Montgomery v. Dorion

| Superior Court of New Hampshire | Jul 15, 1833

Parker, J-,

delivered the opinion of the court. No-objection is made, in this case, to the form of the deed itself under which the petitioner clasmsdor to its due authentication, provided it appears that Winslow was duly-constituted the attorney of the grantors in that deed-hut it is contended,that there having been no acknowledgment, of the power of attorney,under which he acted, by the grantors, according to the provisions of our statute, the case shows no sufficient authority in him to execute the deed.

The statute of 1791, declaring the mode of conveyance by deed, enacted, that when any deed of bargain and sale, mortgage, &e, “ shall be made by virtue of any power ot attorney, or instrument authorizing any person to execute such deed, or other conveyance, .the said power or instrument being recorded in the office where the deed,made by virtue thereof, by law should be recorded, such power having been signed, sealed and acknowledged before a justice of the peace, by the party having lawful right to make the same, a copy thereof from the records shall be read in evidence, when the original cannot be produced, in the same manner as the copy of the deed made thereby is admitted in evidence.”

This section provides in terms only for the use of a copy of the power under certain circumstances, and leaves the principles which govern the admission of the power itself to be settled by the general rules of law.

The statute. however, indicate? that pens ers oi attorney were intended, by the legislature; lo be place-! upon the same crowd r.= the deeds width wigm be made ua-ccr them. and we entertain no ooubi that the same prin-góles in relation to their admisión, in evidence must govern both. 5 N. H. Rep. 428. Southerin v. Mendum.

It becomes r.ccessarv, then, to evamrne the provision? of the law in relation to the acad'hon ol deeds in evidence, and how far an acknowledgment is necessary to their validity.

The same statute of 1731, 11 enacted, that all deeds or other conveyances of any lands, tenements, or heredita-ments, 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 registry of deeds in the county where such lands, &c. lie,shall be valid to pass the same without any other act or ceremony in law whatever — and no deed of bargain and sale, mortgage, &c. of any lands, &e, in this slate, shall be good and effectual in law to hold such lands. &c. against any other person or persons but the grantor or grantors and their heirs only, unless the deed or deeds thereof be aekno wledced and recorded ia manner aforesaid.”

The statute also provided that when any grantor or lessor shall go beyond sea, or be removed out of this state, or dead, before the deed or conveyance be ae-knowedged, as aforesaid, proof of the deed by a subscribing witness before any court of record in this state shall be equivalent to the grantor’s acknowledgment thereof before a justice of the peace — and where the witnesses and grantor are dead, the proof of the hand writing of the grantor and the witnesses, by the oaths of two witnesses before a court of record within this state, shall be equivalent to an acknowledgment, provided it be made to appear to the. court that the grantee had, in the lifetime of the grantor, taken actual possession, and that such actual possession had been quietiy continued by the urantee. or some one claiming m.der 3dm. op to the time of the application.

The statute Further provided, t: that if any grantor or lessor of any lands, &c. refuse to acknowledge any deed of bargain and sale, &c. by him or her signed, it shall be lawful for the grantee or lessee to put the same on record without any acknowledgment, and such deed so recorded in the registry of deeds, shall be deemed sufficient caution to all persons against purchasing, attaching, or levying execution on the same- land' for the space of sixty days from the time of recording, and shall, during that time, be good and effectual in Jaw, to all intents and purposes, as though such deed or other conveyance were duly acknowledged.” And provision is then made for a mode of proof in such case of refusal.

The revised statute of 1829, contains, so far as the subject matter of this controversy is concerned, provisions somewhat similar to those before cited.

It is dear that the notarial certificate in this case is not a certificate of an acknowledgment, such as the statute required in order to entitle a deed to be recorded in the registry of deeds. The certificate also fails far short of the proof which the statute authorized in certain cases as equivalent to an acknowledgment, and tliere is no principle upon which a copy of this power from the records can be admitted in evidence.

Bat it does not, therefore, follow, that the original may not be produced and proved

The question then arises, how far an acknowledgment is necessary to the validity of a deed, so that it rosy operate as a conveyance of the land granted by It.

That acknowledgment and recording are not deemed' essential to the validity of a deed in all cases, is evident irom the fact, that by direct implication from the language of the statute, neither of them are essential as ntra¡ni.t the grantor and his heirs. And the reason is, because the grantor mast have knowledge of the deed executed by himself, and the statute intended that this knowledge should bind Ids heirs who ought to be in no better situation than their ancestor. 4 Mass. Rep. 546, Pidge v. Tyler.

So where a third person, with knowledge that a deed of land has been executed, although not recorded, purchases the land and puts Tits deed on record, it lias been repeatedly held, both here and elsewhere, that such unrecorded deed is validas against him. 1 N. H. Rep. 11; 4 Blass. Rep. 546, 637; 6 ditto, 24, 487, 10 ditto, 60; 14 ditto, 300; 9 Johns, 163; 10 ditto. 457; 4 Wend., 585" court="N.Y. Sup. Ct." date_filed="1830-05-15" href="https://app.midpage.ai/document/jackson-ex-dem-hunter-v-page-5513411?utm_source=webapp" opinion_id="5513411">4 Wendell, 585; 4 Greenleaf, 20.

The True object of the statute of enrolments is, to give notice so that subsequent purchasers and creditors may not be deceived respecting the title, and that such ⅛ the object is further shown by the provision for recording,where the grantor refuses to acknowledge, until time can be given to prove the deed in the manner prescribed by the statute.

The object of the statute in requiring the acknowledgment, is to give such authenticity to the deed that it may be put upon record. 4 Mass. Rep. 544; 6 ditto, 30, Marshall v. Fisk. This is evident from those portions of the statute before cited regulating the proof where the grantor is dead, or removed, or refuses to acknowledge.

If executed witI» the formalities prescribed by the statute, it is not the less his deed because he has removed without acknowledgement, or refuses to acknowledge. It is still good and valid against him, and against his heirs.

But it cannot be recorded until acknowledged, or proved in the manner set forth in the statute, except in the case there provided for. and thus has no validity against subsequent purchasers or creditors without notice ; but if they have notice it is valid against them as well «8 against the grantor.

The provisions of the statute, then, respecting both acknowledgement and record, were, in our view.intended to protect creditors and subsequent purchasers without notice. 10 Johns, Rep. 466, Jackson v. Fosdick; 2. Conn. Rep. 108, opinions of Swift, Ch. J. and Goddard, Hosmer & Gould, Justices; 9 Cowen, 120, Jackson v. Post; and the validity of this deed, as against the respondent, John B. Dorion, will depend upon the fact, whether he stands in either of these characters, in relation to the title set up by the petitioner to the premises in question.

If he does, as the power of attorney was not authenticated in such a manner as to entitle it to be recorded, the record of it was a nullity, and gave him no constructive notice. 2 Binn, 40, Heister v. Fortner; 1 Johns, Ch. Rep. 300, Frost v. Beekman; 5 Mason, 265, McNiel v. Magee; 8 Conn. Rep. 550, Carter v. Champion; and as there is nothing in the case to show actual notice, the power of attorney, and, of course, the deed made under it, are, as to him, invalid.

But if the respondent’s title is not derived in either of these modes from the same source with that of the petitioner — if, in truth, lie is a mere wrong doer, he cannot object to the want of acknowledgement or of record.

The power and deed were sufficiently executed to pass the land, as between the parties to that conveyance, and with the questions, whether sufficiently authenticated to entitle them to be recorded, and, whether recorded, or not, an entire stranger to the title under which the petitioner claims has no concern. He is not entitled to any notice, nor was the statute intended to provide a notice to him of a transaction in which he had no interest. He must stand or fall upon the merits of his own claim, and the merits of the title arrayed against him, and not upon any question whether he had, or had not, notice of the conveyance, when it appears that aj conveyance was sufficient to pass the land, as between the parties to that title. If he holds under a better title than that under which the petitioner claims, he will prevail on the merits. If he is a mere trespasser, the petitioner having duly acquired the title of her grantors, has the same right to recover against him which they ■would have had but for the conveyance to her.

We are all of opinion, therefore, that the power and ■deed under it, are sufficient as the case stands, and there must be a further enquiry as to the title of the respondent.