Scanlan v. Wright

Shaw C. J. delivered the opinion of the Court. The petitioners pray for partition, and set forth title to one undivided half of the premises described, as claimed in right of the wife, and several exceptions are taken by the respondent, to the title of the wife. 1. The seisin of Andrews and wife, being conceded, the conveyance to Bishop Cheverus vested the estate in him. The first question arises upon the evidence offered, to prove a conveyance from Bishop Cheverus to Bishop Fenwick ; which was a copy from the registry of deeds. It was objected, that as the grantee was within the jurisdiction of the Court, he should have been summoned to produce the deed. But this objection cannot be sustained. In the case of Eaton v. Campbell, 7 Pick. 10, this point was fully considered, both upon principle and practice, and the rule was established, that the copy of a deed from the registry is good evidence prima facie, and dispenses with the production of the original, except where a grantee relies on the immediate deed to himself, or where, from the nature of the conveyance, the deed s presumed to be in his own custody, or power. [528] 2. The next question is, whether this deed was rightly admitted to be registered in this county, it being objected that it was not acknowledged by the grantor, conformably to the statute. This statute requires that the deed be “ acknowledged by the grantor, before a justice of peace in this State, or before a justice of peace or magistrate of some other of the United States, or in any other state or kingdom wherein the grantor or vendor may reside, at the time of making and executing the deed.” This deed purports to have been acknowledged before D. Strobel Esq., consul of the United States for the city of Bordeaux in France, Bishop Cheverus, the grantor, then residing at that place. The question is, whether an American consul is a magistrate, within the meaning of the statute. It is difficult to fix any definite meaning to the word “ magistrate,” a generic term importing a public officer, exercising a public authority; it was intended, we think, to use a term sufficiently broad to indicate a class of officers, exercising an authority similar to that of justices of peace in our own State, or as nearly so as the difference in the.forms of their governments and institutions would permit. It was to provide for the execution and acknowledgments of deeds, in all foreign countries. It may.be remarked, as a circumstance of some consideration, that the acknowledgment is to be before some justice of peace or magistrate in any other state or kingdom, not of any other state. There is nothing to indicate what kind of magistrate was intended, except the nature of the act to be done and the connection in which the term is used. The act is a ministerial one ; it is to be before a justice of peace or magistrate. The maxim noscitur a sociis applies. It must then be a ministerial officer, exercising like powers with -those of a justice of peace in this commonwealth, when acting in his ministerial capacity. Such an officer, we think, is a consul in a foreign country, at least in respect to the persons and interests of the country from which he is sent. An American consul in France, derives his authority, in effect, from both governments ; he has his commission from the United States, but his exequatur from France; and it is, in truth, in virtue of' [529] the authority vested in him by the latter, that he exercises any official authority within the territorial limits of the latter. The Bello Corrunes, 6 Wheat. 156, note; 1 Chitty’s Com. Law, 48. This view is somewhat confirmed by the statute law of the United Stales ; Act of Congr. 1792, c. 24, § 2 ; which provides, that consuls shall have right in the posts or places to which they are appointed, of receiving the protests and declarations which masters, &c., who are citizens of the United States, may choose to make there, and also such as any foreigner may-choose to make before them, relative to the per sonal interest of any citizens of the United States. The same statute, § 9, provides, that the specific enumeration of powers therein expressed, shall not be deemed to exclude such others as result from the nature of the office. An officer, authorized by the concurrence of both governments to exercise such powers in France, is, we think, a magistrate competent to take in France, and authenticate by his official act, the declaration of the grantor of a deed, that he has executed the same freely, as his act and deed, and that such acknowledgment so authenticated is sufficient to warrant the register of deeds in this commonwealth to record it. 3. In regard to the other objection, that Bishop Cheverus, by accepting a civil and ecclesiastical office in France, renounced his American allegiance, and so became an alien, and that therefore nothing passed by his deed, the consequence which is suggested, would not follow, if the fact were proved. Were he in all respects an alien, having been once well seised of an indefeasible estate, his conveyance would not be void ; it would vest an estate in his grantee, subject only to be defeated by the government. The other objections to the petitioners’ title cannot be sustained, especially when taken by a stranger, one who does not himself claim the same title. So far as the alienage of Thomas Scanlan is relied upon, as disabling him to join with his wife, in this petition, it is in abatement only, and comes too late. If it be contended, that he could not take and become seised jointly with his wife in her right, this is contrary to the rule of law, which is, that an alien may take, but cannot [530] hold, against the government; he takes a defeasible estate, subject to escheat, at the suit of the government. But till office found, he is seised. If it be contended, that on a feoff ment to the wife, the husband becomes seised by act of law, and as in case of descent, the law will not cast seisin of an estate upon one who cannot hold it, the consequence would be, that the wife would remain seised alone, and that she must petition by her husband as guardian or next friend, instead of joining with him in the usual form. But this would be mere matter of form, not affecting the title or merits of the case. As to the deed being made to the female petitioner, by the name which she bore before her marriage, we think it is the common case of a person known by different names. She bore the name of Eliza A- Castin, till her marriage ; and it appears, that she was the person intended and understood by the grantor, that he used the name by which he had known her, and by which she had always been known till her marriage, and it does not appear that her marriage and change of name were known to Bishop Fenwick, who- conveyed the estate to her in execution of a trust. We think it was no violation of the rule, which rejects parol evidence when offered to contradict or control a deed, to show that the petitioner was the person to whom the grant was made, that she was in fact known by her maiden name to some persons and especially to the grantor, and that there was no other person claiming to bear the name used in the deed, or claim ing title under it. Hall v. Leonard, 1 Pick. 27. The circumstance of her being a minor and a feme covert, did not prevent the estate from vesting ; where an estate is conveyed by deed poll to a minor or married woman, the estate vests, subject only to be devested in case she should disagree to it, when discovert and of full age. Judgment on the verdict.