Dubose v. Young , 10 Ala. 365 ( 1846 )

GOLDTHWAITE, J.

1. The counsel for the plaintiff in error, is evidently mistaken, when he supposes our statutes do not authorize the clerk to certify the time when a deed is deposited for record. The act is in these words: “ The said clerk shall give a receipt to the person who shall bring any Such deed or conveyance, mentioning thereon the time it was delivered to him, or brought to his office to be recorded, the date, the names of the parties to it, and the place where the lands, &c. are situated: the clerk shall certify on, or under such deed of conveyance, the day of the month or year, when he received it, and the name or number of the book or pages in which it is recorded ; and shall, when recorded, deliver it to the party entitled to it, or his order.” ' [Digest, 155, §. 23.] It is scarcely possible for language to be more definite than this, to invest the clerk with authority to certify the time when the deed is left to be recorded ; and his certificate as to this matter, is entitled to the same respect as it is of the fact of record. The decision made in McGregor v. Hall, 3 S. & P. 397, is conclusive, that the deposit for record, is equivalent, so far as the question is connected with registration, to the recording of the deed.

2. The misdescription of the deed, is a question which does not appear to have been distinctly made in the court below, yet as the court charged the jury, the deposit of the deed was proved by the certificate, we must look to the entire certificate, and thus we are compelled to pronounce on it as the transcript shows it to be. It then applies to the foregoing deed in trust from James Goodwin and wife, and when the deed is looked to, no such parties appear. It is then clear the clerk was mistaken, either in the deed which he intended to certify, or in the name of the parties executing the deed, which in point of fact, he did certify. Now it seems to us that in this condition of the certificate it is impossible for a court to pronounce in which matter the clerk was mistaken. It may be, it was this deed which he intended to certify, and that he misdescribes it as one from Goodwin and wife; but it is equally possible he has endorsed the certificate due to the deed from that party, upon the one before us. It is certainly true, the rights of parties ought not to depend on strict criticism, when applied to official certificates, and we have repeatedly held, that any part of the deed may be examined to give effect to the certificate. [Bradford v. Dawson, 2 Ala. Rep. 203; Hobson v. Kissam, 9 ib. 357; see also cases cited in Cowen & Hill’s Notes, 1247.] But we have no where been able to find any decisions which warrant a court in rejecting sensible words in a certificate, because they are inconsistent with the deed intended to be certified. On account of the misdescription of the deed, in the certificate, we think the certificate was not evidence, either that the deed was recorded, or deposited for record, and on this ground the judgment must be reversed.

It will be seen, we omit any consideration of the memorandum which seems to have been made on the deed by the clerk. No evidence as to this was given, or qfiestion raised in the court below; for the same reasons we forbear to consider whether the plaintiff would be entitled to prove the deposit of the deed by other evidence.

Judgment reversed, and cause remanded.