Sankey v. Hawley

Opinion, Mr. Chief Justice Gordon: The case in hand involves the construction of the act of the 8th of June, 1881, P. L. 84; if, indeed, an act so plain and positive in its terms can be said to need construction. From the statement of the plaintiffs in error we gather the following history of the case: Samuel K. Sankey was the owner of a lot of ground in Penn township, Perry county, on which was erected a planing mill. On December 17, 1888, he borrowed from Joseph M. Hawley, the plaintiff below, the sum of four thousand dollars, and, as security for the same, executed to Hawley a deed for the premises above mentioned in fee. At the same time there was executed and delivered to Sankey a paper reciting as follows : Duncannon, Pa., December 17,1883. This is to certify that S. K. Sankey and wife have this day deeded to me them property (see deed book Q, vol. 2, page 634, etc., New Bloomfield, Pa.) for the purpose of securing the loan of four thousand dollars; and I hereby agree to deed the above property back to S. K. Sankey in fee simple with all the improvements thereon erected upon the payment of the four thousand dollars above referred to, redeemable within two years. Joseph M. Hawley. Witness: William Bothwell. Afterwards Samuel K. Sankey conveyed this property to his father, Jacob Sankey, having in the meantime paid to the plaintiff, on account of said loan, something over one thousand dollars. Subsequently the plaintiff agreed to extend the time of payment of the balance to the 17th of December, 1886, but before the expiration of that time he brought this suit of ejectment. On the trial the defendants offered the defeasance as above set out, with an offer to prove that the sum mentioned in this paper was .identical with that in the deed. This was objected [35] to on the part of the plaintiff, and the offers overruled by the court. The evidence of the defendants having been thus rejected, nothing remained but to instruct the jury to find for the plaintiff, which was accordingly done. Assuming the defendants’ statement to be correct, as we have done, nothing need be said concerning the equities of the case, for they are all with them; and, previously to the act above mentioned, the plaintiff’s recovery must have been limited to a conditional verdict for the balance of the money due him. Nevertheless, under that act we cannot see how the judgment can be impeached. There is now but one method left by which a deed absolute can be reduced to a mortgage, and that method, in this case, has not been pursued. The defeasance must not only be in writing, and of the same date as that of the deed, but it must also be “signed, sealed, acknowledged and delivered by the grantee in the deed to the grantor;” furthermore, it must be recorded in the office for the recording of deeds and mortgages in the county where the land is situated, Avithin sixty days from the execution thereof. If we are to give effect to this act, an act in no Avise ambiguous, it is certain the defeasance offered on part of the defence was properly rejected, for it was neither sealed, acknowledged, nor recorded. But the learned counsel for the defendants contend, that the act of 1881 is essentially a recording act; and, that, following the decisions made under the statute of the 28th of May, 1715, we should so construe it as not to affect the immediate parties to the transaction, but should confine its operation to purchasers and mortgagees. But should we follow these decisions to this extent we must go still farther and hold.that those having notice are not within the protection of the statute. For, as we said in Britton’s Appeal, 45 Pa. 172, per Mr. Justice Strong, the recording acts have been regarded throughout their whole history, as designed only to furnish protection against those frauds which, Avithout them, would easily be perpetrated by secret conveyances. In other words, they are statutes for the prevention of frauds; hence they furnish no protection to one who purchases land knowing that another has acquired a prior right in that same land. Applying a doctrine of this kind to the act of 1881, and it is effective neither as to parties nor [36] privies, nor to others having notice. In other words we would thus repeal the act in its very .spirit, and continue to give effect to that which the legislature intended to abolish utterly, the oral defeasance. We cannot agree thus to defeat the intention of the act. That intention is not at all obscure, and is not like that found in the act of 1715. It is true, the design is to prevent frauds, but it also definitely prescribes the process by which this is to be accomplished; not by recording alone, for that is but one of the prescriptions, but by directing how, and how only, a deed absolute shall be reformed. The question thus becomes one of evidence: It is proposed to impeach a deed; it is not what it purports to be, a conveyance in fee, but only a mortgage. Now the question is, how shall this be proved? The statute answers this by saying you can do this in no other way than by the exhibition of a written defeasance, signed, sealed, acknowledged, delivered and recorded. In similar cases the courts have always insisted that evidence to impeach a deed shall be clear and indubitable, and as the legislature has seen proper to require, for that purpose, a still higher type of evidence, we cannot take it upon ourselves to destroy the enactment for the purpose only of saving a case supposed to he a hard one. The judgment is affirmed.