Houlahan v. Finance Consolidated Mining Co. ( 1905 )

Mr. Justice Goddard

delivered the opinion of the court.

The question to be determined involves the construction of section 446, Mills’ Ann. Stats., page 593 (Gen. Stats. 1883, 215), which reads as follows: “All deeds, conveyances, agreements in writing of or affecting title to real estate or any interest therein and powers of attorney for the conveyance of any real estate or any interest therein may be recorded in the office of the recorder of the county wherein such real estate is situate, and from and after the filing thereof for record in such office, and not before, such deeds, bonds and agreements in writing shall take effect as to subsequent bona fide purchasers and incumbrancers by mortgage, judgment or otherwise not having notice thereof.”

In other words, does the word “subsequent” used in this section refer to the date of recording, or the date of the agreement or conveyance? As said in the case of Bradbury v. Davis, 5 Colo. 265, the provisions of our statute relating to the form, force and effect of instruments for the conveyance of real estate were largely transcribed and adopted from the statute of Illinois, and in adopting substantially the statute of that state the legislature is presumed to have intended that such statute shall receive the same construction given it by the courts of that state. The decisions in that state uniformly hold that the word ‘ ‘ subsequent, ’ ’ as used in the act, has reference to the recording, and not to the date, of the instrument, and that the true meaning of the statute is that the purchaser whose conveyance is first filed for record is entitled to a preference, and' obtains the title, regardless of the date of its execution. — Doyle v. Teas, 4 Scam. 202, 252; Reid v. Kemp, 16 Ill. 445; Brookfield v. Goodrich, 32 Ill. 363; Delano v. Bennett, 90 Ill. 533.

In Doyle v.Teas, supra, the facts upon which that part of the opinion applicable to the question here involved was predicated were very similar to the facts in the present ease. It was there held that an agreement dated on the 23d of May and recorded on the 19th of June was entitled to preference over a deed executed on the 26th of May and recorded on the 26th of June. Mr. Justice Caton, who delivered the opinion of the court, speaking as to the effect of a compliance with the recording act, says: “As the effect of a compliance with the recording act was to operate as constructive notice to all the world, that object is as much accomplished by the recording of an agreement as of a deed. What, then, would have been the effect on Munson’s title had Doyle received a deed with date and record the same as the agreement? Beyond all doubt, his deed being prior in date, and first on record, and bona fide, must take precedence of one subsequent in date and subsequently placed on record. The word subsequent, as ' used in the recording act, must have reference to the recording, and not to the date of the instrument, and such indeed is its literal and grammatical construction. As between the grantor and grantee, the transaction is complete upon the execution and delivery of the deed; but as between the grantee and third persons, without notice, the purchase may be said not to be complete till the title paper is left for record.”

Accepting this construction as the correct import and meaning of the statute, as we are constrained to do, the appellee is entitled to the relief asked, and the judgment of the trial court is accordingly affirmed. Affirmed.

Chief Justice Gabbert and Mr. Justice Bailey concur.