History of the Office

The system of recording real property which is now somewhat familiar to you originated prior to the foundation of the United States during the transition in England from feudal law to more of an administrative state.[1] Deeds were first called “charters” and dealt with requirements that claims of ownership of any sort in land be in writing (remember the statutes of frauds?). Even prior to the establishment of the United States, the requirement of recording was clearly established, as the following excerpt indicates:

By the stat. 27 of Eliz. 4. against fraudulent conveyances, it is enacted that all deeds made to defraud or deceive purchasers shall be void. This is very like our act. All deeds not recorded shall be void.[2]

Other cases from the post-colonial time period reference the office of the recorder and the legal requirement that deeds be recorded. Modern cases have somewhat modified the strict requirement of recording, but that matter we shall discuss in a different chapter. Indiana was established as a state in 1816, and the office of the recorder was established nearly simultaneously, due to the inclusion in the Indiana Constitution of 1816 the following:

There shall be elected in each county a Recorder, who shall hold his office during the term of seven years, if he shall so long behave well: Provided that nothing herein contained shall prevent the clerks of the circuit Courts from holding the office of recorder.[3]

Early cases from the state of Indiana reference that fact, such as the following excerpt shows:

He also offered Lamb, the recorder of the county, who had taken the acknowledgment of both deeds, as a witness to prove that the lessor of the plaintiff, before he purchased the lot, had notice of the existence of the defendant's deed.[4]

Governor Whitcomb of Indiana, along with legislators, called for the adoption of a second constitution in Indiana in 1848, for a variety of reasons.[5] Therefore, Indiana adopted a second constitution in 1861, which has been amended a variety of times. Both in the original constitution and as it stands now, Article VI, Section 2, includes a provision for a county recorder. It now states:

There shall be elected, in each county by the voters thereof, at the time of holding general elections, a Clerk of the Circuit Court, Auditor, Recorder, Treasurer, Sheriff, Coroner, and Surveyor, who shall, severally, hold their offices for four years.[6]

ith administrative offices, the general assembly passes what is called “enabling legislation” – that is, laws that define the precise duties with which an office is tasked. Finally, one interesting fact to note is that the individuals who serve in many of these offices are required to reside in the county in which they serve, per the Indiana Constitution:

All county, township, and town officers, shall reside within their respective counties, townships, and towns; and shall keep their respective offices at such places therein, and perform such duties, as may be directed by law.[7]

[1] "In Deed and Word (1100-1300)" History in Deed: Medieval Society & The Law in England, 1100-1600. Ed. Charles Donahue, Jr. Harvard Law School Library. Web. 16 May 2015.

[2] Knight v. Triplet, 1740 WL 11 (Va. Gen. Ct. Oct. 1740).

[3] "Article XI." Constitutions of 1816 and 1851 of the State of Indiana and Amendments. Indianapolis: Wm. B. Burford, Contractor for State Print. and Binding, 1895. 25. Print.

[4] Ricks v. Doe ex dem. Wright, 2 Blackf. 346, 347 (1830).

[5] Kettleborough, Charles. Constitution Making in Indiana: A Source Book of Constitutional Documents, with Historical Introduction and Critical Notes. Indianapolis: Indiana Historical Commission, 1916. 185. Print.

[6] Ind. Const. art. VI, § 2. The same article also stipulates that: “All county, township, and town officers, shall reside within their respective counties, townships, and towns; and shall keep their respective offices at such places therein, and perform such duties, as may be directed by law.” Ind. Const. art. VI, § 6.

[7] Ind. Const. art. VI, § 6.