Galpin v. Abbott

Oiieistiancy J.: The main question in this case is, whether the two deeds from Macy to Dodd and Hoxie respectively, dated August 4th, 1835, acknowledged the same day, and recorded in the uffice of the register of deeds in the city of Detroit, October 9th, 1835, were so executed, attested, and acknowledged, as to be entitled to record under the then existing laws of the territory. If entitled to be recorded, the record was notice to all the world of the title of Dodd and Hoxie, and they should have ■«closure suit; and not having been made parties to the fore-been made parties, they were — 30 — Hot bound by the decree, and they or their grantees would' now be entitled to redeem. But if not entitled to record,, then, though, recorded in fact, the record is notice to no one,, and Dodd and Hoxie, and their grantees, are barred of all' rights of redemption by the foreclosure against Macy alone;all the mortgaged premises having been purchased by the other defendants from Abbott, and neither he nor his-, grantees- having any notice of the titles in question, aside fi‘om the record. These deeds purport to have been executed in the state of New York, and each has but a single witness, who is, the same person before whom the acknowledgment was taken* — 31 — The defendants insist that these deeds were not entitled to record, First, Because not properly acknowledged and certified, according to the laws of the state of New York, and the seventh section of the territorial act of Michigan, of April 12th, 182V (Compilation of 1888, p. 281, efic.); and, Second, If duly acknowledged and certified, they could not be legally recorded, because not attested by two witnesses. The first ground of objection we think wholly untenable. It is fully met by the decision of this court in Ives v. Kim-ball, 1 Mich. 308, which arose under the same law. The only circumstance which might distinguish that case from the present (as relates to this point), is, that in that case — 32 — the acknowledgment was taken before a judge of the Court of Common Pleas, wbñe in tbe case before us it was before a commissioner. The provision, of the New York Revised Statutes (.Edition of 1836, vol. 1, p. '749, section eighteen), to which we are referred, and which requires a clerk’s certificate to a commissioner’s acknowledgment when the deed is to be recorded in another county, manifestly has no application to this case, as it only applies when the deed is to be recorded in some other county of that state. This clerk’s certificate is no part of the acknowledgment, or of the certificate of acknowledgment. The latter under' section seven of the is the only certificate required territorial act. The question — 33 — hero is, whether the acknowledgment, and the certificate of such acknowledgment, were in accordance with the laws of New York. TJpon this question we can not entertain a doubt. We think, therefore, the deeds were sufficiently acknowledged and certified to entitle them to record here, if they could be recorded with a single witness only. But the question still remains, whether the deeds were entitled to record with but a single subscribing witness. . This question depends entirely upon the territorial statute originally adopted by the Governor and Judges, March 27th, 1820, from the laws of five of the original states {Laws of 1820, p. 156, et seq.), re-enacted without altera — 34 — tion (so far as this point is involved), April 12th, 1827 (Laws of 1827, p. 258; and Laws of 1883, p. 279), and in force at the time the deeds in question were made and recorded. "We say the question depends entirely upon this statute, because it was the only statute in force upon the subject, and because, though statutes in pari materia often shed much light upon the true construction of a particular statute in a doubtful case, yet, in the present case, we think the legislative intent can be easily deduced from this statute itself, and if it could not, such is the peculiar nature of the case, that little .light could be derived either from prior or subsequent legislation. Little from the for — 35 — mer, as this was tbe first act of the legislative power of the territory in reference to the material questions here in-, volved. And whether the provision of the Ordinance requiring two witnesses (until other provisions should be made by the territorial laws) was, or was not, in force when this act was adopted, it ceased upon its adoption, and its prior existence can furnish no safe inference in itself, whether the policy of that Ordinance in this'respect was intended to be continued or changed by the act. The one inference might be as probable as the other, and the question can only be settled by the provisions of the act itself Quite as little light is to be derived from subsequent legislation; — 36 — because, First, There was no subsequent act on the subject till after these deeds were executed and recorded, and a legislative construction could have little effect upon prior transactions; and, Second, The subsequent legislation so entirely changed and re-changed the law relative to witnesses, and deeds executed out of the state, that the principal inference to be drawn from this subsequent legislation as to the understanding or intention, of the Legislature in reference to this act, is, that' they were not satisfied with the law as it was, and therefore chose to alter it by making a different provision. The question must, therefore, be settled by an analysis of the provisions of the act itself; and its solution will be found to depend mainly upon the first and seventh sections. The first section provides “That all deeds or other conveyances of any lands, tenements, or hereditaments, lying in this territory, signed and sealed by the parties granting the same, having good and lawful right and authority thereunto, and signed by two or more witnesses, and acknowledged by such grantor or grantors, or proved, and recorded, as hereinafter provided, shall he good and valid to pass — 37 — the same lands, tenements, or hereditaments, to the grantee or grantees, without any other act or ceremony in law whatever.” Whether a deed without two witnesses would be invalid to pass the title inter partes, under this -section, is a question upon which we express no .opinion, as it is not involved in the case. But whether it relates to the validity of the deed inter partes, or only to its validity for the purposes of registry, for which provision is made in the subsequent sections, can make little difference here: whether it relates to the one or the other, or to both, we are satisfied from the nature of the provision, and the whole scope of the act — the obvious design of which was to provide a system for the conveyance of lands and the registry of deeds, which should be complete in itself — that this see, tion must be construed as exclusive in its operation, though there are no negative words; and this is abundantly shown by the following authorities, cited by the counsel of the defendants.— Wiswall v. Ross, 4 Port. Ala. 321; Claris v, Graham, 6 Wheat. 577; Alston v. Thompson, 1 Cheves, 271; Gorham v. Daniels, 23 Vt. 600. But if this provision, touching the validity of the deed, relates only to its validity for the purpose of registry (and, it certainly relates to this, whether it has any greater extent or not), no one can doubt that, in this respect at least, the provision is exclusive, and no deed included under this section could be recorded without two witnesses. There was no registry at common law; and so far as this pro-, vision relates to validity for the purpose of registry, it is an enabling act. The validity of the deed for the pur-, pose of registry can extend no further than the affirmative provisions of the statute have extended it; the common law can not supply any omission or deficiency of the statute. The same reasoning will apply to, and the same conclusion result from, the provisions of section seven, touching the validity of deeds there mentioned. We can not, therefore, — 38 — resist the conclusion that to authorize the registry of a deed under this statute, it must be a valid deed under this statute, and that its validity must depend upon the affirmative provisions of the statute itself; unless, indeed, the statute has in some way recognized a common law deed as susceptible of record — a point which we shall consider in the proper place. But do the provisions of this section, in reference to the execution and attestation of deeds, extend to the deeds mentioned in the seventh section? The language of the first section is general, and on its face purports to apply to all deeds affecting lands in the territory; and must therefore be applied to all the deeds mentioned in the act, unless clearly limited to a part only, by some subsequent .provision. It is also apparent that while this section purports to prescribe rules for the execution and attestation of all deeds affecting lands in the territory, it has made no provision for the mode of acknowledgment, or proof (as a substitute for acknowledgment), or registry, of the deeds mentioned in it; but for provisions touching these subjects it exp'essly refers to the subsequent provisions of the act, by the clause “and acknowledged, or proved, and recorded, as hereinafter provided.” This reference would seem to extend to all the subsequent provisions of the act on the subject of acknowledgment or proof and registry, and plainly to indicate that all the deeds and conveyances for the acknowledgment or proof and registry, of which provision is made in any subsequent Section, were understood to be included among the deeds and conveyances mentioned in this section, unless this reference should be found to be limited by some subsequent provision. The subsequent provisions relating • to the acknowledgment or proof and registry are to be found in sections two, three, four, six, and seven. Section two (which will be noticed more fully hereafter) — 39 — provides for the acknowledgment or proof of deeds within the territory only, requires them to be recorded, and prescribes the consequences of omitting to record them. It makes no provision for acknowledgment or proof out of the territory, nor does it prescribe the order or manner oí recording. Section three provides for a register of deeds in the city ■of Detroit. Section four provides for the acknowledgment of deeds of married women: 1st, those residing in the territory; 2d, those residing toithout the territory; and authorizes the recording of deeds of the latter class. Section six, provides that “ all deeds,” &c., entitled to be recorded “by virtue of this act,” shall be recorded in the order and within the time therein prescribed ; and makes the deed when recorded, with the register’s certificate on the same, as well as the record, or a transcript thereof, evidence in any court, without further proof. This is the only section which provides for the order or mode of recording. Section seven, upon which the questions in this cause mainly depend, is in the following words: “That all deeds and conveyances of lands, tenements, or hereditaments, situate lying and being within this territory, which shall hereafter be made and executed in any other territory, state, or country, whereby such lands, tenements, or hereditaments shall be conveyed, in whole or in part, or otherwise affected or incumbered in law, shall be acknowledged, and proved, and certified, according to, and in conformity with, the laws and usages of the territory, state, or country, in which such deeds or conveyances were acknowledged or proved, or in which they shall be acknowledged or proved; and all such deeds and conveyances are hereby declared effectual and valid in law, to all intents and purposes, as though the same acknowledgments had been taken, or proof of execution made, within this territory, and in pursuance of the laws thereof; and such deeds and conveyances, so acknowledged — 40 — or proved as aforesaid, may be admitted to be, and shall be, recorded in the respective counties in which such lands, tenements, or hereditaments, do or may lie; and all deeds and conveyances of lands, tenements, and hereditaments, situate'lying and being within this territory, which have been acknowledged or proved in any other territory, state, or country, according to, and in compliance with, the laws and usages of such territory, state, or country, and which deeds or conveyances have been recorded within this territory, be and the same are hereby, confirmed and declared effectual and valid in law, to all intents and purposes, as though the said deeds or conveyances, so acknowledged or proved and, recorded, had, prior to being recorded, been acknowledged or proved within this territory.” It is contended by the complainant’s counsel that the general provisions of section one are restrained by the language of section two, so as to include no other deeds than those which are required to be acknowledged under the provisions of section two, and that the reference contained in the language of section one in the clause “as hereinafter provided,” &c., is thereby restrained in like manner; that section seven provides for a class of deeds not included in section one, and is to be treated as complete in itself, providing for the execution, acknowledgment, and registry of all deeds executed out of the territory; and in support of this view (and necessary to its support) it is further contended, that the execution of the deeds mentioned in section seven is sufficiently provided for by the, section itself, either, 1st (as maintained by the counsel who opened the argument), by adopting a common law deed and a common law execution; or, 2d (as urged with much ability by the_ counsel who closed), that this section has adopted, for the purposes of execution, the law of the place of execution. Let us see whether this construction will fairly harmonize the various provisions of the statute. Is the first section limited by the second as contended? — 41 — It can not be denied that, on a first inspection, confining ourselves strictly to the particular words, “all such deeds,” &c., in connection with the provision for acknowledgment within the territory, this view would appear plausible; but Avhen we come to look at the leading idea and main object of the section, in connection with the various provisions which precede and follow it, we do not think this view can be maintained. The leading- idea and chief purpose of this section were not to limit the preceding section, but to provide for the acknowledgment of deeds within the territory, and before officers within the territory; to require such deeds to be recorded, and to prescribe the consequences of a neglect to record. The apparent repugnancy between this section and the preceding, considered with reference to its main scope and professed object, is merely incidental; while to construe it only with reference to the particular words referred to, would create a direct conflict between this section and sections one, six, and seven. The same harmony of transition from one section or one provision to another is, perhaps, hardly to be expected in an act adopted, as this was, from the laws of five separate states, as would be expected in an act prepared and passed, as a whole, by the same legislature. But statutes should always be so construed as to produce the least conflict, and to harmonize, as far as possible, all their provisions. The construction contended for by the complainant would confine the express general reference in section one (of which we have spoken) exclusively to the deeds mentioned in section two; while it is manifest, we think, that this reference extends also to those mentioned in section six, which latter section obviously includes those mentioned in section seven, as well as those in section two, — and it is admitted that those mentioned in section two are included in section one. Indeed, we think the reference is quite as clear to section six as to section two; as the sixth section is the only one which provides fully the — 42 — order and manner of recording, and prescribes the effect of the record. If, then, it extends to the deeds mentioned in the sixth section, how can it be claimed not to extend to those mentioned in the seventh, which are included in the sixth? The same reference of section one just as evidently extends to the second class of deeds mentioned in section four, which, if executed out of the territory, might, as we think, and as complainant’s counsel contend, be acknowledged or proved out of the territory, under the provisions of section seven. And it can not well be doubted that the same class of deeds might also be acknowledged in the territory under section two. Section seven refers only to deeds executed out of the territory; and is entirely silent as to the manner of executing or attesting such deeds, but makes full and express provision for the mode of acknowledgment, or proof, and • the certificate thereof, when taken in any other state or country — not by adopting the law of the place of execution, but of the place where such acknowledgment or proof may be taken. We cannot suppose that by the terms “deed or conveyance made and executed” (see section seven) the Legislature intended to adopt a common law deed merely, or the mode of execution at common law. We can see no foundation for such an in_ ference in the language; and there is nothing in the context or general scope of the statute to warrant the inference that they intended to use the terms “ deed or conveyance,” in this section in any different sense from that in which the same terms are used in every other portion of the act. Nor can we suppose, especially in the absence of any language indicative of such an intent, that they intended to authorize the recording of deeds, not only without a witness, but without even the signature of the grantor, neither of which was essential at common law— sealing alone being sufficient. It may, we think, be safely affirmed that this feature of the common law was never recognized in the territory of Michigan, if in any of the northwestern states; and the construction — 43 — Which would allow such a deed to be recorded, would certainly violate the rule of construction contended for*by the complainant’s counsel, that the plain and obvious meaning should be 'taken, instead of one only discoverable by professional criticism, for which he cited 23 Pa. St. 242. Again, as already intimated, a married woman residing out 'of the territory, might, by virtue of section four, either execute and acknowledge her deed out of the territory under section seven, or within it under section two; and the construction contended for by complainant would then make the same word, in the same connection and in the same place, mean a common law deed under section seven, or a statute deed under section one, as. it might happen to be acknowledged within or Without the territory. But the construction claimed by one of the complainant’s counsel, that this section has adopted, in reference to the execu~ ■tion of the deed, the law of place of execution, is, if possible, still less tenable. The language of the section precludes any such construction. It has not adopted the law of the place of execution for any purpose; while it has adopted, in the most explicit terms, in reference to the acknowledgment or proof, the law of the place where acknowledged or proved. It is but treasonable to suppose that if it intended to adopt the law of the place of execution, that intention would also have been expressed. The expression of the one is the exclusion of the -other. Now, the execution of the deed, and the attestation by subscribing witnesses — whether it be a part of the execution (as we think it is, under this statute) or not, are distinct from the acknowledgment, and complete -without it. And we see no good reason why a deed executed in the state of New York might not, under section seven, be acknowledged or proved in the state of Pennsylvania or Ohio. In such case, the law of the place of execution and the place of acknowledgment would be different, and the latter only would apply. But again: Section seven after providing for the acknowl — 44 — edgment ont of the territory, declares that “ all such deeds and conveyances ” shall be “ as effectual and valid in law, to all intents and purposes, as though the same acknowledgments had been taken, or proof of execution made, within this territory, and in pursuance of the laws thereof.” This necessarily implies that the deed, though executed out of the territory, might have been acknowledged here, and, if so, it must have been under the provisions of section two, as this was the only law under which, any acknowledgment could be taken here; and, in this case,, beyond all controversy, the two witnesses would have been required ; as it is admitted, on all liands, that all the deeds, for-the acknowledgment of which provision is made in section two, are included in, and referred to. by section one. The conclusions, then, to be drawn from an analysis of the statute, are that the reference in section one extends to the deeds mentioned in section seven; that, consequently, the deeds mentioned in section seven are included among those for the execution and attestation of which provision is made in the first section; and that the seventh section, being silent on the subject of execution and attestation, and only providing for acknowledgment or proof, a deed with but a single witness Avould be of no greater validity for the purposes of registry, when acknowledged out of the territory under section seven, than if the same deed, so attested, had been acknowledged within the territory under section tAvo. Let us now see if this final conclusion is not expressed in plain and unmistakable terms in the language of section seven itself. After having made provision for the acknowledgment or proof of deeds out of the territory, it adopts the following language already quoted — “ and all such deeds, and conveyances are hereby declared effectual and valid in law, to ah intents and purposes, as though the same acknowledgments had leen taken, or proof of execution made, within this territory, and in pursuance of the laws thereof.” We are compelled to regard this as a plain and direct Statute enactment of the conclusion at which Ave have already arrived by analysis of the Avhole act. — 45 — It declares just liow far such deeds shall be valid; not to all intents and purposes, but to the same extent as if the same ■deed had been acknowledged “in this territory, and in pursuance of the laws thereof.” No reference could be more direct to the provisions of section two of this act, 'which was the ■only law under which the acknowledgment could be -taken in the territory. The test question then is, Had these deeds from Macy to Dodd and Hoxie, with but a single subscribing witness, been acknowledged in the territory under section two of this act, would they have been valid deeds, for the purpose of registry ? Clearly they would not, since it is not, and can not be, denied that all the deeds for the acknowledgment or proof of which provision is made hi the second section, are included in the first section, and must -be executed according to the provisions of the latter to entitle them to record. We think, therefore, that whatever doubt might be entertained whether the reference hi section one extends to section 'seven, there can be little doubt that the language of section seven, above quoted, refers directly to section two, and, through that, to section one, for all that is essential to entitle a deed to record, except the acknowledgment or proof, and certificate, provided for in the seventh section. A similar limitation as to validity, and a similar reference to the first two sections of the act, are contained in the latter part of the seventh section,, in reference to deeds previously acknowledged out of the territory. The language referred to is too plain and explicit, and the whole provision too cautiously worded, especially when twice used in the same section, to have been the result of accident or mistake. At all events, if a mistake, it is one which this court can not correct. We are, therefore, of opinion that the deeds from Macy to Dodd and Hoxie were not entitled to be recorded; that, though recorded in fact, the record was notice to no one; and, therefore, that Macy and his grantees were barred of the right ■of redemption by the foreclosure suit against Macy alone. — 46 — For these reasons the decree of the court below, dismissing the bill, must be affirmed. Martin Oh. J. and Manning J. concurred. Campbell J. did not sit in this case, having been counsel for one of the parties.