of this rule, as a matter of statutory construction. I believe, however, that a law should be passed requiring the possessor of real estate, when holding the same under certain conditions, to prepare and have recorded in the auditor's office a declaration or notice of his possession and claim to entitle such possessor to any rights whatever by reason of such possession.

The rule that possession is equivalent to actual and constructive notice and dispenses with either is, as applied to certain kinds of possession and of a certain species and kind of property, a wholesome and just rule; but as applied to other kinds of possession and property is unjust, disastrous and oppressive.

The reason for the rule that possession is equivalent to notice, viz., that every person is presumed to know who is in possession of his property and the nature of such possession, while seemingly sound and just in the abstract, fails in its splendor when tested in the concrete.

It is in recognition of the concrete injustice of this rule that has given origin to numerous modern statutes requiring notice to be given of certain rights and interests in land by recording notice thereof in the proper office- for instance, the written declaration of a homestead right, recently enacted in this state and requiring the same to be recorded, notwithstanding such homestead may be actually occupied for homestead purposes. The tendency of modern legislation has been and is to require record notice to be given of certain rights and interests in both real and personal property.

I believe the rule should be extended so as to dispense with such presumption of notice in case of occupancy and possession of at least certain kinds of real estate. I believe a law should be passed dispensing with such presumption in a case where A owns a piece of land which it is not necessary, in the nature of things, that he should constantly guard and examine for any purpose except that of ascertaining if some one, who has not the shadow of a right or title thereto so far as disclosed by the records, has taken possession thereof, and that, to entitle such a possessor to the benefit of such a possession, he should be inconvenienced at least to the extent of giving and having recorded in the proper office a caveat giving notice of such possession. It would be better if he should be required to specify, at least in a general way, the nature of his right to such possession.

But, if it is thought best to relieve such possessor of the last mentioned unpleasant duty, it will not be requiring more of him to give and pay the expense of recording at least a bald notice of his pedal possession than is required of him who also claims to be the true and lawful owner to record his muniments of title. Particularly do I think such a law will be a small measure of justice to an innocent and bona fide purchaser. Such a purchaser may be remote from the situs of the property, or he may not care to actually examine the same. He relies upon the muniments of title as the same appear of record in the proper office. Why should not notice of other rights be placed of record among the same archives? If such a law would have the effect of defeating the rights of such occupant or possessor, the latter has at least the consolation of knowing that, unlike his adversary, there are no links in his chain of title to be broken. I not only think that a law should be passed requiring record notice to be given in cases above mentioned, but that it should be a just and not unreasonable provision to require such recorded notice to be given in all cases where such possession and occupancy is had without any right or title thereto being evidenced by any written and recorded instrument, when adverse rights are attempted to be acquired and obtained by reason of such occupancy. Such, I understand, is the legal effect of the laws of some other countries governing the matter of the registration of title to realty, and I do not know of any reason why a law of the nature above mentioned could not be engrafted upon our present system of registry laws without otherwise effecting a radical and fundamental change.

Another question which arises in connection with record notice, is where such record notices should be kept? In view of the constantly increasing number of instruments affecting real estate, any plan which centralizes the locality or office of recording such instruments is of great value, for the principal reason, among others, of convenience in the examination of the records. It is extremely inconvenient in an examination of the records affecting realty to find no record in the auditor's office of a patent to land, thus necessitating a resort to the records of the United States land office. I think a law should be passed requiring patents to be recorded in the auditor's office, and a compliance with such requirement could

IS THE PROPERTY OF THE
Lab Library,

RECORD NOTICE AND CURATIVE ACTS.

enforced by proper provisions governing the failure to record the same.

YN.

Phave never been able to understand the reasons which induced the passage by the legislature in 1893 of the act making certain judgments liens upon the real estate of the debtor from the date of entry thereof, thereby repealing the former law requiring an abstract of such judgments to be filed and recorded in the auditor's office. I think this was a change for the worse. By this change not only has an inconvenience been produced by requiring resort to the records of two different offices instead of one, two different sets of index books and records instead of one, but for other obvi

ous reasons.

Another question which is suggested in connection with record notice is what length of time, if any, should be allowed for filing recordable instruments for record after execution of the same, in the particular of making the same constructive notice with the right of priority given thereto previous to their having been filed for record. The time given within which to record such instruments in the different states which fix a limit of time, varies from five days in Oregon to one year in Georgia, unless the laws in these two states have been repealed in the last several years. At least two-thirds of the states have wisely failed to fix a limit of time. The early law of the Territory of Washington, passed in 1854, which gave to unrecorded deeds such priority for six months, was not permitted to long remain in force before it met the fate of similar laws in other states, and now, under the laws of our state, this feature of constructive notice is given to no conveyance or instruments, affecting either real or personal property, prior to the same having been filed for record, except bills of sale of personalty, as to which ten days was given when the property is left in the possession of the vendor.

I believe that a law which gives to a party the same rights under an unrecorded instrument for a given number of days as is given to a recorded title, is fraught with more evil than good. It enables designing persons to perpetrate fraud upon innocent purchasers and. opens the door to all kinds of collusion, and the same reasons which have induced the different states to repeal all laws of this character, should cause a repeal of this law.

Passing to the latter part of my subject-curative acts—I shall briefly speak of the same only in so far as acts of this nature bear upon the matter of record notice. Laws have been passed by our own and other states providing that deeds and conveyances of real property, although not executed and acknowledged as by law required to entitle them, when recorded, to the force and effect of constructive notice, have had such force and effect given to them. by curative acts, except as to vested rights. Curative acts have also been passed in this and other states of a more sweeping nature by validating otherwise invalid instruments of conveyance.

Curative acts of the nature first mentioned I believe are not only demanded as a matter of justice, but do not operate to prejudice the just rights of any one. The constitutionality of such laws is now firmly established, the ground work of their constitutionality being that they do not interfere with vested rights, for no man has a vested right to do wrong. Such laws only do for the parties that which they either intended to do or should have done, or which it would not be inequitable to have done.

The law, while it demands obedience to its decrees and is unyielding and unbending in its operation, should yet be humane and practical in its provisions. As applied to the matter of record notice, I submit that it is a wise and proper provision to cure by an act, retrospective in its nature, defectively executed or acknowl edged instruments of conveyance, when valid between the parties, by making the same constructive notice when so recorded.

Of course, care should be exercised to make such acts operative only as to defects of such a nature which it is right and equitable to thus remedy. It is true that laws of this character beget slovenliness and neglect in the execution of titles to realty, which in turn occasion defective titles. Still it is better to remedy these defects and wipe them out than to permit them to remain. The same reasons and objects, however, which govern the physician in administering his medicine should control the legislature in the enactment of these curative statutes. It is of doubtful wisdom whether such statutes should be enacted in the absence of some present need, some present defect to remedy, and not give to the same a prospective operation, and thus, as far as possible, prevent the recurrence of acts of negligence which occasion these laws.

The question is then presented: Is our present condition such that it now needs treatment? No relief has been given in this state to defectively executed or acknowledged conveyances of real estate since 1881, in the particular above mentioned, at which time conveyances defectively executed or acknowledged were by an act of the legislature of that year given the force and effect of constructive notice, when theretofore recorded. I believe that the time is now ripe for consideration of the question of the advisability of another act of the legislature of the same nature and effect, curing defects of the nature mentioned in the act of 1881, and in the same particular, and which have been recorded since the date of this prior statute.

This is a new state and, until the last several years, that care, in the very nature of things, was not exercised in the transfers of realty which has since prevailed. Regard should be had for previously existing conditions. Fifteen years have now passed since the healing art has been applied to conveyances of this character. This is a long probationary period, and I believe that the ban of punishment for sins of the nature of these sins of omission should now be raised, and another act of a similar nature to that of 1881 should be passed. By so doing, violence will be done to the rights of none when intervening rights are properly protected.