11 Mich. 535 | Mich. | 1863
This was an action of ejectment. The plaintiff below, in order to make out his' case, introduced the record of a deed purporting to have been executed January 15th, 1838, by Prentice Williams, the patentee, to John B. Cady, having but one witness, and having an undated acknowledgment purporting to be taken in Massachusetts before a justice of the peace. The date of the record was in March, 1838. No other certificate vas appended, and no proof was offered with it.
Tins record was objected to as invalid for several reasons assigned, and was claimed by the plaintiff below to be within the statute of 1861 (Laws 1861 p. 16) confirmatory of certain deeds and conveyances.
This deed, if admissible at all, comes within sections one and four of the statute, relating- to deeds not validly executed according to the laws of Michigan, but which are
In order to bring this deed within the saving of section one it is necessary to show that, although not valid under the laws, of Michigan as a conveyance for all purposes, it was executed in Massachusetts according to the laws of that State, as well as regularly acknowledged, and therefore valid under the confirming statute. To presume this without evidence would be to disregard the express terms of the statute, which is only applicable to such deeds as are shown to fall within it. No presumptions of validity can be raised where our own laws have not been complied with.
But the record was inadmissible upon a further ground. The statute of 1861 makes a distinction between those deeds which are defectively executed, and those which are well executed but defectively certified to have been acknowledged. By section three it is provided that deeds legally executed and freely acknowledged before a proper officer, and Saving a certificate of acknowledgment substantially correct but not strictly formal, or having an informal clerk’s certificate of a valid acknowledgment, such clerk’s certificate being sufficient in substance, shall, if recorded, be valid to all intents and purposes, and the record shall be effectual for all purposes of a legal record, and such record or a transcript thereof may be given in evidence as in other cases — saving always the rights of bona fide purchasers.
Neither section one nor section four (which relate^ to defectively executed deeds) make any such provision in regard to past or future records. They provide simply that the past or future record of such defective deeds “ shall hereafter operate as legal notice of all• the rights secured by such instrument.” The law is prospective as to notice, and therefore requires no saving clause ; and it does not make the record of any validity except for notice. In the absence of a statute authorizing it the record of a deed is
The record should not have been received in evidence.
The case shows that a good record title was made by the defendant below, and that judgment should"* have been in his favor. But the form in which the case is certified does not show that it is here for review ‘upon the facts, and we can only grant a new trial, with the costs of this Court, in favor of Brown, the defendant below.