McDill Lessee v. McDill

1 U.S. 63 1 Dall. 63 1 L.Ed. 38 McDill Lessee v. McDill* No. ____. Supreme Court of Pennsylvania April Term, 1782 [1] A deed executed by two persons, with one was, and another ink seal, attested by one witness only, and merely proved by him before a justice, without being recorded was offered in evidence. [2] It was objected, that by the Act of Assembly, 1 St. Laws. 78. a Deed must be executed before, and be proved by, two witnesses; and that even that kind of proof was not to be received, unless the party was dead, or otherwise unable to appear and acknowledge the execution; which was not the case of the lessor of the Plaintiff when the deed was actually proved before the justice. [3] To this it was answered, that the Act of Assembly only related to the proof which entitled a Deed to be recorded, &c. that many Deeds might be given in evidence, which were not so entitled; as in the case of a long possession under an old Deed. Another act declares that one, or more subscribing witnesses is sufficient, 1 St. L. 520. and it is established, that the attestation of witnesses is not of the essence of the Deed. Before the Stat. of Frauds the necessity of subscribing witnesses to any instrument, did not exist in England; and there is no instance in which the Legislature of Pennsylvania has expressly called for the attestation of two witnesses, but in that of the assignment of a bond. [4] By the Court: The signing of a Deed is now the material part of the execution; the seal has become a mere form, and a written, or ink seal, as it is called, is good. Any Deed under seal, when proved, is proper to be given in evidence. 6 Mod. 45. And, we are of opinion, that a Deed, the execution of which is sworn to by one witness before a magistrate, who certifies the same, is within the rule. Besides, the last Act of Assembly certainly allows the proof of one witness to be sufficient.* Footnotes [-s] * This Cause was tried at Lancaster, N. P. on the 18th May 1781, before McLean, C. J. Atlee and Evans Justices. [-s-1] * See post Hamilton's Lessee versus Galloway. S. P.