Lynch v. Livingston

By the Court, Edmonds, P. J. In the early ages of the common law a married woman could not, by joining with her husband in any deed or conveyance, bar herself or those claiming under her, of any estate of which she was seised in her own right or in her husband’s lands. This rule arose out of the principle, doubtless, that the legal existence of the wife was suspended during coverture, and may have been encouraged from the fear that she might be influenced by her husband to part with her rights, in his favor. But a judgment in a suit brought against husband and wife, • in respect to any such estate, was held to be binding upon her, and she could be barred thereby. Hence, when levying a fine, as a means of conveying lands, came into practice, such fine being the judgment of the court upon a concord or compounding of a suit, it was effective to bar the wife’s estate, and was adopted as the usual mode of attaining that end. — 479 — It was not originally necessary to the levying of a fine that the cognizors should be personally present; it might be done by attorney, and the husband might act as the attorney for his wife. Nor was it necessary that they should appear in court to acknowledge the concord; that might be done before the chief justice out of court, or before commissioners under a dedimus fotestatem. This practice led to abuses, inasmuch as there might be false personations of the cognizors, and the wife might be stripped of her property through the instrumentality, and perhaps for the benefit, of the husband. To guard against this, statutes were passed, and rules of court adopted, requiring the cognizors personally to acknowledge the concord, requiring the commissioners to inform themselves by means of some people of credit that the persons who acknowledged a fine before them, were really the parties named in the original writ, and requiring that femes covert should be solely and separately examined, apart from their husbands, and should freely and voluntarily consent to acknowledge the fine. Out of this ancient practice grew our statute as to the acknowledgment or proof of the execution of conveyances of land. And when we are called upon to determine whether such acknowledgment is a judicial or ministerial act, we may be assisted by thus recurring to the origin of the present practice. Levying a fine, it is true, was long one of the most solemn, and next to a judgment in an adversary suit, the most solemn and final mode of conveying the title to lands. It was a judgment of the court upon a compounding between the parties; but this was a judgment in form only, not in fact, the agreement between the parties being the substance of the conveyance, and the machinery of the court being resorted to for the sake of publicity and preservation, and least of all was there ever any thing judicial in the acknowledgment by the cognizor. That might be done by attorney and not in person—before commissioners out of court—and if the commissioner should die before certifying the acknowledgment, his executor might certify it in his — 480 — steacl; nay, might be compelled to certify it by certiorari, alias and pluries, and attachment. Our statute, in substituting for this cumbersome machinery the more simple form of a direct acknowledgment before a specified officer, has evidently not designed to extend or change the character of the act. What is the officer discharging this duty to adjudge or judicially determine ? If he knows the parties, he is simply to certify that they appeared before him and acknowledged the execution. If he does not know them, he is to have evidence satisfactory to him of identity. And so when the execution shall be proved instead of being acknowledged, he is merely to have satisfactory evidence of the identity of the subscribing witness. All else is merely the duty of certifying what takes place before him. That is clearly ministerial only; and if the determining upon the evidence of identity can malm the act judicial, it would be ministerial when the executing party, or the subscribing witness is known to the officer, and judicial when not known, and would be ministerial in regard to the very substance of the act, namely, the execution of the conveyance, and judicial merely in regard to one of its incidents, namely, the identity of the party or witness. Besides, the act, if judicial, must be conclusive until reversed, whereas our statute makes the certificate merely prima facie evidence of execution, and declares that it shall not be conclusive, but it may be rebutted añd its force and effect be contested by any party affected thereby. Again; the statutes declare that if any county clerk shall record a deed not duly acknowledged or proved, and such acknowledgment or proof duly certified, he shall be guilty of a misdemeanor. If the act of acknowledgment or proof is judicial, so that the officer is disqualified from performing it, by reason of consanguinity or affinity to the parties to the deed, then when performed by him it can not be said to be duly proved or acknowledged; nor can he duly certify it. And the clerk must therefore of necessity be compelled, in all cases, under the hazard of a conviction for a misdemeanor, to inquire into — 481 — the relationship of the judge, or justice, or commissioner of deeds, or mayor, or foreign minister, or charge de affaies, or consul, to some or all the parties to the conveyance, and determine it rightly at his own peril, and that without being afforded any facilities for taking testimony, or procuring evidence on a matter which he must thus blindly determine, at such imminent hazard. I confess I can not, from my examination, discover any thing to warrant the conclusion that the act of the commissioner of deeds in this case was judicial; but on the contrary, much to incline me to the opinion that it was ministerial only. If this conclusion is correct, then the objection that that officer in this case was related to one of the parties, must fall to the ground, because such consanguinity affects, in any case, judicial functions merely. The next objection is that the certificate that the commissioner of deeds was such officer, and that his signature was genuine, was not signed by the clerk, but by his deputy. This depends in a measure on the same principles which have already been referred to, on the other point, and involves the question whether this act of the clerk was ministerial merely. All that the clerk is required to do is to certify under his hand and official seal, that the commissioner was duly authorized to perform the act; that he is acquainted with his hand-writing, and verily believes in the genuineness of his signature. To enable him to perform this duty, the law requires that the appointment of commissioners of deeds should pass through or remain in the county clerk’s office, and that their oaths of office shall be filed with him. So that all that he has to do when called on for such a certificate, is to turn to the files of his office and ascertain from an inspection of his records whether the commissioner is in office, and turn to the oath of office, and by comparison of hands certify as to his belief. I can see nothing in all this which is not as purely ministerial as any act which the county clerk can perform. The revised laws of 1813, which were in force when the acknowledgment in this case was taken, required every county clerk to have a deputy. (2 R. L. 149.) But that statute did not define the duties of the deputy, except — 482 — in the case of the death of the clerk. And the question arises what duties or functions could such deputy perform during the lifetime of his principal? Every function, I apprehend, which was merely ministerial in its character, unless expressly restrained by a statute, or unless the performance of the duty was made personal to him. It would be a very strict construction of the statute, in this case, which should hold that this act of the clerk was personal with him; for all the duties to be performed in the clerk’s office are required by the statutes, in substantially the same words, to be performed by the clerk, and such a construction would deprive the deputy of all power of acting for his principal until he was dead. Thus, the statute requires that the clerk shall have the custody of all the books, records, deeds, parchments, maps and papers deposited in his office, and he shall carefully attend to the arrangement and preservation of them. Must he do this personally, and may he not do it by and through his deputy ? So, he shall receive and file all papers and documents directed to be filed in his office. Can not his deputy perform this duty ? And so on in regard to the great bulk of his duties. It is seldom that any of his duties are of a judicial character or personal to him; and where they are, our statutes have provided a substitute in case of his inability to perform them. Thus he is required to judge of the competency of a sheriff’s sureties. When he is incapable of performing that duy it is devolved on some of the county judges. The office of commissioner of deeds was created in 1818, and it was the fourth section of the act creating it which required the certificate “ under the hand and official seal of the clerk of the county.” At that time the act of 1815 was in force, which authorized the deputy clerks, in certain cases, to certify all rules, proceedings, pleadings and records in the office, to administer oaths of office and assess damages. (Laws of 1815, oh. 86, p. 88.) So that when the law requiring the certificate of a county clerk to an acknowledgment by a commissioner of deeds was passed, a statute was in existence authorizing a deputy clerk to certify every thing in the shape of a record or proceed — 483 — ing in the office. The revised statutes have considerably enlarged this declaration of power, and the provision now is that in certain cases the deputy may perform all the duties appertaining to the office .of clerk, except that of deciding on the sufficiency of the sureties of any officer. (1 R. S. 376, § 58.) The statutes of 1813,1815 and 1818, were those which were in force when the deed involved in this suit was acknowledged, and when it was recorded; and it is their provisions, not those of the revised statutes, which affect the question before us. Those statutes require the clerk to appoint a deputy, authorize that deputy to perform certain duties of the clerk, and require a clerk’s certificate to the acknowledgment. But those statutes will not aid in the determination of the question before -us, for two reasons: 1. The deputy can perform those specified duties only when authorized by warrant under the hand and seal of the clerk, and there was no evidence in this case that the deputy who certified to this acknowledgment was thus authorized by the clerk of Dutchess county. 2. The authority given by the statutes embraces the certifying of rules, proceedings, pleadings and records in the office, and the certificate in question, is not properly either of those. The question then recurs whether the deputy had the right to perform the act under consideration, by law, independent of the statute. So far as the acts to be performed were merely ministerial, I entertain no doubt that the clerk could perform them by deputy. Such has been the practice in this state since the organization of our government, following in this respect the practice under the colonial government. Blackstone, in his commentaries, vol. 2, p. 36, says that ministerial offices may be executed by deputy. Bacon’s Ab. tit. Offices, H, lays it down that such offices as do not concern the administration of justice, but only require skill and diligence, may be executed by deputy. And again, (Id. L,) those offices which require only a superintendency, and no particular skill, may regularly be exercised by deputy; and he instances the offices of sheriff, constable, clerk of the outlawries in the common pleas, the marshal of the king’s bench, &c. — 484 — Having shown that the duties' of the clerk in regard to the act under consideration are purely ministerial, it appears that by the common law he had a right to perform them by deputy, and the act of 1815, as well as the revised statutes defining the power of the deputy, are merely declaratory of the common law, so far as they relate to acts merely ministerial, and have no other effect than as they may restrict the performance of ministerial acts, and confer authority to perform some that are of a judicial or personal character. If the deputy may perform the act in question, it is of very little consequence whether it is performed, as sometimes occurs, solely in the name of the clerk, or, as in this case, in the name of the clerk by his deputy. In either case it is the act of the deputy, and he is authorized to perform it, but it is to be done in the name of the clerk, who is responsible for the act of his deputy. (Terms de ley, 239, 40.) The conclusion, then, at which I have arrived, is that the office of commissioner of deeds is not judicial, and that therefore the disqualification of relationship does not apply to him: and the duty of the county clerk in certifying to the commissioner’s certificate is merely ministerial, and may be executed by deputy. And being executed in this case in the name of the clerk, it was properly executed. The transcripts offered ought then to have been received in evidence, and for the error of the court at nisi prius excluding them, there ought to be a new trial. It still remains, however, as a question to be disposed of by us, whether if the deed is admissible in evidence, it is good and valid to pass the estate. It is in effect a transfer of the wife’s separate real estate from herself to her husband. This she has a right to do through the medium of a third person, though she can not do it by a direct conveyance to him. , Through such medium she may exercise the same control over her real estate, for his benefit, that she could if it was held by a trustee, with a power in her to appoint it to whom she pleased. (Jackson v. Stevens, 16 John. 110. Meriam v. Hoarsen, 2 Barb. Ch. R. 267.) — 485 — It is apparent in this case, from the face of the deed, that it was the intention of Joanna Livingston, thus to convey her estate to her husband. Such is declared to be the purpose of the deed to Robert J. Livingston, and that purpose was executed by a conveyance from him to the husband, bearing even date with the deed from the wife, and apparently executed and acknowledged at the same time. It is, however, insisted that it can not operate to effectuate that purpose; 1. because it is not good as a lease and release, inasmuch as the grantee never had possession; 2. nor as a covenant to stand seised to uses, because there was no consideration of blood or marriage; and 3, not as a bargain and sale, for want of proper and apt words to that end. It was conceded on the argument that it was not good as a lease and release, but it was claimed that it was valid as a covenant to stand seised to uses. There is, however, a serious difficulty in the way. The consideration of blood or marriage, which alone can sustain a covenant to stand seised to uses, must be between the covenantor and the covenantee; and it is not enough that it exist between the covenantor and the cestui que use. And in this case it does not appear either by the deed, or by the other evidence, that there was any such consideration passing between Joanna L. and Robert J. There was a consideration of marriage between Joanna the covenantor and Peter R. the cestui que use, and a consideration of blood between Peter R. and Robert J. the covenantee, but neither exist as between Joanna and Robert J., and therefore we can not hold the deed good as a covenant to stand seised. (Jackson v. Sebring, 16 John. 518. Smith v. Ridley, Cro. Car. 529. W. Jones, 418. 2 Roll. Ab. 783, pl. 4.) The deed, if sustained at all, must be sustained as a bargain and sale. Upon this remaining point I have no difficulty. The pecuniary consideration expressed in the deed, its language— “remise, release and quit-claim”—and its evident intention to convey in prcesenti all the estate of the grantors, all go to show that the deed is good and operative as a bargain and sale. — 486 — (Jackson v. Fish, 10 John. 456. Jackson v. Root, 18 Id. 78. Jackson v. Alexander, 3 Id. 488.) Upon the whole case, then, there must be judgment for the defendant.