Steele's Lessee v. Spencer

■A decree of the Supreme Court of Ohio ordered that the patentee of a certain tract of land, should, within six months, make a deed, &c. withcove- ' nants of warranty conveying a portion of the land held under a patentlo the complainants' in that suit, and on the failure of A to make the said deed, &c. “ that then and in that cáse; the complainant shall hold possess and enjoy the said portion of land, in as full and ample a manner, as if the same had been conveyed to him.”- The decree of the Supreme Court of Ohio by which a conveyance of land is directed to be made, the decree being-according to the laws of Ohio, vested in those to whom the deed was ordered to be made, such a legal title to the land to have been conveyed by the deed as would have been vested by a deed of equal date; ‘and the re» gistry Act- of Ohio applies as well to a title under such a 'decree, as it would do, if the party held under a bona fide deed of the same date with' the patent of the land, and the decree gives a legal title as ample as a deed. {558} The registry Act of Ohio directs that all-deeds made within the state shall be recorded within six months from the time of-the actual execution thereof; and declares, that if any such deed shall not be recorded in the County where the land lies, within the limits allowed by the law', “the same shall be deemed fraudulent and void, against any subsequent pur- - chaser for a valuable consideration without notice of such deed. {559} In the construction of the registry Act- of Ohio, the term “ purchasers,” is usually taken in its limited legal sense. It means a complete purchaser; or in other- Words, a purchaser clothed with a legal title. {559} It is not necessary that a deed made to a subsequent bona fide purchaser without notice shall be recorded to give it operation against a prior unrecorded deed, as by the provisions of the registry Acts the prior deed is declared in itself absolutely void as against such purchaser. {560} Whether erasures and alterations in a deed are material or not, is a question of law to be decided by the Court, {560} Tlie construction of words belongs to the Court, and the materiality of an alteration in a deed, is a question of construction. {561} '

THIS was a writ of error to tlie Circuit Court of the United States for the district of Ohio, to reverse the judgment of that Coúrtán favour of the defendant in error, in an action of ejectment instituted by the plaintiff in error, to recover a tract of land in Perry county, in the state of Ohio.. The title claimed and exhibited by the plaintiff in the ejectment; was originally derived under a patent from the United States to Jesse Spencer, dated November 15th 1811; who with George Spencer and others, were the heirs at law of Thomas Spencer deceased; . and in . order to show the title .acquired by the patent, he offered in evidence a deed from Jesse Spencer, the patentee, and Catharine his wife;-to William Steele, purporting to bear date the 20th of January 1818; and which apv peared on that day by the certificate on the deed, to have been acknowledged before a justice of the peace. “ William Fulton, one of the subscribing' witnesses, proved, that he attested the deed in the office of Jesse Spencer, but could not state when; that William Stéele wás not present; that he knew'nothing of the purchase of the land by William Steele from Jesse Spencer ; and that he saw no more of the deed, until about one year ago, when Spencer and Steele were together, and Spencer produced the deed to'see if the witness would recognise his Signature.” Wherever the name of William Steele appeared,-either in the body of the deed, or the- label thereon; it manifestly appeared to have, been written on an erasure, and with ink of a different ■colour; as did_ the words “Ross” and “Ohio,” in describing the place of residence of said Steele. ' The alterations oh the lace of the deed were not accounted for by any testimony. This . deed was not recorded in the county where the land lies, or elsewhere. The plaintiff further offered in evidence, a deed from William Steele, and Sarah his wife, to Robert Steele the lessor of the plaintiff, bearing date the 7th of July A. D. 1821. Also, the deposition of John Darágh, to prove the-execution of said deed; which deed and the certificate and acknowledgment thereon, and also the deposition of John Daragh, were also not re:, corded.- The defendants in the ejectment were in possession of the • land, and they claimed to hold it under a decree of the Supreme Court of the state1 of Ohio, for Ross county, sitting in Chancery, rendered on the 3'd'of January 1820, in a proceeding by a bill filed in-Perry county, and, under advisement in Ross county, by the heirs of Thomas Spencer, deceased, against Jesse Spencer and others, by which decree Jesse Spencer- was ordered to convey the land in controversy, to certain of the parties in the said bill, upon their full compliance with the terms and conditions stated in the said decree. The decree also proceeds as follows: “It is further ordered and decreed, that if the complainants shall within the time specified, deposit and pay to the clerk of Perry county aforesaid, the several sums of money aforesaid, and interest thereon, as aforesaid, and the defendant, Jesse Spencer, shall -fail to make out, execute and deliver to said clerk, a deed for nine-tenths of the. land aforesaid, within the times aforesaid; in manner aforesaid, that then and in that case, the heirs at law aforesaid, to whom the land aforesaid is decreed to be conveyed, in manner aforesaid, shall hold, possess and enjoy, nine-tenths of the half section aforesaid, to them, their heirs, and assigns for ever, in as full and ample a manner as though the same were conveyed to them by the said Jesse Spencer, defendant, ip manner'aforesaid.” “ It is further ordered. that Jesse Spencer, the defendant, pay the costs of the suit-in seven months from- • the date-of this, decreé; and if he fail so. to do, that then execution or executions issue in the same manner as executions issue oh judgments .at' law. It is further ordered and decreed, that the bill as to the other two,defendants, to wit, -William' Spencer and James Spencer, is dismissed without costs, and that the1 clerk of the Supreme Court for Ross county,- enter this decree of record in the said Supreme Court of -Ross county, and that he transmit a.copy of this de.cree to the clerk of the.Supreme. Court of Perry county, it being in .the sanie county from which this-cause-was removed here for decision, .and that-the same be entered of record in the Supreme Court of the said county df Perry, in .the same manner as if the cause had -been there heard and decreed. It is further ordered, and decreed, that if the money is not paid and deposited in manner aforesaid, and within the time -aforesaid, that then these complainants shall pay all the costs of the suit.” The defendants also exhibited evidence.of their having fully complied with all the requisites of the said decree, by the payment of the sum of 524 dollars, the amount decreed to be paid and also that the decree was duly recorded in the proper office for recording of deeds of the county of Perry, on the 24th July ’ 1822. After the evidence was closed, the Court, on the motion of the counsel for the defendants, instructed the jury as follows':— 1. That the decree of the Supreme Court of the state of Ohio, given in evidence in this cause by the defendants, vested in them such a legal title to the land in Question, as would have been, conveyed-by deed of equal date from . Jesse Spencer, the pa-tentee, and that the registry Act of Ohio,, applies, as well to the title of the defendants, under the said decree, as it would do if they held under a bona fide deed, of- the same date.from the said .patentee. 2. That if the elder deed be not recorded within the time specified by the' registry Act of Ohio, it is wholly void, as to subsequent bona fide purchasers, without notice of. the existence of such deed; 8. That if the deed from Jesse Spencer to William Steeie, was altered in a material part, -after it .was sealed, attested; and acknowledged, such alterations absolutely avoid -the deed, and it can convey no title, to' the lessor of the plaintiff. The counsel of the defendantijobjected to those parts of the instructions contained'in the firsi and second specifications. They submitted to this -Court the following points:— 1. Tlie Court below erred, in' charging the jury,, that the registry Act of Ohio applies'as well to the. title of' the defendants, under the decree set forth in the bill of exceptions, as. if they- held under a bonajide deed of the 'áame date. . ,2.The Court* below-erred in charging the jury, that if the deed frdxTa' Jessé Spencer to' William Steele, wds altered in a material part, after it; was sealed, attested, and acknowledged; such alteration absolutely avoids the deed, and it can convey no- title to the lessor , of the plaintiff. Because — r 1. Such an alteration,’if made without the consent of the-grantee, would not avoid the deed, and divest the-estate vested by the execution of the deed in the grantee. •2. An alteration of the deédmade with the consent of the grantee, coiild not divest the estate conveyed by the deed, and revest the, same in the grantor.- for the ■ plaintiff, it was insisted, that the registry Act of Ohio applies exclusively to' purchasers by deed, and does not include and protect those who hold in virtue of decrees in' chancery. Under the statute regulating proceedings in- ’chancery, a suit may be. instituted to obtain a conveyance either in the county , in which the land is situated, or where the defendant maybe found. ■ The action and the counts in the declaration, ,are in rem vel personam, and jurisdiction is acquired by the possession and control of the subject matter,- or of the person. As the registry Act does not 'require decrees made iñ the Courts of one county to be recorded in the county where the land is situate, neither does it extend its protection'to, purchasers under such decrees . — or if it embraces other "purchasers than those by deed, it protects* all subsequent .purchasers, and subsequent purchasers .alone. Those- cannot be considered subsequent purchasers, who were o.efóre the execution of unrecorded deeds vested with equitable titles, which afterwards were enforced by suits in chancery. Such ■purchasers'by decree, do>notcome within the-mischief .of the, registry Act. Such a construction would be forced', and- inconvenient; as the purchaser by deed, on recording his deed, or by giving notice^ pendente lite, in chancery;, and even after decree rendered, and before the expiration of. the time limited for'the execution of the conveyance^ although after -the lapse óf six months; .would bring his .deed within the protection of the.-Act, and defeat purchasers by decree. If the chancery suit had been instituted against Steele, as well as Spencer, the complainants could not have obtained a decree. A party might, in this way obtain a good title, by his omission to embrace proper.parties in his bill, in'equity. A defective title might thus be made good during the progress of the suit, and indeed a title invalid at the rendition of the decree, valid in a month at- • ter — vires acquirit eundo. This construction would make the statute penal; punishing" the party for his laches, in óx itting- to record his deed, instead of simply a protection of the rights of others. All the mischief to be guarded, ¿gainst by the statute, was éffected by the execution of the deed; and the omission, seasonably to record-the deed, could not injure one who had a good equitable title, which is -subsequently enforced by a bill in equity. It was also insisted, that the Cotirt erred in charging the jury, that a material alteration in the deed from Spencer to Steele, after its execution, could defeat the title thereby vested in Steele. It was apparent, on the plaintiff’s bill of exceptions, the Court erred in "thus' charging the jury, and the Couri could not look to the bill of exceptions of the' defendants in error for any purpose; or if they could, the error was not rectified by- a comparison of the facts there stated with the charge. Cited, Marshal vs. Fisk, 6 Mass. Rep. 32.- The registry Act of-Ohio, protects subsequent bona-fide purchasers against unregistered deeds. A party entitled under a decree of a Court of Chancery, is a purchaser, in the legal signification of the term, ahd is therefore within the létter of the statute. There can he no reason to except him from its operation. He is as much injured by the concealment of a prior deed," as any other purchaser. - Whenever a party is entitled in equity, to a specific performance of a contract; if the defendant had put it out of his power to perform it, it is important that the fact should be made known-to the party interested, that he may seek other, and more effectual relief.. A' purchaser under such a decree, is therefore within the spirit as" well as the letter of the Act. /The Court did not err in charging-the-juiry-that the defendant's title took effect from the date of the decree. • Courts of Equity in Ohio; in settling the title to .real property, proceed, in rem,. not in personam. It is true, they direct the party to execute a deed,-but they do not compel him by attachment, to do so. If he refuses, the decree operates as a deed, and the res sita gives jurisdiction to the Court. The decree of the Court fixes the title to the property.- The time allowed,for the conveyance, relates merely .to the transfer of the evidences of title, and the possession, and the deed, if made pursuant to the decree, relate to the date of the decree itself. If no deed, be made, the title by the decree relates. Thus, if the party against- whom a decree is rendered should die, or being a feme sole, should marry before the period fixed for the-execution of a title; it- is believed that the decree would operate without further proceeding to vest the title. 2. Deeds for the conveyance -of real estate in Ohio, derive their validity solely from statutory provisions. No Common Law mode of transferring real estate, (except -by operation of law,) is recognised. Linley vs. Coates, 1 £tam. Rep. ' Neither is' the statute of uses, which in England gives validity to the deed of bargain and sale, .ip force in Ohio. Deeds • therefore to be valid, must be executed according to the1 provi-, sions of the statute of that state; and if they are deficient in . any of the requisites pointed out by that statute., they create no legal title. ", That Act, (22 vol. Ohio Laws, p. 218,) requires the grantor to seal and acknowledge the deed in the presence of two witnesses, who subscribe their names, and .also his solemn acknowledgment before a judicial officer. The deed in question' was not proved to have ever been executed- with all. thése formalities. But if, after this due execution, it were altered in a material part, no matter by whom, or with whose consent;-it was no longer the same deed. ’Pigot’s case,. 11 Rep. 9,7. ' •