to recover in a suit against such officer any damages that she may have suffered through the fault or neglect of the officer. The authorities, however, holding that the party filing an instrument must see that all of the prerequisites of a valid and complete registration are complied with, generally refer to cases where there has been a total omission of duty on the part of the registration officer. In this case there was only a delay on the part of the register in making the entry on his receiving book of the reception of the prior conveyance. Such fault was attempted to be cured by the entry of May 5, 1880. The conveyance itself was properly recorded at length, and although, taking the evidence of plaintiff alone, it may be said that she was misled by the temporary omission on the receiving book, we cannot bring our minds to the conclusion that the delay in making the entry deprived the record of the power of imparting constructive notice of its existence and contents to her. If she has been injured by the delay of the register, she ought not to be permitted to claim redress against the party holding the prior title, who duly deposited his deed with the officer for record, and is in no fault. Ch. 22, Comp. Laws 1879, points out the steps to be taken by the party holding the title, so that all persons may have notice of such conveyance. If the holder of the title comply with its provisions, he performs fully his duty. Art. 7, ch. 25, Comp. Laws of 1879,-points out the duties of the register of deeds. If such officer fails to comply with its provisions, the subsequent purchaser injured by his negligence ought to look to him, and not to the grantee, who has complied with the statute.

We have thus far discussed the questions presented to us upon the theory that the deed of Tra.utwein and wife to Wisk'er was so deposited and filed under the requirements of the law as to impart constructive notice of its existence and contents to the plaintiff. But under the findings of the jury, even if this deed had never been deposited, filed or recorded, its existence was sufficiently known to the plaintiff when she purchased as to give such prior deed the precedence, and she cannot therefore claim the rights of a bona fide purchaser. Counsel for plaintiff contend, however, that this finding of the jury is irrelevant, because the jury did not find that the plaintiff had actual notice of snch instrument; and counsel further urge, that the trial court committed material error in refusing to present the question as to whether the plaintiff had actual notice that Trautwein and wife had previously executed a deed for the land in suit at the time they made the deed to plaintiff. This question as submitted was objectionable, because it apparently related back to April 10,1880, when Trautwein and wife signed and acknowledged the deed. As the deed was transmitted by express, marked “C. O. D.— $50,” it was not in fact delivered — that is, executed — until the payment of the money on the delivery thereof on April 13, 1880. Therefore the question of actual notice ought to have been directed to that date. Perhaps it would have been better for the trial judge, in the second inquiry of the jury, to have directed the jury to answer whether the plaintiff had actual notice, instead of adopting the word “knowledge.” We suppose actual notice to H. L. Poplin, the agent, would be actual notice to the plaintiff. But the question as propounded and answered does not seem to have misled the jury, because they answered that the plaintiff had knowledge of the deed from Trautwein to Wisker at the time that Trautwein and wife made the deed to her, although they did not find that plaintiff had knowledge of the other deed deposited and recorded, and of which, under the law, she was bound to have constructive notice. We may therefore infer from all the findings, that the jury construed the word “knowledge” as synonymous with actual notice. Upon' the question of actual notice, F. P. Trautwein testified as follows:

“That about the 24th of March, 1880, he received by mail a letter from H. L. Poplin, of the date of March 2Q, 1880, offering' $25 for a quitclaim deed of the premises; that a short time afterward he replied by letter addressed and mailed to H. L. Poplin, Garnett, Kansas, in which he stated in effect, as near as he could recollect, that for the small sum of $25 he would not do anythiug, and if he could not double that amount he would do nothing.”

He also testified that it was his impression that he stated in this letter to Mr. Poplin that he had previously conveyed this land to M. B. V. Wisker, and was positive in his own mind that he had so stated until about the 15th of February, 1881, when he received another letter from Mr. Poplin; that he might not have made the statement in the letter of that date, but he-was under the impression that he did tell him in the letter that he had conveyed the land to Wisher by warranty deed. This evidence was contradicted by H. L. Poplin. An attempt was made, and we think successfully by preponderance of testimony, to establish the fact that Trautwein did not make any statement concerning the conveyance to Wisker until after the execution of the deed to plaintiff, and until after April 19, 1880. Nevertheless, the jury had all this ■evidence before them, together with other matters and circumstances relating to the specific purchase by plaintiff of the premises; and being the triers of the facts, the finding is conclusive, as they had sufficient testimony before them to sustain such finding.

There are some other questions presented, but none of these, in view of the conclusions which we have reached, are of sufficient importance to demand comment; and upon the whole record we are of the opinion that the judgment of the ■court below must be affirmed.

All the Justices concurring.  