Lock v. Jayne , 39 Miss. 157 ( 1860 )

Handy, J.,

delivered the opinion of the court:

This bill was filed by the appellants, claiming title in virtue of a deed of assignment purporting to be executed by Reuben Williams, one of the heirs and distributees of David Williams, deceased, conveying to the appellants all his interest in the estate, real and personal, of David Williams, and in virtue of a power of attorney purporting to be made to them by said distributee ; and seeking to recover the interest so conveyed to the appellants, from the representatives of the estate in this State, the deed of assignment and power of attorney purporting to have been executed in the State of Texas, where Reuben Williams had his domicile, and died.

The defendants in their .answer denied the execution of the instruments by Reuben Williams, under oath; and, as evidence of their due execution, the appellants rely, in the first place, upon the fact that they were duly acknowledged before a competent officer in the State of Texas, as appears by the certificates of such officer attached to or written upon them, which certificates are proved to be genuine. These certificates of acknowledgment would have entitled the instruments to record according to the laws of Texas, but the instruments were not placed upon record there. And the first question which arises is, whether the original instruments so acknowledged, but not recorded, are admissible in evidence when their execution is denied in pleading under oath, without further proof of their execution.

The affirmative of this proposition is insisted on, in behalf of the appellants, on the authority of Art. 228, Rev. Code, 516, which provides that “ copies of the record of any deed, bond, or other writing, required or permitted to be recorded by the laws of this State, or of any other State or Territory of the United States, &c., shall, when certified by the clerk in whose office the record is kept, under his seal of office, be received in evidence in all courts of this State, without accounting for the absence of the original; but if the execution 0f gUch deed, bond, or other writing shall be disputed by the opposite party on oath, the original shall be produced, or its absence accounted for, before such copy shall be read. And such original, when acknowledged or- proved, according to the laws of the State or Territory where executed/so as to be entitled to be recorded there, shall be evidence in this State without further proof of its execution.”

It is insisted that, by the latter clause of this statute, an original deed acknowledged or proved according to the laws of the State where executed, so as to be entitled to be recorded there, shall be evidence here without further proof of its execution, whether recorded there or not. But we do not think that a careful examination of the statute will justify this construction.

The- first clause of it applies to copies of the record of deeds, &c., recorded according to the laws of the «State where executed, and makes them evidence generally, dispensing with the production of the originals. The second clause applies to cases where the originals of such deeds shall be produced, to wit, where the execution is denied on oath; and in such case requiring that the original shall be produced. It then provides in what case such originals shall be evidence, where the execution is denied on oath, without further proof of execution, to wit, when such originals are acknowledged or proved according to the laws of the State Where executed, so as to be entitled to be recorded there. Throughout the second clause reference is made to the first clause, which speaks of recorded deeds alone. On the denial of the execution of such deed — that is, the recorded deed previously mentioned — it requires that the original shall be produced— that is, the original of such deed, such recorded deed; and it provides that such original — that is, the original recorded deed previously spoken of — when acknowledged or proved, &c., so as to be entitled to be recorded when executed, shall be evidence. It does not allow every original deed which is acknowledged or proved and recorded, to be read in evidence, without further proof of execution; for it may be acknowledged or proved according to the laws of the State, and yet not be such instrument as is entitled or authorized to be recorded by the laws of the State. But it must be an original of a recorded deed, which is acknowledged or proved according to the laws of the State, so as to be entitled to be recorded there.

The object of statutes authorizing a deed to'be acknowledged or proved is, not to establish the instrument as the deed of the party for all purposes, but to entitle it to be recorded, If that object is carried out by having it recorded, the deed is thereby so solemnized as to make the record original evidence without further proof of its execution, upon an issue of non est factum. But if not recorded, it is not clothed with that solemnity, the purpose of the acknowledgment not having been consummated; and it stands, as a matter in pais, and must be proved according to the general rules of evidence.

Thus viewing the question, we think that the certificates of acknowledgment upon the instruments in question were not sufficient evidence of their execution upon the issue made by the pleadings in this case.

The next qrrestion is, whether the execution of these instruments is sufficiently proved by other evidence shown in the record.

There are no subscribing witnesses to them, and there is no proof of the signature of Reuben Williams, and no sufficient proof of the fact of his signing and delivering the instruments. The testimony of the officer who purports to have taken the acknowledgments is not positive as to the fact of execution, showing that he has no recollection of the fact of execution and acknowledgment, and that he infers that the execution was duly acknowledged by the grantor from the mere fact that this witness’s signature to the acknowledgments is genuine. These certificates do not state that he knew Reuben Williams, the grantor, and although the matter of acknowledgment was of recent occurrence, he had no recollection of the facts attending it. He does not even state that he knew Williams, but only that he saw him once, and that was about the 15th October, 1854, the time when the certificates bear date. It appears to be strange that no proof was adduced of the signature of Reuben Williams, a matter which must be presumed to be readily capable of proof, if the signature was genuine. The only testimony tending to show that the deed was executed by Williams is that of Worthington; but that is not direct to the point of execution, but tends to show acts of recognition from which execution might be inferred. This witness does not speak of the deed and power of attorney, and does not attempt to show that Williams spoke of them and acknowledged his execution of them.

This evidence appears clearly to be insufficient to prove the execution of the instruments upon an issue of non est factum. And in addition to this, there is evidence strongly tending to create the suspicion of fraud in obtaining the instruments.

Upon the whole case, we think that the decree is correct, and it is affirmed.

A reargument was asked for, but refused.