McIntyre v. Kamm

Waldo, C. J. The practice of proving a deed for the purpose of having it recorded grew up in New York in colonial times as a part of the common law of the State. (Van Cortlandt v. Tozer, 17 Wend. 338; S. C. 20 Wend. 423.) We have no such common-law practice in this State. We doubtless take judicial notice at common law of what is termed “an acknowl.ment of a deed.” (Morris v. Wadsworth, 17 Wend. 113; Pidge v. Tyler, 4 Mass. 541.) But apart from the express enactment -of our statute, we do not know what is intended by the expression “proving a deed” for purposes of registration. Nevertheless, the legislature, in enacting the statute, seemed to have supposed that they were legislating upon a subject well understood in the law, and hence, doubtless, arose what is obviously an, imperfect explanation of the mode in which proof shall be made, and the manner in which it shall be certified. The term is first seen in the Laws of Oregon Territory of 1854, page 478, and, as may be drawn from the preface and the marginal references of the text, was a' transcript from the laws of New York. That fact, under the circumstances attending the publication of the laws of that year, gives to the decisions and practice of the courts of New York prior to the enactment of our statute the weight of authority in its construction. According to the practice in that State, which may be taken as a declaration of the law, it seems to have been necessary, not only that the witness should be sworn, which might seem, otherwise obvious, but that that fact should be stated in the certificate. (Jackson v. Livingston, 6 Johns. 149; Jackson v. Osborn, [259] 2 Wend. 555; Bradstreet v. Clarke, 12 Wend. 673; Norman v. Wells, 17 Wend. 137; Van Cortlandt v. Tozer, 17 Wend. 338; Carver v. Jackson, 4 Peters, 82.) The case of Hunt v. Johnson, 19 N. Y. 292 (not cited by counsel), seems, indeed, to support the defendant’s position, that the certificate need contain only what the statute expressly specifies it should contain. But the decision seems to overlook the fact that there was a law governing the subject in New York prior to the statute, which should be considered in the construction of the statute; and also seems to have overlooked what seems to have been a uniform practice the other way. Nor can the decision be upheld on principle, which requires the facts to be stated in the certificate, that the court may see that the deed was duly proved. (Marshall, C. J., Ross v. McLung, 6 Peters, 287.) The power of the officer in taking the proof may be likened to that of an inferior court, “which ought not to show things only by implication, but ought to show them expressly.” (Barnaby v. Goodale, Style, 2.) It is sufficient at present, without examining the certificate in other particulars, that the certificate must be held bad because it does not show that the witness was sworn, and on this ground it was rightly excluded by the court below. The result was that the record title was in the plaintiff. It followed, then, that if the certificate of the notary Woods, made at the trial, was otherwise valid, no other effect could be given to it than if the witness himself had been produced, and proved the deed at the trial. On this point we agree with Mr. Justice Campbell in Shotwell v. Harrison, 22 Mich. 423, that the recorded deed is prima facie evidence of everything necessary to give it validity. This being a controversy between legal titles, the defendants could have assailed the plaintiff’s title on the ground of notice or want of consideration at law. (Jackson v. Burgott, 10 Johns. 457.) But the burden was on the defendants to set up the facts invalidating the plaintiff’s title, and to prove them at the trial. (Moore v. Thomas, 1 Oreg. 201; Ryder v. Rush, 102 Ill. 340.) As this was not done, it was error to admit the deed on the Woods’ certificate alone, and direct a verdict for the defendants as to said lot. [260] The description in the deed from Sarah Brown to William Stevens was sufficient to convey lot 6. The case comes within the rule laid down in Stukeley v. Butler, Hob. 172, where, showing that a contradictory explanatory clause will not avoid what was sufficiently granted before, it is said:- “ As, if I have in D blackacre, whiteacre, and greenacre, and I grant unto you all my land in D—that is to say, blackacre and whiteacre—yet greenacre will pass too.” And see Bell v. Potts, 5 East, 49; Jackson v. Loomis, 18 Johns. 81: Worthington v. Hylyer, 4 Mass. 196; Raymond v. Coffey, 5 Oreg. 132. It follows that the judgment of the court below must be affirmed as to lot 6, and reversed as to lot 5, and a new trial ordered, with leave to the defendants to apply to the court below for leave to amend their answer.