Hutton v. Webber — 60 N.Y. Super. Ct. 247

Majority

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GEORGE W. HUTTON, et al., Respondents v. CAROLINE M. S. WEBBER, Appellant.

Headnote

Action to compel the specific performance of a contract whereby defendant agreed to purchase certain real estate.

In this case there appears to have heen only one deed in the chain of title to which objection was made. This was a deed from William Wolf and wife to August Konow. The loss of the original deed was proved, and the record of the same was proved, and from this the deed appears to be correct in form and substance, but in the record of the acknowledgment the words “to me known" to be the individuals described in and who executed the instrument, do not appear, and if in the original deed are omitted in the record. The notary who took the original acknowledgment, testified that he knew the grantors personally; that he

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saw them execute the deed, knew them to be the persons described therein, and that they properly executed and acknowledged the same. The notary was also the witness to the execution of the deed.

Held, that this deed was effectual to pass title without being recorded. It was good between the parties to it, and only subsequent purchasers or incumbrancers for value and without notice, can take objection to it, and there being no such persons to make such objection in this case this deed effectually conveyed every interest the grantors had in the property to the grantees therein, therefore the title tendered was good and the defendant was properly ordered to accept it. That the defect alleged may lead to a future controversy over the title to the property, is such a Very remote and improbable contingency and is only such a slender possibility, that it is a proper case for the application of the principle upon which the court below declined to relieve the purchaser.

Before McAdam and Gildersleeve, JJ.

Decided January 11, 1882.

Appeal by defendant from a judgment of the special. term, requiring said defendant to specifically perform a contract for the purchase of certain real estate, to accept the deed, and pay $21,400 the balance of the purchase money.

Edward Grosse, attorney, and Henry Wehle of counsel, for appellant, argued:—

I. The deed from William Wolf to August Konow was not properly proven, and it was error to admit the same in evidence. The statute of this state is imperative that no acknowledgment of a conveyance shall be taken by an officer, unless he knows or has satisfactory evidence that the person making the acknowledgment is “ the individual described in and who executed such conveyance.” Rev. Stat., part 2, chap. 3, § 9. And the officer is required to endorse a certificate on the conveyance which must set forth this fact, lb., § 15. A conveyance thus acknowledged is entitled be to recorded. lb., § 16. The record of such a conveyance may be read in evidence. Ib., § 17. This statute has

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been construed by the courts of this state. The language of the statute need not be followed, but a substantial compliance is necessary. Trustees of Ontario Female Seminary, 19 Hun, 62 . A deed cannot be read in evidence from the record unless that shows that it was acknowledged as required by law. Morris v. Keyes, 1 Hill, 540 ; Clark v. Nuxon, 5 Ib., 36. “ An assignment for the benefit of creditors is not valid, if not duly acknowledged and recorded. If it be not duly acknowledged, the recording goes for nothing; it is not recorded. In determining the validity of the recording of a conveyance, it is the certificate of the officer who takes the acknowledgment that must be considered, for unless the acknowledgment be certified in the manner prescribed by the statute, the instrument is not entitled to be recorded. The manner of certifying an acknowledgment is for the officer who takes it to endorse upon the conveyance a certificate of the acknowledgment, wherein he shall set forth the matters required by the statute to be done, known or proven on such acknowledgment. The officer must know or have satisfactory evidence that the person making the acknowledgment is the individual described in and who executed such conveyance. According to the 35th section of the statute such knowledge shall be set forth in the certificate. There is an utter absence of certification by the officer of matter required to be certified. It may be a clerical error merely, but the matters are not in the certificate, and without them the certificate is not in the manner required by the statute, and the conveyance was not entitled to be recorded.” Smith v. Boyd, 10 Daly, 149 . This decision was reversed in 101 N. Y., 472 , because it was held that it could be gathered from the context of the certificate that the statute has been complied with, but the rule as to the necessity of compliance with the statute, as laid down by the court below, was not questioned . A certificate of acknowledgment of

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a deed, made after the adoption of that portion of the Revised Statutes relating to proof and recording of deeds, which simply describes the persons acknowledging as ‘ grantors of the within indenture,’ without stating that they were known to the officer to be the same persons who are described in and who executed it, as prescribed by said statute, is insufficient to entitle the deed to be recorded. Fryer v. Rockefeller, 63 N. Y., 268 ; Cabell v. Grubb, 43 Miss., 353 . Irving v. Campbell, 121 N. Y., 353 , was an action for specific performance of contract. As evidence of the conveyance, plaintiff produced a certified copy of the record of a deed dated in 1871, about sixteen years before the time fixed for the performance of the contract, purporting to have been executed by L. and acknowledged and proved by T., a subscribing witness. The certificate of acknowledgment did not state the place of residence of the subscribing witness. It was proved by parol that the deed was actually made and delivered, but that it had been lost. Held, that the acknowledgment did not authorize the deed to be recorded or the certified copy to he read in evidence, and that although it appeared that the subscribing witness was one whose person and place of residence were well known, the title tendered was not such as defendant was bound to accept. In the same case the court says: “ It is not necessary that this certificate should be expressed in the exact language of the statute, or according to any precise form, but in respect to its substantial provisions it is indispensable that they should in some way be contained in it and convey to all persons knowledge of the required information. We find no authorities holding that a material provision of the statute, expressly required to be stated, can be wholly disregarded and a deed thus acknowledged lawfully admitted to record. That a deed improperly recorded cannot he read in evidence has been determined in num

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erous cases.” The same subject has been adjudicated in the courts of other states. The rule is general that an instrument cannot be read in evidence from the record, if it was recorded without compliance with the statute as to acknowledgment. See Fox v. Lambson, 3 Hal., 281; Tully v. Davis, 30 Ill., 103 .

II. The oral testimony does not render the conveyance admissible. The plaintiff, to supply the defect in the certificate, proved that William Wolf was known to the notary as the grantor on the conveyance, but this fact is immaterial. To make even the original conveyance admissible in evidence the certificate would have to state that the person who acknowledged the conveyance was known to the notary as the grantor. Rev. St., part 2, chap. 3, § 16. And as the witness did not testify that the certificate contained this statement his testimony was nugatory. Hayoau v. Westcost, 11 Com., 129.

III. Plaintiff’s title was defective. The record of the deed without a proper acknowledgment is not constructive notice to the world, and any person who has acquired an interest in the property from William Wolf, without knowledge of the sale from Wolf to Konow, could assert against the holder of the property. William Wolf had it in his power to incumber the title by conveyances to innocent parties, until plaintiff’s rights have ripened into a good title through adverse possession. Not having been made a party to the foreclosure suit, his equity of redemption—as far as innocent purchasers are concerned —would still exist.

IV. The title was one which no prudent man would accept and which the court should require defendant to accept. The purchaser is entitled to a marketable title. A title open to a reasonable doubt is not a marketable title. The court cannot make it such by passing upon an objection depending upon a disputed question of fact, or a doubtful question of law, in the absence of the party in whom the outstanding right was vested. He

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would not be bound by the adjudication, and could raise the question in a new proceeding. The cloud upon the purchaser’s title would remain, although the court undertook to decide the fact or the law, whatever moral weight the decision might have. Fleming v. Burnham, 100 N. Y., 1 . But is a purchaser bound to take a title which lie can defend only by a resort to parol evidence which time, death or some other casualty may place beyond his reach ? * * * It is familiar law that an agreement to make a good title is always implied in executory contracts for the sale of lands and that a purchaser is never bound to accept a defective title unless he expressly stipulates to take such title, knowing its defects. His right to an indisputable title, free from all defects and incumbrances, does not depend upon the agreement between the parties, but is given by the law. * * * Within the meaning of this rule, at least, according to the decisions in this state, a good title means not merely a title valid in fact, but a marketable title, which can again be sold to a reasonable purchaser, or mortgaged to a person of reasonable prudence as security for the loan of money. A purchaser will not generally be compelled to take a title which can be cured only by a resort to parol evidence. Moore v. Williams, 115 N. Y., 586 ; Methodist Episcopal Church v. Thompson, 108 Ib., 618. “ A marketable title is one that is free from reasonable doubt. There is reasonable doubt when there is uncertainty as to some fact appearing in the course of its deduction, and the doubt must be such as affects the value of the land or will interfere with its sale. A purchaser is not compelled to take property, the possession of which he may be compelled to defend by litigation. He should have a title that will enable him to hold his land in peace, and, if he wishes to sell it, be reasonably sure that no flaw or doubt will arise to disturb the market value.” Vought v. Williams, 120 N. Y., 253 ; Moore v. Appleby, 108 Ib., 241.

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Thomas Nelson, attorney and of counsel, for respondents, argued:—

I. By the deed of 31st August, 1870, made by William Wolf and wife to August Konow, the title of the premises passed to Konow. The certificate of acknowledgment was not necessary to the completeness of the deed for the purposes of passing the title. The deed was subscribed and sealed by William Wolf, and its execution and delivery was attested by August Hassey, as a subscribing witness. This made it a good deed, and passed the title, 1 R. S., p. 689, Edmond ed., § 137; Wood v. Chopin, 13 N. Y., 514 . The proofs show a good execution and acknowledgment. The objection of the defendant proceeds upon the theory that a defective certificate of acknowledgment invalidates the title. As a proposition of law this is untenable.

II. The case does not involve the question whether or no the deed from Wolf to Konow was entitled to he recorded under the recording acts, but solely whether or no it was sufficient to pass the title of Wolf. On the principle that it must be intended that every officer has done his duty, it should be presumed that the notary put in his certificate of acknowledgment the proper-words, and that the register found them there, so that he was justified in recording the instrument. And that if the record does not show the words, the court will rather infer that it was a clerical omission of the copyist in the recording office than that both the notary and the register have failed in their respective duties. But it is not necessary to consider that question. The sole question involved is that of title alone, and that depends upon the question, whether or no by the deed made by Wolf and wife to Konow, all the interest in the property that Wm. Wolf had passed to Konow. It is claimed by the plaintiffs that whether recorded or not, by that deed Konow acquired all of Wolf’s interest. It must be borne in mind that in every change of title the pur

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chaser took possession, and the premises were held in consonance with the deeds of conveyance made. No claim of any interest in the property is made by Wolf, or any one under him, nor by any other person as against the plaintiffs.

III. The question whether or no the record, standing alone, would be sufficient evidence of the conveyance by the Wolfs to Konow does not arise. The evidence shows that the deed itself is lost, but it was put on record by the subscribing witness. That record, in connection with the proof that the deed is lost, and the other testimony, was 'used to show the contents of the lost deed, and for that purpose it cannot be doubted it was properly received.

IY. The case shows no incumbrance on the property, no defect of title, no adverse claim in any way. The defence in this action proceeds upon the theory that, as matter of law, before a purchaser is bound to take real estate he has contracted to purchase, all the deeds in the chain of the title thereof must either be, or be capable of being, properly recorded ; and that if to establish his title the purchaser will have to resort to parol evidence to supply a defect appearing on the record in the certificate of acknowledgment of a deed given years back; and which deed is one of the links in a chain of title, to which title no hostile claim is or ever has been made, then he has a right to reject such a title. It is insisted that such is not the doctrine in a case where the facts exist as they do here. Parol evidence is frequently necessary to show title in persons who acquire by descent, and in other cases that need not be specified.

V. The trial of the action took place November 6,1890, more than twenty years after Wolf’s deed to Konow; and thereby title had been acquired by adverse possession. Any harm from the alleged defect, at best, was a remote and improbable contingency. In such a case court compels purchaser to complete. Cambrelling v. Parton, 125 N. Y., 616 .

The sole objection to the title arises upon the deed from William Wolf and wife to August Konow, executed by the grantors September 1, 1870. The deed is correct in every respect, excepting that in the record thereof, the words in the acknowledgme nt to me known ” to be the individuals described in and who executed the instrument, are omitted. The loss of the original deed was proved, and the notary testified that he knew the grantors personally, that he saw them execute the deed, knew them to be the persons described therein, and that they properly executed and acknowledged the same. The deed was witnessed by the notary, and avrs effectual to pass title Avithout being acknowledged. 1 Edm. R. S. p., 689, § 137; Wood v. Chapin, 13 N. Y., 509 . Such a deed is good between the parties to it, and only subsequent purchasers or incumbrancers, for value and without notice, can take objection to it. There are no such persons to make objection here, and the deed effectually conveyed every interest the grantors had in the property. It follows, therefore, that the title tendered Avas good and the defendant properly ordered to take. The deed was executed and delivered more than twenty years ago, and the grantee and those claiming under him have been in undisturbed possession of the property ever since. That the defect alleged may lead to controversy is such a very remote and improbable contingency, and is such a slender possibility only, that it is a proper case for the application of the principle upon which the court declined to relieve the purchaser. Cambrelling v. Barton, 125 N. Y., 616 .

In Moser, Exr., v. Cochrane, 107 N. Y., 41 , citing Schermerhorn v. Niblo, 2 Bosw., 161 , the court of appeals said: “ As the law does not regard trifles, the bare possibility that the title may be affected by the existing causes which may subsequently be developed, when the highest evidence of which the nature of the

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case admits, amounting’ to a moral certainty, is given, that no such cause exists, will not be regarded as sufficient ground for declining to compel a purchaser to perform his contract.”

In Hellreigel v. Manning, 97 N. Y., 56 , it was held that nothing but a reasonable doubt will excuse the vendee from taking title, and that defects in the record title may be cured or removed by parol evidence, and the same case also holds that there is no inflexible ride that a vendor must furnish a perfect record or proper title. The defect is not such as renders the land unmarketable, and the court was right in directing a specific performance of the contract. Judgment affirmed, with costs.

Gildersleeve, J., concurred.