Chamberlain v. Spargur

.Hardin, J.: The principal question in this case calls for a construction of ¡section 13Y of article 4 of title 2 of chapter 1 of part 2 of the Revised Statutes. Mrs. Woodward signed her name to a deed, March, 186Y, but the same was not attested or acknowledged. It was taken into posses-sion by her husband, and delivered and put upon record. Subsequently she conveyed and leased to other parties. The statute referred to is, viz.: “ Every grant in fee of a freehold estate should be subscribed and sealed by the person from whom the estate or in"terest conveyed is intended to pass, or his lawful agent; if not duly acknowledged previous to its delivery, its execution and delivery ■shall be attested by at least one witness, or if not so attested, it shall not take effect as against a purchaser or incumbrancer until so •acknowledged.” (1 R. S., Y38, § 13Y.) We think the weight of authority supports the construction .given to this statute by the Special Term. “ Until so acknowledged,” the deed of Mrs. Woodward did “ not take effect as against a purchaser or incumbrancer.” The language is absolute and comprehensive. And without discussing the reason for the rule or the argument to the effect that the statute refers to “ purchasers ” or incumbrancers, in good faith and without notice, and those only, we yield our assent to the authorities and approve of the construction given by the Special. Term. (Goodyear v. Vosburgh, 57 Barb., 246; S. C., 39 How. [440] Pr., 377; Roggen v. Avery, 63 Barb., 65, which was affirmed by the Commission of Appeals in 65 N. Y., 592.) Nor were the purchasers from Mrs. Woodward estopped from asserting the invalidity of her deed thus made. She could not herself dispense with the requirements of the statute, nor with the consequences which the statute declares shall attend an unattested and unacknowledged deed. We think the conclusions, of fact reached by the trial court, were supported by the evidence. The judgment should be affirmed, with costs. Talcott, P. J., and Smith, J., concurred. Judgment affirmed, with costs.