Skinner v. Watson

4 Vt. 421

• Court: Supreme Court of Vermont
• Decided: March 15, 1832
• Status: Published

Opinions

The opinion of the Court was delivered by

Baylies, J.

We are called upon to decide whether this res. cord of the copy of the execution extended on lands, and officer’s return thereon, made in the records of the town where the lands lie, on the 3d of August, 1820, is sufficient in law. In deciding this point I shall take a concise view of our registry acts, and see whether they have ever permitted a copy of a deed, or a copy of an execution, extended on lands, to he recorded in the town records, instead of recording the deed, or execution itself.

The act of February, 1779, says, “that henceforth, all deeds or conveyances of any houses or lands, within this state, signed and sealed by the parties granting the same, having good and lawful right or authority thereto, and attested by two or more witnesses, and acknowledged by such grantor or grantors, before an assistant or j'ustice of the peace, and recorded at length in the town records where such houses and lands do lie, shall be valid to pass without any other act or ceremony in law whatsoever.”

“ That the town clerks in the several towns in this state, shall fairly enter, and record at length in their records, all deeds, conveyances, and mortgages of lands, tenements, rents or other her-editaments, lying and being within the town where such clerk’s records are kept, within this state — made,executed, and acknowledged, or received in manner aforesaid, which shall be brought to him to record ; and shall on receipt thereof in his office, note thereon the day, month and year when he received the same, and the record shall bear date accordingly.” — (State papers, 336-7. The act of March 8, 1787, says, “that all deeds or conveyances of any houses or lands, within this state, signed, sealed, and delivered, by the parties granting the same, having good and lawful authority, attested by two or more witnesses, and acknowledged by such grantor or grantors before a justice of the peace, and recorded at length in the town clerk’s records, where such houses or lands do lie, shall be valid to pass the same without any other act or ceremony in the law whatsoever.”

■“ That the town clerks, in the several towns in this state, shall fairly enter and record at large in their records,all deeds and conveyances of lands, tenements and hereditaments — and shall, on receipt thereof in their offices, note thereon the time when they received the same, and shall date the record and filing thereof accordingly.” — (HaswelPs ed. Stat. p. 32.)

The Act of March 6, 1797, says, “ that all deeds and other conveyances of any lands, tenements or hereditaments, lying in this state,signed and sealed by the party granting the same, having good and lawful authority thereunto, and signed by two or more witnesses, and acknowledged, by such grantor or grantors, before a justice of the peace, and recorded, at length, in the clerk’s office of the town in which such lands tenements and hereditaments lie, shall be valid to pass the same, without any other act or ceremony in law whatever.” — (Slade's ed. 167.)

Act of 28th February, 1797 : — “ And it is hereby made the duty of the town clerk or tegister, truly to record all deeds and conveyances of any houses, lands or tenements, and all writs and executions, when by law it becomes necessary. — (Slade’s ed. 415.)

The above statutes relate to deeds, and the following to executions. The act of 1779, says, “ All executions duly served upon any houses and lands, being returned into the clerk’s office of the court out of which the same issued, and there recorded ; as also a copy thereof lodged in the town clerk’s office in the town, where such houses orlands lie, (which said clerk shall enter in the town book of records,takingthe same fee as allowed forrecording deeds,) shall make a good title for the party for whom they shall be taken, his heirs and assigns forever.” — (Ft. state papers, 363.)

The act of 1787, says, “ And all executions duly served upon any such houses and lands, with the return of the officer thereon, being recorded in the records in the town wherein such houses and lands are situate, or in the office where deeds respecting such lands ought by law to be recorded, and also returned into the office of the clerk of the court or justice, whence the same issued, and there recorded,shall,as against the debtor,his heirs and assigns, make a good title to the party for whonuhey shall be taken, his heirs and assigns forever.”

“And it shall be the duty of the officer to cause the execution with his endorsement thereon to be entered on the town records, or in the proper office, as aforesaid, before he return the same ; and the °®cer shall have two shillings for causing the same to be recorded, with additional fees for his travel. — (Haswell’s ed. 65.)

The act of 1797, says, “ And all executions extended and levied upon any houses, lands, or tenements, as aforesaid, with the return of the officer thereon, being recorded in the records of lands of the town in which such houses, lands-or tenements are. situate, or in the office wherein deeds respecting the same are required by law to be recorded, and also returned into the office of the clerk of the court, or justice of the peace, from which such execution issued, and there recorded, shall, as against such debtor, his heirs and assigns, make a good title to the party /or whom such estate was taken, his heirs and assigns for ever.” — (Ch. 28, s. 3, Slade’s ed. 210.)

The general fee bill of 1793, under the head of sheriff’s fees, has this item : “ Copy of an execution extended on lands, and the return thereof to the office for record, 0,50.”

The statutes before 1797 are repealed, and are referred to for the belter ascertaining the meaning of the legislature in passing die acts of 1797 and 1798. It is a rule that every statute should be construed according to the intention of tb.e legislature, and where there is doubt, all other statutes made in pari materia, whether repealed or not, should be considered. In taking this view, I am satisfied, that the intention of the legislature, in their, acts directing the recording of deeds, was, to have the town-clerk-make the record from the deed itself, and not from a copy. But in. considering the acts, which direct the recording of executions extended on lands, I atn inclined to believe that the record in the-town clel-k’s office may be made from a copy of such execution and officer’s return thereon. The act of 1779, says, “A copy of the execution shall be left in the town clerk’s office, which copy said clerk shall enter in the town book of records.” Here the practice of recording a copy of the execution, and officer’s return thereon commenced, and continued, in all probability, so-long as that act was in force. Under the act of 1787, it was the duty of the officer “to cause execution, with his, endoresment thereon,to be entered on the town records.” Most likely the practice of recotding from a copy, of the execution and officer’s return was not so uniform under this act as il.was-under the act of 1779. I however presume that no small share of the records were made. from copies. While the act of 1787 was in force, there was no fee bill giving the officer any thing for making a copy for record -all he got was the two shillings and additional fees for travel, mentioned in the act. And when I consider the acts of 1797 and 1798, in connexion with the former acts, I think that the practice of leaving a copy of execution and return thereon for record in the town clerk’s office (which practice had existed for about eighteen years in this state) was recognized and sanctioned by the legislature, in and by their act of 1798, wherein they say, “ copy of an execution extended on lauds, and the return thereof to the officer for record, 0,50.” The legislature did not intend this fee to pay an officer for doing an illegal act, but to reward him for doing what they considered a lawful and necessary act. If the officer did his duty in leaving such copy to be recorded, then the town clerk had at least an implied authority to record it, and when recorded, it satisfied the words, “ being recorded in the records of lands,” &.C., used in the act of 1797. But it is contended that there was no more propriety in recording a copy of an execution and officer’s return thereon, than there was in recording a copy of a deed. The two cases are not alike : there was a long uninterrupted practice from 1779 to 1821, of recording copies of executions extended on lands in the town clerk’s office, where the lands lie ; and this practice was sanctioned by statutes either expressly or impliedly. But there has been no practice nor statute to sanction the recording of copies of deeds in the town clerk’s office. A deed is not lodged in any public office for inspection ; therefore, it is often the case, that the only and best evidence of its existence to a purchaser, is its record in the town clerk’s office, where the lands lie, This record should be of the deed itself, and not of a copy of the deed. But an execution extended on lands is not carried about in the pocket of the creditor, but is returned into the office from which it issued, and is there recorded. Here every purchaser of the land may see the execution itself, and the officer’s return thereon, and a full record of then). Having this source of information, it seems that a true copy of the execution and officer’s return ¡tut upon the records of the town, where the lands lie, would be sufficient notice to purchasers. Nor am I inclined to censure the practice of recording copies of executions extended on lands under the aforesaid statutes relating to the subject, it was certainly a convenient practice for officers Jo leave copies in the town clerk’s.office for record, instead of waiting-to have the execution and return recorded. And many cases may suPPosec^) where no other course could be taken, and have the business completed in season for the safety of the officer, and creditor. I do not think it would be just to disturb the landed ti^es of the citizens of this state by deciding that the recording of a copy of an execution extended on lands, and the officer’s return thereon, in the town clerk’s office, where the lands lie, is insufficient in law. It seems to me, that taking a full view of the statutes, and the practice under them, it is sufficient to record such copy. Isay “ the practice under them,” because it is a rule, that a long uninterrupted practice under a statute is evidence of its construction. — (2 Dall. 124.)

The execution in question was levied on land on the 2nd of August, 1820. On the 3d of August the officer left a copy of the execution and his return thereon in the town clerk’s office in Hydepark, for record. And the town clerk certifies as follows: “ The above is a true record of the officer’s copy, received August 3, 1820.”

“Attest, Abner Flanders, To ton-Clerk.”

As the levy of the execution and record of the copy were made while the aforesaid acts of 1797 and 1798 were in' lores, the Court decide, that the record of the copy is sufficient, if it substantially agrees with the execution and officer’s return thereon. If the record does not agree with the execution and return, it is erroneous, and whether the record be void or not, will depend on the error it contains. If the error tends not to the injuiry of any person, and the record is sufficient to answer all the purposes for which it was made, then it is not void.

But suppose there is no fatal error in this record, (which wo do not now decide,) then the question is, who has the better title to the land in question, the plaintiffs or the defendants ? The plaintiffs’ title was complete on the 3d of August, 1820, and the mortgage deed from Hadly to McDaniel was executed. January 10, 1821 : so the decree of foreclosure on this mortgage could not affect the plaintiff’s prior title. The vendue title of McDaniel is defective : the record of the committee’s advertisement does not show the year in which it was printed in the Rutland Herald ; and no list of lands on which the taxes had been paid was furnished the collector by the committee, so as to enable him to sell or deed for the non-payment of taxes. We have already decided in the writ of review, John Skinner et al. vs. John McDaniel, at this term, that the judgement in the action of ejectment in favor of said McDaniel vs. plaintiffs et al. was, as it respected the plaintiffs, utterly void ; because the writ in that action was never served on the plaintiffs, and they had no day in court. There is then nothing in the way of the plaintiffs’ recovering in this action, if the variance between the record of the copy in the town records of Hydepark, and officer’s return on the execution, be not fatal to the plaintiffs’ title. Whether this variance be fatal or not the Court take time to consider, and the case is continued till the next term of this Court.

After the forgoing opinion was pronounced by Mr. Justice BaY-lies, Mr. Justice Royce pronounced the opinion of the Court in the action in favor of Aaron P. Cleaveland vs. Ephraim Garvin and John McDaniels, in which was litigated the same question as in the action of Skinner and Hurds vs. Watson and McDaniels, with regard to the validity of the levy of an execution upon the lands of the debtor, where the. recording of the execution and levy was made, in the town clerk’s office, from a copy left by the officer ; there being no dispute, but that the recording contained the true and correct matter, as ifit were recorded from the original; yet it appeared at the close of the record, that it was recorded from a copy. This opinion supported the levy, affirming the opinion in the other cause upon this point: in which opinion considerable stress was laid upon the circumstance that the officers may probably have been led to leave a copy for record ' with the town clerk, by reason of the statutes allowing a feo to the officer for leaving such copy, and the amount of property, which has been set off in satisfaction of executions, and where the record was thus made from the copy, is very considerable.

After which, Mr. Justice Williams delivered the following dissenting opinion upon the same point.