Robertson v. Kennedy

JUDGE CRENSHAW delivered the opinion of the Court. The ordinance of 1787, as extended to this country, prescribed certain fundamental principles for our temporary government as a territory of the United States. It is not a part of our permanent municipal law. It was superseded by the adoption of our State Constitution. By the common law, subscribing witnesses are not essential to the validity of a deed. The sealing and delivery may be proved by other testimony. The ordinance prescribed certain modes by which real estate .might be conveyed, but did not declare void other modes of conveyance which were valid at common law. If the ordinance were yet in force, it would not avoid the deed in question. Our statute of 1803, does not vary the doctrine of the common law, but prescribes the mode in which a deed shall be acknowledged or proved and admitted to record ; and enacts that when thus acknowledged or proved, and duly certified or recorded, it shall be received in evidence. But if not so acknowledged, proved or recorded, it may still be received in evidence, on proof of its sealing and delivery as required by the common law. We are inclined to think that the officer who received and certified the acknowledgement, being called a justice of the quorum, does not avoid his act or diminish his authority as ajustice of the County Court, and that on his certificate as set out, the deed should have been received in evidence. But whether it be viewed as the deed of the mayor or of the corporation, subscribing witnesses were not necessary. It was competent for the plaintiffs to prove the scaling and delivery by evidence aliunde. But this it seems they were not permitted to do, and the deed was rejected for the want of subscribing witnesses, It is the unanimous opinion of the Court, that the judgement be reversed and the cause be remanded. The Chief Justice not sitting.