On Petition for Rehearing.
Myers, C. J.Three principal positions are taken by counsel, as to the original opinion.
27. (1) That the court was in error in holding that the conveyance by Dewey tó Susan W. Sinclair was in legal effect a conveyance to Joseph F. Sinclair and Proudfoot, and in holding in that particular that §4024 Bums 1908, §2981 R. S. 1881, applied, and insisting that the conveyance falls within §§4017, 4019 Burns 1908, §§2974, 2976 R. S. 1881, because it was found that by oral agreement “Susan W. Sinclair was to take the title to said land in trust for Joseph F. Sinclair and the said William S. Proudfoot,” and “that it was so taken without fraudulent intent to cheat, hinder, or delay the creditors of said Joseph F. Sinclair, or any other person whomsoever, and without any fraudulent intent whatever.” The deed did not on its face disclose a holding by Susan W. Sinclair as trustee, nor that the title was held for the use or benefit of any other person.
It had been held in Jackson v. Myers (1889), 120 Ind. 504, 22 N. E. 90, 23 N. E. 86, and in the same case on a second appeal, Myers v. Jackson (1893), 135 Ind. 136, 34 N. E. 810, and in Greenwood Bldg., etc., Assn. v. Stanton (1902), 28 Ind. App. 548, 63 N. E. 574, that §4024, supra, applied where no trustee, or beneficiary, was named, and upon a more careful examination we conclude that they must each be disapproved upon that point. It is impossible that the statute can execute the use where a naked trustee is named, and no beneficiary is named, because it is impossible to discover the beneficiary therefrom. Such a deed might give notice of a holding not in the grantee’s own right, but for an undisclosed beneficiary, but the statute cannot execute the use for lack of disclosure of the beneficiary. The' *134matter is best put by Cruise when he says in his Digest of Real Property, “A trust therefore is a use not executed by the statute of 27 Henry VIII.” 1 Cruise, Real Property 458.
No one would seriously contend that a title held as here disclosed, was not the subject of levy and sale as the property of Sinclair and Proudfoot, or that its sale as the property of Susan Sinclair could not have been enjoined. Cox v. Arnsmann (1881), 76 Ind. 210; Watkins v. Jones (1867), 28 Ind. 12; Glidewell v. Spaugh (1866), 26 Ind. 319; Catterson v. Hall (1906), 37 Ind. App. 341, 76 N. E. 889; Greenwood Bldg., etc., Assn. v. Stanton, supra.
The legal effect is therefore the same in either case, that the holding was wholly for the benefit of Joseph P. Sinclair and William S. Proudfoot, under §4019, supra, and the original opinion is as to that point so modified.
6. (2) That the court erred in holding that the record entry book memoranda of the Libbey deed was not constructive notice of its existence, sufficient to put all upon inquiry as to the contents of the deed in the miscellaneous record. It is urged in the brief that the question was not raised on the original briefs, and that appellants have had no opportunity to brief, and argue that question. On oral argument the query was suggested by the court as to the force of the entry book memoranda, and was there argued by counsel, and they were then granted time, and each filed extended briefs on the subject, but not until the inquiry came from the court to appellees, was there the slightest intimation from appellants, that the entry book memorandum constituted constructive notice of the Libbey trust deed. The act does not provide that the entry book, or mere registration constitutes notice. Under the English and Irish Registry Acts, it has been the rule of holding that the registry is intended to give priority according to time of registration, but that registry does not of itself import, or constitute notice. Ford *135v. White (1852), 16 Beav. 120; Underwood v. Courtown (1804), 2 Sch. & Lef. *41; Doswell v. Buchanan’s Exrs. (1831), 3 Leigh 365, 23 Am. Dec. 280. This would clearly he true in cases under our laws where priority of record constitutes priority of title, or lien, and in the absence of a statute making it notice. The general rule in this country, and the acknowledged rule in this State is, that it is the record of the instrument which imports notice in the absence of a statute making the memoranda of entry, or the index, notice of the instrument. Sowden & Co. v. Craig (1868), 26 Iowa 156, 96 Am. Dec. 125; Ely v. Wilcox (1866), 20 Wis. *523, 91 Am. Dec. 436, and note; Shepherd v. Burkhalter (1853), 13 Ga. 443, 58 Am. Dec. 523 and note; Davis v. Whitaker (1894), 114 N. C. 279, 19 S. E. 699, 41 Am. St. 793 and note; Koch v. West (1902), 118 Iowa 468, 92 N. W. 663, 96 Am. St. 394 and notes; 2 Pomeroy, Eq. Jurisp. §665; 1 Jones, Mortgages 518, and cases cited.
*1365. *135The case of Pringle v. Dunn (1875), 37 Wis. 449, 19 Am. Rep. 772, goes as far in its reasoning, in supporting appellants’ contention here, and farther than any case we have found, as to the force of the entry hook entry, an index required by statute being involved in that case; hut the decision is finally made to turn upon the question of the relation of the mortgage hack to the index, as to the time when it was recorded. The fact that the mortgage was not entitled to record for lack of witnesses, as well as the index, were held not to give notice, which is in effect our holding by the original opinion, viz., that when a deed is recorded, that recording relates hack to the entry hook as to the question of priority in recording, hut if the deed is not recorded in a proper record, or is not entitled to he recorded, so as to constitute notice, which is the usual holding, it certainly cannot he the law that recording in a record where deeds are not entitled to he recorded, can he of any greater efficacy than in the case put, and it is held without deviation in this State, that the record of an instrument not entitled to he *136recorded, as for want of acknowledgment, is not notice for any purpose, at least where not actually seen of record; therefore, much less can the entry hook he, and this is true, even though as between the parties the deed is good without acknowledgment, and there is no evidence, or finding, that Isaiah Lihhey saw either the entry or record, hut it is found that he was a purchaser, in good faith, without notice. Walter v. Hartwig (1886), 106 Ind. 123, 6 N. E. 5; Westerman v. Foster (1877), 57 Ind. 408; Deming v. State (1864), 23 Ind. 416; Kothe v. Krag-Reynolds Co. (1898), 20 Ind. App. 293, 50 N. E. 594; Brown v. Budd (1850), 2 Ind. *442; Lambert v. Morgan (1909), 110 Md. 1, 72 Atl. 407, 132 Am. St. 412, 17 Ann Cas. 439; note to Middletown v. Newport Hospital (1888), 1 L. R. A. 191, 192. And the same thing is true as to recording in the wrong record hook, where hy statute, filing for record is equivalent to actual recording, which is in effect our statute. Durrence v. Northern Nat. Bank, etc. (1903), 117 Ga. 385, 43 S. E. 726; Sawyer v. Adams (1836), 8 Vt. 172, 30 Am. Dec. 459; Gillig v. Maass (1863), 28 N. Y. 191; New York Life Ins. Co. v. White (1858), 17 N. Y. 469; Knickerbocker Trust Co. v. Penn Cordage Co. (1903), 65 N. J. Eq. 181, 55 Atl. 231; Parsons v. Lent (1881), 34 N. J. Eq. 67; Fisher v. Tunnard (1873), 25 La. Ann. 179; Bernard v. Benson (1910), 58 Wash. 191, 137 Am. St. 1051; People, ex rel., v. Burns (1910), 161 Mich. 169, 125 N. W. 740, 137 Am. St. 466; Grand Rapids Nat. Bank v. Ford (1906), 143 Mich. 402, 107 N. W. 76, 114 Am. St. 668, 8 Ann. Cas. 102; Prouty v. Marshall (1909), 225 Pa. St. 570, 74 Atl. 550, 25 L. R. A. (N. S.) 1211.
Our attention is directed to the cases of Farabee v. McKerrihan (1896), 172 Pa. St. 234, 33 Atl. 583, 51 Am. St. 734; Ivery v. Dawley (1905), 50 Fla. 537, 39 South 498, 7 Ann. Cas. 354 and note; and Swepson v. Exchange, etc., Bank (1882), 77 Term. 713. In the first case, there is *137a review of prior cases in that court, hut the opinion is grounded on the fact that there was no law in Pennsylvania directing where different kinds of instruments should be recorded, and was an express statute that entry in the indices of recorded deeds and mortgages “shall he notice.” In the Florida case, the opinion is grounded on the fact that prior to June 13, 1892, there was no statute directing where mortgages should he recorded, with little discussion on the subject, hut the note to 7 Ann. Cases, supra, points out the distinction we have made. In the Tennessee ease, the statute provided that the registry which corresponds to our entry, shall he notice to all the world from the time it is noted for record. It will at once he seen, that these cases can not apply to a case where there is no provision that the entry or registry for recording shall constitute notice, and where the statute prescribes where certain instruments shall he recorded.
28. 29. It is now for the first time urged that being a deed of trust, the Washington Lihhey deed is taken out of the category of conveyances required to he recorded in deed records, and therefore under the rule in Tipton Fire Co. v. Barnheisel (1883), 92 Ind. 88, it was proper to record it in the miscellaneous record. We should not he required under the rules to notice this claim, hut we will do so. In the Barnheisel case, the question arose over an admission of evidence, and the language used with respect to the recording acts, is shown by the opinion not to have been necessary to the decision of the point, or the cause. It is the established rule in this state that the transfer of any interest in real estate should he recorded in the deed records. That where there is no statute requiring recording in a particular record, an instrument may he recorded in a miscellaneous or other record, or where the index or the entry by statute constitutes notice, such record will he sufficient, is held in the Pennsylvania, *138Tennessee, and Florida cases cited, and in the cases in the note to 7 Ann. Cases, supra, but they do not reach the question before us.
2. (3) That the court was in error as to jurisdiction in the foreclosure proceedings as applied to this case, within the doctrine of Galpin v. Page (1873), 18 Wall. 350, 21 L. Ed. 959, and some other cases cited, notably, Fontaine v. Houston (1877), 58 Ind. 316; Pollard v. Wegener (1861), 13 Wis. *569; Adams v. Baldwin (1892), 49 Kan. 781, 31 Pac. 681; Johnson v. Hunter (1906), 147 Fed. 133, 77 C. C. A. 359; Brown v. St. Paul, etc., R. Co. (1888) , 38 Minn. 506, 38 N. W. 698; Chase v. Kaynor (1889) , 78 Iowa 449, 43 N. W. 269. The specific point made is, that presumptions in support of judgments of superior courts of general jurisdiction, are limited to jurisdiction over persons within their territorial jurisdictions, who can be reached by their process, and over proceedings which are according to the course of the common law.
As we held originally, and hold now, that no notice of the Libbey trust deed was given by the public records, and the finding is that Isaiah Libbey was a purchaser in good faith, that is, without notice, and Susan W. Sinclair was a party, and served with notice, the jurisdictional question may be said to be narrowed to the question of the presumptions, if any, to be indulged in case of service out of the State. True it is said in Galpin v. Page, supra, following the quotation originally made, “They (presumptions) have no place for consideration where the evidence is disclosed, or the averment is made. When, therefore, the record states the evidence, or makes an averment with reference to a jurisdictional fact, it will be understood to speak the truth on that point, and it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise stated.”
*13930. *138The case at bar as we conceive it, falls squarely within the rule. The record is entirely silent as to whether there *139was an affidavit of nonresidence, or whether under the statute of Illinois a notary public was authorized to administer oaths, and the court finds that the persons named, “have been duly served with summons out of the state,” and we know judicially that when the complaint was filed in the foreclosure proceedings, April 10, 1875, and when the summons issued, July 14, 1875, and when it was served, July 20, 1875, the Lake Circuit Court was not in session, and under the statute, no order of court for publication, or service of summons outside the State was necessary.
2. In Pollard v. Wegener, supra,, the case shows that the summons was not served in the manner required by the statute, and it was offered to be shown that service was not made in any form required by the statute. In Adams v. Baldwin, supra, it is affirmatively shown that no affidavit was filed. The same thing is true as to Johnson v. Hunter, supra. In Brown v. St. Paul, etc., R. Co., supra, following Barter v. Morris (1887), 37 Minn. 194, 33 N. W. 559, 5 Am. St. 836, in each case the affidavit is affirmatively shown not to have been filed in advance of the publication. In Chase v. Kaynor, supra, it is shown that no affidavit was filed. In the case of Galpin v. Page, supra, it is shown that the statute required an order of the court, in order to authorize publication or its equivalent service out of the state, and the publication was “without judicial authority or sanction.” It is true that the record was silent as to whether an affidavit had been filed, and in that respect the case is similar to the case at bar, but the cause went to the Supreme Court of the United States upon the express adjudication of the appellate court, that it was found affirmatively that no service of the s summons was ever made, which of itself distinguishes this case. In Fontaine v. Houston, supra, the affidavit was in the record showing on its face an utter failure to comply with the statute, and to the same effect is Eel River R. Co. v. State, *140ex rel. (1896), 143 Ind. 231, 42 N. E. 617, where the character of the service was shown. The doctrine of Evansville Ice, etc., Co. v. Winsor (1897), 148 Ind. 682, 48 N. E. 592, quoted in the original opinion, has been repeatedly reasserted. Ryan v. Rhodes (1906), 167 Ind. 121, 76 N. E. 249, 78 N. E. 330; Taylor v. Strayer (1906), 167 Ind. 23, 78 N. E. 236, 119 Am. St. 469; Whittenberger v. Bower (1902), 158 Ind. 673, 63 N. E. 307; Bruce v. Osgood (1899), 154 Ind. 375, 56 N. E. 25; Driver v. Driver (1899), 153 Ind. 88, 54 N. E. 389. In the latter case, it is said, “where jurisdiction of a court of general jurisdiction depends upon the finding of certain facts, that the exercise of jurisdiction implies the finding of those facts, but that such implication does not arise where there is an affirmative showing of all the facts or evidence upon which the action is taken, ’ ’ which is in exact harmony with Galpin v. Page, supra, and our former holding. For later cases in California, and Iowa as to the recitals in judgments of courts of general jurisdiction, and presumptions which arise upon collateral attack, see: Sharp v. Lumley (1868), 34 Cal. 611; Sharp v. Brunnings (1868), 35 Cal. 528; Quivey v. Porter (1869), 37 Cal. 458; Quivey v. Baker (1869), 37 Cal. 465; In re Davis’ Estate (1906), 151 Cal. 318, 86 Pac. 183, 121 Am. St. 105; Reily v. Lancaster (1870), 39 Cal. 354; Aultmam, v. McLean (1869), 27 Iowa 129; Ostby v. Secor (1903), 94 N. W. (Iowa) 571. And the great weight of authority not only in this State but elsewhere is as declared in the original opinion. See collection of cases, titles, “Judgment,” Century Dig. §§937-939, Decennial Dig. §§497-499.
Some criticism is made as to the application of subd. 3 §295 Burns 1908, §293 R. S. 1881, which was not made as plain to convey the court’s idea and meaning as was intended, and we have made our ideas more definite by modification.
Objection is also made to our application of §299 Bums 1908, §297 R. S. 1881. We pointed out in the original opón*141ion the immateriality of the various statutes of limitation, but in addition to what was said, no error was assigned, or presented in any way, as to the ruling on the demurrers to the answers of the statute of limitations, and it is pointed out that there was no reply of nonresidence of Gunzenhauser to the answers of the statute of limitations, to the eross-complaints, and no issue of law or fact was presented as to that question.
It is also urged that no title is shown in Gunzenhauser. Counsel are in error. The findings and the evidence deraign title in him by regular chain from one in possession, as the common source of title, through the foreclosure proceedings.
The court is still satisfied as to the correctness of its conclusions in the original opinion, as modified, and the petition for a rehearing is overruled.
Note.—Reported In 98 N. E. 37, 100 N. E. 376. See, also, under (1) 8 Cyc. 1083; (2, 9) 23 Cyc. 1078; (3) 39 Cyc. 234; (4, 5) 39 Cyc. 1728; (7) 27 Cyc. 1562; (10) 27 Cyc. 1466, 1689; (11) 27 Cyc. 974; (12) 27 Cyc. 975; (14) 39 Cyc. 1725; (15) 38 Cyc. 1978; (16) 25 Cyc. 1030; (19) 1 Cyc. 1125; (20) 27 Cyc. 1820; (21) 23 Cyc. 1229; (22) 25 Cyc. 1022; (25) 39 Cyc. 1703; (26) 23 Cyc. 901; (27) 89 Cyc. 121; (30) 16 Cyc. 911. As to the doctrine of resulting trusts, see 51 Am. Dec. 751; 127 Am. St. 252. As to the effect of the defective recording of instruments upon the rights of third persons, see 96 Am. St. 397. On the question whether a deed absolute on its face but intended as a mortgage, conveys the legal title, see 11 L. R. A. (N. S.) 209. As to the law governing covenant in deed or mortgage of real property, see 17 L. R. A. (N. S.) 1094. For a discussion of the record of an instrument out of the line of title as constructive notice, see 18 Ann. Cas. 13.