Chamberlain v. Spargur

Out of the complicated and somewhat peculiar transactions spread before us in this case, a single distinct and definite question is raised, and the only one necessary to the disposition of this appeal. The plaintiff claims under a deed from Mrs. Woodward, never in fact acknowledged by her, or attested by a subscribing witness. The defendants hold under subsequent deeds and leases, properly executed and acknowledged. Whether these shall prevail or yield to the prior and unattested conveyance is the question which has been argued, and which depends for its solution upon the statute which dictates- the consequences of an omission by the grantor to attest or acknowledge his deed. That statute is in these words, viz.: “ Every grant in fee of a freehold estate shall be subscribed and sealed by the person from whom the estate or interest conveyed is intended to pass, or his lawful agent; if not duly acknowledged previous to its delivery * * * its execution and delivery shall be so attested by at least one witness, or if not so attested it shall not take effect as against a purchaser or incumbrancer until so acknowledged. ” (§ 137, art. 4, title 2, chap. 1, part 2, E. S.) The respondents construe the word “ purchaser ” literally and generally, while the appellant insists, with much of argument and illustration, that it means, and must be taken to mean, “purchasers in good faith and for value.” Such, he contends, the defendants were not, and, therefore, unprotected by the mandate of the statute. It is said that the precise question has never been decided, and remains open to our judgment, untrammeled by direct authority. That appears to be substantially true. The cases in the Supreme Court did not necessarily decide it. (Goodyear v. Vosburg, 57 Barb. 243 ; Roggen v. Avery, 63 Barb. 65 ; Genter v. Morrison, 31 id. 155 ; Voorhees v. Presbyterian Church of Amsterdam, 17 id. 108 .) If in the first of these cases the question was really involved, since the referee found that the subsequent purchaser took his conveyance with knowledge that the grantees in the unattested deed claimed to own the timber, the title to which was in dispute, it is nevertheless evident that the true construction of the statute was not

It must be, and is, frankly conceded, that the language and literal reading of the act favors the construction of the defendants. But we are warned on the one. side that the strict letter of the law is not to master its obvious spirit and intent; and on the other that we are judges and not legislators, and must not assume to make exceptions or insert qualifications, however justice may seem to require it.' Both warnings are just and sanctioned by authority, and must have their influence upon our judgment.

Is the true spirit and intent of the statute so at war with its letter as to compel a construction which interpolates words hot in the act itself 2 And what is, in truth, that spirit and intent 2 If it is merely the protection of subsequent purchasers, and a desire to secure justice among them, there is great force in the argument that he only should he shielded who deserves protection, and the purchaser who holds an attested deed, having paid nothing and parted with nothing, ought not to be preferred to the prior purchaser whose deed is unattested, but who has paid for a title. But we do not think the statute was framed solely for the protection or the benefit of the grantees. ■ It had also and equally in view the safety and protection of grantors. The greater dignity of the freehold, in the eye of the ancient law, is assigned by Kent as the reason for requiring more of form and solemnity in the conveyance of land than of personal property. (Kent’s Comm. *450.) The old authorities fully warrant the explanation. The deed was so called because it was the most solemn and authentic act that a man could perform in the disposal of his property. It was required • to be

It is true that the unattested deed is good as against the grantor ( Wood v. Chapin, 3 Kern. 509), and so may fairly be called, in some partial or modified sense, a grant. But the revisers certainly did not mean a contradiction. They could not have intended to say in one section that an unattested deed should have no effect as against purchasers, and in another section, under the name of a “grant, ” declare that it should be conclusive against them except under special circumstances. This inconsistency the plaintiff would solve by adding qualifying words to the term ‘ purchaser.” We do not think the inconsistency exists. By the word “ grant, ” in section 144, was plainly meant a p'erfect and duly executed grant, and not an imperfect and unattested one. Thus understood the two sections do not clash, and are not inconsistent. They 'complete and execute one entire and systematic purpose. The imperfect and unattested deéd has no effect against any purchaser or incumbrancer; but the perfect grant, duly acknowledged or attested so as to be fully operative as such, is conclusive against subsequent purchasers, save those who have bought in

This construction answers the further claim that because Mrs. Woodward’s unattested deed contained covenants of warranty it operated as an estoppel. Such a ruling would at once nullify the force of the statute, and compel us to hold that while, as against purchasers, there was no^ effective deed,- its covenants were still operative as against such purchasers; that, though the grant is annulled, its incidental covenants can remain. We have not overlooked the suggestions as to possible evils or inconveniences attending the construction we have thus declared. They do not seem to us either necessary or serious.

The judgment should be affirmed, with costs.

All concur, except Miller, J., not voting.

Judgment affirmed.