Lessee of Moore v. Vance

1 Ohio 1

• Court: Ohio Supreme Court
• Decided: August 15, 1821
• Status: Published

Opinion

*Opinion of the court by

Judge Hitchcock.

The plaintiffs counsel insist upon a new trial upon two grounds.

1. That the deed from Dayton to Alexander Vance having no attesting witnesses, was not valid to pass the land under the then existing laws of the territory, and ought not to have been admitted in evidence.

2. That the court rejected evidence tending to show that the letter of attorney from Dayton to Joseph Vance was acknowledged by a judge of the territory northwest of the river Ohio without his jurisdiction.

If the counsel for the plaintiff be correct upon either ground, a new trial must be granted.

When the question was first presented, the court entertained strong doubts of the validity of the deed from Dayton to Alexander Vance. The first question presented to us is, whether the ordinance of Congress of 1787 was virtually repealed by the adopted law of 1795 and of the territoral legislature of 1802. It is very clear from the ordinance, that two witnesses are required to a deed for the conveyance of lands, and three’to a will, and that these provisions remained in force until the governor and judges adopted a law upon the subject from one of the “ original states.” In 1795 the governor and judges of the territory adopted the law of Pennsylvania, passed in 1775, upon the subject of the “ execution, proof, acknowledgment, and record oí deeds.” The statute is entitled “ a law establishing a recorder’s office;” but the eighth section expressly provides for the execution of deeds within the territory.

The first section enacts “ that there shall be a recorder’s office.”

The second declares the effect of the word “ grant,” etc.

The third punishes the forgery of acknowledgments, etc.

The fourth and fifth provide for entering satisfaction of mortgages, and a penalty against the mortgagor who shall neglect to comply with the act. '

The sixth and seventh point out how recorders shall be appointed, etc.

The eighth, which is the material one under consideration, enacts “ that all deeds and conveyances which shall be made within this territory, of or concerning any lands, tenements, or hereditaments therein, or whereby the same may be in any wise affected, in law or equity, shall be acknowledged by one of the grantors or bargainers, or proved by one or more of the subscribing witnesses to such 'deed, before one of the judges of the General Court, or before one of the *justicesof the Court of Common Pleas, where the lands conveyed do lie, and shall be recorded in the recorder’s office where such lands or hereditaments are lying and being, within twelve months after the execution of such deeds or conveyances,” etc.

From the moment this law was adopted and published, the force of the ordinance ceased, and the law became itself the rule as to the execution, acknowledgment, and proof of deeds conveying lands in the territory. Had this law remained silent as to the execution, proof, and acknowledgment of deeds, and only established a recorder’s office and regulated his duties, a deed would have been void without an attestation by two witnesses; but it is a well settled rule that when a law enacts a thing to be done different from the same thing required by a former law, the first thereby becomes repealed without any direct expression of such intention by the law-making power. It surely was never intended that the ordinance of 1787 and the statute under consideration should have a concurrent efficacy. Upon general principles of universal law an old statute gives place to a new one. 1 Blac. C. 89. But it is scarcely necessary to enter into a minute discussion of the provisions of the law of 1795, as the territorial act of 1802 repealed all laws and acts coming within its purview. The third section of this act differs little from the eighth section of that of 1795, except its terms are more broad and comprehensive. The latter clause in the third section is in these words: “ And all deeds and conveyances, which shall be made and executed within this territory, for the conveyance of any lands, tenements, or hereditaments situate within the same, whereby sneh lands, tenements, or hereditaments shall be conveyed, affected, or incumbered, shall be acknowledged or proved and recorded.”

It would be difficult, if not impossible, to express an alternative in more unequivocal terms. We are of opinion that both proof and acknowledgment of a deed, to make it a valid conveyance, are not necessary, and that by the terms of the act, either would be sufficient to admit the deed to record. The general terms of the statute, by the repeal of the law of 1795, either left the proof to the common law, the jus gentium, or the repealing clause- did not extend to the mode prescribed by the former act. If the latter construction be correct, which is not admitted, the proof must be made by “ one or more of the subscribing witnesses.” The court is inclined to consider the eighth section of the law of 1795 as coming within the purview of the act of 1802. It is, however, not deemed necessary to settle the construction of this part of the statute, as the subject is not directly before the court.

*If to give the deed validity no proof by subscribing witnesses was necessary, it would seem naturally to follow that the act under consideration intended to dispense with their attestation; for it would be an idle and empty form to require an attestation without also requiring proof. It can not be denied, that an exemplification of a deed, legally executed and admitted to record, is good evidence in all eases; nor do the counsel for plaintiff press very strongly the proposition that under the laws of the territory of 1802, a deed could not be admitted to record until it was proved by one or more of the subscribing witnesses, and acknowledged. The language of the act is too clear to be misunderstood. Now admitting that at any time after the publication of the law of 1795 until the year 1805, in order to admit a domestic deed to record, it was only necessary to have it acknowledged by the grantor before the proper officer without any proof; and also that an exemplification from the records was good evidence for the grantor: it would seem to be a plain consequence that an attestation would be form without substance, a ceremony without utility. The appearance of names could never lessen the-dangers of perjury; nor would they be any protection against fraudulent or clandestine conveyances. Following the construction of the court, the statutes have guarded with sufficient vigilance real estate in the territory. To the ordinary evidence of contract, the signature and seal of the party and persons that maybe present at its execution, is superadded the certificate of a sworn officer of the territory, that the grantor acknowledged in his presence the instrument to be his deed.

But it is said, in order to give validity to deeds of conveyance, almost every state in the Union requires the act to be done in the presence of witnesses who must attest their execution. It will be admitted that every sovereignty has right to prescribe rules to regulate the transfer of property with respect to real estates; the object of the statutes seems to be, to give solemnity and notoriety to the transaction, and to preserve the evidence of it. This is evident from the ceremonies observed at the feodal investiture down to the present mode of requiring attestation and acknowledgment. At first our ancestors deemed feodal donations sufficiently formal and notorious by livery of seisin without deed. 1 Coke on Litt. 490; 2 Fonb. 83. The next mode for conveying lands was by deed sealed and delivered. Neither signature nor subscribing witnesses were required until the reign of Edward IV. After that time the parties began to write their names over or near the seal. 2 Bla. 308, note. *In the reign of Henry VIII. they are signed by the parties, but not by the witnesses; but in the next reign the practice commenced for witnesses to subscribe their names. When the law-makers in this country speak of a deed it must be taken in a technical sense, as understood at common law; that is, a writing sealed and delivered by the parties. Should the legislature merely declare that lands should pass by deed, the court would have no hesitation in saying, that neither attestation nor acknowledgment would be necessary. To preserve the evidence of the transaction and give it solemnity, the legislature might require attestation and acknowledgment, or they might dispense with one oh either of them.

It appears to the court, on carefully comparing the laws of 1795 and 1802, with the ordinance of Congress of 1787, that the former virtually repealed the latter, so far as respects the execution, proof, and acknowledgment of deeds; that an acknowledgment before the proper officer superseded the necessity of calling attesting witnesses; and that the deed under consideration was legally admitted to record, and operated as notico to the lessor of the plaintiff, who purchased subsequently and therefore took nothing by his deed.

If doubts existed as to the construction, we should pause before we should make a decision against a practice which is admitted to be uniform from the publication of the law of 1795, until altered by an act of the general assembly of this state in 1805. It would create irremediable mischief to disturb the settled custom of the territory as to the evidence of title; nor would the court do it, unless it was manifestly founded upon an erroneous construction of the laws in force. The provisions of a statute ought to receive such reasonable construction, if the words and subject matter will admit of it, as that the existing rights of the public or of individuals be not infringed. 2 Mass. 146. It is also a rule that they be so construed that no man who is innocent shall be en-damaged. 1 Inst. 611. These liberal maxims seem fully recognized by the Supreme Court of the United States, in the case of McKeen v. Delancey’s lessee. Chief Justice Marshall, in delivering the opinion of the court, says, “ In construing a statute of a state on which land titles depend, infinite mischief would ensue should this court observe a different rule from that which had long been established in the state.” The court are, therefore, of opinion that upon the first point the plaintiff is not entitled to a new trial.

2. But the counsel of the plaintiff insist that the court erred in rejecting testimony tending to show that the officer before whom *the letter of attorney from Dayton to J. Vance purported to be acknowledged, was out ot the territory at the time, and that the acknowledgment is consequently void; and they rely upon the case of Jackson, ex dem. Wyckoff, v. Humphreys, 1 Johns. 498. It might well be questioned whether the testimony, if admitted, would have availed the plaintiff; but it is the province of the jury to decide upon the effect of testimony — of the court the question of competency.

The principal reason which appears to have governed the court in that decision was, that the oath administered in Canada, by an officer of that state, was extrajudicial and void, and the witness could not be indicted for perjury in case he swore false. This reason is not applicable to the case under consideration. Judge Symmes was not entirely in a foreign jurisdiction. He was an officer of the United States; and it might admit of doubt, whether, if the fact assumed had been conclusively proved, the act of acknowledgment would not have been completely valid. It docs not, however seem necessarily to follow that because the witness could not be indicted for perjury, that therefore the oath was of no validity; for it is clear from the case cited from 8 East, 322, that although the witness could not be indicted for perjury he could be made answerable for a misdemeanor, and therefore the oath was neither “extrajudicial,” nor “void.” This court pays great respect to the cases adjudged by the Supreme Court of New York; but when by chance we find one against the current of authorities, we must pause before we adopt it as settled law. We find, by two subsequent adjudications of the same court, the case of Jackson v. Humphreys substantially overruled, and we are rather inclined to adopt the latter decisions. The court think the last adjudged cases are more liberal and consonant to reason; for it would be strange, indeed, for a court to give more credit to a foreign officer and an alien than one of our own citizens, clothed with authority by our own laws. It would require no ordinary effort to reconcile these decisions.

Independent of this, that was matter of proof in which might be involved a serious question under the criminal laws of New York; here no such question can possibly ai’ise. It is presumed that a judge taking the acknowledgment of a deed for fraudulent purposes' or knowing it to be forged, within his particular jurisdiction, or another state, would, in either ease, subject himself to the same punishment; and it is equally certain that one who, by fraudulent devices or forgery, should procure an acknowledgment, whether in or out of the territory, would be equally liable to punishment.

'-'"'There appears some force in the remark, that a judge empowered to take the acknowledgment of deeds rather acts as a general commissioner of the law than in a judicial capacity; and that this is an authority which accompanies his person and is not limited and confined to juridical jurisdiction. Be this as it may, we are inclined to the opinion that one of the judges of the United States empowered by law to take the acknowledgment of deeds conveying lands, may, in any part of the Union, take such acknowledgments, not to affect lands in a foreign jurisdiction, but in the territory over which his powers extend.

Let judgment be entered on the verdict;