
    Hiatt’s Heirs vs Calloway’s Heirs.
    Appear from the Garrard Circuit.
    Chancery.
    
      Case 46.
    Caí* a tried.
    The construction of the 11th aee. of the «tatute of 1831, as applieable to this case.
    
      Jurisdiction. Mistakes.
    
    
      October 21.
   Chief Justice Ewing

delivered the opinion of the Court.

A judgment in ejectment was recovered for 100 acres of land, by the heirs of Peter and Susannah Calloway, claiming title under their mother, against Hiatt’s heirs, upon the ground that their mother, who had owned the same, had not, by any valid conveyance upon privy examination, duly certified and recorded, parted with her title in her lifetime. The heirs of Hiatt filed their bill in chancery, enjoining the judgment, praying a confirmation and surrender of the title, and that they may be quieted in their possession, upon allegations that a deed of conveyance had been duly and properly executed by the joint conveyance of the father and mother of the heirs of Calloway, upon the privy examination of their mother, by two Justices of the Peace of Missouri, acting under a commission properly issued, from the County Court of Garrard, where the land lies, and the same, together with the certificates and dedimus, was transmitted to, and recorded in the proper county, except that the Clerk, in recording the certificate of privy examination of the wife, had made a mistake and recorded it as of the 5th day of October, 1823, instead of the 5th day of October, 1822, its true date, and the date of the acknowledgment of the husband, made before the same Justices, and duly certified by them. And if they cannot obtain a correction of the mistake, they pray a confirmation of their title under the 11th section of the act of 1831, (1 Stat. Laws, 453,) and conclude by a general prayer for relief.

The complainants are not entitled to relief under the section of the statute relied on, as has been just decided by this Court in the case of Pearce’s heirs vs Patton et al. It appearing that their mother was covert at the passage of the statute, and continued so until. 1834, when their father died, the section does not apply to the case.

The mistake of a eleik in his certificate of the time of recording a deed of conveyance clearly appearing by record evidence, may be corrected by the Chancellor.

But it appears that Peter Calloway, in 1818, sold and conveyed the land in question, which belonged to his wife, to John Hiatt, the ancestor of the complainants, for eight hundred dollars, which was paid to him. That in 1821 a dedimns poteslatem was properly issued, directed to two named Justices of the Peace of Madison county Missouri, requiring them to take the privy examination of the wife, to a deed of conveyance stated to be attached to the commission, from Peter Calloway and Susannah, his wife, for the hundred acres of land in question, to the heirs of John Hiatt, deceased, naming them in the commission. That said commission was presented to the two Justices named, and on the 5th day of October, 1822, they certify the signing and acknowledgment of the husband endorsed on the deed, filled up as of the same date, over their signatures and seals as Justices, and certify in like manner, the signing, privy examination and acknowledgment of the wife, in due form, endorsed on the commission, which they certify as attached to the deed acknowledged, and the deed attached to the commission, with the certificates endorsed, was sent to the Clerk’s office of the proper county, and recorded in due time, to-wit, on the 25th of October, 1822, together with the certificates of the Justices and commission, but the certificate of the Justices of the wife’s privy examination and acknowledgment, is, through the obvious mistake of the Clerk, recorded as of the 5th of October, 1823, instead of the 5th of October, 1822, which postpones the date of privy examination and acknowledgment to a time beyond that within which the deed, under the statutes as heretofore construed by this Court, should have been spread on the record.

The certificate recorded is in every respect, verbatem with the certificate endorsed, except as to the date so; are the certificate of the acknowledgment of the husband, the commission attached, and deed recorded verbatem, the same as the originals, which were produced to the Chancellor below, and is also produced to this Court. And it is perfectly obvious from an inspection of the originals. and a- comparison of the same with those on record?, that the true date of the privy examination and acknowledgment of the wife, was the 5th of October, 1-822, the same date of the deed and the same date of the acknowledgment of the husband-, and that the whole- difficulty and embarrassment of the complainants’ title has been produced'alone by the error and mistake of the Clerk. The question arises, cannot a Court of equity take cognizance of the case to correct the mistake, or relieve the complainants from its consequences? We think it cam The parties have done all that was necessary on their part, to pass-a-perfect fee simple-title to the grantees, and have deposited’all the papers necessary to be recorded, in due and proper time, in the proper office for record, with the officer provided by law, for spreading the same on the'record. He has recorded the same, but by inadvertency and mistake, and without fault on the part of the grantees or grantors, he has attached a wrong dale to-one of the certificates, by which the title of the complainants has been so-embarrassed, that a judgment at law in ejectment, has-been recovered against them. The interference of the Chancellor is obvious on-two-grounds:

The Chancellor may relieve against mistakes.

The Chancellor has jurisdiction, on bill filed by one in possession, to quiet the title to lands so possessed.

Where a deed of conveyance was regularly acknowledged' in due time by bar. on and fane, and deposited for record, — but the Clerk in his certificate of the time of recording, committed an error, such mistake was corrected by the Chancellor, on Bill filed by the grantee in the deed, not by changing the record, but by operaiing upon the person of th© grantor and compelling a releas© of title.

1st. It is peculiarly the province of the Court to correct mistakes, and one of the principal grounds of its jurisdiction.

2d.. The complainants are in possession, and have a right to- resort toa Court of Equity to quiet their title, and secure them in the peaceable enjoyment of their purchase.

If it were conceded, which we are not prepared to do, that to pass effectually the fee of the wife, the deed, with the certificates and commission, should not only be-deposited- for record- in due time, but should also be recorded, yet as in this case, all were duly recorded, which the statute requires, verbalem et literalem, with the originals, except as to the single mistake alluded to, we eannot concede that the error of the clerk shall have the violating effect of forfeiting the title of the complainants, so that relief eannot be afforded against its consequences, by the powers of a Court of Chancery. To allow the heirs to take advantage of this clerical mistake, would be a species of bad. faith, which-a court of conscience would never tolerate, and the more especially, as the mistake is such as might even in a judicial record, after the term, be corrected as a clerical error. It is true, the Chancellor cannot go into the County Court Clerk’s Office, and alter or change the record so as to make the deed and certifi■cates stand on the record as they should have been originally recorded ; but he can act on the parties as he is accustomed to act on the parties to a common law judgment, by injunction and attachment, to compel them to do what is conscientious and right.

The two Justices who are to take the.privy examination of the wife, may also take the acknowledgment of the husband, and their certificates and seals are sufficient to authorize the admission of the deed to record, without any other or further authentication.

We are also satisfied that the commission was sufficiently descriptive of the conveyance, to which the acknowledgment and privy examination was to be taken. Though it described a deed as having been executed by the husband and wife, the deed is attached to the commission, and is otherwise identified as the deed intended, and though drawn out in form, was no doubt filled up as to the date, and was in fact, as certified, signed and sealed by the husband and wife, on the day of its date. The description of the deed as an executed deed, cannot vitiate the commission, or mislead the Justices or parties as to the deed intended, and the more especially as the deed could not have been executed by the wife in any other manner than by privy examination, to obtain which was the object of the commission.

Upon the whole, we are satisfied that the complainants are entitled to relief. The decree of the Chancellor is therefore reversed, and cause remanded, that their injunction against the judgment at law may be perpetuated, and that as the means of effectually securing the title to them, and quieting them in the possession against all casualties which might by any possibility accrue, by the loss or destruction of the original deed and certificates-, that the defendants, the heirs of Susannah Calloway, their mother, may be decreed to convey, release and conffrm, all claim to the land to the complainants, and pay' the costs of the proceedings. And the appellants are entitled to their costs in this Court.

McKee and Dunlap for appellants; Turner and Bradley for appellees.  