Gragg v. Learned , 109 Mass. 167 ( 1872 )

Gray, J.

By the law of this Commonwealth, a copy from the registry of a deed not made to either party to the action, or presumed to be in the custody of either, is sufficient evidence of the execution and contents of the conveyance, without calling the subscribing witnesses or offering any other proof. Eaton v. Campbell, 7 Pick. 10. Samuels v. Borrowscale, 104 Mass. 207, 209. Stockwell v. Silloway, 105 Mass. 517. The dictum of Chief Justice Shaw in Powers v. Russell, 13 Pick. 69, 75, (upon which the demandant relies,) that this rule is founded on the “ presumption of law, arising from the common attestation of the witnesses, in their certificate, that it was signed, sealed and delivered,” is at variance with the statement of the reason of the rule by Chief Justice Shaw himself in Stetson v. Sullivan, 2 Cush. 494, 498, and by other judges before and since, which is, that our statutes allow no deed to be recorded until it has been acknowledged by the grantor, or proved by subscribing witnesses before a magistrate. Hathaway v. Spooner, 9 Pick. 23, 26. Ward v. Fuller, 15 Pick, 185,188. Thacher v. Phinney, 7 Allen, 146, 149. It was decided in Dole v. Thurlow, 12 Met. 157, in which also the opinion was delivered by Chief Justice Shaw, that it was not essential to the validity of a deed, that it should have any subscribing witnesses; and in Thacher v. Phinney, already cited, that a registry copy, offered by the demandant, of a deed to the tenant’s grantor, was sufficient evidence of the conveyance thereby made, although it disclosed the fact that the deed had no subscribing witnesses. In none of the cases in which such a copy has been admitted in evidence has it been suggested that any further proof of delivery was necessary, when it did not appear that the deed had remained in the possession of the register or had been delivered back to the grantor. It follows that in the present case the copy from the registry was rightly admitted as primd facie evidence of the delivery as well as of the execution of the deed.

Exceptions overruled.