Sharpe v. Orme

BRICKELL, C. J. 1. The statutes require that conveyances for the alienation of lands must be written or printed on parchment or paper, and must be signed at their foot by the contracting party, or his agent having a written authority ; or if he is not able to sign his name, then his name must be written for him, with the words “ his mark ” written against the same or over it; the execution of such conveyance must be attested by one, or where the party can not write, by two witnesses who are able to write, and who must xorite their names as witnesses. Code of 1876, § 2145. The acknowledgment of execution, which is authorized by subsequent sections of the Code, operates as a compliance with the requisition of attesting witnesses. — lb. § 2144. The form of acknowledgment is prescribed, but if the form is not substantially complied with, the result as declared is, that the conveyance loses the privileges conferred by section 2154 of the Code. — lb. §§ 2158-61. That section is in these words : “ Conveyances of property, whether absolute or on condition, which are 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, and if it appears to the court that the original conveyance has been lost or destroyed, or that the party offering the transcript has not the custody or conti’ol thereof, the court must receive a transcript duly certified, in the place of such original.” These enactments have placed the law in reference to the execution and proof of conveyances upon an entirely new footing in several important particulars. First, is the necessity of attesting witnesses, or an acknowledgment of execution by the grantor, taken and certified by a proper officer. Second, the proof of the instrument by the certificate of probate or acknowledgment. Third, proof of its contents and existence by a transcript from the record, when the original has been lost or destroyed. Or if the proof is to be made by one to whom the custody of the original is not imputable, then the introduction of such transcript, without accounting for the absence of the original, and without an effort to produce it. In each case, authorizing the use of a copy of a copy in derogation of the common law. The deed is not attested by a witness, and the point of contention is, whether the certificate of acknowledgment satisfies the statutory requisition, or if it is defective, can parol evidence supply the deficiencies. The certificate is very [267] informal, and substitutes some words for those employed in the form prescribed by the statute, and omits others. Yet, when the deed is examined in connection with the certificate, by fair legal intendment, it appears that the grantors on the day of the date of the deed, acknowledged that with knowledge of its contents, they executed it voluntarily. While courts are constrained to disapprove departures from the simple forms prescribed by the statutes — and though such departures render titles insecure and invite litigation, liberality, not strictness of construction, is the rule which has been observed. The want of substance can not be disregarded, opening a door for fraud and forgery, and by judicial legislation nullifying the statute — words can not be added to, or the equivalent of material words found in the statutory forms, dispensed with. Yet when it fairly appears that the statute has been substantially complied with, a literal compliance with the statutory form is not enacted. — 4 Phil. Ev. (C. & H. notes), 462. In Bradford v. Dawson, 2 Ala. 203, under a statute which required that the grantor should acknowledge, that he signed, sealed and delivered the deed on the day and year therein mentioned to the grantee, a certificate not stating that the grantor acknowledged that he executed the deed on the day of its date to the grantees, was deemed a substantial compliance with the statute. The court say : “ 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 can not 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 illustrate 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 be clearly void. It is obvious, that the difference in the names would appear only by an inspection of the body of the deed and by comparison with the probate.” The court further say : “ 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 com [268] plied 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.” The acknowledgment and certificate in this case, is merely a substitute for an attestation by a witness, the parties to the deed, being able to write and having signed it. If it had been attested, no more than the signature of the witness would have been necessary — no affirmation by him of his knowlege of the parties, or of their identity or of their acknowledgment that with knowledge of its contents they voluntarily executed it, could be required. It can not be a proper construction of the statute, which would vitiate the instrument as a conveyance of the legal estate, as between the parties, because the officer before whom its execution was acknowledged, from ignorance or carelessness, imperfectly certifies the facts. The certificate is his act, and he, not the parties, speaks by it. The material fact is, that the grantors acknowledged the execution of the conveyance voluntarily, with knowledge of its contents, and whenever this can be fairly and reasonably spelled out from the certificate, the requisitions of the statute are satisfied. When this certificate is read in connection with the deed, the fact appeal’s with certainty. The only doubt about it which can be generated, is by referring to the statutory form, and observing how far the certificate departs from its letter. Literal compliance with the form is not essential. The deed not having been recorded within twelve months from its date, the certificate was not evidence of its execution. The privilege of proof of execution by the certificate is by the statute confined to deeds which are recorded within twelve months after their date. When the subscribing or attesting witness to a written instrument, is not within the jurisdiction of the court — when his residence is in a foreign country, or in another State, the instrument may be read in evidence, upon proof of his handwriting. The certificate of acknowledgment, operating as a substitute for the attestation of a witness, when it is shown that it is legally impossible for the party proposing to introduce the conveyance in evidence, to produce the officer making it, by reason of his residence without the jurisdiction of the court, may be proved by evidence of his handwriting, and when the evidence is given, the conveyance may be read. The admissibility of parol evidence, to supply defects in the certificate of aelcnowledgment, when the purpose is simply to satisfy the statutory [269] requisition as to the execution of the instrument, and not to impart to it the force and operation of a conveyance recorded, it is not necessary to consider, in the view we take of the certificate. 2. The interlineations apparent on the face of the deed, are not of themselves of a character to excite suspicion. They are mere completions of imperfect descriptions of parcels of the lands, and of the aggregate number of acres the deed importing a sale by description, or- metes and bounds, and not by the quantity. All unfavorable presumptions against the grantee are removed by the fact, that these interlineations are in the handwriting of the grantor, Thomas J. Orme, in whom the legal estaté in the lands resided. If it had been shown they were made after the delivery of the deed, the conclusion would be, that they were made by consent, and the validity of the deed would be unaffected by them, if it were not that an attestation by witnesses, or an acknowledgment of execution before a proper officer, is essential to the valid execution of a conveyance passing the legal estate in lands. Material alterations of the deed after its delivery, can be made operative only by a new attestation or acknowledgment. The point of time to which the inquiry as to the making of these interlineations should be confined, is the acknowledgment of the execution. If they were made-before, or concurrently with such acknowledgment, they are parts of the deed, and as operative, as if they had been incorporated in the body of the deed in its original writing. If made subsequently, though by the grantor, with the consent of the grantee, the legal estate in the lands, the description of which they perfect, would not pass by them, without a new acknowledgment, or an attestation of the fact by a witness in the mode prescribed by the statute. These interlineations merely curing an imperfect description of the particular parcels of the lands, accord with all the purposes and objects of the conveyance, and it is but a fair presumption, their omission in the original writing of the deed was merely inadvertent. The inadvertence was corrected, so soon as it was discovered, it is also fair to presume. The legal presumption under the circumstances, is, that they were made before the acknowledgment of execution, and the burden of repelling the presumption rested on the party asserting the contrary. — 3 "Wash. Beal Prop. 221; 1 Whar. Ev. § 629; 1 Green. Ev. § 564. The time of making the interlineations, when any evidence repelling, or tending to repel the legal presumption is given, is a question of fact the jury must determine. [270] Though these interlineations were made subsequent to the acknowledgment of the deed, they would affect its validity, only so far as it purports to pass the title to the particular parcels of lands, the description of which is perfected by them. A fraudulent alteration of a deed by the grantee does not divest the title which has vested in him. '[ It may preclude him from enforcing covenants of warranty found in the deed, but his estate in the lands, so far as it is vested, remains. The principle is thus stated in 1 Green. Ev. § 568: “But here also a further distinction is to be observed between deeds of conveyance and covenants; and also between covenants or agreements executed, and those which are still executory. Eor if the grantee of land alter or destroy his title-deed, yet his title to the land is not gone.” In the note of Hare & Wallace, to Master v. Miller, 1 Smith, L. C. 1280, the principle is stated in the words which follow, and numerous authorities are cited in support of it: “The instrument as far as the spoliator is concerned, is from that time destroyed and extinguished; its past operation is not contractd; executed contracts evinced by it, are not rescinded; estates and titles vested by transmutation of possession, whether by common law or the statute of uses, are not divested.” A fraudulent spoliation not operating a divestiture of title, it would be singular if an innocent interlineation, the act of the grantor, intended to cure his own inadvertence, and make the instrument accord with its purposes and objects, should have a larger operation. There is no view of the case, in which the charge given can be sustained. Let the judgment be reversed, and the cause remanded.