Carpenter v. Dexter

Mr. Justice FIELD delivered the opinion of - the court. To the introduction of the several deeds produced by the plaintiff, objection was taken that they were not duly proved, but in what particulars the proof failed, the objection does not specify, and it is only by the brief of counsel that we are informed. General objections of this character are too vague to serve any useful purpose, and under them particular defects in evidence, or in proceedings, cannot be urged upon our notice, if their consideration, for want of specification, be opposed by the adverse party. Here, however, no such opposition is made, and we will, therefore, proceed to the consideration of the points raised in the brief of counsel. The deed from Davenport to Hawley was executed in New York, and was acknowledged on the day of its date, befoi'e a justice of the peace of that State. The certificate of acknowledgment states, that the person who “ signed, sealed, and delivered” the instrument, “personallyappeared” before the justice, but does not, in terms, state that he was personally known to that officer. The justice himself was one of the subscribing witnesses.. There is also attached to the deed, a certificate of the proof of its execution by the other subscribing witness. This certificate is signed by the same person who took the acknowledgment, but not in his capacity as justice of the peace, but *525 as commissioner of deeds. The certificate does not state that the commissioner knew that the affiant was one of the subscribing witnesses, nor does the affiant declare that he became such witness at the request of the grantor. The objections taken in the brief of counsel to the proof of the deed bearing these certificates are, in substance, as follows: 1st. That the justice of the peace had no authority, at the time, to take the acknowledgment; 2d. That the certificate of acknowledgment is defective in not stating that the grantor was personally known to the officer; and 8d. That the certificate of proof by one of the subscribing witnesses is defective in not having any assignable locality, and in not stating that the affiant was known to the officer to be a subscribing witness, or that the affiant declared that he became such at the request of the grantor. It is true, that at the time the acknowledgment was taken, in 18.18, a justice of the peace was not authorized by the laws of Illinois to take the acknowledgment or proof of deeds without the State. The only officers thus authorized were “mayors, chief magistrates, or officers of the cities, towns, or places,” where the deeds were executed. * But this want of authority of the. justice of the peace was remedied by a statute passed on the 22d of February, 1847. The first section of that statute provides that all deeds and conveyances of land lying within the State may be acknowledged or proved before certain officers named, and among others before any commissioner of deeds and “before any justice of the peace,” but enacts that “if such justice of the peace reside out of this State, there shall be added to the deed a certificate of the proper clerk, setting forth that the person, before whom such proof or acknowledgment was made, was a justice of the peace at the time of making the same;” and then declares that “all deeds and conveyances which have been., or may be, acknowledged or proved *526 in the-manner prescribed by this section, shall be entitled to record, and be deemed as good and valid in law, in every respect, as if the same had been acknowledged or proved in the manner prescribed” by a previous law providing for the acknowledgment and proof of conveyances before certain officers both within and without the State. * The law of Illinois in force in 1818 did not require the officer taking the acknowledgment of a deed to certify, from his personal knowledge, to the identity of the party making the acknowledgment with the grantor. It did not require the acknowledgment to be certified in any particular form, except in case of a married woman. A certificate, without declaring such identity, or even personal knowledge of the parties making the acknowledgment, was held by the Supreme Court of that State to be as full and exact as- was contemplated by the law of 1819, a law which was identical in terms, so far as it relates to the point under consideration, with the law in force in 1818, except that the word “ Territory” was changed to that of “ State.” † But, it may be said that the object of the act of 1847 was simply to give authority to additional officers to take the acknowledgment and proof of deeds, and to cure their defect of authority in cases where they had previously acted, and Dot to remedy defects in certificates already given by them; and that, therefore, the’ statute can only avail where the certificate conformed to the requirements of the law then in force. ' If this be the correct interpretation of the statute, we answer that the certificate to the deed in question did, in substance, conform, when read in connection with the deed; itself, to the requirements of that law. In aid’of the certificate reference may be had 'to the instrument itself, or to any part of it. It is the policy of the law to uphold certificates when substance is found, and not to suffer conveyances, or the proof of them, to be defeated by technical or unsubstantial objections. The law of Illinois in force in 1847, upon the manner of *527 taking acknowledgments, provides that no officer shall take the acknowledgment of any person, unless such person “ shall be personally knowm to him to be the real person who [executed the deed], and in whose name such acknowledgment is proposed to be made, or shall be proved to be such by a credible witness,” and such personal knowledge, or proof, shall be stated in the certificate. * Looking, now, to the deed itself, we find that the attestation clause states that it was “ signed, sealed, and delivered” in the presence of the subscribing witnesses. One of these witnesses was the justice of the' peace before whom the acknowledgment was taken; and he states in his certificate following immediately after the attestation clause, that the “ above-named William T. Davenport, who has signed, sealed, and delivered the above instrument of writing, personally appeared” before him and acknowledged the same to be his free- act and deed. Read thus with the deed the certificate amounts to this: that the grantor personally appeared before the officer, and in his presence signed, sealed, and delivered the instrument, and then acknowledged the same before him. An affirmation, in the words of the statute, could not more clearly express the identity of the grantor with the party making the acknowledgment. But if we lay aside this acknowledgment as evidence, there remains the certificate of proof made on the 2d of September, the day following the execution of the instrument, before a commissioner of deeds in the State of New York. At that time commissioners of deeds were authorized by a law of New York to take the acknowledgment and proof of deeds; † and by the third section of the statute of Illinois of 1847, deeds previously, or which might be subsequently, executed without the State and within the United States, acknowledged or proved in conformity with the law of the State where executed, are admissible to record in the counties of Illinois in which the property is situated, and *528 “ when so recorded,” may be used as evidence without farther proof of their execution. . The terms, “ when so recorded,” apply, we think, equally to past records as to those which might be subsequently made. Now, the certificate of proof produced in this case shows a substantial conformity with the law of New York of 1813 on the subject, which was in force when the certificate was made. * The venue to it is simply “ State of New York,” and it is objected that the certificate has no assignable locality, and is, therefore, fatally defective. In support of this position the case of Vance v. Schuyler † is cited. In that case the Supreme Court of Illinois held a certificate insufficient to authorize the admission, of a deed without proof of its execution, because the only means of determining where it was acknowledged was the venue, “ Lincoln v. Wiscassett.” This is a different case from the one at bar. The words, “ State of New York,” present some definite locality, at least, while there can be none to the words “Lincoln v. Wiscasset.” The commissioner of deeds, in New York, had authority to act only in his county; and it will be presumed,although the State be named, that the officer exercised his office within the territorial limits for which he was appointed. ‡ But if such were not the presumption, the defect in this particular is supplied by reference to the deed and the previous certificate of acknowledgment by the same person. In the attestation clause of the deed the grantor declares that he has affixed his hand and seal to the instrument, “ at Albany, in the county of Albany, and State of New York;” and the venue of the certificate of acknowledgment taken on the previous day, is “ State of New York, county of Albany.” As already stated, courts will uphold a certificate, if possible, and for that purpose will resort to the instrument to which it is attached. Thus, in Brooks v. Chaplin, § the cer *529 tificate of acknowledgment did not show in what State the acknowledgment was taken, and the omission was supplied •by reference to the deed, in which the grantor described himself as a “ resident -of Suffield, in the county of Hartford, and State of Connecticut.” The acknowdedgment was taken two days after the date of the deed, having as its venue simply “ Hartford County” — and the court said that it was a fair presumption, in the absence of evidence to the contrary, that the deed was executed at the time it bore date and at the place of the grantor’s residence, and that, finding the acknowledgment taken so soon afterwards in the county of Hartford, it could intend no other than the same county of Hartford where the deed was supposed to have been executed. “It is not indispensable,” said the court, “ that the place of taking should fully appear from the acknowledgment itself, provided it can be discovered with sufficient certainty by inspection of the whole instrument.” There is good sense in this decision, and it answers the particular objection of counsel just stated, and the further objection that the certificate does not state that the officer knew that the party produced was a subscribing witness. The deed shows that Wooster was a subscribing witness with the officer, and the certificate states that “Wooster, one of the subscribing witnesses,” to the officer known, came before him, and being sworn, said that he saw the grantor execute and acknowledge the indenture. When the officer, being a subscribing witness himself with Wooster, certifies that “Wooster, one of the subscribing witnesses,” came before him and was known to him, he does, in fact, certify that he knew Wooster to be a subscribing witness as plainly as if he had added those words. There is here a compliance, in substance if not in form, with the statute, and that is all which is required. In Luffborough v. Parker, * the certificate of proof stated that A. B. appeared before the officer, aud made oath that he saw the grantor sign, seal, execute, and deliver the deed, without stating that A. B. was a sub *530 scribing witness; but as it appeared upon the deed' that A. B. was a subscribing witness, the court held the certificate sufficient. The statute of Pennsylvania, under which the certificate was given, required the proof of deeds to be made by one or more of the subscribing witnesses. “ The act,” said the court, “ must be substantially complied with; but when substance is found, it is neither the duty nor the inclination of the court to defeat conveyances by severe criticism on language.” The remaining objection to the certificate, that it does not appear from it, that the subscribing witness became such, at the request of the grantor, or signed his name, at the time the deed was executed, is answered by the fact that the statute of New York, under which the certificate was made, did not require any statement to that effect. Besides, the fact that the witness was present at the execution, which is all that is necessary, does sufficiently appear from the deed, with which the certificate is to be read. In the one, the declaration is made that the instrument was signed in his presence, and, in the other, that he saw the grantor execute the deed. After a careful consideration of the several objections, presented by counsel, we are satisfied, that the certificate of the commissioner was sufficient, under the act of New York of 1813, to entitle the deed to be admitted to record in that State, had the land been there situated, and to be read in evidence in her courts, without further proof of execution ; and was entitled to like record in the State of Illinois, and to be received in evidence in like manner, in her courts, under the third section of the statute of 1847. The several objections urged by counsel to the- other two deeds produced by the plaintiff' are, with one exception, sufficiently met by what has already been said in answer to those taken to the deed from Davenport. The certificate of acknowledgment to the deed, from Munson to James, is given by the “judge of the Albany Common Pleas,” an officer authorized at the time to take the acknowledgment *531 and proof of deeds by the laws of New York; and the objection referred to, not already met, is, that the certificate of this judge is not accompanied by any evidence of his official character, or that his certificate was in conformity with the laws of that State. The answer to this objection is brief and conclusive. Unless the statute requires evidence of official character to accompany the official act which it authorizes, none is necessary. And, where one State recognizes acts done in pursuance of the laws of another State, its courts will take judicial cognizance of those laws, so far as it may be necessary to determine the validity of the acts alleged to be in conformity with them. In this case, also, the laws of New York are, by stipulation of parties, considered as evidence. * When the record of partition.in the suit between James and his coheirs was produced, objection was made by the defendant, on the alleged ground, that it did not show jurisdiction of the persons and subject-matter, but wherein it failed to show such jurisdiction, the objection does not indicate, and it is no part of our duty to act as counsel for the party, and search for particulars to give point to his objection. As it now stands, it is as vague and pointless as would be a general objection to either party’s right of recovery. If the proof against the infant heirs was not as full as aplue regard for their rights should have exacted, it will be time for us to consider that matter, when they, or parties representing them, are before the court. It is not a matter which defeated the jurisdiction of the local tribunal in the partition, and it is not a matter of any concern to the defendant, who was a stranger to, and in no way interested in; the proceeding. † There'was no necessity for mutual releases betweeu the parties, in order to clothe John B. James in severalty with the entire ownership of the premises in controversy. The suit for partition was under the statute of Illinois, which dispensed with the necessity of mutual releases, and authorized *532 the court to invest, by its decree, the several parties with the title to the parcels respectively allotted to them, without requiring conveyances. * And the decree rendered in the case declared, that the land allotted should be held by the parties respectively, in fee simple, in lieu of all their respective rights aud interests previously enjoyed in common in the entire tract. The law of Illinois, relating to the record of deeds, and other instruments affecting the title to real property, differs materially from the law of nearly every other State in the Union. In most States, these instruments can only be recorded after they have been acknowledged or proved before certain designated officers, and the certificate of such acknowledgment or proof is attached. An inscription upon the books of record of an instrument, without such authentication, is considered a mere unofficial entry of the register, constituting no record, and imparting no notice to purchasers or creditors. † But, in Illinois, the law requires all “ deeds and other instruments, relating to, or affecting the title to, real property,” with or without such authentication, to be recorded; provides that they shall not take effect, as to creditors and subsequent purchasers without notice, until they are filed for record; and enacts, that “they shall be deemed, from the time of being filed for record, notice to subsequent purchasers and creditors, though not acknowledged or proven according to law; but the same shall not be read as evidence, unless their execution be proved in manner required by the rules of evidence applicable to such writings, so as to supply the defects of such acknowledgment or proof.” ‡ Upon this state of the law, after the proof of the deeds *533 of the parties, and of their record, and the production of the record of partition, and of the probated will of John B. James/ there could only be two matters of inquiry: one respecting the identity of the heirs of William James, deceased, with the parties to the partition suit; and the other, whether there was notice to Hawley, at the time he received his conveyance, of the unrecorded deed from Davenport to DeWitt. These matters were left to the jury to determine, and rightly so left. No question was raised in the court below upon the sufficiency of the evidence, that the deeds produced by the plaintiff were recorded, at the time indicated by the indorsement thereon, in May, 1819; nor was any exception taken to the instruction of the court, that the deed from Davenport to Hawley was recorded in the proper office, before the deed from Davenport to De Witt; nor was any question raised, or ruling asked, upon the will produced of William James, and, therefore, no point is presented thereon- for our consideration. We perceive no substantial error in the record, and the judgment of the court below must, therefore, be Affirmed. Footnotes [*] Purple’s Real Estate Statutes, 462. [*] Laws of 1847, 37. [†] Ayres v. MeConnel, 2 Scamon, 308. [*] Revised Statutes of Illinois of 1845, chap. 24, § 20. [†] Act passed March 24th, 1818, [*] “An aet concerning deeds,” passed April 12th, 1813. [†] 1. Gilman, 163. [‡] Thurman v. Cameron, 24 Wendell, 87. [§] 3 Vermont, 281. [*] 12 Sergeant & Rawle, 48. [*] Vance v. Schuyler, 1 Gilman, 160; Secrist v. Green, 3 Wallace, 749. [†] Fridley v. Murphy, 25 Illinois, 146; Goudy v. Hall, 36 Id. 318. [*] Street v. McConnell, 16 Id. 126. [†] Carter v. Champion, 8 Connecticut, 555; DeWitt v. Moulton, 17 Maine, 418; Tillman v. Cowand, 12 Smedes & Marshall, 262; Mitchell v. Mitchell, 3 Stewart & Porter, 83; Kerns v. Swope, 2 Watts, 75; Miller’s Lessee v. Holt, 1 Tennessee, 111. [‡] Revised Laws of 1845, p. 108, 109, 22, 23, and 28. See also Reed v. Kemp, 16 Illinois, 445.