U.S. Supreme Court
Carpenter v. Dexter, 75 U.S. 8 Wall. 513 513 (1869)
Carpenter v. Dexter
75 U.S. (8 Wall.) 513
l. A justice of the peace was not authorized by the laws of Illinois, in 1818, to take the acknowledgment or proof, without the state, of deeds of land situated within the state, but this want of authority was remedied by a statute passed on the 22d of February, 1847.
2. In aid of the certificate of acknowledgment or proof of a deed, reference may be had to the instrument itself or to any part of it.
Thus, where a law of Illinois in force in 1847 provided that no officer should take the acknowledgment of any person unless such person should be personally known to him to be the real person who executed the deed and in whose name such acknowledgment was proposed to be made or should be proved to be such by a credible witness, and that such personal knowledge or proof should be stated in the certificate, and the certificate of the officer, following immediately after the attestation clause of the deed, stated that the "above-named grantor, who has signed, sealed, and delivered the above instrument of writing, personally appeared" before the officer and acknowledged the same to be his free act and deed, but omitted to state that the person making the acknowledgment was personally known to the officer to be the person who executed the deed, held that the omission was supplied by reference to the attestation clause, which declared that the instrument was "signed, sealed, and delivered" in presence of the subscribing witnesses, of whom the officer taking the acknowledgment was one.
3. It will be presumed that a commissioner of deeds in New York, whose authority to act is limited only to his county, exercised his office within the territorial limits for which he was appointed, although the only venue given to his certificate of acknowledgment be "State of New York." If such were not the presumption, the defect in this particular held to be supplied in this case by reference to the deed and the previous certificate of acknowledgment by the same person, in the first of which the grantor designated the county in which he had affixed his hand and seal to the instrument, and in the second of which the county is given in its venue.
4. When a deed showed that one Wooster was a subscribing witness with the officer, and the certificate of proof given by the officer stated that "Wooster, one of the subscribing witnesses," to the officer known, came before him, and being sworn, said, that he saw the grantor execute and acknowledge the deed, held that there was a substantial compliance with the statute requiring the officer to certify that be knew the affiant to be a subscribing witness.
5. Unless the statute of a state requires evidence of official character to accompany the official act which it authorizes, none is necessary. And where one state recognizes acts done in pursuance of the laws of another state, its courts will take judicial cognizance of those laws so far as it chanrobles.com-red
may be necessary to determine the validity of the acts alleged to be in conformity with them.
Thus where a statute of Illinois provided that deeds of land within the state which had been or might thereafter be executed without the state and within the United States and which had been or might be acknowledged or proved in conformity with the laws of the state where executed, were admissible to record in the counties of Illinois in which the property was situated, and a deed executed in New York was acknowledged before a judge of a court of record of that state -- an officer authorized by the laws of New York to take the acknowledgment and proof of deeds -- and the certificate of this judge was not accompanied by any evidence of his official character or that his certificate was in conformity with the laws of that state, held that no such certificate of conformity was necessary for the reasons given above.
The action was ejectment to recover the possession of certain real property situated in the County of Bureau in the State of Illinois. Both parties claimed title from the same source -- a patent of the United States issued to William T. Davenport in May, 1818. The points in dispute arose upon the deraignment of title from the patentee.
The plaintiff produced in evidence the patent, a deed from the patentee to one Hawley, dated in September, 1818, a deed from Hawley to Thaddeus Munson, dated in December, 1818, and a deed from Munson to William James, dated in February, 1819, all of which embraced the demanded premises. The deeds were inscribed upon the record in the proper register's office in May, 1819. Those from Davenport to Hawley and from Hawley to Munson contained this endorsement (unsigned by the recorder) of the fact:
"EDWARDSVILLE, May 17th, 1819"
"I certify the within deeds, together with the certificates of acknowledgment, are this day recorded and examined in my office, in Book V, p. 353 and 354. [Footnote 1]"
William James died in 1832 leaving several heirs-at-law. The premises in controversy were allotted in severalty to chanrobles.com-red
John B. James, by a decree of one of the circuit courts of the state in a suit for partition between him and his coheirs. John B. James died in 1844, leaving a will by which he devised the premises to the plaintiff. The record of partition and the record of the will and of its probate were produced in evidence.
The defendants, also relying upon the patent of the United States to Davenport, introduced in evidence a conveyance of the premises, from the patentee, to one De Witt bearing date in August, 1818, and a conveyance from the heirs of De Witt to himself bearing date in July, 1861. The first of these deeds was recorded in December, 1861, and the other was recorded in February, 1862.
Beginning with the plaintiff's case. The deed from Davenport to Hawley concluded with the following attestation clause:
"In witness of all the foregoing, I have hereunto fixed my hand and seal, at Albany, in the County of Albany and State of New York, this first day of September, one thousand eight hundred and eighteen."
"WM. T. DAVENPORT [L.S.]"
"Signed, sealed, and delivered in the presence of"
"WM. D. WOOSTER"
"H. WENDELL, JR."
The certificate of acknowledgment following immediately after the above clause, was thus:
"STATE OF NEW YORK,"
"COUNTY OF ALBANY, ss."
"Be it remembered, that on the first day of September, 1818, the above-named William T. Davenport, who has signed, sealed, and delivered the above instrument of writing, personally appeared before me, the undersigned justice of the peace, and acknowledged, in due form of law, the same to be his free act and deed, for the purposes therein set forth, and also gave his consent, that the same should be recorded wherever it might be deemed necessary. In witness of all of which, the said justice
has hereunto affixed his hand and seal, and undersigned the same."
"H. WENDELL, JR. [L.S.]"
"Justice of the Peace"
[The reader will note that the magistrate who takes the acknowledgment was a subscribing witness to the execution, but that nothing is said as to the grantor's being known to him, as the real party who signed the deed.]
A certificate of the official character of Wendell as a justice of the peace at the time he took the above acknowledgment from a clerk of a court of record of New York accompanied the above certificate.
In addition to the record of acknowledgment, there was upon this deed from Davenport a certificate (by the same magistrate who took the acknowledgment) of the proof of execution by the person who with him had attested the execution as a subscribing witness. That certificate ran thus, no particular city or town being given as the place where it was made:
"STATE OF NEW YORK:"
"On this second day of September, 1818, before me came William D. Wooster, one of the subscribing witnesses to the within indenture, to me known, who being sworn, saith that he saw the within-named grantor, William T. Davenport, duly execute and acknowledge the within indenture, and that he knows him to be the same person named and described in, and who acknowledged duty to have executed the same as his free act and deed. I allow the same to be recorded."
"H. WENDELL, JR."
[The magistrate taking this probate, it will be observed, signs himself Commissioner &c. By the statute of New York in force on the 2d of September, 1818, commissioners of deeds were authorized to take the acknowledgment and proof of deeds [Footnote 2] for the county where they resided.] chanrobles.com-red
A certificate of the official character of Wendell as a commissioner of deeds and of his authority to take the proof of deeds at the time when the above-mentioned proof was taken accompanied the certificate just mentioned.
So far as respected the deed from Davenport.
The commencement of the deed from Munson to James was as follows:
"This indenture, made the thirteenth day of February in the year of our Lord one thousand eight hundred and nineteen between Thaddeus Munson, of the City and County of Albany and State of New York, of the first part, and William James, of the city, county, and state aforesaid, of the second part, witnesseth &c."
The certificate of acknowledgment to this was with the same general form of place of making as was the last deed.
"STATE OF NEW YORK, ss."
"Be it remembered, that on this thirteenth day of February in the year of our Lord one thousand eight hundred and nineteen came before me the above-named Thaddeus Munson, to me well known, and acknowledged to have signed, sealed and delivered the above deed for the uses and purposes therein expressed. All which I certify according to law, and allow the same to be recorded."
"Judge, Albany Common Pleas, Counselor &c.,"
"ex-officio performing the duties of a Judge"
"of the Supreme Court at Chambers &c."
This certificate was unaccompanied by any evidence of the official character of this judge or that his certificate was in conformity with the laws of New York.
To the introduction of the several deeds produced by the plaintiff objection was made on the ground that they had not been duly proved. No specification was made of the particulars in which the proof failed.
How far certain objections made on the argument here, and which may perhaps be assumed to have been the true ground of objections below, were well founded depended upon certain statutes of Illinois now to be mentioned. chanrobles.com-red
A statute of 1845, [Footnote 3] which enacts that all deeds and other instruments relating to or affecting the title to real property shall be recorded in the county where the same was enacted in regard to the acknowledgment &c. (prior acts as to acknowledgments not having required a certificate of personal knowledge &c), as follows:
"No judge or other officer shall take the acknowledgment to any deed unless the person offering to made such acknowledgment shall be personally known to him to be the real person who executed the deed, and in whose name such acknowledgment is proposed to be made or shall be proved to be by a credible witness, and the judge or officer taking such acknowledgment shall in his certificate thereof state that such person was personally known to him to be the person whose name is subscribed to such deed, as having executed the same, or that he was proved to be such by a credible witness."
The statute further provided that the fact of such personal knowledge or proof should be stated in the certificate.
At the time of this act, justices of the peace could not take acknowledgments.
An Act of February 27, 1847, provided, however, that all deeds of land lying within the state might be acknowledged or proved before any commissioner of deeds and "before any justice of the peace," but it enacted that:
"If such justice of the peace reside out of this state, there shall be added to the deed a certificate of the proper clerk setting forth that the person before whom the proof or acknowledgment was made was a justice of the peace at the time of making the same."
And then declared that:
"All deeds and conveyances which have been or may be acknowledged or proved in the manner prescribed by this section shall be entitled to record, and be deemed as good and valid in law in every respect as if the same had been acknowledged or proved in the manner prescribed"
by a previous law. chanrobles.com-red
The same act provided further:
"That deeds of lands situated within the state which have been or may hereafter be executed without this state and within the United States and which have been or may hereafter be acknowledged or proved in conformity with the laws of the state, territory, or district in which they were executed shall be admitted to record in the county wherein the lands are situated, and such deeds &c., acknowledged or proved as aforesaid, when so recorded, may be used as evidence without further proof of the execution thereof."
It was agreed between the parties that the statutes of New York and of Ohio were to be considered as evidence.
The court admitted the deeds notwithstanding the forms of acknowledgment and proof.
When the record of partition in the suit between James and his coheirs was produced, objection was made by the defendant on the alleged ground that it did not show jurisdiction of the persons and subject matter, but the objection was overruled and exception was taken. No particulars in which the record failed to show jurisdiction were stated with the objection. The record itself showed, however, that some of the heirs were minors and that the guardian ad litem for these having filed his answer and set up no opposition to the prayer of the bill, the bill had been taken pro confesso.
The court instructed the jury that if the heirs of William James living at the time the proceedings for partition were commenced were made parties to that suit, then whatever title William James had at his death passed, by the operation of the decree in that case to John B. James, and the court left the question whether his heirs were made parties to the partition proceedings to the jury, to be determined from the evidence.
To that part of the instructions of the court which left it to the jury to say under what circumstances the decree in partition was to vest title in John B. James the defendant excepted.
Another question perhaps involved, or at least one which chanrobles.com-red
was discussed here was whether, admitting the deed from Davenport to Hawley to have been in fact inscribed in the official record books in the recorder's office, they were, with such acknowledgment and proof as they had, to be considered as being recorded in law, so as to give constructive notice to purchasers. And this matter depended in part on certain provisions of the already quoted act of 1845, thus:
"All deeds &c. which are required to be recorded shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers without notice, and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers without notice until the same shall be filed for record."
"Deeds &c., shall be deemed, from the time of being filed for record, notice to subsequent purchasers and creditors, though not acknowledged or proven according to law."
The blank certificate [Footnote 4] (not signed) on the back of the deeds by Davenport to Hawley and from Hawley to Munson was read on the trial of the case, without any objection thereto as evidence of the said recording, and no objection was made that the said blank certificate was not signed by the clerk or recorder, and no exception was taken to the instruction of the court that the said deeds were recorded May 17, 1819.
On this part of the matter, the court instructed the jury that the deed from Davenport to Hawley was recorded in the proper office under the laws of Illinois before the deed from Davenport to De Witt, and if Hawley was a purchaser for a valuable consideration without notice of the unrecorded deed from Davenport to De Witt, then Hawley and those claiming under him acquired a good title as against De Witt and those claiming under him. The court was of the opinion from the circumstances proven in this case that the law would presume that the deed to Hawley was made upon and for a valuable consideration. The court left chanrobles.com-red
the question to the jury to decide whether Hawley had such notice, and they were to determine whether there was notice or not from the evidence.
To that part of the instructions which left it to the jury to say whether or not Hawley was a bona fide purchaser without notice of any other deed from Davenport the defendant excepted.
The jury rendered a verdict for the plaintiff, and judgment in his favor was entered thereon. chanrobles.com-red