Turner v. Stip , 1 Va. 319 ( 1794 )

The PRESIDENT.

Upon the first point, the court are of opinion, that the deed offered in evidence was neither legally proved, nor legally recorded under the act of 1776, C. 16, because it wanted the governor’s testimonial, that the persons who certified the probate were magistrates. The court below would therefore have done right in rejecting this as a recorded deed, in support of the plaintiff’s title. But since by the act of Assembly passed in the year 1748, such deeds, though not recorded, are valid between the parties, though void as to creditors and subsequent purchasers, (neither of which the defendant is stated to have been,) the actual execution of the deed was a fact which the plaintiff was at liberty to prove, as in other cases by evidence satisfactory to the jury, whether it were by one or more witnesses. As to the objection, that the witness does not appear to have been a subscribing witness, and that none other could properly be admitted, the answer is, that the act does not require the three witnesses to a deed to subscribe their names, as in the case of wills. But another sufficient answer to the objection is, that it does not appear that he was not a subscribing witness, nor that the subscribing witnesses might not have been proved to be dead. The court improperly stopped the examination, and therefore the District Court rightly reversed the judgment.

Judgment of the District Court affirmed.