20 Wend. 423 | N.Y. Sup. Ct. | 1838
After advisement, the following opinion was delivered :
The only material question in this cause is, whether the transcript of the deed of December, 1764, from the ancestor of the plaintiffs, to his brother Philip Van Cortlandt, under whom the defendant has derived his title to the premises in controversy, was legal evidence for the defendant upon the trial in the court below. This depends in some measure upon the construction of the first section of the act of January 1811, concerning the record of certain ancient conveyances; which section was substantially the same as the sixth section' of the general recording act of April, 1813. 1 R. L. of 1813, p. 371. Independent of this statutory provision, however, I am inclined to think this record would have been good secondary, evidence of the deed of 1764, upon due proof that the original deed could not be found. The premises had been held in conformity with this deed for more than forty-five years before the trial, and subsequent to the death of the tenant for life, who died in 1789. If the original deed had been produced, it might therefore have been given in evidence, without any proof of the execution thereof by the grantor. It is also a well known historical fact, that the British refugees, who left this state at the close of the revolution, generally carried off their title deeds with them, to prevent the confiscation of the property under previous acts or judgments of attainder, or for the purpose of obtaining a remuneration from the British government for the loss of such property. The question does not, however, appear to have been raised upon the trial as to the admissibility of the record as secondary evidence, independent of the statute. Neither was the
It is supposed by the counsel for the plaintiffs in error that the only object of the first section of the act of 1811, and of the sixth section of the act of 1813, was to provide for the giving in evidence of an authenticated copy of the record of a deed or other conveyance, recorded in the county where the lands were situated, instead of producing the original record itself.. If that was the object of the statute, it is very difficult to conjecture why it was confined to ancient deeds only which were executed previous to July, 1776, instead of being extended to all conveyances executed either before or after that time, and also to deeds recorded in the secretary’s office. Upon examination, also, it is found that for any other object, than that of making the record or the transcript of a deed recorded in the wrong county previous to the revolution, legal evidence of the existence of such an ancient deed, these legislative provisions were entirely useless and uncalled for, under the laws then in force as to all deeds properly recorded previous to the revision of 1788. By an express provision of the act of the 26th of February, 1788, 2 Greenl. Laws, 99, § 1, the record of every deed or conveyance theretofore executed, and duly acknowledged or proved, and recorded in the office of the secretary of state, or in the clerk’s office of the county where the lands were situated, might be read in evidence in any court in this state without further or other proof of such deed or conveyance; and the statute further declared, that either the record or a transcript thereof might be given and received in evidence. No further statutory provision, therefore, could have been necessary to render the transcript of the record of such a deed legal evidence, provided ■the deed had been recorded in the county where the lands were
The act of 1771 does not profess to declare that none but a judge of the court of common pleas where the land lay could take the acknowledgment or proof of a deed before that time, with a view to its being recorded, nor to declare invalid any conveyance theretofore executed and proved or acknowledged. Its object was to confirm certain conveyances by femes covert theretofore made, and regulate and restrict the mode of conveyances by femes covert, and the recording of all deeds and conveyances thereafter to be executed. But the preamble of that act is important in showing what the ancient practice in the
For these reasons I think the judgment of the courts below should be affirmed.
On the question being put, Shall this judgment be reversed ? the court unanimously decided in the negative. Whereupon the judgment of the supreme court was affirmed.