Bryan & Farrie v. Hawthorne

Mason, J., delivered the opinion of the court. It is conceded in the statement of facts agreed upon in this case, that the property mentioned in the deed of trust, the validity of which is assailed in these proceedings, was delivered to the grantees in said deed, immediately upon its execution. The act of 1729, ch. 8, sec. 5, only requires conveyances of personal property to be in writing, acknowledg [524] ed and recorded, where delivery of possession does not accompany the sale or transfer of title, but remains with the grantor. This act, therefore, does not apply to this case, but the bona fide transfer by sale or otherwise, accompanied by delivery of the property, effectuates the title in the grantees, and no written conveyance is necessary; and where there is a bill of sale or deed of personal property accompanied by delivery, none of the formalities of the act of 1729, ch. 8, sec. 5, are necessary to give it validity. This is not only the manifest meaning and design of that act, but it is the construction given to it by this court in a number of previous decisions, to which the learned judge who delivered the opinion below, has referred. If this was a bona fide tranaction, (and this is not denied,) the title to this property in the grantees, was perfect and complete, as soon as it was delivered, whether the deed conveying it was acknowledged and recorded or not. The act of 1846, ch. 271, and its supplement of 1847, ch. 305, apply only to such bills of sale, as under the preexisting law, are required to be acknowledged and recorded. This is clear, from the fact, that the two acts, when construed together, provide that the oath shall be taken at the time of acknowledgment, or before the paper is recorded, and as a necessary sequence, if the deed need not be acknowledged nor recorded, no oath is required by the acts of 1846 and 1847. It has been contended by the counsel for the appellant, that the act of 1845, ch. 166, sec. 1, requires all deeds, of trust, like the one now in question, to be recorded, in order that the State may thereby secure the tax upon the trustee’s commissions arising under said deed. We do not see anything in that act to warrant such a construction. The language, upon which the counsel particularly relies to support the view he takes of the act, is in these words, “it shall be the duty of every trustee * * * to file with the clerk of the county court, in which the deed creating the trust may be first recorded,” 8fc. We regard this language as merely descriptive and not mandatory. Its purpose is to indicate what trustees are re [525] quired to give bond, and when and how they are to do so. It designed merely to say that all trustees created under deeds of trust, which are now required by law to be recorded, shall give bond, &c. And it makes no difference whether the word “may” be construed “shall” or not. In our judgment it would not alter the obvious meaning and design of the law. As regards the question whether, the act of 1846, ch. 271, embraces deeds of trust or not, is a matter which we do not feel ourselves required to settle in this record. It is a question not necessarily involved in this case, and therefore ought not now to be decided. Judgment affirmed.