#### SARAH R. ADAMS et al. vs. B. HAYDEN et als.

SUPREME COURT,

TYLER TERM, 1883.

*/{¡■cords of Deeds*— JRridnu-e. In order to cpialify a deed as competent evidence ill a suit for land, where possession under it is setup undcra plea of the statute of limitations,it must appear that it was duly recorded in the county in which the land was. contained; and the effect of this rccpiireinent is not obviated by tbe fact tliat the public, public functionaries and tbe putties to tbe suit bad, by mistake, recognized the laud as a part of the county iu which the deed was recorded. See tiie opinion *in er.ien.so,*for an elaboration of tbe principle.

Appeal from Wilson County.

*JSckford*& *Mmpby*for appellants.

No counsel marked for appellees.

STATEMENT.

This was an action of t respass to try title brought by Sarah R. and *560O. R. Adams against Basil Hayden, James W. Hayden, C. B. Palmer and G. P. Palmer in the district court of Wilson county for the recovery of 640 acres of land, the same lying in said Wilson county. Toe defendants pleaded “not guilty,” and the statutes of limitations of three, five and ten years, with a suggestion of good faith and valuable improvements.

Verdict for the defendants and judgment accordingly, from which the plaintiffs appealed.

On the trial after the plaintiffs had closed their evidence, and the defendants had offered in evidence certain deeds in their chain of title which were excluded by the court, defendants counsel asked leave to substitute the defendants plea of five years statute of limitations which he stated was contained in an amended answer, which defendants had filed at soné previous time, and that he supposed it to be lost. The plaintiffs thereupon waived the making of any affidavit of its filing and loss, but objected to its substitution at that stage of the ease, as the defendants had read their original answer to the jury and gone to trial upon it without making an offer to file their substitute for the amended answer. The objection was overruled and the substitute was permitted to be filed, which was excepted to by the plaintiffs.

The defendants claimed title and relied on the five years statute of limitations under a deed from Joseph Hayden to Leander Hayden and others, which deed was never recorded in Wilson county where the land is situated, but was recorded in Atascosa county on the 15th of February, 1869. This deed was admitted in evidence to support the five years plea of the statute over plaintiff’s objections that the deed was not recorded in Wilson county.

The boundary line between Wilson and Atascosa county were not defined by actual survey until 1874. On the trial oral evidence was admitted over defendants’ objections that prior to the running of said county boundary line,taxes were paid on it in Atascosa county, and those living on it performed jury duty in that county, and that the land was not taxed by officers in Wilson county, nor jury duty required of them in Wilson county; but that since the running of the line in 1874 by the surveyors appointed by both counties, the land has been considered to be in Wilson county. It was a'so testified that before that time there existed doubt as to the locality of the true line, and whether or not the land in controversy was or not *561n Atascosa county. All of which evidence was objected to as in- . competent to show that Atascosa was the proper county in which to record the deed in°1869.

TThe court instructed the jury thatffif they believed^from the evidenee, .that at the date of the registration of the deed the land was treated by Atascosa and Wilson counties as being in Atascosa county, it was properly recorded in Atascosa county, although it may have been determined afterwards that the land was, in fact, in Wilsor* county.

That if a deed is once properly recorded in one county, a party holding under it is not bound to follow up the subdivisions of the territory, and have it again recorded in another county.

The plaintiffs asked the court to instruct the jury that the territory of Wilson county being defined by public law, no mistake as its boundaries could make valid the record of a deed in Atascosa county to land supposed to he within its limits; which was refused.

Opinion by

Walker, P. J.

Amongst the several grounds assigned as error the most controlling are the 3rd and 4th assignments, as follows, viz :

3rd. The court erred in admitting oral evidence to show that the land in controversy was understood to be in Atascosa county before the running of the lines in 1874.whilst it wa.sin Wilson county.

4th. The court erred in instructing the jury that the record of the deed in Atascosa county would support the five years statute of limitations, if it appeared from the evidence that the land in controversy was supposed to be in Atascosa at the date of the record of said deed in 1869.

We are of the opinion that the court erred on both of these legal propositions; botli ofthem, indeed, are involved in the single ques,tion contained in the latter, and that alone needs to be discussed.

Art. 4623 E. S. is as follows : “He, she or they who shall have five years like peacable possession of real estate, cultivating, using or enjoying the same and paying tax thereon, if any, and claiming under a deed, or deeds, |duly)registered, shall be held to have full title, precluding all claims, but shall not bar the government.”

The act concerning conveyances, (Art. 997, Pasch. Dig.) for the valid registration of deeds to land contemplates that they shall be recorded in the county where the land lies. It has ever been the *562settled policy of the state that titles to land shall be recorded in the county where the land is situated.

, The due and proper registration of a deed to land in this state. therefore carries with it the idea and involves the necessity of recording it. in tin* fínnntj-.where the land,|or at least a part of it] is situatech____The registry of it in another or different county, nor the fact _th¿t a registry so made was effective under a mistake as to the true locality of the land, wilLnot alter the result nor vary the rule which is exacted by the statute requiring the record to be made in that county where the land is, in fact, situated.

In the case of Perrin vs. Reed, 25 Vt. 2, it was held that, where under the provisions of a statute requiring instruments affecting the title to land to be recorded in the town where the land was situated, though the registry elsewhere might be, sufficient to charge those who had actually seen and read the record, it would not suffice to give that constructive notice for which the registry system was designed.

It has been decided also, that where a new county had been mapped out of another, and the land was situated in the new county,but a grantee not being advised of the change which had been legally prescribed, while the negotiations for the purchase were pending,deposited his deed for record in the old county instead of the new, its registration was held to be worthless as notice to those who were uninformed of the transfer. Astor vs. Wheat, 466.

The recording- of a deed in a different county from that, in which the land is situated is not notice to a subsequent purchaser. Stewart vs. McSweeney, 14 Wisc. 507.

The notice intended to be given by registration laws is a conventional rule established by statute; it is artificial, and is neither limited nor extended so as to qualify its provisions by the mistakes, misapprehensions, or the intentions of those whom the law requires to comply with them when anon-compliancé with their requirements operate upon the rights of third persons; their failure to c.omply must be accepted by them as their own misfortune, trom whatever cause it may result.

Persons therefore whose rights are to be effected by notice which they are conclusively supposed to have received, whether they know of the existence of the record or not, are thus effected, not by reason of equitable considerations, but by a legal fiction which the statute *563creates, and such persons are not bound by a registry which does not in all substantial respects conform to the statute. Notice by registration tieing purely of statutory creation, says Mr. Wade, is subject to strict construction. Wade on Notice, See 41

And it is said in Whitehead vs. Foley, 28 Tex. 288, that a party who claims to have acquired a title to laud of another, with no other evidence of right than a posession of five years under a deed recorded, ought to show a compliance with the terms prescribed by the statute, perfect in every particular.

Neither the existence of a doubt in the minds of the public and of the county officials of two adjacent counties, whether a tract of land lies within the one or the other, nor a general recognition of the fact that it does lie in either one of them, can have the effect to dispense with the necessity of recording a deed to the land in that county where the land in fact is situated, in order to make available the defense of five years statute of limitations.

The party interested in recording his deed must act at his own hazard, and in oases of doubt, he may act safely by recording TnsdeecTin two or more couutiesfand in any event, he will not be heard to claim title by five years limitation on the registry of his deed in a county other than where the land lies.

If, in this connection, it were material, which under our view it is not, to consider the expediency and policy of giving a liberal construction to the law — such a construction as was given by the court, below, and the correctness of which is urged by appellee’s counsel, we should be inclined to disapprove of it and to doubt the wisdom of doing so. T<3 do so would infuse donht. uncertainty and confusion in the application of a plain rule of property, and induce perplexing embarrassments as to rights growing out of the conjectures and opinious-of-pepple in respect to the boundary lines of connt.ipg

In view of another trial which must ensue, based upon the view we have taken of the defense of the five years statute of limitations, it is not d<*emed necessary to notice any other of the errors assigned. Many of the questions presented for decision on this appeal need not occur on another trial.

We are of the opinion that the judgment ought to be reversed and the cause remanded.

Report of commissioners of appeals examined, their opinion adopted and the judgment reversed and (he cause remanded.

WILLIE, C. J.