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Lessee of Barton and others v. The Heirs of Morris.

the directions of the purchaser. There was no breach of trust. In Bank.

Dec. Term, The question of notice or no notice, therefore, about which Mr.

1846. Jolliffe has said so much, has nothing to do with the case.

Upon the whole, therefore, I claim the plaintiff has made out no title under the heirs of Haines. Can he recover on the title set up under the heirs of Barton ? I think not..

First, because Barton himself never had a legal title. He had a good equitable title, which might have ripened into a legal title; but the elder Barton died before the title had so ripened. He had not, therefore, a legal title to vest in his heirs. . . . . ,

And, in the next place, I claim that this question has been so settled, by the decrees rendered between the younger Barton and his brothers and sisters, In those cases, the very point and pith of the controversy in the first case, was, as to whether the complainant had any equitable right; for as to the legal title, they then admitted it was in Edward Barton, jr. In the last case, however, it was asserted the legal title had been outstanding in the heirs of Haines ; that the complainants had purchased that title, and, being in possession, and having the legal title, they sought to be quieted. The only question in litigation was, whether the complainants had the legal title. That question was decided against those under whom these lessors claim, and I maintain it is a final determination of the question as to the legal title, and cannot be again litigated between the same parties, or those claiming under them, either at law or equity. The statute has authorized a party in possession, claiming title, to have the validity of that title determined in a particular way. If he is not willing to wait until his adversary asserts a claim in Court, he may, by becoming a plaintiff, compel a decision on his title merely. After having selected the tribunal thus pointed out to determine the question, I claim the decision of the Court on that question is conclusive. It certainly would be, if the decree had been for the complainant; it must be equally conclusive on the part of the defendants. If

Lessee of Barton and others v. The Heirs of Morris.

1846.

in Bank. I am right in this position, it shows that the plaintiff cannot

recover under either title which he has set up.

The plaintiff, however, insists that this deed was made by Johnston to the younger Barton, at the request of the elder Barton, in order to defraud the creditors of the latter, and that it is, therefore, void. There are two answers to this objection:

First: We do not know that there were any creditors to defeat; none have complained of the transfer as affecting their interests, and I suppose the heirs cannot complain on that account. i Ohio Rep. 469.

In the next place, the grantor, Johnston, did not make the deed to cheat his creditors. And, I take it, none but the creditors of the grantor could insist upon the deed being absolutely void. Suppose Barton had assigned his title-bond without consideration, this might have been avoided in equity by the creditors; but surely Barton and his heirs could not avoid it on that account, any more than they could set aside a will made by their ancestors. There is nothing, therefore, in this objection.

Upon the whole, I claim the plaintiff has shown no title to recover in this action.

BIRCHARD, J. Several questions of interest have been presented for our consideration in the argument at bar, and in the briefs of counsel. We shall notice them severally, especially those that seem to us conclusive of the rights of the parties.

One subject of great diversity of opinion among counsel, is presented by the deed of Canby and wife, executed in 1825. Plaintiffs' counsel contend that it is defectively executed, inasmuch as the certificate of acknowledgment is insufficient. Were this so, it is difficult to see how it could affect this action. While Canby, the husband, lives, the right of possession to the lands of the wife is in him; and his deed, if valid, passed whatever right of possession the wife had. No proof of his decease has been adduced.

Lessee of Barton and others v, The Heirs of Morris.

- But we will notice the deed. The substantial portion of the IN Bank. )

1... Dec. Term, certificate of acknowledgment, is in these words : “ Personally

1846. came Joseph Canby and Margaret H. Canby, the within gran

tors, and acknowledged, severally, the signing and sealing of "the within deed of quit claim to be their voluntary act and

deed, for the uses and purposes therein contained. And the said Margaret being by me made known to the contents, and examined separate and apart from her said husband, declared

that she signed the same without fear or coercion of her said • husband, and of her own free will and accord.”

The statute required that on the separate examination, the wife should acknowledge the signing and sealing of the deed, and that this should be certified by the magistrate; 2 Chase's Stat, 1139. Brown v. Farren, 3 Ohio Rep. 140, is an authority recognized in Connell v. Connell, 6 Ohio Rep. 353, and is at this time the law of the State. The doctrine established there, is, that words used in the certificate of acknowledgment, which are equivalent to the words of the statute, are sufficient. Let us consider, then, whether this deed, and the certificate, do not show that every requisite of the statute has been complied with in substance and in fact...

The signing and sealing, and delivery, were all done at the same time. This appears from the testatum clause of the deed, and from the attestations of the subscribing witnesses. The signing and sealing are one act, done at the same time. The signature adopted the seal already prefixed, and made the same the seal of the grantor ; so that, in point of fact, there could be no separation. If the signing was done voluntarily, it is impossible the sealing was not equally so. What does the certificate show? That Mrs. Canby united with her husband and acknowledged both the signing and sealing. When separately examined, she said the act thus done was her voluntary act and deed.

It is easy to see how all this actually occurred and to understand what it all meant. No man unlearned in the law, if of sound sense, reasoning fairly, and untrammeled by techni

Lesser of Barton and others v. The Heirs of Morris.

In Bank. calities, would ever come to the conclusion that Mrs. Canby Dec. Term, 1846. “' did not mean to acknowledge the execution of the deed, or

that the magistrate had not so certified. Apart from legal subtleties, and guided by the lights of sound logic, every man would come to the same conclusion, and would assert, that by no possibility could any evil arise from holding such a certificate to be a full compliance with the statute — full evidence that the sealing, as well as the signing, was acknowledged. We think the deed is well executed to pass the title of Mrs. Canby, and will next consider whether the descriptive words of the instrument embrace the land in controversy.

The land is thus described : “All our right, title, claim, in• terest, property or demand, of, in and to all real estate which had fallen, or may fall to us, or either of us, as heirs or legal representatives of Marquis De Lafayette Haines, deceased, or of Amos Haines, deceased.”

Numerous authorities have been adduced, in the hope of satisfying us " that this deed is so general in its terms, it em• braces no land whatever, and is therefore void for uncertain6 ty, and cannot be made to pass title to any lands, without ex

trinsic evidence is resorted to.” The terms of the deed are ample. They are such as may be readily comprehended, and speak an intention on the part of the grantor that admits of no doubt. Whatever title, legal or equitable, descended to the grantors, or heirs of the two Haines, passed by the conveyance. Plainer words, or more apt to express that intention, could not be found. Extrinsic evidence in such a case can only be to identify the land embraced by the description. It should show lands to which either of the decedents had an equity. The deed transferred it. So if the deceased had, as in this case, a naked legal title, that also passed. Right, title, claim, interest, or property, are words of a most comprehensive meaning. Here they are disjunctively connected, and embrace every thing that came by descent to the grantors.

One more objection to this deed remains to be disposed of. It is said the magistrate, in taking the acknowledgment of Noah

Lessee of Barton and others v. The Heirs of Morris. and Nathan Haines, has not affixed his seal. If this were so, IN Bank.

Dec. Term, the deed would be well executed under the existing state of 1846. the law. The second section of the statute (Swan's Stat. 269) declares, that the deed shall be held sufficient to pass the legal title, notwithstanding the omission. The words are, “shall be good and valid in law and equity.” The statute purports to act retrospectively -- not to create title where none existed before, but to make that a good title which the parties themselves meant to make good, by dispensing with a part of the form required of the officer, and by him carelessly and negligently omitted. This statute has been repeatedly under the examination of this Court upon the circuit, and has received the sanction of all its members, as a law of binding force. It violates the obligation of no contract, divests no vested right; but on the contrary supports a contract fairly and honestly made, and such an one as a court of chancery would have enforced.

Again: does this question of law arise upon this deed? The magistrate commences the certificate of acknowledgment thus: “ THE STATE OF Ohio, · Warren County, ss. '[SEAL.]

Personally," &c. And at the conclusion signs his name. The law has not made it the duty of the officer to place his seal at the end of the certificate, immediately after his signature; and, I take it, the seal placed as this is, is his seal, so that, in point of fact, no such question as the one last disposed of could have been forced upon us, or would have been decided, but for the desire of the parties to have settled every question which, by possibility, can be raised upon plausible grounds, touching this title. It has been much litigated already, and they have no reason to expect peace until they have a decided opinion upon every question agitated in the cause. The deed of Robert Haines is not objected to, except so far as the description is concerned. In this respect, it is like the deed of Noah and Nathan Haines, and of Canby and wife. Four-fifths of the legal title, then, by

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