US SUPREME COURT DECISIONS

A decree of the Supreme Court of Ohio ordered that the patentee of a certain tract of land should, within six months, make a deed &c. with covenants of warranty conveying a portion of the land held under a patent to the complainants in that suit, and on the failure of A to make the said deed, &c.,

"that then and in that case the complainant shall hold, possess, and enjoy the said portion of land in as full and ample a manner as if the same had been conveyed to him."

The decree of the Supreme Court of Ohio by which a conveyance of land is directed to be made, the decree being according to the laws of Ohio, vested in those to whom the deed was ordered to be made such a legal title to the land to have been conveyed by the deed as would have been vested by a deed of equal date, and the Registry Act of Ohio applies as well to a title under such a decree as it would do if the party held under a bona fide deed of the same date with the patent of the land, and the decree gives a legal title as ample as a deed.

The Registry Act of Ohio directs that all deeds made within the state shall be recorded within six months from the time of the actual execution thereof, and declares that if any such deed shall not be recorded in the county where the land lies within the limits allowed by the law, "the same shall be deemed fraudulent and void against any subsequent purchaser for a valuable consideration without note of such deed."

In the construction of the Registry Act of Ohio, the term "purchasers" is usually taken in its limited legal sense. It means a complete purchaser, or in other words, a purchaser clothed with a legal title.

It is not necessary that a deed made to a subsequent bona fide purchaser without notice shall be recorded to give it operation against a prior unrecorded deed, as by the provisions of the registry acts the prior deed is declared in itself absolutely void as against such purchaser.

Whether erasures and alterations in a deed are material or not is a question of law to be decided by the court.

The construction of words belongs to the court, and the materiality of an alteration in a deed is a question of construction.

This was a writ of error to the Circuit Court of the United States for the District of Ohio to reverse the judgment of that court in favor of the defendant in error in an action of ejectment instituted by the plaintiff in error to recover a tract of land in Perry County in the State of Ohio.

The title claimed and exhibited by the plaintiff in the ejectment was originally derived under a patent from the United States to Jesse Spencer, dated November 15, 1811, who with George Spencer and others were the heirs at law of Thomas Spencer deceased, and in order to show the title acquired by the patent, he offered in evidence a deed from Jesse Spencer, the patentee, and Catharine his wife to William Steele, purporting chanrobles.com-red

Page 26 U. S. 553

to bear date 20 January, 1818, and which appeared on that day by the certificate on the deed to have been acknowledged before a justice of the peace.

"William Fulton, one of the subscribing witnesses proved that he attested the deed in the office of Jesse Spencer, but could not state when; that William Steele was not present; that he knew nothing of the purchase of the land by William Steele from Jesse Spencer; and that he saw no more of the deed until about one year ago, when Spencer and Steele were together, and Spencer produced the deed to see if the witness would recognize his signature."

Wherever the name of William Steele appeared either in the body of the deed or the label thereon, it manifestly appeared to have been written on an erasure, and with ink of a different color, as did the words "Ross" and "Ohio," in describing the place of residence of said Steele. The alterations on the face of the deed were not accounted for by any testimony. This deed was not recorded in the county where the land lies or elsewhere. The plaintiff further offered in evidence a deed from William Steele and Sarah his wife to Robert Steele, the lessor of the plaintiff, bearing date 7 July, 1821. Also the deposition of John Daragh to prove the execution of said deed, which deed and the certificate and acknowledgment thereon, and also the deposition of John Daragh, were also not recorded.

The defendants in the ejectment were in possession of the land, and they claimed to hold it under a decree of the Supreme Court of the State of Ohio for Ross County, sitting in chancery rendered on 3 January, 1820, in a proceeding by a bill filed in Perry County, and, under advisement in Ross County, by the heirs of Thomas Spencer, deceased, against Jesse Spencer and others, by which decree Jesse Spencer was ordered to convey the land in controversy, to certain of the parties in the said bill, upon their full compliance with the terms and conditions stated in the said decree. The decree also proceeds as follows:

"It is further ordered and decreed, that if the complainants shall within the time specified, deposit and pay to the clerk of Perry County aforesaid, the several sums of money aforesaid, and interest thereon, as aforesaid, and the defendant, Jesse Spencer, shall fail to make out, execute and deliver to said clerk, a deed for nine-tenths of the land aforesaid, within the times aforesaid, in manner aforesaid, that then and in that case, the heirs at law aforesaid, to whom the land aforesaid is decreed to be conveyed, in manner aforesaid, shall hold, possess and enjoy, nine-tenths of the half section aforesaid, to them, their heirs, and assigns forever, in as full and ample a manner as though the same were conveyed to them by the said Jesse Spencer, defendant, in manner aforesaid. . . . It is further ordered that Jesse Spencer,

Page 26 U. S. 554

the defendant, pay the costs of the suit in seven months from the date of this decree, and if he fail so to do, that then execution or executions issue in the same manner as executions issue on judgments at law. It is further ordered and decreed that the bill as to the other two defendants, to-wit, William Spencer and James Spencer, is dismissed without costs, and that the Clerk of the Supreme Court for Ross County enter this decree of record in the said Supreme Court of Ross County, and that he transmit a copy of this decree to the Clerk of the Supreme Court of Perry County, it being in the same county from which this cause was removed here for decision, and that the same be entered of record in the Supreme Court of the said County of Perry in the same manner as if the cause had been there heard and decreed. It is further ordered and decreed that if the money is not paid and deposited in manner aforesaid, and within the time aforesaid, that then these complainants shall pay all the costs of the suit."

The defendants also exhibited evidence of their having fully complied with all the requisites of the said decree by the payment of the sum of $524, the amount decreed to be paid, and also that the decree was duly recorded in the proper office for recording of deeds of the County of Perry on 24 July, 1822.

After the evidence was closed, the court, on the motion of the counsel for the defendants, instructed the jury as follows:

1. That the decree of the Supreme Court of the State of Ohio given in evidence in this cause by the defendants vested in them such a legal title to the land in question as would have been conveyed by deed of equal date from Jesse Spencer, the patentee, and that the Registry Act of Ohio applies as well to the title of the defendants under the said decree as it would do if they held under a bona fide deed of the same date from the said patentee. chanrobles.com-red

Page 26 U. S. 559

2. That if the elder deed be not recorded within the time specified by the Registry Act of Ohio, it is wholly void as to subsequent bona fide purchasers without notice of the existence of such deed.

3. That if the deed from Jesse Spencer to William Steele was altered in a material part after it was sealed, attested, and acknowledged, such alterations absolutely avoid the deed, and it can convey no title to the lessor of the plaintiff. The counsel of the defendant objected to those parts of the instructions contained in the first and second specifications. They submitted to this Court the following points:

1. The court below erred in charging the jury that the Registry Act of Ohio applies as well to the title of the defendants chanrobles.com-red

Page 26 U. S. 555

under the decree set forth in the bill of exceptions as if they held under a bona fide deed of the same date.

2. The court below erred in charging the jury that if the deed from Jesse Spencer to William Steele was altered in a material part after it was sealed, attested, and acknowledged, such alteration absolutely avoids the deed, and it can convey no title to the lessor of the plaintiff, because

1. Such an alteration, if made without the consent of the grantee, would not avoid the deed and divest the estate vested by the execution of the deed in the grantee.

2. An alteration of the deed made with the consent of the grantee could not divest the estate conveyed by the deed and revest the same in the grantor. chanrobles.com-red

Page 26 U. S. 557