
    Hutchison & Wife v. Rust & als.
    January Term, 1846,
    Richmond.
    (Absent Stanard, J.)
    i. Deeds — Acknowledgment—Certificate of Justice— Evidence. — The acknowledgment of a deed, before justices, by the grantor, and their certificate of the acknowledgment, is not conclusive evidence that the execution of the deed is complete and perfect.
    2. Same — Same—Grantor Retains Deed Intention. — A deed being acknowledged before justices by the grantor, who retains possession of it; it depends upon the intention of the grantor at the time, whether the acknowledgment is a complete execution of the deed.
    3. Same — Same—Same—Same—How Ascertained. — In such case, the intention of the grantor may be ascertained by evidence of his previously declared purpose, though nothing is said at the time of the acknowledgment, to indicate his intention.
    This is a suit brought by Lemuel Hutchi-son and Catharine his wife, against the children and heirs of Benjamin '-Rust, sen. deceased, to set up a deed alleged to have been executed by the said Benjamin to the said Catharine, his daughter.
    It appeared from the evidence, that Benjamin Rust, sen., was an old man, a widower with eight children, residing in the county of Fauquier. Of his children, all but three were settled in the counties of Fauquier and Loudoun; and it was the purpose of Benjamin Rust to divide the tract of land on which he lived among these three children, who were Benjamin Rust, jr., John S. Rust, and the plaintiff Catha-rine. This tract consisted of between five and six hundred acres of valuable land. He also owned a tract of land on Kanawha river, which he valued highly; and his plan was, to give the Kanawha land to his other children; and that all his children should be made equal, by payments by those who received most to those who received least. His first plan for dividing his property seems to have been by will; but he afterwards changed it, and determined to do it, at least so far as the Fau-quier lands were concerned, by deeds to the three children for whom he intended these lands, reserving a life estate to himself. The persons with whom he consulted upon the mode of dividing his lands by deed,, advised him that it would be necessary, that those receiving the conveyances, should, execute bonds binding them to pay what should be found necessary to equalize the portions of the children; and one of the persons with whom Benjamin Rust, sen. consulted, Josiah Titball, who was examined as a witness, states that he understood, that said Benjamin Rust, sen. was to keep possession of the deeds until the children therein named should execute some obligation binding themselves to make up to his other children any difference that might exist between the property conveyed by those deeds, and the property that might be allotted to his other children in western lands. But this understanding of the witness was derived from conversations *had with Rust previous to the day on which the deeds were executed by him.
    On the 13th of June 1826, Benjamin Rust, sen. had three deeds prepared, by one of which he conveyed to Benjamin Rust, jr. 208 acres of his Fauquier lands, reserving a life estate therein to himself; by another, he conveyed about the same quantity of these lands to Catharine Hutchison, with a like reservation; and by the third, he con-vejed one hundred and fifty acres of his land to John S. Rust, with a like reservation. He then sent for two justices of the peace, Thomas Shearman, and Josiah Tit-ball, the same person before mentioned, and acknowledged said deeds before them; whereupon they certified the said acknowledgments, by endorsements on the deeds, in the form prescribed by the act of assembly. The acknowledgment of Benjamin Rust, sen. was made in the usual manner; and nothing seems to have been said on the occasion which indicated that the acknowledgment was not to be a complete and final execution of the deeds, though he then remarked, he wished to make his children equal.
    At the time of the acknowledgment of the deeds, fhere was no person present but the justices and Benjamin Rust, sen. ; and after the certificates of the justices were written, the deeds were returned to him.
    It appears that Benjamin Rust, jr. had’ lived with his father for many years, as his manager, upon the terms of receiving one sixth of the crops; and that he claimed to be due him, under that contract, about 4000 dollars. About the time of the acknowledgment of the deeds, there was an attempt at a settlement between Benjamin Rust, sen. and his son; but the old man objected to the account, alleging that his son had sold the crops, and he, the father, did not know what had become of the money. He, however, told his son, he would make him a title to the two hundred acres of land, because he had intended to do so,, but not for his *claim to the account. He accordingly delivered to Benjamin Rust, jr. the deed by which was conveyed to him two hundred and eight acres of his land; and this deed was afterwards admitted, to record.
    The deeds to Mrs. Hutchison, and John S. Rust were retained by Benjamin Rust, sen. until they were taken from his desk by his daughter Emma Hicks, as she states in her answer; and that to Mrs. Hutchison was subsequently destroyed, as Mrs. Hicks says, by the direction of Benjamin Rust, sen.
    Soon after the delivery of the deed to Benjamin Rust, jr., the plaintiff, Lemuel Hutchison, at the request of Benjamin Rust, sen., purchased B. Rust, jr.’s land, and went to live with Benjamin Rust, sen.; but they soon quarrelled, and then John S. Rust purchased the land for Hutchison. It was subsequent to this quarrel that Mrs. Hicks says she destroyed the deed to Mrs. Hutchison, by the direction of her father.
    There was much testimony taken upon the question of fact, whether- Benjamin Rust, sen. intended, when he acknowledged the deeds before the justices, that they should be completed instruments; or whether he intended to hold them subject to be revoked, until the grantees executed the equalizing bonds spoken of by the witness Titball. The Court below and this Court were of opinion that he intended the last.
    Since the death of Benjamin Rust, sen., his land on the Kanawha river has been sold for SO00 dollars. The land in Fauquier was valued as at,the time of his death, at 30 dollars per acre.
    The cause came on to be finally heard in May 1838, when the Court below dismissed the bill; and thereupon the plaintiffs applied for and obtained an appeal to this Court.
    Stanard, for the appellants.
    There is no dispute in this case about the contents of the deeds which we ask *the Court to set up. The three deeds to the three children were counterparts of each othef, except as to the names of the grantees, and the land conveyed; and that to Benjamin Rust, jr. is in the record. These three deeds were acknowledged at the same time, before the same justices. The certificates of the acknowledgment were in the same form. They were all left in the possession of the grantor. And, without any other certificate, or proof of execution, the deed to Benjamin Rust, jr. was admitted to record; and he was put into possession of, and held the land embraced by his deed. The other, two deeds are not now in existence, and we have no information as to what became of them, except from the answer of one of the defendants, which, as it is not responsive to the bill, is not evidence.
    I shall in the first place, consider the case as the simple case of a voluntary conveyance by the grantor in the presence of witnesses, of which the grantor never parted with the possession; but which was subsequently destroyed by him. In such a case, could a Court of Equity refuse to set up the deed? The following cases seem to be conclusive on that question. Barlow v. Hen-eage, Free, in Ch. 211; Clavering v. Claver-ing, 2 Vern. R. 473; Lady Hudson’s Case, cited in Clavering v. Clavering ; Boughton v. Boughton, l'Atk. R. 625 ; Worrall v. Jacob, 3Meriv. R. 256; Garnons v. Knight, 12 Eng. C. E. R. 351.
    In the case of Garnons v. Knight, the grantorosaid, in the presence of witnesses, “I acknowledge and deliver this as my act and deed;” but he did not deliver it, but retained it in his possession. If the justices were simply witnesses, Benjamin Rust, sen. said to them, “I acknowledge this as my act and deed.” Unless, then, the addition of the word deliver, when no delivery was made, can distinguish the Cases, Garnons v. Knight is an authority in point to sustain the validity of the deed in this case.
    *Upon the evidence, we insist it was clearly the intention of Benjamin Rust, sen. that his acknowledgment of these deeds should operate to give them validity, though he retained them in his possession. The signing, sealing, and acknowledgment, are sufficient evidences of a perfect execution of the instruments, unless the legal effect of these acts be prevented by proofs of a contrary intent on the part of the grantor; and the onus is, therefore, upon the parties relying upon' such contrary intent, to establish it. And we insist, it is not the impressions of a witness as to the intent of the grantor, which can set aside his most solemn acts; and convert that which, to all appearance, was, and was intended to be a valid and operative act, into an idle ceremony.
    But is this a case in which we are to be put upon proof of the delivery of the deed? The deed was signed and sealed, and acknowledged before the officers of the law authorized 'to take the acknowledgment; and, therefore, we contend, that no farther proof of execution is necessary on our part; and no proof is admissible to avoid the consequences of that acknowledgment. At common law, it is well settled, that a party is not allowed to plead non est factum to an enrolled bond. Baker, treasurer, v. Preston & ais., Gil. R. 254; 14 Viner’s Abr. 444. And the reason given for it, is, that the enrolment is proof of execution. Under our statute authorizing justices to take the acknowledgment of deeds, their function is, not to aid in the making of a deed, but to certify the acknowledgment of it when it is made. They can only certify a complete deed, because on their certificate, the clerk is to admit the paper to record; and, certainly, no unexecuted deed should be, or can be, legally recorded. If, then, a party may be allowed to avoid his own acknowledgment of the deed, by the proof of the justice who took it, in opposition to the certificate of the justice, which it is not pretended *was fraudulently or improperly made, the consequence must be, that not the records themselves can give any satisfactory assurance of the validity of any title to lands.
    If the deed may be acknowledged before justices before it is executed, then, upon principle, an alteration subsequently made before delivery would not avoid it; and yet the contrary of this is held in Moore v. Bickham, 4 Binn. R. 1; and it is there decided, that the slightest change cannot be made in the deed after acknowledgment before justices.
    Why should not the acknowledgment before the justices be held to be a perfect execution of the deed? When the acknowledgment is made the deed is in possession of the justices. The grantor is no longer entitled to possession of it; and the justices must be considered as holding it for the grantee. If they deliver it again to the grantor, for his own use, without the assent of the grantee, it must be a violation of their duty, and of the rights of the grantee; and when, therefore, they do deliver it to the grantor, in the absence of proof to the contrary, they must be presumed to have delivered it to him to be forwarded to the clerk to be recorded. Being so delivered, the possession of the grantor does not avoid his previous delivery of it to the justices, according to the principle of Garnons v. Knight; and that delivery to the justices is sufficient to constitute it a valid and operative deed. Shelton’s Case, Croke Eliz. 7.
    Previous to the act of 1814, it was necessary that deeds should be acknowledged in Court in order to be recorded. It will hardly be denied that a deed thus acknowledged by the grantor, and the record of this acknowledgment being made by the clerk, would be a perfect and operative deed, though the grantor retained possession of it. But the act of 1814 only substitutes the justices for the Court. The duty to be performed by both is the same. The certificate of the justices is in *the place of the entry on the records of the Court by the clerk; and they perform the same function of authorizing the clerk to spread the deed upon the records of his office. But this question has been in fact decided in the case of Harkins v. Forsyth, 11 Heigh 294. In that case, it is true, the deed was recorded; but this Court has decided that the recording is a mere ministerial act. Beverley v. Ellis & Allan, 1 Rand. 102; S. C. 10 Heigh 1.
    Morson, for the appellees.
    In this case we differ both about the law and the facts. The principal ground of difference as to the facts, is, whether when Benjamin Rust, sen. acknowledged the deeds which are the subject of controversy, it was his intention to execute a perfect and concluded instrument. The appellants say such was his intention : we say it was not.
    The first point made by the appellants’ counsel, is, that the acknowledgment of the papers before witnesses, or justices, estops the grantor from denying they are his deeds.
    The acknowledgment of the deed is no part of the deed, and is not necessary to its validity. At common law such acknowledgment was in «no case necessary; and under our statute, the deed is valid without acknowledgment, between the parties; and an acknowledgment is only necessary, in order to have it recorded; and thus make it valid against subsequent purchasers without notice, and creditors.
    We do not admit, that an acknowledgment of a deed before justices has any other or greater effect than an acknowledgment before witnesses. The object of the acknowledgment in either case, is to have the deed recorded; and the law gives no more force or effect to the one mode than the other. 1 Rev. Code, ch. 99, § 7, p. 363. An acknowledgment in Court is a record, and thus differs from an acknowledgment before justices.
    *The fact which the counsel on the other side must establish in order to give validity to these papers, is not the acknowledgment, but the delivery by the grantor. I shall not contend that there must be a manutransmission of the deed. The delivery may be either actual or constructive ; and when the constructive delivery is established, it is equally valid with the first. But when it is attempted to prove a constructive delivery of a deed, the intention of the grantor is of the very essence of the transaction; and no act which does not clearly indicate the intention to deliver the paper as his deed, can establish a constructive delivery. Now, an acknowledgment is only a fact from which a delivery may be inferred; and this being from its nature merely presumptive, that presumption may be rebutted by countervailing testimony.
    I might rely upon the case of Garnons v. Knight, 12 Eng. C. H. R. 351, cited on the other side, to shew that the question whether there has been a delivery, turns upon the intention of the grantor. In that case the authorities cited by Mr. Stanard, are collated and considered; and it will be found on examination, that in all of them there was a clear intention, at the time of the acknowledgment, to perfect the deed; and the doubt whether there was a delivery, arose, only from the grantor’s retaining possession of the paper. Garnons v. Knight, establishes only the proposition, that where there is an acknowledgment, unless the intention was not to deliver, the simple fact of retaining possession of the paper, is not sufficient to rebut the presumption of delivery. But where it affirmatively appears that the grantor did not intend by the acknowledgment to perfect the deed, but intended to retain the power of revocation, though this intention does not appear on the face of the deed, a Court of Equity will not set it up. Such was the case of Nalred v. Gilham, 1 Pi Wms. R. 577; Ward v. Hant, Prec. in Ch. 573; Cecil v. Butcher, 2 *Jac. & Walk. 565; Platimone v. Staple, Cooper’s Oh. Cas. 2S0; Uniacke v. Giles, 12 Cond. Eng. Ch. R. 440. ,
    There are also cases in this Court, which •shew that an acknowledgment cannot operate as an estoppel upon the grantor. Eppes v. Randolph, 2 Call 103; Roanes v. Archer, 4 Eeigh 550. In these cases, if the first acknowledgment was conclusive of the perfection of the deed, the second could have had no effect in passing the estate. So, in our sister States, it has been decided in many cases, that an acknowledgment is not 'conclusive, though it is cogent evidence of delivery, whether the acknowledgment be before witnesses, or justices, or even before the Court. Jackson v. Phipp, 12 Johns. R. 418; Maynard v. Maynard, 10 Mass. R. 4S6; M’Connell v. Broem, 4 Bitt. Select Cas. 466; Sicard’s lessee v. Davis, 6 Peters’ R. 124; Scrugham v. Wood, IS Wend. R. S4S; Powers v. Russell, 13 Pick. R. 69; Barns v. Hatch, 3 New Hamp. R. 304; Eris.bee v. M’Corty,' 1 Stuart & Port. 61; Daniel v. Bratton, 1 Dana’s R. 209; Chess v. Chess, -1 Penn. R. 32.
    The case of Harkins v. Eorsyth, 11 Leigh 294, cited by the counsel for the appellants, was a case where the interests of third persons were involved; and there, as to them, and for their protection, it was held the certificate of the privy examination of the wife was conclusive. This is a case between the parties to the instrument, and no consideration for the interests of third persons can have place.
    Bouldin, in reply. The acknowledgment before the justices implies the complete execution of the instrument; and their certificate is conclusive evidence of the acknowledgment. This is upon the principle that where the law directs its officers to make an enquiry and certify the result, their certificate is conclusive on the subject. Every case relied on by the counsel for the appellees, only shews that an acknowledgment in pais, is not conclusive ; but not one of these cases was upon an acknowledgment ^before the Court or justices authorized to take it. These cases, too, all go on the principle that assent by the grantee is necessary to the completeness of the deed; a principle which has been overruled in this Court. The cases cited from the English decisions were all of them cases of an acknowledgment before witnesses; and such were the cases of Eppes v. Randolph, 2 Call 103, and Roanes v. Archer, 4 Leigh SS0. The second acknowledgment was treated by the Court as a re-execution of the deed; and it wás held that it might be re-executed, in order that it might be recorded.
    ■■ We do-mot .differ with the counsel of the appellees as to what is a delivery, or as to the necessity of an intention to deliver the paper as a deed; but the question is, what is evidence of a delivery? And we say the acknowledgment before justices is conclusive evidence both of the fact and the intention. The duty and authority of the justices is not to take acknowledgments of unfinished, inchoate papers, but of deeds; not to aid in consummating the deed, or in giving it validity between the parties, but to give information to another officer that the deed has been made; that the paper is the act and deed of the grantor; and at his request to certify his acknowledgment.to the clerk in order that it maj’- be recorded.
    If a deed is acknowledged in Court, the grantor is not afterwards entitled to the possession of it, but it must go to the clerk or the grantee. So when acknowledged before justices, the deed is necessarily delivered to the justices when the acknowledgment is taken; and then the paper is no longer the property of the grantor, but of the grantee; and the justices can have no authority to deliver it to the grantor as such, but it should pass to the grantee or his agent, or the clerk.
    These views are sustained by the case of Moore v. Bickham, 4 Binn. R. 1; by Philips on Evi. 1285; and the case of Scrugham v. Wood, 15 Wend. R. 545, cited by the counsel for the appellees. That was the case *of a deed acknowledged before a commissioner, which was held to be a perfect deed, though it was found among the papers of the grantor after his death.
    I have already said that the cases cited on the other side go upon the ground that the deed must be assented to by the grantee. Such was the case of Jackson v. Phipp, 12 Johns. R. 418. But this doctrine is not law in Virginia. Here the assent of the grantee will be presumed until his dissent is expressed, where the deed is for his benefit. Skipwith’s ex’or v. Cunningham, 8 Leigh 271; Roanes v. Archer, 4 Leigh 550.
    If the deed which we seek to set up in this case had come to the hands of the clerk with the justices’ certificate upon it, it would have been his duty to record it. Suppose it was upon the record, would it have been competent then for the grantor to deny that he had delivered it? A party is es-topped from pleading non est factum to an enrolled deed, not because it is enrolled, but because it was enrolled upon his acknowledgment. 14 Viner’s Abr. 444; Baker v. Preston, Gil. 447; Ben v. Peete, 2 Rand. 539. And the law is the same, whether the acknowledgment is in Court, or before a master in chancery in England, or justices in Virginia.
    In Harvey v. Alexander, 1 Rand. 219, this Court decided, that when a deed is recorded, its date is conclusive of the time of its execution. It is said by the counsel for the appellees, that the deed being retained by the grantor after being acknowledged' before justices passes nothing. Suppose that three months after the acknowledgment the grantor executes another deed - conveying the same land, which deed is immediately recorded, and then three months afterwards the first deed is admitted to record; according to the argument on the other side, the deed made when the grantor had the whole estate passes nothing; and the deed made when he had nothing passes the whole estate; for certainly the estate passes by the deed last recorded.
    *This Court has decided, too, that a paper acknowledged in Court is a paper signed, sealed and delivered; and that the deed is valid though the grantee is absent at the time of the acknowledgment, and had no knowledge of it, if he afterwards claims under it. Commonwealth v. Selden, S Munf. 160 ; Eppes v. Randolph, 2 Call 103; Roanes v. Archer, 4 Leigh 550. But there is no difference between the act of the grantor before the Court and his act before the justices. He goes before the Court to acknowledge the deed that it may be recorded by the clerk; and he goes before the justices to acknowledge the deed that it may be certified to the clerk for record. Upon principle, then, the acknowledgment before the justices is equally effective and conclusive as the acknowledgment before the Court; and the reasoning of the Court in the case of Harkins v. Forsyth, 11 Leigh 294, fully sustains the principle for which we contend.
    If the certificate of the justices is to be considered, not as an estoppel, but simply as evidence, the facts thereby certified are conclusive of the completeness of the deed. There is no difference of opinion between the counsel of the appellees and myself as to what is necessary to the completeness of the instrument; our difference is as to the proof: and my proposition is, that the facts occurring at the time when the instrument was acknowledged can alone be looked to, to ascertain whether the execution of the deed was completed: and that nothing which occurred either before or after that time can be permitted to influence the determination of that question.
    The casé of Garnons v. Knight sustains the proposition that the signing, sealing, and saying it is his act and deed, is a good execution of the deed by the grantor, though he keeps possession of it. If then it is insisted that these acts do not in any particular case amount to a complete execution of the instrument, the evidence to *shew it, must be reservations made, or acts done at the time of the acknowledgment, or evidence of an agreement or understanding with the grantee, or with the justices, having a direct reference to the act done by the grantor. Sou-verbye v. Arden & als., 1 Johns. Ch. R. 240. All the cases relied on by the counsel for the appellees were cases where the acts and reservations relied on to disprove the completeness of the deed, were done and made at the time of the execution of the instrument; except perhaps the case of Haired v. Gilham, which was decided on its own peculiar circumstances, and Uniacke v. Giles.
    The case of Barlow v. Heneage, Prec. in Ch. 211, and the other cases cited by Mr. Stanard in the opening argument, to which may' be added Souverbye v. Arden & als., 1 John. Ch. R. 240; Shelton’s Case, Croke Eliz. 7; Bunn v. Winthrop, 1 John. Ch. R. 329; and Skipwith’s ex’or v. Cunningham, 8 Leigh 271, all shew that where a party executes a deed without any thing more to qualify his act than keeping possession, the deed is complete; and upon proof of the fact, by intendment'of law, the deed is delivered to the grantee. If then the act is complete, no previous act or declaration of the grantor in the absence of the grantee can qualify the act done when the deed is executed. This is the common and settled principle that a party shall not make aver-ments against his own deed. The giving the d,eed to the justices, and the acknowledgment of it as his act and deed, and the request to them to certify it to the clerk, is surely stronger evidence of the completeness of the deed than are the facts stated in the cases above referred to.
    Whatever difference of opinion there may be upon all the evidence in the record as to the intention of Benjamin Rust, sen. in acknowledging these deeds, there is no dispute about the fact, that at the time he acknowledged them before the justices, he made no reservations, and did or said nothing from which it can be inferred *that he did not intend them then to be complete deeds. The only proofs on which the appellees rely, are conversations and supposed understandings with the witnesses, occurring and existing previous to the time of the acknowledgment, and therefore not admissible to shew what was his intention at that time.
    
      
      He had been counsel in the cause.
    
    
      
      Deeds — Acknowledgment of — Evidence of Delivery.— The principal case is cited in Ferguson v. Bond, 39 W. Va. 561, 20 S. E. Rep. 592, for the proposition that mere acknowledgment of a deed is not conclusive evidence of its delivery, but a circumstance tending to show 'delivery.
    
    
      
      Same — Same—Same—Deed Retained by Grantor-Intention. — In Lang v. Smith, 37 W. Va. 725, 17 S. E. Rep. 216, it is said: “A deed takes effect only from delivery; but no formal delivery is essential if there be acts evidencing an intention to deliver. It is not even essential that the grantee should be present at the time. The acknowledgment of the deed before justices of the peace, and their certificate thereof, is not conclusive evidence that the execution of the deed is complete, where (as in this case) an acknowledged deed is retained by the grantor, it depends on his intention at the time whether the acknowledgment is a complete execution of the deed. Such intention may be ascertained by evidence of his previously declared purpose, though such intention is not indicated at the time of the acknowledgment. Hutchison v. Rust, 2 Gratt. 395."
      
      In Howe v. Ould, 28 Gratt. 11, it was said: “In Hutchison v. Rust, 2 Gratt. 394, the deed was acknowledged before a justice, but retained in the possession of the grantor. And yet this court held it a good delivery, it being manifest that the grantor intended to hold it for the benefit of the grantee.” The principal case is cited for this point in Ferguson v. Bond, 39 W. Va. 561, 20 S. E. Rep. 592, and Seibel v. Rapp, 85 Va. 33, 6 S. E. Rep. 478. See also, the principal case cited in Price v. Holland, 1 P. & H. 299. See monographic note on “Acknowledgments” appended to Taliaferro v. Pryor, 12 Gratt. 277.
    
   By the Court.

Affirm the decree.  