Titles - Indexes

Learning Outcomes

After reading this article, you will be able to explain the function and legal significance of title indexes in real property law. You will understand how indexes relate to the chain of title, constructive notice, and the operation of recording statutes. You will be able to apply these principles to MBE-style questions and avoid common pitfalls regarding title searches and notice.

MBE Syllabus

For MBE, you are required to understand how title indexes operate within the recording system and their effect on notice and priority of interests. This article covers:

• The purpose and types of title indexes in the recording system.
• How indexes affect constructive notice and the chain of title.
• The relationship between indexes, recording statutes, and bona fide purchaser protection.
• Common issues with wild deeds and indexing errors.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is most likely to give a subsequent purchaser constructive notice of a prior deed?

   • (A) The deed is properly recorded and indexed in the grantor-grantee index.
   • (B) The deed is recorded but misindexed under the wrong grantor.
   • (C) The deed is delivered but not recorded.
   • (D) The deed is recorded in a different county from the property.

2. In a jurisdiction using a grantor-grantee index, which of the following is a "wild deed"?

   • (A) A deed recorded before the grantor acquired title.
   • (B) A deed recorded after the grantor conveyed to a bona fide purchaser.
   • (C) A deed not referenced in the chain of title due to a break in indexing.
   • (D) All of the above.

3. If a deed is properly recorded but not indexed due to a clerk's error, what is the likely effect on a subsequent bona fide purchaser?

   • (A) The purchaser is charged with constructive notice.
   • (B) The purchaser is not charged with constructive notice.
   • (C) The purchaser must search all county records.
   • (D) The purchaser is protected only if the deed is in the tract index.

Introduction

Title indexes are essential tools in the public recording system for real property. They allow parties to trace the history of ownership and interests in land, forming the basis for determining the chain of title and providing constructive notice to subsequent purchasers. Understanding how indexes work, and their limitations, is critical for analyzing priority disputes and the effect of recording statutes on the MBE.

Types of Title Indexes

The two main types of title indexes are the grantor-grantee index and the tract index.

Key Term: Grantor-Grantee Index A set of alphabetical indexes listing property transfers by the name of the grantor (seller) and grantee (buyer), used to trace the chain of title in most U.S. jurisdictions.

Key Term: Tract Index An index organized by parcel or tract of land, showing all recorded documents affecting that parcel, used in some jurisdictions.

Function of Indexes in the Recording System

When a deed or other instrument is recorded, it is entered into the appropriate index. In most states, the grantor-grantee index is used. A title searcher must check the grantor index (to see what interests a prior owner conveyed) and the grantee index (to see what interests a prior owner acquired).

Proper indexing is essential for constructive notice. If a deed is recorded and correctly indexed, subsequent purchasers are charged with notice of its existence, even if they do not actually see it.

Key Term: Constructive Notice The legal presumption that a person has knowledge of a recorded instrument because it is properly recorded and indexed, regardless of actual knowledge.

Chain of Title and Indexes

The chain of title is the sequence of recorded documents tracing ownership of land from the original owner to the present. Title indexes are used to reconstruct this chain. A break in the chain, or a deed that is not properly indexed, can create problems for subsequent purchasers.

Key Term: Chain of Title The chronological sequence of recorded conveyances and encumbrances affecting title to a parcel of real property.

Wild Deeds and Indexing Errors

A wild deed is a recorded deed that is not connected to the chain of title due to a break in indexing or a missing link. Because it is not discoverable by a standard title search, it does not give constructive notice to subsequent purchasers.

Key Term: Wild Deed A recorded deed that is outside the chain of title and thus not discoverable by a reasonable title search, failing to provide constructive notice.

Impact of Indexes on Recording Statutes

Recording statutes protect bona fide purchasers who search the public records. If a deed is not properly indexed, a purchaser may not be charged with constructive notice, depending on the jurisdiction. Some states hold that a misindexed deed does not provide constructive notice, while others place the risk of indexing errors on the purchaser.

Key Term: Bona Fide Purchaser (BFP) A person who acquires an interest in property for value and without notice of any prior unrecorded interests.

Worked Example 1.1

A conveys Blackacre to B, who fails to record. B then conveys to C, who records. Later, A conveys Blackacre to D, who records. In a jurisdiction using a grantor-grantee index, D searches the records under A's name but does not find the B-to-C deed, because B never recorded his deed from A. Who has priority?

Answer: D has priority. The B-to-C deed is a wild deed, not in the chain of title, and does not give constructive notice to D. D is protected as a bona fide purchaser.

Worked Example 1.2

Suppose a deed is recorded in the correct county but is misindexed under the wrong grantor's name due to a clerk's error. A subsequent purchaser searches the records but does not find the deed. Is the purchaser charged with constructive notice?

Answer: In most jurisdictions, the purchaser is not charged with constructive notice if the deed is not discoverable by a reasonable search. The risk of indexing errors usually falls on the party relying on the recording.

Exam Warning

In a race-notice jurisdiction, a deed must be both recorded and in the chain of title (i.e., properly indexed) to give constructive notice. A wild deed or a misindexed deed may not protect a prior purchaser.

Revision Tip

Always check whether a deed is discoverable by a reasonable title search in the relevant index. If not, constructive notice may not apply.

Key Point Checklist

This article has covered the following key knowledge points:

• Title indexes are essential for tracing the chain of title and providing constructive notice.
• The grantor-grantee index is the most common; the tract index is used in some states.
• Proper indexing is required for a recorded deed to give constructive notice.
• Wild deeds and misindexed deeds are not in the chain of title and do not provide constructive notice.
• Recording statutes protect bona fide purchasers only if prior interests are properly recorded and indexed.
• Indexing errors may prevent constructive notice, depending on jurisdiction.

Key Terms and Concepts

• Grantor-Grantee Index
• Tract Index
• Constructive Notice
• Chain of Title
• Wild Deed
• Bona Fide Purchaser (BFP)