Dinkins v. Moore , 17 Ga. 62 ( 1855 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Was the copy deed properly rejected ? The answer to this question depends upon the fact, of whether or not this deed was legally recorded.

Under the Act authorizing this paper to go to registry, it could only be done in one of two ways, viz: either proof of its execution by one of the subscribing witnesses, or the official attestation of a magistrate. This instrument was admitted to record upon the latter mode. The grantor concluded the deed in the usual form — “ In testimony whereof, I have hereunto se( my hand and seal,” &c. adding, “and delivered the property by the symbolic tradition of a pen-knife.”

The attestation is in this form—

“ In the presence of

THEODORE GUERRY, THOS. BIVINS, J. P.”

It is stated, in the argument, that the Circuit Court held the registry void, on the authority of Rushin vs. Shields & Ball, (11 Ga. R. 636.) The deed, in that case, was recorded upon the affidavit of one of the subscribing witnesses, who swore “ that he saw the grantor sign and seal the deed, and for the purposes therein named,” &c. He failed to depose that he saw the deed delivered; and for that reason, this Court decided that the proof of the execution was insufficient.

To make the cases parallel, the form of attestation in the deed before us, should have been signed and sealed in our presence, or in the presence of, &c. The inference would then have been, that the subscribing witnesses did not see the deed delivered. But the difference between the case supposed and the one at bar is, that in the latter there is no form of words in the clause of attestation. And the point is, what is the legal import of a general attestation of this sort ? And it is an inquiry of vast practical importance, for it will be found that a large portion of the conveyances in this State, are in this form.

Our opinion is, that under such an attestation clause, if neither of the witnesses be an officer,, any one of them may prove its execution by making the usual oath. And that if one of them be a magistrate, the officer appointed by the law to perform this duty, the conclusion of law is, that he saw the instrument legally executed; that is, signed, sealed and delivered. And so we rule in this case. (