the computerization of land records ... - cardozo law...

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337

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).

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338 CARDOZO LAW REVIEW [Vol. 32:1

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 notice9 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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2010] COMPUTERIZATION OF LAND RECORDS 339

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 informative22—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 note33 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-Sign36 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 intent40 that it would further the existence of electronic recordation systems41 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 place48 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 purchaser51 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 recordations60 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 875-76 (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 act65 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 title69 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-Wild-Deed-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 non-computerized 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. Curtis74 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 rule79 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. Garnett82 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 O84 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 problem87 by recording in a timely manner.

C. The “Mother Hubbard” Problem as Illustrated by Luthi v. Evans

Luthi v. Evans88 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 conveyed92 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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determined94 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 question100 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 jurisdictions109 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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A. The Ability to Conduct Fast Non-Chronological123

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 computer131 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/grantee136 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 information137 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 title142 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. Evans150 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 non-chronological 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. Non-chronological 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 name156 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 Id. 156 The common grantor here is the subdivider. 157 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 non-recorded 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.