
    Turner v. Stip.
    October Term, 1794.
    
    Deeds — Execution—Proof—Case at Bar. — If tbe proof, or acknowledgment, of a deed, made by a nonresident, of land lying in Virginia, be not certified according to law, though it should he admitted to record, it cannot be read in evidence as a recorded deed. JSut it will be sufficient at the trial, to prove the execution by one witness, though he be not a subscribing witness, if the subscribing witness be dead, or cannot be procured.
    Same — Unrecorded—Effect between Parties. — A deed, though not recorded, is valid between the parties.
    This was an ejectment, brought by Stip in the County Court of Berkeley. The plaintiff at the trial, offered in evidence in support of his title, a deed from Benjamin Halsey and wife and Margaret Halsey to him, dated in June 1785; to which deed is annexed a certificate of two persons who stile themselves justices of the peace for the district of Camden in South Carolina, stating that the three subscribing witnesses to the deed had declared upon oath, made before them as justices aforesaid, that they saw the grantors sign seal and deliver the said deed to the said Stip as and for their act and deed.
    That upon this certificate, the deed was admitted to record in Berkeley County Court, where the land was situated on the 19th of July in the year 1785. The plaintiff also produced upon the trial, a witness to prove the execution of the deed. The defendant objected to the evidence of the deed, because it had not been theretofore legally proved and legally recorded? and to the testimony of the witness, because it was improper to prove the execution of the deed by one witness only at that time. The court rejected the evidence of the deed, as well as of the witness, to which the plaintiff excepted. A verdict and judgment was given for the defendant from which the plaintiff appealed; the District Court reversed the judgment of the County Court from which the defendant appealed to this court.
    
      Bee for the appellant.
    1st, I shall insist that the deed in question, not haying been legally recorded, is void. The act of 1748, 1st Geo. II. c. 1, declares, that no estate of inheritance shall pass, alter, or change, from one to another, unless by deed indented sealed and recorded, within a particular time, upon the acknowledgment of the parties to the deed, or upon proof of the execution thereof, by three witnesses. By the 4th section of the law, the deed is declared to be void as to all creditors and subsequent purchasers^ unless the same be recorded according to the directions of the act. As to persons residing out of this *state, that law provides no mode for proving deeds made by them, different from that which is prescribed as to residents. But the act of October 1776. Ch. 16 permits the deeds of nonresidents to be recorded, upon a certificate of two magistrates, that the deed was acknowledged before them, or proved by the oaths of three witnesses, with the testimonial of the governor of the estate where the deed is so proved,- that the persons giving the certificates, are magistrates. — Slow in this case, their being no such certificate by the governor, the deed ought not to have been admitted to record, and therefore is now to be considered as an unrecorded deed, and therefore void. For the act of 1748 declares all deeds, not recorded according to the directions of the act, void, except as between the parties, or those claiming under them, and the parties to this suit do not appear to be within the exception.
    But 2dly, If the deed be not void, still the evidence produced at the trial to prove its execution was insufficient. The certificate of the probate in Carolina is not to be regarded as evidence at all, ás the persons receiving the probate do not appear judicially to this court to have been magistrates agreeably to the act of Assembly, and consequently the deed has obtained no additional authenticity by having been admitted to record in Berkeley Court. To obviate this difficulty, the plaintiff produced one witness to prove the execution of the deed; to which there are two objections — 1st, that one witness was not sufficient, the law of 1748 above referred to requiring three, — 2d, if one witness were sufficient, yet he ought to have been a subscribing witness, and from this record it does not appear that he was, or if a subscribing witness could be dispensed with, it could only be by proving that they were all dead, or could not be procured, and this should have been stated upon the record.
    Washington for the appellee.
    The first point in this cause depends upon the - true exposition of the act of 1748, which has been read. The first and 4th clauses must be considered together. The 'first declares, that “no estate of inheritance, or any estate for life shall pass, alter, or change from one to another, by deed, unless the same be made in writing, indented, sealed1 and recorded in manner following,” &c. And then it goes on to limit the time of recording the deeds of residents, and of non-residents,' and concludes with declaring, that “no such deed shall be admitted to record unless the same be acknowledged in court by the grantor, to be by his act and deed, or else that proof thereof be made in open court by the oath of three witnesses.”
    *The 4th clause declares, that “all such deeds shall be void as to all creditors and subsequent purchasers, unless they be acknowledged, or proved and recorded according to the directions of this act, but the same, as between the parties; shall nevertheless be valid and binding.”
    Now the true construction of the clauses taken together seems to be this. To pass a freehold interest,.the deed must be recorded, and to give it validity against creditors and subsequent purchasers, the deed must also be recorded according to .the directions of the act; that is to say, upon the acknowledgment of the grantor or proof by three witnesses, within eight months, in the cases of residents, and within two years in those of non-residents. But in all cases except where creditors and subsequent purchasers are concerned, tho’ the deed must be recorded, it need not be recorded according to the directions of the act. The reason of the distinction is apparent. As between the parties or those claiming under them, it is of little consequence, how, or when the deed be recorded; but it is highly important as to creditors and purchasers, who may be affected by relation to the date of a deed, tho’ it be not recorded until after they had given credit or made the purchase.
    In this case then, the deed in question was recorded, tho’ not according to the directions of the act, and is valid under the 4th clause, the defendant below not appearing to be a subsequent purchaser or creditor.
    If this be the true exposition of the law, the deed must be considered as valid; and if so, the second objection cannot be maintained. Three witnesses are necessary to prove a deed, to entitle it to be recorded, and therefore I admit that the deed itself, or a copy certified to have been proved by less than that number of witnesses, could not be received as evidence in any court; because if this sort of evidence, which the statute authorises, be resorted to, the statute must be pursued. But surely the proof of the deed at the trial by one -witness, is as good as if it had been proved by twenty. For at common law, one witness would be sufficient to prove the execution of a deed, and the act of 1748, which requires three, relates entirely to the proof necessary to admit the deed to record, and not to the evidence necessary in legal trials. As to the objection to the witness himself, it admits of two answers. 1st, That if he were not a subscribing witness, yet it is no good objection to his testimony, the law not requiring the witnesses to a deed to subscribe their names, as the statute respecting wills does; and this will *account for the necessity of producing the subscribing' witnesses to prove a will. 2dly, It is not sufficient to suggest possible exceptions to the witnesses, but they should appear to be stated upon the record. It is the business of the appellant to state, and also to prove the ground of his objections, and it is not incumbent upon us, to shew that the witness was properly admitted; since this will be presumed until the contrary appears.
    
      
      Deedc — Recordation—Validity.—On the question a.s to what is a valid recordation of a deed, the principal case is cited in Currie v. Donald, 3 Wash. 58; Baker v. Preston, Gilm. 285; Ben v. Peete, 2 Rand. 513; Doswell v. Buchanan, 3 Leigh 379; Johnston v. Slater, 11 Gratt. 335, and note; Raines v. Walker, 77 Va. 95; Bowman v. Hicks, 80 Va. 809; Pierring v. Lee, 23 W. Va. 673.
    
    
      
      Same — Unrecorded—Validity as between Parties. — ■ For the proposition that, a deed, though unrecorded, is valid between the parties, the principal case is cited and approved in McCandlish v. Keen, 13 Gratt. 630; Raines v. Walker, 77 Va. 95. See monographic note on “Deeds” appended to Fiott v. Com., 13 Gratt. 561.
    
   The PRESIDENT.

Upon the first point, the court are of opinion, that the deed offered in evidence was neither legally proved, nor legally recorded under the act of 1776, C. 16, because it wanted the governor’s testimonial, that the persons who certified the probate were magistrates. The court below would therefore have done right in rejecting this as a recorded deed, in support of the plaintiff’s title. But since by the act of Assembly passed in the year 1748, such deeds, though not recorded, are valid between the parties, though void as to creditors and subsequent purchasers, (neither of which the defendant is stated to have been,) the actual execution of the deed was a fact which the plaintiff was at liberty to prove, as in other cases by evidence satisfactory to the jury, whether it were by one or more witnesses. As to the objection, that the witness does not appear to have been a subscribing witness, and that none other could properly be admitted, the answer is, that the act does not require the three witnesses to a deed to subscribe their names, as in the case of wills. But another sufficient answer to the objection is, that it does not appear that he was not a subscribing witness, nor that the subscribing witnesses might not have been proved to be dead. The court improperly stopped the examination, and therefore the District Court rightly reversed the judgment.

Judgment of the District Court affirmed.  