
    Currie v. Donald.
    April Term, 1795.
    Deed — Indenting—Recordation—Validity between Par- . ties  — A deed, though neither indented, nor recorded, is valid between the parties, under the Act of 1748, and is sufficient to pass an estate.
    Deed Indented. — A deed beginning “ Thi's Indenture,” is a deed indented to every legal purpose.
    Deed — Delivery—Evidence.—witnesses attesting the delivery of a deed, shall not afterwards be admitted to disprove it.
    Same — Same—Escrow.—If a deed be intended to be delivered asan escrow, it ought to be so stated.
    In an ejectment brought by the lessee of the appellant against the appellee, in the Court of Hustings of the city of Richmond, the appellee at the trial, to shew that the title was out of the appellant, offered in evidence a deed from the appellant to Hunter Banks & Co. whereby he conveyed to them in fee simple the demised premises.
    The deed being objected to, and the objections over-ruled by the court, a bill of exceptions was filed, stating that the deed was neither indented, nor had it been recorded ; also, that no proof of its delivery was given except the following, to wit: one of the subscribing witnesses did not recollect that it was delivered, but was sure that he should not have attested it unless he had seen the appellant sign and seal it, or heard him acknowledge that he had done so. Another of the subscribing witnesses did not ^recollect the delivery, but is sure that he should not have attested it, unless he had heard the appellant acknowledge it as his act and deed, for the purposes therein mentioned, as it was his constant custom to require such acknowledgment. The third subscribing witness was out of the country, and the fourth interested, but their hand • writing was proved. A witness who had not attested the deed, deposed, that the deed was delivered to him by some person to examine, but whether by Currie or Hunter he could not remember, and he being of opinion that there were inaccuracies in it, retained it (for the purpose of drawing a new deed) until it was brought into court at the trial— the bill states that this was all the evidence given respecting the delivery of the deed.
    The jury found a verdict for the defendant, and upon an application to the District Court of Richmond for a supersedeas, the motion was refused, from which an appeal was prayed to this court.
    Campbell for the appellant. The deed was improperly admitted as evidence to prove the title to be out of the appellant for three reasons. 1st, That it was not recorded. 2d, That it was not indented — and lastly because it was not delivered.
    The first objection, as well as the second depends upon the construction of the act of 1745, C. 1. The first section declares “that .no estate of inheritance, or of freehold, shall pass, alter, or change from one person to another, unless by deed in writing, indented, sealed and recorded, in manner therein after mentioned.” The manner is, that it should be proved by three witnesses, or acknowledged within a certain time in the General Court, or Court of the County wherein the land lies. The 4th section declares all deeds not recorded according to the directions of this law, void as to subsequent purchasers and creditors, but that the same shall be good between the parties, tho’ not recorded according to the directions of the act. Now, where the law annexes certain qualities to a thing, they are a part of the thing itself. A deed of feoffment at common law passed, no interest without livery of seisin; but when livery was made, it related back to the feoffment. So recording, which hath been substituted in the room of livery, is essential to pass the estate out of the grantor, and without it no estate is vested in the grantee. The two sections of the law must be so construed as to avoid contradiction. To say that the first, renders all deeds ineffectual which are not indented and recorded, and that the 4th makes them valid, tho’ those requisites are not observed, is a construction which unnecessarily produces indecent *hostility between the two sections. It is the business of the court then, to give such a construction, as to reconcile the various parts with each other. B3" the first section, no estate passes without recording ; by the 4th, the deed if not recorded within the time prescribed, is void as to purchasers and creditors, but not as between the parties, if recorded at all, tho’ not within the time. Yet until it be recorded, no estate passes. The cases determined under the statute of 27 H. 8 C. 16, which is substantially the same as the law in question, are in point. Until inrollment, no estate passes, Shep. Touch. 220. So the same book proves, that unless the deed of bargain and sale be indented, nay written on parchment, nothing passes, because the statute requires those things. As an evidence that the legislature meant what I contend they have expressed, the 12th section of this very law gives validity to deeds, which before that time had not been indented and recorded in pursuance of the act of the 9th of Ann, C. 13, which was in the very words of this law as to those requisites.
    The next objection is, that the deed was not delivered. The whole evidence being stated upon the record, the validity of the deed becomes a question of law. Delivery is sometimes a question of fact, sometimes a question of law. If it be delivered to a third person to examine, or as an escrow, there is in fact a delivery, but in law no estate passes thereby. Now in this case, a delivery was not proved by the evidence stated in the bill of exceptions, and it appears that that was all the evidence on that point.
    Ronold for the appellee. The objection as to the deed not having been recorded, is fully settled as I conceive by the case of Turner v. Stip, (ante Vol. I, P. 319,) in which the court determined, that a deed was valid between the parties, tho’ improperly admitted to record, or not recorded at all.
    The next objection is, that the deed was not indented. But this is not necessary to pass an estate, 2 Blac. Com. 300. Nay it is not even necessary in order to produce an estoppel, for a deed poll will answer the purpose, 1 Morg. Ess. 169. The inconvenience, of the novel doctrine now contended for would be infinite. If strictly pursued, it would defeat the effect of almost every conveyance made in this country. For if indenting be necessary, we must refer to the common law for the mode, and we shall there find, that it was performed by cutting through letters, 2 Blac. Com. 299, a practice which has never been pursued in this country. We are to consider the intention of *the deed, and even if the appellant’s counsel be right in his construction of this law, so that the deed in question cannot take effect as a deed of bargain and sale, yet it may operate as a covenant to stand seized, ut res magis valeat quam pereat. Or the deed may operate as an estoppel to the claim of the appellant.
    The third point is, that the deed was not delivered. A delivery may be made either by words, or by acts, Shep. Touch. 55. It will be valid if made to a stranger for the use of the grantee, Ibid. 56. Now the evidence in this case seems to be compleat. One witness has declared, that unless the grantor had acknowledged the deed to be his act for the purposes therein mentioned, he would not have attested it, because it was his constant practice to require this solemnity. But what I consider as conclusive, is the attestation. All the witnesses have there declared that the deed was signed, sealed and delivered, in their presence. I contend that those witnesses ought not to be permitted to contradict their attestation, even if their evidence went to that. It would be extremely mischievous, if a witness, after giving authenticity to a paper by his signature, were permitted to deny the fact which he has thus authenticated.
    Marshall on the same side. As to indenting, it is certainly unnecessary at common law to pass an estate, and tho’ spoken of in the first section of the act of Assembly, it is dispensed with by the fair construction of the 4th ; which declares the deed valid between the parties, though it want this solemnity. This is the more evident, by connecting this with the 3d section of the law which speaks of deeds poll. There are deeds spoken of in the 4th section which most certainly need not be indented, and then it is said, “but the same as between the parties shall be valid.” What same? the answer is, deeds poll as well as deeds indented.
    As to the delivery, it is a mere question of fact. The court cannot say, what weight of evidence shall be sufficient to prove it. If the deed be antient, slighter evidence will satisfy a jury of the fact, than if it be a recent one. It cannot be expected that a man shall preserve his testimony to any indefinite period of time, when he may be called upon to prove this fact. It is only necessary for him to satisfy a jury of the fact, and in this case the jury was satisfied.
    I shall say nothing upon the subject of recording, since that point has been already settled in this court, by the case of Turner and Stip.
    ^Washington in reply. It is evident that there is no way to reconcile the apparent inconsistencies of the act of 1748, but bj' giving to it this construction, viz: the deed must be recorded at some time or other, in order to pass an estate of freehold: but as to creditors and subsequent purchasers, it must not only be recorded, but it must also be recorded according to the directions of the act; but as between the parties, it need not be recorded according to the directions of the act, but then it must be recorded. By this construction, the act is rendered consistent, and each clause and sentence of the law will have an effective meaning. Upon this distinction, the present case differs from that of Turner and Stip; in that, the deed was recorded though not agreeably to the directions of the act; in this, it was not recorded at all.
    As to the indentingIt is true, that at common law, this piece of solemnity is not necessary to pass an estate; but this is no answer to the objection. The statute positively requires' it, by declaring that no freehold estate shall pass but by deed indented. Is there any case which proves, that a solemnity thus imperiously required by statute can be dispensed with? On the contrary, do not the cases cited by Mr. Campbell, decided upon the statute of in-rollments, clearly prove, that a solemnity thus required, must be performed in order to give efficacy to the deed? As to the argument, that it is good as a covenant to stand seized, though it should not take effect as a deed of bargain and sale, there is certainly nothing in it, because the deed itself is void, and being- so, it can under no name pass an estate.
    The 4th section does not dispense with indenting, tho’ it does with recording in the manner prescribed by the 1st section as between the parties to the deed. To repeal the express declarations of the first, by any implication growing out of the 4th section, would be repugnant to every rule of construction.
    Upon the point of delivery, the arguments on the other side prove too much. They would go to establish what no professional man would directly avow; and that is, that a delivery is not necessary at all. I admit that in this, as in all other cases, the best evidence is to be given which the nature of the case will admit. It was so in this case. But then certain questions of law arise upon that evidence. Is the acknowledging of a deed equal to a delivery of it? Let it be that the former is sufficiently proved; but is that enough? Host clearly it is not. —Again, was the delivery to the witness to examine it, such a delivery as would pass the estate? Certainly not, but the contrary. Yet all these points were decided by the court, and as we say improperly.
    
      
       Unrecorded Deed. — That a deed put upon the record, without the proof and authentication required by law, is to all intents and purposes an unrecorded deed, see Doswell v. Buchanan, 3 Leigh 378, citing Turner v. Stip, 1 Wash. 319; Chirrié v. Donald, 2 Wash. 59, 64. The principal case is cited with approval in Johnston v. Slater, 11 Gratt. 325.
      Same —Validity between Parties.— The principal case is cited in MeCandlish v. Keen, 13 Gratt. 630, to the point that a deed of trust, though unrecorded, is yet good and valid as between the parties. See Turner v. Stip, 1 Wash. 319.
    
    
      
       Acknowledgment oí Deed — Evidence of Delivery.— In Roanes v. Archer, 4 Leigh 565, the court said that it was inferrible from the principal case that the acknowledgment of a deed before witnesses is sufficient evidence of delivery.
    
    
      
       Escrow — Delivery to Obligee. — The principal case is cited in Miller v. Fletcher. 27 Gratt. 411, and Lyttle v. Gozad, 21 W. Va. 200. to the point that a deed or bond cannot be delivered to the obligee as an escrow, and if it is, the condition will be regarded as invalid and the deed or bond as absolute. The principal case is cited in American Button-Hole, etc., Co. v. Burlack, 35 W. Va. 653, 14 S. E. Rep. 320. See footnote to Hicks V. Goode, 12 Leigh 479.
      See monographic note on “Deeds” appended to Fiottv. Com., 12 Gratt. 564. and monographic note on “Acknowledgments” appended to Taliaferro v. Pryor, 12 Gratt. 277.
    
   *LYONS J.

delivered the opinion of the court.

The first objection which I shall notice is the want of indenting. It is contended that the first section of the law requires this solemnity, and that the 4th does not dispense with it even between the parties. But the answer is, that the 4th section would be nugatory if all these and the other requisites were necessary, for if the deed be void for the want of them by the first section, it was unnecessary to declare it void in the fourth.

What is it, that shall be binding between the parties? The answer is, all conveyances without restriction. The apparent object of the law was to secure creditors and subsequent purchasers, and not to affect the parties. This is more particularly proved by the 10th section of the law, which requires memorials of all recorded deeds to be transmitted to the secretary’s office to be there registered.

But suppose indenting were necessary, this deed begins “This indenture.” It is signed, sealed and acknowledged as a deed indented, and the grantor cannot after-wards deny it. It is to be taken most strongly against him. What would be the consequence, if proof of indenting were always necessary? The • originals cannot always be produced, and in the copy it cannot appear. The most trifling degree of indenting would be sufficient, and. this might be worn out, so as not to be perceived. In the strictest pleadings they are called deeds of Indenture, not deeds indented. The cases all prove, that indenting is unnecessary. Judge Blackstone in his commentaries says, that it is now of little other use than to give a name to the deed. This case in principle may be compared to that of Jones & Temple v. Log-wood, (See ante Vol. 1. P. 42) where this court determined, that a scroll was equivalent to a seal of wax, or of any thing capable of impression, and impressed. This decision was founded upon the real justice of the case and the custom of the country; that the scroll being adopted by the party, and acknowledged to be his seal, made it his seal in fact. So here, the party having acknowledged that this was an indenture, he has made it so as to every legal purpose. A deed beginning “This indenture,” tho’ not in fact indented, may be given in evidence. Morg. Rss. 169.

The second objection is to the proof respecting the delivery. The parties have declared it to be sealed and delivered, and this is attested by the signature of 4 witnesses who could not afterwards have been permitted to disprove it. This delivery we must consider as absolute, because if it had been intended as an *escrow, it ought to have been so stated. Neither is there any proof that it was so intended, but the contrary is strongly to be inferred from the evidence. It would have been sufficient to have entitled the deed to be recorded, if it had been offered.

The last objection is, that it was not recorded. The case of Turner and Stip is conclusive upon this point, for tho’ that deed was admitted to record, yet it was improperly admitted, and was consequently in the same situation as if it had not been recorded at all.

The cases cited by the appellant’s counsel upon this point do not apply, because there is nothing in the statute of inrollments similar to the provisions contained in the 4th section of our act of Assembly.

Order of the District Court affirmed.  