The opinion of the Court was drawn up by
WhitmaN C. J.
The plaintiff claims dower in a certain estate, of which her late husband, Robert Sellars, deceased, [504]*504was, when alive, and after her intermarriage with him, seized and possessed in fee.
The defence is, that Sellars, before his decease, conveyed the estate in fee and in mortgage to one Wardwell, after the decease of whom the mortgage was, by his executors, assigned to Messrs. Howard & Hale, who had before purchased the right in equity of redeeming the same ; and afterwards conveyed the estate to the defendant. To prove his title, the defendant offered in evidence a copy of the mortgage, as recorded in the registry of deeds, which purported to be signed and sealed by the plaintiff in token of her relinquishment of dower in the estate so conveyed. The plaintiff insisted that the original should be produced, or that her execution of it should be proved ; she denying that she ever placed her signature to it. This, the Judge presiding at the trial did not require, as he at the time, was under the impression, that the evidence offered, came within the thirty-fourth rule of this Court, which is, that, in all actions touching the realty, office copies of deeds, pertinent to the issue, from the registry of deeds, may be read in evidence, without proof of their execution, when the party offering such office copy in evidence is not a party to the deed, nor claims as heir, nor justifies as servant of the grantee, or his heirs.” To this ruling, exception was taken ; and it is now contended, and very ingeniously argued, that the Court had no authority to adopt such a rule; and if it had, that the present case was not within its intent and meaning.
We must now, in the first instance, determine whether the Court had authority to make such a rule. If it had not, we must disregard it. It is urged that the rule of law is general and of long standing, that a party producing a deed as evidence is bound to prove its due execution; and that the Court is only authorized to make rules concerning the mode of trial, and the conduct of business, and not repugnant to law; and such is the grant of power in terms, as contained in the Rev. Stat. c. 96, $ 9, which is but a re-enactment of a similar provision, to be found in the act originally regulating the jurisdiction of this Court, passed soon after the adoption of our [505]*505constitution. The rule is clearly a regulation as to the conduct of business in Court, and;' therefore, within the terms of the power granted, unless it can be deemed repugnant to law.
Deeds are not permitted to go to the jury in evidence until there is believed to be some evidence inducing the presumption of their having been duly executed. The rule as laid down, and contended for, is general in its operation, but like other general rules of law, has its exceptions ; upon the principle that, where the reason of the rule ceases the rule may be dispensed with. Whether there be evidence, which authorizes a deed to be read in evidence is, in the first instance, to be ascertained by the Court, being in effect but prima facie evidence, which may be controverted before the jury. Whether the general rule, that proof of execution by subscribing witnesses, or, when that fails, by other proof thereof, should be required, has been considered as subject to modification by the courts in various instances. If upon the inspection of a deed it appears to bo thirty years old, and comes from the proper custody or depository to give it credence, it may be admitted in evidence without further proof of its execution. Here some degree of discretion must be exercised by the Court in considering of the concomitant circumstances, tending to fortify the presumption of its due execution.
Again: — If a deed is seen by the Court to be called out of the hands of the adverse party, who claims an interest in it, the Court will not compel any further proof of its due execution. 1 Greenl. on Evidence, 571. So also where a bond is given by an officer in trust for the benefit of persons concerned, as the case of guardians, executors or administrators, to the Judge of probate, and approved by him. Ibid. § 573.
Again : — Since by the statute of the 27 of Henry 8, c. 16, a bargain and sale of an estate of inheritance or freehold is required to be enrolled, it has been held by the courts in England, that the enrollment should be deemed to be sufficient evideuce of the execution of the deed as against all persons. [506]*5061 Chitty, 355, and cases there cited. The enrollment in England is very similar to our acknowledgment and registry. In the former it must be by an acknowledgment and registry in 'Court, and in the latter by an acknowledgment before a magistrate, and registry in a public office kept for the purpose. Accordingly in Maryland, where they have an ancient statute, probably like that of Henry 8, requiring that deeds should be •enrolled, it has been held, that an exemplification of the record, which is but an authenticated copy, is competent evidence. Dick v. Balch, 8 Peters, 30.
It is believed that, long before the separation of this State from Massachusetts, it had been constantly ruled at nisi prius, 'in conformity to the principle of the rule adopted by this Court, to which no exception is known to have been taken, indicating an entire acquiescence therein by the bar of that State. And in Eaton v. Campbell, 7 Pick. 10, the Court, :after remarking, that, in England, the grantee is furnished with .all the title deeds, which is not the case with us, remark, that “ to require him (the grantee,) to produce all the original deeds, for twenty years or more, and to bring the subscribing witnesses, would be unreasonable and oppressiveand that it -will be found convenient to have a copy from the register’s office prima facie evidence, even when the grantor lives within the Commonwealth; until the case assumes a different shape on a question of fraud. It would seem to be clear, then, that there is no such inflexible rule of law, applicable to all cases, as to proof of the execution of deeds, as is contended for; and that this Court under the grant of power, before named, might, in the exercise of a sound discretion, well adopt the rule in question, by way of rendering, what before depended on a practice similar in effect, more certain and definite; and it has been acquiesced in since its adoption till now, a period of 24 years.
We now come to the second branch of the inquiry, which is, whether the rule could have been intended to reach a case like the present. As the rule in derogation of a principle before existing, of general application, it should not be allowed [507]*507to embrace cases not within the reason of it. In its adoption it was doubtless with a view to grantors, who were actually transferring some present estate, or extinguishing some claim, which they might seem to have to some estate. A deed to come within the rule must be touching the realty ; that is, touching the realty at the time of its execution, and actually conveying or purporting to convey something. None other is required to be acknowledged or recorded, in order to be effectual. And a copy of the registry of any other writing, which might happen improperly to be recorded, would not be evidence.
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The opinion of the Court was drawn up by
WhitmaN C. J.
The plaintiff claims dower in a certain estate, of which her late husband, Robert Sellars, deceased, [504]*504was, when alive, and after her intermarriage with him, seized and possessed in fee.
The defence is, that Sellars, before his decease, conveyed the estate in fee and in mortgage to one Wardwell, after the decease of whom the mortgage was, by his executors, assigned to Messrs. Howard & Hale, who had before purchased the right in equity of redeeming the same ; and afterwards conveyed the estate to the defendant. To prove his title, the defendant offered in evidence a copy of the mortgage, as recorded in the registry of deeds, which purported to be signed and sealed by the plaintiff in token of her relinquishment of dower in the estate so conveyed. The plaintiff insisted that the original should be produced, or that her execution of it should be proved ; she denying that she ever placed her signature to it. This, the Judge presiding at the trial did not require, as he at the time, was under the impression, that the evidence offered, came within the thirty-fourth rule of this Court, which is, that, in all actions touching the realty, office copies of deeds, pertinent to the issue, from the registry of deeds, may be read in evidence, without proof of their execution, when the party offering such office copy in evidence is not a party to the deed, nor claims as heir, nor justifies as servant of the grantee, or his heirs.” To this ruling, exception was taken ; and it is now contended, and very ingeniously argued, that the Court had no authority to adopt such a rule; and if it had, that the present case was not within its intent and meaning.
We must now, in the first instance, determine whether the Court had authority to make such a rule. If it had not, we must disregard it. It is urged that the rule of law is general and of long standing, that a party producing a deed as evidence is bound to prove its due execution; and that the Court is only authorized to make rules concerning the mode of trial, and the conduct of business, and not repugnant to law; and such is the grant of power in terms, as contained in the Rev. Stat. c. 96, $ 9, which is but a re-enactment of a similar provision, to be found in the act originally regulating the jurisdiction of this Court, passed soon after the adoption of our [505]*505constitution. The rule is clearly a regulation as to the conduct of business in Court, and;' therefore, within the terms of the power granted, unless it can be deemed repugnant to law.
Deeds are not permitted to go to the jury in evidence until there is believed to be some evidence inducing the presumption of their having been duly executed. The rule as laid down, and contended for, is general in its operation, but like other general rules of law, has its exceptions ; upon the principle that, where the reason of the rule ceases the rule may be dispensed with. Whether there be evidence, which authorizes a deed to be read in evidence is, in the first instance, to be ascertained by the Court, being in effect but prima facie evidence, which may be controverted before the jury. Whether the general rule, that proof of execution by subscribing witnesses, or, when that fails, by other proof thereof, should be required, has been considered as subject to modification by the courts in various instances. If upon the inspection of a deed it appears to bo thirty years old, and comes from the proper custody or depository to give it credence, it may be admitted in evidence without further proof of its execution. Here some degree of discretion must be exercised by the Court in considering of the concomitant circumstances, tending to fortify the presumption of its due execution.
Again: — If a deed is seen by the Court to be called out of the hands of the adverse party, who claims an interest in it, the Court will not compel any further proof of its due execution. 1 Greenl. on Evidence, 571. So also where a bond is given by an officer in trust for the benefit of persons concerned, as the case of guardians, executors or administrators, to the Judge of probate, and approved by him. Ibid. § 573.
Again : — Since by the statute of the 27 of Henry 8, c. 16, a bargain and sale of an estate of inheritance or freehold is required to be enrolled, it has been held by the courts in England, that the enrollment should be deemed to be sufficient evideuce of the execution of the deed as against all persons. [506]*5061 Chitty, 355, and cases there cited. The enrollment in England is very similar to our acknowledgment and registry. In the former it must be by an acknowledgment and registry in 'Court, and in the latter by an acknowledgment before a magistrate, and registry in a public office kept for the purpose. Accordingly in Maryland, where they have an ancient statute, probably like that of Henry 8, requiring that deeds should be •enrolled, it has been held, that an exemplification of the record, which is but an authenticated copy, is competent evidence. Dick v. Balch, 8 Peters, 30.
It is believed that, long before the separation of this State from Massachusetts, it had been constantly ruled at nisi prius, 'in conformity to the principle of the rule adopted by this Court, to which no exception is known to have been taken, indicating an entire acquiescence therein by the bar of that State. And in Eaton v. Campbell, 7 Pick. 10, the Court, :after remarking, that, in England, the grantee is furnished with .all the title deeds, which is not the case with us, remark, that “ to require him (the grantee,) to produce all the original deeds, for twenty years or more, and to bring the subscribing witnesses, would be unreasonable and oppressiveand that it -will be found convenient to have a copy from the register’s office prima facie evidence, even when the grantor lives within the Commonwealth; until the case assumes a different shape on a question of fraud. It would seem to be clear, then, that there is no such inflexible rule of law, applicable to all cases, as to proof of the execution of deeds, as is contended for; and that this Court under the grant of power, before named, might, in the exercise of a sound discretion, well adopt the rule in question, by way of rendering, what before depended on a practice similar in effect, more certain and definite; and it has been acquiesced in since its adoption till now, a period of 24 years.
We now come to the second branch of the inquiry, which is, whether the rule could have been intended to reach a case like the present. As the rule in derogation of a principle before existing, of general application, it should not be allowed [507]*507to embrace cases not within the reason of it. In its adoption it was doubtless with a view to grantors, who were actually transferring some present estate, or extinguishing some claim, which they might seem to have to some estate. A deed to come within the rule must be touching the realty ; that is, touching the realty at the time of its execution, and actually conveying or purporting to convey something. None other is required to be acknowledged or recorded, in order to be effectual. And a copy of the registry of any other writing, which might happen improperly to be recorded, would not be evidence. A deed of a grantor, not acknowledged, even if placed upon the record, would not come within the rule, because it would not be properly there; and because it would not have the additional evidence of a due execution, arising from an acknowledgment before a magistrate. Bonds, releases and other sealed instruments, not amounting to a conveyance of title to real estate, are under no circumstances reached by the rule.
These agreements, on the part of femmes covert, convey no present estate; they do not purport to do so; and hence they are not required to be, and seldom, if ever, are acknowledged. They are simply agreements, amounting in effect to extinguish-ments of rights, which are contingent, and may never exist, depending on their outliving their husbands. When they have any present interest, if they would convey it, they must join their husbands in the operative words transmitting title, and must acknowledge the same, as do other grantors. Here, then, there is a manifest distinction between one conveying an estate, and one merely agreeing to extinguish a contingent claim of dower.
The inducement to the adoption of the rule, was doubtless, in a good measure, owing to the knowledge, that all deeds, before they can be entitled to be recorded, must have the sanction, of an acknowledgment before a magistrate, and, having that sanction and being placed upon the record, which was thereafter open to the inspection of the grantor, affording evidence of acquiescence on his part, it might well be thought [508]*508unreasonable to allow him to question its validity. How is it with married women ? Their signatures are placed to deeds, relinquishing their dower, with very little ceremony ; with no acknowledgment before a magistrate ; and often without the presence of witnesses, as is well known. Though their deeds may be placed upon record, they cannot be supposed to have any inspection thereof: and, if not agreeable to their husbands, if by chance informed of a record of a deed, purporting to bear their signatures, they can take no measures concerning it; and especially would such be the case, if their husbands had fraudulently placed their signatures to them. If when they come to have the right to dower perfected, they cannot call for proof of the execution of the deeds, which may purport to bear their signatures, their cases might be indeed unfortunate.
Moreover the language of the rule is not, in strictness, appropriate to include such cases. No one could claim as heir or justify as servant, of one merely relinquishing an inchoate right of dower. The rule supposes, that the party offering such office copy, may be in one or the other of those predicaments. The word, “ party,” may, with much propriety, be taken to mean a party to the conveyance of the estate; to the operative words passing it, and not to one who was no such party ; but merely a party to the instrument for another purpose. T^hat this is the true construction, derives force from the immediate connection of the word “ party” with the words “ claims as heir, nor justifies as servant,” &c.
On the whole, we think the exceptions may be sustained.