Carpenter v. Dexter

• Decision Date: 01 December 1869
• Citation: 8 Wall. 513,19 L.Ed. 426,75 U.S. 513
• Parties: CARPENTER v. DEXTER
• Court: U.S. Supreme Court

75 U.S. 513

19 L.Ed. 426

8 Wall. 513

CARPENTER v. DEXTER.

December Term, 1869

ERROR to the Circuit Court for the Northern District of Illinois.

The action was ejectment to recover the possession of certain real property, situated in the county of Bureau, in the State of Illinois. Both parties claimed title from the same source,—a patent of the United States, issued to William T. Davenport, in May, 1818. The points in dispute arose upon the deraignment of title from the patentee.

The plaintiff produced in evidence the patent; a deed from the patentee to one Hawley, dated in September, 1818; a deed from Hawley to Thaddeus Munson, dated in December, 1818; and a deed from Munson to William James, dated in February, 1819; all of which embraced the demanded premises. The deeds were inscribed upon the record, in the proper register's office, in May, 1819. Those from Davenport to Hawley, and from Hawley to Munson, contained this indorsement (unsigned by the recorder) of the fact:

'RECORDER'S OFFICE,

EDWARDSVILLE, May 17th, 1819.

'I certify the within deeds, together with the certificates of acknowledgment, are this day recorded and examined in my office, in Book V, p. 353 and 354.'¹

William James died in 1832, leaving several heirs-at-law. The premises in controversy were allotted in severalty to John B. James, by a decree of one of the Circuit Courts of the State, in a suit for partition between him and his coheirs. John B. James died in 1844, leaving a will, by which he devised the premises to the plaintiff. The record of partition, and the record of the will and of its probate were produced in evidence.

The defendants, also relying upon the patent of the United States to Davenport, introduced in evidence a conveyance of the premises, from the patentee, to one De Witt, bearing date in August, 1818, and a conveyance from the heirs of De Witt to himself, bearing date in July, 1861. The first of these deeds was recorded in December, 1861, and the other was recorded in February, 1862.

Beginning with the plaintiff's case. The deed from Davenport to Hawley concluded with the following attestation clause:

'In witness of all the foregoing, I have hereunto fixed my hand and seal, at Albany, in the county of Albany, and State of New York, this first day of September, one thousand eight hundred and eighteen.

'WM. T. DAVENPORT, [L. S.]

'Signed, sealed, and delivered in the presence of

'WM. D. WOOSTER,

H. WENDELL, JR.'

The certificate of acknowledgment following immediately after the above clause, was thus:

'STATE OF NEW YORK,

COUNTY OF ALBANY, ss.

'Be it remembered, that on the first day of September, 1818, the above-named William T. Davenport, who has signed, sealed, and delivered the above instrument of writing, personally appeared before me, the undersigned justice of the peace, and acknowledged, in due form of law, the same to be his free act and deed, for the purposes therein set forth, and also gave his consent, that the same should be recorded wherever it might be deemed necessary. In witness of all of which, the said justice has hereunto affixed his hand and seal, and undersigned the same.

'H. WENDELL, JR., [L. S.] Justice of the Peace.'

[The reader will note that the magistrate who takes the acknowledgment was a subscribing witness to the execution, but that nothing is said as to the grantor's being known to him, as the real party who signed the deed.]

A certificate of the official character of Wendell as a justice of the peace, at the time he took the above acknowledgment, from a clerk of a court of record of New York, accompanied the above certificate.

In addition to the record of acknowledgment there was upon this deed from Davenport a certificate (by the same magistrate who took the acknowledgment) of the proof of execution by the person who with him had attested the execution as a subscribing witness. That certificate ran thus, no particular city or town being given as the place where it was made:

'STATE OF NEW YORK:

'On this second day of September, 1818, before me came William D. Wooster, one of the subscribing witnesses to the within indenture, to me known, who being sworn, saith, that he saw the within-named grantor, William T. Davenport, duly execute and acknowledge the within indenture, and that he knows him to be the same person named and described in, and who acknowledged duty to have executed the same as his free act and deed. I allow the same to be recorded.

'H. WENDELL, JR., Commissioner, &c., &c.'

[The magistrate taking this probate, it will be observed, signs himself Commissioner, &c. By the statute of New York in force on the 2d of September, 1818, commissioners of deeds were authorized to take the acknowledgment and proof of deeds² for the county where they resided.]

A certificate of the official character of Wendell as a commissioner of deeds, and of his authority to take the proof of deeds at the time when the above-mentioned proof was taken, accompanied the certificate just mentioned.

So far as respected the deed from Davenport.

The commencement of the deed from Munson to James, was as follows:

'This indenture, made the thirteenth day of February, in the year of our Lord one thousand eight hundred and nineteen, between Thaddeus Munson, of the city and county of Albany, and State of New York, of the first part, and William James, of the city, county, and State aforesaid, of the second part, witnesseth, &c.'

The certificate of acknowledgment to this was with the same general form of place of making as was the last deed.

'STATE OF NEW YORK, ss.

'Be it remembered, that on this thirteenth day of February, in the year of our Lord one thousand eight hundred and nineteen, came before me the above-named Thaddeus Munson, to me well known, and acknowledged to have signed, sealed and delivered the above deed for the uses and purposes therein expressed. All which I certify according to law, and allow the same to be recorded.

'ESTES HOWE,

Judge, Albany Common Pleas, Counsellor, &c., ex-officio performing the duties of a Judge of the Supreme Court at Chambers, &c.'

This certificate was unaccompanied by any evidence of the official character of this judge, or that his certificate was in conformity with the laws of New York.

To the introduction of the several deeds produced by the plaintiff, objection was made on the ground that they had not been duly proved. No specification was made of the particulars in which the proof failed.

How far certain objections made on the argument here, and which may perhaps be assumed to have been the true ground of objections below, were well founded, depended upon certain statutes of Illinois now to be mentioned.

A statute of 1845,³ which enacts that all deeds and other instruments, relating to or affecting the title to real property, shall be recorded in the county where the same was enacted, in regard to the acknowledgment, &c. (prior acts as to acknowledgments not having required a certificate of personal knowledge, &c.), as follows:

'No judge or other officer shall take the acknowledgment to any deed unless the person offering to made such acknowledgment shall be personally known 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 by a credible witness; and the judge or officer taking such acknowledgment shall in his certificate thereof, state that such person was personally known to him to be the person whose name is subscribed to such deed, as having executed the same, or that he was proved to be such by a credible witness.'

The statute further provided that the fact of such personal knowledge or proof should be stated in the certificate.

At the time of this act, justices of the peace could not take acknowledgments.

An act of February 27th, 1847, provided, however, that all deeds of land lying within the State might be acknowledged or proved before any commissioner of deeds and 'before any justice of the peace,' but it enacted 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 the proof or acknowledgment was made, was a justice of the peace at the time of making the same;'——

And then declared that:

'All deeds and conveyances which have been, or may be, acknowledged or proved 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.

The same act provided further:

'That deeds of lands situated within the State, which have been or may hereafter be executed without this State and within the United States, and which have been, or may hereafter be acknowledged or proved, in conformity with the laws of the state, territory, or district, in which they were executed, shall be admitted to record in the county wherein the lands are situated; and such deeds, &c., acknowledged or proved as aforesaid, when so recorded, may be used as evidence, without further proof of the execution thereof.'

It was agreed between the parties that the statutes of New York and of Ohio were to be considered as evidence.

The court admitted the deeds notwithstanding the forms of acknowledgment and proof.

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 the objection was overruled, and exception was taken. No particulars in which the record failed to show jurisdiction were stated with the objection. The record itself showed, however, that some of the heirs were minors and that the guardian ad litem for these having filed his answer, and set up no opposition to the prayer of the bill, the bill had been taken pro confesso.

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