Page:The Green Bag (1889–1914), Volume 19.pdf/364

 RECORDING DEEDS IN AMERICA

THE

ORIGIN

OF

THE IN

SYSTEM

OF

RECORDING

335

DEEDS

AMERICA1

By Joseph H. Beale, Jr. THE origin and history of the system of recording deeds in this country is yet to be written, and even the materials for such history have not been brought together. I shall attempt merely to sketch the apparent origin of the system and to make a few suggestions as to its possible derivation. The characteristics of our recording system which distinguish it from other systems are these: the document recorded is a deed, not a memorandum of a transfer or an agreement for a transfer; the deed is operative without record, the title pass ing before the deed is recorded; the record is not a mere device for preserving evi dence, but gives a legal priority to the grantee of the recorded deed. In the first particular it differs from the medieval registry system; in the second from the continental registry systems and our own Torrens system of registration; in the third from the recording system in England under local customs, like those of Middle sex and Yorkshire. As the present Massachusetts act goes back with no substantial change to Oct. 7, 1640, the origin of the system must be sought before that date, which narrows our enquiry to the few colonies settled before that time; and we must first ex amine the system of Virginia, the colony first settled. Unfortunately the earliest records of that colony are not available. The first legislation on the point which sur vives is a vote of October, 1626, that all sales should be brought to Jamestown and enrolled in General Court within a year of their date.3 This vote evidently proved 1 A paper read before the Massachusetts Con veyancers' Association. J Bruce, Economic History of Virginia, vol. i, p. 570.

ineffective, as did similar votes in all the colonies; and in January, 1640, an act was passed providing that a deed or mort gage of land without delivery of possession should be adjudged fraudulent unless entered in some court.1 This was reenacted in 1656 in terms which show that it was an adoption of the English statute of fraudlent conveyances.2 This act lacks one very characteristic feature of our re cording system; it is not enforced by giving priority to a recorded deed, but by making the unrecorded deed void unless possession is delivered. It would not be possible under such an act to investigate title at the registry. It seems plain enough that this act, which was re-enacted as late as 1656, cannot be the origin or have con tributed to the invention of a system which was in operation with all its present char acteristics in 1640. We next turn to Plymouth, as the colony next settled by Englishmen. While lots in Plymouth were temporarily assigned to the settlers from the beginning, land was originally held in common, but was divided in 1623. The record of votes then passed is lost, and it is impossible to tell just how far transfers of land were required to be recorded. That some action was taken before 1627 is very probable. In Plymouth, as in all the American village communities, the community had two strong desires: to have the village land improved, and to keep out undesirable immigrants. For these purposes the hold ing and transfer of land must be regulated by the town; and this was the easier because the town was still seen and known to be the source of title. The consent of the 1 Hening's Statutes, vol. i, p. 227. ' Ibid, p. 417.