Bradford v. Dawson

GOLDTHWAITE, J. 1. The concession that the bond is defective, is propely made, as we have already decided, that the act of 1828; Dig. 169, S. 55, repeals so much of the previous statutes, as made two bonds necessary. Hughes v. Rhea, [206] Conner & Co. 1 Ala. Rep. 609. The bond at present required, is made payable to the plaintiff in execution and the condition, contains the substance of the two, which were previously required to be given. 2. The claim bond is intended as a security for the plaintiff in the execution; and although he may insist on the execution of such a one as the statute directs, yet the claim ought not to be dismissed on account of a defective bond, if the claimant will execute a good one under the direction of the Court, when the exception is allowed. This practice has hitherto been recognized in analogous cases, and its propriety is not doubted, when applied to claims of property levied on by execution. We remark also, that it may be questionable whether a specific description of the goods is not required, as they may be returned in case the claim is not sustained. 3. The deed under which the claimants attempted to support their title to the goods in controversy, is a trust deed, for the purpose of securing debts, and is therefore within the influence of the act of 1828, which provides that all such deeds shall be void against creditors and subsequent purchasers, without notice, unless they are recorded in the office of the clerk of the County Court of the County, wherein the estate may be si tuate, within thirty days. [Dig. 208, S. 5.] Such deeds are to be proved or acknowledged, as deeds and conveyances of real estate. [S. 7. ibid. It is evident, when this statute is examined, that the proof and acknowledgment, which is mentioned in the latter section, refers to the manner in which the deed shall obtain a place on the record, and consequently, that the previous acts, authoris-ing the registration of deeds of real estate, must be examined to ascertain what are the necessary requisites. The act of 1812, provides a form of the certificate of acknowledgment, which is, that the grantor acknowledges, before the proper officer, that he signed, sealed and delivered the deed on the day and year therein mentioned, to the grantee. The certificate in the present case, does not state that the grantor acknowledged that he executed the deed on the day it bears date, to the grantees. It is also acknowledged by those who are not grantors, but to whom the deed ought to have [207] been delivered, that is, by the trustees. Notwithstanding these apparent defects, we consider the certificate as a substantial compliance with the act of 1812. Digest 89, S. 7; and that it was properly admitted to record. It is therefore necessary to consider whether a deed admitted to record, on an informal certificate, would be void under the statute, when the only object to be attained by the record, is to furnish a means, by which, notice can be had of all valid deeds of trust, by any person seeking the information. 4. The supposed defects in the certificate vanish the instant the body of the deed is examined; for, we then ascertain that the day of the date, is the same day when the acknowledgment was made. We likewise perceive that the deed was executed by the trustees as well as the grantor. It was not necessary, that the former should have signed, or otherwise executed, the deed, and certainly a defective acknowledgment by them cannot prejudice the deed, when no action whatever is required on their part. It is said, however, that the body of the deed ought not to be looked at to support the probate. It seems to us, that every probate must, of necessity, be compared with the deed; to il-ústrate our opinion, let the probate be supposed as precisely formal in terms, yet, if the acknowledgment was not made by the person named as the grantor, it would clearly be void. It is obvious, that the difference in the names would appear only from an inspection of the body of the deed, and by comparison with the probate. The same may be,supposed of the grantees; or, indeed of the date. The only general rule with respect to the construction of these certificates, when the object is to support the registration, is, that when the statute has been substantially complied with, the rights of the parties shall not depend on strict criticism, but that any portion of the deed may be examined to give effect and meaning to a certificate, which is apparently defective. [Luffborough v. Parker, 12, S. & R. 48.] 5. The statute of 1828, which makes it essential to the validity of trust deeds of personal estate, as against creditors and subsequent purchasers, without notice, that they should be recorded, is peculiar in its phraselogy. The first section, provides, [208] that* the deed shall be void, unless it is recorded within a certain time; but omits all direction as to the mode by which it shall be authenticated, to authorise the clerk to insert it in the records of the county. This omission is supplied by the third section, providing, that such deeds shall be proved or acknowledged in the same manner, as deeds and conveyances of real estate. It is obvious, that proved or acknowledged must refer to the recording of the instrument, and nothing further. The effect of the probate is to admit the deed upon the record, and then it operates as notice to all the world. If it had been intended' to give the deed, or an authenticated copy of it, the weight of evidence, without further proof, it is probable that special provision would have been made for this purpose by the introduction of a clause, similar to that contained in the first section of the act of 1807, Digest 88, S. 1; which directs, that a deed of real estate, acknowledged and proved in a particular manner,, and certified, shall be received in evidence in any Court, as if the same were then, and there, produced and proved. Some weight is supposed, by the counsel for the defendant, to be given to his view of the statute of 1808, because it makes use of the word proved as well as acknowledged. Both these terms are used with reference to the previous statutes of registration, which permitted a deed of real estate to be proved before certain officials, by the witness, and then admitted to record on the certificate of this proof, as well as in these cases, when the acknowledgment of the deed was certified. [Dig. 89, S. 7.] It is unnecessary to consider what effect this statute would have, when real estate was conveyed, and the contest was between the grantee and a creditor of'the grantor; or whether proof of the execution likewise proves the consideration to have been bona fide; but we feels atisfied that the statute of 1828, was only intended to place the deed on record, and nothing farther. Whenever it becomes necessary to introduce such a deed in evidence, it must be proved as any written instrument; and before it can avail against creditors or subsequent purchasers, [209] without notice, it is farther necessary to show that it was recorded within the period limited by the statute. Let the judgment be reversed and the case remandéd, with instructions to dismiss the claim, unless a sufficient bond shall be given by the claimants, and for further proceedings, if one is given. ■