McIntyre v. Kamm

• Decision Date: 04 May 1885
• Parties: MCINTYRE v. KAMM and others.
• Court: Oregon Supreme Court

7 P. 27

12 Or. 253

MCINTYRE v. KAMM and others.

Supreme Court of Oregon

May 4, 1885

Appeal from Multnomah county.

Action to recover certain real property in Multnomah county. At the trial the appellant gave in evidence (1) a patent from the United States to Alexander Brown and wife under the donation law of September 27, 1850, including the premises in controversy; (2) a decree of the county court of Multnomah county, made at the April term thereof, 1859, by which the east half of said claim was partitioned among the children of said Alexander Brown, then deceased. In order to make the partition, said east half of the claim was divided into parcels, numbered respectively from one to six, inclusive and designated as lots, two of which, lots 5 and 6, are the parcels in controversy. Lot 6 was set apart to Sarah McIntyre, the appellant, a daughter of the deceased, and lot 5 was set apart to another daughter, Nancy J. Brown, now Nancy J. Dray; and (3) a warranty deed to said lot 5 from Nancy J. Dray and her husband, dated December 18, 1883. The respondent then offered in evidence a writing, under seal which they claimed to be a deed to said lot 5 from said Nancy J. Brown to William Stephens. The instrument was not acknowledged, but an attempt had been made to prove its execution, which was indorsed thereon as follows:

"State of Oregon, County of Multnomah. I, F.R. Strong, a notary public in and for said county and state, do hereby certify that on this twenty-first day of September, 1883 personally appeared before me, P.A. Marquam, one of the subscribing witnesses to the above and foregoing deed, and acknowledged to me that he resides "in the county of Multnomah and state of Oregon, and has resided in said county and state for a long time prior to the date of said deed and that he personally knew Miss Nancy J. Brown, the person described in and who executed said conveyance, and that the above and foregoing deed was signed and executed by Miss Nancy J. Brown, the grantor named therein, on the twenty-sixth day of October, 1864, the day it bears date, and that the said P.A. Marquam and one G.B. Gray, at the request of said Nancy J. Brown, and in her presence, signed our respective names as witnesses thereto; and thereafter said deed was delivered by said Nancy J. Brown to said William Stephens, the grantee named therein. And I further certify that I am personally acquainted with said P.A. Marquam, the said subscribing witness, and have been so personally acquainted with him for over fifteen years.

"In witness whereof, I have hereunto set my hand and seal the day and year in this certificate first above written.

[Notarial Seal.]

"F.R. STRONG,

"Notary Public for Oregon."

During the trial a certificate was obtained from T.A. Wood, a notary public, and indorsed upon the deed, which was intended to obviate the objections to the foregoing. The deed thus certified was admitted against the appellants' objections. The respondent then offered in evidence what was claimed to be a deed from the appellant to William Stephens to said lot 6. The descriptive part of the deed is as follows:

"All the right, title, and interest of the said Sarah Brown in and to the donation land claim of Alexander Brown deceased, late of Multnomah county, in the state of Oregon, and more particularly designated and known as lot No. 5 of said donation land claim, as surveyed, designated, and set apart to the said Sarah Brown, heir-at-law of said Alexander Brown, deceased, by the probate court of said Multnomah county, in the state of Oregon; reference thereunto being had, as will more fully appear in the records of said court."

This deed was also admitted in evidence against the appellants' objection. Upon these facts the court directed a verdict for the respondent, and from the judgment entered thereon this appeal is taken.

A.H. Tanner and R.E., Bybee, for appellants.

Joseph Simon, for respondent.

WALDO, C.J.

The practice of proving a deed for the purpose of having it recorded grew up in New York in colonial times as a part of the common law of the state. Van Cortlandt v. Tozer, 17 Wend. 338; S.C. 20 Wend. 423. We have no such common-law practice in this state. We doubtless take judicial notice at common law of what is termed "an acknowledgement of a deed." Morris v. Wadsworth, 17 Wend. 113; Pidge v. Tyler, 4 Mass. 541. But, apart from the express exactment of our statute, we do not know what is intended by the expression "proving a deed" for purposes of registration. Nevertheless, the legislature, in enacting the statute, seemed to have supposed that they were legislating upon a subject well understood in the law, and hence, doubtless, arose what is obviously an imperfect explanation of the mode in which proof shall be made, and the manner in which it shall be certified. The term is first seen in the Laws of Oregon Territory of 1854, page 478, and, as may be drawn from the preface and the marginal references to the text, was a transcript from the laws of New York. That fact, under the circumstances attending the publication of the laws of that year, gives to the...