Jackson ex dem. Potter v. Hubbard — 1 Cai. 82

Majority

p. 121

Jackson, ex dem. Potter and others, against Hubbard.

Headnote

Under the act of the 8th January, 1194, for registering deeds of military lands, &c., a prior deed not deposited in the clerk’s office is void against a subsequent purchaser, for a bona, fide consideration, whose deed is deposited.

Ejectment to recover lot Ho. 49, in Tully, in the county of Onondaga.

From the case made, and submitted to the court, without argument, it appeared that the lessors of the plaintiff and the defendant derived title from the same patentee; and the only question was, whether, under the act of the 8th of January, 1794, for registering deeds and conveyances relating to military bounty lands, the deed, under which the defendant held, though subsequent in date to that by which the lessors of the plaintiff claimed, but first deposited with the clerk in Albany, should be preferred to that of the lessors, which had, before the passing of the act, been recorded in the Secretary’s office, but was not deposited with the clerk in Albany' till after the deposition with him, of that by virtue of which the defendant was in possession.

Both parties are fair purchasers [*83] of a lot of military bounty land. The deed under ' which the lessor of the plaintiff claims is prior in date, and was on record in the secretary’s office previous to the passing of the act requiring all such deeds by a certain day to be deposited with the clerk of the county of Albany, and declaring such as should not be deposited, void as to subsequent purchasers, for valuable consideration, who should so deposit their deeds. The defendant’s deed was so deposited. The deed from the first purchaser to the lessor of the plaintiff, together with the power of attorney under which it was executed, was also duly deposited, agreeable

p. 122

to the act; and the question which the parties have made is, whether such recording in the secretary’s office is [*84] to *be considered as notice, and thus satisfying the principal object of the act. We think it does not. It was not the design of the legislature to direct a mere registry of such deeds for the purpose of enabling the purchasers to examine a fair deduction of title. But the object of the act declared to be, is, the prevention of frauds, by facilitating the means of discovering forgeries. Mow the examination of a mere record' could not conduce to this end. Hothing short of an inspection of the original would, in many cases, answer the purpose; particularly where the forgery consisted in antedating the deed; and this species of forgery, we may infer from the act, which particularly alludes to it, was probably the most frequent.

We are of opinion, that

Judgment be for the defendant.^[1]

(a) (a) A title under a deed of 1795, not proved and recordé l till 1807, was defeated by a deed of 1804, but duly recorded in 1806. Jackson v. Given and others, 8 Johns, Rep. 137 . As to ouster and adverse possession as between tenants in common, see Butler v. Phelps, 17 Wend. 642 ; Jackson v. Tibbits, 9 Cow. 241 ; Jackson v. Whitteck, 6 Cow. 632 . See also, as to presumption of grants, Jackson v. Miller, 6 Wend 228 ; Moore v. Jackson, 4 Wend. 58 ; Jackson v. Russell, 4 Wend. 453 ; Jackson v. Vincent, 4 Wend. 633 ; Doe v. Walter, 3 Wend. 109 Schamber v. Jackson, 2 Wend, 13 ; Jackson v. Mancius, 2 Wend. 357 .