Robert Steele's Lessee, Plaintiff in Error, vs. Jesse Spencer And Others, Defendants in Error

Robert Steele’s Lessee, Plaintiff in Error, vs. Jesse Spencer And Others, Defendants in Error. ■A decree of the Supreme Court of Ohio ordered that the patentee of a certain tract of land, should, within six months, make a deed, &c. withcove- ' nants of warranty conveying a portion of the land held under a patentlo the complainants' in that suit, and on the failure of A to make the said deed, &c. “ that then and in that cáse; the complainant shall hold possess and enjoy the said portion of land, in as full and ample a manner, as if the same had been conveyed to him.”- The decree of the Supreme Court of Ohio by which a conveyance of land is directed to be made, the decree being-according to the laws of Ohio, vested in those to whom the deed was ordered to be made, such a legal title to the land to have been conveyed by the deed as would have been vested by a deed of equal date; ‘and the re» gistry Act- of Ohio applies as well to a title under such a 'decree, as it would do, if the party held under a bona fide deed of the same date with' the patent of the land, and the decree gives a legal title as ample as a deed. {558} The registry Act of Ohio directs that all-deeds made within the state shall be recorded within six months from the time of-the actual execution thereof; and declares, that if any such deed shall not be recorded in the County where the land lies, within the limits allowed by the law', “the same shall be deemed fraudulent and void, against any subsequent pur- - chaser for a valuable consideration without notice of such deed. {559} In the construction of the registry Act- of Ohio, the term “ purchasers,” is usually taken in its limited legal sense. It means a complete purchaser; or in other- Words, a purchaser clothed with a legal title. {559} It is not necessary that a deed made to a subsequent bona fide purchaser without notice shall be recorded to give it operation against a prior unrecorded deed, as by the provisions of the registry Acts the prior deed is declared in itself absolutely void as against such purchaser. {560} Whether erasures and alterations in a deed are material or not, is a question of law to be decided by the Court, {560} Tlie construction of words belongs to the Court, and the materiality of an alteration in a deed, is a question of construction. {561} ' THIS was a writ of error to tlie Circuit Court of the United States for the district of Ohio, to reverse the judgment of that Coúrtán favour of the defendant in error, in an action of ejectment instituted by the plaintiff in error, to recover a tract of land in Perry county, in the state of Ohio.. The title claimed and exhibited by the plaintiff in the ejectment; was originally derived under a patent from the United States to Jesse Spencer, dated November 15th 1811; who with George Spencer and others, were the heirs at law of Thomas Spencer deceased; . and in . order to show the title .acquired by the patent, he offered in evidence a deed from Jesse Spencer, the patentee, and Catharine his wife;-to William Steele, purporting to bear date the 20th of January 1818; and which apv peared on that day by the certificate on the deed, to have been acknowledged before a justice of the peace. “ William Fulton, one of the subscribing' witnesses, proved, that he attested the deed in the office of Jesse Spencer, but could not state when; that William Stéele wás not present; that he knew'nothing of the purchase of the land by William Steele from Jesse Spencer ; and that he saw no more of the deed, until about one year ago, when Spencer and Steele were together, and Spencer produced the deed to'see if the witness would recognise his Signature.” Wherever the name of William Steele appeared,-either in the body of the deed, or the- label thereon; it manifestly appeared to have, been written on an erasure, and with ink of a different ■colour; as did_ the words “Ross” and “Ohio,” in describing the place of residence of said Steele. ' The alterations oh the lace of the deed were not accounted for by any testimony. This . deed was not recorded in the county where the land lies, or elsewhere. The plaintiff further offered in evidence, a deed from William Steele, and Sarah his wife, to Robert Steele the lessor of the plaintiff, bearing date the 7th of July A. D. 1821. Also, the deposition of John Darágh, to prove the-execution of said deed; which deed and the certificate and acknowledgment thereon, and also the deposition of John Daragh, were also not re:, corded.- The defendants in the ejectment were in possession of the • land, and they claimed to hold it under a decree of the Supreme Court of the state1 of Ohio, for Ross county, sitting in Chancery, rendered on the 3'd'of January 1820, in a proceeding by a bill filed in-Perry county, and, under advisement in Ross county, by the heirs of Thomas Spencer, deceased, against Jesse Spencer and others, by which decree Jesse Spencer- was ordered to convey the land in controversy, to certain of the parties in the said bill, upon their full compliance with the terms and conditions stated in the said decree. The decree also proceeds as follows: “It is further ordered and decreed, that if the complainants shall within the time specified, deposit and pay to the clerk of Perry county aforesaid, the several sums of money aforesaid, and interest thereon, as aforesaid, and the defendant, Jesse Spencer, shall -fail to make out, execute and deliver to said clerk, a deed for nine-tenths of the. land aforesaid, within the times aforesaid; in manner aforesaid, that then and in that case, the heirs at law aforesaid, to whom the land aforesaid is decreed to be conveyed, in manner aforesaid, shall hold, possess and enjoy, nine-tenths of the half section aforesaid, to them, their heirs, and assigns for ever, in as full and ample a manner as though the same were conveyed to them by the said Jesse Spencer, defendant, ip manner'aforesaid.” “ It is further ordered. that Jesse Spencer, the defendant, pay the costs of the suit-in seven months from- • the date-of this, decreé; and if he fail so. to do, that then execution or executions issue in the same manner as executions issue oh judgments .at' law. It is further ordered and decreed, that the bill as to the other two,defendants, to wit, -William' Spencer and James Spencer, is dismissed without costs, and that the1 clerk of the Supreme Court for Ross county,- enter this decree of record in the said Supreme Court of -Ross county, and that he transmit a.copy of this de.cree to the clerk of the.Supreme. Court of Perry county, it being in .the sanie county from which this-cause-was removed here for decision, .and that-the same be entered of record in the Supreme Court of the said county df Perry, in .the same manner as if the cause had -been there heard and decreed. It is further ordered, and decreed, that if the money is not paid and deposited in manner aforesaid, and within the time -aforesaid, that then these complainants shall pay all the costs of the suit.” The defendants also exhibited evidence.of their having fully complied with all the requisites of the said decree, by the payment of the sum of 524 dollars, the amount decreed to be paid and also that the decree was duly recorded in the proper office for recording of deeds of the county of Perry, on the 24th July ’ 1822. After the evidence was closed, the Court, on the motion of the counsel for the defendants, instructed the jury as follows':— 1. That the decree of the Supreme Court of the state of Ohio, given in evidence in this cause by the defendants, vested in them such a legal title to the land in Question, as would have been, conveyed-by deed of equal date from . Jesse Spencer, the pa-tentee, and that the registry Act of Ohio,, applies, as well to the title of the defendants, under the said decree, as it would do if they held under a bona fide deed, of- the same date.from the said .patentee. 2. That if the elder deed be not recorded within the time specified by the' registry Act of Ohio, it is wholly void, as to subsequent bona fide purchasers, without notice of. the existence of such deed; 8. That if the deed from Jesse Spencer to William Steeie, was altered in a material part, -after it .was sealed, attested; and acknowledged, such alterations absolutely avoid -the deed, and it can convey no title, to' the lessor of the plaintiff. The counsel of the defendantijobjected to those parts of the instructions contained'in the firsi and second specifications. They submitted to this -Court the following points:— 1. Tlie Court below erred, in' charging the jury,, that the registry Act of Ohio applies'as well to the. title of' the defendants, under the decree set forth in the bill of exceptions, as. if they- held under a bonajide deed of the 'áame date. . ,2.The Court* below-erred in charging the jury, that if the deed frdxTa' Jessé Spencer to' William Steele, wds altered in a material part, after it; was sealed, attested, and acknowledged; such alteration absolutely avoids the deed, and it can convey no- title to the lessor , of the plaintiff. Because — r 1. Such an alteration,’if made without the consent of the-grantee, would not avoid the deed, and divest the-estate vested by the execution of the deed in the grantee. •2. An alteration of the deédmade with the consent of the grantee, coiild not divest the estate conveyed by the deed, and revest the, same in the grantor.- The case was argued by Mr. Leonard, for the plaintiff in error, and by Mr. Ewing, for the defendants. for the ■ plaintiff, it was insisted, that the registry Act of Ohio applies exclusively to' purchasers by deed, and does not include and protect those who hold in virtue of decrees in' chancery. Under the statute regulating proceedings in- ’chancery, a suit may be. instituted to obtain a conveyance either in the county , in which the land is situated, or where the defendant maybe found. ■ The action and the counts in the declaration, ,are in rem vel personam, and jurisdiction is acquired by the possession and control of the subject matter,- or of the person. As the registry Act does not 'require decrees made iñ the Courts of one county to be recorded in the county where the land is situate, neither does it extend its protection'to, purchasers under such decrees . — or if it embraces other "purchasers than those by deed, it protects* all subsequent .purchasers, and subsequent purchasers .alone. Those- cannot be considered subsequent purchasers, who were o.efóre the execution of unrecorded deeds vested with equitable titles, which afterwards were enforced by suits in chancery. Such ■purchasers'by decree, do>notcome within the-mischief .of the, registry Act. Such a construction would be forced', and- inconvenient; as the purchaser by deed, on recording his deed, or by giving notice^ pendente lite, in chancery;, and even after decree rendered, and before the expiration of. the time limited for'the execution of the conveyance^ although after -the lapse óf six months; .would bring his .deed within the protection of the.-Act, and defeat purchasers by decree. If the chancery suit had been instituted against Steele, as well as Spencer, the complainants could not have obtained a decree. A party might, in this way obtain a good title, by his omission to embrace proper.parties in his bill, in'equity. A defective title might thus be made good during the progress of the suit, and indeed a title invalid at the rendition of the decree, valid in a month at- • ter — vires acquirit eundo. This construction would make the statute penal; punishing" the party for his laches, in óx itting- to record his deed, instead of simply a protection of the rights of others. All the mischief to be guarded, ¿gainst by the statute, was éffected by the execution of the deed; and the omission, seasonably to record-the deed, could not injure one who had a good equitable title, which is -subsequently enforced by a bill in equity. It was also insisted, that the Cotirt erred in charging the jury, that a material alteration in the deed from Spencer to Steele, after its execution, could defeat the title thereby vested in Steele. It was apparent, on the plaintiff’s bill of exceptions, the Court erred in "thus' charging the jury, and the Couri could not look to the bill of exceptions of the' defendants in error for any purpose; or if they could, the error was not rectified by- a comparison of the facts there stated with the charge. Cited, Marshal vs. Fisk, 6 Mass. Rep. 32.- Mr. Ewing for the defendants.— The registry Act of-Ohio, protects subsequent bona-fide purchasers against unregistered deeds. A party entitled under a decree of a Court of Chancery, is a purchaser, in the legal signification of the term, ahd is therefore within the létter of the statute. There can he no reason to except him from its operation. He is as much injured by the concealment of a prior deed," as any other purchaser. - Whenever a party is entitled in equity, to a specific performance of a contract; if the defendant had put it out of his power to perform it, it is important that the fact should be made known-to the party interested, that he may seek other, and more effectual relief.. A' purchaser under such a decree, is therefore within the spirit as" well as the letter of the Act. /The Court did not err in charging-the-juiry-that the defendant's title took effect from the date of the decree. • Courts of Equity in Ohio; in settling the title to .real property, proceed, in rem,. not in personam. It is true, they direct the party to execute a deed,-but they do not compel him by attachment, to do so. If he refuses, the decree operates as a deed, and the res sita gives jurisdiction to the Court. The decree of the Court fixes the title to the property.- The time allowed,for the conveyance, relates merely .to the transfer of the evidences of title, and the possession, and the deed, if made pursuant to the decree, relate to the date of the decree itself. If no deed, be made, the title by the decree relates. Thus, if the party against- whom a decree is rendered should die, or being a feme sole, should marry before the period fixed for the-execution of a title; it- is believed that the decree would operate without further proceeding to vest the title. 2. Deeds for the conveyance -of real estate in Ohio, derive their validity solely from statutory provisions. No Common Law mode of transferring real estate, (except -by operation of law,) is recognised. Linley vs. Coates, 1 £tam. Rep. ' Neither is' the statute of uses, which in England gives validity to the deed of bargain and sale, .ip force in Ohio. Deeds • therefore to be valid, must be executed according to the1 provi-, sions of the statute of that state; and if they are deficient in . any of the requisites pointed out by that statute., they create no legal title. ", That Act, (22 vol. Ohio Laws, p. 218,) requires the grantor to seal and acknowledge the deed in the presence of two witnesses, who subscribe their names, and .also his solemn acknowledgment before a judicial officer. The deed in question' was not proved to have ever been executed- with all. thése formalities. But if, after this due execution, it were altered in a material part, no matter by whom, or with whose consent;-it was no longer the same deed. ’Pigot’s case,. 11 Rep. 9,7. ' • [MAJORITY — Mr. Justice Thimble] Mr. Justice Thimble delivered the .opinion of the Court;— This writ of error is prosecuted to reverse a. judgment of the Circuit Court, for the district of Ohio, rendered in -favour of the defendants, in an action of ejectment instituted by the plaintiff in error against-the defendants, in the Court beiow, to recover a tract-of land in Perry county; On the trial of the general issue, which-was joined between the parties, the "plaintiff gave in evidence a patent from the President of the United States to Jesse Spencer, dated the lííth of November 1811, for the land in controversy: a deed of conveyance for the land, from Jesse Spencer to William Steele, purporting. to bear date the 20th of January 181-8; arid also-a deed from William Steele to Robert-Steele, dated. the-7th of July 1821, prior to the institution of the suit. It appeared, from a certificate ontthe deed, from Jesse- Spencer to William St.eele, thát it -had been acknowledged, on the day of its date, before a justice of the peace; and it was attested by two subscribing witnesses. The- deed from Jesse Spencer to Steele, had never been recorded, either iii the county where the land lies, dr elsewhere. Wherever the name of William Steele appeared in the body of the deed, or in the label thereon, it appeared to have been written over an erasure, and with ink of a different colour, as did the words üoss'and Ohio, in describing the place of residence of Steele. This was unaccounted for, by any testimony in-the cause. The defendants gave in evidence, a record and decrée of the Supreme Court of the state of Ohio, in a cause in which the heirs of Thomas Spencer and the. defendants in this cause were complainants, and Jesse Spencer, the patentee of the land, was 'defendant. This decree was rendered by the Supreme Court on the 3d of January 1820, while sitting in Ross, county, having heard ■ the cause in Perry county, where the suit was instituted, and where the land lies; and having held if under a advisement, as is the. practice in Ohio, the. decree was pronounced in the causé at Ross county, and was certified from thence to Perry county, to be there entered on record in. the suit, in the sanie manner as if rendered'while the Supreme'Court was sitting in Perry county; and it was so entered' on record accordingly. The decree was-also recorded-in the office of the recorder . of deeds,-on the 24th of July 1822, in Perry county. The decree, inter alia, ordered, Jesse Spencer, the patentee of the land, within six months from the date of the decree, to make out a deed with covenants of general warranty, conveying to the complainants in .that cause, and defendants in this, an undivided nine parts out of ten, or nine-tenths; of. the tract of land, in controversy;- and to deposit said deed, duly executed, acknowledged, and attested, with the clerk of the Supreme Court of' the county of Perry, within the said term of six months; and by the clerk to be delivered to the complainants, upon their paying and depositing with , the clerk, within the said term- of six months, certain sums of money, with' interest, as. specified in' the decree; and that, upon the failure of'the said Jesse'Spencer to make out and deposit a' deed, as above directed', within the said term of six months; that then and- in that case, the' complainants shall, hold, possess, and enjoy,' nme-teriths of-the said tract of land in as full and ampié a.manner as if the same were conveyed to them by-the said Jesse'Spencer.” ' The defendants' paid and deposited- with the clerk the money required by the; decree, -within the six months, and took his receipt for the samé. It appears by.a bill of exceptions tendered by,the plaintiff’s counsel, that after the evidence was closed, the cpunsel of the-' defendants moved the Court to instruct the jury, 1st, that the decree of the Supreme Court of the state of Ohio, given in evidence by* the defendants, vested in-them such a legal title to the land in question, as would have been vested, by a conveyance from Jésse Spencer of equal date; and that the'Registry Act of Ohio, applies as well to the title of the deféndants, under the said decree, as it would , doj if they held under a iona fide -deed, of the same date, from the-patentee: 2. Thát if the elder deed be. not recorded within the time specified' by the Registry Act of Ohio, it is wholly void as- to subsequent ixma fide purchasers, without notice of the existence of such deed. ... 3d. That if the deed from Jesse Spencer to William'Steele, was altered in a material point after it was sealed, attested; and acknowledged, such alteration' absolutely avoids- the deed; and it can convey no title to the lessor of the plaintiff: which instructions the Court gave, and the plaintiff excepted. The counsel for the ■ plaintiff, relies on the following points for a reversal of the judgment. 1. The 'Court below erred in charging the jury, that the Registry Act of Ohio applies as well to the title of-the defendants, under the decree set forth in. the bill .of exceptions, .as if they held Under a bona fide deed of the same date. 2. That the Court below erred in charging the. jury, that- if the deed from. Jesse Spencer to William.Steele was -altered in a material part, after it was/sealed* attested, and acknowledged ; such .alteration absolutely avoids the deed, and it can pass no title to the lessor of the plaintiff; . The propriety of the first instruction, given by the Court to the jury, admits not of a doubt. - The statute of Ohio, entitled “an Act directing the mode of proceeding in Chancéry,” declares ‘f That whére a deeree-shall be made for'-a conveyance, release, or acquittance, &c. and the party' against whom the-decree shall pass, shall not comply5therewith- by'the time appointed, then such decree shall be considered and taken in all Courts of law" and equity,’ to •■'have the same operation and. effect, and be as available, as if the conveyance, release, or am quittance, had béen executed conformably to such' decree. ”~ Land Laws for Ohio, p. .296.. The Registry Act of Ohio directs, that all deeds made-within the state, shall be- recorded “ within six months from the actual time of signing or executing of-such' deeds;” and. declares, that if any such deed .shall not be recorded, in’the county where .the land, lies, within the time allowed by' the Act, “ the same shall be deemed fraudulent against any subsequent bona fide purchaser^ for valuable:consideration, without notice of such deed:” . In the construction of Rég'istry. Acts, the term “ purcbaser5’is usually taken in its technical, legal sense." It means a complete purchaser*' or, in other words,.* purchaser clothed with the legal title. The meaning of the statute is, that-an unre- ' corded deed, shall, after the expiration of the time limited by the statute, be deemed fraudulent and void, as against all ..subsequent purchasers, who may have obtained’ the legal title, for valuable consideration, without notice The case of the de. fend ants is then-within the terms of the Registry Act. They obtained their decree, and paid the purchase money directed by the decree, without notice; and the decree had obtained, by operation of the statute, - ¿11 the' attributes of a perfect legal title. The argument for. the plaintiff oh'this branch o';,the case, w.as founded on a' supposition, that, to bring the j defendants’ case within' the terms of- the Registry Act, it must be shown that their ..title has'.been recorded, as a deed, and-their title being not a-deed, but a-decree, it is insisted, they are not within, the tertns pf the statute. This is -a mistake! -The' plaintiff’s deed -ncit being recorded, the. statufé 'avoids-it in terms,, as against all. subsequent purchasers for valuable .consideration, without notice, whether their titles be recorded or, not. If the defendants had-held under a conveyance executed, by Jesse Speiicer, in obedience to. the decree, jtheir title deed, although not' recorded, would; by .the term? of the statute, prevail against the plaintiff’suprior unrecorded deed., A deed no,t be-, ing tecOrded, avoids it asagainst-subsequent, ,but not as against»' prior. purchasers. By the laws of the'-'state of-Ohio;-the decree, obtained by the defendants,.clothes them with the legal title'in as ¿imple a manner' as a deed. They are purchaser^ for valuable consideration, without notice;’-and are therefore not only within the words, but also within the spirit and intention of the statute.' - This reasoning has been indulged úpon. a súppositión,\that tlie title of the defendants has not been sufficiently .recorded, which .is not admitted. The decree, which is -their title, is of record in/ the Chancery suit in. the proper ..county where the-■land lies,- and it was recorded in- the.-office-Of ■ the Recorder of deeds. ..Whether this last inode of recording the, decree is usually practised in, Ohio of not,, We' are not informed. .But ■we suppose the defendants had dope all they ¿quid doj to commit their title to record in the proper county. , The third instruction given by. the Court to the jury, .which forms the second.ground relied op by the plaintiff’s counsel foi-a reversal of the judgment,-, cannot be sustained;,- Although tlie proposition may be-true, that a material erasure or alteration in a deed, after its execution, may avoid the deed, yet,.-the, in- ■ struction ought not to. have been given in the terms .'used .by the Court, Whether erasures and' alterations had. been made. in, the- deed or ncrt, was a question, of fact proper tó be referred „to the jury ;• but whether the erasures and alterations vvere ihaterial, or not, was' a'question .Of law. which ought tó have been decided by the Court. The instruction given .refers the question-,óf materiality to the jury,' as well as. the fact of alteration and erasure. If the name of William Steele was inserted'in the deed as grantee after its full execution .and attestation, instead of the name of some other grantee which was stricken out, no doubt the alteration was very material, .and nothing could in that cáse pass by the deed to William Steele.; The two other alterations, supposed, in the. words “Ross” and “ Ohio^ ” in the description of the grantee’s residence, may have been either material or immaterial, as, upon a sound construction of the whole instrument they would or would not’alter or change its operation and effect. The Court ought to have decided the; question of materiality in each instance, leaving the fact of alteration ,tb the jury for their decision. The'instruction given, -was calculated to-mislead the jury by impressing on them the belief- that' they were warranted in finding' either of the supposed alterations to be. material, however it may have been in point of law. The construction of deeds-belongs to-the proyince of the Court; the materiality of an alteration in a deed, is a question of construction; and in this case the. Court committed an error by giving, an instruction to the jury, which imposed on them a difficult question of construction, upon .which the jury ought to have been enlightened by the decision óf the Court. '.The judgment of the Circuit Court must be reversed, and the cause remanded, with instructions to award a vmire facim tic novo, .