Harrison v. Simons

MANNING, J. — Tbe persons named in tbe deed as grantors, by signing and sealing it, declare and make known, to all wbom it may concern, that they respectively grant, bargain, enfeoff, and convey the land therein described, to Thomas J. Harrison ; and that they covenant with him that they are seized in fee, and have a right to sell and convey the land, and that they will warrant and defend the title. But what is declared, or certified, by the signature and seal of A. L. Barnett ? Can they import anything else than is contained in the deed — to-wit, that the persons described in it as grantors convey and covenant as above ? It is not set forth in the deed that- A. L. Barnett himself does, or shall do, any of these things; and we cannot attribute any efficacy, or meaning, to his mere signature and seal, apart or different from what is expressed in the instrument to which they are affixed. This is, in substance, what was decided by the Supreme Court of the United States in Agricultural Bank v. Rice et al. 4 How. 225. Property belonging to married women had been bargained to purchasers, by an executory contract, signed and sealed by the husbands and wives, jointly, and describing them all as parties to it; but the deed subsequently executed set forth that the husbands, in right of their wives, conveyed the property, in consideration of $40,-000, to the grantees. This deed was signed and sealed by the husbands and wives jointly; and they all acknowledged, the married women separate and apart from their husbands, that they signed, sealed, and delivered it, as their act and deed. Taney, C. J., delivering the opinion of the court, said : “ It is altogether the act of the husbands, and they alone convey. Now, in order to convey by grant, the party possessing the right must be the grantor, and use apt and proper Words to convey to the grantee ; and merely signing, sealing, and acknowledging an instrument, in which another person is grantor, is not sufficient.” The deed, in the cause pending before us, can, therefore, operate only to convey the title that was in the persons who are the grantors in the deed, and not the title of A. L. Barnett. 2. To the deed is attached a certificate, purporting to be that of. a notary public, setting forth that the execution of it by the grantors was proved by the subscribing witness, Blair, who also deposed, in the words of the form in section 1549 of the Revised Code, “ that he attested the same in the presence of the grantors, and of the other witness, and that the other witness subscribed his name as a witness in his presence but the notarial seal is not to this certificate. The deed was recorded, within twelve months after [515] tbe execution of it, as appears by a certificate of tbe proper judge of probate. Tbe deed, witb these certificates, being offered in evidence by plaintiff, was objected to, and excluded, upon tbe specific grounds, “ that one of tbe subscribing witnesses, to-wit, Tbomas Morrison, signed it only by bis mart, as set forth on the deed, and that the deed was not executed, or proven to have been signed, by two witnesses, as required by sections 1, 1535,1544,1549, and 1550, of tbe Bevised Code.” Tbe case presents tbe very important question, for tbe first time raised in this court, whether or not tbe sections of tbe Bevised Code referred to, relating to tbe proof by subscribing witnesses of a deed or conveyance of real estate, do not require that they shall be able to write, and shall write their names thereto. Section 1, defining words used in tbe Code, enacts : “ Signature,’ or ‘ subscription,’ includes mark, when tbe person cannot write ; bis name being written near it, and witnessed by a person who writes his own name as a witness.” Section 1535 enacts : “ Conveyances for tbe alienation of lands must be * * * signed at their foot by tbe contracting party, or bis agent having a written authority ; or, if be is not able to sign bis name, then bis name must be written for him, witb tbe words, ‘ bis mark’ written against tbe same, or over it; tbe execution of such conveyance must be attested by one, or, where tbe party cannot write, by two witnesses, who are able to write, and who must turite their names.'” A casual reading might induce tbe supposition, that it is only when tbe contracting party who signs is unable to write, that tbe subscribing witness must be one who can write, and does write bis own name. But we are not justified in so construing these sections. Tbe qualification prescribed at tbe end of section 1535 is as much required of tbe one witness, who must attest tbe signature to a conveyance inter vivos, of a grantor who writes bis own name, as of tbe two witnesses who attest tbe execution by a grantor who cannot do so ; and it seems plainly to result, that, whether tbe law requires such an instrument to be attested by one or more subscribing witnesses, only those are competent to attest it who are able to write their names. And tbe two witnesses that are necessary to entitle a recorded conveyance to be read in court as evidence, without further proof, according to section 1550, which is a part of tbe same chapter concerning “ Conveyances,” to which section 1535 belongs, must be such as are qualified according to this section. Tbe single attestation of Blair is sufficient to give validity to tbe deed in question, as that of tbe real grantors, but not to entitle [516] it to be read in evidence, without other proof of its execution. Whether, however, the deed in this case was properly ruled out, or not, remains yet to be determined. Section 1544 provides, that conveyances, “ acknowledged or proven according to law, and recorded within twelve months from their date, may be received in evidence, in any court, without further proof.” Section 1549 prescribes the form of proof for a deed attested by two witnesses ; and the certificate to this deed is in that form, and shows that the proving witness, Blair, “ attested the same in the presence of the grantors, and of the other witness ; and that the other witness subscribed his name as a witness in his (Blair’s) presence.” The certificate being, therefore, in /compliance with the statute, and by a competent officer, must be held, in the absence of any contrary evidence, to prove — what might not have been inferred from, but is not irreconcilable with the form of Morrison’s attesting signature — that he wrote it himself. If Blair deposed only that Morrison made his mark to the deed, the notary ought not to have certified that Blair deposed that Morrison “subscribed his name” to it. We cannot presume that the notary violated his duty in this particular. 3. The objection to the certificate of May, a notary of this State, because his notarial seal is not attached, is not well taken. His act is one of those which a justice of the peace (and a notary, according to the constitution of 1867-8, was ex officio a justice of the peace), and other officers, might do without a seal; and one of those which, according to clause 1, of section 1083, and to section 1090 of the Revised Code, it is intended that a notary may perform without authentication by his seal of office. — See, also, Act No. 23, of January 18th, 1866; and Powers v. Bryant, 7 Porter, 10, 17. The exclusion of the deed from the jury as evidence was, therefore, an error. Presuming the other points made in this cause will not be presented again, we do not consider it necessary to discuss them now. The judgment of nonsuit in the court below is here set aside, and the cause remanded.