Harrington v. Fish

Martin Ch. J.: This is an action of ejectment brought by the defendants in error, upon the trial of which the deeds through which they deduce title were introduced under the statute, and without actual proof of their execution. The statute (Gomp. L. §2*750) is as follows: “All conveyances and other instruments authorized by law to be recorded, and which shall be acknowledged or proved as. provided in this chapter, * * * may be read in evidence in any court within this State without further proof thereof; but the effect of such evidence may be rebutted by other competent testimony.” Three deeds were offered in evidence: 1st, one from Spencer and wife to Day; 2d, one from Day and wife to [419] defendants in error; and 3d, one from Jacques, assignee of Day, to Griggs and others, from whom the defendants in error claim to derive title. The first deed is dated September 26, 1842, but the date of the second and third are not given. The questions raised by the bill of exceptions in this case relate to the competency of the deeds as evidence. The errors assigned upon the admission of the deed from Spencer to Day, are, first, for insufficiency of the description of the land; and second, for insufficiency of the clerk’s certificate of its due execution and acknowledgment. It is no objection to a deed that the description of lands thereby conveyed is in figures and abbreviations. This is a mode of description recognized and adopted by both the general and state governments in the sale of lands, is of common practice, and understood by every one; and there is no law requiring any more particular description than such as will 'give clear information of what premises are intended to be conveyed. We therefore think the description sufficient. The second objection relates to the admission of the deed as evidence, without actual proof of its execution. The clerk’s certificate, without' which — as the deed was executed in another State — it would not be “authorized to be recorded,” would unquestionably be good were it not for the word “ existing ” contained in it; but from the interval of time between the execution of the deed and the date of the certificate — which is December, 1859 — it is insisted that the word limits the certificate to the time of such date. Had the certificate been made at or near the time of the deed, no question would 'arise, nor would one were the word “ existing ’’. stricken out; as in either case it would be construed as a certificate of the due and legal execution of the deed according to the laws of the State of New York as they existed at the [420] time of such execution. In my opinion, tbe occurrence of tbe word “ existing ’’ does not invalidate tbe certificate, or qualify its construction. I cannot presume that it was inserted as a word of limitation, especially as the clerk could not legally execute any except such as would establish the lawful execution of the deed: but rather that he attempted to comply with the law, and that the word was inadvertently used, or perhaps inadvertently retained in the certificate if a blank form was used; or regarded by the clerk as referring to the time when the deed was executed. The certificate is not an essential part of the deed, nor necessary to its validity. It is only required to authorize its being recorded; and I think it more reasonable, instead of avoiding the registry for the ignorance or inadvertence of the certifying officer, to hold the word “existing” as immaterial, or understand it as though the word “ then ” preceded it. The certificate being no part of the deed, or of its execution, and not the act of the parties to the deed, should not be construed with technical nicety unless upon imperative necessity. It is evidence of the execution of the deed; and like all other evidence, should be reasonably construed. I therefore think the deed was properly admitted. As to the deed from Day and wife to the defendants in error, the objection is founded upon the commissioner’s certificate of acknowledgment, which the bill of exceptions says “had a seal annexed, with the words, ‘John Benson, Commissioner, N. J.’ impressed thereon, but there was not any statement or words in the certificate otherwise showing that the same was executed under Ms hand and seal.” The certificate was in proper form, and duly signed by Benson, and the record avers that he was a commissioner of deeds for this State. The fact that it was executed under his hand and seal as clearly appears from the instrument as though he had declared it by the instrument. The very signature and seal would .be necessary to attest such declaration, and their presence is such declaration. The statute [421] under which the commissioner derived his power prescribes no form of attestation, nor of seal, and was substantially-complied with. In the case of this deed, as of the other, I think there is a substantial compliance with the statute; and I will not imperil a title by insisting upon technical nicety, or severe criticism of language. The form of an official certificate like this is immaterial in any but matters of substance. Until the Legislature prescribes a form, the rule of construction must be a liberal one, for the sake of the quiet and security of titles. The deed from Jaques to Griggs was sufficient to convey such title as he acquired by the assignment, and is in compliance with the act of Congress respecting deeds by assignees in bankruptcy. Section 15 of that act is as follows: “A copy of any decree of bankruptcy, and the appointment of assignees as directed by the third section of this act, shall be recited in every deed of lands belonging to the bankrupt sold and conveyed by any assignees under and by virtue of this act; and that such recital, together with a certified copy -of such order, shall be full and complete evidence both of the bankruptcy and assignment therein recited, and supersede the necessity of any other proof of such bankruptcy and assignment to validate the said deed; and all deeds containing such recital, and supported by such proof, shall be as effectual to pass the title of the bankrupt, of, in and to the lands therein mentioned and described, to the purchaser, as fully, to all intents and purposes, as if made by such bankrupt himself immediately before such order.” This section relates solely to the sufficiency of a deed containing the recitals, first, of a copy of the decree in bankruptcy; second, of the fact of the appointment of the assignee undertaking to convey; and if accompanied with a certified copy of the order making such appointment, is declared full and complete evidence of bankruptcy and assignment to validate the deed. The deed in question [422] contained a copy of such decree, and recited tbe appointment of Jaques as assignee, and was supported by certified copies of tbe decree and order appointing tbe assignee. This was both a substantial and literal compliance with tbe act, and the deed was properly admitted. The judgment is affirmed, with costs.