dissenting.
I am unable to agree with the views of the majority as to the construction and effect of Art. 5498.1 It is entirely proper to charge a person with constructive notice of an instrument which would be disclosed by an examination of the records. But the intention to affect an otherwise innocent purchaser with notice of a mortgage which he could not be expected to find by a reasonable investigation of the. records, should not be accorded to the Legis*516lature unless the language of the statute is subject to no other construction. It is my opinion that the contrary intention is clearly revealed by the provisions of the statute now under consideration.
Article 66461 declares that the record of any deed or instrument in writing authorized or required to be recorded shall be notice to all persons of its existence, and contains no language indicating that the Legislature intended to except any instrument that is acknowledged and recorded as provided therein. It is well settled, however, that an otherwise innocent purchaser or lienholder is not charged with constructive notice of a recorded deed or mortgage executed by a stranger to the chain of title. Bryant v. Buckner, 67 Texas 107, 2 S.W. 452; Brown v. Ackerman, Texas Com. App., 17 S.W. 2d 771. The rationale of this rule is that the only facilities provided by statute for finding recorded instruments pertinent to any particular title are the indices of grantors and grantees, and a prospective purchaser or lienholder will have no reason to search for instruments executed by persons outside of the chain of title under which he claims. To charge one acquiring an interest in realty with notice of instruments executed by persons outside of the chain of title would impose upon him the duty of making a general search of every instrument filed for record without affording facilities therefor. See Patton on Land Titles, 2nd ed. 1957, Vol. 1, p. 230, Sec. 69.
This reasoning applies with equal force to the chattel mortgage records on realty, which are indexed in the clerk’s office only in the names of the mortgagor and mortgagee. A lien instrument executed by a stranger to the real estate title cannot be found by a search of the indices based on recorded information. The requirement that the record contain a brief description of the real estate is not to afford a means whereby a purchaser might discover the existence of an encumbrance, but simply to enable him to determine after he finds a mortgage whether it affects the real estate in which he is interested. A description of the realty is of no assistance in finding the mortgage unless one uses a tract index. The clerk does not maintain such an index, and whether a local abstract company may have one cannot be regarded as material. A person acquiring an interest in land can be expected to investigate the records only with the aid of facilities that are available to all, and our rules of constructive notice should not be predicated upon the assumption that he has access to and will use the tract indices maintained by a private company.
*517It is argued that the above mentioned rule can have no application here because petitioner is attempting to enforce a lien on a chattel and Sheaner is no stranger to that title. This merely assumes that the majority is correct in its construction of the statute. Affidavits filed by both petitioner and respondent state that the heater was installed in the premises, which can only mean that the gas and hot and cold water pipes were connected thereto. We are thus concerned with the rights of the parties in an article attached to, and which apparently was a part of, the real estate. As between petitioner and Sheaner, and by virtue of their contract, the heater remained a chattel. But respondent in buying the premises was entitled to assume that the heater was part of the realty and would pass to him under his deed unless he is charged with notice of petitioner’s mortgage.
The Legislature evidently realized that the facilities for searching the chattel mortgage records on realty would be no different from those available for investigating the deed and mortgage records, and decided that rules governing the efficacy of recorded deeds and mortgages as notice should be applied to chattel mortgages registered under the statute. It did not merely declare, as the majority opinion now holds, that the recorded mortgage shall be notice to all persons dealing with the chattel or realty, but added a significant qualification. The statute provides that the registration of the lien instrument shall be notice to all persons “the same as if recorded at length in the deed records or records of mortgages on realty of the county where the real estate is situated.” Since instruments covered by the statute are not to be recorded in the deed or mortgage records, I agree with the Court of Civil Appeals that the lawmakers must have meant that the registered mortgage would afford the same notice as a deed or mortgage on real estate when recorded at length in the appropriate record.
The majority holding places upon anyone dealing with real estate the burden of turning through the records page by page to see whether they contain an instrument describing the real estate in which he is interested. Even if the statute were silent on the matter, it would be difficult to believe that the Legislature intended to require a prospective purchaser of land to examine the real estate description in every chattel mortgage on realty filed in his county. The majority seem to reason that we cannot be concerned with the burden which is thus placed upon the purchaser, because the Legislature wished to protect the chattel mortgagee at all costs. The emergency clause does indicate an intention to enact an adequate law, but this can only *518mean a law which would afford the mortgagee such protection as the Legislature thought he should have. It will be noted that the majority opinion and holding give no meaning or effect whatsoever to the language of the statute quoted above. To afford the mortgagee the protection which this Court thinks he should have, it has thus been necessary to strike out a portion of the statute which the Legislature regarded as adequate.
I would affirm the judgment of the Court of Civil Appeals.
Opinion delivered July 10, 1957.
Rehearing overruled October 2, 1957.
Vernon’s Ann. Texas Civ. Stat.