Thomas v. Stuart's Ex'or ( 1895 )

Harrison, J.,

delivered the opinion of the court.

The appellant, Sarah P. Thomas, united with her husband on the 12th day of March, 1873, in a deed conveying to William Alexander Stuart a tract of land lying in the county of Bussell, containing 319 acres. The grantee and those claiming under him, have owned and possessed the land continuously since that time.

On the first day of June, 1890, appellant filed her bill in the Circuit Court of Bussell county, setting forth the death of her husband, and claiming that she was the owner in fee-simple of 175 acres of the said 319-acre tract of land, and that she was entitled to dower rights in the remainder of the said tract; that the deed to Stuart did not convey her interest in the land, because at the time it purported to have been executed and acknowledged, appellant was a married woman, and the certificate of her acknowledgment did not state that she “did not wish to retract itP

Without mentioning the previous pleadings, the points of objection thereto being without merit, it is sufficient to say that the original deed, as executed by the appellant, was produced by W. A. Stuart, her grantee, and one of the defendants to her suit. The original deed, which had been withdrawn from the clerk’s office soon after its recordation, when produced, disclosed the fact that its execution and acknowledgment by appellant, had been in due form of law; the certificate of acknowledgment being before two justices of the peace, and in the words of the statute. It was thus made apparent that the clerk, in transcribing said deed upon the records of his office, had inadvertently omitted from his record of the acknowledgment, the words she u did not wish to retract it. ’ ’ The original deed was again presented to the clerk of Russell county, and on the 19th day of December, 1891, duly admitted and correctly recorded in said office. These are the essential facts established by the record.

The contention of counsel for appellant is that notwithstanding the original certificate was made by the justices in due form, the same not haying been properly recorded, though delivered to the clerk for admission to record, the deed is therefore void, and no title has ever passed from the appellant; that the appellees are bound by the recordation, and cannot look to the original certificate itself, to show that the acknowledgment of appellant was taken in due form. This proposition cannot be maintained, upon reason or authority.

The grantee in this deed did all that he could do, and all that the law required him to do. He delivered the deed in proper form, duly and legally acknowledged, to the clerk of the proper office for recordation. If the original deed is properly acknowledged, and the certificate shows this, and the writing, together with said certificate annexed thereto, was delivered to the clerk to be admitted to record as to the husband as well as the wife, then her title passes, notwithstanding the fact that the clerk may have omitted to record the acknowledgment as certified by the justices.

It would be a strange and unjust doctrine that would impose upon the purchaser a total loss of his property, because the cJerk had made a mistake in transcribing the deed upon the record; and that, too, in the face of the production of the original deed, -which, shows that the copy relied on by the appellant is not in fact the true deed. Whatever loss may have been sustained by the grantee in this case, by the intervention of a subsequent innocent and bona fide purchaser, it is certain he can suffer no loss as between himself and his grantor, the appellant here. She is bound by her own deed duly acknowledged a,nd admitted for recordation. The statement of the proposition that the copy of the deed made by the clerk is entitled to higher dignity than the deed itself, is its own answer, without argument or citation of authority. This is equally true of the proposition of appellant that her interest in this land has not passed under this deed, because of the mistake of the clerk, in omitting to transcribe from the certificate of her acknowledgment the words “[she] did not wish to retraot it. ’ ’ The original deed is the contract by which the parties thereto must stand or fall. Its recordation is a mere exem plification of the true deed, intended to m ake a permanent record of the fact, and to give notice to third parties. Its recordation as between the original parties is of no consequence, except in the case of a married woman. And under the Code of 1873, ch. 117, secs. 7 and 8, whenever the deed is duly acknowledged, and delivered for recordation to the proper officer, then it is in law, treated as recorded, so far as the married woman is concerned.

Any mistakes of the clerk in transcribing the deed upon the books of his office cannot operate to reinvest the married woman with the title to that which she had duly parted with according to the terms prescribed by,the statute.

If this deed had never been transcribed upon the record book at all, up to this time, as between the parties, it would make no difference. It has, as we have seen, been properly recorded, since the discovery of the clerk’s mistake, and hence the entire interest of the appellant passed by the deed, when admitted to record the second time. But, as before stated, we are of opinion that all interest of appellant in the property passed, when the deed was first deposited, properly acknowledged, with the clerk for recordation. Its delivery to the clerk for that purpose was a compliance with the statute requiring married women’s deeds to be recorded, and the clerk’s error in transcribing the deed upon the record book did not defeat or divest the title.

There is no error in the decree complained of, and for the foregoing reasons it must be affirmed.

Affirmed.