Brown v. Manter

Eastman, J. The exception taken to the deed from the Pierces to Brown cannot prevail. The object of the enrolment of a deed is to give public notice to all, of the sale and transfer of the property conveyed. So far as the parties are concerned or those who have notice of the existence of the deed, the enrolment is not essential to its validity. The statute of enrolments was enacted for the benefit of subsequent purchasers and creditors, and not for the benefit of wrong-doers or strangers. But an attachment or purchase, made with the knowledge of the existence of a prior unrecorded deed, secures no rights against the holder of such deed. Such is the general doctrine, and the authorities to the point are numerous. Jackson v. Burgott, 10 Johns. Rep. 457; Jackson v. Page, 4 Wendell, 585 ; Jackson v. Leek, 19 Wendell, 339 ; Connecticut v. Bradish, 14 Mass. 300; Adams v. Cuddy, 13 Pick. Rep. 460 ; Bush v. Golden, 17 Conn. Rep. 594; Butler v. Stevens, 26 Maine Rep. 484; Corliss v. Corliss, 8 Vermont Rep. 373 ; Garwood v. Garwood, 4 Halsted, (N. J.) Rep. 193 ; Ohio Life Ins. Co. v. Ledyard, 8 Alabama Rep. 866 ; Irvin v. Smith, 17 Ohio Rep. 226 ; McFall v. Sherrard, 1 Harper, (S. C.) Rep. 295; Boling v. Fwing, 9 Dana, (Ken.) Rep. 76 ; Currie v. Donald, 2 Wash. (Virg.) Rep. 58; Montgomery v. Dorion, 6 N. H. Rep. 250 ; Odiorne v. Mason, 9 N. H. Rep. 24. The acknowledgment of a deed is the evidence upon which the Register acts in making the record; and the object of the acknowledgment is to procure the enrolment. Until acknowledged it is not a proper matter for record. But, as between the parties to the deed, the acknowledgment adds nothing to its validity. Against the grantor and his heirs, and also against a stranger having knowledge of its existence, the original instrument may be introduced in evidence without acknowledgment. Wark v. — 472 — Willard, 13 N. H. Rep. 389 ; Odiorne v. Mason, 9 N. H. Rep. 24; Montgomery v. Dorion, 6 N. H. Rep. 250 ; Dole v. Thurlow, 12 Met. Rep. 157; Blood v. Blood, 23 Pick. 80 ; Marshall v. Fiske, 6 Mass. Rep. 30; Doe v. Reed, 2 Scam. (Ill.) Rep. 371; Strong v. Smith, 3 McLean, (Ind.) Rep. 362. Upon the facts presented in this case, the ruling of the Court in admitting the deed in evidence was correct. Neither can the exception be sustained which was taken to the ruling of the Court, declining to instruct the jury, that if the plaintiff did not own the land where the trees stood, he could not recover. The gist of the action of trespass is the disturbance of the possession. If the close is illegally entered, a cause of action at once arises. Whatever is done after the breaking and entering is but aggravation of damages. Taylor v. Cole, 3 Term. Rep. 292; Van Lenven v. Like, 1 Comstock’s Rep. 515 ; Smith v. Ingram, 7 Iredell Rep. 175 ; Dobbs v. Gallidge, 4 Dev. & Batt. Rep. 68; Wendell v. Johnson, 8 N. H. Rep. 222; Ferrin v. Simonds, 11 N. H. Rep. 263. Trespass lies for every unlawful intrusion, though only the grass be trodden down. 1 Dev. & Batt. Rep. 371. And in trespass for breaking the plaintiff’s close and cutting down his trees, if the plaintiff fail to prove the cutting of his trees, he may still recover for the breach of his close. Mundell v. Perry, 2 Gill & Johns. Rep. 193 ; Curtis v. Groat, 6 Johns. Rep. 168. If the defendant had any right to cross the land he should have pleaded it, or made it appear in some legal way. Judgment on the verdict.