| Tenn. Sup. Ct. | Sep 6, 1809
Lead Opinion
Ejectment. — It was stated by the counsel that both these causes depended on the same title papers and evidence; and, with the consent of the Court. it was agreed that a jury be impanelled to try both cases.
The plaintiff claimed under a grant to Robert Kerr, with which he connected his title.
The defendants deraigned their title as follows. Judgment was obtained against the plaintiff's father in Hamilton's district. The land in contest was sold by execution under that judgment, and the defendants claimed under the sale by the sheriff. *41
A question arose whether the deed was certified in such a manner as to entitle it to be read. It was certified by the clerk thus: A. B., C. G. C, putting the initials for Clerk of Green county; and by the register thus: C. D. — C. R.; putting the initials for county register. The objection that these initials are not sufficiently descriptive of the character by whom the acts were done, is surely as fine-spun technical an objection as ever was countenanced in a court of justice. I am aware that a case was once determined in the district of Mero, which bears some resemblance to the present; but there was much greater reason to support that case than this. In that, the certificate of the clerk of Davidson county was in this form: "A copy, test Andrew Ewing," without stating his official capacity at all. In that case, the Court determined that the paper could not be read unless the clerk had signed his name officially. I cannot say that the opinion was satisfactory. So strict was the rule considered to be that the courts never would extend it any further. There certainly ought to be a difference between the exemplification of records of our own State and foreign governments. The courts are presumed to know their own laws, and officers appointed under those laws; but not those of other governments. If a copy, from its caption and the body of the writing purports to be a copy of a record, though the clerk or other officer certifying does not sign his name officially, I cannot see the propriety of saying that we will not receive the paper as evidence on account of the omission. It is certain that no persons but those who are by law intrusted with the keeping of records are authorized to certify copies or originals. Suppose the official capacity to be stated, what species of evidence does this furnish? Presumptive only. And as all presumptions of fact stand until the contrary be proven, the evidence is received in ordinary cases. It never can be contended that the certificate of an individual that he is an officer makes *42 him so; and though there be such a certificate, would the Court be precluded from inquiring whether the individual really possessed such a character as he had attributed to himself. If this were the case, any individual of a county, by having access to the office, might send us a copy, signing his name officially; and we should be bound to receive it, though each member of this court might probably know that another person was clerk. The evidence of a certificate of a record is for the determination of the court, as to its reception, and not the jury. In many cases the Court is not only bound to determine as to its reception, but its effect. This happens in all cases where there is no jury. In a case like this, would the Court be bound to receive, as conclusive, the certificate of official character? It appears to me that it would not. Under all these considerations it would seem that the most rational rule is, with respect to the records of the State, that, if from the caption and body of the writing it appears to be a copy of a record, or clearly intended as a certificate of an official act, and there is no reason to believe the person giving the certificate does not possess the character that would enable him to give it, it will receive it in evidence. The case before the Court, however, is stronger, as the initials in proceedings of a civil and not a criminal nature are sufficiently descriptive. This opinion is not intended to apply to criminal proceedings, which perhaps rest on different principles.
CAMPBELL, J., doubted and recommended to the parties to admit the paper to be read by consent, which accordingly was done.
The defendants proceeded with their evidence. They showed that the lessors of the plaintiff were sons of James Stinson, against whom the judgment was obtained; that Samuel Vance owned the land; that he conveyed to James Stinson, the father, but the deed had not been registered; that when James Stinson became involved in his circumstances he destroyed the deed, and afterwards Vance conveyed the land to his sons, then infants.
CAMPBELL and KENNEDY, for the plaintiff took *43 several exceptions to the record of the judgment, execution, c. Afi. fa. was first issued upon which the sheriff returned that he had levied the same on a tract of land. A venditioni exponas then issued upon which the sheriff returned that he had levied the same on a house and lot, and tract of land. A second venditioni exponas issued, upon which the sheriff returned satisfied and ready to render.
It was objected that the sale of this land was made without authority; the first venditioni exponas did not give power to seize property at all. As the writ imports, it only authorized the sale of the property, which had been levied on under the fi. fa. The sale and deed are void on this ground. The return of the sheriff does not state the sale of this land, which is necessary, so that the record may show the person to whom the sheriff was authorized to convey; and the sheriff's deed is void on this ground.
WHITE, for the defendants. — In this case, we have shown a judgment against the father; execution and return of the sheriff, and sheriff's deed reciting that he had sold this land under that execution. Purchasers have nothing to do with any irregularity in issuing process, nor are they to be even affected by an erroneous judgment. If sales were liable to be overhauled in the manner contended for by the plaintiff's counsel, no person could be found to purchase, which would be highly derogatory to the interest of both debtor and creditor, and to the policy of the law.
The case of Waller's Lessee v. Alexander and Whiteside, in the Federal Court, determines this. In that there were a judgment and sheriff's deed only. No execution nor return of the sheriff was shown; and yet the Court determined that the sheriff's title, which recited the judgment and execution, was good. He did not insist that a new levy could be made on a venditioni exponas. This tract of land was levied on by the first execution, the fi. fa. We lay out of view the first venditioni exponas. The second refers to thefi. fa. It was not regular to be sure, but with this we, as *44 purchasers, have nothing to do. All that can be insisted for us to show is a judgment and execution; this we have done. And whether there was error in the judgment, or irregularity in the process, cannot affect a purchase.
SCOTT, for the plaintiff. — Purchasers at sheriff's sale must abide by the maxim of caveat emptor. If there was such irregularity in the sale, it should avoid the deed made by the sheriff. Purchasers at sheriff's sale stand in no better situation than other persons; and in other transactions in life it is incumbent on them to see that the proceedings are regular. In Waller's case, it appeared that the execution was lost. It is admitted that was correct; and such proof may be by parol when better cannot be had. WHITE referred to 2 Bac. Ab. tit. Execution.
Addendum
Purchasers are not to be affected by errors or irregularity of proceeding. All that is incumbent on them to know is, that there is a judgment and execution. It is not necessary for them to show all the proceedings that have taken place in a cause. Nor is the return of an execution necessary to the validity of their title. Let the deed be read.
WHITE, for the defendants, now offered evidence, showing that Samuel Vance once made a deed to Stinson the father, which was now destroyed, and a deed afterwards made by Vance to the sons, the lessors of the plaintiff; and circumstances to show that it was done with a fraudulent intent in the father to deprive his creditors of remedy.
MILLER, for the plaintiff. — The deed from Vance to the father was never registered, and the deed to the lessors of the plaintiff by Vance was, made before the rendition of the judgment; and consequently this land never was bound by the judgment. If Stinson the father ever had an interest, it must have been a resulting trust, in consequence of the payment of the consideration money. This is such an *45 interest as is not liable to execution any more than pledges or equitable rights. A right, to be subject to execution, should be such a one as to afford possession or actual enjoyment. It should be a legal right. A deed does not convey a legal right unless registered. 1715, c. 38, § 5. The law is clear that a legal title to land cannot be acquired except by deed registered. There was no legal title in Stinson to be sold; I ask whether the plaintiff could support an ejectment without title? He could not; nor, upon parity of reasoning, can the defendant maintain his defence against a legal title unless he has one. It is contended that the conveyance to the sons of Stinson is void on the ground of fraud. Suppose it was, this could not better the defendant's situation, there being no such interest in the father as was subject to execution. A deed procured to be made by a person who is indebted, not to himself, but to a third person is not void. Rob. on Fraudulent Conveyances, 467. Whether it be voidable in equity, I will not undertake to say. Deeds are good at law, on the ground of alleged fraud, unless they are void by statute. Agreeably to the statute of the 27th Eliz., there can be no such thing as a fraudulent purchase. There may be a fraudulent sale. In this case, no fraud is pretended in the person conveying, nor in the sons, to whom conveyed. At the time of the judgment, the title was in the sons.
M'KENNEY, for the defendants.
We wish to prove that a deed from Vance to Stinson the father was in existence before our judgment. Agreeably to many cases in our courts, if the deed was in existence we could give it in evidence without being registered. If so, we ought to be permitted to prove its loss and contents. There is no distinction, in the rules of evidence, between real and personal estate. Though there may be a chasm in our title papers, we are entitled to proceed. 1 Hayw. 42; 2 Hayw. 351. If a deed be once made, and lost, the title does not revest. 1 Hayw. 99. In making the deed to the sons Vance acted as the agent of Stinson the father, and must be esteemed the act of *46 Stinson himself. The deed to the sons is absolutely void, not voidable. 1 Har. c. 21.
It is not required of us to give better evidence than the nature of the case admits. Esp. 772. Deeds have been presumed where none were shown, and counterparts admitted. 2 Hayw. 76. We know that a patent from the State always expresses that if it is not registered within the time prescribed by law it shall be void, yet it is not so; so with respect to the deed to Stinson the father. There was fraud, which renders this deed to the sons absolutely void. There is no necessity to go into a court of equity to avoid that which, of itself, is void. As to ancient deeds, he read 2 Hayw. 278.
PARSONS, on the same side, read 1 Burr. 396, and 1 Bac. Ab. 325, Cun. ed., to show that fraud was cognizable at law as well as in equity.
Registration is not necessary to the validity of a deed, and, as the title was once in the father, the destruction of the deed did not divest it. There certainly can exist no distinction between a fraudulent sale and a fraudulent purchase. Gil. L. E. 95; Esp. 780.
WHITE, on the same side. — The conveyance was voluntarily given up by the father, which did not destroy the title vested by the deed. The provision of the law for the registration of deeds was intended for the protection of creditors and purchasers from fraud. The construction contended for will nurture the very thing the act designed to suppress. He read the eighth section of the Act 1715, c. 38, which is copied from the Act of 27 Eliz.; and argued that, it covered the case before the Court. Mr. Miller contends that the record ought to show a legal title. In ejectment, the record never shows title; it is for the evidence to do that. We are told that our remedy is in equity. If this is a fraudulent transaction, why not be relieved here? Law, as well as equity, can take cognizance of fraud, let it present itself in what shape it may. As defendants in ejectment, we are authorized to repel the claim of the plaintiff, though it may be necessary to go into equity to render our case more secure, lest witnesses *47 may die, and several ejectments may be brought. The case in Rob. on Frauds, relied on by Mr. Miller, does not apply here. The title in that case never was in the debtor, here it was; and Stinson the father cannot deprive himself of it to the injury of his creditors. It is not a fraudulent purchase in the sons we are contending for; but a fraudulent alienation in the father in conveying again to Vance, who conveys to the sons.
CAMPBELL, for the plaintiff, was stopped by the Court.
Addendum
In order to a clear view of this case, it may be necessary to examine the ground of proceedings in ejectment, as well on the part of the plaintiff as defendant. On the part of the plaintiff, it is necessary that he should deraign to himself a connected title by conveyances from the grantee; or that he should show a seven years' possession under a grant or color of title. If he does not found his claim on one or the other of these principles, he cannot recover. The defendants, besides the above principles, are entitled to another ground of defence, by a better subsisting legal title out of the lessor of the plaintiff. It is true that, agreeable to the former decisions, by a majority of the court, an exception has been formed to these principles, by permitting a contest in a court of law between an entry and a grant, where the contesting entry has been carried into a grant. By that decision, so far as it goes, we are bound, so long as it remains the practice; but not by its consequences, or the principles of analogy that might result from it. If this were admitted, the boundaries between law and chancery powers would become so obscure that it would be difficult to discern them. It is certainly of much importance that the limits of jurisdiction should be kept as distinct and clear as possible.
Primâ facie, at least, the plaintiff in this action has shown a good title. The position taken by the defendants in their defence, certainly has no reference to any of the principles stated. They claim *48 under Stinson the father, and it seems material to examine whether he ever had, or has now, a legal title, such as could be sold under execution. To complete a title in him, it was necessary that the deed from Vance to him should have been registered. After registration, the title vests by relation from the time of making the deed; and this opinion conforms to the express words of the law 1715, c. 38, § 5, We are not to be understood as saying that land cannot be sold until the deed is registered, if it be afterwards registered. The deed to the father never was registered; it was destroyed before the judgment was obtained; so that there never was a legal title in the father. The defendants, therefore, fail in showing a legal title. They do not pretend to claim by seven years' possession; nor do they seem authorized to oppose the plaintiff's claim on the ground ofrepulsion. The opinion of Coke, Gilbert, Hardwicke, and Mansfield has been referred to, respecting the loss of deeds, and permitting secondary evidence or presumption. These authorities do not apply to the case before the Court. Presumption from length of time has nothing to do with the case before the Court, nor can secondary evidence be received respecting that which never did exist; viz., a legal conveyance from Vance to Stinson the father. If the deed had been registered, proof of its loss would authorize the reading of a copy.
If the defendants should be successful in avoiding the deed to the sons, this would not strengthen their case in a court of law; they would still be without any title themselves. Whether, upon equitable grounds, a court of equity would decree them a title, is another consideration. It is highly probable it would. To enable a person to avail himself of the statute, of Elizabeth or the eighth section of our Act of 1715, c. 38, he must show that he has legal conveyances. The statute may operate in favor of a person having a legal title, so as to enable him to avoid a prior conveyance, in a court of law, on the ground of fraud, as the statute makes such prior conveyance absolutely void; but the operation of the statute never can create a legal conveyance. *49 Such, too, it is believed, is the principles of the common law. Besides, the statute respecting fraudulent conveyances only operates upon the intent of the party conveying. It has not been contended in this case that Vance, in conveying to the sons, designed either fraud or collusion. Had a legal title been perfected in the father by registration, any destruction of the deed would not have revested the title. Registration of deeds has been assimilated to that of grants. This is certainly incorrect, as was determined at Clarksville in the case of Weakly's Lessee v. Wilson and others. The eleventh section of the Act of November, 1777, c. 1, gives the rule with respect to the registration of grants; and the fifth section of the Act of 1715, c. 38, that in relation to deeds. The wording of the two clauses are different, and from thence an irresistible inference arises, that, in the first, the legislature made the registration a condition subsequent; in the second, a condition precedent.
Verdict for the plaintiff.
ORIGINAL NOTE. — POWEL, J., who did not sit in this cause, having been employed as counsel, told the reporter that Judge Humphreys and himself had agreed, on the last eastern circuit, that a deed, or mesne conveyance for land, did not convey any title till registered. So that the law on that point may be considered as settled, the judges being unanimous. [But see Russell v. Stinson, 3 Hayw. 1, where the rulings are somewhat different from those made here.]