Murrell v. Diggs

84 Va. 900 | Va. | 1888

Lewis, P.,

delivered the opinion of the court.

The plaintiff, defendant in error here, claimed title under a deed from John H. Lewis, trustee, dated December 15, 1886. The plaintiff purchased the premises in controversy at a public sale thereof made by the said Lewis, trustee, under a certain deed of trust dated November 18, 1881. The last-mentioned deed, which was introduced as evidence at the trial by the plaintiff, has annexed to it two certificates, signed by A. G. Waugh, notary public, and in the form prescribed by the statute, certifying that on the said 18th day of November, 1881, the deed was acknowledged before him by Murrell (the defendant) and wife, “whose names are signed” thereto. Andón the same day, the deed having been presented in the clerk’s office of the corporation court of Lynchburg, in which city the premises in controversy are situate, was admitted to record “upon the annexed certificates of acknowledgment,” as appears from the endorsement of the clerk on the deed.

The defendant pleaded the general issue, “not guilty,” and at the trial offered to testify, as a witness in his own behalf, that at the sale of the premises by the trustee, he, the defendant, was present and forbade the sale, on the ground that the deed of trust was a forgery; that it was never heard of by him before steps were taken to sell the property; that he never-executed the deed, nor authorized its execution, and that, of all this the plaintiff was informed on the day of sale, and before the sale took place. The circuit court, however, excluded the evidence, and the defendant excepted; and the question thus presented is the question to be determined.

It is conceded that the holder of the note secured by the deed of trust, and for whose benefit the sale was made, had no notice prior to the sale that the validity of the deed ivas questioned; nor was any attempt made to prove mala fides either on the part of the cestui que trust or the trustee The simple question, then, is whether upon the grounds just mentioned, parol evidence was admissible to contradict the deed of trust, which is regular on its face, and which purports to have been duly acknowledged and admitted to record. We are clearly of opinion that it was not. The act of an officer in taking an acknowledgment of a deed is judicial in its character, and cannot he impeached collaterally. He determines whether the person whose name is signed to the deed is the actual grantor, and also whether he truly acknowledges the same as his act and deed; and after these points have been determined'and certified by him, in conformity with law, and the deed has been duly recorded, the proceeding has all the force and conclusiveness of a judgment of a court of record. The'mischievous consequences of a different doctrine can hardly be overstated, inasmuch as it would render titles to real estate utterly insecure, and liable at any moment, and at any distance of time afterwards, to he questioned and overthrown by parol evidence in a collateral proceeding.

The question is not an open one in this court. In Carper v. M’Dowell, 5 Gratt., 212, it was said by Judge Baldwin, in delivering the-opinion of the court, that “it may be laid down, without qualification, that the registration of a deed, regular upon its face, cannot be contradicted by evidence in any collateral controversy. Thus, in an action of ejectment for the recovery of land, if the title turns upon the due registration of a deed, the registry itself is the only legitimate evidence upon the question, and parol evidence is inadmissible to prove that it was not duly proved or acknowledged and admitted to record, even though the registration was fraudulently procured.” And in the same ease it was said that not only is a proceeding to register a deed, which is regular on its face, not impeachable collaterally by any evidence whatever, but that it cannot be impeached even directly, except in a court of equity, and not even there except upon the ground of fraud or upon some other ground which reaches the conscience of the party.

The same principle was asserted in Harkins v. Forsythe, 11 Leigh, 294, in which ease it was decided that a certificate of two justices of the peace of the privy examination of a married woman could not be contradicted by parol evidence, there being-no allegation of fraud. The privy examination of a married woman, it was said, is in Virginia a substitute for the ancient common law proceeding by fine in a court of record, which derived its name from putting an end not only to the suit, but to all controversies concerning the same subject matter, and could be relieved against only for fraud in the court of chancery. See also Hitz v. Jerks, 123 U. S., 297; Davis v. Beazley, 75 Va., 491; First Nat’l Bank v. Paul, Id., 594.

In the light of these principles, it is very clear that the judgment "complained of must be affirmed.

Judgment aeeirmed.