Wise v. Postlewait , 3 W. Va. 452 ( 1869 )

Maxwell, J.

The first ground of error assigned is, that the court erred in giving each of the instructions asked for by the plaintiffs below. The facts of the case are not stated and I cannot undertake to decide .whether the court did right or wrong, but the presumption is, as-the contrary does not appear, that the court decided correctly. Shepherd vs. McQuilken, 2 W. Va. Rep., 90; Fitzhugh vs. Fitzhugh, 11 Grat., 300.

The second and third causes of error are that the five several copies of deeds mentioned in the defendant’s second and third bills of exceptions were.improperly admitted in evidence. . They all appear to be copies of deeds from the records of the county of Monongalia. It appears from the copies that each and every one of the five deeds was acknowledged in the court of Monongalia count}?, and admitted to record, or ordered to be recorded. These deeds were admitted to record under the act of December 13th, .1792. That act required a deed to be acknowledged by the party or parties who shall have sealed' and delivered it, or be proved by three witnesses to be his or her act, before the general court or the court of that district, county, city or corporation in which the land is situated. It appears that these deeds were all acknowledged before the court, but it does not affirmatively appear that they were acknowledged by the respective grantors. Is this a sufficient compliance with the statute under which the deeds were recorded to authorize the copies to be given in evidence ? A substantial compliance with the act is all that is necessary. When itis certified that the deeds were acknowledged, the only reasonable construction to be given to the terpis used is, to hold that they were acknowledged by the parties whose names are signed to them, as any- other construction would render the ac-knowledgements ineffectual. One of the acknowledge-ments, however, shows in terms that one of the deeds was acknowledged by the person whose name is signed to it. I think these five deeds were all properly admitted.

It is also claimed that there was error in admitting the deed from TIenry Barrackman and wife to William Postle-wait, mentioned in the defendant’s third bill of exceptions, for the reason that said deed was not legally acknowledged or recorded. The deed bears date on the 11th day of September, 1809, and was acknowledged by Henry Barrack-man in the circuit court of Monongalia county during the same month, and ordered to be recorded.

The deed, therefore, appears to have been properly acknowledged, but it does not appear to have been recorded.. The act of 1792 did not require a deed to be recorded to pass an estate of inheritance, but only required it to be acknowledged in the manner therein prescribed “ before the general court, or the court of that district, county, city or corporation in which the land conveyed, or some part thereof, lieth, or in the manner hereinafter directed,” &c., “and be lodged with the clerk of such court to be there recorded.”

The conveyance is for a tract of land described as being in Monongalia county, and is acknowledged by the grantor, Henry Barracknian, before the circuit court of the same connty, and ordered to be recorded. The acknowledgement and the order to record the deed are endorsed upon it by the clerk of the court, and it requires no stretch of the imagination to suppose that the deed was lodged with him to be recorded. It seems to me, therefore, that the deed was properly admitted in evidence.

' The fifth ground of error assigned is in admitting in evidence the deed mentioned in the defendant’s fourth bill of exceptions from Joseph Postlewait and others to the plaintiffs. ' This is a deed executed in the State of Ohio, by nine different persons, some of whom are married women, and properly acknowledged by all the grantors whose names are signed thereto, except Asbury Long; but at the time of the trial the deed had not been admitted to record, although there is an endorsement of the recorder of Monongalia county at the foot of the deed showing that it has since been admitted to record. How or by whom the deed was improperly withdrawn from the papers of this case does not appear. But admitting the deed to record after the trial would not help the deed if it was not proper evidence when admitted. The 17th section of chapter 176, Code of Virginia, p, 724, provides that “ every deed or power of attorney executed out of this State, the acknowledgment or proof of which is certified so that it might be admitted to record under chapter 121” of the same Code, “shall be evidence in any court in the State.”

The deed I think was properly admitted as to all the parties by whom it was acknowledged. ' Whether it had any effect as an unrecorded deed as against the defendant, is another question entirely, to be determined, if raised, after the-deed was admitted by instruction or otherwise.

The sixth ground of error is that the court erred in admitting in evidence the copy of a deed from Denune Howard and wife, to William Iiogue, mentioned in defen-fendant’s fifth bill of exceptions. This deed bears date April 15th, 1797. It has the endorsement at the foot of it, “signed, sealed and delivered in presence of the court. Attest: John Evans, Clerk. A Copy, Teste: A. L. Wade, Recorder.”

It seems to me that this is a substantial compliance with the act of 1792, requiring conveyances to be acknowledged. To sign, seal and deliver a deed must be equivalent to acknowledging it. The copy was, therefore, properly admitted to evidence.

The next error claimed is in admitting as evidence, in behalf of the plaintiffs, the deposition of Joseph Wade.

During the progress of the trial it became necessary for the plaintiffs, from the coarse of the evidence offered by the defendant, to give, if he could, rebutting evidence. After it became necessary to offer this rebutting evidence the court adjourned the jury in the case, on the 8th of February, until the next morning at nine o’clock, as appears from the record. The 8th day being Saturday the jury stood adjourned until Monday morning at nine o’clock, when the jury appeared according to its adjournment. After the adjournment of the court on Saturday, and as appears, a few minutes before five o’clock in the evening, the notice was served on the defendant to take the deposition on Monday morning, between six and eight o’clock. The deposition was accordingly taken and closed about five minutes before eight o’clock on Monday morning. The deposition' was taken by a notary public, neither the plaintiffs nor defendant being present. It appears that the defendant Wise lives about eight miles from Morgantown, and that the witness Wade lives about two and a half miles from him, and that the roads were icy and bad. It also sufficiently appears that the witness was too old and feeble in the then condition of the road to go to Morgantown as a witness.

The defendant objected to the reading of the deposition, because the notice was not reasonable,.and because it did not satisfactorily appear that the witness was unable to attend the court, but the court allowed the deposition to he read.

The jury in the ease had been adjourned to meet at nine o’clock, and the defendant had the right to be present in the court at that time. It is hardly probable, but it is possible, that he might have gone from the place of taking the deposition to the court-house after the deposition w7as closed, by the time the jury was to meet to go on with the case. The agent of the plaintiff who was carrying on the suit for them, was not present at the taking of the deposition, and this is a strong circumstance to show that the. place of taking the deposition was so far away that he could not, after it was closed, get to the court-house in time to go on with the case.

In the case of Fant vs. Miller & Mayhew, 17 Grat., 187, it was held “ that a party has a right to be personally present when depositions are taken by his adversary, and that a notice which does not afford him an opportunity of being so, is insufficient.”

In the case of Waters' heirs vs. Hornson, 4 Bibb., 87, it was held that a notice to take depositions “ which cannot be attended to by the party interested, except by the agency of others, cannot be deemed a reasonable notice.”

In the case of Unis et al. vs. Charleton’s adm’r et al., 12 Grat., 484, it was held where the defendents could not have attended at the place where the deposition was taken, and then have reached the court by the commencement of the term at which the casé was expected to be tried, the deposition was properly excluded. Upon the authority of these cases it seems to me that the deposition of Wade was improperly admitted, because the defendant could not have attended at the time and place of taking it and then have got to the court-house by the time the ease was to be proceeded with.

It does not appear either but that the same fact might have been proved by some other witness whose personal attendance might have been procured, nor did he ask the court to delay the cause to enable him to take the deposition.

The eighth ground of error assigned is in admitting as evidence, in behalf of the plaintiffs, a copy of the record in the case of unlawful entry and detainer of William Postle-wait against Henry Barrackman, mentioned in the defendant’s eighth bill of exceptions. The defendant in the unlawful detainer, Barrackman, was a witness for the defendant, Wise, in the court below, and the record of the unlawful detainer case was given in evidence to contradict the witness. The witness had not testified in respect to the fact that such record did or did not exist, or that the verdict shown in such record to have been found had or had not been rendered. The record could not be admitted or used as evidence to prove'any allegation or fact upon which the verdict of the jury shown in the record must be supposed to have been rendered. Stinchcomb vs. Marsh, 15 Grat., 202, 1 Greenl. Ev., sections 538, 539; 1 Stark. Ev., p. 196.

I think the record was, therefore, improperly admitted in evidence.

• Eor the errors in admitting in evidence the record of the unlawful detainer case, and the deposition of the witness, Wade, it seems to me the judgment complained of ought to be reversed, with costs to the plaintiff in error, the verdict of the jury set aside, and the cause remanded for a new trial to be had therein.

President. Brown concurred.

Judgment reversed. The supersedeas not having been granted within the sixty days allowed by the court below, and the plaintiffs below having been put in possession under the judgment, a writ of restitution was ordered by this court to put the defendant below again in possession.