Poplin v. Mundell

1. Conveyance; Oh. 145K Laws of 1877, Object of. Ch. 145, Laws of 1877, (Comp. Laws 1879, p. 214,) relating to the transfer of real estate in the name of the owner, has for its object only the facilitating of the assessment and taxation of real estate, and does not repeal, amend or modify the provisions of ch. 22, Comp. Laws of 1879, regulating conveyances of real estate, so as to forbid the filing and recording of conveyances under its terms from imparting notice to all subsequent purchasers, although such conveyances are not transferred in the office of the county clerk of the county before being deposited and filed for record. 2. Becord oe Deed, Relates to Filing; Notice. Where an instrument in writing which conveys real estate, properly acknowledged and certified, is left for record with the register of deeds in the usual way, and at the time of being thus deposited is, by such register, indorsed filed of the date of deposit, although not recorded until some time after it is so left, yet, when recorded, the record has relation back to the time the deed is so left and filed for record. Held further, that every such instrument in writing, certified and recorded in the manner prescribed by the statute, does, from the time of filing the same for record, impart notice to all persons of the contents thereof; and all subsequent purchasers shall be deemed to purchase with notice, notwithstanding the register, at the time of the reception of such conveyance, neglects to immediately enter the same upon his receiving book, and no entry of the transfer of such conveyance is, at the time of filing, of record in the office of the county clerk, and although such entry and transfer are not made until after the subsequent purchaser has obtained his deed. 3. Conveyance, Considered as Recorded; Register’s Relay. Every instrument in writing that conveys any real estate, acknowledged and certified as required by the act relating to conveyances, is considered as recorded from the time it is left for record with the register of deeds in the usual way, and is filed by him for record; and the party so filing his conveyance for record is not responsible for the fault or delay of the register in failing to enter immediately such conveyance upon his reception book, or in delaying the actual recording thereof a few months. 4. Deday; Reed Imparting Notice. Where a.deed dated June 30,1876, was left with the register of deeds for record in the usual way, on March 3, 1880, and was then filed by the register, with the date of March 3,1880, thereon, but such deed was not, at the time of being deposited with the register, transferred on the records of the county clerk, and at the time the register received such deed he did not immediately make an entry thereof upon his receiving book, and the transfer of such deed and the entry on the receiving book, and the actual record of such instrument, were not made until about May 7,1880, held, such deed, so deposited and filed, imparted notice from the time of filing to all persons of the contents thereof, notwithstanding the delay in the entry on the reception book and in the actual recording thereof.

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