dissenting: I respectfully set forth my reasons for dissent. I am convinced that in those counties where a numerical index is maintained, the majority opinion has the practical effect of:
1) Making the register of deeds search the records to ascertain if the grantor of a “Mother Hubbard” instrument owns any real estate, owns any estate or interest created by an oil and gas lease, or is named in an instrument whereby any real estate may be affected; and requiring the registrar to obtain the. legal description contained therein and enter it in the numerical index; or
2) Making the numerical index unreliable and requiring both the numerical index and general index (direct and inverted) to be checked in every instance.
I cannot believe the legislature ever intended the register of deeds to have such responsibility, nor do I believe it intended the numerical index to become another index to check in addition to the general index and the receiving book.
Perhaps a brief review of the operation in the office of the register of deeds and a brief history of the development of our law here in Kansas would be helpful in understanding the dilemma the appellee finds himself in through no fault of his own.
The concept of recording instruments affecting real estate originated in Massachusetts and contemplated a minimum of transactions. There were no indexes. As the number of transactions increased, it soon became necessary to start an index. Kansas adopted an indexing system in 1868 which is basically the same system used today. When the instrument is delivered to the office of the register of deeds, it is immediately entered into the “receiving book” and the day, hour and minute of its receipt is entered on the instrument, as is the fee received for recording the same (see K.S.A. 19-1206). The register of deeds then immediately enters into the receiving book the time of receipt, the name of the grantor, the name of the grantee and the fee received. Later, when *125the instrument is recorded, the remaining column showing “to whom delivered” is completed. The receiving book is important, as it imparts notice to interested parties during the time it takes for the register of deeds to cause a copy of the instrument to be made in the appropriate recording book. Originally, the instrument was copied by hand into the appropriate record. Now, in the vast majority of counties, reproduction equipment of some kind, including microfilm, is used.
A number of record books are maintained, including those for recording deeds, mortgages, oil and gas and miscellaneous instruments.
After an instrument has been recorded, it is indexed so that it can be located. It would be sheer folly to require one in even the smallest counties to locate a given instrument or follow a chain of title without an index system. After the instrument is indexed, it is returned to the proper party and the receiving book no longer has any value in that an abstractor or a reasonable person would not check it other than to see what instruments have not yet been recorded and indexed.
The book and page number of the book in which the instrument is recorded is entered in the indexing system. Originally, a general index was all that was mandatory, and is the only system used in three counties today. The general index consists of direct and inverted books (see K.S.A. 19-1205). Both the direct and inverted indexes contain the identical information with only one distinguishing feature. Both indexes are in alphabetical form. In the direct index, the grantor is listed first; in the inverted index, the grantee is listed first. Thus, one may examine a chain of title either from its present owner back to its original owner by starting with the inverted general index, or, if one knows the name of the original owner, the chain of title may be examined by starting with the direct index. Each general index has seven columns, only one of which is of importance in this case. The columns show the time of receipt, names of grantees, names of grantors, nature of instrument, volume and page where recorded, remarks, and description of tract. It is the column “description of tract” which plays an important part in the injustice the majority has inflicted upon appellee in this case. Just how will be described in detail hereinafter.
The general indexes are time consuming to use and require the *126utmost care and concentration in order to not overlook an instrument which might affect the title.
Some practical person concluded that it would be just as simple to index by tracts of land so that all of the instruments affecting a particular piece of real estate would be indexed under a legal description rather than alphabetically by grantor or grantee. The legislature enacted what is now K.S.A. 19-1209 and gave the county commissioners of each county authority to order the register of deeds to start a numerical index. Of the 105 counties in Kansas, all but three have done so.
The numerical index was checked by appellee and appellant’s instrument was not entered therein. Obviously, under the facts of this case, there was no way the instrument could be entered unless the register of deeds was willing and had the personnel to check the records to ascertain what “interest of whatsoever nature in all working interests and overriding royalty interest in all Oil and Gas Leases in Coffey County, Kansas, owned by them” and then to enter the instrument under the correct legal description in the numerical index. The majority opinion does not suggest that the register of deeds has that duty, and surely the legislature never intended that result. It then follows that in Kansas one may no longer rely on the numerical index and one must check both the numerical and general indexes.
In this case, even by checking both the numerical and general indexes, appellee would not have discovered the instrument under which appellant claims its interest. Appellee’s inability to find the instrument is the responsibility, or fault, of appellant. Appellant caused an instrument to be drawn assigning oil and gas leases. Seven (7) specifically enumerated oil and gas leases were listed therein. Each legal description was set out in a separate paragraph after the words, “in and to the following Oil and Gas Leases located in Coffey County, Kansas, more particularly specified as follows, to-wit. . . .” Each legal description contained the date of the particular lease, the name of the lessor and lessee; a proper legal description, including section, township and range; and the book and page of recordation of the original instrument. NOTHING was set forth concerning any other real estate, or interests of any kind in oil and gas leases, in the description portion of the instrument.
Then, as is set forth in the majority opinion, appellant inserted *127in the warranty clause of the instrument a “Mother Hubbard” clause purporting to convey any other interest in oil and gas leases in Coffey county.
When the register of deeds indexed the instrument, it could not be entered in the numerical index except under the seven legal descriptions set forth. When information was entered in the general indexes, both direct and inverted, the seven legal descriptions were entered in the column “description of Tract.” The “Mother Hubbard” clause was not shown. This is understandable, as most people who work with real estate do not customarily read the warranty clause to ascertain what real estate is affected thereby.
Appellee personally checked the tract index prior to leasing the property and caused an abstract to be built after appellant claimed an interest. The abstract did not show appellant’s purported interest. An examination of the indexes did not give notice to appellee. Where the index showed a description to real estate for which the abstractor was not searching, there would have been no reason for the abstractor to have examined it further. Hollinger v. Imperial Warehouse Co., 122 Kan. 709, 253 Pac. 215.
In 1882, at a time when the pace of life was more leisurely and simple, Kansas chose to adopt a rule which, simply stated, said every instrument in writing which conveys real estate, and is properly acknowledged and certified, imparts notice from the time it is filed with the register of deeds whether or not the deed is recorded or indexed. The court chose to commit Kansas to that position despite the fact the jury had found in the case that the grantee had knowledge of an earlier deed wherein the grantor had transferred his interest in the same real estate and she could not be a bona fide purchaser. Poplin v. Mundell, 27 Kan. 138 (1882). Poplin has been cited with approval on a number of occasions and would appear to be clearly the law in Kansas.
The majority view in other jurisdictions would appear to be that only when an instrument is properly recorded and indexed will it operate as notice. In those jurisdictions, constructive notice would place the burden on the person whose duty it is to have an instrument recorded, as between that person and a subsequent bona fide purchaser, to see that all of the prerequisites of a valid and complete recordation are complied with. One who files an instrument for record has it in his power to examine the records to *128insure that the instrument was accurately recorded and indexed so as to impart notice. Prospective purchasers or creditors cannot protect themselves from an instrument which is not properly recorded and indexed. See McDermott, Land Titles and Land Law § 1.21E; 66 Am. Jur. 2d, Records and Recording Laws § 95, p. 398, and § 130, p. 420; 26 C.J.S., Deeds § 71; 8 Thompson, Real Property § 4306, p. 320, 324 n. 97, 327 n. 17 (1963); 8A Thompson, Real Property § 4351, p. 58 (1963).
In view of this state’s operation for nearly 100 years under the rules expressed in Poplin, supra, I would not place the burden of seeing that an instrument is properly recorded and indexed on the person offering it for recordation. To do so would be disruptive of commerce and create havoc.
I would hold that where an instrument in writing conveys real estate, any estate or interest created by an oil and gas lease, or whereby any real estate may be affected, and the instrument does not contain a full, complete and accurate legal description therein and as a result thereof is not fully and accurately recorded and indexed, constructive notice would not be imparted to a subsequent bona fide purchaser. Such a holding would not be contrary to or out of harmony with any of the decisions cited in the majority opinion.
It does not seem unreasonable to hold a person responsible who offers an instrument containing a “Mother Hubbard” clause for recordation to see that it is properly recorded and indexed. This is particularly so where the clause is buried in the warranty clause of the instrument. There is authority to that effect.
“The duty of deciding against which block a deed is to be indexed is not on the county clerk but on the person offering the deed for record, and where the indorsement on a deed offered for record does not specify the proper block against which the deed is to be indexed, the consequences are the fault of the grantee who offers the deed for record.” 26 C.J.S., Deeds § 78, p. 805.
The view that responsibility for inaccuracy rests solely on the recording officer and the application of that view is discussed in 66 Am. Jur. 2d, Records and Recording Laws § 133, p. 422, where it is concluded:
“But while such holder is exempt from prejudice by the misconduct or neglect of the clerk, the exemption is not extended to the holder’s own acts that through design or negligence affected others. Thus, if through any fault of the grantee an instrument is not actually recorded or a defective record is made, then subsequent *129purchasers are not charged with notice of the existence of the instrument.”
McDermott, Land Titles and Land Law § 3.25C, p. 66, states:
“A deed having a description such as ‘all my land’ may be an effective conveyance, although it does not have priority over a previous unrecorded conveyance of a specific part.”
It is important to note that even in many jurisdictions holding as Kansas does, that the filing of an instrument operates as a record of it and that it imparts constructive notice from the time of filing of the actual contents of the deed, the rule is limited to situations where both the grantee and the subsequent purchaser who relied on the erroneous record are innocent of any fault or negligence.
“. . . Where the grantee has occasioned the error, the cases place the risk of loss on him. If a mortgage is recorded in a deed record through mistake of the mortgagee, it is not constructive notice.
“If the grantee is himself guilty of any negligence or irregularity with reference to the recording of his deed, whereby his deed does not appear of record, he cannot claim priority as against a subsequent bona fide purchaser.” 8A Thompson, Real Property § 4351, pp. 58-59.
I find no fault with syllabi 1 and 2 of the majority opinion. This has long been the law in Kansas. The “Mother Hubbard” clauses are seldom used, but were found to be convenient for deathbed transfers and in situations where time was of the essence and information concerning legal descriptions was not available.
I have been unable to find a case construing a “Mother Hubbard” clause which is placed in the middle of the warranty clause. Normally, the clause is inserted where the legal description is found. The fact a “Mother Hubbard” clause passes title as between grantor-grantee should not operate to defeat appellee’s title on the facts of this case.
Appellant was in a position to see that a legal description was set forth in the instrument, particularly somewhere other than in the middle of the warranty clause, so as to give notice in the usual and customary manner. Appellee, who examined the records, secured an abstract and had the abstract examined, was guilty of no dereliction. The instrument under which appellant claimed an interest simply did not appear in the chain of title which appellee was bound to search and hence imparted no notice. The loss between appellee and appellant should be borne by appellant *130who was responsible for the buried “Mother Hubbard” clause. I would affirm the trial court.
Harman, C.J., joins in the foregoing dissent.