Patton v. Reily

• Citation: 3 Tenn. 119
• Court: Tennessee Circuit Court
• Decision Date: 01 January 1812
• Parties: PATTON et al. v. REILY.

3 Tenn. 119

PATTON et al.

v.REILY.

Circuit Court, D. Tennessee.

1812.

The plaintiffs, in support of their title, produced in evidence a grant from the state of North Carolina to John G. Blount and Thomas Blount, for five thousand acres of land, as mentioned in the declaration; and they offered in evidence a deed from the grantees to David Allison, under whom they claim. This deed had upon the back of it the following indorsements: ‘This deed of bargain and sale from J. G. Blount and Thomas Blount to David Allison was this day proved to be the act and deed of the grantors by John Blackledge, a subscribing witness thereto. J. Haywood, J. S. C. L. E.’‘Let it be registered. J. Haywood, J. S. C. L. E.’ Upon the back of the deed also appeared a probate of the oaths of several witnesses, stating that the two subscribing witnesses were dead; that the persons called upon also were well acquainted with the handwriting of the subscribing witnesses, and the handwriting of John G. Blount and Thomas Blount; and that the attestation was in the handwriting of the witnesses. They also proved the handwriting of the grantors in the same way. Upon these probates respectively the deed had been registered. The plaintiffs also offered, and produced witnesses in open court who proved the handwriting of the subscribing witnesses, and that they were dead; and also the handwriting of the grantors, and that one of them, viz., Thomas Blount, was dead, and the other lived in North Carolina.

Dickinson and Cooke, for defendant, objected to reading the deed in evidence. As to the probate before, J. Haywood, there can be no pretense for its legality. A law passed in 1794, authorizing deeds to be registered in this country, if proved before a judge of a superior court in another state. It is not pretended but that the person who took this probate is not, nor ever was, a judicial officer of this state; and if he were, the probate would still be illegal, because no law ever authorized proof of the execution of a deed in that manner. To make this probate and the consequent registration good it must in some way appear that the person receiving it really acted in the capacity which the law requires. To the end of the name J. Haywood is added the hieroglyphics J. S. C. L. E., which the gentlemen will say mean justice of the superior court of law and equity. It does happen that these characters will correspond with the initials of that title; but they as well stand for almost anything else. It may be the cipher used in North Carolina, designation the title of their judges; but this court cannot officially take notice of it. Besides, if we can give a legal interpretation of these letters, and thereby be enabled to explain them so as to suit the ideas of the plaintiff's counsel, still there is an essential wanting, because it does not from the certificate appear of what state Mr. Haywood was a judge. There is not even an initial which stands for North Carolina. Although, then, he may be a judge of a superior court of law and equity for anything that appears to the court, it may be in some one of the territories, or even out of the United States. In short, it does not appear that he really occupied the station which the act of assembly required as a prerequisite to his receiving the probate.

Now, as to the second objection viz., the proof by parity of hands. It will not be contended on the other side that the deed now produced in evidence would pass any legal estate at common law. By the common law livery of seizin was necessary to be made upon every grant of an estate, whether of inheritance or for life only. 2 Bl. Comm. 318. To remedy the inconvenience which might result from this ceremony in England was passed the statute of Henry VIII., recognizing deeds of bargain and sale; and in this country the act of the North Carolina legislature, making, in substance, a similar provision, passed in 1715. It is entitled ‘an act to appoint public registers, and to direct the method that shall be observed in conveying lands,’ etc., and provides ‘that no conveyance, or bill of sale for lands (other than mortgage), in what manner of form soever drawn, shall be good and available in law, unless the same shall be acknowledged by the vendor, or proved by one or more evidences upon oath, either before the chief justice for the time being, or in the court of the precinct where the land lieth, and registered by the public register of the precinct where the land lieth, within twelve months from the execution thereof; and that all deeds so done and executed shall be valid, and pass estates in land, or right to other estate, without livery of seizin, attournment, or other ceremony whatsoever.'

It will be argued by Mr. Whiteside, that as the legislature, in the act of 1715, required the deed previous to registration to be proved by evidence, it is not necessary to resort to the subscribing witnesses in those cases where proof of handwriting would be sufficient at common law. What would have been the construction of that act upon a deed offered to be proved in one year after the execution (which is not the case here), and before any other statute had passed on the subject, it will not now be necessary to inquire, as we expect to show that from a uniform train of legislative declarations it has been always required that the deed should either be acknowledged by the grantor, his agent or attorney, or proved by the subscribing witnesses. The next law which passed upon this subject was enacted in 1760, and expressly provides that before the deed can be admitted to registration it shall be acknowledged by the grantor, his agent or attorney, or proved by the oath of the subscribing witnesses, and gives two years time for registration. In the act of 1776 will be found a provision in the same words; so also in the acts of 1773, 1777, 1782, and 1784, and in every other law which has passed on the...