Wendell v. Abbott

Bartlett, J. Our Revised Statutes provide that, in case of the peaceable entry of a mortgagee of real estate into the mortgaged premises, for the purpose of. foreclosing his mortgage, the affidavit of the party making such entry, and of the witnesses thereto, as to the time, manner and purposes of the entry, and a copy of the published notice, verified by affidavit as to the time, place and mode of publication, recorded in the registry of deeds for the county in which the lands lie, shall be evidence of such entry and publication. Rev. Stat., ch. 131, sec. 16. Such evidence is admissible only by virtue of the exception which this statute has created to the general rules of the common law; and statutes in derogation of the common law are to be strictly construed. Bac. Abr., Statute I; Lovejoy v. Jones, 30 N. H. 170. Whoever, therefore, would avail himself of the provisions of the statute in question, must show a full compliance with its terms. The plaintiff has not done this, for he offered the affidavit of one witness only, without the affidavit of the party making the entry; and this evidence, not conforming to the requirements of the statute by which alone it could be admissible, was incompetent. The Legislature may have required the affidavits of the party and the witnesses as a prudent precaution against fraud or mistake, when they saw fit to allow evidence to be thus received, without the ordinary safeguards provided by the common law. But whatever may have been the reason of the requirement, it is sufficient that it is contained in the statute construed, as it must be, according to the familiar principle already stated. We have not considered any question arising from the lapse of time between the alleged entry and the record of the affidavit. Whether the affidavit was material in this case we need not inquire, as the verdict must be set aside because of the admission of the office copy of the deed from John Wendell to James Hogg, as evidence upon the question of boundary. It is unnecessary to decide whether the original would have been evidence upon that question in favor of the plaintiff' who claimed title under John Wendell, as being, at the date of the deed, owner of lot No. 8, for neither .the deed nor any evidence of its existence, except the office copy, was produced. The defendant did not trace title to John Wendell, and the copy was not offered as part of the chain of title of either party ; and the fact that an unsuccessful search had been made for the alleged original, has, in itself, no tendency to prove that such an original ever existed. Where the law does not require or authorize an instrument to be recorded, an office copy of the record is not, in general, admissible in evidence. 1 Greenl. Ev., secs. 485, n, 572, n. This principle is too familiar to require the citation of the numerous cases in which — 74 — it is asserted. Whatever seeming exceptions may exist, we think no well considered case will be found where an office copy of an unauthorized record, unaccompanied by other evidence, has been admitted as proof of the existence as well as contents of thé alleged original, unless under the special provision of some statute. In Allen v. Parish, 3 Ham. 107, £here was independent evidence of the former existence of a deed more than twenty years old, which appeared to have been either destroyed, or in the hands of the parties claiming adversely to it. The original book of a deceased notary, containing what purported .to .be a copy of the deed, from which the acknowledgement appeared to have been taken by him, was admitted, the whole evidence tending to show the correctness of the copy, and it appearing that the witnesses and parties were dead. From the case it would seem, also, that there had been possession according to the deed. In Garwood v. Dennis, 4 Binn. 314, the testimony of the former deputy recorder of deeds for Philadelphia tended to show that the original deed in question, which was an ancient one, was brought to him, while deputy recorder, for registration ; that it then bore a certificate of registration in Newcastle county, Delaware ; that he entered an abstract of the deed in a book of abstracts, as he was required by law to do; and that, before the deed was recorded, it was borrowed from the office and never returned. He produced a copy of the entry in the book of abstracts, and testified to its accuracy. The book itself had, by law, been transferred to the land office, because it contained another class of entries, and there was no one in that office authorized to certify copies of these abstracts. There was evidence of the existence of the deed aside from the abstract, and of its loss, and the possession had not been inconsistent with the deed. The same deed had also been recorded in Newcastle county, Delaware, but the acknowledgement, though sufficient under the laws of Pennsylvania, was not in the form required by the laws of Delaware, where a portion of the granted premises lay. Hpon trial, an office copy of the record in Delaware was admitted. Hpon a motion for a new trial, the competency of this copy was not properly in question, as the verdict was against the party by whom it had been offered. However, Tilghman, C. J., assumes that a copy of that record was evidence, though his attention seems to have been directed rather to the competency of the record, or of a properly proved copy, than to the sufficiency of the recorder’s certificate. But Brachinridge, J., held that the certified copy, as such, was inadmissible; while the remaining justice, Yates, before whom the trial was had, expressed no opinion upon this point. However this may have been, the case is not an authority to show that the existence of the original deed could be proved by the mere production of such copy. In Winn v. Patterson, 9 Peters 666, there was evidence of the existence and loss of an ancient power-of-attorney, which had been recorded, but not in the county where the lands lay; and it was said that it was not required by the laws of Georgia that such an instrument should be recorded in the county where the lands were situated. The officer who recorded the instrument testified that the record was a correct — 75 — copy of the original, and that the copy of the record which he produced was accurate. In Jackson v. Rice, 3 Wend. 180, an exemplification of the record of a deed, registered in the wrong county, was received as secondary evidence, after proof of the existence and loss of the original deed; but there seems to have been evidence of the correctness of the exemplification. The annotators upon Phillips’ Evidence say of this decision, that “ the court seem to have regarded the case as one where full secondary proof was made, independent of the exemplification,” and that “the decision can not be regarded as allowing a certified copy or exemplification of a bad record, even as secondary evidence, except in connection with other proof.” 2 C. & H.’s Notes to Phill. Ev. 460. There are other cases where corroborating evidence has been required before receiving an unauthorized copy of an instrument. 2 C. & H.’s Notes to Phill. Ev. 460; 2 Phill. Ev. 241. In Stetson v. Gulliver, 2 Cush. 494, an office copy of a defeasance, not acknowledged, but recorded, was received as secondary evidence against the party in whose favor it was made, ,he refusing to produce the original upon notice. The plaintiff' had proved an absolute deed from the defendant, and offered the copy of the defeasance, bearing the same date, to show that his title was by way of mortgage. The objection taken was, that the defeasance, not having been acknowledged, could not have been legally put on record. The court, after recognizing the general rule, held the copy rightly admitted, “ not because the fact of being recorded gave it any superiority over other mere copies, but because the case was one in which secondary evidence was admissible. The defendant, after notice, not having produced the bond or given any account of it, any copies were admissible as secondary evidence.” It was assumed in the opinion that the original instrument was in the hands of the defendant. It is intimated by Eastman, J., in Forsaith v. Clark, 21 N. H. 408, that, upon the loss of an ancient charter of a town, and the destruction of the original record of it in the office of the secretary of the state, a certified copy from that office of a record made there a few years after the date of the original, from a copy issued and certified from the original, might be received as secondary evidence. But the question was not decided. There the question was to some extent one of public interest, the charter was ancient, and there was evidence tending to show the loss of the original, and the destruction of the original record of it by fire. This copy had been entered by the secretary of the province on the records, in his office, belonging to the government from which the original had issued, and had- stood upon those public records for a century, and for a long series of years rights had been exercised and titles claimed under the original charter. Whether in Farrar v. Fessenden, 39 N. H. 277, the office copy was admitted upon the ground that the record of the instrument having been made evidence by a special reference to it and to the instrument, in the description of a deed properly in evidence, the certificate of the officer having lawful custody of the record was sufficient (see Stetson v. Gulliver, 2 Cush. 494); or because the instrument purporting to convey real estate in the usual form of a — 76 — deed, properly witnessed and acknowledged, but wanting a seal, was entitled to record, or upon some other view, we need not inquire. Nor is it necessary, in the present case, to examine the correctness of such positions, or to reexamine that decision ; for that case was not intended to be and is not an authority for the broad proposition that an office copy of an unauthorized record is, of itself, evidence of the existence and contents of the instrument purported to be recorded. It may be remarked that there was evidence in that case tending to show a long possession according to the purport of the instrument, which, from its date, appeared to be more than twenty years old, and also that the party against whom the copy was offered, claimed title under the signer of the instrument so recorded. In England, copies of the enrollments of certain deeds, which, though not needing registration, had been enrolled upon the acknowledgment of the releasor or bargainor, have, in certain cases, been received as evidence against him and those claiming under him, but against no one else. 2 Phill. Ev. 245, 247. There is also a class of cases depending upon a somewhat different principle, in which original entries, though not required by law, have, when made under the proper circumstances, been admitted as evidence of reputation, where that was competent. We have failed to find, in these decisions, or any where, what we deem sufficient authority to justify a departure from the general rule in the present ease, for here the only evidence of the existence of the original was an office copy of a deed which had not been acknowledged. [Jnder the statutes in force when this deed is alleged to have been executed and recorded, such a deed was not entitled to record, unless acknowledged, except in two classes of cases : first, in eases of the absence or death of the grantor before acknowledgment, where proof before a court of record in this State was made equivalent to acknowledgment; and, second, in case the grantor refused to acknowledge his deed (Act 1791; Laws of 1805, 156); for it was the duty of the register “ to record all deeds and instruments in his office to be recorded, that should be brought to him for that purpose.” Laws of 1805, 50. Aside from the statute thus explicitly defining the register’s duty, the nature and purposes of the office would seem sufficient to refute the idea that it was his duty to record every instrument offered for record, without regard to its character. "We think such a doctrine would prove quite inconvenient in practice, incumbering the records and embarrassing the register in the performance of his duty, and would be attended with no little danger, in opening a door, in many cases, for the admission of a species of evidence which would be uncontrolled by the checks the statute has generally provided in the case of instruments authorized to be recorded, and which, in the absence of direct statutory authority, we can not suppose the Legislature intended to allow. This view is confirmed by the provision of the statutes allowing a deed duly authenticated and recorded to be also recorded in another county than that where the lands lie, and giving to an attested copy of such record the same validity given to a copy — 77 — from the original record, in case of the destruction of the latter; Laws of 1805, 158; Rev. Stat., ch. 130, sec. 5; a provision wholly unnecessary if the law had authorized a record to be made of every instrument. The second exception only, in the act of 1791, can be in question here, which provides, “ That if any grantor or lessor of lands, &c., refuse to acknowledge any deed, &c., by him or her signed, it shall be lawful for the grantee or lessee to put the same on record without any acknowledgment; and such deed, so recorded in the registry of deeds, shall be deemed sufficient caution to all persons against purchasing, attaching or levying execution on the same land for sixty days from the time of recording, and shall, during that time, be good and effectual in law, to all intents and purposes, as though such deed, &c., were duly acknowledged. And any justice of the peace and quorum, after such refusal, at the request of the grantee, &c.,. may issue a summons for such grantor, &c., to appear before him, &e., to hear the testimony of the subscribing witnesses,” &c.; and after provision for the service and return of the summons, it enacts that “ the said justice may proceed, whether the said grantor, &c., shall attend said examination or not, to take the proof of the execution of such deed,” &e., and that “ such proof and a certificate thereof, under the hand of said justice, wherein the presence or absence of the grantor, &c., at such examination, shall be j>articularly noted, shall be equivalent to the acknowledgment of the grantor before any justice of the peace.” Laws of 1805, 157. The registration thus allowed would seem but a provisional one (2 Greenl. Cru., Title 32, ch. 29, sec. 1, note), limited in effect by the act. But the present case calls for no examination of this, for the refusal which constitutes the ground of the exception is not shown to exist. We think the present case must be governed by the doctrine laid down in Montgomery v. Dorion, 6 N. H. 250, recognized in Montgomery v. Dorion, 7 N. H. 483, and Forsaith v. Clark, 21 N. H. 422, and followed in Atkinson v. Bemis, 11 N. H. 46, under a similar statute. The last case is recognized as the law in Harvey v. Mitchell, 31 N. H. 582. We see no distinction that can take the present case from the operation of the rule laid down in Montgomery v. Dorion, unless one can be drawn from the greater lapse of time here, and unless it can be held that, after so long a period, a presumption of the facts essential to the existence of the excepted ease arises. Such a presumption can not arise upon the ground that it was the duty of the register to satisfy himself of the fact of the grantor’s refusal. It might be quite inconvenient to hold that a mere recording officer must investigate and decide such a question, ordinarily depending upon parol evidence; and, as the statute has no such express provision, we should hesitate before implying such a duty. Forsaith v. Clark, 21 N. H. 422, is not- an authority in favor of such a presumption; for there the deed, on its face, purported to have all the statutory requirements; and, as a convenient rule of practice, the signature of one as a justice of the peace for a county in Massachusetts, was held prima facie evidence of his authority. Harvey v. Mitchell, 31 N. H. 583. In the present case, the instru — 78 — ment did not purport to show a state of facts entitling it to record. If such a presumption existed, it would have been applied in Montgomery v. Dorion, as it would have been a presumption of the performance of official duty. The statute providing that the proper certificate of the magistrate should be equivalent to a due acknowledgment, in ease of the grantor’s refusal to acknowledge his deed, would seem to make such certificate evidence of the refusal. Catlin v. Washburn, 3 Vt. 38. It may be that a consideration of the policy of our legislation, making authenticated written evidence, in general, essential to the valid registration of a deed, may require us to hold either the statutory certificate, or, in some cases, perhaps, a certified copy of the record of it, or, under proper circumstances, secondary evidence of the certificate, ordinarily necessary, in the absence of a certificate of acknowledgment, to show the proper registration of a deed; for, if the mere fact of registration raised a presumption óf its propriety, an acknowledgment of a deed, nearly as old as that in question, might have been presumed in Atkinson v. Bemis. These considerations would lose none of their force if it should be held that the registration before proof, allowed by the clause in question, is merely provisional, and strictly limited in its effects. It is hardly necessary to say that, in expressing these views, we are not passing upon the question whether such a record, with corroborating circumstances, may not, in some cases, be received, where there is evidence tending to show the existence and loss of the original deed. In the absence of possession, or, indeed, of any corroborative proof, it is not easy to see how any presumption of such refusal by the grantor can arise from mere lapse of time, which derives its importance from the probability or possibility of the loss of the evidence that would have furnished the proof. Math. Pres. Ev. 5-6. Here is nothing to show that John Wendell refused to acknowledge his deed, and, in the absence of all evidence', the mere lapse of time can not render it more probable that he did than that he did not. The case falls within the ordinary rule, and the party asserting the fact must offer some evidence of it; Emerson v. White, 29 N. H. 491; especially as it would seem, in general, the duty of the grantor, if properly called on, to make the acknowledgment. 1 C. & H.’s Notes to Phill. Ev. 459-461. We have seen that the mere circumstance of the entry of the deed upon the record by the register raises no such presumption, and we can derive none from the simple fact that it was presented to the register and a record of it made; Williams v. Bass, 22 Vt. 352; for allowing such a presumption would, in many cases, defeat the object of the law requiring an acknowledgment as a verification of a deed necessary to entitle it to record, and would often operate as a practical repeal of that provision of the statute. Eor these reasons we think no such presumption can be made. We have not found it necessary to inquire into the effect of such a provisional record, when properly made, after the lapse of the sixty days, and where no further proceedings are had; for we think a case is not shown authorizing the deed in question to be recorded at all, and that, therefore, the office copy of this unauthorized record was incompetent to show the — 79 — existence and contents of the alleged original. Whether such a copy is admissible in any case as secondary evidence, we have not been called on to decide. It follows that the copy was improperly admitted in this case. It is held in this State that “the declarations of deceased.persons, who were so situated as to have the means of knowledge, and had no interest to misrepresent, are competent evidence upon a question of boundary, whether the same pertain to public tracts or private rights.” Adams v. Stanyan, 24 N. H. 417. But this principle does not make this copy admissible; for, passing over the question of the competency of John Wendell’s declaration, the copy not being his declaration, and furnishing no evidence that such a deed was ever executed by him, fails to show any declaration of John Wendell. It does not purport to be a declaration of the register, and if it did, he is not shown to be dead, or to have had any means of knowledge as to the boundary in dispute, and he can not be presumed to know the boundaries of particular farms in his county. And if not admissible as the declaration of either of these, in the absence of all evidence as to who the declarant was, it can not come within the principle stated. Waiving the inquiry whether, in this State, reputation, in its broad sense, is evidence as to ancient boundaries merely private, we do not think the copy was competent to show reputation in this case. If it were to be held here as in Massachusetts, according to Stetson v. Gulliver, that a certified copy is admissible wherever the record itself would be, the case is not altered, for this record seems to us inadmissible to show reputation in this case. It is not direct evidence of general reputation ; 1 Greenl. Ev., sec. 135; 1 Stark. 28; Phill. Ev. (1 C. & H.) 246; and, at most, is but a specific declaration or recital. The cases ordinarily occurring are where the original documents themselves, or in proper cases, secondary evidence of their contents have been produced; but here is no evidence of the existence of the original deed. Padwick v. Witticomb, 28 E. L. & E. 42. This record could not be received upon the ground that it was an entry in a public book, because it was an unauthorized record, if for no other reason. Unless it was made under the sanction of some proper authority, it must stand upon the ordinary ground, and it must appear that the author of the recital or declaration had the means of knowledge ; for the question respects no public right. Bow v. Allenstown, 34 N. H. 366. This case is distinguished from Willey v. Portsmouth, 35 N. H. 310, for there the question was one of general and public interest, and the ancient document admitted was the genuine and original record of the laying out of a highway. This record was not authorized by the statutes in force then, and we see no ground to imply any authority for it. Only the Legislature could authorize the record, and, in the absence of any legislative sanction for this entry, we can presume none; for neither is this office under the immediate and special control of the Legislature, nor is the document of any general or public interest, nor is any act of corroboration shown from which a presumption could arise. (See Forsaith v. Clark.) This record stands like any other unauthorized record — 80 — or entry, and can not be received in this case as evidence of reputation. Padwick v. Witticomb. The record was not admissible as an ancient document purporting to be part of the res gestee, for no transaction was shown of which it purported to be a part. Failing to prove a deed, it showed no act of ownership or exercise of right; and no evidence of any act, ancient or modern, done in reference to it, was offered. 1 Phill. Ev. 273-278; 2 Stark. Ev. 907, 908; 1 Greenl. Ev., sec. 141. As we fail to find any principle upon which the competency of this office copy of an unauthorized record can be supported in the present case, the verdict must be set aside. New trial granted.