Nyhart v. Pennington, 20 Mont. 158 (50 Pac. Rep. 413). In an action by a broker to recover a commission for negotiating a purchase of real estate, he is not entitled to recover an attorney fee for services rendered in a suit involving the right of a vendor to make the sale, the existence of which right was necessary in order for him to earn his commission. Schamberg v. Auxier, Ky. (40 S. W. Rep. 911). Where a complaint alleges an agreement for a commission on sale of real estate, and the proof shows an exchange, the variance is not fatal, it not appearing that the defendant was misled. Whitaker v. Engle, 111 Mich. 205 (69 N. W. Rep. 493). In an action upon an express contract, a verdict resting upon proof of an implied contract will not be disturbed where no objection to the evidence was made at the trial. Nyhart v. Pennington, 20 Mont. 158 (50 Pac. Rep. 413). It is a defense to an action to recover commission for making a sale to show that the agent subsequently accepted employment from the purchaser to defeat the enforcement of the contract of sale. Ashner v. Beckner, Ky. (41 S. W. Rep. 35). It is no defense to a suit to recover a commission for the sale of real estate that the person who places the property in the hands of the real estate agent or broker for sale is not the owner of the property, or that there is a defective title thereto; and the fact that a real estate agent may seek to induce the owner of property to accept a less price than he has authorized the agent to sell the property for does not cause a forfeiture of the agent's commission, even though the agent might know, or have reason to believe, he could obtain the owner's price for the property. Gorman v. Hargis, 6 Okla. 360 (50 Pac. Rep. 92).

The agency cannot be established by the agent's declarations, but he may testify to the fact of his agency. Nyhart v. Pennington, 20 Mont. 158 (50 Pac. Rep. 413). To show that a sale consummated by the owner was the result of a broker's efforts, he may show his negotiations and interviews had with the purchaser in endeavoring to sell the land to a corporation in which he was a stockholder, the landowner having notice of such negotiations and interviews. Brooks v. Leathers, 112 Mich. 463 (70 N. W. Rep. 1099). In an action by a broker to recover commissions for negotiating a

sale where no contract was made in regard thereto, he may prove a local custom as to the rate of commissions charged by real estate agents and as to the time when such commissions become due and payable. Hansbrough v. Neal, 94 Va. 722 (27 S. E. Rep. 593). For cases determining particular questions as to the admissibiltiy of evidence in actions for com missions, see Oliver v. Morawetz, 95 Wis. 1 (69 N. W. Rep. 977); Goin v. Hess, 102 Ia. 140 (71 N. W. Rep. 218). Particular evidence in an action by a broker to recover a commission held sufficient to authorize the submission of the right to recover to the jury. Anderson v. Wedeking, 102 Ia. 446 (71 N. W. Rep. 360). Particular evidence held sufficient to support the recovery of a commission. Hiltz v. Williams, 167 Mass. 454 (45 N. E. Rep. 762); Hosmer v. Fuller, 168 Mass. 274 (47 N. E. Rep. 94); Brooks v. Leathers, 112 Mich. 463 (70 N. W. Rep. 1099.

Sec. 756. Miscellaneous notes. Where the title bond is given to several joint purchasers, each is bound for the whole commission due to a broker negotiating the purchase for them. Schamberg v. Auxier, Ky. (40 S. W. Rep. 911). A broker selling land belonging to a husband and wife, cannot recover from the husband pay for selling the wife's interest in the land in the absence of an agreement to that effect. Hansbrough v. Neal, 94 Va. 722 (27 S. E. Rep. 593). Where, as their commission for procuring contracts of purchase in which the purchase price was to be paid in installments, a firm of brokers agreed to accept a portion of the installments as paid for their commission, and the contract fixed their rights in forfeited installments and provided for their receiving a commission in case of a re-sale after the forfeiture of the contracts, it is held that upon the forfeiture of the contracts the unpaid commissions for the original sales were also forfeited. Holbrook v. Investment Co., 30 Or. 259 (47 Pac. Rep. 920). As to the rights of a broker upon the cancellation of a contract of sale negotiated by him, where he has agreed to receive a certain percentage of payments to be made by the vendee out of the earnings of the property, see Bishop v. Averill, 17 Wash. 209 (49 Pac. Rep. 237; 50 Pac. Rep. 1024). For construction of particular

contract held to give a broker the exclusive right to sell for a specified period and a right to a commission on any sale made within the time, see Metcalf v. Kent, 104 Ia. 487 (73 N. W. Rep. 1037). In Alabama "each person, firm or corporation engaged in buying, selling or renting real estate on commission" is required to pay a license tax. Laws 1899, p. 191.

RECORDS AND RECORDING.

Sec. 757.

EPITOME OF CASES.

What instruments may be recorded— Recording wills. Where an acknowledgment of a deed by two persons is good as to one of them it is admissible to record. Rork v. Shields, 16 Tex. Civ. App. 640 (42 S. W. Rep. 1032). Construing and applying Md. Laws 1831, ch. 205, § 3, providing that "all the writings obligatory or contracts for conveyances of lands or of any interest or estate of, in or relating to lands" may be recorded if duly executed or acknowledged, it is held that such a contract by which one of the parties thereto agrees to sell and the other to buy real estate, may be recorded. South Baltimore Harbor & Imp. Co. v. Smith, 85 Md. 537 (37 Atl. Rep. 27). Construing Ind. Rev. Stat. 1894, § 2763, concerning the filing and recording of foreign wills, which provides that a copy of the will and probate may be produced by any person interested therein to the circuit court of the county in which there is any real estate upon which the will may operate, it is held that a formal petition need not be filed in such a proceeding and the person interested in the will is not required to appear in person and produce the will; this may be done by his agent or attorney, as in other cases. Evansville Ice & Cold-Storage Co. v. Winson, 148 Ind. 682 (48 N. E. Rep. 592).

Sec. 758. What constitutes recording. Applying S. Dak. Comp. Laws, § 3272, providing that "an instrument is deemed to be recorded when, being duly acknowledged or proved and certified, it is deposited in the register's office with

the proper officer for record," it is held that where a deed so executed as to be entitled to record is duly deposited with the register and filed by him for record, its operation as a recorded instrument is not affected by the fact that the grantee's agent without authority has the deed returned to him before it is spread upon the record. Parrish v. Mahany, 10 S. Dak. 276 (73 N. W. Rep. 97; 66 Am. St. Rep. 715). Where there are two deeds between the same parties filed for record at the same time, the notation for record of the second deed, required by Mill & V. Tenn. Code, §§ 2887, 2888 (Shannon's Code, §§ 3749, 3750), may properly be made by the use of "ditto marks." Hughes v. Powers, 99 Tenn. 480 (42 S. W. Rep. 1).

Sec. 759. Records as notice. All persons claiming an interest in or lien upon real estate are bound to take notice of the recitals in a duly recorded deed in the chain of title of their grantor. Hubbard v. Knight, 52 Neb. 400 (72 N. W. Rep. 478); Gilchrist v. Foxen, 95 Wis. 428 (70 N. W. Rep. 585). The record of an instrument not entitled to be recorded does not impart notice of its contents. McKeown v. Collins, 38 Fla. 276 (21 So. Rep. 103); Sherod v. Ewell, 104 Ia. 253 (73 N. W. Rep. 493). The record of a mortgage, the certificate or acknowledgment of which is void, because it shows prima facie that the acknowledgment was taken by the mortgagee, does not impart notice. Lee v. Murphy, 119 Cal. 364 (51 Pac. Rep. 549). A purchaser from a trustee whose title is recorded, is charged with notice of everything contained or recited in the trust deed. McDonald v. Quick, 139 Mo. 848 (41 S. W. Rep. 208). A deed re-recorded after the addition thereto of a necessary omitted certificate, takes effect as to the grantor's creditors from the date of the last recording. Citizens' Bank v. McCarty, 99 Tenn. 469 (42 S. W. Rep. 4). The record of a trust deed by a grantee is notice to the trustee and beneficiary, although the conveyance to the grantee has not been recorded. Stovall v. Judah, 74 Miss. 747 (21 So. Rep. 614). A duly recorded deed is notice of the title of the owner, to a person who buys timber on the land from another person. Alliance Trust Co. v. Nettleton Hardwood Co., 74 Miss. 584 (21 So. Rep. 396; 60 Am. St. Rep. 531; 36 L. R. A. 155). The record of a vendor's lien is not sufficient to put

the subsequent grantee on inquiry or suggest the existence of secret or unknown liens to his prejudice. Yancey v. Blakemore, 95 Va. 263 (28 S. E. Rep. 336). The record of a conveyance by two brothers to a third brother of their title, to what appears to be a third of a piece of land owned by the three as tenants in common under their father's will, which appears of record, does not charge a purchaser searching the record with notice of their previous partition of the land by mutual release deeds, two of which have not been recorded. H. C. Tack Co. v. Ayers, 56 N. J. Eq. 56 (38 Atl. Rep. 194). The holder of a duly recorded mortgage will not be charged with constructive notice of other instruments afterwards filed for record. Waughop v. Bartlett, 165 Ill. 124 (46 N. E. Rep. 197. Where the record of a deed shows the date of its execution, it is notice of any incumbrances or changes of title affecting the grantee's title, made since its execution, although they were recorded prior to the recording of such deed. Coleman v. Reynolds, 181 Pa. St. 317 (37 Atl. Rep. 543). A purchaser of real property from one who appears of record to have the title is not required to examine for mortgages made to the latter after he became the owner, nor is the record of such a mortgage conclusive notice to the purchaser of a prior unrecorded deed made by his grantor to the mortgagor. Sternberger v. Ragland, 57 O. St. 148 (48 N. E. Rep. 811). In Louisiana it is held that a sheriff's act of sale, stating compliance by the purchaser with the terms of sale, spread on the public records, will protect a bona fide mortgagee who acquires his mortgage for value from the recorded owner on the faith of his title. Baker v. Lee, 49 La. 874 (21 So. Rep. 588). How. Ann. Mich. Stat., § 5727, construed and applied-effect of curative statutes making the record of certain defective instruments notice of the rights secured thereby. Lariverre v. Rains, 112 Mich. 276 (70 N. W. Rep. 583).

Sec. 760. Records as notice-Two deeds of same land by same grantor-Rights of mortgagee under junior deed prior in record. Where the same grantor had separate deeds executed at different times for the same real estate to two different persons, one who accepts a mortgage from the junior grantee whose conveyance was first recorded, after the