Wiswall v. Ross , 4 Port. 321 ( 1837 )

HOPKINS, C. J.

— Upon the trial of this case, in the Circuit Court of Mobile County, the defendants in error, who were plaintiffs in that Court, offered as evidence, a deed of trust, made on the eighteenth day of March, eighteen hundred and twenty-five, between one Stephen Chandler and his wife, of the first part, John B. Hazard, of the second part, and the President, Directors and Company of the Tombeckbee Bank, of the third part, by which the parties of the first part conveyed to Hazard the three lots of land in controversy between the parties to this suit, to secure a debt due from Chandler to the Tombeckbee bank. The defendants in error claimed title to the lots by a purchase of them, made at a sale by Hazard, as a trustee, under the deed from Chandler and his wife. Wiswall excepted to the opinion of the Circuit Court, which overruled his motion to reject the deed, as evidence.

In support of this exception, so much of the ordinance for the government of the territory of the United States, north-west of the river Ohio, is relied upon, as authorised estates in that territory to be conveyed, by deeds of lease and release, or bargain and sale, attested by two witnesses. This part of the ordinance was extended, by the articles of cession and agreement between the United States and the State of Georgia, over the territory ceded by the latter to the former.

If this part of the ordinance be the law of the State; the deed of Chandler and his-wife, which was attested by one witness only, conveyed no interest in the lots to Hazard. The title to land can be acquired, only according to the laws of the country where it is situate.

It was decided by this Court, in the case of Roh ertson and Barnwell vs Kennedy and Kitchens,^*that the ordinance was superseded by the adoption of the constitution of this State. Without determining what would have been the effect of the constitution Upon the ordinance, if the latter had continued in force until the former was adopted, we are of opinion, that the part of the ordinance which is relied upon in this case, was repealed by the statute of eighteen hundred and three of the Mississippi territory. By the terms of the ordinance, this part of it was -made revocable, by the legislative power of the territory.

The first section of the act of eighteen hundred and three, authorised any Judge of the Superior Court of the territory, or' any justice of any Court of the County in which the land included in any deed was situate, to take the acknowledgment of the party, who had executed a conveyance of land, that such party had signed, sealed and delivered the same, as’his voluntary deed. Any such officer was authorised, also, by the same section, to take the proof of the execution of any such deed of one or more subscribing witnesses to it

It was further enacted, that if a certificate of such acknowledgment or proof shall be written upon such deed, and signed by the officer before whom the acknowledgment was made, or the proof was taken, then, every such deed, so acknowledged, or proved and certified, “ shall be received in evidence, in any Court of the territory, as if the same were then and there produced and proved.”

If a certificate of the proper officer of the grantor’s acknowledgment, be not as full and conclusive proof of the execution of the deed as two attesting witnesses could make, it is not evidence from which a grantee can receive any benefit; if he could not prove that two witnesses attested the execution, the proof of the grantor’s acknowledgment of the same fact would be without any effect. The acknowledgment authorised by the statute, is of the execution of the deed, and the execution includes every thing necessary to make the deed complete. A deed without witnesses, but acknowledged and certified according to the act of eighteen hundred and three, is as valid as it would be with any number.— By the seventh section of that statute, it was enacted, that any deed of land made after the passage of the act shall be void against a subsequent bona fide purchaser or mortgagee, for a valuable consideration, not having notice thereof, unless such deed shall be acknowledged, or proved and certified, and lodged in twelve months after the time of signing, sealing, and delivering the same, with the clerk of the proper County Court, to be recorded; provided, that such deed shall, as between the parties and their heirs, be valid and operative.^* This section discloses clearly ; . * , -it . Í the intention of the Legislature, that a deed made after the enactment of the statute, should be as perfect without, as with an attesting witness, — if without a witness it be acknowledged by the grantor, certified and delivered within the time limited, to the clerk of the County Court of the proper county, to be recorded, it is valid, not against the grantor and his heirs only, but against any subsequent purchaser from him. If no such acknowledgment be made, the deed, if its execution can be proved according to the Common Law, is binding upon the grantor and his heirs.— Statutes enacted since the one of eighteen hundred and three, authorise other officers than those which hare been mentioned, to take and certify acknowledgments of deeds. The enactment in the statute of eighteen hundred and three, of what proof should be required after its passage, of the execution of a deed, is inconsistent with the ordinance; The statute waSj therefore, we think, a repeal, by implication, of the part of the ordinance, upon which the plaintiff in er-rorhas relied.^*

After the execution of the deed of trust, Chandler" ' mortgaged the same premises to the plaintiff in error, who shortly afterward obtained a decree for the foreclosure of the mortgage, and the sale of the lots. At the sale, the plaintiff in error became the purchaser, and received a conveyance of them from the commissioner appointed by the Court to make the sale. The mortgage, the judicial proceedings upon it, and the deed from the commissioner to Wiswal], were offered by him as evidence on the trial of the cause, and rejected by the Circuit Court.

To sustain the exception to the opinion of the Court, against the admissibility of these deeds and proceedings, as evidence, two positions are relied upon. The first is, that as the deed of trust was not executed by the President, Directors and Company of the Bank, it conveyed no interest to Hazard, the trustee, but made him an agent of Chandler alone, with power to sell the premises. That, as his authority was not connected with any interest of his own in the premises, it was revocable,- and was revoked by the execution of the mortgage, before the power was executed. The consequences of this position, if it be well taken, would be, that the purchaser from the trustee acquired no title, and that the rejected deeds were competent testimony to show that Hazard had no authority to convey the estate' when he made the deed to his vendee. This view of a trustee’s power, is opposed by the settled doctrine on the subject, which gives to the deed the effect of vesting- the legal estate in the trustee, and neither requires the corporation or person for whose benefit the deed is made, to execute or express his assent to it. In the absence of proof to the contrary, the assent of the beneficiary is presumed.^* J

The other ground relied upon to show the competency of the rejected deeds as evidence, is, that the fact could have been proved by them, that the plaintiff in error was in the adverse possession of the premises, when the trustee sold and conveyed them, and that, therefore, the deed of the trustee was void.

It does not appear from the record, that-there was any stipulation in the deed of trust'to Hazard, that Chandler should retain the possession of the lots until the trustee sold them, or that Wiswall had entered upon the premises before they were conveyed by Hazard. But, the principle upon which the last objection to the deed of Hazard to the defendants in error, is founded, does not, in the opinion of the Court, apply to a sale made by a trustee under a deed creating the trust, at a time, when the grantor in the deed of trust was in the possession of the premises, which were conveyed to the trustee. A sale by a trustee, in such a case, cannot be productive of the mischief, which the principle is relied upon to. pretent; The application of the principle to such a sale would enable a grantor in a deed of trust who was left in the possession of the premises, to defeat his own conveyance founded upon a valuable and adequate consideration, by conveying the same estate to another person,- and putting him in possession with a color of title. Authority, as well as what appears to’ us to be reason,- exempts such a sale from the opera-. 'A * tion of the principle.^*

Wiswall acquired by his purchase under the decree for the foreclosure of his mortgage, the interest only that Chandler had, and which was subject to the' deed of trust. The decree made in a suit, to which Hazard and the Bank were no parties, could not enlarge the interest of Chandler, change the charactei of his estate, or enable Wiswall to acquire more than Chandler had to convey when he executed the mortgage. The sale of the trustee ascertained that it required the whole estate to pay the debt, for the discharge of which the trust was created, and that there was no kind of interest left undisposed of, to' which the claim of the plaintiff in error could attach.

- It was proved upon the trial of the cause, that for the debt of the Bank, which was five thousand dollars, there was an additional security in a mortgage on other property of Chandler.- That three thousand seven hundred and fifty dollars of the debt were paid by a sale of the mortgaged property, and that the three lots were sold together by the trustee for one thousand and fifty dollars. As a part of the debt had been paid before the lots were sold by the trustee, it has been contended for the plaintiff in error, that he had the right before Hassard executed the trust, to tender the balance of the debt due to the Bank, and relieve the premises from the incumbrance of the trust That if he tendered the balancé, he was not entitled to any benefit from his act without giving the deeds which he offered in evidence, to show that he had the right to do, what it is supposed he may have done. It does not appear that the plain-tiff in error offered proof of his having tendered the1 balance of the debt to the Bank, and if he intended to show that his mortgage, the judicial proceedings upon it, and the deed from the commissioner to him, were competent evidence, by proof that he had tendered the balance of the debt before the trustee sold the lots, he should have offered the proof of the tender in connexion with the proceedings and his deeds. If the competency of any matter as testimony, depends upon some fact, of which there is no proof, there is no error in rejecting such matter, when presented alone, and without an offer to prove what might make it competent evidence.

It appears also from the record, that the trustee advertised the three lots for sale, and did not state in his advertisement the amount of the debt secured, or that any part of it had been paid. That he offered and sold all the lots together, for the sum which has been mentioned, and there is no proof that the sum was not the full value of the lots. No credit, for the previous payment of a part of the debt, was indorsed either upon the deed of trust or the mortgage. Upon the evidence which has been mentioned, the plaintiff in error moved the Circuit Court to instruct the jury, that if the advertisement did not show what sum of money was due by Chandler-to the Bank, the sale was not a fair one, and the defendants in error were not entitled to recover. The Court refused to give the instruction, and instructed the jury, that the circumstances did not make the sale an unfair one. — ■ We are of opinion the instruction was properly refused. Proof of the omission in the advertisement, of the amount of the debt, did not make the sale void. When property is advertised to be sold absolutely— persons who desire to purchase it look to the advertisement, not for the amount of the debt to be paid from the proceeds of the sale, but for a description of the property, that they may ascertain its value, and, determine whether or not they will prepare to become bidders at the sale. As there was no proof that the lots were sold for less than their value, and none to show any thing improper in the sale, there was no error in the instruction of the Court, that there was nothing proved, which shewed that the sale was an unfair one. When there is testimony which has any legal effect in a cause, it would be error for the Court to determine the weight of it, or the fact that it did or did not ascertain. But whether evidence tends to prove any thing pertinent to the issue, is a question for the Court, and if there be no testimony that ought to have any legal effect, it is not error for the Court to inform the jury that it does not prove what it does not tend to prove.

The judgment is affirmed.

GOLDTHWAITE, J. not sitting.

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* Aik. Dig-88,91, n. I.

* ?4£bJe»™ — 1 picki 45 — 10 ib. 39-iPayn. W.

* n wheat 73 97_2 stéwart98 103'

* ^lAik' ixéD 16 — 5 Am. SEw!3’