
    James C. Wilkins, Use of William M. Gwin vs. Edward Wells.
    It was held to be the true construction of the statutes of this state on the subject of recording deeds, where all of its sections are considered together, that a deed attested by but a single witness may rightfully be admitted to record on proof by him and his oath that he saw the grantor sign, seal, and deliver it, and signed his name as a witness thereto in' presence of the grantor.
    In error from the Hinds circuit court; Hon. John H. Rollins, judge.
    James G. Wilkins, who described himself as suing for the use of William M. Gwin, sued Edward Wells, on the'3d day of September, 1838, in an action of detinue for certain negroes named Caesar, and Judah, and a child. He plead non detinet.
    
    On the trial the plaintiff offered in evidence a deed of trust, dated 26th March, 1835, by which Mat. D. .Patton, of Hinds county, conveyed to James 0. Wilkins the slaves in controversy, together with land in Hinds, and other slaves, to secure Leven R. Marshall, as Patton’s indorser, on a note for the sum of $8000, payable thirteen months after date. The deed contains a clause empowering the trustee to sell the property if Patton should make default. It was attested by J. M. Pel ton.
    On the deed are certificates, 1st. By F. Wood, clerk of the probate court for Adams county, that J. M. Pel ton, the witness, came before him and, being duly sworn, deposed and said that he saw M. D. Patton sign, seal, and deliver the deed, and that he (Pelton) subscribed his name as a witness thereto, in the presence of said M. D. Patton. The certificate is dated 1st day of June, A. D. 1835, and signed “F. Wood, Clk.”
    
    2d. A certificate by G. S. Bankston, the clerk- of the Hinds probate court, that the deed was filed June 9th, 1835, and recorded in his office 10th of same month.
    
      The defendant objected to the reading the deed and certificates ; the court sustained the objection, and the plaintiff excepted.
    The plaintiff then offered to prove that the words, “ Filed June 9th, 1835, C. S. Bankston, Clk.” indorsed on the deed, were in the handwriting of Calvin S. Bankston, at that time clerk of the probate court of Hinds county, and who had died before the trial. To this the defendant objected ; the objection was sustained, and plaintiff excepted.
    The plaintiff then proved the handwriting of Patton and Wilkins, and the deed was read in evidence. The plaintiff proved by Upton Miller, that about the 1st of January, 1835, he (Miller) purchased the land and negroes, mentioned in the deed of trust, from Mat. D. Patton, for $24,000; one-third to be paid at the time of sale, one-third in two, and the remainder in three years thereafter. That he took possession of the property, but was not to have a title thereto, until the whole purchase-money was paid. That an agreement, in writing, was entered into between Patton and himself, but no conveyance was made by Patton. That he paid the first instalment of $8,000. That a few days before the second instalment became due, Patton came to him, and wanted him to pay off a note for $9,000, or thereabouts, which Patton had executed to Leven R. Marshall, or on which Marshall was indorser, (and which was the note shown to witness on the trial.) He refused, the amount being greater than the sum he was to pay. The contract between himself and Patton was rescinded, the written agreement destroyed, and the property redelivered to Patton, who refunded the first payment. That the boy Ctesar, and girl Judah, now in controversy, were the same mentioned in the deed. That defendant, Wells, had repeatedly said, since the commencement of this suit, that he had purchased said negroes, and had them in his possession when the suit was instituted. Csesar was worth about $1000, and Judah about $600. The child mentioned in the declaration died before he redelivered to Patton.
    The plaintiff then read a note from Patton to Leven R. Marshall, for $9,496 73, dated 31st December, 1837, payable thirty days after date, at Planters Bank, and proved by Caswell R. Clifton that the same was paid as he believed from the marks of the cancelling hammer on it, which was evidence of payment, as the bank never so marked paper without payment.
    The plaintiff then read in evidence a copy of a bill in chancery, filed by William M. Gwin, the usee, against Edward "Wells, which, amongst other things, (not material in this controversy) shows that he, Gwin, purchased the slaves in controversy of Wilkins the plaintiff, on the 9th day of April, 1838; Wilkins selling under this deed of trust; and that he, Gwin, had sued Wells to recover them. This closed the plaintiff’s evidence.
    The defendant read the record of a judgment of W. P. Gray-so n use of the Planters Bank against M. D. Patton and John W. N. A. Smith, and also a judgment of the Planters Bank against M. D. Patton. He also read writs of fi. fa. issuing on said judgments, from which it appears, that each judgment was rendered the 14th day of November, 1836.
    He proved by W. C. Demoss, sheriff of Hinds, that under these executions, the defendant Wells purchased the slaves in controversy. The counsel for-plaintiff asked Demoss if notice was not given at the time of the sale, that there was a deed of trust upon the property, made prior to the judgments upon which the executions issued. The defendant’s counsel objected; the objection was sustained, and the plaintiff excepted. This was all the evidence.
    The plaintiff then asked four instructions. The first, second and fourth were given; no question, therefore, arises on them. The third was refused, and an exception taken. It is as follows : “ If the jury believe from the evidence in the case, that the sale of the negroes in controversy was made under a judgment obtained against Patten, after the execution of the deed of trust, it will not enable the defendant to hold them, if he had notice of the existence of the deed of trust, whether such notice was acquired by the registry of the deed of trust or otherwise.”
    The defendant moved for two instructions, which were given, and plaintiff excepted. They are,
    
      1st. If they (the jury) believe from the evidence, that the defendant purchased the negroes at sheriff ’s sale, under the executions produced, they ought to find for him, because the deed of trust shown by the plaintiff only proved by one witness, and not shown to have been lawfully deposited in the recording office for record, cannot prevail against a creditor of Patton.
    2d. As the plaintiff has not offered any proof that such note once existed, as mentioned in the deed, he cannot recover under the deed against a purchaser under a judgment and execution.
    A verdict having been found for Wells, a motion was made for a new trial, and overruled, to which the plaintiff excepted. The grounds of the motion do not appear.
    The plaintiff below prosecutes this writ of error.
    
      George S. Yerger, for plaintiff in error.
    1st. Does the law require a deed to be witnessed by more than one subscribing witness ? There is no express enactment, and if such be the law, it is merely an inference to be drawn from the form prescribed. ‘ It is believed, as the law requires but one to prove it, it is substantially complied with if there be one to the deed. And a substantial compliance with the law is all that is required, unless by positive and express enactment it is required that there should be two. It is the substance of the statute we must look to. Montgomery v. Hobson, Meigs Rep. 455; Watson v. Bailey, 1 Binn. 479.
    The first section of the act (see H. & H. 343), says, “the deed shall be proved by one or more of the subscribing witnesses.”
    The second section, in relation to marriage agreements, says, “ it may be proved by one or more witnesses, (not one or more of the subscribing witnesses.) This section in terms only requires one witness.
    The third section, which applies to deeds of trust, says they shall be void, &c. unless they shall be acknowledged or proved, and lodged for record, &c., according to the directions of this act.
    Section twelve contains the form of proof; the form says, the witness shall state that he subscribed it as a witness in the presence of the maker, and that he saw the other subscribing witnesses sign the same, &c. &c.
    
      Now it is evident, that the latter part, requiring him to state he saw the other witnesses sign, is only necessary where there is more than one witness to the deed. Where there is only one this necessarily must be omitted.
    2d. The court erred in not permitting the plaintiff to prove that the defendant, at the time he purchased, was informed of the existence of the deed of trust. Whether the deed was witnessed or not, it was good between the partiesand this court, after a solemn and laborious investigation of the question, has decided that if a purchaser, at execution sale, had notice of an unregistered deed at the time of his purchase, he was bound by it, the same as if it were proved and registered. The decision, although against my previous impressions of the law, I consider as having fully settled the question. It decides that notice is equivalent to registration in all cases whatever. Dixon & Starkey v. Lacoste, 1 S. & M. 70.
    3. The charge of the court that the note mentioned in the deed of trust, must be produced on a trial of an action of detinue, is manifestly erroneous; the legal title passed by the deed. The presumption of law is in favor of the deed; if it is attacked for fraud, the impeaching testimony must come from the other side. In this case, fraud was not charged or pretended. The recital will not estop third persons from proving there was no such note, and thereby establish fraud ; but the recital is prima facie evidence of the fact, against all’ claiming under the maker. Jackson v. McChesney, 7 Cow. 360.
    Deeds and conveyances passing property are always good, and estop the parties and all claiming under them, unless fraud is proved.
    
      D. Mayes, for defendant in error.
    1st. There is one ground upon which the plaintiff must fail, even if there be error in every decision to which he has excepted. The suit is in the name of Wilkins, the -trustee, for the use of Gwin. It appears by the plaintiff’s own showing, that before action brought, he had, as trustee, sold to Gwin. The action, therefore, should have been in the name of Gwin, as plaintiff, and not in that of Wilkins, for Gwin’s use, for by the sale all the title of Wilkins vested in Gwin. The action must be in the name of him who has the legal title. Chitty’s PI. 1, 2.
    As the plaintiff by introducing the bill filed by Gwin, shows title out of himself, no error which the court may have fallen into could be to his prejudice; and a party cannot assign that for error which is not to his prejudice.
    2d. Did the court err in rejecting the deed as a recorded instrument 1 A deed, though recorded, cannot be given in evidence upon the clerk’s certificate, unless legally proved; the execution must be proved. Eastland v. Jordan, 3 Bibb, 186 ; Morgan v. Bealle, 1 'Marsh. 310.
    This deed was not legally proved, either as a conveyance of land or slaves, but it is only necessary to show that it was not properly admitted to record as a conveyance of slaves.
    The seventh section of “an act concerning conveyances,” (Revised Code, 454), provides that the deed shall not be admitted to record, “ unless the same be acknowledged or proved, and certified according to the provisions of that act.”
    The first section authorizes the proof to be made “ before a judge of the supreme court of this state, or a justice of the county court, justice of the peace, and notaries public,” of the county in which the property lies.
    The twelfth section shows what must be proved to entitle a deed to record, and requires that the witness prove not only that he saw the grantor seal and deliver the deed to the grantee, and that he subscribed his name as a witness in the grantor’s presence, as is here the case, but also “ that he saw the other subscribing witness (or witnesses, naming them, as the case may be), sign the same in the presence of the said A. B.” (the grantor), “and in the presence of. each other, on the day and year therein named,” which is not done in this case. The objection to the recording of this deed then is twofold.
    1st. It was recorded on proof before the clerk of probates of Adams county, who had no authority under the act referred to to take it.
    2d. It was recorded without proof that the other subscribing witness or witnesses signed in the presence of the grantor and of each other. True there was no subscribing witness, save Patton. This only shows that the deed could not be legally proved so as to entitle it to record, and not that it was legally recorded. This section, and also the first, clearly show that the legislature contemplated and intended that a deed, to be recorded by proof, should be subscribed by more than one witness.
    An act of 1833 (Laws of Mississippi, 507), authorizes clerks of probate courts to take proof of deeds, but that clearly only relates to deeds of land. If this was a good recording as to the land, it was not as to the slaves, and slaves only are here in controversy.
    The deed having been admitted in evidence on proof of its execution, the question is only material so far as it relates to notice to affect creditors. Not having been legally recorded, it was not notice to creditors, although recorded in fact. Taylor v. McDonald, 2 Bibb, 420; Finley’s Executors v. Lynch, Ibid. 568.
    3d. Did the court err in rejecting proof that the indorsement on the deed was in the handwriting of Bankston? The fact was wholly irrelevant to any question in controversy.
    4th. Did the court err in rejecting evidence that notice was given at the time of sale, that a deed of trust had been executed conveying the property before judgment ? Notice at the time of sale could have no effect; notice to affect the right of the creditor must be at the time of judgment.
    5th. Did the court err in refusing the plaintiff’s third instruction ? There was no evidence tending to prove notice, and the proposition was therefore abstract. Again, notice to Wells was not material; he stood, by his purchase, in place of the creditor, and if notice at the time of sale could avail anything, it should be notice to the creditor.
    6th. Did the court err in giving plaintiff’s instruction ? This has been already discussed so far as the reason assigned in the instruction is concerned. But had the court, on the plaintiff’s own evidence, peremptorily instructed the jury to find for defendant, it would not have been error, for all the facts show (taken together) that he had no cause of action.
    
      7th. Did the court err in giving plaintiff’s second instruction % A deed without consideration would be void as to creditors. A recital in a deed is not evideuce, except between parties and privies.
    8th. Miller’s evidence shows that Patton could convey no estate in the slaves when he made his deed to Wilkins. He had sold and delivered them to Miller, and the contract was not rescinded until after the judgments. True, Miller says he was not to have title till he paid in full, but the facts divested Patton’s title to the slaves. The most that can be made of Miller’s evidence is, that Patton was to have a lien on the slaves, and when the contract was rescinded, the lien of the judgments immediately attached. Although Patton’s deed might estop him from saying, he had no title to the slaves when he made the deed, it does not estop the creditor; estoppels only exist as to parties and privies, and the judgment creditors were neither. Here again the plaintiff’s own facts show that he had no cause of action.
    
      James Trimble, on the same side.
    1. The proof of a deed in court by the certificates of authentication, is an ex parte mode of proof provided by statutes, in derogation of the common law rules of evidence, and the statutes must be strictly pursued, or the proof rejected. (If authority be wanted it will be found in every book. But the act of 1822, (How. & Hutch, 344, § 7,) settles the question.) “ No deed, &c., nor any deed, or other writing, for the sale of personal estate, &c., shall be admitted to record, &c., unless the execution shall have been proved (or acknowledged) and certified in the manner prescribed by that act.”
    2. That act requires that the deed be proved before, and certified by a judge of the supreme court, or judge of county court, justice of peace, or notary public of the county where the land lies. Ib. 343, § 1.
    3. Deeds of personal property must be recorded in the county where the property is at the making of the deed, &c. Ib. 344, §4.
    
      4. The act of December, 1833 (How. & Hutch. 368, § 99,) relates exclusively to deeds of lands, concluding with these remarkable words, “shall entitle the same to be recorded in the county where the lands conveyed may lie.”
    If the old, and only rational rule be observed, of applying the act to the subject-matter of legislation, it will be impossible io apply this act of 1833 to deeds of personalty, and on this point alone the deed must fall.
    5. If I am wrong on the 4th point, yet still the authentication of this deed cannot be supported.
    The 7th section, p. 344, already cited, imperatively requires that deeds of personal property shall be proved and certified in the same manner as deeds of land, but does not prescribe the mode of certifying.
    It is in the 12th section, p. 345, that the mode is prescribed. It is in the imperative mood, and requires that the certificate shall be in the form, or to the effect following, and then gives the form.
    There is no pretence that the proof of this deed is certified in the form required by the act, and the only remaining question is, whether the certificate is " to the effect,” or not. Now the act requires that the witness shall prove that he subscribed the deed as a witness, in the presence of the grantor, and that he saw him sign, seal, and deliver the same.
    Now we may safely admit that this is sufficiently certified on this deed.
    6. But this is only half of what the act imperatively requires. This witness must also prove, that another witness signed the same, in the presence of the grantor.
    It is for the legislature to make the law, and to judge exclusively of its wisdom, expediency, and necessity; and it is for the judiciary to carry the law into effect, according to the legislative intention.
    Now if the legislature thought that a'second subscribing witness would be some safeguard against the danger of this ex parte evidence, and have prohibited the recording of the deed without this proof, shall the judiciary repeal or disregard the prohibition? The legislature have not declared in direct terms how-many subscribing witnesses shall be to a deed; but it has required, in direct and unequivocal terms, that it shall be proved by the witness that the other witness signed the deed in the presence of the juror, and of the grantor.
    The reasoning of the supreme court of the United States, in the case of Bell v. Morrison et al. 1 Peters, 355, and the principles there adjudged, are strictly in point.
   Mr. Justice Clayton

delivered this opinion, as the opinion of the court at the November term, 1846.

Several questions are presented by the record in this case.

The first is, whether a deed of trust of personal property is correctly admitted to record, when there is but one subscribing witness, upon proof by such witness. The statute evidently contemplates that all the instruments mentioned in its first section, should be attested by at least two subscribing witneses. The class of instruments mentioned in the second section, namely, marriage covenants and agreements, it would seem, may be proved by one witness, but it is by no means certain, whether it was meant to lay down a different rule, in regard to them, from the one prescribed in the first section. The third section directs that all instruments therein named, including deeds of trust, shall be recorded, according to the directions of this act. The form of certificate and proof given in the twelfth section, requires the attesting witness to swear, “ that he saw the other subscribing witness or witnesses sign the same in the presence of the party.” H. & H. 343. From all these provisions taken together, we come to the conclusion, that the recording was not good in this instance, as the deed had but one subscribing witness.

After the deed was rejected by the court below, the plaintiff offered to prove that the defendant had notice of the deed of trust, at the time he became a purchaser. This proof was rejected also by the court. This was error, as it is the settled construction of the statute, that notice of an unrecorded deed is equivalent to registration. Dor v. La Coste, 1 S. & M. 70.

The fact that at the time this deed of trust was executed, Patton, the grantor, had sold the slaves, with condition that the title was not to pass, until they were paid for, does not operate to defeat recovery by the trustee, as the condition was not complied with, and the contract was cancelled. The possession of the purchaser under the circumstances, was not of a character to avoid the deed.

The case of Buckner v. Hundley, 6 S. & M. 70, settles one or two other points in this cause.

The judgment must be reversed, and new trial granted.

On the delivery of the foregoing opinion, the counsel for Wells filed a petition, and moved for a reargument. It was granted ; the case reargued, and Mr. Chief Justice Sharkey delivered the opinion of the court on the reargument, as follows:

This was an action of detinue, brought by the plaintiff to recover two slaves. The plaintiff claims by virtue of a deed of trust, made by M. D. Patton, and filed for record the 9th of June, 1835. The defendant was the purchaser at sheriff’s sale, made under executions which emanated on two judgments against Patton in November, 1836. The deed of trust constituted the prior lien, and unless it be defective, must prevail. The principal question arises out of a supposed defect in the proof of the execution of the deed of trust, on which account it was excluded as a registered deed; but it was established at the trial by proof of the handwriting of the grantor. The deed was excluded because there was but one attesting witness, although it was admitted to record on proof by that witness. If in this particular there was error in charging the jury that the deed was improperly attested by one witness, then the deed, being prior in time to the judgments, must hold the slaves.

This question depends exclusively on the construction of the statute in relation to conveyances; and it is to be remarked in the outset, that the statute nowhere expressly requires that there should be two witnesses to any conveyance, and if the statute can be so understood, it is only by construction placed upon the phraseology used in prescribing the form to be followed in making proof of deeds, and upon the language of other sections of the act.

The first section provides that conveyances shall not be valid against purchasers and creditors without notice, unless the writing be acknowledged by the party who executed it, “or be proved by one or more of thé subscribing witnesses to • it.” This language does not amount to a positive requirement that there shall be two witnesses. Proof by one is sufficient, according to the letter of the statute; and it seems strange that the act should be regarded as requiring two witnesses, when it does not require that both should testify to the execution. It seems probable that the act was framed in view of the probability that there might be two witnesses.

The second section relates to agreements in consideration of marriage, and requires that they shall either be acknowledged by the party, “ or proved by one or more witnesses.” Evidently one witness is sufficient to such an agreement; and no reason is perceived for any distinction. Indeed, the class of conveyances embraced in the second section, are necessarily included in the first, which contains only a general provision, that no estate of inheritance, or freehold, or for a term of more than one year, shall be conveyed, unless the conveyance be declared by writing, sealed and delivered. Marriage settlements are here included, of course, under this general legislation. And it becomes the more obvious that the legislature did not intend to require two witnesses, as in the next section one witness is all that is required, when legislating particularly on a class of conveyances embraced within the general provision of the first section.

The clause chiefly relied on as requiring two witnesses to all deeds, is the form given in the statute for taking the proof. It requires only the proof of one witness, but it requires him to swear that he saw the grantor sign, seal, and deliver the deed; “ that he (the witness) subscribed his name as a witness thereto in the presence of the grantor, and that he saw the other subscribing witness, or witnesses, sign the same in the presence of the grantor, and in the presence of each other.” Is this a positive requirement! If it had been thought important that more than one witness should subscribe, it is remarkable that the legislature did not say so in words, as was done in the case of wills. A marriage settlement must be proved according to the effect of the form given, and yet we have seen that to such agreements but one witness is required. He could not therefore swear that he saw the other witnesses sign. Hence it is manifest that this form does not in all cases require two witnesses ; and if not in all, why in any ?

In looking through the various sections of the statute, the 16th section sheds much light on the subject. It provides that If the grantor or grantors, witness or witnesses of any deed, conveyance or other instrument of writing, be dead or absent, so that his or their personal attendance cannot be had, it shall be lawful for any judge,” &c., to take the examination of any person or persons to prove the handwriting of such deceased “ witness or witnesses.” This section is entitled to as much weight in construing the whole statute as any of the preceding sections. It evidently provides for the proof of deeds having but one witness, and in case of his absence provides a mode of proof. Is it true then that one absent witness is equivalent to two who are present? A party having a deed, the witness to which was absent, would look to this section for a mode by Which it could be established ; and it could be proved although there was but a single witness, for the statute expressly authorizes it. And what is the consequence of holding to the necessity of two witnesses? It is this; if a party should take a deed with but one witness, he cannot prove it so long as that witness remains in the state, but if he remove from, or be sent out of the state, then the deed may be proved by making proof of his handwriting. We cannot by mere construction make the law present such an absurdity. The law nowhere requires the attestation of even one witness. The deed is good without it, if the party will acknowledge it.

The deed of trust should therefore have been admitted as a registered deed, and for this error the judgment must be reversed, and cause remanded.

Mr. Justice Clayton

delivered this opinion.

I still adhere to the decision formerly made in this cause. The statute is by no means free from doubt, yet I cannot give effect to the 16th section, beyond those cases, to which it is in terms confined. That section seems intended to create an exception in favor of a particular class of cases, from mere necessity; to enlarge its operations by construction, would extend it beyond the necessity which caused-its enactment.  