Van Cortlandt v. Tozer

After advisement, the following opinion was delivered : By the Chancellor. 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 [427] best secondary evidence produced. For the certified copy of the clerk was only the copy of a copy, which was not admissible as secondary evidence, where the original copy could have been produced, unless it was a case provided for by the statute. The defendant’s counsel are thrown back, therefore, upon their original position, as to the validity of the certified copy of the deed as evidence under the provision in the recording act of 1813. 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 [428] situated. But there was a large class of cases to which the act of 1811 would apply as well as to the case under consideration ; for although it was not usual, subsequent to the act of October, 1710, to record deeds in counties where no part of the premises conveyed were situated, it very frequently happened that the deed embraced lands lying in several counties, and that such deeds were by mistake recorded in one of those counties only, instead of being recorded in all, or in the office of the secretary of state. Besides; the fact that so many original conveyances were lost by the events of the revolution, or were placed beyond the reach of those who had become entitled to lands under the same, by being carried out of the county by refugees, rendered it perfectly proper that the legislature should allow a species of secondary evidence in relation to such conveyances, which it might have been dangerous to have extended to those of a more recent date ; particularly to those which were recorded after the declaration of independence, when it was probable that many antedated deeds from attainted persons were put upon record in those counties which were in possession of the enemy, for the purpose of saving their lands from forfeiture. I have no doubt, therefore, that the deed in question was embraced by the acts' of 1811 and of 1813, provided it had been duly acknowledged or proved, according to the common law of the province as it existed previous to the act of the 16th of February, 1771. 2 Van Schaack's Laws of N. Y. 611. That question I will now proceed to consider. 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 [429] colony up to that time had been, as to the proof or acknowledgment of deeds to entitle them to be recorded. As I únderstand the case of Doe v. Roe, 1 Johns. Cas. 402, cited by the plaintiff’s counsel, the record of the deed, offered in evidence in that case, was not rejected on the ground that a deed could not be recorded on proof of its execution by .a subscribing witness thereto ; but on the ground that the scrivener who proved the execution of the deed was not one of the subscribing witnesses, Although the act of 1710 speaks only of deeds duly acknowledged, the recital in the act of 1771 shows that the practical construction of the former act had been to allow deeds to be recorded which had been duly proved by a subscribing witness, as well as those which had been actually acknowledged by the grantor in person, before the officer who allowed the same to be recorded. Whát was the origin of this custom, which by the usages of a century, at length became a part of the common law of the province of New-York, does not distinctly appear, and cannot now be known. That such a custom existed, at a very early day in the colony, is evident from the records of Dutch transports, or conveyances, still in existence. The custom of executing or acknowledging the transport in the presence of a magistrate was probably brought by the early Dutch settlers from Holland, where, under the proclamation of Charles V. as count of Holland and of Flanders, issued in 1519, it was necessary to the validity of a transport or conveyance of immovable property, that it should be made before the magistrate of the place; and the custom of proving the execution of the conveyance by a subscribing witness, where it was inconvenient for the grantor to go before the magistrate to -acknowledge it personally, was probably derived from the common law of England in relation to enrolments of deeds, which allowed of such proof by a subscribing witness, as á substitute for a personal acknowledgment. Winscornb v. Dunches, Godbolt's R. 270. But whatever may have been the origin of the custom, such was the settled law of the colony at the time the conveyance in question was executed, and the time it was. proved by one of the subscribing witnesses, before a judge of [430] Queens county. The statute of 1771 also recites the fact that it had been the custom to record such conveyances, upon proof or acknowledgment of the due execution thereof before a judge of a county court, as well as before a judge of the supreme court, or a master in chancery, or a member of the council; and there is nothing to show that the acknowledgment or proof was confined to a judge of the county where the lands were situated? previously to the act of 1771. I infer, therefore, that it was not so restricted previous to that time; and that the deed in question was duly proved according to law, so as to entitle a transcript of the record thereof to be read in evidence under the sixth section of the act of 1813, although such deed was recorded in the wrong county. 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.