Moore v. Lessee of Bickham

4 Binn. 1 | Pa. | 1811

Tilghman, C. J.

This is a writ of error to the Common Pleas of Northumberland county, founded on the opinion of the president of that court reduced to writing, and filed according to the act of assembly. The plaintiffs had sold to Christopher Quigley one of the defendants a tract of land, for which he had paid a small part of the consideration money, and entered into possession in the year 1791. In 1795, the agents of the plaintiffs tendered to Quigley a deed of conveyance, and demanded payment of the balance of the money. Quigley refused to accept the deed, in consequence of which, the plaintiffs considered the contract as void, and brought this ejectment. Several objections were made to the opinion delivered by the president. I shall take notice of only one of them, because it is decisive. The deed tendered by the plaintiffs was executed by five persons, three of whom were men, and two, married women. It was acknowledged according to law, but there was a blank left for the consideration. There was evidence, that the agent of the plaintiffs was authorized by them to fill up this blank. Under these circumstances, the president of the Court of Common Pleas was of opinion, that the deed was sufficient. The ^consideration is a material part of the deed. It is necessary in order to give it operation. This was intended to take effect as a deed of bargain and sale. To such a deed, a valuable consideration is necessary. It matters not how small, but some consideration must be expressed. This may seem a captious objection, but is really of importance. In taking a title of land, it is of great consequence to have everything so clear, as to leave no room for law suits; and it would be extremely hard to make the purchaser forfeit his title, because he refuses to accept a deed which might leave him exposed to injury But it is said, that the blank might have been filled up by the consent of all parties; and as the grantors had authorized their agent to do it, Quigley ought to have consented. Where a deed has been acknowledged before a magistrate appointed by law to take and certify the acknowledgment, in order that the deed may be recorded, the parties have no right to make the most trifling alteration. An altered deed is not the same which is certified. The act of the magistrate is independent of the parties, and no consent of theirs can warrant them in falsifying it. But in this case, there was not the consent of all the grantors, at least there was no legal consent. Two of them were married women, whose rights to land cannot be affected without a private examination before a magistrate ; and it is not pretended that any such thing took place. Indeed it does not appear that the consent of the women was given at all. I presume that it was thought unnecessary ; for Mr. Kidd the agent only proves that he was authorized to fill up the blank by Bickham and company. I am therefore of opinion, that Quigley was not obliged to accept the deed which was tendered, and that the judgment of the Court of Common Pleas be reversed. A venire facias de novo must be awarded.

Ye ates J. was of the same opinion. Brackenridue J. of the same opinion.

Judgment reversed.

[Cited in 10 S. & K. 168, 172.]