dissenting, with whom ROSE, Justice, Retired, joins.
I dissent.
In this case there are four deeds which are relevant.
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The only conflict in the four deeds is between the Trapp and Ballhorn deeds as shown by the crosshatched area above. The Trapp deed states that it is a conveyance of land beginning 643 feet west of the SE corner of tract 19 and includes 297.45 feet along the south border west from the beginning point. This in no way conflicts with the Hammond or Condos deeds because those deeds grant a total of 643 feet of the south border, west from the SE corner. The Trapp deed does conflict with the Ballhorn deed. The Ballhorn deed is measured from the NW corner of the tract (contrary to the other deeds) and conveys 288.8 feet of the south border from a road bordering on the west of tract 19. Because the tract contains 28.8 feet less on the south border than was assumed, the Trapp and Ballhorn deeds attempt to convey the same strip of land, i.e. the strip between 911.6 and 940.4 feet from the SE corner.
As between the Ballhoms and the Trapps, the Ballhoms’ conveyance was first made and first recorded; it should prevail, and the west 28.8 feet of the Trapp *833conveyance should be held void and pass no title to the Trapps.
This result, based on the conflicting deeds, obviates any need for us to rely on the “last grantee rule” argued by the parties. We are at liberty to adopt this approach, which the parties do not argue, although we are not required to do so. State Highway Commission v. Triangle Development Company, Wyo., 371 P.2d 408 (1962). As Chief Justice Blume stated in Chicago & N.W. Ry. Co. v. City of Riverton, 70 Wyo. 119, 247 P.2d 660, 663 (1952),
“were we to limit our decisions strictly and literally to the arguments advanced by counsel in a case, the law in this jurisdiction would be in a sorry state.” “There is no reason to keep secret the proper law applicable to a case just because overlooked.” Meuse-Rhine-Ijssel Cattle Breeders of Canada LTD v. Y-Tex Corporation, Wyo., 590 P.2d 1306, 1309 (1979).
Even if the majority and the parties were correct that the “last grantee rule” applies, the Trapps, the last to purchase, should be considered the last grantees and should suffer the loss. The majority places the burden of the shortage upon the successors to the Hammonds by identifying the Ham-monds as the last grantees under the recording statute, § 34-1-120, W.S.1977. But the recording statute should not have been applied as between the Trapps and Condoses or the Trapps and Hammonds. Section 34-1-120, W.S.1977, provides:
“Every conveyance of real estate within this state, hereafter made, which shall not' be recorded as required by law, shall be void, as against any subsequent purchaser or purchasers in good faith and for a valuable consideration of the same real estate or any portion thereof, whose conveyance shall be first duly recorded.” (Emphasis added.)
The statute only voids conveyances of “the same real estate or any portion thereof” as against subsequent purchasers who record first. By placing the burden upon the Hammonds, the court has used the statute to void a portion of a conveyance which was never one of a number of conveyances of “the same real estate.” The strip of land between the Trapps and Ballhorns, described above, is the only real estate which was conveyed twice. As to this strip, the Trapps were actually subsequent purchasers who recorded their deed after the Ballhorns (i.e. prior purchasers of the same strip).
The opinion of the court states that placing the shortage upon the Hammonds’ successors is fair because the Hammonds’ failure to record their deed prevented the other three grantees from determining that there was insufficient land to satisfy all conveyances. This opinion is incorrect. The Trapp deed describes a beginning point 643 feet west of the SE corner and encompasses another 297.45 feet further west. Recording the two deeds east of the Trapp conveyance would have told them no more than they already knew, i.e. that their property began 643 feet west of the SE corner and proceeded west another 297.45 feet. A review of these deeds would have disclosed no conflict or conveyance of the same real estate. On the other hand, if the Trapps had reviewed the Ballhorn deed and had commissioned a survey of the tract, they would have discovered that the Ballhorn deed conflicted with their deed and' involved a conveyance of the same parcel of land. The Trapps’ surveyor would have begun his measurements at the SE and NW comers of the entire tract, the starting points of the descriptions in the deeds, and he would have caught the error.
While the majority concedes that the recording act, by its terms, does not fix the priorities between the Trapps’ and the Hammonds’ successors, the majority nevertheless concludes that the policies of the recording act are advanced if the Ham-monds’ successors are punished. One of the policies offered by the majority is “to avoid losses such as this.” But this policy would not be advanced in this case because everyone concedes that a timely recording by the Hammonds could not have changed *834the Trapps’ decision to purchase and therefore would not have avoided this loss.
Another policy offered by the majority is “to protect those who record first.” One must ask, however, who is this “first” recorder protected from? The recording act is merely intended to
“impart to a subsequent purchaser notice of instruments which affect the title to a specific tract of land in which the subsequent purchaser is interested at the time.” (Emphasis by the Kansas Supreme Court.) Luthi v. Evans, 223 Kan. 622, 576 P.2d 1064, 1070 (1978).
“[A]s to priority between competing interests to the same property from the same grantor, the constructive notice afforded by the deed’s recordation is sufficient to give that deed priority over any competing but after-acquired interests.” (Emphasis added.) 6A R. Powell, Powell on Real Property 11904[3], at 82-13 to 82-14 (1984).
Those who record first are only to be protected from others who have acquired a competing interest in the same land.
Finally, the majority states that the recording act is designed to establish certainty in records and that this purpose is advanced by the holding in this case. While certainty in records is a purpose of the act, we should not create extra-statutory sanctions to advance that purpose. Our recording act creates a forfeiture sanction which is to be applied only in limited circumstances. Until a conflicting transaction has occurred involving the same piece of land, the grantee has perfectly valid title and should not be forced to relinquish any of his property even if he does not immediately record.
“Notwithstanding the important benefits achieved by recordation, title to real property may be transferred by delivery of a deed without recording.” 6A Powell, supra, at 82-14.
The act does not force a purchaser to forfeit some of his tract just because he records late, and we should not create such a novel rule. Even under the majority’s “last grantee” rule, the recording act should not be applied. The Trapps were the last to purchase as against all the other parties and should lose under the theory of “first in time, first in right.”
I would reverse.