Jackson v. Osborn

By the Court, Sutherland, J.

.The act concerning deeds, (1 R. L. 369,) directs, that where a deed is offered to be proved by the subscribing witness, “ such proof shall not be taken unless the officer shall know the person making such proof, or have satisfactory evidence that he is a subscribing witness to such deed, &c. and that such witness know the person who executed the same; all of which shall be inserted in the certificate of acknowledgment or proof: and in case of *558 the examination of witnesses, it shall be the duty of such offi- ■ cer to set forth in such certificate what witnesses were examined before him, and the substance of the evidence by them given” The witness in this case does not state that he knew the persons who executed the deed; he merely says that he saw the grantors sign the same, that is, they represented themselves to be the grantors; but whether the names signed by them were their true names does not appear, for the witness does not say that he knew them. In Jackson v. Gumaer, (2 Cowen, 552,) the officer certified that the grantor (who acknowledged the deed) was known to him, but did not add, that he knew him to be the person described in, cmd who executed the deed. The certificate was held sufficient in that case, principally on the ground that it had been sanctioned by general use, which amounted to a practical construction of the act. The same point also arose and was decided in Troup v. Haight, (1 Hopk. Ch. R. 267.) The argument of the attorney general in the last mentioned case, (pages 246, 7, 8,) seems to concede that the certificate could not have been sustained if the officer had omitted to state that the grantor was known to him ; that the fact of such knowledge could not be inferred from the statement that the grantor appeared and acknowledged the deed. It is evident that such omission would have been held fatal in that case, and it appears to me to be equally so in this. (6 Johns. R. 149. 2 id. 77.) The deed, therefore, ought not to have been admitted in evidence.

The evidence offered to impeach the witness to the deed was properly rejected. That he had been indicted for perjury and forgery did not affect his competency, not having been tried and convicted. The credibility of a witness is not to be impeached by proof of a particular offence, but by evidence of general bad character. If it was not competent to prove that the witness had perpetrated the offences for which he had been indicted, -(of which there could be no question,) it follows, of necessity, that the fact of his having been indicted was inadmissible evidence. (1 Phil. Ev. 229, 30.) That the indictment had been procured by one of the lessors of the plaintiff did not vary the case.

*559 The judge decided substantially, that where there was an erasure or interlineation in a deed, the presumption of law was, that it was made before the execution of the deed, and ¡that it was incumbent on the party seeking to invalidate the deed to show that the alteration had been improperly made. In this opinion, I think, he erred. Mr. Phillips, in his Treatise on Evidence, (1 vol. 405,) says: If there is any blemish in the deed, by rasure or interlineation, the deed ought to be proved, though above thirty years old, and the blemish satisfactorily explained. In such a case, the jury would have to try whether the rasure or interlineation was before or after the delivery of the deed; for, if the rasure was before that time, the deed is still valid. It is only after the delivery that a rasure or interlineation can affect a deed, and even then they are in some cases immaterial. Mr. Justice Buller, in his Treatise, (page 255,) also says, that a rasure or interlineation in a deed is a suspicious circumstance, which will make it necessary, even in the case of a deed of thirty years standing, for the party to prove the deed by the witnesses, if living, or if dead, by proving their hand writing and the hand writing of the party, in order to encounter the presumption arising from the blemishes in the deed. When nothing appears but the fact of an erasure or interlineation in a material part of the deed, of which no notice is taken at the time of the execution, it is a suspicious circumstance, which requires some explanation on the part of the plaintiff, but whether the explanation given is satisfactory or not is for the jury to determine.

New trial granted.