Catlin v. Washburn

— 35 — The opinion of the Court was delivered by Williams, J. This case presents the following questions for consideration: 1st. Whether the deed executed by Chittenden to Gatlin was duly proved so that it could be read in evidence. 2nd. Whether the defendant could insist on the want of a regular notice to quit before the plaintiff could recover in this action. 3d. Whether the deed executed by Chittenden was a mortgage deed, and the mortgage discharged by plaintiff. 4th> Whether the decree in chancery,made in the case between Adams and the plaintiff, was evidence that the title to a part of the premises in question was notin the plaintiff, so that, as to that part, a verdict should have passed for defendant. It appears that the deed was executed at Quebec, and not acknowledged by the grantor before any authority recognized in this state, and that it was proved by the subscribing witnesses before David Russell, Esq. and afterwards before the county court; and it is objected that this was not in pursuance of the statute, or that the reasons for proving the deed in this way do not appear from the certificate of the magistrate or clerk, and that this certificate cannot be helped by any proofed extra. In every case where a deed is executed in the presence of two witnesses who subscribe their names thereto,it is valid to convey the lands therein described as against the grantor and his heirs, and it may be perfected, so that it may be recorded and be valid against every one, either by the voluntary acknowledgement of the grantor, or'by due proof of its execution, if be .is dead or removed out of the state.; and if the grantor refuses to acknowledge it, such •deed may be proved by the subscribing witnesses before a justice of the peace, after due notice to the grantor to be present. The object of taking the acknowledgement or proof of a deed is to'authorize its being recorded, and also that it may be read in evidence without any other proof of execution than the certificate of acknowledgement as proof. The primary object is to authorize the recording, and this is the only effect of the certificate of the ac-knowledgement or proof in some of the states. In Massachusetts the party claiming under a deed acknowledged and recorded is bound to prove the execution of it in the same manner as if it had not been acknowledged. Pidge vs. Tyler et al. 4 Mass. 541.—Catlin vs. Ware, 9 Mass. 218. And it is the same in Rhode-Island and Missouri. (Aiken’s Practical Forms, page 102, 131.) After the statute of Henry VIII. c. 1C, was passed, which required — 36 — deeds of bargain and sale to be enrolled, it became necessary that the officer enrolling should have satisfactory evidence of the due execution of the deed previous to his placing it on record ; and the acknowledgement of deeds is saidto have originated from this statute. In Co. Litt. 225, 6, it is laid down “ that no deed can be enrolled unless it be duly and lawfully acknowledged.” But from the case of Taylor vs. Jones, (1 Salk. 389,) we learn, that a deed may be enrolled upon due proof “ that the party delivered it without the examination of the party” — that if there were two parties to a deed, the acknowledgement of one binds the other,and that the practice was, if a man lived in JYew-England, and was desirous of conveying land in England, he would join a nominal party living in England, in the deed, and the acknowledgement of such party was sufficient. In JYew-York deeds have been recorded on the acknowledgement of one of the grantors and his oath that it was duly executed by the other grantor,and such record has been admitted in evidence to shew title under the grantors. Jackson vs. Schoonmaker, 2 Johns. 230. But it is evident there is a further consequence attached to the certificate of the acknowledgement or proof of a deed than merely authorizing the enrolment or record. In 14th Einer, 446, p. 10, it is said, “ the enrolment of a deed, if it be acknowledged by the grantor, is a sufficient proof of the deed of itself upon a trial ; for every deed, before it is enrolled, is to be acknowledged to be the deed of the party before a master of the court of chancery, if enrolled in chancery, or before a judge of the court where (t is enrolled; and this is the officer’s warrant for enrolling, it.” In this state it has been decided, and is considered as settled, that a deed duly acknowledged or proved, and a certificate thereof entered on the deed and recorded, may be read in evidence without any further proof of its execution.' and it is the same in most of the states in the union, as we learn from the compendium of their laws compiled with great industry and ability by judge Athens in a note to his Practical Forms. The effect of the certificate of the acknowledgement or proof of a deed being such, that the deed may be recorded and read in evidence, without any further proofof its execution, itis highly important that there should be a compliance with the statute in every particular in authenticating any deed of conveyance, and that nothing more than the statute requires should be certified, as it would be altogether useless to incumber the records with proceedings which could be of no use to a person inquiring into the validity of a title; and it may be remarked that in all the law in relation — 37 — to the acknowledgement or proof of deeds, nothing more is required to be taken and certified than such proof as is usually required in courts of law to prove the execution of a sealed instrument previous to its being read in evidence, to wit, the acknowledgement or admission of the party; or, if he denies the execution, proof by the subscribing witnesses; or, when this cannot be had, proof of the hand writing of the grantor or witnesses, or such other evidence as the nature of the case will admit. And it may be further remarked,that although a deed acknowledged or proved may be read in evidence, if it is liable to other objections, the party affected by it is still at liberty to contest its validity on any proper and legal grounds. The 5th section of the statute regulating conveyances requires the personal acknowledgement of the grantor before a justice of the peace. The 6th section provides that when the grantor shall go beyond sea, remove, or abscond from the state, or be dead, before the deed or conveyance be acknowledged, proof of such deed may be made by the oath of one or more of the subscribing witnesses before a councillor or judge of the supreme or connty court. And when the subscribing witnesses can be had, no other evidence is admitted. But when the grantor and all the witnesses are dead, then the proof must be made before the county or supreme court, by proving the hand writing of the grantor or witnesses, or by other evidence to the satisfaction of the court; and this evidence must be entered on the back of the deed. This section supposes the proof to be taken in the absence of the grantor, and provides for cases where there would be no objection on his part to acknowledge the deed if he were present. And as different kinds of proof are to be taken, and before different tribunals, in the several contingences provided for in this section, there may be some reason why those facts, which authorize these different modes of proof, should appear in the certificate entered on the deed; and if it is considered that these cases are exceptions to the general provisions of the statute, according to the opinion expressed in Pearl vs. Howard, (Chip. Rep. 173,) it is proper that it should appear in the certificate to be a case within the exceptions. At any rate, it was so decided in the case last referred to, and that decision is recognized as an authority in all cases arising under this section of the statute. But the 7th section of the statute, under which the deed in question was proved, provides for taking the proof of conveyances in one event only, viz. when the grantor refuses to acknowledge, and — 38 — proof can only be by the testimony of the subscribing witnesses. It contemplates that the grantor resides within the state, and provides that he shall have notice of the time when the proof is taken : whereas in the proceedings under the preceding section the grantor is not tobe notified. This proof must be taken by a justice of the peace who is required to issue a summons to the grantor to appear before him to hear the testimony of the witnesses,but all that is required to be put on or annexed to the deed,is the proof so taken and a certificate thereof,and a notice that the grantor was present or absent. If the grantor was present,it is unnecessary to state whether he was notified or not; but if he was not present, it is proper that the magistrate should certify that he was duly summoned to appear to hear the testimony. It cannot be necessary for the justice to certify,as has been urged in the argument, that the grantor had refused to acknowledge the deed, as this refusal must precede the application to him, and could only become of consequence on the question of taxing the costs. If there was a readiness on the part of the grantor to acknowledge, it is not to be supposed that the grantee would refuse to accept the acknowledgement and prefer taking the testimony. If, then, it should appear by the certificate of a justice, that one or more of the subscribing witnesses to a deed made oath before him to the execution of the same,as prescribed by the statute, and the proof and certificate thereof should be entered on the back of such deed, or annexed thereto, stating in the certificate,that the examination of the witnesses was had in the presence of the grantor, or, if in his absence, that he was duly summoned to appear to hear the testimony, there can be no valid objection to the deed, because the grantor did not acknowledge it, which would have superceded the necessity of the proof. In Massachusetts and JYew-Hampshire, the statutes in relation to the acknowledgment and proof of deeds are similar to ours. In those states, when the grantor is dead, removed out of the state, or beyond sea, in the certificate of the proof that fact is stated, but when he refuses to acknowledge, the proof by the subscribing witnesses is certified in the same manner that it is in the deed under consideration, with only this difference, that in JYew-Hampshire the justice certifies that the grantor was duly summoned,whether he was present or absent; but in Massachusetts, nothing is certified as to his being summoned,if he is present; but if absent, it is certified that he was duly summoned. Aiken’s Frac. Forms, p. 97,99. We are of opinion that under this section of the statute nothing more is ne — 39 — cessary to the authentication of a deed, than a certificate of the ... . c . proof by the subscribing witnesses, and a notice of the presence or absence ef the grantor at the examination of the witnesses, and if he was absent, a certificate that he was duly summoned. It appears that the deed under consideration was proved by the testimony of the subscribing witnesses, the grantor being present by his attorney ; and the proof was certified on the deed by the justice who took the same, Mr. Russell, and on his certificate it was regularly recorded, and was read as evidence on the trial. It was not necessary for the plaintiff to read the record of the county court in Chittenden county to authorize the reading of the deed ; but inasmuch as that record is a part of the case, the effect of it, together with the subsequent certificate of the clerk, have been considered by the court. I will here remark .that in neither of the statutes of Massachusetts or JYew-Hampshire is there any provision for taxing cost or taking an appeal; and it is somewhat difficult to say under our statute, from what the appeal is taken, unless it is the adjudication in relation to the cost. In taking the testimony, the justice renders no judgment, or, in the language of the statute, makes no “ determination” by which either party can be aggrieved. And from this record it appears, that the only determination appealed from was the judgment that Catlin should recover his costj The appeal can have no effect whatever on the proof taken by tffe justice and certified on the deed. In this case,it seems the witnesses were again examined before the county court, and again swore to the execution .of the deed, and if it was of any consequence to have any further certificate, the one made by the clerk, Mr. Lyman, is sufficient to show, that the deed was again proved before the county court. The certificate of the clerk is liable to only one exception, to wit, in not noticing whether the •grantor was present or absent: but as the jurisdiction of the county court upon this subject, if they have any, is only appellate, it is not material whether the grantor was present or absent, if he was present, or duly summoned to be present, before the justice. We consider that the certificate of Mr. Russell, the justice, was sufficient to authorize the recording and reading of the deed, and that if it was, at all, necessary for the county court to make any further certificate, the one annexed to the deed by the clerk was all that could be required, and that their certificates are neither invalidated or made good by the production of the record. The objection taken on account of the apparent differenco in — 40 — Spelling the names of the witnesses in the summons and in the certificate cannot be considered as sound. It appears they were foreigners, and there probably was some difficulty in ascertaining from the signatures precisely what their names were. The witnesses to the deed were the persons examined, according to the certificates, and it is no way material what they were called in the summons. On every question which has been made in relation to this deed, we are of opinion that there was no sufficient objection to it, and that the county court decided correctly in overruling the objections, and admitting the same. The second question raised in this case is whether the defendant was entitled to notice to quit; for if she was, the notices read at the trial, and objected to by defendant, are so obviously defective, according to the decision of this court in Hanchet vs. Whitney, (1 Vt. Rep. 311,) that they should have been excluded, and the defendant on that account would have been entitled to a verdict. It appears that Edward Washburn died in 1826, leaving the defendant, his widow, in possession of the premises. But it does not appear that she was either executrix or adminis-tratrix to his estate, or guardian to the children; and if her husband, in his lifetime, was tenant from year to year, and as such, entitled to notice to quit before his tenancy could be determined, it by no means follows that she was entitled to such notice, but it would rather seem that she was in possession Without right and liable to be ejected at any time by the right owner. But in this case, on the trial, she denied the title of the plaintiff, and also her being his tenant, and put him on the proof of both. This was equivalent to an admission that she did not claim to hold as his tenant, but claimed the premises adverse to him. And it is a clear principle that when a tenant disclaims to hold as tenant,but holds adverse to the landlord, no notice to quit is necessary. Doe vs. Williams, Cowp. 621.—Bull. N. P. 96. If the defendant on the trial had not denied her tenancy, and had admitted the title of Chittenden, requiring the plaintiff to show his derivative title from Chittenden, she would not thereby have waived her right to a notice to quit, if she was entitled to such notice. This accords with the determination in the case of Jackson vs. Bryan, (1 Johns. 1322,) and with what is laid down in Arehbold's Pleadings, 531. But in this case the plaintiff was compelled not only to show his title from Chittenden, but also the title of Chittenden. It would have been manifestly improper for the defendant, after having thus contested every point with the plaintiff, denying that she was — 41 — bis tenant, and denying that he or Chittenden, under whom herchusband went into possession, had any title, when the plaintiff had succeeded in proving these points,to admit that she was his tenant, and say that she did not hold adverse to him, and claim that she was entitled to a regular notice to quit before she could be turned out of possession. It has been contended, that it was necessary for the plaintiff to show that he was entitled to recover at the time of the ouster. In the proceedings in ejectment in England, which are totally different from the proceedings in this state, it is necessary to allege the time of the demise some day after the lessor’s right commenced : but it is not necessary to state the day of the ouster, though it should be stated after the day of the demise. But the authorities which have been read on this point are wholly inapplicable to the action of ejectment given by our statute ; and it does not appear that any question was made in the county court in relation to the day on which the ouster is alleged to have been made. It was necessary for the plaintiff to show a complete cause of action at the time of commencing his suit; and this was shewn by proving a title in himself, and an adverse possession of the defendant. We are of opinion that in all cases where a defendant in ejectment denies the title of the plaintiff, and also denies his tenancy, or,which is equivalent thereto, requires the plaintiff to prove these points, he cannot insist on the want of notice to quit, although it should appear in the course of the trial that he was tenant from year to year to the plaintiff; and that on this point the county court charged the jury correctly. The third point made in the case has not been much insisted on in the argument. It is unquestionably true that it was competent for the defendant to show that the plaintiff’s title had ceased, or become extinct, at the time of the trial. But if it is admitted that the plaintiff’s deed from Chittenden was a mortgage, in consequence of the receipt or writing executed by the plaintiff, at the date of the deed, yet the writing executed between Truman Chittenden and plaintiff on the 17th March, 1825, does not show any other payment of the sums mentioned in the writing, which is called the writing of defeasance, except the deed of the land. By the writing first executed Catlin agreed to receive the land in full payment of the sums therein mentioned, and by the writing executed by Truman Chittenden and Catlin in March, 1825. it was agreed that he should hold the same land conveyed by that deed in full satisfaction of the same demands. An agreement between a mortgagor and mortgagee that the mortgagee should — 42 — hold the lands mortgaged in satisfaction of his debt, could never be construed as discharging the mortgage and paying the debt at the same time; and it would be a strange and singular construction to Put on writing to say that Catlin, by agreeing to hold the land in satisfaction of his demands against Chittenden,thereby discharged his title to the land, and discharged his demands, and would be as repugnant to common sense as it is repugnant to law and justice. As between Catlin and Truman Chittenden, it was an agreement on the one side to release his equity of redemption, and on the other, in consideration thereof, to receive the land freed of any equity of redemption in satisfaction of his claims. Blodget, for plaintiff. Bailey and Marsh, for defendant. On the last point we are of opinion, that the decree of foreclosure made in the case of Mams against the plaintiff, the time for the redemption therein mentioned not having expired, could have no effect on the rights of the present plaintiff in this suit. It did not prove that the plaintiff was divested of his title to the lands therein contained, so that he could not maintain this action. At the time of the trial he had a right to the possession as against this defendant, and the decree did not in the least impair or affect that right. The judgement of the county court must, therefore, be affirmed.