Brown v. McCormick
| Decision Date | 28 October 1873 |
| Court | Michigan Supreme Court |
| Parties | William N. Brown v. Archibald W. McCormick |
Heard October 17, 1873
Error to Isabella Circuit.
Trover. Plaintiff brings error. Affirmed.
Judgment of the court affirmed, with costs.
L. T Durand, for plaintiff in error.
C. H Gage, for defendant in error.
This was trover by the plaintiff in error for the value of pine timber taken from the southwest quarter of the southeast quarter of section twenty-one, in township fourteen north, of range five west, in the county of Isabella. The cause was tried before a jury, who, by direction of the court, found for the defendant, and the plaintiff brought error.
Unless it appears by the record that the plaintiff made a case which he was entitled to have investigated by the jury the judgment must be affirmed. The land was wild and unoccupied, and his right to the timber was made to turn upon his legal ownership of the land, and that again depended upon the effect due to certain deeds and the records made of them. Both parties claimed title to the land under deeds from the patentee, an Indian named Away-way-shing, and there is no question but that these conflicting deeds were made respectively for valuable consideration. Neither is there any dispute upon the fact that the defendant, and his grantor, who was the immediate purchaser from the patentee, were both purchasers for valuable consideration and in good faith. The plaintiff proved by the record of deeds that the patentee deeded to him on the 29th of January, 1872, and that the deed was put on record the first day of February following.
The defendant gave in evidence an original deed from the patentee to Thomas Buckley earlier in date than that to the plaintiff, since it bore date on the 13th of September, 1871. The defendant also gave in evidence a second original deed between the same parties, dated February 7th, 1872, and, as will be noticed, subsequent in date to that given to the plaintiff. He also submitted in evidence a quit-claim deed for the timber, given by Thomas Buckley to himself on the 8th of February, 1872. The first deed to Buckley was placed on record before the plaintiff's deed was given, namely, on the 16th of September, 1871. The second deed to Buckley was placed on record afterwards. If as between these parties the first deed to Buckley, and the record of it, were sufficient to convey the title to Buckley and preclude the plaintiff from founding any right to the land on his deed, made and recorded subsequent to the record of such first deed to Buckley, then the plaintiff was not entitled to recover, and the verdict was correct. But the plaintiff has raised several questions relating to the sufficiency of the execution of the deed, the acknowledgment, the registry, and the effect due to the actual registry. One of the witnesses to this deed was unable to write, and his name was written out by the other witness, and he then affixed his mark. It is now argued that this was not a compliance with the statute which regulates the mode in which deeds are to be witnessed. The plaintiff insists that the language and spirit of the provision indicate that the witness must actually subscribe his own name.
This objection, however, is deemed to be well answered by the general statute of construction, which declares that in construing statutes, except when inconsistent with the manifest intent of the Legislature, the written signature of any person, whenever required, shall always be the proper hand-writing of such person, or in case he is unable to write, his proper mark.--Comp. L., § 2, sub. 17. Therefore, if apart from this provision it would be right to interpret the statute relating to subscribing witnesses in such a way as to render all persons who cannot write incompetent witnesses to deeds, we think this law precludes all question on the subject.
It was objected to the record that the certificate of acknowledgment did not show that the grantor was personally known to the officer. The certificate was as follows:
We think this objection untenable. The certificate upon its face clearly implied that the grantor was personally known to the justice. It was supposed that an intimation in Buell v Irwin, 24 Mich. 145, favored the objection here taken. The expression noticed was an incidental one in the opinion, and was not made as conveying the view held by the court on the point, and however it may be considered, as a correct...
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