Cole's Lessee v. Pennington

Alvey, J., delivered the opinion of the Court. Two bills of exception were taken in this case ,• but there is, in truth, but one question involved, and that is, whether the indorsement upon the deed from Harriet P. Knighton to Martha R. Yeates, under which the plaintiff claims title, has any such legal effect as will defeat the plaintiff’s right to recover in this action. The deed of assignment in question was absolute and unconditional on its face, and in that form was executed and acknowledged; but after the acknowledgment, and before the deed was filed for record, the husband of the assignee, the latter being a féme covert at the time, thought proper, of his own motion, and without the knowledge or sanction of his wife, to indorse upon the deed, immediately under the acknowledgment, the following condition: “The obligation to the above deed is, that Harriet P. Pennington and D. H. Pennington are to have a home in the above described premises during their lives or pleasure, and at their death, to the children of said Dr. H. P. P. Yeates and Martha R. Yeates.” This indorsement is without signature, and the deed of assignment, with the condition appended, was filed for record, and was recorded; but, afterwards, the condition was erased from the original deed, but by whom it does not certainly appear. The Court below was clearly in error, both in admitting this condition in evidence, and afterwards instructing the jury, “that the evidence showed that the plaintiff’s lessor and the defendant both claimed title under the deed from [480] Harriet P. Knighton to Martha R. Yeates, and that under the memorandum written on the back of said deed and recorded therewith, the defendant acquired title in said premises described in the narr., and that as against the said defendant the plaintiff could not recover.” (Decided 13th January, 1871.) This condition was plainly no part of the deed, and as it was not shewn to have been written by the authority of the assignee, and signed either by herself, or - some one by her duly authorized, it could not, therefore, operate as a re-demise of the premises; and if it • be true that it was appended after the deed was executed, and without the knowledge or sanction of the. assignee, it was wholly void and without any effect whatever. The fact of its being recorded with the deed, adds nothing to its validity. Not being part of the deed, and being appended without authority, it was improperly admitted to record; and that being so, no authenticated copy from the record was competent evidence. The recording of an instrument not legally executed, or if legally executed, not required to be recorded, affords no ground whatever for admitting an authentication thereof as evidence; a certified copy of such an instrument from the' keeper of the record being of no more avail, assegai evidence, than a copy made by a private individual. Coale vs. Harrington, 7 H. & J., 147; Budd vs. Brooks, 3 Gill, 300. If the condition in question was omitted from the deed by fraud or mistake, a Court of Law is not the tribunal in which relief can be obtained. It must be sought in a Court of Equity. The judgment appealed from must be reversed, and a new trial awarded. Judgment reversed and new trial awarded.