
    Micajah Martin, vs. John Quattlebam.
    
      Qae tenant in common can not maintain an action to try titles against his co-tenant.
    ■What is sufficient evidence to prove a deed where one subscribing witness made his mark and did not remember it, and the other witness not recollecting the fact either.
    
      A deed of land is not affected in any way, by not being recorded, except as to subsequent purchasers from the same vendor, or ap to subsequent creditors.
    Trespass to try titles, tried before his Honor Judge Richardson, at Lexington.
    The plaintiff produced a grant to the land in dispute to one Busbie, and a regular chain of title from Busbie down to Jesse Allen. He proved that Jesse Allen died intestate, in 1806, seized of the land, leaving a widow and four children. The plaintiff then produced and proved a regular paper title for the same land from the widow and three, of the children of Jesse Allen deceased; but from William Allen, •one of the children of Jesse Allen, the plaintiff did not pretend to have a title for his share. Plaintiff proved the location and trespass, and closed his case.
    The plaintiil’s right to recover was contested by the defendant, on the ground that he was a tenant in common with the plaintiff of the same land; and for this purpose be introduced a deed of conveyance for the whole land in dispute from William Allen to one Martin Witt, From Witt down to defendant, a regular chain of title was proved. The deed from Allen to Witt purported to have been attested by two. witnesses, Richard Allen and William Boatwright. Richard Allen proved that he saw the deed duly executed by William Allen, but does not recollect whether Boatwright witnessed it with him or not. William Boatwright, who could not write, was sworn, but he said, after such a length of time, he did not recollect to have witnessed the deed, and would not undertake to identify his mark, but remembered that, years ago, William Allen called at his mill with a paper. Nor did he recollect that he had proved its execution before a magistrate. The deed appeared on the back of it to have been proved by his oath, before a magistrate.
    The plaintiff objected to the report being read in evidence, withoutbetter proof ofits attestation by two subscribing witnesses, and on the ground that the deed had not been recorded, although executed in J 809.
    The court overruled the objections, and directed the deed to be read, supposing it sufficiently proved, in as much as the plaintiff did not pretend any claim from Wm, Allen, and William Allen’s rights were not in issue.
    Upon this the plaintiff took a nonsuit with leave to set it aside, if the opinion of his honor the presiding judge should be incorrect as to tbe law on the subject.
   Colcock, J.

It does not admit of a question that if the defendant has a title from one of tbe distributees of Jesse Allen, he is a tenant in common, and cannot be sued by the plaintiff, unless he had disseised him or kept him out of pos' session. -Two questions then arise;

1st. Whether the deed of William Allen was executed in the presence of two witness'” and

2ndly. Whether tbe deed should have been recorded?

From the report of the presiding judge, it appears that Boatwright does not swear he was not a witness; and all the circumstances of the case seem to shew that he was. Now it is very possible that any man, more particularly an illiterate one as he appears to be, may forget a transaction of this nature. But how could the magistrate have been mistaken) ■ ■ There was nothing to contradict these facts. And the conclusion from them is irresistable, that there are two witnesses fa the deed

John Caldwell for the motion.

Harper, contra.

- On the second question, it is not necessary to the validity of a deed that it should be recorded. Recording Only becomes necessary in particular cases* when there are •double conveyances. If the same grantor convey to two, he whose deed is duly recorded shall hold. The act says (1 Brev. 174) if it be not recorded, it shall not bar “the right of persons claiming as creditors, or under subsequent purchases, recorded in the manner herein before prescribed.” That is, a subsequent purchase made from the same person.

. But here the deed of William Allen to Witt, for his part, which alone he could convey, is the only deed he has made. It is not therefore necessary to the defendant’s title in this case, that it should have been recorded. The defendant is not interfering with rights of the plaintiff. He can claim no other-part or portion of the land than William Allen’s share. The law never meant any thing so absurd as to say that if a man sold his land and made a title for it, which should not he recorded, that such title should be destroyed by another’s pairing a title to the same land and having it duly recorded.

The motion is dismissed.  