Stone v. Ashley

Gilchrist, J. The 4th section of the act of February 10th, 1791, N. H. Latos 191, (Ed. of 1815,) provides that a deed, attested by two or more witnesses, acknowledged and recorded, shall be valid to pass land, and that no deed of bargain and sale, &c., shall be effectual in law, against any person but the grantor and his heirs, unless it be acknowledged and recorded. This statute has been construed to declare what shall constitute a valid conveyance, but to contain no negative, either in its terms or in sense. French vs. French, 3 N. H. Rep. 263. In that case it is held that the statute in express terms recognizes “ bargains and sales and other conveyances,” and that it was not the intention of the legislature to abolish the modes of conveyance which had been in common use. The court decided that a deed signed by one witness only might operate as a covenant to stand seized, or as a bargain and sale, and thus pass the estate. To the same point is the case of Pritchard vs. Brown, 4 N. H. Rep. 397. The first section of the act of June 29th, 1829, N. H. Laws 533, (Ed. of 1830,) provides that a deed, signed by two or more witnesses, acknowledged and recorded, shall be valid to pass land ; “and no deed of bargain and sale, &c., shifil be good and effectual in law to hold such land, &c., unless [43] executed in manner aforesaid.” The section also enacts that no deed shall be effectual in law to hold such land against any person but the grantor and his heirs, unless it be acknowledged and recorded. This section contains a negative clause, the absence of which in the act of 1791 was considered by the court, in French vs. French, as indicating that the legislature did not intend to abolish the modes of conveyance which had been in common use. But where a statute provides that no deed shall be good and effectual unless attested by two or more witnesses, as is done in effect by the statute now in force, the court cannot hold that a deed, not attested by two witnesses, shall be sufficient for any purpose. The language of the statute authorizes and requires us to decide that it was the intention of the legislature to abolish all modes of conveying land by deed, unless they should conform to this requisition. It is, therefore, unnecessary to inquire what would have been the effect of this deed at common law, as the statute has settled that it is of no validity whatever. Nor is it necessary to inquire into the effect of placing the fictitious name upon the deed. If the instrument had been effectual to pass the title to the land, with the attestation of only one witness, it might, perhaps, deserve inquiry, whether the addition of the fictitious name would, under the circumstances, have avoided it. But the instrument being void as a conveyance of land, when the name was placed there, it could not well be made any thing less than void by this useless forgery, and therefore no question upon it can be raised. Judgment for the tenants.