Carson v. Thompson

• Decision Date: 14 December 1894
• Citation: 38 P. 1116,10 Wash. 295
• Court: Washington Supreme Court
• Parties: CARSON v. THOMPSON ET AL.

38 P. 1116

10 Wash. 295

CARSON v. THOMPSON ET AL.

Supreme Court of Washington

December 14, 1894

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Action by Mary Carson against William Thompson and others. From a judgment for plaintiff, defendant Thompson appeals. Affirmed.

John P. Judson, for appellant.

Chas W. Seymour, for respondent.

SCOTT J.

The lands in controversy in this case were originally owned by the plaintiff and her husband, Isaac Carson. A certain purported deed of said lands was executed by them to George M. Carson, and he subsequently conveyed the premises to the plaintiff. The defendant Thompson claims title to said land as a purchaser at an execution sale upon a judgment against said Isaac Carson, and the rights of the other defendants are dependent thereon.

The only point necessary to pass upon is as to the validity of the said deed from the plaintiff and her husband to George M Carson, as affecting the defendants. This deed is attacked because there is but one witness to the signature of Isaac Carson. It appears that it was executed by him in this state then territory, and by the plaintiff in Oregon. It is also attacked on the ground that the acknowledgment of the plaintiff was taken before the clerk of the circuit court of Lane county, Or., and it is insisted that such officer had no authority to take the acknowledgment. The law then in force provided that deeds should be in writing, signed and sealed by the party bound thereby, and witnessed by two witnesses, etc. (Laws 1863, p. 430; Abb. Real Prop. St. p. 269); and that deeds of lands situated in this territory could be acknowledged in any state or territory of the United States, before any judge of a court of record, notary public, justice of the peace, or before any commissioner appointed by the governor; and that, where the acknowledgment was not taken before a commissioner appointed by the governor, the deed must have attached a certificate of the clerk or proper certifying officer of a court of record that the person whose name is subscribed to the certificate of acknowledgment was at the date thereof such officer, and that the signature is genuine (Laws 1866-67, p. 94; Abb. Real Prop. St. p. 273). The deed in question was executed by Isaac Carson January 20, 1873, and by the plaintiff on the 25th day of said month, and it was recorded on the 14th day of February following. In November of said year, the territorial legislature passed an act, the sixth section of which reads as follows: "Deeds or conveyances of land, or of any estate or interest therein, situated in this territory, may be executed or acknowledged in any other state or territory of the United States, in the form prescribed for executing and acknowledging deeds within this territory, and the execution thereof may be acknowledged before any person authorized to take acknowledgments of deeds by the laws of the state or territory wherein the acknowledgment is taken, or before any commissioner appointed by the governor of this territory for such purpose." Laws 1873, p. 466; Abb. Real Prop. St. p. 275. The clerk aforesaid was an officer authorized to take acknowledgments under the laws of the state of Oregon at that time. Section 8 of the act last referred to provided that "all deeds heretofore acknowledged according to the provisions of this act are hereby declared legal, except in cases where third parties have subsequently acquired a valid interest in the land." It does not appear that the defendants had any actual knowledge of the deed in question at the time their claimed rights accrued, and it is urged that, in consequence of the defects in the attestation of its execution, it was not entitled to record, and, consequently, that they cannot be held to have had constructive notice thereof, although it was in fact recorded. The respondent insists that the statute with regard to subscribing witnesses was sufficiently complied with, as such statute only required the deed to be witnessed by two witnesses, and there were three to this instrument; and that the defective acknowledgment was thereafter cured by the act aforesaid of the legislature, which was passed before the defendants acquired any rights in the premises. It appears, however, upon the face of the deed, that there was but one witness to the signature of Isaac Carson, and two to the signature of the plaintiff. We are of the opinion that the contention of appellant cannot be maintained upon the ground stated, for the clear intent of the act was that there should be two witnesses to the signature of each person conveying title; otherwise, if such a deed could be sustained where there was but one witness to the signature of one of the grantors, it could as well be sustained if there were none, providing there were two witnesses to the signature of the other grantor.

But, as between...