Facts:
Dec. 1980 Storers  trustees
Dec. 1981 Storers  Glenn
Recording Act: Every recorded deed….takes effect….unless the grantee of the
subsequent deed has (1) Accepted delivery of the deed (i) in good faith, (ii) without
constructive notice and (iii) for a good and valuable consideration, and (2) recorded the
deed first. *** Notice-Race ***
At trial Glenn won because that the original “Modification Agreement” although
recorded in the Land Records and given a liber and folio number, was not indexed and
was ‘red tagged’ and returned to the grantee. It is undisputed that the grantee in this case
was on notice that reference to the ‘modification agreement was not being placed in te
index to the Land Record. It is incumbent upon the Grantee to correct the deficiency and
return it to the Land Records Division so that it could be property re-recorded and
indexed correctly. To do otherwise would place an unreasonable burden upon D and
other purchasers of real estate.
Holding: Reversed. An un-indexed instrument is a recorded instrument (Standard
precedent). The Modification Agreement in this case does not cease to be a recorded
instrument, and does not cease to enjoy the priority conferred on an earlier recorded
instrument, solely because the grantee had actual notice that it was not indexed.
Also, in Standard, the court called upon the legislature to shift the risk of initial loss to
the party presenting the instrument for record. However, the legislature did not enact
such a change, and thus it should not be judicial altered.
This is the majority position
A sizable minority shift the burden on he who is responsible for recording