Magee v. Carpenter

ORMOND, J. We are first to inquire whether the act of 1828, [Aik. Dig. 208, §5,] applies to such an instrument as this? Its language is, “ all deeds and conveyances of personal property in trust to secure any debt or debts, shall be recorded in the office of the Clerk of the County Court of the county, wherein the person making such deed or conveyance shall reside, within thirty days, or else the same shall be void against creditors and subsequent purchasers, without notice,” &c. We think the language, employed sufficiently broad to cover a mortgage of personal property. Previous to the passage of this act, deeds of this description were required to be recorded in open Court, within twelve months after their execution, and no -reason can be assigned for making the change effected by this act in reference to deeds of trust which will not apply equally to mortgages. The Legislature no doubt supposed that the general terms employed of “ deeds and conveyances,” would embrace all cases in which property was conveyed upon a condition, and such being the evident intention, and, it may be added, the practice, under this law, such must be its effect. 2. The question whether, where there is but cine witness to a deed of trust or mortgage, it can be recorded on the proof of [473] its execution by the witness is one of more difficulty. The language of the act is, “such deeds and conveyances of personal estate shall be proved or acknowledged as deeds and conveyances of real estate.” [Aik. Dig. 208, §7.] The reference for the mode or manner of proving the deed in order to ’ its registration, is to the mode provided bylaw for the proof of deeds conveying land. The first act on the subject passed in 1803,[Aik.Dig. 88, §1.] declares that if the deed be proved by one or more of the subscribing witnesses to it, or acknowledged by the grantor, before one of the Judges of the Superior, or Justice of the County Court, and such proof or acknowledgement, be certified on the deed, that it shall be received as evidence, &c. The third section provides for the manner of probate where the parties are out of the State, and uses the term toitness, in the singular number. In 1812, an act was passed giving the form of the certificate of the probate — the portion material to this inquiry is to the following effect: “ Personally appeared the above named E. F., one of the subscribing witnesses to the above deed, who, being first duly sworn, deposeth and saith, that he saw the above named A. B. whose name is subscribed thereto, sign, seal and deliver the same to the said C. D. that he, this deponent, subscribed his name as a witness thereto in the presence of the said A. B. and that he saw the other subscribing witness (or witnesses, naming them, as the case -may be,) sign the same in the presence of the said A. B. and in the presence of each other, on the day and year therein named.” Subsequent enactments authorized the proof, or acknow-ledgement, to be taken by the Clerks of the Circuit and County Courts, or two Justices of the Peace, and finally by a single Justice. There is no statute which requires a deed to be attested by two or more witnesses to give it validity, or indeed that it should be witnessed at all. In the case of Fipps v. McGehee, [5 Porter, 413,] this Court held that the form required by the statute must be pursued substantially, and that the probate of a deed by one witness, that he saw the deed signed and delivered, without also stating that he saw the other witnesses [474] ■“ sign the same in the presence of the maker, and in the presence of each other,” was defective. This it will be observed was a deed conveying land to which there was more than one attesting witness and in my opinion the case determines nothing more, than where there are more witnesses than one, the form of the statute must be pursued. I think the whole object of the form was to produce uniformity in the certificate of probate. That the Legislature supposed a deed would be admitted to probate where there was but one witness, is shown by the third section, which expressly gives the power to one witness, where the witness resides out of the State, and it would be difficult to assign a reason for admitting a deed to probate, on the oath of one witness out of the State, which would not apply within the State. But be the law as it may in reference to deeds conveying land, as it respects deeds for personal property, the majority of the Court entertain no doubt that, where there is but one witness to the deed, it can be recorded on proof of its execution by him. The meaning of the Legislature, that these deeds “ shall be proved, or acknowledged, as deeds and conveyances of real estate,” evidently relates to the mode and manner of the proof, and the officers before whom it shall be made. The whole object of putting such a deed on record, is for the purpose of notice ; it accomplishes nothing else, as was held by this Court in the case of Bradford & Dawson v. Campbell, [2 Ala. Rep. 203.] The certificate of probate is not evidence of the execution of the deed, and it would have been a strange absurdity if the Legislature had required higher evidence of the execution of the deed, to place it on the record of the County Court, for the purpose of notice merely, than would be required to give the deed validity when offered in evidence in a Court of justice. The mortgage in this case was made to secure the mortgagees against liability as sureties of the mortgagor, on three notes, falling due at different periods of time, and stipulates that the mortgagor shall retain the possession of the slaves mortgaged until default be made — that when a default happened, by a failure to pay either of the notes at maturity, the mortgagees might seize and sell a sufficiency of the property to pay the amount then due. As the possession of the mort [475] gagor was consistent with the terms of the deed, no presumption of fraud arises from the mere fact of the possession remaining with him after the execution of the deed, unless such possession continues after the happening of the last default, by the failure to pay the last note, then such possession would doubtless be a badge of fraud. We do not think the permission by the mortgagees to the mortgagor to retain the possession after the happening of the first and second defaults, would subject the property to sale by execution, at the instance of a third person, because such permission could work injury to no one but themselves, and not being inconsistent with the deed, would not be a badge of fraud. If a default was proved by the omission of Hoyt, the mortgagor, to pay the first note to the Bank, which fell due on the 1st June, 1S3S, then, as the mortgagees were entitled to the possession of the slaves, to sell for such default, the demand by them of the sheriff, put an end to his right to retain them under the levy, conceding that his levy was not a trespass. If no defalcation was proved, then, according to the previous decision of this Court, the right to the possession, which, on that hypothesis, would be in Hoyt, was such an interest as could be sold under execution. [See the case of Williams & Battle v. Jones, 2 Ala. Rep. 314, and the previous decisions of this Court on which it was founded.] This case was argued here, and from what appears in the record in the Court below, as if the mere fact that the first note was due when the levy and sale was made,was evidence that a default existed at that time. That could only happen by a failure to pay the note — whether it was paid or not, we are not informed by the record. If any presumption could be indulged, it would rather be that the note was discharged. At all events, it devolved on the plaintiffs to prove a default affirmatively, otherwise they showed no'right to the possession of the slaves. It results from this view, that the charge of the Court, that the right to the property vested in the plaintiffs by the perfection of the deed, leaving no interest in the property subject to the execution of the defendant, was erroneous, and for that cause, the judgment must be reversed and the cause remanded. [476] As this cause goes back for a new trial, it is proper to say that we have taken no notice of the fact, that the slaves were removed from Montgomery to Mobile, because no point was made, in argument, in reference to it, or the act requiring property so incumbered to be recorded in the county to which it is taken, and which, indeed, from the appearance of the record, was done in this case. COLLIER, C. J. It is not essential to the validity of a deed that it should be attested by witnesses, but to authorize its registration on the proof of a subscribing witness, it should appear to have been attested by at least two. This I think apparent as it respects a conveyance of realty, from the acts of 1803 and 1812, [Aik. Dig. 88-9,] — and the act of 1828 declares, that “ deeds and conveyances of personal estate shall be proved, or acknowledged, as deeds and conveyances of real estate.” [Aik. Dig. 208.] The registration of deeds, upon the acknowledgement of the grantor, is expressly authorized, whether their execution be attested by witnesses or not. [See Fipps v. McGehee et al, 5 Porter’s Rep. 413.] The conclusion expressed, seems to me to result from the consideration that our registry acts are introductive of a new rule of law, and a party who would avail himself of them, must bring himself substantially within their provisions.— Hence, I dissent from so much of the opinion of the Court as ascertains the law to be different from what I have stated.