able expenses shall have first been tendered to him; provided, however, that if it shall appear to the satisfaction of the officer so authorized to take such acknowledgment, that such subscribing witness purposely conceals himself, or keeps out of the way, so that he cannot be served with a subpoena, or taken on attachment, after the use of due diligence to that end, or in case of his continued failure or refusal to testify for the space of one hour after his appearance shall have been compelled by process, then said conveyance, or other instrument, may be proved and admitted to record in the same manner as if such subscribing witness thereto were dead. [C. L. § 2638.

CHAPTER 4.

RECORDING CONVEYANCES.

1999. Must be acknowledged to be recorded. A certificate of the acknowledgment of any conveyance, or of the proof of the execution thereof, as provided in this title, signed and certified by the officer taking the same, as provided in this title, shall entitle such conveyance, with the certificate or certificates as aforesaid, to be recorded in the office of the recorder of the county in which the real estate is situated. [C. L. § 2639.

Conveyances, etc., sent by telegraph may be recorded, ? 2698.

2000. Record imparts notice. Every conveyance or instrument in writing affecting real estate, executed, acknowledged, or proved, and certified in the manner prescribed by this title, and every patent to lands within this state duly executed and verified according to law, and every judgment, order, or decree of any court of record in this state, or a copy thereof, required by law to be recorded in the office of the county recorder, shall, from the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof, and subsequent purchasers, mortgagees, and lien holders shall be deemed to purchase and take with notice. [C. L. § 2612*.

Record imparts notice, 1975. For decisions on real estate generally, see Fraud," "Fraudulent Conveyances, ," "Principal and Agent," and "Real Estate," under ? 2488.

The record title to the premises being in the wife who resides upon the same with her husband, who claims an equitable interest in the property, and the possession of the husband and wife being consistent with the record title, the possession of the husband is not sufficient to put a purchaser upon inquiry as to the husband's equitable interest. Allen v. Cannon, 8 U. 8; 28 P. 868.

Actual possession and occupancy of real property amounts to actual notice to all the world, of the grantee's rights, notwithstanding the provisions of the statute which require every conveyance of real estate, in order to operate as a notice to third persons, to be recorded in the office of the recorder of the county in which such real estate is situated. Neponset Land and Live Stock Co. v. Dixon, 10 U. 334; 37 P. 573. Toland v. Corey, 6 U. 392; 24 P. 190. Ayers v. Jack, 7 U. 249; 26 P. 300.

Stahn v.

Hall, 10 U. 400; 37 P. 585. The possession by a polygamous wife, who is present at a hotel, acting as a housekeeper under a secret agreement that one-half the property should be hers, is no notice to purchasers, of her rights or claim to interest in the property, where the title to the same is in the name of her alleged husband. Townsend v. Hooper, 2 U. 548. Affirmed 109 U. S. 504. Where possession is relied on as giving constructive notice, it must be open and unambiguous and not liable to be misunderstood or misconstrued; and must have been sufficiently distinct and unequivocal to put the purchaser on his guard. Id.

Constructive notice exists when the party by any circumstances whatever is put upon inquiry-and records authorized but not required by statute import such notice. Wells, Fargo & Co. v. Smith, 2 U. 39. Affirmed 104 U. S. 428. A deed recorded in a mortgage record is not constructive notice to innocent purchasers for value. Drake v. Reggel, 10 U. 376; 37 P. 583.

2001. Effect of failure to record. Every conveyance of real estate within this state hereafter made, which shall not be recorded as provided in this title, shall be void as against any subsequent purchaser, in good faith and for a valuable consideration, of the same real estate, or any portion thereof, where his own conveyance shall be first duly recorded. [C. L. § 2613.

Effect of actual notice, 1975.

Under sections 2613 and 2645, C. L. 1888, the assignee of a mortgage is required to have the assignment recorded in order to give notice to subsequent grantees, mortgagees, and lien holders; and the

indorsement and delivery of the note upon which the mortgage is given to the assignee is equivalent to an assignment and the delivery of the mortgage. Donaldson v. Grant, U.; 49 P. 779. Under the laws of Utah in 1872, a junior mortgage taken

without notice of a prior mortgage, actual or constructive, and first recorded, is to be preferred in its lien to a mortgage prior in execution but subse

quently recorded. Wells, Fargo & Co. v. Smith, 2 U. 39. Affirmed 104 U. S. 428.

2002. Record of assignment of mortgage. The recording of an assignment of a mortgage shall not in itself be deemed notice of such assignment to the mortgagor, his heirs, or personal representatives so as to invalidate any payment made by them or either of them to the mortgagee.

Minn. (1894) ? 4183.

2003. Conveyances executed and acknowledged prior to Revised Statutes. All conveyances of real estate made before the Revised Statutes go into effect and acknowledged or proved according to the laws in force at the time of such making and acknowledgment or proof, have the same force as evidence, and may be recorded in the same manner and with like effect as conveyances executed and acknowledged in pursuance of this title.

Mont. Civ. C. ? 1626.

2004. Cancellation of mortgage by certificate. A cancellation or discharge of a mortgage or deed of trust may be substantially in the following form:

CERTIFICATE OF DISCHARGE.

of

on

This certifies that a (mortgage or deed of trust, as the case may be,) from A B to CD, dated A. D. -, and recorded in book page

, is hereby canceled and discharged.

Such cancellation or discharge shall be entered in a book kept for that purpose, and signed by the mortgagee or trustee, his attorney in fact, executor, administrator, or assigns, in the presence of the recorder or his deputy, who shall subscribe the same as a witness, and such cancellation or discharge, shall have the same effect as a deed of release duly acknowledged and recorded. ['90, p. 90.

2005. Id. By marginal entry. Any mortgage or deed of trust to secure the payment of a sum of money, or any mechanic's or other lien, or any contract, agreement, or bond for the sale of real estate that has been, or may hereafter be recorded, may be discharged by an entry in the margin of the record thereof, signed by the mortgagee, trustee, or claimant under the lien, or the party or parties in interest under such contract, agreement, or bond, or his or their personal representatives or assignees, stating the satisfaction of the mortgage or deed of trust, in the presence of the recorder or his deputy, who shall subscribe the same as a witness, and such entry shall have the same effect as a deed of release duly acknowledged and recorded. [C. L. § 2641*; '90, p. 19*.

2006. Failure to discharge. Damages. If the mortgagee fail to discharge or release any mortgage after the same has been fully satisfied, he shall be liable to the mortgagor for double the damages resulting from such failure. Or the mortgagor may bring an action against the mortgagee to compel the discharge or release of the mortgage, after the same has been satisfied. And the judgment of the court must be, that the mortgagee discharge or release the mortgage and pay the mortgagor the costs of suit, including a reasonable attorney's fee, and all damages resulting from such failure. [C. L. § 2641.

Attorney's fee on foreclosure, 23505.

CHAPTER 5.

VALIDATING CERTAIN CONVEYANCES.

2007. Deeds executed under townsite act. All deeds heretofore made and executed by the mayors of cities and probate judges of counties in the state or territory of Utah under the law relating to the "rules and regulations under the townsite act" that do not appear to have been signed or executed before any subscribing witness, or that are not subscribed by any witness, as required by any law of the state or territory of Utah existing at the time of making such deed or instrument, are hereby validated and confirmed, and shall have the same force and effect as though they had been originally signed and executed by subscribing witnesses thereto. [C. L. § 2646*.

Townsite law, ?? 2701-2719.

2008. Deeds executed by city instead of by mayor. Deeds and conveyances heretofore executed by any city in the state or territory of Utah in its corporate name, of lands held in trust by the mayor, are hereby validated and confirmed, and shall have the same force and effect and operation as though they had been executed by the mayor. ['90, p. 106*.

2009. Public deeds improperly acknowledged. All deeds heretofore made and executed by the probate judges of counties or mayors of cities, or by any city in its corporate name, in the state or territory of Utah, that have been acknowledged before and certified by city recorders or county clerks, shall have the same force and effect, and the record thereof shall impart notice to the same extent as though the acknowledgment had been made, taken, and certified as required by the law in force at the time of such execution and acknowledgment. [C. L. § 2646*; '90, p. 106*.

2010. Deeds informally executed, etc., recorded prior to Jan. 1, 1898. All instruments of writing that were, previous to the date the Revised Statutes take effect, copied into the books of record of the office of the county recorders of the several counties of this state, shall, after that date, impart to subsequent purchasers and incumbrancers, and to all other persons whomsoever, notice of the contents of all such instruments, so far as and to the extent that the same may be found recorded, copied, or noted in the said books of record, notwithstanding any defect, omission, or informality existing in the execution at the time of acknowledgment, certificate of acknowledgment, recording, or certificate of recording the same; and all such instruments, and the records or authenticated copies of the records thereof shall be admissible in evidence, notwithstanding such defects or omissions; but nothing herein contained shall be construed to affect any right or title acquired prior to that date by subsequent purchasers, grantees, incumbrancers, or assignees. [C. L. § 2622; '90, pp. 1-2; '92, pp. 18-19; '94, p. 59; '96, p. 344*.

CHAPTER 6.

PLATS AND SUBDIVISIONS.

2011. Owner may plat lands. It shall be lawful for any owner or owners of any land, or any trustee or trustees selected by such owners, to lay out and plat such land into lots, streets, alleys, and public places. ['90, p. 76.

2012. Map. Whenever any lands are hereafter laid out and platted as mentioned in section two thousand and eleven, the owner or owners of the same, or any trustee or trustees selected by such owner or owners shall cause to be made out an accurate map or plat thereof, particularly setting forth and describing:

1. All the parcels of ground so laid out and platted by their boundaries, course, and extent, and whether they are intended for avenues, streets, lanes, alleys, commons, or other public uses, together with such as may be reserved for public purposes.

2. All lots intended for sale by numbers and their precise length and width. ['90, pp. 76–7.

2013. Id. Approval by legislative authority of city, etc. Such map or plat shall be acknowledged by such owner or owners, or trustee, before some officer authorized by law to take the acknowledgment of conveyances of real estate, and certified by the surveyor making such plat, and, if the land is situated in any city or town, shall be approved by the legislative authority of the city or town in which such land is situated, or by some city or town officer for that purpose designated by resolution or ordinance of said legislative authority, and in the absence of such legislative authority, by the legislative authority of the county in which the town is situated; and if the land is situated outside of any city or town, shall be approved by the board of county commissioners of the county, or by some county officer for that purpose designated by resolution or ordinance of said board; and when so acknowledged, certified, and approved, shall be filed and recorded in the office of the county recorder of the county in which the said lands so platted and laid out are situated. [C. L. § 146*; '90, p. 77*. Approval necessary to recording, 621.

2014. Id. Dedication of streets, etc. Such maps and plats when made, acknowledged, filed and recorded with the county recorder, shall be a dedication of all such avenues, streets, lanes, alleys, commons, or other public places or blocks, and sufficient to vest the fee of such parcels of land as are therein expressed, named, or intended, for public uses for the inhabitants of such town and for the public for the uses therein named or intended. ['90, p. 77. Highways, 22 1114-1124.

2015. Selling lots before recording map. Penalty. If any person shall sell or offer for sale any lot so platted according to said plat within any town or addition, before the map or plat thereof is made out, acknowledged, filed. and recorded as aforesaid, such person shall forfeit to the county in which such town or addition is located, a sum not exceeding three hundred dollars, for every lot which he shall sell. Such a forfeiture shall be recovered in the name of such county in an action brought by the prosecuting attorney thereof.

['90, p. 77.

2016. Vacating plat. Any owner or owners of land that has been laid out and platted as hereinbefore provided, may, upon application to the city council of the city wherein said land is situated, or to the board of county commissioners of any county wherein said land is contained, have such plat, or any portion thereof, or any street or alley therein contained, vacated, altered, or changed as hereinafter provided. ['94, p. 14.

2017. Id. Petition. If it is desired to vacate an entire plat, and the land is situated in any incorporated city, an application in writing signed by all of the owners of the land contained in said plat, and by the owners of land contiguous or adjacent to any street or alley in such plat, shall be made to the city council of the city wherein such land is situated, and in all other cases the application shall be made to the board of county commissioners wherein said land is contained. ['94, p. 14.

2018. Id. Hearing. Order. The city council or the board of county commissioners shall, at its next regular meeting after the filing of such application, consider the same, and if the said council or said board be satisfied that neither the. public nor any person will be materially injured thereby, it shall order such plat to be vacated as prayed for in the petition, which order shall be recorded in the office of the recorder of the county wherein said land is situated. ['94, p. 14.

2019. Vacating portion of plat. Petition. If it is desired to vacate a portion only of any plat or a street or alley therein, application in writing may be made for that purpose to the city council of the city wherein said land is situated, and in all other cases to the board of county commissioners of the county wherein said land is contained, which petition shall be signed by all the owners of land in the plat of which a portion is to be vacated, and by the owners of land contiguous or adjacent to any street or alley in such plat, to vacate or alter which application is made. ['94, p. 14.

2020. Id. Hearing. Order. Upon the filing of such application, the city council or board of county commissioners, as the case may be, shall, at its next regular meeting, proceed to hear and consider the same, and if the said council or board be satisfied that neither the public nor any person will be materially injured thereby, it shall order such portion of said plat or such street or alley to be vacated, altered, or changed as prayed for in the petition, which order shall be duly recorded in the office of the recorder of the county wherein said land is situated. ['94, pp. 14-15.

CHAPTER 7.

OCCUPYING CLAIMANTS.

2021. Filing petition stays execution against occupying claimant. Where an occupant of real estate has color of title thereto, and in good faith has made valuable improvements thereon, and is afterwards in a proper action found not to be the owner, no execution shall issue to put the plaintiff in possession of the same after the filing of a petition as hereinafter provided, until the provisions of this chapter have been complied with.

Iowa, McClain's An. C. (1888) ? 3151.

Possessory right,

1967.

2022. Claimant's petition. Trial. Such petition must set forth the grounds on which the defendant seeks relief, stating as accurately as practicable the value of the real estate, exclusive of the improvements thereon made by the claimant or his grantors, and the value of such improvements. The issues joined thereon must be tried as in ordinary actions, and the value of the real estate and of such improvements must be separately ascertained on the trial. Iowa, McClain's An. C. (1888) ? 3152-3.

2023. Rights of parties. The plaintiff in the main action may thereupon pay the appraised value of the improvements, and take the property, but should he fail to do this after a reasonable time, to be fixed by the court, the defendant may take the property upon paying its value, exclusive of the improvements. If this is not done within a reasonable time, to be fixed by the court, the parties will be held to be tenants in common of all the real estate, including the improvements, each holding an interest proportionate to the values ascertained on the trial.

Iowa, McClain's An. C. (1888) ? 3154-6.

2024. "Color of title" defined. A purchaser in good faith at any judicial or tax sale made by the proper person or officer, has color of title within the meaning of this chapter, whether such person or officer has sufficient authority to sell or not, unless such want of authority was known to such purchaser at the time of the sale, and his rights shall pass to his assignees or representatives. Any person has also color of title who has occupied a tract of real estate by himself, or by those under whom he claims, for the term of five years, or who has thus occupied it for less time, if he, or those under whom he claims have, at any time during such occupancy, with the knowledge or consent, express or implied, of the real owner, made any valuable improvements thereon, or if he or those