Leftwich v. City Of Richmond

• Decision Date: 30 January 1902
• Citation: 40 S.E. 651,100 Va. 164
• Parties: LEFTWICH v. CITY OF RICHMOND.
• Court: Virginia Supreme Court

40 S.E. 651

100 Va. 164

LEFTWICH

v.CITY OF RICHMOND.

Supreme Court of Appeals of Virginia.

Jan. 30, 1902.

TAX DEED—RECORDING—ACKNOWLEDGMENT —HARMLESS ERROR.

1. Under Code 1849, c. 37, § 22, providing tihat when a purchaser of real estate at tax sale shall have obtained a deed therefor, and caused it to be recorded, the real estate shall stand vested in him, a deed is unavailing till recorded after an acknowledgment authorizing its recording.

2. A deed executed by a clerk of a court cannot he acknowledged before him.

3. An indorsement: "In the Office of Court of Hustings. * * * This deed was acknowledged by H., clerk, a party thereto, "—signed, "H., Clerk, " must be construed as an acknowledgment made before the clerk himself.

4. Error in instructions is harmless, where, on the case, there could not properly have been a different result on correct instructions.

Error to circuit court of city of Richmond.

Action by Leftwich against the city of Richmond. Judgment for defendant. Plaintiff brings error. Affirmed.

Sands & Sands, for plaintiff in error.

H. R. Pollard, for defendant in error.

BUCHANAN, J. This is an action of ejectment brought by plaintiff in error to recover certain lands which he claimed in fee simple. In making out his case, he offered in evidence a deed executed September 28, 1858, by Robert Howard, clerk of the hustings court of the city of Richmond, to one Isaac A. Goddin, the assignee of James Sutton, who was the purchaser of the land in controversy at a sale for the nonpayment of taxes due the state. The deed, when offered in evidence, was objected to upon the ground, among others, that It had never been properly acknowledged and recorded, and until so recorded It vested no title in the grantee. This objection was overruled, and the deed admitted in evidence.

By section 22 of chapter 37 of the Code of 1849, which was in force at that time, it was provided that when a purchaser of real estate at a tax sale "shall have obtained a deed therefor, according to the six preceding sections, and within six months from the date of the deed shall have caused the same to be recorded in the court of the county or corporation in which such real estate lies, such real estate shall stand vested in the grantee as it was vested in the party assessed with the taxes. * * *"

Until acknowledged before one of the officers or tribunals authorized to take acknowledgments by chapter 121 of the same Code, there was no authority to record it, and until recorded it did not vest the legal title in the grantee.

The probate jurisdiction in regard to deeds, as was said by this court in Carper v. McDowell, 5 Grat. 212, 232, is for the most part distributive, and consists of two parts, one of which is taking officially the proof of acknowledgment, and the other its recordation or what Is the same thing, in effect, the receiving it officially for that purpose; and they, together, when duly performed by the proper authorities, constitute a complete act of registration. The registration of a deed is thus a matter of record, and the record is composed of the instrument itself, with the indorsements showing its proof or acknowledgment and its admission to record, all of which are copied into the deed book; and a transcript therefrom, or from the originals, is, as well as the originals, evidence for and against all persons.

In the case before the court, Robert Howard, clerk, the grantor in the deed, was the clerk who made the indorsement and admitted the deed to record, if it was admitted at all. The indorsement on the deed is as follows:

"City of Richmond, to wit: In Office of Court of Hustings of the Said City, the 28th Day of March, 1858. This deed was acknowledged by Ro. Howard, clerk, a party thereto, and admitted to record at half-past nine o'clock a. m. Teste: Ro. Howard, Clerk."

This is the only certificate or evidence of acknowledgment, or of admission to record.

The clerk of the court of registration, in his office, could at that time admit to record any deed or other writing authorized to be recorded, as to any person whose name was signed thereto, when It had been acknowledged before him by such person, or proved by two witnesses, as to him, before such court* or clerk in his office; and he could also admit any such writing to record, as to any person whose name was signed thereto, upon a certificate of such person's acknowledgment before certain officers designated by the statute. Code 1849, c. 121, §§ 1-3.

In the case of Davis v. Beazley, 75 Va. 491, 494, where the grantor In the deed was the clerk of the court in which the...