Davis v. Hamblin

• Decision Date: 18 June 1879
• Citation: 51 Md. 525
• Parties: LITTLETON E. DAVIS, and others, by LITTLETON E. DAVIS, their Guardian and next friend v. WILLIAM S. HAMBLIN, and others.
• Court: Maryland Court of Appeals

51 Md. 525

LITTLETON E. DAVIS, and others, by LITTLETON E. DAVIS, their Guardian and next friend v. WILLIAM S. HAMBLIN, and others.

Court of Appeals of Maryland

June 18, 1879

APPEAL from the Circuit Court for Worcester County.

The case is stated in the opinion of the Court. The certificates of acknowledgment and of enrolment of the deed, mentioned in the opinion, are as follows:

STATE OF MARYLAND,

Worcester County, to wit:

Be it remembered, that on the day and year first within written personally appeared Littleton Davis, before us, the subscribers, two justices of the peace for the county and State aforesaid, and acknowledged the within deed or instrument of writing to be his act and deed, and the land and premises therein mentioned, and thereby bargained and sold, also to be the right and estate of John Hamblin, party grantor therein mentioned, his heirs and assigns forever according to the true purport, intent and meaning of the said deed or instrument of writing, and Acts of Assembly in such case made and provided, &c. Also, at the same time and place before us, personally appeared Mary Davis, wife of the aforesaid Littleton Davis, and acknowledged the within deed or instrument of writing to be her act and deed, and the lands and premises therein mentioned, and thereby bargained and sold, to be the right and estate of John Hamblin, party grantee therein mentioned, his heirs and assigns forever according to the true purport, intent and meaning of the said deed or instrument of writing, and Acts of Assembly in such case made and provided, and out of the presence and hearing of her husband, signs, seals and executes the said deed or instrument of writing, and doth make her acknowledgment of the same willingly and freely, without being induced thereto by fear or threats of ill-usage by her husband, or fear of his displeasure, &c.

Taken and certified to, the day and year first within written, before--

JAS. C. WELBOURN.

STEPHEN ROACH.

And be it also remembered, that we, the subscribers, justices of the peace as aforesaid, are satisfied of our own knowledge that the same Littleton Davis and Mary Davis, his wife, are the parties who are named and described as, and professing to be parties to the said deed or instrument of writing.

Taken before and certified by us, the subscribers, the day and year before written.

JAS. C. WELBOURN.

STEPHEN ROACH.

March the twenty-first day, Anno Domini, eighteen hundred and thirty-four.-- Then was delivered unto me, the subscriber, the within deed, in order to be enrolled among the records of Worcester County, which said deed, together with the acknowledgment thereof thereon endorsed, are accordingly recorded among the same records in Liber A. Z., folios 603, 604 and 605.

JOHN C. HANDY, Clerk.

The cause was argued before BARTOL, C.J., BOWIE, MILLER and ROBINSON, J.

W. H. W. Farrow, for the appellants.

1st. The record of a deed is not such a record as imports absolute verity. So high a sanction is only imputed to judicial records. The enrolment of a deed does not make it a record, but it thereby becomes a deed recorded. For there is a difference between a matter of record, and a thing recorded to be kept in memory. A record is the entry in parolment of judicial matters controverted in a Court of record, and whereof the Court takes notice; but an enrolment of a deed is a private act of the parties concerned, of which the Court takes no cognizance at the time when it is done. When deeds are enrolled for safe custody, the enrolment is evidence only against the party who sealed the deed, but the party enrolling can never afterwards aver it was not his deed. Cruse Dig., Book 4, title 32, Deed, ch. 28, secs. 34 and 35.

Enrolment is prima facie evidence of all circumstances necessary to give validity to the instrument, but not conclusive. State vs. Crawford, 6 H. & J., 234; Hurn's Lessee vs. Soper, 6 H. & J., 276; Barry vs. Hoffman, 6 Md., 88 and 89; Warner vs. Hardy, 6 Md., 537.

2nd. The record of the certificate of the justices of the acknowledgment of a deed, is not such a record as imports absolute verity. "The justices, in making the certificate, act ministerially, and not judicially." Lewis' Lessee vs. Waters, 3 H. & McH., 432.

The only sanction which such an act has in law, is the legal presumption that an act done in performance of official duty, is rightly done; but this presumption is, with rare exceptions, not conclusive. The presumption is strong enough to require clear and convincing evidence to repel it; but not so strong as to exclude countervailing proof. And such is the force given to the certificate of acknowledgment of deeds in the adjudicated cases. 2 Wharton's Ev., secs. 1052, 1054; Byer vs. Etnyre & Besore, 2 Gill, 150; Copeland's Case, 18 Md., 305; Matthews, et al. vs. Dare, et al., 20 Md., 271; Barrett vs. Prockaner, Ala. (1878,) Rep., 7 Vol., No. 7, 201; Howetienne vs. Schnoor, S. C. Mich. Law Reg., (1876,) 373; McCandless vs. Engle, 51 Pa., 309; Michener vs. Cavender, 38 Pa., 334; Lowden vs. Blythe, 27 Pa., 22; S. C., 16 Pa., 532; Schroder vs. Decker, 9 Barr., 14; Jamison vs. Jamison, 3 Whart.; Jackson vs. Humphreys, 1 John., 497; Jackson vs. Schoonmaker, 4 John., 160; Jackson vs. Hagner, 12 John., 468; Jackson vs. Perkins, 2 Wendell, 304; Watson vs. Campbell, 28 Barbour, 421; Dodge vs. Hollingshead, 6 Minn., 25; Annan vs. Folson, 6 Minn., 500; Egerton vs. Jones, 10 Minn., 427; Stevens vs. Doe, 6 Blackfd., 475; McNeely vs. Bucker, 6 Blackfd., 391; Ford vs. Teal, 7 Bush., 156; Woodhead vs. Foulds, 7 Bush., 222; Hughes vs. Colman, 10 Bush., 246; Moorman vs. Board, 11 Bush., 135; Jutt vs. Rogers, 12 Bush., 564; De Wolf vs. Hayden, 24 Ill., 525; Graham vs. Anderson, 42 Ill., 514; Eyster vs. Hathaway, 50 Ill., 521; Lickmon vs. Harding, 65 Ill., 505; Wells vs. Wright, 7 Halstead, 137; Marsh vs. Mitchell, 26 N. J. Eq., 497; Kavanaugh vs. Day, 10 R. I., 393; Hostley vs. Frost, 6 Texas, 208; Allen vs. Lenoir, 53 Miss., 321; Johnston vs. Wallam, 53 Miss., 331; Dolph vs. Barney, 5 Oregon, 191; Morris vs. Sargent, 18 Iowa, 90; Van Ormon vs. McGregor, 23 Iowa, 300; Baldwin vs. Snowden, 11 Ohio, U. S., 203; Smith vs. Ward, 2 Root, 374.

Only in Virginia and North Carolina, so far as we have been able to discover, do the Courts hold a doctrine differing from the cases just cited. Their Courts hold the privy examination, and certifying the acknowledgment of feme coverts to be a judicial act, and conclusive of the facts certified, and they make such construction necessary from the terms of their statutes. Harkins vs. Forsyth, et al., 11 Leigh, 305.

Our Act of 1830, ch. 164, under which it is pretended this deed of Mary Davis was made, requires an actual compliance with its terms, and only upon the fact of such compliance does any estate pass from the feme covert.

Whilst the cases we have just cited, concur in holding the acknowledgment of a deed to be only prima facie evidence, yet they do not fully agree in the application of the rule. Some limit the circumstances under which evidence is admitted to disprove the certificate in much narrower bonds than others do. But none of them deny the propriety of allowing evidence to disprove the certificate, when the circumstances show misconduct, wrong and collusion in the officer. Some of the cases, when the executing and acknowledgment is admitted, deny the right to impeach the certificate, for then the grantor may well be estopped, but none hold the certificate to exclude proof of fraud and combination. Ridgely vs. Howard, 3 H. & McH., 321; Bissett vs. Bissett, 1 H. & McH., 211; Copeland's Case, 18 Md., 305; Matthews, et al. vs. Dare, et al., 20 Md., 271.

3rd. That ejectment is the proper action in which to try the validity of a deed, when the fact of its execution is denied. The issue is broad enough to embrace the question of title in any shape it may be presented. Rem. on Ejectments, 1 and 2.

To enable the plaintiff to recover, he must show in himself a good and sufficient title to the lands claimed. When an heir at law maintains the action, he must prove that his ancestor had title, and that he is heir. This makes for the heirs at law a prima facie case. Where "the plaintiff shows a prima facie good title, it is incumbent on the defendant setting up an outstanding title, by way of defence, to establish the existence of such title with clearness and precision," and generally such a title as might be recovered upon in an action of ejectment. Lanney's Lessee vs. Wilson, et al., 30 Md., 546.

At common law the deed of an ancestor could be set up against the heir at law only upon complete proof of its execution, but we concede that under our system of enrolling deeds, the enrolment is evidence of all circumstances necessary to give it validity, and dispenses with the necessity of proving execution. But this evidence is not conclusive; it is only prima facie, and like all prima facie evidence, may be rebutted. Crawford vs. State, 6 H. & J., 234; Hurn's Lessee vs. Soper, 6 H. & J., 276; Barry vs. Hoffman, 6 Md., 88 and 89; Warner vs. Hardy, 6 Md., 537.

The evidence offered by appellants, would prove that the appellees are claiming under a deed which Mary Davis never made; which was, so far as Mary Davis was concerned, a forgery. It disproved the signing, sealing, acknowledging and delivery of it as her deed, and without which no estate passed from Mary Davis to John Hamblin, but remained in her, and descended to her heirs. The signing, sealing and delivery of a deed are essential to its validity, "and being matters of facts, are to be tried by jurors." 1 Sheppard's Touch., 54.

4th. That the original deed was competent and admissible evidence. The deed itself is the instrument by which the...