Keen v. Delancy Lessee

• Decision Date: 01 February 1809
• Citation: 5 Cranch 22,3 L.Ed. 25,9 U.S. 22
• Parties: M'KEEN v. DELANCY'S LESSEE
• Court: U.S. Supreme Court

9 U.S. 22

5 Cranch 22

3 L.Ed. 25

M'KEEN v. DELANCY'S LESSEE.

February Term, 1809

ERROR to the circuit court for the district of Pennsylvania, in an action of ejectment.

The only question was, whether the exemplification of a deed from Allen to Delancy, could be lawfully read in evidence at the trial.

This question arose upon the following case:

William Allen, on the 27th of December, 1771, being seised in fee of the land in controversy, lying in Northampton county, by deed of bargain and sale of that date, conveyed the same to James Delancy and Margaret his wife, in fee. The deed also conveyed real estate in the counties of Philadelphia and Bucks, and was acknowledged by the bargainor in the city of Philadelphia, on the 7th of December, 1772, before John Lawrence, one of the justices of the supreme court of the province of Pennsylvania, and recorded on the 11th of May, 1773, in the office of the recorder of deeds for the city and county of Philadelphia; but not recorded in the county of Northampton, nor in the county of Bucks, nor in any other county in Pennsylvania; offices for recording deeds being established in the said counties of Northampton and Bucks, according to law, from the date of the said deed to the present time.

The circuit court admitted the exemplification to be read in evidence; and the verdict and judgment were for the plaintiff below.

Rodney, Attorney-General, for the plaintiff in error.

By the laws originally agreed upon and adopted by William Penn and his followers, before they left England, in May, 1682, section 20. (Appendix to Laws of Pennsylvania, p. 4.) it was declared, that 'to prevent frauds and vexations within the said province,' 'all conveyances of land made in the said province' 'shall be enrolled or registered in the public enrolment-office of the said province, within the space of two months next after the making thereof, else to be void in law.' Deeds made out of the province were to be enrolled in like manner within six months.

This shows that it was the prevailing sentiment among them that means should be taken to prevent clandestine conveyances; and from thence it may be inferred that such was the intention and end of all their laws requiring the enrolment of deeds.

By the act of 1683, c. 79. (Appendix, p. 9.) it is enacted, 'that all deeds of sale, mortgages, settlements, conveyances, (except leases for a year,) shall be declared and acknowledged in open court.'

In 1688, a temporary law, to continue one year only, confirmed deeds theretofore made and not properly recorded, and allowed twelve months for recording deeds made out of the province, and six months for those made in the province; otherwise they were to be void. The same act permits the recording of bills, bonds and specialities, for safe keeping, but expressly declares that such recording is not necessary as to those writings.

In 1693 it was enacted that deeds were good and valid, although never recorded; and it was declared that no deeds or other writings shall be required to be recorded; but that such deeds and writings as shall be enrolled or registered in the Roll's Office, and the exemplification of the records of the same,

in all courts of judicature, shall be allowed and judged as valid as the original.

Then came the act of 1715, c. 9. (Laws of Pennsylvania, p. 78.) the 1st section of which enacts, 'that there shall be an office of record in each county in this province, which shall be called and styled the office for recording of deeds,' and that the recorder 'shall record, in a fair and legible hand, all deeds and conveyances that shall be brought to him for that purpose, according to the true intent and meaning of this act.' The 2d and 3d sections provide that all conveyances of land in the province 'may be recorded in the said office,' but before the same could be recorded they were to be acknowledged or proved 'before one of the justices of the peace of the proper county or city where the lands lie.'

The 4th section enacts, 'that all deeds and conveyances made and granted out of this province, and brought hither and recorded in the county where the lands lie, (the execution thereof being first proved by the oath or affirmation of one or more of the witnesses thereunto, before one or more of the justices of the peace of this province,' or before any mayor, &c. of the place where executed, certified, &c.) 'shall be as valid as if the same had been made, acknowledged or proved in the proper county where the lands lie in this province.'

The 5th section enacts, 'that all deeds made, or to be made, and proved or acknowledged and recorded as aforesaid, which shall appear so to be, by endorsement made thereon, according to the true intent and meaning of this act, shall be of the same force and effect here, for the giving possession and seisin, and making good the title and assurance of the said lands, tenements and hereditaments, as deeds of feoffment with livery and seisin, or deeds enrolled in any of the king's courts of record at Westminster, are or shall be in the kingdom of Great Britain; and the copies or exemplifications of all deeds so enrolled, being examined by the recorder, and certified under the seal of the proper office, (which the

recorder or keeper thereof is hereby required to affix thereto,) shall be allowed in all courts where produced, and are hereby declared and enacted to be as good evidence, and as valid and effectual in law, as the original deeds themselves, or as bargains and sales enrolled in the said courts at Westminster, and copies thereof, can be, and that the same may be showed, pleaded and made use of accordingly.'

The 6th section declares the force and effect of the words 'grant, bargain and sell.'

The 7th section declares the punishment for forging certificates of acknowledging and recording.

The 8th section enacts, 'that no deed or mortgage, or defeasible deed in the nature of mortgages, hereafter to be made, shall be good or sufficient to convey or pass any freehold or inheritance, or to grant any estate therein for life, or years, unless such deed be acknowledged or proved, and recorded within six months after the date thereof, where such lands lie as herein before directed for other deeds.'

The 9th and 10h sections prescribe the mode of acknowledging satisfaction of mortgages.

The 11th section appoints recorders for the respective counties of Philadelphia, Bucks and Chester, which were then the only counties in the province.

By this act no power was given to a judge of the supreme court. Indeed, no such court then existed. The supreme court was established by the act of May 22, 1722, section 11. but no such power is given thereby to the justices of that court.

The act of 1775 expressly gives the power to the justices of that court, from whence a strong inference is drawn that they had not the power before. The expressions of the second section of that act are, 'that all such deeds and conveyances, which shall be...