Christiancy, J.
This was an action of ejectment brought by Harrison against Shotwell, in the Circuit Court for the County of Yan Burén. The verdict and judgment were for the plaintiff below (defendant in error), and the case comes here by writ of error and bill of exceptions.
The land in question was patented by the United States to Thomas B. Millard, May 1st, 1839, and both parties claim title through the patentee. The plaintiff claimed through the following deeds : 1st, a warranty deed from Millard, the patentee, to Horatio N. Monroe, dated August 1st, 1837 (before the issuing of the patent); 2d, a warranty deed from Monroe to David Crittenden, of Conway, Massachusetts, dated March 19th, 1838, and recorded in the registry of deeds for Yan Burén county, April 25th, 1838, and, 3d, a deed executed to the plaintiff by Harriet A. Crittenden as the widow, and George F. Crittenden as the sole heir of David Crittenden. The above deed from Millard, the patentee, to Monroe, conveyed also other lands situate in Barry county, and was duly recorded in the latter county in the year 1839, but was not recorded in Yan Burén county until the 25th of February, 1868, after the institution of the suit; though a copy from the Barry county record, certified by the register of deeds of that county, was entered upon the records in Yan Burén county on the 11th day of January, 1868.
In the meantime, before the recording of Millard’s deed to Monroe (or even the copy of it) in Yan Burén county, [413] Millard, the patentee, had been induced to execute another deed — a quit-claim — of the lands in question, to one Thomas Silliman, dated the 4th day of January, 1865, which was recorded in Yan Burén county on the 5th of January, 1865. It was through this deed and several mesne conveyances that the defendant Shotwell claimed title, as will be more particularly noticed when we come to consider that part of the case.
We shall first consider the questions raised in reference to the plaintiff’s deduction of title, omitting, however, such of the exceptions as were not relied upon on the argument.
1st. (Taking the objections in their logical order), it was objected that the deed from Millard to Monroe was not admissible, because purporting to be executed long before the issuing of the patent to Millard, and it is urged that the court erred in charging the jury, that “the fact that Millard deeded to the plaintiff’s grantor before he received a patent, makes no difference in the case.” It is insisted that, as there was no evidence tending to show that Millard had previously entered the land, the deed could not operate as the conveyance of a title.
We see no force in this objection. The deed contained a covenant of warranty, and certainly operated by way of estoppel, as against Millard and all who might afterwards claim title through him; whether it operated strictly as a direct conveyance or transmission of title or not, is quite immaterial, as the defendant claimed under a subsequent conveyance from Millard. This point is entirely distinct from that of the priority of record, which would have been just the same if this deed had been executed after the issuing of the patent. This operation of a covenant of warranty is too well settled in this country to require a citation of authorities; but see the late case of Irvine v. Irvine, 9 Wallace, U. S. R., 617.
[414]*4142d. It is objected that the deed purporting to be executed by the widow and heir of David Crittenden, was improperly admitted in evidence because it was executed and acknowledged in the state of Massachusetts, and the clerk’s certificate to the official capacity of the Justice who took the' acknowledgment to its genuineness and its execution according to the laws of that state, does not show that the clerk so certifying was the clerk of a court of record, as required by the statute. — Comp. L., Sec. 2729, Laws of 1861, p. 17, Sec. 3.
The clerk’s certificate here commences:
“ Commonwealth or Massachusetts,)
“Franklin County,)
ss.
“I, Edward E. Lyman, clerk of the judicial courts of the commonwealth of Massachusetts, for the county of Franklin, do certify,” etc.,.and it concludes thus: “In testimony whereof, I have hereunto set my hand and affixed the seal of the Supreme Judicial Court of the said commonwealth, this twelfth day of July, in the year of our Lord 1867.” It is signed by the clerk and sealed with the seal of the Supreme Court.
We think this is a full compliance with the statute. It sufficiently appears that the clerk was the clerk of the Supreme Judicial Court, as well as of other judicial courts of that state for the county of Franklin; and we will take judicial notice that the Supreme Court of that state is a court of record. See Jarvis v. Robinson, 21 Wis., 523; Butcher v. Bank of Brownsville, 2 Kans., 70.
3d. It is objected that there, was no proof that George F. Crittenden was the heir of David Crittenden, there being, as it is urged, no legal evidence of the marriage of his father and mother.
The depositions taken by stipulation are a full answer to this objection, not alone on the ground suggested by the [415] court, that they were taken by stipulation, but their admissibility and effect as original evidence would have been the same if taken by commission and without any assent of the defendant.
The deposition of Harriet A. Crittenden states that she knew David Crittenden in his lifetime; that he died October 15, 1866; that he left a widow and one child; that she is his widow, and the said George F. is the son of said deceased. She also says, “ I know that my late husband, said David Crittenden, frequently in his lifetime sent money to pay taxes on land in Van Buren county,” etc. Her testimony also shows that said George F. was the only child of said David Crittenden. The deposition of E. D. Hamilton, W. C. Campbell (both of whom seem to have been neighbors and to have known the family well) and of the said George F. and his wife are all to the same effect, - all speak of said Harriet A. as the widow, and of the said George F. as the son; all speak of the said George F. as the only child of the deceased, and some of them say expressly, and the others by the strongest implication, that they think deceased never had any other child. The question of identity is not raised, and the death of the ancestor is clearly shown.
Now in the absence 'of all opposing testimony (of which there was none), we think this is not only sufficient but ample, original and sufficiently direct evidence of the marriage of the father and mother of said George F., of his legitimacy, and sole heirship; and £if the jury had found otherwise it would have been the duty of the court at'once to have set aside the verdict. The law is very liberal in the admission of evidence in proof of marriage and pedigree, and if all the depositions cannot be considered as original, primary and direct evidence (see 1 Greenlf. Ev., Secs. 100 to 107 incl.; 2 Greenlf. Ev., Secs. 461, 462), that of the [416] widow certainly is so. In the absence of any circumstance to excite suspicion of concealment or mental reservation, when a woman swears that she is the widow of a man who is' deceased, and says he was her husband, it would be doing violence to common sense to say that she does not testify that they were married.
The rule which requires the best evidence, was fully complied with. See Starkie’s Ev. by Sharswood, 642, 644. This rule does not operate to exclude evidence which is of the same grade or quality, merely because it is not all nor the most satisfactory which might be adduced, when the evidence offered and that which is withheld is of the same general quality and grade. See Stark. Ev. ubi sup., and Cowan & Hill’s Notes to Phil. Ev., 1st Ed., Note 414 and authorities cited.
We see no error in any of the rulings of the court in reference to the admission or rejection of evidence of the plaintiff’s title given upon the opening; and the plaintiff had made a clear prima facie title from- the patentee.
But to meet this case the defendant set up the following claim of title and introduced the several deeds:
1st. (As already intimated) a quit-claim deed from Millard, the patentee, to Thomas Silliman, dated January 4th, 1865, and recorded in the registry of deeds in Van Burén county January 5th, 1865, — three years and more before Millard’s deed to Monroe (under which plaintiff claimed), or even the copy of it, was recorded in that county,
2d. A quit-claim deed from Thomas Silliman to Mary Conway, dated January 4th, 1865 (the same day of the deed to him), which was duly recorded October 30th, 1867.
3d. A deed from Mary Conway to David Bacon, dated October 29, 1867, and recorded October 30, 1867.
4th. A quit-claim deed from Bacon to the defendant, dated the 6th of January, 1868, and duly recorded in Van [417] Burén county January 14th, 1868, — more than a month prior to the recording in that county of Millard’s deed to Monroe.
The defendant thus established an apparent title by priority of record, through the subsequent (but first recorded) deed from Millard to Sillim'an. And if Silliman, or any one of the subsequent grantees claiming through him, purchased in good faith, without notice of the prior deed to Monroe, and for a valuable consideration, then the defendant’s title must prevail over that shown by the plaintiff.
In reply to this case of the defendant, the plaintiff introduced evidence which was uncontradicted and conclusive, that Silliman gave no consideration whatever for the quitclaim from Millard to him, but that Mary Conway’s husband, who seems to have owned a farm adjoining this land, entered into a correspondence with, and subsequently called upon Millard, representing to the latter that he had a claim upon this land, that there was some small imperfection in the title, and requested a quit-claim, which Millard, trusting to these representations, consented to give without any consideration; but when the deed was presented to him for execution he found that, instead of being drawn to Conway, it was to Silliman. He, however, executed it without inquiring into the reason for using Silliman’s name, and Silliman, on the same day, and without any consideration, executed the quit-claim to Conway’s wife. This, had the action been brought against Silliman or Mary Conway, would clearly have defeated any title either of them could have claimed by priority of record.
But no evidence was given tending to show any notice to Bacon of the prior deed to Monroe, nor that he had notice of any want of consideration for the deed to Silliman or that to Mrs. Conway, nor of any fact which could have any tendency to show that he was not a purchaser from Mrs. Conway in good faith, for a valuable consideration, and [418] in honest reliance upon the record title. Nor was there any affirmative evidence that he paid a valuable consideration, except the recital of a money consideration, in her deed to him. Nor did it appear, except.by the recital, in Bacon’s, deed to defendant what consideration the defendant himself paid, nor whether he paid any, for the deed of Bacon to him, nor that defendant had any notice of a want of consideration for any of the deeds in his chain of title. It is not expressly stated in the record that the quit-claim deeds from - Millard to Silliman, and from the latter to Mrs. Conway, or hers to Bacon, or Bacon’s to defendant, purported on their face to have been given for a pecuniary or valuable consideration; but as quit-claim deeds ordinarily and almost universally do express such consideration, and it seems to have been assumed by the counsel in their mode of exami-. nation, arguments, and requests to charge, and by the court in the charge given, we must treat this as a fact in the case.
The court charged the jury in substance that to enable the defendant to avail himself of the priority of record of the deeds through which he claimed, either the defendant or some of his grantors after Millard must be found' to have purchased in good faith and for a valuable consideration, and that the burden of proof was upon the defendant, to show affirmatively, such consideration, and that by some other evidence than the mere recital of it in the deed.
This charge raises the. most important question in the case."
Our registry law (Comp. L., Sec. 2748) makes the prior unrecorded deed void only “ as against a subsequent purchaser in good faith and for a valuable consideration, who.se conveyance shall be first duly recorded,” The two essential facts, which give to the later but first recorded deed precedence,, are: 1st, the purchase in good faith, and* 3d, the payment. [419] of a valuable consideration. As to tbe good faitli, this is not required to be shown by the purchaser otherwise than by proof of the record, upon which he had a right to rely if he had no notice of the prior deed aside from the record; but if he had such notice, this is a fact affirmative in its nature, and it is therefore more reasonable to require it to be shown by the party claiming under the prior unrecorded deed than to call upon the purchaser to prove the negative. But the consideration which a party has himself paid for his own deed, is a fact peculiarly within his own knowledge, a fact affirmative in its nature, and which must therefore be presumed to be much more easy of proof than the negative fact of its non-payment could be to the opposite party. It would seem, therefore, to. be more reasonable and just, in principle, to require the purchaser to give the affirmative proof of the consideration for his own immediate purchase, to bring himself within the protection of the statute, than to require .the other party to prove the negative, — the want or absence of consideration. And this seems to be the general rule in courts of equity in similar cases. This is not presuming fraud or bad faith in the party holding the subsequent, but first recorded, deed, as the questions of good or bad faith and that of a valuable consideration, are distinct in their nature. He may have taken the deed in entire good faith, within the meaning of the statutes, though he paid no consideration; or he may have purchased in bad faith, and yet paid a valuable consideration. Good faith and a valuable consideration are both required to give the record precedence over the prior unrecorded deed.
But at law the authorities are conflicting as to the burden of proving the consideration or the want of it. In Jackson v. M’Chesney, 7 Cow., 360, the Supreme Court of New York, while admitting the rule in equity to be as above stated, yet held that in an action of ejectment, when [420] the strict iegal title only is in question, the recital of the consideration in the deed is prima facie evidence of its payment. And the same doctrine was reiterated (though the point was wholly unnecessary to the decision) in Wood v. Chapin, 13 N. Y., 509. Now, if there were any difference in the effect to be given to the fact of payment or non-payment, at law or in equity, there might be some tangible ground for such a distinction in the mode or burden of proof. But as the fact of the payment of the consideration will equally support the deed,, and the want of its payment will equally defeat it in both courts, it is not easy to discover any solid foundation for the distinction. Besides the recital in the deed in such a case as the present would seem to be res inter alios, mere hearsay, and to stand upon no other ground than the mere, declaration' of the grantor, which would be no evidence against any party not claiming, under the deed, but against it. It would be otherwise with a recorded deed upon the faith of which the party has purchased, as in such a case the law has made the record evidence upon which he has a right to rely. And the Supreme Court of Alabama in Nolen et al. v. Heirs of Gwyn, 16 Ala., 725 (and see McGintry et al. v. Reeves, 10 Ala., Ala., 137), repudiate the distinction and fully adopt at law the rule which, we have already stated, seems to us the more reasonable and just, whenever the question is whether the immediate purchase of the party to the suit was for a valuable consideration. The recital therefore of the consideration in the deed from Bacon to the defendant was not, in our opinion, any. evidence of its payment, and no other evidence of it was given.
But whether the defendant purchased with or without notice, and whether he paid any consideration or not, he would still hold the title, if Bacon, his grantor, could have held it as a purchaser in good faith and for a valuable [421] consideration; for if Bacon was such purchaser, he had not only a right to hold it, but to dispose of it by sale or donation, or transmit it by descent; and the purchaser, donee, or heir, whatever notice he may have had, would take his title. But if the purchaser from Bacon paid no consideration, his rights would stand exclusively upon Bacon’s title, as much as if it had come to him by descent. But a purchaser for value, though having notice of the prior unrecorded deed, would be just as clearly a purchaser in good faith within the meaning and protection of the statute, as if he had purchased without notice of it, if his grantor could have held the property as a Iona fide purchase er, for value; since no injury is done by such a purchase to the holder of the prior unrecorded title.
And Bacon, who, so far as appears by the evidence, purchased without notice of the prior deed to Monroe, was not, if he paid a valuable consideration, to be affected by any want of consideration for the conveyance to Silliman, or Silliman to Mrs. Conway, without showing that he had notice of such want of consideration. He had as much right to rely upon the truth of the record in respect to the payment of the consideration therein stated, as he had for the fact of the conveyance, or for the fact that no prior conveyance had been made. If a party undertaking to purchase on the faith of the record, and having no notice that the facts are otherwise, could not rely upon it as to the consideration stated, but was compelled at his own peril to go outside of the record in all cases to ascertain whether the consideration stated had been actually paid, the effect of the priority of the record would be greatly impaired, and the record would afford but a slender protection to purchasers. , .
And had the defendant shown that he had himself paid a valuable consideration for the conveyance from Bacon, he [422] might, perhaps, hare established his own position as that of a purchaser in good faith and for a valuable consideration within the statute, whether he had himself notice of the prior conveyance or not, Bacon not being shown to have had notice of the prior conveyance or of any infirmity in the chain of title exhibited by the record, and the defendant himself having no notice of the want of consideration in any of the recorded deeds, as the defendant might then, perhaps (for the question does not here arise and we give no definite opinion upon it), have relied upon the truth of the record for the payment of the consideration by Bacon, and by all prior parties, whether he had himself notice of the prior conveyance or not.
But as the defendant has not brought his own purchase within the protection of the statute, by proof that he had himself paid any consideration, and without such payment hé has fib equities and can lose nothing, he must rest his case wholly upon Bacon’s purchase, and must therefore show that Bacon could have held the property, and he must do this by showing all that Bacon would have been bound to show had he been defendant. In other words, he must prove the payment of a valuable consideration by Bacon.
There was therefore no error in the charge of the court upon this point.
The view we have taken renders it Unnecessary to determine whether any of the evidence introduced by the plaintiff had a tendency to show that defendant, himself, had notice of the prior unrecorded deed to Monroe.
The court, against the objection of defendant, allowed the plaintiff to introduce the record of Yan Burén county, of a certified copy from the register of deeds of Barry county, of the deed from Millard to Monroe.
Though the statute (Comp. L., Ch. 88) makes provision for recording copies in certain cases, there is no provision [423] which would authorize the recording of this copy, and it was therefore erroneously admitted. The court, it seems, afterwards undertook to correct this error, by charging, in answer to the defendants request, that the record of this copy was, in law, no notice. But the effect of this correction was neutralized, and the error perpetuated, by another part of the charge, stating this deed as recorded in Van Burén county on the 11th of January, 1868, the date of the recording of the copy, and which would have made the record of this deed take precedence by three days of that from Bacon to defendant, when, in fact, the deed itself was not recorded in Van Burén county until the 25th day of February, 1868, more than a month after the recording of defendant’s deed, and after the commencement of this suit. The charge upon this point, as a whole, was well calculated to confuse the jury, and cannot be considered as curing the error, if indeed it was competent to cure the erroneous admission of the evidence by any charge which could be given.
The court also erred in refusing to charge, as requested by the defendant, that the whole chain of deeds given in evidence by the defendant have priority of record as against the plaintiff.
The judgment must be reversed, with costs and a new trial awarded.
Graves and Cooley, JJ. concurred.