Page images
[ocr errors]

and mortgages. This evil could not have existed if the object of the act of 1715 was to give notice.



The object of that act, therefore, was safe keeping, The recording or the omission to record the deed did not affect the title. It was therefore perfectly immaterial in which of the offices the deed should be recorded. It was perfectly optional with the grantee whether he would have his deed recorded at all; and if he did choose to have it recorded, it was cqually optional with him in which of the offices it should be recorded.

2d. As to the acknowledgment.

It had been the cotemporaneous and uniform practice from the year 1715 to the date of this deed, to acknowledge deeds before a judge of the supreme court of Pennsylvania. That practice had never been questioned. The grantor in the present deed was the chief justice of that court and had been so for 40 years beforc. He and the judge who received the acknowledgment must have been perfectly satisfied of the practice, and that it had been unquestioned. Judge Peters, who sat in the trial of this cause in the court below, stated, and the whole bar admitted, the practice to be so. could be better acquainted with this practice than Judge Peters, whose father was secretary of the land-office, and who was himself a large landholder.

No person

There never was a doubt suggested upon this subject until the present case. If the practice be now decided to be incorrect, it will cut deep into the titles of Pennsylvania.

LIVINGSTON, J. I doubt whether this court can tako notice of such a practice unless it be spread upon the record by a bill of exceptions, or found by a special verdict. If we can, and if the practice be So, I think it puts an end to the question.

Lewis. The evidence of the practice was offered, not to the jury as a fact, but to the judge, to inform him what had been the construction uniformly put upon the law by courts, judges and legislators, and by the whole people of the state.



MARSHALL, Ch. J. I do not know how this court can take notice of it as a practice or custom, without the consent of the parties; but I consider it as an exposition or construction of the law. If decisions of the courts of Pennsylvania had been made apon the question, they might be produced. If no cases are reported, the court will take other information as to the construction given to the law by the courts of Pennsylvania.

If such have been the uniform decisions of their courts at the time, as there are no reports of cases, if the counsel agree as to the construction given by the courts, this court can receive it as evidence of those decisions. But if gentlemen differ in their statements, the court would not be willing to decide as to the credit to be given to the one statement or the other.

Ingersoll, for the plaintiff in error, said he could not admit any statement admitting that it had been the practice to admit in evidence exemplifications of deeds not recorded in the county where the lands lie.

Lewis named 27 cases in which he had been concerned as counsel, and in which such exemplifications had been used in evidence, and no objection ever taken.

MARSHALL, Ch. J. That part of the argument may be omitted for the present, and if the court should not be able to decide the case without evidence of the practice, we will decide whether we will hear the statements on that subject.

Lewis. Part of the lands lie in Philadelphia county, where the deed was recorded. An exemplification would be good evidence in a contest respecting those lands, and if good evidence for one purpose, it will be good as to the other.



If the law authorizes a deed to be recorded in a Der scy's particular office, an exemplification from that office

is good evidence in all cases. It would have been good evidence in an action of covenant upon the deed; and there can be no difference in an action of ejectment. Gilb. Ev. 97. 99, 100. 2 Vin. Abr. 598. 12 Vin. 105. 107. 2 Eg. Cas. Abr. 413.

Ingersoll, in reply.

The common law did not require any deed to be recorded. Before the act of 1715, the English register acts, and the acts for enrolment of deeds, were well known in Pennsylvania : and they were for the purpose of notice. The evil to be remedied was the frequency of clandestine conveyances.

The 1st section of the act does not require the recorder to record “all deeds and conveyances which shall be brought to him for that purpose," but “al deeds and conveyances which shall be brought to him for that purpose according to the true intent and meaning of this act;" that is, all deeds and conveyances of land lying in his county.

The 2d and 3d seccions require the acknowledgment or proof to be before one of the justices of the peace of the proper county or city where the lands lic. The power to certify acknowledgments was not given to a judge of the supreme court until 1775, whun the express grant of the power was strong evidenci. that ihey did not already possess it.

There is no more reason that a foreign deed should be proved and recorded in the county where the lands lie, than that a domestic deed should be so proved and it corded. Yet the 4th section of the act is explicit with regard to foreign deeds, that they shall be so proved and recorded; and in order to show that they meant the same thing in the case of domestic deeds, the legislature say that a foreign deed, so proved and recorded, shall be as valid“ the same had been inade, acknowledged, or proved, in the proper county where the lands lie;" Thereby

as if



intimating, that the acknowledgment or proof in the county where the lands lie, was the proper mode in Delancy' all other cases.


The 5th section immediately follows, and declares that all deeds “proved or acknowledged and recorded as aforesaid," shall transfer the possession, and that exemplifications thereof shall be evidence.

Here the words “as aforesaid" refer to the description last antecedent, that is, in the county where the lands lie. Again in the 8th section it is declared, that no mortgage shall be good unless acknowledged or proved and recorded where the lands lie “as herein before directed

for other deeds.This expression clearly shows that the. legislature had before directed that other deeds should be recorded where the lands lie.

They had mentioned before but two other kinds of deeds, viz. foreign and domestic. With regard to foreign deeds they had been as explicit as in the case of mortgages; and if any doubt could be raised as to their expressions relative to domestic deeds, that doubt must be removed by the expressions in the 4th and 8th sections.

March 11.

MARSHALL, Ch. J. delivered the opinion of the court as follows, viz.

This case depends entirely on the acts of the legislature of Pennsylvania, respecting the registering of deeds.

The law of Pennsylvania, on this subject, had varied at different times; but as it stood in 1715, when the act passed which must decide this controversy, the recording of a deed was not necessary to its validity; but deeds might be enrolled, and an exemplification was testimony in all courts.

The act of 1715 established an office of record in

MKten each county in which deeds were to be recorded, DELANcx's and declared ar exemplification from the record to

be as good evidence as the original. This act, however, does not make the recording of a deed essential to its validity.


To entitle a deed to be recorded, the act requires that it shall be acknowledged or proved " before one of the justices of the peace of the proper county or city where the lands lie."

In this case the lands lie in different counties; and the deed was acknowledged before John Lawrence, one of the justices of the supreme court of Pennsylvania ; and was recorded in the office for the city and county of Philadelphia, in which a part of the lands lie. The land, however, for which this suit was brought, lies in a different county.

The first question which presents itself in this cause is, was this deed properly proved?

Were this act of 1715 now, for the first time, to be construed, the opinion of this court would certainly be, that the deed was not regularly proved. A justice of the supreme court would not be deemed a justice of the county, and the decision would be, that the deed was not properly proved, and therefore not legally recorded.

But, in construing the statutes of a state on which land titles depend, infinite mischief would ensue, should this court observe a different rule from that which has been long established in the state ; and in this case, the court cannot doubt that the courts of Pennsylvania consider a justice of the supreme court as within the description of the act.

It is of some weight that this deed was acknowledged by the chief justice, who certainly must have been acquainted with the construction given to the act, and that the acknowledgment was taken before another judge of the supreme court. It is also re

« PreviousContinue »