
    Mary Irving, as trustee, Resp’t, v. James J. Campbell, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 3, 1890.)
    Deed—Proof of acknowledgement by subscribing witness.
    Plaintiff, in a suit to compel defendant to accept title, attempted to prove a lost deed by a copy of the record of the register’s office of the city of New York, showing that such deed had been acknowledged and proved by Gideon J. Tucker, the subscribing witness, but which did not state his place of residence. Held, that the mere fact that the subscribing witness was a well known and respected citizen cannot work a change in a general rule provided by statute, and that the acknowledgement did not entitle the deed to be read in evidence.
    Appeal from judgment of the New York superior court, general term, affirming judgment for plaintiff entered on opinion of referee.
    
      Alex. Thain, for app’lt; James B. Dill, for resp’t.
    
      
       Reversing 18 N. Y. State Rep., 966.
    
   Huger, Ch. J.

The object of this action was to compel the specific performance, by the defendant of a contract made April 18, 1887, to purchase from the plaintiff certain real estate in the city of New York. Upon May 18, 1887, the day appointed for the performance of the contract, the plaintiff duly tendered to the defendant a deed, sufficient in form to convey the premises described, executed by her as grantor. The defendant objected to the proposed title, among others, upon the ground that there was no legal evidence of the transfer of title by Thomas Lawrence, through whom the plaintiff claims.

It was conceded on the trial that Thomas Lawrence had title to the premises previous to and in the year 1871, and it was claimed that on November 23rd, of that year, he conveyed the same to Eliza Irving, the plaintiff’s grantor, by warranty deed. This deed was attempted to be proved by a copy of the record in the register’s office of the city of New York, duly certified by him to be a correct copy thereof. From such certificate it appeared that a deed from Thomas Lawrence to Eliza Irving of the premises in question, purporting to have been acknowledged and proved by Grideon J. Tucker, the subscribing witness thereto, had been recorded in such register’s office. This acknowledgement did not state the place of residence of the subscribing witness, neither did that fact appear from any part of the deed, or the notarial certificate. Thomas Lawrence, the grantor, died unmarried and childless in 1875 or 1876, and the original deed was shown to have been lost at about that time; so that the only written evidence of . its execution consisted of the record referred to.

At the time fixed for the performance of the contract, the plaintiff and her grantor had occupied the premises for about sixteen years only and failed by about four years from completing the possession necessary to perfect title by adverse possession. That the deed from Lawrence to Eliza Irving was actually made and delivered to the grantee by Lawrence was satisfactorily proved upon the trial of this case; but such proof rested altogether in paroi and might or might not be available to the holders of title under the plaintiff in any subsequent litigation between them and adverse claimants under Lawrence. It is not disputed by the respondent but that the purchaser under this contract was entitled to a marketable title, free from any reasonable doubt, and she undertakes to sustain the contention that this is such title, mainly by the claim that the Lawrence deed was properly recorded. The question as to what constitutes a marketable title has been the frequent subject of discussion in this court in recent cases and may be regarded as settled by authority. The rule as to the quality of such title is quite fully stated by Judge Bari in Moore v. Williams, 115 N. Y., 586; 26 N. Y. State Rep., 259. lie there says :• “ There is no record or document which precludes Barnes from enforcing his judgment against the lot. The recitals in the deed of Guión to these defendants do not bind him and are not evidence against him, a prior incumbrancer. All the evidence to defeat his lien rests in paroi and depends upon the memory of living witnesses. Whenever Barnes attempts to enforce his lien against the lor, he can be defeated only by a resort to the evidence of such witnesses who may then be dead or inaccessible. * * * Is a purchaser bound to take a title which he can defend only by a resort to paroi evidence, which time, death or some other casualty may place beyond his reach? * * * Aside from the language used in the contract it is familiar law that an agreement to make a good title is always implied in executory contracts for the sale of land, and that a purchaser is never bound to accept a defective title, unless he expressly stipulates to take such title, knowing its defects. * * * A good title means not merely a title valid in fact, but a marketable title which can again be sold to a reasonable purchaser or mortgaged to a person of reasonable prudence as a security for a loan of money. A purchaser will not generally be compelled to take a title when there is a defect in the record title which can be cured only by a resort to paroi evidence.”

It was also said by Judge Andrews in Fleming v. Burnham, 100 N. Y., 10, “ A title open to a reasonable doubt is not a marketable title. The court cannot make it such by passing upon an objection depending on a disputed question of fact or a doubtful question of law, in the absence of the party in whom the outstanding right was vested. He would not bé bound by the adjudication and could raise the same question in a new proceeding. * * * It would especially be unjust to compel a purchaser to take a title, the validity of which depended upon a question of fact, where the facts presented upon the application might be changed on a new inquiry or are open to opposing inferences.” See Vought v. Williams (2d Div.), 120 N. Y., ; 30 N. Y. State Rep., 899.

Whatever conclusion might be reached by us in this case as to the validity of the plaintiff’s title must, therefore, be unavailing to her grantee in any future contest with claimants under Lawrence, .either by inheritance or purchase. In the absence of a good record title he must necessarily be driven to rely for a defense upon paroi evidence which might then be accessible or not according to circumstances beyond his control. It would seem, therefore, from the authorities, that the title tendered to the defendant was not so free from reasonable doubt as to require him to accept it, unless we conclude that the Lawrence deed was properly acknowledged so as to entitle it to be recorded. It therefore becomes material to consider the sufficiency of the acknowledgement of this deed. These acts, 3 R. S., 7th ed., p. 2215, §§ 1 to 17, provided, among other things, that an unrecorded deed shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate. Section 1, chap. 3, part 2. Such deed may be so acknowledged as to be entitled to be recorded by the person executing it or by a subscribing witness. Section 12. When the proof is made by a subscribing witness, he shall state his place of residence and that he knew the person described in and who executed such conveyance. Id.

“Every officer who shall take the acknowledgement or proof of any conveyance, shall endorse a certificate thereof, signed by himself, on the conveyance, and in such certificate shall set forth the matters hereinbefore required to be done, known or proved on such acknowledgement or proof, together with the names of the witnesses examined before such officer, and the places of their residence and the substance of the evidence given by them.” Sec. 15. “ Every conveyance acknowledged or proved and certified in the manner above prescribed, by any of the officers before named, may be read in evidence without further proof thereof, and shall be entitled to be recorded.” Sec. 16. “The record of a conveyance duly recorded, or a transcript thereof duly certified, may also be read in evidence with the like force and effect as the original conveyance.” Sec. 17.

It would thus appear by the express language of the statute that a conveyance of lands can be proved only by the acknowledgement to a public officer of its execution by the person making it, or by the affidavit of a subscribing witness having a place of residence, which must be stated to the officer taking the proof and be inserted by him in the certificate required to be made and endorsed on the conveyance. The provisions of the Revised Statutes were mostly new and effected radical changes in respect to the laws relating to the proof and acknowledgement of conveyances, and especially in regard to such proof when made by a subscribing witness. The revisers, in their notes upon § 15, say that so much thereof as refers to the residence of witnesses, is new, and was “ deemed desirable in order to detect fraud or to sustain an honest deed.” VoL 5, Statutes at Large, 345. The established canons for the construction of statutes require the courts to examine the condition of the law prior to the adoption of the statute, in order to discover its reason and purpose, and to so interpret it as to give effect to such purpose and object. Waller v. Harris, 20 Wend., 555.

The imperative language of the statute respecting the residence of subscribing witnesses, as well as its plain object, would seem to preclude the court from considering its requirements as either directory or immaterial. It was plainly intended to remedy defects in the pre-existing law which experience had shown to be dangerous. Proof of a conveyance by a subscribing witness being liable to be rebutted by evidence that he was interested or incompetent, § 17, it became important that parties interested should have some means of identifying such witness, aside from his mere name, which, in many cases, would be misleading and unreliable. The witness is, therefore, expressly required to state his residence, and that fact must also be incorporated in the certificate. This requirement has, in the safeguard it affords the public against possible frauds, a plain and obvious purpose to serve, which cannot be disregarded without opening the door to the most manifest abuse and imposition. To consider this provision as directory or immaterial violates the language of the statute, deprives it of its efficacy, and puts in the power of unknown and unascertainable persons the opportunity to foist upon the record evidence of important transactions in real estate without any adequate security against imposition and fraud. It is not necessary that this certificate should be expressed in the exact language of the statute, or according to any precise form ; but in respect to its substantial provisions it is indispensable that they should in some way be contained in it, and convey to all persons knowledge of the required information.

In the certificate in question no attempt is made to comply with the requirement of the statute in respect to the residence of the witness, and there is nothing in the circumstances surrounding the transaction "which can properly supply the omission to do so. We have not been referred by the respondent to any authority on the point holding such an acknowledgement to be valid or sufficient. In Dibble v. Rogers, 13 Wend., 536, it was held, where a deed was acknowledged by the grantor, that the identity of the person making the acknowledgement was not required to be proved to the officer taking it by the subscribing witness; but that other persons acquainted with him might make the necessary proof and the certificate would be sufficient, although the residence of such witness was not stated therein. It. was assumed, however, in the opinion that the statute required the residence of the witness to be imperatively stated only in the case of a subscribing -witness making proof himself of the execution of the deed. It was held in Fryer v. Rockefeller, 63 N. Y., 268, that an acknowledgement which failed to state that the persons making it were known to the officer as the persons described in and who executed the deed, although it did state they were “grantors of the within indenture,” was fatally defective and did not entitle the deed to be recorded.

We find no authorities holding that a material provision of the statute, expressly required to be stated, can be wholly disregarded and a deed thus acknowledged lawfully admitted to record That a deed improperly recorded cannot be read in evidence" has been determined in numerous cases. Morris v. Keyes, 1 Hill 540; Clark v. Nixon, 5 id., 36. The cases of Jackson v. Gumaer, 2 Cow., 552; West Point Iron Co. v. Reymert, 45 N. Y., 703, and Trustees Can. Academy v. McKechnie, 90 id., 618, referred to by the respondent, are not authorities on the point. These cases all arose under deeds executed previous to the adoption of the Revised Statutes, and under a statute which did not require the residence of the subscribing witness to be stated in the certificate of acknowledgement.

We should have been gratified in this particular case if we could have reached a conclusion in favor of the sufficiency of the plaintiff’s title, because we feel convinced that the lapse of time will soon cure any defects in her title ; but a careful regard for the salutary provisions of the statute has seemed to us to forbid such a result. The mere fact that in this case the subscribing witness was a well known and respected citizen, whose residence was widely known, cannot work a change in a general rule provided by statute, and we are, therefore, constrained to hold that the acknowledgement in this case does not entitle the Lawrence deed to be read in evidence.

The judgment of the general and special terms should, therefore, be reversed and a new trial ordered, with costs to abide the event.

All concur.  