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The Recording of Land Titles in South Carolina (Herein of Bona Fide Purchase of Land): a Title Examiner's Guide

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The Recording of Land Titles in South Carolina (Herein of Bona Fide Purchase of Land): a Title Examiner's Guide South Carolina Law Review Volume 10 Issue 3 Article 1 Spring 1958 The Recording of Land Titles in South Carolina (Herein of Bona Fide Purchase of Land): A Title Examiner's Guide David H. Means University of South Carolina Follow this and additional works at: https://scholarcommons.sc.edu/sclr Part of the Law Commons Recommended Citation David H. Means, The Recording of Land Titles in South Carolina (Herein of Bona Fide Purchase of Land): A Title Examiner's Guide, 10 S.C.L.R. 346. (1958). This Article is brought to you by the Law Reviews and Journals at Scholar Commons. It has been accepted for inclusion in South Carolina Law Review by an authorized editor of Scholar Commons. For more information, please contact [email protected]. Means: The Recording of Land Titles in South Carolina (Herein of Bona Fi THE RECORDING OF LAND TITLES IN SOUTH CARO- LINA (HEREIN OF BONA FIDE PURCHASE OF LAND): A TITLE EXAMINER'S GUIDE* DAVID H. MEANSt TABLE OF CONTENTS Page INTRODUCTION 348 I. PRIORITIES ASIDE FROM STATUTE 350 II. HISTORY OF THE RECORDING ACT IN SOUTH CAROLINA 351 III. INSTRUMENTS AND TRANSFERS AFFECTED 355 A. In general 355 B. Adverse possession 356 C. Adverse possession by grantee under an unrecorded deed 358 D. Prescriptive easements 359 E. Presumption of a grant 360 F. Easements by implication 361 G. Bankruptcy proceedings 362 H. Mechanics liens 363 I. Lien of judgment upon property of railroador street railway corporation 364 J. Dower 364 K. Other interests created without a written instrument 365 IV. PARTIES PROTECTED BY THE RECORDING ACT 367 A. In general-- - 367 B. Purchaserfor valuable consideration 368 C. Purchase from heir or devisee 374 D. Protectionof a subsequent purchaser against a prior conveyance recorded after execution but before recordationof the subsequent conveyance- 375 E. Subsequent creditors _________-- 376 *This article is a modified portion of a thesis submitted to the faculty of the Harvard Law School in fulfillment of the requirements for the degree of Doctor of Juridical Science. The writer wishes to acknowledge his indebtedness to Professor A. James Casner of the Harvard Law School, who supervised preparation of the writer's thesis, and to Profes- sor Coleman Karesh of the University of South Carolina, School of Law, who read the article and made many helpful suggestions. -,Professor of Law, University of South Carolina, School of Law. 346 Published by Scholar Commons, 2020 1 THE RECORDINGSouth Carolina OF LAND Law Review, TITLES Vol. IN 10, S. Iss.C. 3 [2020], Art. 1 Page V. NOTICE 383 A. In general -- 383 B. Notice other than from the record 384 1. Express notice and notice from rumors - 384 2. Immediate or remote claimant under a quit- claim deed as a purchaser without notice - 385 3. Possession as inquiry notice _ _-- 385 4. Possession under a parol equity as notice - 387 5. Physical condition of land as notice of the existence of easements 389 C. Record notice and chain of title 391 1. In general 391 2. Recorded conveyance from owner whose deed is unrecorded -- 394 3. Conveyance prior to grantor's acquisition of title - - - -- 395 4. Conveyance executed before but recorded after a subsequent conveyance by grantor - 396 5. Recorded conveyance from owner of a parol equity as notice - __- -- - 397 6. Imposition of restrictive covenants upon retained land in conveyances of other land - 398 7. Recitals in recorded instruments - -- 399 8. Variance of name in successive records -- 400 9. Mortgage recorded in deed book as record notice 401 10. Chattel mortgage on fixtures as notice to purchaser of realty - -- --- 401 11. Failure to index and misindexing -- -- 402 12. Failure to record and errors in the record - 403 13. Recordation in a county other than that in which the land is situated 404 D. Unauthorizedrecords as actual notice 405 E. Purchaserswith notice from purchasers without notice 406 F. Purchaserswithout notice from purchasers with notice _ 407 VI. SUFFICIENCY OF COMPLIANCE WITH RECORDING PREREQUISITES ----- 407 TABLE OF CASES _412 https://scholarcommons.sc.edu/sclr/vol10/iss3/1 2 Means: TheSOUTH Recording CAROLINA of Land TitlesLAW inQUARTERLY South Carolina (Herein[Vol. of 10 Bona Fi INTRODUCTION This article is a study of the priorities between competing claimants of land in South Carolina, both under the recording act and under common law and equitable principles in the absence of statute. The legislative scheme is inapplicable to certain transfers of interests in land,' and even where appli- cable to other interests it embodies in large part much of the previous non-statutory system.2 Therefore, a working knowledge of the doctrines of priorities as developed in the absence of statute is essential to an understanding of the 1. See page 355 et seq., infra. 2. It has been observed that the operation of the recording act in South Carolina results from the treatment of a legal interest created by an unrecorded instrument required by law to be recorded as a mere equity to which is applied the equitable doctrine of bona fide purchase of the legal title for valuable consideration without notice. In Zorn v. Railroad Co., 5 S. C. 90, 101 (1874), Mr. Justice Willard thus discusses the theory and operation of the South Carolina recording act: "The true rule on this subject is laid down by Chancellor Walworth in Dickerson vs. Tillinghast, 4 Paige N. Y., 215. Chancellor Walworth states the point so clearly, and exhibits the ground on which the construc- tion of the Acts of registration rests, so far as it regards the requisites to constitute a valuable consideration under those Acts, that a better presentation cannot be made than that afforded by his language in the case just cited. It will be observed that what he says in regard to the construction of the registry laws of New York is directly applicable to our own Acts. He says: 'The English registry Acts made the unregis- tered deed or incumbrance at law wholly inoperative and void, as against a subsequent grantee or incumbrancer. But the Court of Chancery, in accordance with the manifest spirit and intention of the statute, at an early day adopted the principle of considering the prior deed or incum- brance as an equitable title or lien. It, therefore, applied to such cases, the equitable principles which had previously been adopted by that Court in relation to other contests between the holder of an equitable title or lien and a subsequent grantee or mortgagee of the legal title. In accordance with these principles, if the subsequent purchaser or mort- gagee was a bona fide purchaser, that is, if he had actually parted with his property on the credit of the estate, so as to give him an equitable claim or specific lien thereon, without notice of the prior equity, and had also clothed that equitable lien with the legal title by taking a deed or mortgage, the Court would not divest him of that legal title or lien in favor of the prior equity. But if he had notice of the prior equity at any time before he had parted with his property on the credit of the estate, and before he had united the subsequent equity with the legal title, he was not considered as entitled to protection against the prior equity as a bona fide purchaser. "'The words bona fide purchaser, therefore, when introduced into our recording and registry Acts, were intended to be used in conformity with this established meaning thereof, and they must, in the present case, receive the same construction which they had previously received in the Court of Chancery in reference to that principle of equity. If a person has an equitable title to, or an equitable lien upon, real estate, a subse- quent purchaser who obtains a conveyance of the legal estate, with notice of that equity, cannot, in conscience, retain such legal title, as he has no equity united with it. So if he merely takes the legal estate in payment Published by Scholar Commons, 2020 3 349 1958] THE RECORDINGSouth Carolina OF LAND Law Review, TITLES Vol. IN 10, S. Iss.C. 3 [2020], Art. 1 solutions to certain problems which have been reached in South Carolina. The writer's aim has not been the production of a disserta- tion upon the history of the recording statutes in South Caro- lina, but rather an exposition of the principles of priority which prevail in present day South Carolina law. Despite this avowed purpose, however, the bulk of historical material in- cluded is all too likely to impress the practitioner as uncon- scionable pedantry and antiquarianism of the worst order. In extenuation it can only be said that it was felt necessary to include this material in order that a clear view may be had of the present South Carolina law. The modern system of priorities of land titles is peculiarly a product of the legislature, and in few, if any, other areas of the law has the legislature been so ready to tinker with and alter the structure erected by prior legislative sessions. The first recording act in South Carolina dates from 1698,1 and since that time the legislative architects have worked at more or less frequent intervals either to alter drastically the de- sign of the original plan, or else to remedy defects which experience has shown to exist in the system. The many questions of priority of land titles which have confronted the South Carolina court in the main have been problems of the legislative intent as expressed in the then extant statutes. Since a subsequent change in the text of the statute may nullify wholly or in large part the value of a precedent, it is obvious that in evaluating the strength of any prior decision as a present day authority the then lan- guage 'of the statute must be compared carefully with its present formulation to insure that there has been no legis- lative alteration of the ratio decidendi.
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