Hudson v. Webber

• Decision Date: 17 November 1908
• Citation: 104 Me. 429,72 A. 184
• Parties: HUDSON v. WEBBER et al.
• Court: Maine Supreme Court

72 A. 184

104 Me. 429

HUDSON

v. WEBBER et al.

Supreme Judicial Court of Maine.

Nov. 17, 1908.

(Official.)

Report from Supreme Judicial Court, Piscataquis County.

Writ of entry by Henry Hudson against Charles P. Webber and others. Case reported to the law court. Judgment for plaintiff.

Real action to recover one-half part in common and undivided of a certain parcel of land in township No. 5, range 9 north of Waldo patent, Piscataquis county. Plea, the general issue, with disclaimer as to part of the demanded premises.

Tried at the September term, 1906, Supreme Judicial Court, Piscataquis county. At the conclusion of the evidence it was agreed that, upon so much of the "evidence as is competent and legally admissible," the case should be reported to the law court for decision.

The case appears in the opinion.

Argued before EMERY, C. J., and SAVAGE, PEA-BODY, CORNISH, KING, and BIRD, JJ.

Frank E. Guernsey and Hudson & Hudson, for plaintiff. F. H. Appleton, Hugh R. Chaplin, and J. B. & F. C. Peaks, for defendants.

SAVAGE, J. Writ of entry to recover one-half part in common and undivided of a parcel of land in township No. 5, range 9 north of Waldo patent, in Piscataquis county. The defendants have pleaded the general issue, with a disclaimer as to part. The case comes up on report. We need notice only such questions as have been controverted in argument. It is incumbent on the plaintiff to show some title, and the defendants deny that he has any title. This raises the first question. But, if the plaintiff has a title, it is admitted in argument, on the assumption that the township was six miles square, as stated in the earliest deeds, and that a quarter, less public lands, was 5,520 acres, that the plaintiff owns 880 acres in common and undivided, while he claims 2,160 acres; and this presents the second issue. The plaintiff in his writ claims an undivided half, but he will be entitled to judgment for so much as he shows title to, less than one-half. Rev. St. c. 106, § 10. The defendants are admittedly the owners of at least one undivided half of the parcel.

The township was conveyed by the city of Boston to Samuel Thatcher in 1833. Thatcher gave a deed of a quarter of it to George Miller in 1835. In the same year Miller gave a deed of the same to Luther Billings, under whom the plaintiff claims. In proof of the last two of these links in his chain of title, the plaintiff introduced against the defendant's objection attested copies of the deeds from the registry of deeds, commonly called "office copies." The objection made is that the certificate of acknowledgment fails to show where—that is, in what state—the acknowledgment was taken. It is claimed that a deed must be properly acknowledged before it can be recorded (Rev. St. c. 75, § 26), and that an office copy of an unauthorized record is not admissible in evidence under Rev. St. c. 84, § 125, which provides that office copies may be used in certain cases where the original deeds would be admissible. It is claimed further that the place of the acknowledgment must appear on the deed to entitle it to be recorded. In one deed, dated February 11, 1835, and recorded March 10, 1835, the venue of the acknowledgment appears on the certificate merely, "Suffolk ss. Feb. 19, 1835." In the other deed dated September 10, 1835 and recorded November 16, 1835, it is "Suffolk ss. Boston, Oct. 12, 1835."

An original unacknowledged deed, or deed with defective certificate of acknowledgment, is valid and admissible in evidence as against the grantor and his heirs; but, if not properly acknowledged and recorded, it is not valid or admissible, except as against the grantor and his heirs. Such was the law when these deeds were executed. Pub. Laws 1821, p. 130, c. 36.

It will be seen that the statute (Rev. St. c. 84, § 125) above cited, which permits the use of office copies, limits their admissibility to cases where original deeds would be admissible. Since an original deed, unacknowledged, or without proper acknowledgment, is invalid and inadmissible against third parties, an office copy of the same is not admissible. Whether the deed was properly acknowledged, not only in form, but before a magistrate having jurisdiction, we think must appear upon the copy itself, when an office copy is offered.

It seems to have been held wherever the question has arisen, and we think properly that a certificate of acknowledgment is insufficient when it does not disclose the place or venue where it was taken, for a magistrate has no authority to take acknowledgments outside the state, within and for which he is appointed. It must appear that he acted within the territorial limits of his jurisdiction. A deed which does not show this fact is not admissible except as against the grantor and his heirs. Brooks v. Chaplin, 3 Vt. 281, 23 Am. Dec. 209; Ives v. Allyn, 12 Vt. 589; Vance v. Schuyler, 6 Ill. 164; Hardin v. Kirk, 49 Ill. 153, 95 Am: Dec. 581; Hardin v. Osborne, 60 HI. 96; 1 Cyc. 572, and cases cited. The case of Elliott v. Peirsol, 1 Pet. 328, 7 L. Ed. 104, is cited by counsel as being to the contrary. The certificate in that case was like the ones in the case at bar. It was attacked on other grounds, but not on the one we are now examining, and this point was not considered by the court. So we do not regard this case as authority.

When the venue of acknowledgment appears upon the deed, the law attaches to the acts of the officer the presumption of regularity; but it is not indispensable that it should appear from the certificate of acknowledgment itself. It will suffice if the place of acknowledgment can be discovered with reasonable certainty by inspection of the whole instrument. Hardin v. Osborne, supra; Chaplin v. Brooks, supra; Fuhrman v. London, 13 Serg. & R. (Pa.) 386, 15 Am. Dec. 608. In Chaplin v. Brooks, the grantor described himself in the deed as residing in "Suffield, county of Hartford and state of Connecticut," and the certificate showed that the acknowledgment was taken in "Hartford county," but no state was named. The court, by inferences based on the stated residence of the grantor and upon other facts shown by the deed, found that it was "Hartford county, Conn.," and held the acknowledgment good. In Hardin v. Osborne, where the certificate contained the words "county of New York," without any state named, the court held the acknowledgment good; it appearing in the certificate of the authority of the officer who took the acknowledgment, which was attached to the certificate of acknowledgment, that he was at the time of taking it a commissioner of, deeds for the city, county, and state of New York.

One of the copies before us presents no real difficulty.' The venue of the certificate is "Suffolk ss. Boston." The grantor is described in the body of the deed as of "Waltham in the county of Middlesex and commonwealth of Massachusetts," and the grantee as of "Boston in the county of Suffolk and commonwealth aforesaid." We think this sufficiently shows that the acknowledgment was taken in the county of Suffolk and commonwealth of Massachusetts. In the other copy the venue appears merely as "Suffolk ss." The plaintiff claims that this refers to Suffolk county, Mass. We think we may take judicial notice of the fact that there is a Suffolk county in Massachusetts. It is true that courts do not generally take judicial notice of the territorial subdivisions of other states into counties and towns, although they sometimes do of the location of the great commercial centers, like Boston, New York, and Chicago; but Suffolk county was created while this state was yet a part of Massachusetts. It was created by laws which were in force in the district of Maine as well as in the mother commonwealth, by laws which were ours as well as hers, and are ours still. We know of our own territorial subdivisions because we take judicial notice of the laws which made them, though the laws may have been enacted long before Maine became a state. We see no good reason why we should not judicially know the creation of Suffolk county in Massachusetts, as well as of York county in Maine, which was created long before the act of separation.

The difficulty here is, not in knowing judicially that there is a Suffolk county in Massachusetts, but in ascertaining whether that Suffolk county is the one where this deed was acknowledged. There are, or may be, other Suffolk counties. It appears that one of the parties, the grantee, lived in Waltham, Mass., within the territory of which Boston in Suffolk county was then, as now, the business and commercial center. This fact has slight probative force, but it has some. Prima facie, it leads us to think that the deed was acknowledged in that Suffolk county which is in Massachusetts rather than in any other one.

But there is another ground upon which we think a conclusion that the deed was properly acknowledged can be based. This deed and its record have stood unchallenged for more than 70 years. Upon them many conveyances have been based, and we think a presumption may arise from the lapse of time that the magistrate acted within his jurisdiction, and that the deed was properly acknowledged. Such a presumption is to be favored in proper cases, since it tends to quiet title, after all...