§ 76-238 — Deeds and other instruments; recording; when effective as notice; possession of real estate; not effective as notice; when

Nebraska § 76-238

• Jurisdiction: Nebraska
• Ch. 76: Real Property

Text

(1) Except as otherwise provided in sections 76-3413 to 76-3415 , all deeds, mortgages, and other instruments of writing which are required to be or which under the laws of this state may be recorded, shall take effect and be in force from and after the time of delivering such instruments to the register of deeds for recording, and not before, as to all creditors and subsequent purchasers in good faith without notice. All such instruments are void as to all creditors and subsequent purchasers without notice whose deeds, mortgages, or other instruments are recorded prior to such instruments. However, such instruments are valid between the parties to the instrument. The transfer of any debt secured by a mortgage shall also operate as a transfer of the security of such debt.
(2) For purposes of this section, possession of agricultural real estate or residential real estate by a party related to the owner of record of the real estate within the third degree of consanguinity or affinity shall not serve as notice to a creditor or subsequent purchaser in any case in which such party is claiming rights in such real estate pursuant to a lease (a) entered into on or after July 16, 2004; (b) purporting to extend beyond a term of one year; and (c) which has not satisfied the requirements of section 76-211 , unless the creditor or subsequent purchaser, in advance of recording a deed, mortgage, or other instrument, has received a written copy of such lease.
(3) For purposes of this section:
(a) Agricultural products includes grain and feed crops; forages and sod crops; and animal production, including breeding, feeding, or grazing of cattle, horses, swine, sheep, goats, bees, or poultry;
(b) Agricultural real estate means land which is primarily used for the production of agricultural products, including waste land lying in or adjacent to and in common ownership with land used for the production of agricultural products;
(c) Related within the third degree of consanguinity or affinity includes parents, grandparents, great-grandparents, children, grandchildren, great-grandchildren, brothers, sisters, uncles, aunts, nephews, nieces, and spouses of the same and any partnership, limited liability company, or corporation in which all of the partners, members, or shareholders are related within the third degree of consanguinity or affinity; and
(d) Residential real estate means real estate containing not more than four units designed for use for residential purposes. A condominium unit that is otherwise residential real estate remains so even though the condominium development contains more than four dwelling units or units for nonresidential purposes.

Legislative History

Source: R.S.1866, c. 43, § 16, p. 283; Laws 1887, c. 30, § 16, p. 369; R.S.1913, § 6213; C.S.1922, § 5612; C.S.1929, § 76-218; Laws 1941, c. 154, § 1, p. 599; C.S.Supp.,1941, § 76-218; R.S.1943, § 76-238; Laws 2004, LB 155, § 6; Laws 2012, LB536, § 32; Laws 2018, LB750, § 2. Annotations: 1. Subsequent purchaser or mortgagee 2. Actual knowledge 3. Constructive knowledge 4. Possession 5. Priority of liens 6. Delivery 7. Miscellaneous 1. Subsequent purchaser or mortgagee A good faith purchaser of land is one who purchases for valuable consideration without notice of any suspicious circumstances which would put a prudent person on inquiry. The burden of proof is upon a litigant who alleges that he or she is a good faith purchaser to prove that he or she purchased the property for value and without notice. This burden includes proving that the litigant was without notice, actual or constructive, of another's rights or interests in the land. Caruso v. Parkos, 262 Neb. 961, 637 N.W.2d 351 (2002). Instruments which may be but are not recorded are void as to subsequent bona fide purchasers who record first. Kimco Addition v. Lower Platte South N.R.D., 232 Neb. 289, 440 N.W.2d 456 (1989). This section is designed to protect a subsequent purchaser even though there was a prior conveyance or transaction concerning the property, provided the subsequent purchaser recorded his title first, and provided further that the subsequent purchaser was a bona fide purchaser without notice of any other claims to the property. Miller v. McMillen, 214 Neb. 244, 333 N.W.2d 887 (1983). This section is designed to protect a subsequent bona fide purchaser without notice even though there was a prior conveyance, provided the subsequent purchaser recorded his title first. Karmann v. Haase, 191 Neb. 839, 218 N.W.2d 242 (1974). A purchaser with notice, who purchases from one without notice, will be protected by the want of notice in his vendor. Mingus v. Bell, 148 Neb. 735, 29 N.W.2d 332 (1947). Question as to whether mortgagee took mortgage in good faith without notice so as to render prior unrecorded deed void is properly determinable in mortgage foreclosure proceeding. Lincoln Joint Stock Land Bank v. Barnes, 143 Neb. 58, 8 N.W.2d 545 (1943). An unrecorded deed is void as to mortgagees, whose mortgages are placed of record first and who are without knowledge of the unrecorded deed. Clements v. Doak, 140 Neb. 265, 299 N.W. 505 (1941). Assignment of real estate mortgage comes within this section. Mulligan v. Snavely, 117 Neb. 765, 223 N.W. 8 (1929); Chicago, R. I. & P. Ry. Co. v. Welch, 83 Neb. 106, 118 N.W. 1116 (1908); Ames v. Miller, 65 Neb. 204, 91 N.W. 250 (1902). Where possession is taken by subsequent purchaser before recording of prior deed, he is protected, even though his deed was subsequently recorded. Kime v. Krenek, 94 Neb. 395, 143 N.W. 473 (1913). Sheriff's deed to purchaser without notice will convey superior title to deed executed by mortgagor before foreclosure proceedings, but not recorded until after recording of sheriff's deed. Richards v. Smith, 88 Neb. 444, 129 N.W. 983 (1911). Subsequent purchaser has burden of proof of establishing purchase without notice, actual or constructive, of prior unrecorded conveyance. McParland v. Peters, 87 Neb. 829, 128 N.W. 523 (1910). Ordinary care and diligence is required of bona fide purchaser. Lyon v. Gombert, 63 Neb. 630, 88 N.W. 774 (1902). If a mortgagee enters satisfaction after a mortgage has been assigned, a subsequent purchaser who acquires title without notice of the assignment will be protected. Whitney v. Lowe, 59 Neb. 87, 80 N.W. 266 (1899). Subsequent mortgagee is subsequent purchaser within meaning of section. Dorr v. Meyer, 51 Neb. 94, 70 N.W. 543 (1897). Holder of quitclaim deed may be bona fide purchaser. Schott v. Dosh, 49 Neb. 187, 68 N.W. 346 (1896). Mortgage last executed and delivered will take precedence if first filed for record and grantee took same for value and without notice. Burrows v. Hovland, 40 Neb. 464, 58 N.W. 947 (1894). 2. Actual knowledge Actual knowledge of existence of a real estate mortgage is as binding as constructive notice supplied by the duly recorded instrument. Steeves v. Nispel, 132 Neb. 597, 273 N.W. 50 (1937). Actual knowledge of unrecorded lien is as binding as constructive notice. Bradford v. Anderson, 60 Neb. 368, 83 N.W. 173 (1900). Purchaser takes subject to unrecorded lien, when he knows of it. Michigan Trust Co. v. City of Red Cloud, 3 Neb. Unof. 722, 92 N.W. 900 (1902). 3. Constructive knowledge This section is intended to impart to a prospective purchaser notice of instruments which affect the title of land in which such purchaser is interested. Ihde v. Kempkes, 228 Neb. 433, 422 N.W.2d 788 (1988). Recording gives priority only to instruments registerable in form. Rumery v. Loy, 61 Neb. 755, 86 N.W. 478 (1901). Constructive notice by record of conveyance is limited to those who must trace their title through grantor. Traphagen v. Irwin, 18 Neb. 195, 24 N.W. 684 (1885). 4. Possession A purchaser is charged with notice of tenant's rights when the tenant is in actual possession of the real estate. Grand Island Hotel Corp. v. Second Island Development Co., 191 Neb. 98, 214 N.W.2d 253 (1974). Possession cannot be notice of nonexisting fact. Burt v. Baldwin, 8 Neb. 487, 1 N.W. 457 (1879). 5. Priority of liens The lien of a judgment does not take priority over a prior unrecorded mortgage made and delivered in good faith for a valuable consideration. Omaha Loan and Building Assn. v. Turk, 146 Neb. 859, 21 N.W.2d 865 (1946). A prior unrecorded deed, if made in good faith and for a valuable consideration, will take precedence over an attachment or judgment, if recorded before deed based upon such attachment or judgment. Naudain v. Fullenwider, 72 Neb. 221, 100 N.W. 296 (1904). Prior unrecorded mortgage takes precedence over deed with no consideration. Fisk v. Osgood, 58 Neb. 486, 78 N.W. 924 (1899). Ordinary judgment lien is subject to prior liens, legal or equitable. Mansfield v. Gregory, 11 Neb. 297, 9 N.W. 87 (1881); Harral v. Gray, 10 Neb. 186, 4 N.W. 1040 (1880). 6. Delivery Third parties who acquire rights in property after recording but before actual delivery of conveyance will be protected. Barnes v. Cox, 58 Neb. 675, 79 N.W. 550 (1899). Deed becomes operative upon delivery. Brown v. Hartman, 57 Neb. 341, 77 N.W. 776 (1899). Delivery of duly acknowledged and recorded deed is presumed. Bowman v. Griffith, 35 Neb. 361, 53 N.W. 140 (1892). 7. Miscellaneous This section requires the filing of covenants and restrictions in the office of the register of deeds and it also provides that a filing is ineffective, when the statute is not followed, only as to those without notice, either actual or constructive. How v. Baker, 223 Neb. 100, 388 N.W.2d 462 (1986). Recording act does not apply to taxes. Licking v. Hays Lumber Co., 146 Neb. 240, 19 N.W.2d 148 (1945). Where creditors represented by trustee in bankruptcy were each without deed, mortgage or other conveyance, mortgages were not required to be recorded, so that failure to record them more than four months before filing of petition did not give rise to illegal preference. Stocker v. Church, 113 Neb. 639, 204 N.W. 398 (1925). Party obtaining decree quieting title cannot obtain benefits of recording act unless exemplified copy of decree is recorded in office of register of deeds. McCarthy v. Benedict, 90 Neb. 386, 133 N.W. 410 (1911). Recording acts, not law merchant, determine rights of assignee of mortgage notes. First Nat. Bank of Falls City v. Edgar, 65 Neb. 340, 91 N.W. 404 (1902). The purpose of the registry law is to furnish record evidence of land titles. Hare v. Murphy, 60 Neb. 135, 82 N.W. 312 (1900). Unrecorded assignment of mortgage is not void as to creditors generally, but only as to creditors whose deeds, mortgages or other instruments should be first recorded. Blair State Bank v. Stewart, 57 Neb. 58, 77 N.W. 370 (1898). Assignee of interest coupons may foreclose mortgage after release by mortgagee. Griffith v. Salleng, 54 Neb. 362, 74 N.W. 619 (1898). Grantee of unrecorded deed acquires title as between parties. Connell v. Galligher, 39 Neb. 793, 58 N.W. 438 (1894). Vendor's lien is not recognized. Edminster v. Higgins, 6 Neb. 265 (1877). Where bankrupt executed mortgage for full present consideration more than four months prior to bankruptcy, but mortgage was recorded within four months' period, mortgage was not voidable at suit of trustee in bankruptcy as fraudulent transfer on theory that withholding mortgage from record constituted fraud on creditors. Rankin v. Cox, 71 F.2d 56 (8th Cir. 1934).