ered in the first instance, it will operate, though the grantee suffer it to remain in the custody of the grantor. If both parties be present, and the usual formalities of execution take place, and the contract is, to all appearance, consummated, without any conditions or qualifications *annexed, it is a complete and *456 valid deed, notwithstanding it be left in the custody of the grantor."

(3.) It must be recorded.

By the statute law of every state in the union, all deeds and conveyances of land, except certain chattel interests, are required to be recorded, upon previous acknowledgment or proof. If not recorded, they are

ment to unclasp. Though in Townson v. Tickell, 3 B. & Ald. 31, a disclaimer by deed was held to be sufficient. See infra, p. 534. Merely executing a deed and delivering it to the register for registry is no delivery, unless the grantee so direct it or subsequently assent to it. Maynard v. Maynard, 10 Mass. Rep. 456. Sampson v. Thornton, 3 Metcalf, 275. But it seems to be a settled rule that the possession by the obligee of a deed regularly executed, is prima facie evidence of its delivery This is the language of the courts throughout the country. 4 Pick. 520. 1 Harr. & Johnson, 323. 14 Peters, 327. 3 Metcalf, 109.

Scrugham v. Wood, 15
Crawford v. Bertholf,

Souverbye v. Arden, 1 Johns. Ch. Rep. 240. Wendell, 545. Jones v. Jones, 6 Conn. Rep. 111. Saxton's N. J. Ch. Rep. 458. 467. Doe v. Knight, 5 Barnw. & Cress. 671. S. C. 8 Dow & Ryland, 348. In these cases the authorities are collected and reviewed; aad the last of these cases considered the doctrine in the text as requiring an extended discussion. It goes over the same ground, and through the same authorities, in 1826, which had been done at New-York, in 1814. In this last case it was held, that if a deed be signed, sealed, and declared by the grantor, in the presence of the attesting witnesses, to be delivered as his deed, it is an effectual delivery if there be nothing to qualify the delivery, notwithstanding the grantee was not present, nor any person on his behalf, and the deed remained under the control of the grantor. And more certainly would this be the case if the delivery be to a third person, for the use of the grantee, though such third person be not the agent of the grantee, and the grantee should not receive the deed, nor know of its existence until after the death of the grantor.

By the New-York Revised Statutes, vol. i. 756, sec. 1, and 762, sec. 36, all conveyances of lands, tenements, and hereditaments, and chattels real,

good, and pass the title as against the grantor and his heirs, and devisees, and they are void only as to subsequent bona fide purchasers and mortgagees, whose deeds shall be first recorded. The English law prevails, generally, in this country, that notice of the deed by the subsequent purchaser, previous to his purchase, will countervail the effect of the registry, and destroy his

except leases for a term not exceeding three years, must be recorded. The same law in Massachusetts, but the exception reaches to leases not exceeding seven years. Mass. Revised Statutes of 1835. The usage of recording deeds in the records of the towns where the lands lay, prevailed from the early settlement of New-England. By the laws of Massachusetts, in 1641, all deeds of conveyance, whether absolute or conditional, were required to be recorded, that "neither creditors might be defrauded, nor courts troubled with vexatious suits and endless contentions." Holmes' Annals, vol. i. 261. In the Plymouth colony, conveyances, including mortgages and leases, were required to be recorded as early as 1636; in Connecticut in 1639; in NewJersey in 1676, 1683, and 1698; in North Carolina in 1715; and in Virginia from the earliest period. Baylie's Historical Memoir, vol. i. 239. See, also, ibid. vol. ii. 112. 1 Trumbull's History of Connecticut, 111. Leaming and Spicer's New-Jersey Collections, 153. 368. 382. 541. 5 Yerger's Rep. 124. 1 Henning's Stat. 248. In addition to other conveyances in Virginia, all deeds of settlement upon marriage, wherein lands, money, or personal thing shall be settled, are void as to all creditors and subsequent purchasers unless recorded. Revised Code of Virginia, vol. i. 219. In Pennsylvania, the recording acts are applicable equally to legal and equitable titles; and by the act of 1715, deeds recorded have the force and effect of giving seisin and possession. A bona fide purchaser without notice, and with his deed duly recorded, is preferred to a previous purchaser under a sheriff's deed duly acknowledged, but the acknowledgment never registered. Bellas v. McCarty, 10 Watts' Rep. 13. In Tennessee all bonds or agreements in writing, for the conveyance of real or personal property, are required to be registered. Act of 1831, ch. 90.

Vance v. M'Nairy, 3 Yerger, 711. Shields v. Mitchell, 10 ibid. 1. Morris v. Ford, 4 Dev. Rep. 418. When the statutes speak of an unregistered deed as being void, as against a subsequent purchaser for valuable consideration, they mean a bona fide purchaser for valuable consideration. Jackson v. Burgott, 10 Johns. Rep. 462, 463. Van Rensselaer v. Clark, 17 Wendell, 25. But in North Carolina, no conveyance of land (other than mortgages,) is good and available in law, unless proved or acknowledged, and registered in the county where the land lies, within two years after the date of the deed. Revised Statutes of North Carolina, 1837, vol. i. 224.

pretension as a bona fide purchaser. In several

*of the states, as New-Hampshire, Vermont, Con- *457 necticut, Georgia, Ohio, Michigan, Illinois, and

Indiana, two witnesses are required to the execution of the deed; and probably the deed would not be deemed sufficiently authenticated for recording, without the signature of the two witnesses. In Delaware, Tennessee, and South Carolina, two witnesses are necessary when the deed is to be proved by witnesses. There is, like

Tuttle v.

Ricks v.

■ Hurst v. Hurst, 2 Wash. Cir. Rep. 74. State of Connecticut v. Bradish, 14 Mass. Rep. 296. Griffith's Register. 4 Greenleaf, 20. Tait v. Crawford, 1 M'Cord's Rep. 265. Cabiness v. Mahon, 2 ibid. 273. Story, J., in West v. Randall, 2 Mason's Rep. 306. Colby v. Kenniston, 4 N. H. Rep. 362. Montgomery v. Dorion, 6 ibid. 254. See, also, supra, p. 171. Jackson, 6 Wendell, 213. Hewes v. Wiswell, 8 Greenleaf, 94. Doe, 2 Blackf. Ind. Rep. 346. Morton v. Robards, 4 Dana, 258. Aikins' Alabama Digest, 2d edit. 91. By the New-York Revised Statutes, vol. i. 756, sec. 1, conveyances not recorded are void, only as against a subsequent purchaser, in good faith, and for a valuable consideration, of the same estate, or any portion thereof, whose conveyance shall be first duly recorded. This was adopting the doctrine in Jackson v. Burgott, 10 Johns. Rep. 457. Jackson v. Phillips, 9 Cowen's Rep. 94. Same v. Post, ibid. 120. In Maine, also, a deed not acknowledged or recorded is good against the grantor and his heirs. Lawry v. Williams, 13 Maine Rep. 281. In Maryland, a deed must be duly acknowledged and recorded, in order to be valid, even as between the grantor and grantee; though, if the omission to record it be unintentional, the deed may be restored by a record, under the sanction of a decree in chancery, except as against bona fide purchasers and creditors. The registry acts in that state are as early as 1715 and 1766. In Rhode Island, a deed not acknowledged and recorded, is void, except as between the parties and their heirs. In Kentucky, a deed unrecorded is good as against a subsequent purchaser with notice, but not as to creditors, unless they had notice of it when their debts respectively were contracted. Graham v. Samuel, 1 Dana's Ken. Rep. 166. In Indiana, a voluntary deed, though not recorded, is good against a subsequent voluntary grantee. Way v. Lyon, 3 Blackf. Rep. 76. The registry acts only act upon the legal title and leave equities untouched. The omission to record the deed does not impair the grantee's equity. Lord Hardwicke, in Le Neve v. Le Neve, 3 Atk. 646. Morton v. Robard, 4 Dana's Ken. Rep. 258.

b In South Carolina in Allston v. Thompson, and Craig v. Pinson, 1 Cheves Law Reports, 271, 272, it was decided, after quite elaborate discussions, that a deed without any subscribing witness, or with only one subscribing witness, was not a valid deed to convey land.

wise, a fixed period of time allowed, in many of the states, within which to have the deed recorded, as, for instance, one year in Delaware, Tennessee, Georgia, and Indiana; eight months in Virginia; six months in Pennsylvania, Maryland, North and South Carolina, Alabama, Illinois, and Ohio; three months in Missouri, and Mississippi; and fifteen days in New-Jersey." In the other states, where there is no prescribed time, the deed must be recorded in a reasonable time; and when a deed is recorded within the reasonable, or the limited time, it has relation back to the time of execution, and takes effect according to the priority of the time of execution, and not according to the priority of the registry.b

The mode of proof, and the coercion of the attendance of witnesses for that purpose, and the officers vested with authority to take and certify the proof, and the effect

of such proof, all depend upon the local laws of *458 the several *states. In all the states, (except in

Louisiana, where the law is peculiar on this subject,) femes covert are competent to convey real estate, with the consent of their husbands, who are to be parties to the conveyance; and the wife is to be separately and privately examined by the officer, respecting the free execution of the deed. This private examination seems

• The fifteen days in New-Jersey, under the statute of June 5, 1820, was an amendment of former statutes, which allowed the time of six months to have conveyances recorded. Elmer's Dig. 86. As between the parties, a deed is valid and binding without being recorded. Den v. Richman, 1 Green's N. J. Rep. 43. A judgment creditor is not a purchaser within the purview of the act. Ibid. 55.

b Brown v. Balridge, 1 Meig's Tenn. Rep. 1. There are contradictory decisions on the question, whether a certified copy of a registered deed can be given in evidence, when the party is presumed to be in possession of the original, and does not produce it. 1 McLean's Rep. 285, 286. The Revised Statutes of Michigan of 1840, declare the copy to be prima facie evidence of the contents of the deed. The statute of Alabama, (Aikins' Dig. 2d edit. p. 88,) says that a deed duly proved and certified, shall be received in evidence, "as if the same were produced and proved."

to be required in all the states, with the exception of Massachusetts, Connecticut, and perhaps one or two others. The New-York Revised Statutes contain minute and specific directions on the subject of the proof and recording of conveyances of real estate. They make no provision as to the number of witnesses, or as to the time of recording; and, consequently, the common law rule applies, (and the statute expressly assumes it,) that one witness is sufficient, or the acknowledgment before the officer without any witness. The deed must be recorded with due diligence; and deeds are to be recorded in the order, and as of the time, when delivered to the clerk for that purpose; and they have effect according to the priority of the registry. The statute leaves the question of notice to supply the place of regis

Vol. i. 756-763.

In Alabama, a deed of lands is valid, without any subscribing witness, or record, if it can otherwise be satisfactorily proved. Robertson v. Kennedy, 1 Stewart's Rep. 145. It was declared in the case of Norman v. Wells, 17 Wendell's Rep. 143, that it is not sufficient for a subscribing witness to a deed to prove it by stating that the party acknowledged the execution of it, but he must state that he saw the execution of the deed.

• The statute of New-York gives priority to the conveyance which "shall be first duly recorded;" but it adds, that it shall be "considered as recorded from the time of the delivery to the clerk for that purpose." A provision to the same effect is in the Mass. Revised Statutes for 1835, though no doubt the previously existing rule of law was the same. This prevents the question, which Mr. Bell says has arisen in Scotland, between a sasine first transcribed, though last presented, and a sasine which, by the minute book, is proved to have been first presented, though last transcribed. He admits, however, the better construction of the statute to be, that the minute book, of the time of the presentation of the instrument, was intended to be the regulator of the order of preference by priority. 1 Bell's Ccm. 679. In Moore v. Collins, 3 Dev. N. C. Rep. 126, a deed delivered to the clerk for registry within the time limited by the statute, but not registered until after the time, by reason of the death of the clerk, was held to be available as if registered when delivered. But subsequently on a re-argument in the same case, the former decision was overruled, and it was held, that a deed so registered after the six months was void as to the creditors of the bargainor under the act of 1820. 4 Dev. 384.