•   Email
  •   Print
Serving
Massachusetts Agencies

Recording Law

Deeds and Conveyances

For the history buff, the earliest recording statute that I can find is the one passed in Massachusetts in 1640. Here is the text of the statute as appearing in R. Powell & P. Rohan, 3 The Law of Property, Matthew Bender (1992), ¶904(1). Except as noted, there are no typos in the statute, but you'll have to get beyond the Chaucer-like spelling if you expect to understand the Colonial jargon.

[No] mortgage, bargaine, sale or gruant[1] hereafter to be made of any houses, lands, rents or other hereditaments, shall bee of force against any other person except the grauntor and his heirs, unless the same be recorded as is hereafter expressed [in the publik Record] . . . . And if any such grauntor, being required by the grauntee to make an acknowledgment of any graunt by him made, shall refuse to do so, it shall be in the power of any magistrate to send for the party so refusing and cimmit him to prison without baile or mayneprize, until he shall acknowledge the same . . . .

And it is not intended that the whole bargaine, sale, etc., shall be entered, but only the names of the grauntor and grauntee, the thing and estate graunted and the date.

The Shakespearian language in the law is somewhat amusing, but the important point to note is that this original recording statute makes no provision for, and does not state that an unrecorded deed would bind person who have "actual notice" of it. The present day statute contains such language, first introduced in the legislation in 1836. However, before that time, the courts had already engrafted an exception in such cases as Farnsworth v. Child, 43 Mass. 637 (1808). In Farnsworththe court had ruled that although the statute was silent on the point as to the status of one who was aware of an unrecorded deed, it would be unjust to permit such a person to prevail over a "good faith" purchaser who had no such knowledge. It is for this reason that it has been said that "[T]he additional words 'and persons having actual notice [of the unrecorded deed]'incorporated in the [statute] did not change the law, but merely put in statutory form what already had been declared by judicial exposition."

1 This is obviously a misprint, as the root word throughout the rest of the section is "graunt."