15 Ark. 246 | Ark. | 1854
delivered the opinion of the Court-
In an action of trover for a slave, the plaintiff claimed title by gift from one Lewis, and on the trial offered a deed of gift from Lewis to him, dated 10th of July, 1841, which purported to-have been acknowledged by the donor before the clerk and ex-officio> recorder of Randolph. county, and by him filed for record in his office, all on the same day. The acknowledgment is attested by tbe signature only of tbe clerk, not accompanied by his seal of office, or purporting to be sealed. Tbe validity of this deed was also assailed by tlie defendant, upon tbe ground that it was made by, and procured from, Lewis while in a state of intoxication, lie afterwards disowned the act, and remained in possession of the slave in controversy until bis death, in 1844. In April, of that year, he made and published his will, bequeathing his property, including this slave b3r name, to his wife, Phoebe Lewis, •who held him in her possession until May, 1849, when she sold him to the defendant Hunter.
The donor, being no blood-relation of the plaintiff, the alleged gift would not be upheld because made upon any good consideration, as between the parties to it, by any thing contained in the 6th section of tbe statute of frauds. Digest, p; 541.
Tbe judge presiding at tbe trial excluded tbe deed offered as a compliance with tbe statute concerning gifts of slaves, (Digest, Title, Simes,) because tbe acknowledgment was insufficient to admit it to record, but permitted tbe deed itself, without tbe accompanying certificates, to be read to tbe jury as evidence of a parol gift, if the plaintiff could prove that it was accompanied with a delivery of the possession. Slight as tbe proof was, that possession accompanied the gift, when contrasted with the opposing evidence that it remained with the donor, the plaintiff had the benefit of an instruction on that point. So that tbe real question is, whether tbe Court decided correctly in excluding the certificates of acknowledgment and record of the deed. The words of tbe statute are, “ No gift of any slave, shall pass or vest any right, estate or title in, or to, any such slave, in any person whatsoever, unless the same be made, first, by will duly proved and recorded; or, second, by deed in writing to be proved by not less than two witnesses, or acknowledged by the donor, and recorded in tbe county, in which one of the parties lives, within six months after the date of such deed. This act shall only extend to gifts of slaves, whereof the donors have, notwithstanding such gifts remained in possession thereof, and not to gifts of such slaves, as have come to the possession of, and remain with, the donee, or some person claiming under such donee.” This act does not, like the general statute concerning conveyances of real estate, passed during the same session of 1837, specify the officers before whom the acknowledgment may be made, or the mode of taking it, as for example, if taken before a clerk, that it shall be signed by him and attested by his seal of office, if there be one. Construing these statutes together, as part of one entire system of registry, it seems plain, that when the General Assembly have required, or authorized any deed, or'instrument of writing,, to be acknowledged and recorded, it. is understood that the usual mode provided for other cases is to be adopted, as well in respect of the manner of taking and. certifying the acknowledgment, (see also the statute concerning “Mortgages,”) as of the officers empowered to act in such cases! ’Without such a construction, it might be contended, that the clerk, in the present case, had no authority to take and certify the acknowledgment of a deed of this kind in any mode. The attestation then, of the clerk, without his official seal, was insufficient to admit it to record ; as much so, as if the deed, having two or more attesting witnesses, had been proved by the oath of only one of them. The plaintiff relies upon an act of January 5th, 1843, to the effect, that all deeds, bonds, mortgages, and other conveyances of real estate, theretofore recorded, whether duly recorded or not, under the provisions of the law in force at the time of recording, should not, after the passage of that act, be impeached for not being duly recorded, but.shouldhave thesame legal force and effect, as if recorded in the first instance; saving, however, to all persons any lien or right, in law or equity that might have intervened prior to the passage of that act. The only effect of this act (even supposing it to apply to chattels, mortgages and deeds of gift of slaves,) would be to legalize, from that time forward, the recording of conveyances, which had been spread upon the public record, notwithstanding some defect or informality in the acknowledgment of them, so as to make such records constructive notice to creditors, purchasers, and all third persons, wbo might subsequently acquire an interest in the property, of the existence and contents of deeds, valid in the first instance, and sufficient to pass the title as between the parties to them. But it could not have been designed by it to impart validity to deeds, which were void in their inception, or which had become inoperative to pass any title from the donor, because of the failure to comply with certain requisites prescribed by the statute. It may seem a harsh and severe construction of the law, by which the plaintiff is to lose the property, or be deprived of any right he might have had to it, because of an informality, not owing to any fault of his, but to an omission or neglect of duty in the clerk. The statute for authenticating gifts of slaves, where there is no delivery of them to the donee, was intended to guard against frauds, and any course of decision, by which its plain requirements might be qualified or explained away, would have a most mischievous tendency to the public at large, while in any particular case the person injured'by neglect of duty in an officer' has a remedy by action against him.
The Court instructed the jury, that if they found from the evidence, that Lewis made the deed of gift in question, under the influence of intoxication, so as to deprive him of the exercise of his understanding, the deed would be void, and they should find for the defendant. Although there was a conflict of testimony on this point, the jury would have been well warranted in finding, upon the whole evidence, that the donor, at the time he executed the deed, was so drunken, or so much under the continuing influence of previous intoxication, as to be devoid of reason and understanding, and incapable of comprehending the nature and effect of the act. The plaintiff’s father, who is shown to have been instrumental in procuring the deed, was present at the time it was prepared and executed. According to the tendency of the modern cases, see 2 Kent Com. 452; Barrett vs. Buxton, 2 Aikin 167; Gore vs. Gibson, 13 Mees. & Welsby 623; Smith on Contracts 232, where this question is discussed, a deed,.executed under such circumstances, would be voidable at the election of the donor, or any one claiming under liim. On the supposition that the acknowledgment was valid at the time, or might have become so, if made before a competent officer, and duly certified at any subsequent time, within six months from the date of the deed, the instruction should have extended as well to the time of the acknowledgment, as to the making of the deed; because if the donor was rational when he made the acknowledgment, it would be a ratification of his previous act, though done while in a state of actual intoxication, or of delirium Premen's. The Court erred in permitting the defendant to adduce evidence, to prove that it was currently reported and generally understood in the neighborhood that Lewis had made such deed of gift when he was drunk, and that when he became sober he disclaimed or disavowed it. Beputation or hearsay of matters which concern private titles, is not admissible, unless for a particular purpose, affecting a state of case which did not exist here. For example, if the deed had been regularly proved or acknowledged and recorded, evidence of such a common report, current in the neighborhood, might perhaps be admitted against one claiming to be an innocent purchaser from the donee, if shown to have been in the neighborhood when the report prevailed, and in a condition to have heard it, as a circumstance to charge him with notice. But as against the donee himself, the subsequent acts and declarations of the donor, promptly made and persisted in upon a return of reason, repudiating the deed, were competent to go in evidence with other attendant circumstances, illustrative of his mental con. dition, and as these appear to have been sufficiently proved, the judgment ought not, upon a motion for new trial, to be reversed for the error adverted to. In any view, the judgment would have to be affirmed, upon the first ground, that because of the invalidity of the deed, the plaintiff failed to show any title in himself; and it becomes unnecessary to notice any other exceptions reservedin the Court below or argued here. Affirmed.
