DOCUMENTS RECORDED OUT OF ORDER

Massachusetts' recording statute, Mass. Gen. L. c. 183, §4, essentially provides that the first grantee to record an instrument evidencing the transfer of certain types of real estate interests will have a superior title claim to all other grantees, provided the recording grantee does not have constructive or actual notice of a prior transfer of the interest.

Specifically, Mass. Gen. L. c. 183, §4 provides that instruments noting (a) conveyances of estates in fee simple, fee tail or for life, (b) leases having terms in excess of seven years, including renewal options, and (c) assignments of rents or profits from an estate or lease, if they involve unregistered land, must be recorded with the appropriate registry of deeds to be valid against any person other than (i) the grantor, (ii) the heirs and devisees of the grantor, and (iii) persons having actual notice of the transaction.

The recording statute applies when the question is one of priority between two conflicting, successive transfers to bona fide purchasers. As discussed in King v. Stephens, 9 Mass. App. Ct. 919 (1980), it does not apply when two deeds are mistakenly recorded out of order by the recording desk.  King v. Stephens involved a 1891 fee simple conveyance by a father to his two sons, Andrew and William Ober, as tenants in common.  By a deed dated October 2, 1894, William conveyed his one-half interest in the land to Andrew.  By a deed dated October 5, 1894, Andrew reconveyed a one-half interest in the land to William.  Then, by a deed dated March 30, 1897, Andrew conveyed his remaining one-half interest to William.  Thus, by March 30th, William owned the entire estate. However, when the two October deeds were filed with the registry of deeds on October 6, 1894, they were recorded in reverse order. Therefore, according to the registry records, the brothers each owned a one-half interest in the property (e.g., Andrew conveys his one-half interest to William, William then conveys the entire property to Andrew, and Andrew then reconveys a one-half interest to William).  Some time after the recording of these deeds, a successor in title sought to convey the property to a prospective purchaser.  Noting the out of order recording of the deeds, the purchaser sought to recover its deposit alleging that the seller was unable to deliver "good and clear record and marketable title thereto free from encumbrances."

In interpreting whether the out of order recording sequence constituted a cloud on record title, the Appeals Court held that the record clearly indicated that William was the sole owner of the estate.  The court found that "a deed is considered recorded when it is noted by the recording officer as having been received for recording…even though he afterwards fails in his duty, by recording it inaccurately…."  The deeds were valid as between William and Andrew when delivered and since there were no conflicting third-party claims for ownership of the land, the deeds were valid as against all other persons as well.  Since "the problem presented [was] not one of priority as between two conflicting, successive conveyances to bona fide purchasers, or persons claiming under them, of the same legal interest in land…," the recording statute (Mass. Gen. L. c. 183, §4) did not apply.

For the Massachusetts Conveyancers Association's Standard relating to out of order recording of mortgage discharges and assignments, see MCA Title Standard No. 58.