Hastings v. Vaughn

5 Cal. 315, 1855 Cal. LEXIS 125

• Court: California Supreme Court
• Decided: July 1, 1855
• Status: Published

Opinion

Heydenfeldt, J., delivered the opinion of the Court-.

Murray, C. J., and Bryan, J., concurred.

The only question necessary to be examined, is the exclusion from the jury of the deed made by Cooper to his wife and children; the Court deciding that the deed was void, because, first, it was not executed with a seal by the grantor; second; that the record did not impart notice, for the want of the seal of the officer before whom it was acknowledged.

To these objections to the deed, the respondent adds, that the deed was not delivered.

In Connolly v. Goodwin & Co., July Term, 1855, we decided that an impression upon paper constituted a good seal. We see no good reason why such impression should not be made with a pen, as well as with what is technically a stamp. The object is to give character to the instrument, and enable it to be distinguished and recognized for that which it was intended to be. This is as well effected by a scrawl, with the word seal written within it, or with the initials L. S., a common mode resorted to in copying sealed instruments. The authorities cited to the contrary, we look upon as founded upon too purely technical reasons, and are unsound expositions of the common law.

In regard to the question of delivery, the authorities are conflicting. In Maynard v. Maynard, 10 Mass., the execution and delivery for the purpose of registration, is held not to be a delivery.

In Barns v. Hatch, 3 N. H., the same act was held to be no delivery, where it was coupled with the declaration that it was made tti prevent the land from being taken to pay an unjust debt. The correct doctrine, we think, is laid down in Doe on the demise of Gamons v. Knight, 5 Barn. and Cres., 673. There, it was left to the jury to decide as to the intention of the grantor. Many authorities are cited, and much good reasoning brought out, in support of the position that a deed will be operative although never parted with by the person who executed it. In other words, that delivery depends more upon intention, than upon the mode of fulfilling the intention. That delivery is a question of fact, to be determined by the jury, is, we think, undeniable, and has been so held, not only in the case above cited, but also in Lindsay v. Lindsay, 11 Verm., 521; Vanhook v. Barnett, 4 Dev., 268; Hannah v. Swainer, 8 Watts, 9; and many others.

The remaining question, is as to the want of the seal of the officer taking the acknowledgment. The statute requires it, as a preliminary to the fitness of the deed for registration, and without conforming strictly to the statute, the registration will not have character to change constructive notice. But although it may not have been entitled to registration, this, does not make the deed void. It is still good as between the parties, and as to all the world, except subsequent purchasers without notice. It should have been allowed in evidence, with instructions to the jury as to its effect in giving notice to third persons. If this was the only reason given for rejecting the deed, it would be unnecessary to reverse the judgment; but as it was also held to be void for want of a seal, it was useless for the defendants to attempt to prove that the plaintiff had actual notice of the deed, which possibly they may be able to do.

For this reason, the judgment is reversed, and the cause remanded.