Section 76-203 shall not be construed to extend to a letter of attorney or other instrument containing a power to convey lands as agent or attorney for the owner of such lands; but every such letter or instrument, and every executory contract for the sale or purchase of lands, when proved or acknowledged in the manner prescribed by statute, may be recorded in the office of the register of deeds of any county in which the real estate to which such power or contract relates may be situated. Such an instrument, when so proved or acknowledged, and the record thereof, when recorded, or the transcript of such record, may be read in evidence, in the same manner and with the like effect as a conveyance recorded in such county.

Annotations

Power of attorney with reference to real estate will be construed with respect to natural import of the language. Watkins v. Hagerty, 104 Neb. 414, 177 N.W. 654 (1920).
A power of attorney is valid though not acknowledged, except to extent of conveying a homestead. Morris v. Linton, 61 Neb. 537, 85 N.W. 565 (1901).

In the construction of every instrument creating or conveying, or authorizing or requiring the creation or conveyance of any real estate, or interest therein, it shall be the duty of the courts of justice to carry into effect the true intent of the parties, so far as such intent can be collected from the whole instrument, and so far as such intent is consistent with the rules of law.

Annotations

1. Rules of construction

2. Rule in Shelley's Case

3. Joint tenancy

4. Life estates

5. Wills

6. Trusts

7. Leases

8. Antenuptial contracts

9. Restraints on alienation

10. Easement

11. Condition subsequent

12. Boundaries

13. Deeds generally

14. Miscellaneous

1. Rules of construction

The true intent of the parties will be instrumental when construing instruments creating interests in real property. Dupuy v. Western State Bank, 221 Neb. 230, 375 N.W.2d 909 (1985).
This section created no peculiar rule of law but merely codifies what has always been the common law rule of construction. This section does not enlarge, limit, or modify any rule of substantive law. Sterner v. Nelson, 210 Neb. 358, 314 N.W.2d 263 (1982).
This section provides a rule of construction and does not have the effect of enlarging, limiting, or modifying any rule of substantive law that existed at the time of its passage or has thereafter been created. Cast v. National Bank of Commerce T. & S. Assn., 186 Neb. 385, 183 N.W.2d 485 (1971).
Where intention expressed in an instrument is obscure, resort may be had to surrounding circumstances. Gettel v. Hester, 165 Neb. 573, 86 N.W.2d 613 (1957).
Intent statute does not have effect of changing substantive law. Andrews v. Hall, 156 Neb. 817, 58 N.W.2d 201 (1953).
True intent must be ascertained from whole instrument. Elrod v. Heirs of Gifford, 156 Neb. 269, 55 N.W.2d 673 (1952).
In the absence of anything to indicate a contrary intention, instruments executed at the same time, by the same parties, for the same purpose, and in course of the same transaction, are, in the eyes of the law, one instrument, and will be read and construed together as if they were as much one in form as they are in substance. Blum v. Poppenhagen, 142 Neb. 5, 5 N.W.2d 99 (1942); Thompson v. Jost, 108 Neb. 778, 189 N.W. 169 (1922).
This section relates only to rules of construction, and does not enlarge, limit or in any way modify any rule of substantive law. Stuehm v. Mikulski, 139 Neb. 374, 297 N.W. 595 (1941).
It is the duty of the court to determine from the whole instrument the true intent of the parties and to carry that intent into effect. Maxwell v. Hamel, 138 Neb. 49, 292 N.W. 38 (1940).
The intention of the parties to a deed must be gathered from the whole instrument itself. Langan v. Langan, 135 Neb. 229, 280 N.W. 903 (1938).
Instrument will be construed to create vested rather than contingent remainder, if possible. DeWitt v. Searles, 123 Neb. 129, 242 N.W. 370 (1932).
Duty of court is to give to each word and sentence in the conveyance such significance as will carry into effect the true intent of the parties thereto. In re Darr's Estate, 114 Neb. 116, 206 N.W. 2 (1925); Moran v. Moran, 101 Neb. 386, 163 N.W. 315 (1917); Benedict v. Minton, 83 Neb. 782, 120 N.W. 429 (1909); Albin v. Parmele, 70 Neb. 740, 98 N.W. 29 (1904); Rupert v. Penner, 35 Neb. 587, 53 N.W. 598 (1892).
Power of attorney with reference to real estate will be construed with respect to natural import of language thereof. Watkins v. Hagerty, 104 Neb. 414, 177 N.W. 654 (1920).
What this section requires to be consistent with the general rules of law is not the construction of the instrument, but the intent of the parties. Albin v. Parmele, 70 Neb. 740, 98 N.W. 29 (1904).
When by any reasonable interpretation, the granting clause and the habendum clause can be reconciled, effect must be given to both. Rupert v. Penner, 35 Neb. 587, 53 N.W. 598 (1892).

2. Rule in Shelley's Case

Where two words are used interchangeably, one of which indicates limitation and the other purchase, the one which indicates purchase must be accepted, and the one indicating limitation must be considered as descriptio personae. Salmons v. Salmons, 142 Neb. 66, 5 N.W.2d 123 (1942).
Though granting clause in a deed, if considered alone, would convey fee, it may be shown that by construing the whole instrument in order to give effect to expressed intention of parties that life estate only was conveyed. Reuter v. Reuter, 116 Neb. 428, 218 N.W. 86 (1928).
If will contains language coming within rule in Shelley's Case, the intent statute does not control. Sutphen v. Joslyn, 111 Neb. 777, 198 N.W. 164 (1924).
Devise for life with remainder to lawful heirs vests fee. Myers v. Myers, 109 Neb. 230, 190 N.W. 491 (1922).
Rule in Shelley's Case is not abrogated by statute requiring court to give expressed intent of parties. Yates v. Yates, 104 Neb. 678, 178 N.W. 262 (1920).
On rehearing, statement in original opinion that intent statute partially abrogates rule in Shelley's Case is withdrawn. Moran v. Moran, 101 Neb. 386, 163 N.W. 315 (1917), remanded on rehearing 101 Neb. 390, 163 N.W. 1071 (1917).
Use of word heirs will not defeat the emphatically expressed intent of testator, and convert what he plainly designed as a life estate into a fee. Albin v. Parmele, 70 Neb. 740, 98 N.W. 29 (1904).

3. Joint tenancy

Prior to passage of the Uniform Property Act, a conveyance by one spouse to another direct could not create joint tenancy. Stuehm v. Mikulski, 139 Neb. 374, 297 N.W. 595 (1941).
Where deed shows mutual agreement to create estate of survivorship, court must apply rule as evidenced by conveyance. Arthur v. Arthur, 115 Neb. 781, 215 N.W. 117 (1927).
Right to create title in real estate by joint tenancy, with right of survivorship clearly expressed, has never been abridged in this state. Sanderson v. Everson, 93 Neb. 606, 141 N.W. 1025 (1913).

4. Life estates

Under intent statute, devise of property to wife for her own use and benefit and at her death all property remaining to children conveyed a life estate only, with power to dispose of and use the principal only so far as might be reasonably necessary for her support. Annable v. Ricedorff, 140 Neb. 93, 299 N.W. 373 (1941).
Where will devised to son life use of property, without power to mortgage or sell, a mortgage executed by son was void. Nebraska Nat. Bank v. Bayer, 123 Neb. 391, 243 N.W. 115 (1932).
Deed conveying land to grantee for life, remainder in fee simple to the heirs begotten of the body of said grantee, creates a life estate in grantee only. Yates v. Yates, 104 Neb. 678, 178 N.W. 262 (1920).
It was obvious from context that word heirs was used as equivalent to children, and grantees received life estates. Grant v. Hover, 103 Neb. 730, 174 N.W. 317 (1919).
Devise was construed to convey a life estate to A with remainder over to his wife and children, even though the provisions of first part of will, if it stood alone, would be sufficient to devise an estate in fee simple. Kluge v. Kluge, 103 Neb. 534, 172 N.W. 756 (1919).

5. Wills

A patent ambiguity in a will must be removed by interpretation of the intention of the testator as found within the four corners of the will. Gaughen v. Gaughen, 172 Neb. 740, 112 N.W.2d 285 (1961).
Intent is determined from language of will, and does not include an entertained but unexpressed intention. Dunlap v. Lynn, 166 Neb. 342, 89 N.W.2d 58 (1958).
Court will place itself in the position of testator in construing will. Bodeman v. Cary, 152 Neb. 506, 41 N.W.2d 797 (1950).
Court must give effect to true intent of testator. Olson v. Lisco, 149 Neb. 314, 30 N.W.2d 910 (1948).
Statutory law designates rule for construing or interpreting wills. In re Estate of Lewis, 148 Neb. 592, 28 N.W.2d 427 (1947).
Bequest of all interest in and to the Hub Bar conveyed interest in bank deposit of the business conducted under that name. In re Estate of Zents, 148 Neb. 104, 26 N.W.2d 793 (1947).
It is the duty of the court to give effect to the true intent of the testator so far as it can be collected from the whole will, if such intent is consistent with rules of law. Lacy v. Murdock, 147 Neb. 242, 22 N.W.2d 713 (1946).
Testator did not intend fee simple title to pass. Hulse v. Tanner, 142 Neb. 406, 6 N.W.2d 618 (1942).
In construing a will, court is required to give effect to true intent of testator, if possible. Baldwin v. Baldwin, 140 Neb. 823, 2 N.W.2d 23 (1942).
In the construction of a will, court is required to give effect to the true intent of the testator so far as it can be collected from the whole instrument, and in this connection, circumstances relating to the will may be considered. Martens v. Sachs, 138 Neb. 678, 294 N.W. 426 (1940).
In construing wills, the court must not give undue weight to a single clause but must construe instrument as a whole to ascertain true intent of testator. Graff v. Graff, 136 Neb. 543, 286 N.W. 788 (1939).
In construing will, court may consider circumstances relating to will to aid in determining and giving effect to testator's intent. Lehman v. Wagner, 136 Neb. 131, 285 N.W. 124 (1939).
Court in construing a will must first ascertain the intent and purpose of testator as disclosed by language of will and then give effect thereto if not contrary to law. Prudential Ins. Co. v. Nuernberger, 135 Neb. 743, 284 N.W. 266 (1939).
Intention of testator controls in construction of a will, if it is consistent with rules of law. Woelk v. Luckhardt, 134 Neb. 55, 277 N.W. 836 (1938).
A provision of a will which directs the sale of real estate for the payment of certain legacies operates as an equitable conversion effective at death of testator. In re Estate of Hunter, 132 Neb. 454, 272 N.W. 318 (1937).
Four warranty deeds executed by testator together with his will, were construed together in light of surrounding circumstances and showed clear intent of testator that certain sons should receive no further part of inheritance. Blochowitz v. Blochowitz, 130 Neb. 789, 266 N.W. 644 (1936).
The intent of testator is to be ascertained from a liberal interpretation and comprehensive view of all the provisions of the will. Lancaster County Bank v. Marshel, 130 Neb. 141, 264 N.W. 470 (1936).
This section applies to construction of wills. In re Estate of Zimmerman, 122 Neb. 812, 241 N.W. 553 (1932).
Rules of law in this section does not mean rules of construction in conflict with testator's intent. Court will ascertain intent and, if lawful, enforce it without regard to canons of construction. Peters v. Northwestern Mut. Life Ins. Co., 119 Neb. 161, 227 N.W. 917 (1929), 67 A.L.R. 1311 (1929).
Statute is applicable alike to wills, deeds and contracts to convey. Heiser v. Brehm, 117 Neb. 472, 221 N.W. 97 (1928); Reuter v. Reuter, 116 Neb. 428, 218 N.W. 86 (1928).
Intent of testator, as gathered from will as whole, controls in construction of same if no rule of law is violated. Reuter v. Reuter, 116 Neb. 428, 218 N.W. 86 (1928); Krause v. Krause, 113 Neb. 22, 201 N.W. 670 (1924).
Cases involving construction of wills devising real estate are applicable to construction of deeds. Arthur v. Arthur, 115 Neb. 781, 215 N.W. 117 (1927).
Will was construed to devise to testator's wife estate without limitation, except if she died without issue, one-half of property remaining unconveyed by her passed to testator's brothers and sisters. In re Darr's Estate, 114 Neb. 116, 206 N.W. 2 (1925).
Testator's will did not vest devisee with power to devise realty by will. Krause v. Krause, 113 Neb. 22, 201 N.W. 670 (1924).
No particular words or conventional forms of expression are necessary to make testamentary disposition. The court will place itself in testator's position, ascertain his will and enforce it. Weller v. Noffsinger, 57 Neb. 455, 77 N.W. 1075 (1899).

6. Trusts

Will was construed to have created ten-year trust, child acquiring defeasible estate in trust and trust income, which interest upon child's death passed to remaining children. Hulse v. Tanner, 142 Neb. 406, 6 N.W.2d 618 (1942).
Where owner of property gratuitously transfers it and properly manifests an intention that transferee should hold it in trust, but the trust fails, transferee holds the property upon a resulting trust for transferor or his estate, unless the transferor properly manifested an intention that no resulting trust should arise or the intended trust fails for illegality. In re Estate of Mooney, 131 Neb. 52, 267 N.W. 196 (1936).
Where property is devised to trustee, with direction to the trustee to use his judgment and discretion as to time of sale of property, it is contrary to intent of testator to permit involuntary partition. Heiser v. Brehm, 117 Neb. 472, 221 N.W. 97 (1928).

7. Leases

The purpose of rules of construction are to arrive at and give effect to the intention of the parties from a review of the entire instrument, rather than to select particular words for the purpose of interpreting a particular provision. Leases are construed from the four corners of the instrument to arrive at the true intention of the parties. B Town, Inc. v. Albright, 209 Neb. 819, 311 N.W.2d 908 (1981).
The intent of the parties to a lease is to be determined from the whole instrument and is controlling if consistent with rules of law. Omaha Country Club v. Dworak, 186 Neb. 336, 183 N.W.2d 264 (1971).
In construing ninety-nine year lease, court must give effect to intention of parties as gathered from entire instrument, if consistent with law. Towle v. Morrell, 129 Neb. 398, 261 N.W. 827 (1935).
Section applies to construction of lease for term of five years. Wattles v. South Omaha Ice & Coal Co., 50 Neb. 251, 69 N.W. 785 (1897).

8. Antenuptial contracts

The intent of parties to an antenuptial agreement was that, upon the death of one party, the property vest absolutely in the survivor subject to the claims of creditors. Neneman v. Rickley, 110 Neb. 446, 194 N.W. 447 (1923).
Conditions and circumstances surrounding antenuptial contract should be considered. Tiernan v. Tiernan, 107 Neb. 563, 186 N.W. 369 (1922).

9. Restraints on alienation

Where the owners of an interest in real property convey the same but by agreement contained in the instrument of conveyance retain an interest in the premises such interest will support the imposition of a restriction on alienation where it is reasonably necessary to protect the interest retained. Majerus v. Santo, 143 Neb. 774, 10 N.W.2d 608 (1943).
A devise of real estate to a designated person and his heirs forever without power to sell, mortgage or otherwise encumber, vests a fee simple estate in the person designated, the restraints on alienation being void. State Bank of Jansen v. Thiessen, 137 Neb. 426, 289 N.W. 791 (1940).
Creditors of grantee are required to take notice of reservations made by grantor in deed placed of record. McGuire v. Stimbert, 129 Neb. 383, 261 N.W. 685 (1935).

10. Easement

Purchaser of land burdened with open visible easement is charged with notice. Arterburn v. Beard, 86 Neb. 733, 126 N.W. 379 (1910).
Words with appurtenances are not necessary to pass an easement appurtenant to land. Smith v. Garbe, 86 Neb. 91, 124 N.W. 921 (1910).
Use of roadway under naked license cannot ripen into prescriptive right. Bone v. James, 82 Neb. 442, 118 N.W. 83 (1908).
Where contract of conveyance by fair construction of the whole instrument gives notice of an easement permanent in its nature, such as right-of-way of railroad company, purchaser takes title subject to such easement. Schafroth v. Ross, 289 F. 703 (8th Cir. 1923).

11. Condition subsequent

County substantially complied with condition subsequent imposed by deed with respect to erection and maintenance of court house. Brooks v. Kimball County, 127 Neb. 645, 256 N.W. 501 (1934).
When land is devised upon condition subsequent, heirs of testatrix can maintain action to recover property upon failure of devisee to comply with the condition attached to gift within a reasonable time. Marble v. City of Tecumseh, 103 Neb. 625, 173 N.W. 581 (1919).

12. Boundaries

Fixed monuments govern both courses and distances in field notes. Hurn v. Alter, 80 Neb. 183, 113 N.W. 986 (1907); Knoll v. Randolph, 3 Neb. Unof. 599, 92 N.W. 195 (1902).

13. Deeds generally

Each word and provision of a conveyance of oil and mineral rights must be given effect. Bulger v. McCourt, 179 Neb. 316, 138 N.W.2d 18 (1965).
Deed will not be construed to create an estate upon condition unless language to that effect is so clear as to leave no room for other construction. Majerus v. Santo, 143 Neb. 774, 10 N.W.2d 608 (1943).
Instruments executed at same time are to be construed together. Blum v. Poppenhagen, 142 Neb. 5, 5 N.W.2d 99 (1942).
An undelivered deed may be incorporated in a will by reference, if the terms of the will, assisted by the surrounding circumstances, are sufficient to identify the deed and to show the intention of giving effect to it. In re Estate of Dimmitt, 141 Neb. 413, 3 N.W.2d 752 (1942).
Deed to grantee and then to her children did not limit estate to grantee for life. Aynes v. Bantz, 114 Neb. 226, 206 N.W. 754 (1925).
Deed was sufficient to convey all the interest of wife in the premises. Watkins v. Harrison, 110 Neb. 439, 194 N.W. 435 (1923).
Upon breach of covenants in deed, right of action accrues at once. Webb v. Wheeler, 80 Neb. 438, 114 N.W. 636 (1908).
Deed to half unsubdivided quarter section conveys quantitative half. Kirkpatrick v. Schaal, 77 Neb. 661, 110 N.W. 730 (1906).

14. Miscellaneous

While intent statute does not have the effect of changing substantive law, it is declaratory of a rule of construction long adopted by the Supreme Court. Bauer v. Bauer, 180 Neb. 177, 141 N.W.2d 837 (1966).
Assignment of school land lease did not obligate assignee to pay irrigation taxes. Beltner v. Carlson, 153 Neb. 797, 46 N.W.2d 153 (1951).
Covenant against encumbrances does not run with land. Sears v. Broady, 66 Neb. 207, 92 N.W. 214 (1902).
Upon a conveyance subject to encumbrance, no personal obligation is imposed on grantee. Lexington Bank v. Salling, 66 Neb. 180, 92 N.W. 318 (1902).
Deed absolute in form may be a mortgage. Decker v. Decker, 64 Neb. 239, 89 N.W. 795 (1902); Riley v. Starr, 48 Neb. 243, 67 N.W. 187 (1896).
Assumption by grantee to pay mortgage is binding. Garneau v. Kendall, 61 Neb. 396, 85 N.W. 291 (1901); Martin v. Humphrey, 58 Neb. 414, 78 N.W. 715 (1899).
Description by metes and bounds passes land, though not of acreage stated. Pohlman v. Evangelical Lutheran Trinity Church, 60 Neb. 364, 83 N.W. 201 (1900).
Reservation in deed cannot create title in stranger. Burchard v. Walther, 58 Neb. 539, 78 N.W. 1061 (1899).

Unless such intention is expressly negatived by the language in the instrument, a covenant in a conveyance of real property that the grantor is seized, or lawfully seized, or words to like effect, shall be interpreted as a covenant that the grantor has good title to the very estate in quantity and quality which he purports to convey.

Annotations

Grantor had good title to estate in quality and quantity. Gettel v. Hester, 165 Neb. 573, 86 N.W.2d 613 (1957).

Covenants of quiet enjoyment and covenants of warranty in conveyances of real property may be breached by an eviction, actual or constructive, by reason of the hostile assertion of a paramount title holder. A constructive eviction occurs in the following situations: (1) Where the covenantee is kept out of possession by the paramount title holder; (2) where the covenantee surrenders possession to the paramount title holder; and (3) where the covenantee in order to retain possession is forced to and buys off the paramount title holder.

Annotations

Covenants of quiet enjoyment and warranty were breached by the existence of a paramount right to possession which covenantee was forced to buy off. Grand Island Hotel Corp. v. Second Island Development Co., 191 Neb. 98, 214 N.W.2d 253 (1974).

Unless such intention is expressly negatived by the language in the instrument, all covenants for title in conveyances of real property, including covenants of seisin, right to convey, freedom from encumbrances, quiet enjoyment, and warranty, when made with the grantee, run with the land and are enforceable by any assignee thereof, immediate or remote, by a suit in his own name; Provided, however, that the ultimate damage occasioned by a breach of the covenant on which suit is brought has not occurred prior to the assignment to such assignee. It shall not be a defense to the covenantor when sued by an assignee that the covenantor was a stranger to title to the whole or a part of the land the covenantor purported to convey.

Annotations

A lessee of real estate under a written lease for twenty-five years, notice of which is recorded, is an assignee and may enforce covenants involving possessory rights contained in a prior conveyance of the real estate to his lessor. Grand Island Hotel Corp. v. Second Island Development Co., 191 Neb. 98, 214 N.W.2d 253 (1974).

When a deed purports to convey a greater interest than the grantor was at the time possessed of, any after-acquired interest of such grantor to the extent of that which the deed purports to convey shall accrue to the benefit of the grantee; Provided, however, such after-acquired interest shall not inure to the benefit of the original grantee or his heirs or assigns, if the deed conveying said real estate was either a quitclaim or special warranty, and the original grantor in any case shall not be estopped from acquiring said premises at judicial or tax sale, upon execution against the grantee or his assigns, or for taxes becoming due after date of his conveyance.

Annotations

Statute has no application where grantor transfers a less interest than he possesses. Gettel v. Hester, 165 Neb. 573, 86 N.W.2d 613 (1957).
Property of grantor, acquired subsequently to making of deed, passed to grantee, and filing of transcript and the issuance of an execution, did not create a lien thereon. Trudeau v. Fischer, 96 Neb. 275, 147 N.W. 698 (1914).
If mortgage deed purports to convey whole property, an after-acquired interest of mortgagor will accrue to title conveyed by the mortgage. Pulver v. Connelly, 93 Neb. 188, 139 N.W. 1014 (1913).
If grantor obtains an instrument that evidences and fortifies the estate which his deed purports to convey, such instrument inures to the benefit of the grantee. Ford v. Axelson, 74 Neb. 92, 103 N.W. 1039 (1905).
Title acquired by patent issued subsequent to conveyance by grantor inures to the benefit of grantee. Lyon v. Gombert, 63 Neb. 630, 88 N.W. 774 (1902).
An after-acquired title by a grantor in a deed of quitclaim does not inure to his grantee. Troxell v. Stevens, 57 Neb. 329, 77 N.W. 781 (1899); Hagensick v. Castor, 53 Neb. 495, 73 N.W. 932 (1898).

Deeds of real estate, or any interest therein, in this state, except leases for one year or for a less time, if executed in this state, must be signed by the grantor or grantors, being of lawful age, and be acknowledged or proved and recorded as directed in sections 76-216 to 76-237.

Annotations

1. Delivery

2. Acknowledgment

3. Miscellaneous

1. Delivery

Delivery to third person with instructions not to record until death of grantor is held sufficient to pass title to property to grantees at date of such delivery, subject to their acceptance of same. Roepke v. Nutzmann, 95 Neb. 589, 146 N.W. 939 (1914).
Where husband and wife each execute deeds with directions to scrivener, in whose hands the deeds were deposited, not to deliver either deed except upon written order of the other, and upon death of either to place upon record the deed to the survivor, no present title passes by execution of either deed, but mutual contract may be enforced. Dunlap v. Marnell, 95 Neb. 535, 145 N.W. 1017 (1914).
If grantee is present and assents to delivery, title passes and act of grantor in obtaining possession of deed and destroying the same before it is recorded has no effect on title. Svanda v. Svanda, 86 Neb. 203, 125 N.W. 585 (1910).
Delivery is essential to render conveyance operative, but need not be delivered personally, and may be delivered to third person unconditionally for grantee. Brown v. Westerfield, 47 Neb. 399, 66 N.W. 439 (1896).

2. Acknowledgment

Acknowledgment is essential when conveying a homestead. In re Estate of West, 252 Neb. 166, 560 N.W.2d 810 (1997).
Election of surviving spouse to take under statute rather than under will must be acknowledged before a judge or clerk of court, or a notary. Billiter v. Parriott, 128 Neb. 238, 258 N.W. 395 (1935).
A homestead of a married person cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife. Storz v. Clarke, 117 Neb. 488, 221 N.W. 101 (1928).
Between parties, unacknowledged deed of real estate, not homestead, is good. Martin v. Martin, 76 Neb. 335, 107 N.W. 580 (1906); Harrison v. McWhirter, 12 Neb. 152, 10 N.W. 545 (1881).
Acknowledgment of mortgage by agent of mortgagee is valid. Gilbert v. Garber, 69 Neb. 419, 95 N.W. 1030 (1903).
Office of acknowledgment is to furnish authentic evidence that instrument has been duly executed and is entitled to be recorded. Fisk v. Osgood, 58 Neb. 486, 78 N.W. 924 (1899); Horbach v. Tyrrell, 48 Neb. 514, 67 N.W. 485 (1896).
Prior to September 7, 1947, United States Commissioner was unauthorized to take acknowledgments. Interstate S. & L. Assn. v. Strine, 58 Neb. 133, 78 N.W. 377 (1899).
Unacknowledged mortgage is valid between parties. Holmes v. Hull, 50 Neb. 656, 70 N.W. 241 (1897).
Acknowledgment is essential to convey homestead. Phillips v. Bishop, 31 Neb. 853, 48 N.W. 1106 (1891).
Acknowledgment in foreign state must satisfy laws of that state or this. Roode v. State, 5 Neb. 174 (1876).

3. Miscellaneous

Easements are interests in real estate, which, to constitute constructive notice to third parties, must be recorded under this section. Kimco Addition v. Lower Platte South N.R.D., 232 Neb. 289, 440 N.W.2d 456 (1989).
To be valid against subsequent purchasers, agreement creating lien on real estate must meet requirements of this section. Marechale v. Burr, 195 Neb. 306, 237 N.W.2d 860 (1976).

The use of private seals upon all deeds, mortgages, leases, bonds, and other instruments and contracts in writing, is abolished, and the addition of a private seal to any such instrument or contract in writing shall not affect its equity or legality in any respect.

Annotations

Since abolishment of private seals, all contracts are simple contracts. Montgomery v. Dresher, 90 Neb. 632, 134 N.W. 251 (1912).
Private seals do not affect the equity or legality of written instruments or contracts in this state. Fitzgerald v. Union Stock Yds. Co., 89 Neb. 393, 131 N.W. 612 (1911).
Abolishment of seals abolished their incidents, i.e., conclusive presumption of consideration. Luce v. Foster, 42 Neb. 818, 60 N.W. 1027 (1894); Richardson v. Woodruff, 20 Neb. 132, 29 N.W. 308 (1886).

All deeds, mortgages, or other instruments in writing, for the conveyance or encumbrance of real estate, or any interest therein, which have been made and executed without the use of a private seal are declared to be legal and valid in all courts of law and equity in this state and elsewhere.

(1) Except as provided in subsection (4) of this section, every grantee who has a deed to real estate recorded and every purchaser of real estate who has a memorandum of contract or land contract recorded shall, at the time such deed, memorandum of contract, or land contract is presented for recording, file with the register of deeds a completed statement as prescribed by the Tax Commissioner. For all deeds and all memoranda of contract and land contracts recorded on and after January 1, 2001, the statement shall not require the social security number of the grantee or purchaser or the federal employer identification number of the grantee or purchaser. This statement may require the recitation of any information contained in the deed, memorandum of contract, or land contract, the total consideration paid, the amount of the total consideration attributable to factors other than the purchase of the real estate itself, and other factors which may influence the transaction. If a death certificate is recorded as provided in subsection (2) of this section, this statement may require a date of death, the name of the decedent, and whether the title is affected as a result of a transfer on death deed, a joint tenancy deed, or the expiration of a life estate or by any other means. This statement shall ask whether the affidavit described in section 76-2,141 is required with respect to the deed, memorandum of contract, or land contract and, if so, whether such affidavit has been completed. This statement shall be signed and filed by the grantee, the purchaser, or his or her authorized agent. The register of deeds shall forward the statement to the county assessor. If the grantee or purchaser fails to furnish the prescribed statement, the register of deeds shall not record the deed, memorandum of contract, or land contract. The register of deeds shall indicate on the statement the book and page or computer system reference where the deed, memorandum of contract, or land contract is recorded and shall immediately forward the statement to the county assessor. The county assessor shall process the statement according to the instructions of the Property Tax Administrator and shall, pursuant to the rules and regulations of the Tax Commissioner, forward the statement to the Tax Commissioner.

(2)(a) The statement described in subsection (1) of this section shall be filed at the time that a certified or authenticated copy of the grantor's death certificate is filed if such death certificate is required to be filed under section 76-2,126 and the conveyance of real estate was pursuant to a transfer on death deed.

(b) The statement described in subsection (1) of this section shall not be required to be filed at the time that a transfer on death deed is filed or at the time that an instrument of revocation of a transfer on death deed as described in subdivision (a)(1)(B) of section 76-3413 is filed.

(3) Any person shall have access to the statements at the office of the Tax Commissioner, county assessor, or register of deeds if the statements are available and have not been disposed of pursuant to the records retention and disposition schedule as approved by the State Records Administrator.

(4) The statement described in subsection (1) of this section shall not be required if the document being recorded is an easement or an oil, gas, or mineral lease, or any subsequent assignment of an easement or such lease, except that such statement shall be required for conservation easements and preservation easements as such terms are defined in section 76-2,111 and recreational trail easements used to qualify for the property tax exemption provided by the Recreational Trail Easement Property Tax Exemption Act.

Cross References

Recreational Trail Easement Property Tax Exemption Act, see section 77-213.
Violation of section, penalty, see section 76-215.

Annotations

The real property transactions eligible for inclusion in the sales file are those transactions for which the statement required by this section is filed. For those transactions initially eligible for inclusion in the sales file, the price to be included in the sales file is the total consideration paid as listed on the statement described in subsection (1) of this section. Shaul v. Lang, 263 Neb. 499, 640 N.W.2d 668 (2002).
Sales-assessment ratio study was made prior to 1965 amendment to this section. Brandeis Inv. Co. v. State Board of Equalization & Assessment, 181 Neb. 750, 150 N.W.2d 893 (1967).
Statement of consideration is prima facie evidence thereof but may be rebutted. Sampson v. Sissel, 151 Neb. 521, 38 N.W.2d 341 (1949).
Where space in deed for recital of consideration was left blank, it was a circumstance taken into consideration in determining question of estoppel. Storz v. Clarke, 117 Neb. 488, 221 N.W. 101 (1928).
Recitals of consideration in deeds are incompetent as evidence of value. State v. Wright, 105 Neb. 617, 181 N.W. 539 (1921).

Any person who fails to obey the provisions of subsection (1) of section 76-214 shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than ten dollars nor exceeding five hundred dollars.

The grantor must acknowledge the instrument with an acknowledgment as defined in section 64-205.

Annotations

Acknowledgment must show voluntary execution. Keeling v. Hoyt, 31 Neb. 453, 48 N.W. 66 (1891); Aultman & Taylor Co. v. Jenkins, 19 Neb. 209, 27 N.W. 117 (1886).
Acknowledgment that it was their voluntary act was good. Spitznagle v. Vanhessch, 13 Neb. 338, 14 N.W. 417 (1882).
Substantial compliance with statute is necessary and sufficient. Becker v. Anderson, 11 Neb. 493, 9 N.W. 640 (1881).
Acknowledgment is no part of deed itself. Burbank v. Ellis, 7 Neb. 156 (1878).

The acknowledgment must be made or proved, if in this state, before a judge or clerk of any court, United States Magistrate or notary public therein; but no officer can take any such acknowledgment or proof out of his territorial jurisdiction.

Cross References

Authority to take acknowledgments:
Deputy clerks of the district and county courts, see section 24-403.
Notaries public, see section 64-107.
Secretary of State, see section 84-507.
Notaries public, generally, see Chapter 64, article 1.
Payment to county treasurer of fees of county officers for taking acknowledgments, see section 33-153.

Annotations

Certificate of an officer having authority to take acknowledgments cannot be impeached by showing that it was irregularly performed. Bode v. Jussen, 93 Neb. 482, 140 N.W. 768 (1913); Morris v. Linton, 61 Neb. 537, 85 N.W. 565 (1901).
Officer is disqualified to take acknowledgment when he is interested in transaction. Banking House of A. Castetter v. Stewart, 70 Neb. 815, 98 N.W. 34 (1904); Horbach v. Tyrrell, 48 Neb. 514, 67 N.W. 485 (1896); Hedbloom v. Pierson, 2 Neb. Unof. 799, 90 N.W. 218 (1902); Chadron L. & B. Assn. v. O'Linn, 1 Neb. Unof. 1, 95 N.W. 368 (1901).
Certificate of acknowledgment cannot be impeached by showing that officer's duty was irregularly performed. Council Bluffs Savings Bank v. Smith, 59 Neb. 90, 80 N.W. 270 (1899).
Prior to September 7, 1947, United States Commissioner was unauthorized to take acknowledgments. Interstate S. & L. Assn. v. Strine, 58 Neb. 133, 78 N.W. 377 (1899).
Acknowledgment may be taken by attorney of party in interest. Havemeyer v. Dahn, 48 Neb. 536, 67 N.W. 489 (1896).
Act of acknowledging officer is ministerial. Horbach v. Tyrrell, 48 Neb. 514, 67 N.W. 485 (1896).
Acknowledgment is act of one who has executed instrument going before some competent officer and declaring it to be his act or deed. Aultman & Taylor Co. v. Jenkins, 19 Neb. 209, 27 N.W. 117 (1886).
County clerk is authorized to take acknowledgments. Davis v. Huston, 15 Neb. 28, 16 N.W. 820 (1883).
Certificate of acknowledgment cannot be impeached except for fraud, collusion, or imposition. Boldt v. Becker, 1 Neb. Unof. 75, 95 N.W. 509 (1901).

No deed, mortgage, affidavit, power of attorney or other instrument in writing shall be invalidated because of any defects in the wording of the seal of the notary public attached thereto.

Every officer within this state authorized to take the acknowledgment or proof of any conveyance, and every county clerk, who shall be guilty of knowingly stating an untruth, or guilty of any malfeasance or fraudulent practice in the execution of the duties prescribed for them by law, in relation to the taking or the certifying of the proof or acknowledgment, or the recording or certifying of any record of any such conveyance, mortgage or instrument in writing, or in relation to the canceling of any mortgage, shall upon conviction be adjudged guilty of a misdemeanor, and be subject to punishment by fine not exceeding five hundred dollars, and imprisonment not exceeding one year, and shall also be liable in damages to the party injured.

Annotations

Certification by an attorney of a false acknowledgment is a criminal offense justifying suspension or disbarment. State ex rel. Nebraska State Bar Assn. v. Butterfield, 169 Neb. 119, 98 N.W.2d 714 (1959).
County clerk, in issuing certificate of title to a motor vehicle, was not guilty of malfeasance under facts stated. Securities Credit Corp. v. Pindell, 153 Neb. 298, 44 N.W.2d 501 (1950).

If the instrument is executed and acknowledged or proved in any other state, territory or district of the United States, it must be executed and acknowledged or proved either according to the laws of such state, territory or district or in accordance with the law of this state, and if acknowledged out of this state it must be before some court of record or clerk or officer holding the seal thereof, or before some commissioner to take the acknowledgment of deeds, appointed by the Governor of this state, or before some notary public.

Annotations

A deed of lands situated in this state, executed in another state and acknowledged there before a notary public is presumed to have been executed according to the laws of that state though not witnessed, and is entitled to be received in evidence in this state, without other proof that the grantors actually executed and delivered the deed. Jorgensen v. Crandell, 134 Neb. 33, 277 N.W. 785 (1938).
There is presumption of regularity of execution and acknowledgment in foreign state. Dorsey v. Conrad, 49 Neb. 443, 68 N.W. 645 (1896); Schields v. Horbach, 49 Neb. 262, 68 N.W. 524 (1896).
Acknowledgment in foreign state must satisfy laws of that state or this. Roode v. State, 5 Neb. 174 (1876).
Authentication is required when officer has no seal. Hoadley v. Stephens, 4 Neb. 431 (1876).

If such deed be executed in a foreign country, it may be executed according to the laws of such country, and the execution thereof may be acknowledged before any notary public therein, or before any minister plenipotentiary, minister extraordinary, minister resident, charge d'affaires, commissioner, commercial agent, or consul of the United States appointed to reside therein, which acknowledgment shall be certified thereon by the officer taking the same, under his hand, and if taken before a notary public, his seal of office shall be affixed to such certificate.

Annotations

The word consul means any person invested by national government with functions of that office. Morris v. Linton, 61 Neb. 537, 85 N.W. 565 (1901).

The acknowledgment of legal instruments, the attestation of documents, the administration of oaths and other notarial acts, heretofore or hereafter taken before any duly commissioned officer of the army, navy, marine corps, coast guard, or any other component part of the armed forces of the United States are hereby declared legal, valid and binding, and such instrument and documents shall be admissible in evidence and eligible to record in this state under the same circumstances, and with the same force and effect as if such acknowledgment, attestation, oath, affidavit, or other notarial act had been made or taken before a notary public within this state. If the signature, rank and branch of service of any such officer appear upon such instrument or document, no further proof of the authority of such officer to so act shall be required.

If the grantor dies before acknowledgment, or if for any cause his attendance cannot be procured in order to make the same, or, having appeared, he refused to acknowledge it, proof of the execution and delivery of the deed may be made by any competent subscribing witness thereto before any officer authorized to take the acknowledgment. The witness must state, upon oath, his own place of residence, that he set his name to the deed as a witness, that he knew the grantor in such deed, and saw him sign or heard him acknowledge he had signed the same. Such proof shall not be taken unless the officer is personally acquainted with such subscribing witness, or has satisfactory evidence that he is the same person who was a subscribing witness to such deed.

Annotations

Proof of acknowledgment may be made by subscribing witness. Podewitz v. Gering Nat. Bank, 171 Neb. 380, 106 N.W.2d 497 (1960).
Proof of acknowledged deed made by subscribing witness entitles deed to record. Wilson v. Wilson, 83 Neb. 562, 120 N.W. 147 (1909).

The officer has power to issue the necessary subpoenas for the subscribing witnesses, residing in the same county, to appear before him for the purpose stated in section 76-228.

Every person served with a subpoena and tendered the fees of a witness who, without reasonable cause, refuses or neglects to appear, or appearing, refuses to answer upon oath touching the matters referred to in section 76-228, shall forfeit to the party injured one hundred dollars and may also be committed to prison by the officer who issued such subpoena, there to remain without bail until he or she shall submit to answer upon oath as aforesaid.

If all the subscribing witnesses shall be dead, or out of the state, such death or absence is first to be proved, and then the execution of the deed may be proved before such officer by proving the handwriting of the grantor and of any subscribing witness to such deed.

Any person interested in a deed that is not acknowledged, may, at any time before or during the proceedings before such officer, file, in the office of the register of deeds of the county where the lands lie, a copy of the deed, compared with the original by the register of deeds, which shall, for the space of thirty days thereafter, have the same effect as the recording of the deed, if such deed shall within that time be duly proved and recorded.

Every officer, who shall take the acknowledgment or proof of any deed, shall endorse a certificate thereof signed by himself on the deed, and in such certificate shall truly and specifically set forth the matters hereinbefore required to be done, known or proved, on such acknowledgment or proof, together with the names of the witnesses examined before such officer, and their places of residence, and the substance of the evidence by them given.

Annotations

Fact of acknowledgment should appear from instrument itself and cannot be shown by parol testimony. Solt v. Anderson, 71 Neb. 826, 99 N.W. 678 (1904).
Mistake of notary in certificate of acknowledgment does not invalidate conveyance. Roberts v. Robinson, 49 Neb. 717, 68 N.W. 1035 (1896).
Certificate is impeached only by clear and satisfactory proof of falsity. Phillips v. Bishop, 35 Neb. 487, 53 N.W. 375 (1892).
Date of acknowledgment prevails over date of deed. Buck v. Gage, 27 Neb. 306, 43 N.W. 110 (1889).
Acknowledgment showing appearance and acknowledgment by mortgagee but not of mortgagor was fatally defective, and parol evidence to impeach notary's certificate of acknowledgment omitting to show acknowledgment of mortgagor was inadmissible. Troyer v. Mundy, 60 F.2d 818 (8th Cir. 1932).

No acknowledgment of any conveyance shall be taken by any officer, unless the officer taking it shall know or have satisfactory evidence that the person making such acknowledgment is the person described in and who executed such conveyance.

Every deed acknowledged or proved, and certified by any of the officers named in sections 76-217, 76-219, 76-220, 76-226 and 76-227, and authorized to take acknowledgments, including the certificate specified in section 76-242, whenever such certificate is required by law, may be read in evidence without further proof, and shall be entitled to be recorded. The record of a deed duly recorded, or a transcript thereof duly certified, may also be read in evidence with the like force and effect as the original deed, whenever by the party's oath or otherwise the original is known to be lost, or not belonging to the party wishing to use the same, nor within his control. Neither the certificate of the acknowledgment or the proof of any deed, nor the record or transcript of the record of such deed, shall be conclusive, but may be rebutted, and the force and effect thereof may be contested by any party affected thereby. If the party contesting the proof of a deed shall make it appear that such proof was taken upon the oath of an interested or incompetent witness, neither such deed nor the record thereof shall be received in evidence until established by other competent proof.

Annotations

1. Acknowledgment

2. Recording

3. Miscellaneous

1. Acknowledgment

A deed of lands situated in this state, executed in another state and acknowledged there before a notary public who attaches his official seal, is presumed to have been executed in accordance with the laws of that state and, though not witnessed, is entitled to be received in evidence in this state without other proof that the grantors therein actually executed and delivered the deed. Jorgensen v. Crandell, 134 Neb. 33, 277 N.W. 785 (1938).
Acknowledgment of corporation deed by president, although purporting to be his individual act, was sufficient. Powers v. Spiedel, 84 Neb. 630, 121 N.W. 968 (1909).
Certificate of acknowledgment is not conclusive but may be rebutted by any party affected thereby. Rouse v. Witte, 81 Neb. 368, 116 N.W. 43 (1908).
A certificate of acknowledgment can be impeached only by clear, convincing and satisfactory proof that the certificate is false and fraudulent. Sheridan County v. McKinney, 79 Neb. 220, 112 N.W. 329 (1907); McGuire v. Wilson, 5 Neb. Unof. 540, 99 N.W. 244 (1904).
Mortgage duly acknowledged is admissible in evidence without further proof. McKenzie v. Beaumont, 70 Neb. 179, 97 N.W. 225 (1903).
Execution and delivery must be proved to admit in evidence unacknowledged deed. Linton v. Cooper, 53 Neb. 400, 73 N.W. 731 (1898).
Certificate must substantially comply with statute. Maxwell v. Higgins, 38 Neb. 671, 57 N.W. 388 (1894).
Certificate of authority must be in due form. Irwin v. Welch, 10 Neb. 479, 6 N.W. 753 (1880).
Acknowledged deed is admissible without evidence of authenticity of signatures. Brown v. Collins, 2 Neb. Unof. 149, 96 N.W. 173 (1901).

2. Recording

Recorded deed may be read in evidence without further proof. Pierce v. Fontenelle, 156 Neb. 235, 55 N.W.2d 658 (1952).
Where deed was entitled to be recorded, and it, or the record thereof, was receivable in evidence without further proof, and was only instrument that had been of record for many years covering land, such deed was defect in title, although not connected with chain of title from patentee. Robinson v. Bressler, 122 Neb. 461, 240 N.W. 564 (1932).
Whenever deed is lost, a certified transcript of the record of a deed duly recorded may be read in evidence with like force and effect of original deed. Thams v. Sharp, 49 Neb. 237, 68 N.W. 474 (1896).
It is discretionary with trial court to admit record instead of original. Rupert v. Penner, 35 Neb. 587, 53 N.W. 598 (1892); Buck v. Gage, 27 Neb. 306, 43 N.W. 110 (1889); Delaney v. Errickson, 10 Neb. 492, 6 N.W. 600 (1880).
Record of deed may be shown without inquiry as to the original whenever evidence indicates that the original is not in the possession of or under the control of the party offering such proof. Staunchfield v. Jeutter, 4 Neb. Unof. 847, 96 N.W. 642 (1903).

3. Miscellaneous

Deed alone does not prove title in grantor. Lesieur v. Custer County, 61 Neb. 612, 85 N.W. 892 (1901).

The certificate of the proof or acknowledgment of every deed, and the certificate of the genuineness of the signature of any officer, in the cases where such last-mentioned certificate is required, shall be recorded together with the deed so proved or acknowledged; and unless the certificates be so recorded, neither the record of such deed nor the transcript thereof shall be read or received in evidence.

Cross References

Statute of limitations, see section 25-202.

Annotations

Acknowledgment showing appearance and acknowledgment by mortgagee but not of mortgagor was fatally defective. Troyer v. Mundy, 60 F.2d 818 (8th Cir. 1932).

Every deed, entitled by law to be recorded, shall be recorded in the order and as of the time when the same shall be delivered to the register of deeds for that purpose, and shall be considered recorded from the time of such delivery.

Cross References

Recording fees, see section 33-109.

Annotations

Mortgages are considered as recorded from the time of their delivery to the register of deeds for that purpose, but mere fact that a mortgage is recorded first does not necessarily give it priority over one recorded later, as between the parties, if they have agreed or intended otherwise. Reitz v. Petersen, 131 Neb. 706, 269 N.W. 811 (1936).
Mere fact that one mortgage is indexed and recorded ahead of another does not give the first mortgage priority, and where both are delivered by mail without instructions, they are to be considered recorded from time of delivery. Judkins-Davies v. Skochdopole, 122 Neb. 374, 240 N.W. 510 (1932).
Assignment of real estate mortgage is an instrument affecting the title of real estate within meaning of Recording Acts. Mulligan v. Snavely, 117 Neb. 765, 223 N.W. 8 (1929).
Where a deed, properly executed and acknowledged, is filed for record, it is notice to all the world even though record book containing it is destroyed. Deming v. Miles, 35 Neb. 739, 53 N.W. 665 (1892).
Party filing deed is not prejudiced by negligence of register. Perkins v. Strong, 22 Neb. 725, 36 N.W. 292 (1888).

(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.

(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.

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).