Davis v. Monroe

Opinion by

Me. Justice Mitchell,

The offer of defendant at the trial was not to show that he had acquired title by adverse possession as against bis own deed to Cobb. That would have required proof of acts clearly hostile to Cobb’s title, so as to convey notice to the latter. No sncli acts are claimed here. But the offer was to show that as to the “flat-iron tract,” although it was included in the deed, yet by reason of the fraud the title never passed to Cobh, but remained in the defendant as it had been before. After the deed the appellant, grantor, remained in possession of the land. It is conceded that as to so much as was properly included in the deed, he was thereafter in possession as trustee for his grantee Cobb, and cannot now dispute the latter’s title. But as to any land not intended to be granted, and only included in the deed through fraud, defendant continued to hold by his former title, and the statute of limitations did not run against him until discovery or such notice as put him upon inquiry.

The learned judge below was of opinion that the recording of the deed was constructive notice to appellant of the extent of Cobb’s claim under it, and that after twenty-one years appellant could not be heard to dispute his grant. In this he gave too broad an effect to the notice implied by the recording acts. The record is notice only to those who are bound to- search for it, including parties subsequently dealing with the land or concerned with its title: Maul v. Rider, 59 Pa. 167. But in general, antecedent rights are not affected. The recording of a deed is the act of the grantee and in his interest. He may or may not put it on record for years or at all. The grantor is under no obligation to see to its recording or to examine the terms thereof. Consequently it is no notice to him.

Taking the facts to be as shown in the offer, which for present purposes we are bound to do, the “flat-iron tract ” was not intended to be conveyed, and was included in the deed only by an active fraud. Appellant therefore never parted with his title to that tract, but remained in possession in his own right as before. If this ejectment had been brought the next day after the delivery of the deed he could have made this defense, and as nothing has been shown to indicate knowledge of the fraud or notice to put him upon inquiry, -he may make it now. The offer therefore should have been admitted.

It is objected further by the appellees that on public policy, the justice of the peace cannot be permitted now to impeach his certificate of acknowledgment. How far such a rule may be invoked for the protection of subsequent purchasers or parties dealing with the land on the credit of his official act, we are not now called upon to consider, but it cannot be applied between the original parties or their privies. That a justice of the peace knowing of a fraud took an acknowledgment of a deed by which the fraud was to be carried out, and said nothing at the time to the parties defrauded, is a circumstance that may affect his credibility with the jury, but does not make him an incompetent witness in a contest betweén the original parties. ■

Judgment reversed and venire de novo awarded.