1.Common Law - The concept of recording did not exist under the
common law of England. The English common law relied upon the Latin phrase
"prior in tempore potior est in jurell (he who is first in time is preferred
2.Statutory - Relying upon the police powers of
the Constitution, states adopted statutory recording laws to protect
their citizens from fraud associated with real property matters. Idahols
basic recording law is found in Title 55, Chapter 8, of the Idaho Code.
a."Constructive Notice" - The underlying legal
principle inherent in the concept of recording, is the statutory
presumption that the proper recording of a document gives the public
notice of the content of the document. This principle is known as
"constructive notice", and is provided for in I.C. 55-811. "Constructive
notice" can prevent a subsequent grantee of real property from being a "bonafide
purchaser for value" and can determine the priority between competing
lienholders (I.C. 55-812). A "bonafide purchaser for value" (BFP), is
someone who acquires an interest in real property without knowledge of a
defect in title, and who tenders value for their interest.
In Idaho, recording is not part of the actual
conveyancing process. When the grantor delivers a properly executed deed
to the grantee, and the grantee accepts the delivery, the conveyance of
title to the real property is effective. The act of recording
establishes constructive notice and priority among competing interests
in the same parcel of real property. I.C. 55-815 provides that an
unrecorded instrument is valid as between the parties to the instrument.
The Idaho Supreme Court made the following observation about the primary
purpose of the recording statutes:
The primary purpose of the recording statutes is to
give notice to others that an interest is claimed in real property, and
thus give protection against bona fide third parties who may be dealing
in the same property."
(Matheson v. Harris , 98 Idaho 758, 572 P.2d 861, at 864 (1977).
b. Duration of Notice - I.C. 55-817 entitled
"Duration of Notice" is a piece of time dated legislation passed in
1951, that would appear to have no current effect. A properly recorded
document would provide perpetual notice from the time of "recording",
subject to specific statutory limitations based upon the nature of the