McDill's Lessee v. McDill

APRIL TERM, 1782. McDill’s Lessee v. McDill. Deed as evidence. A deed with an ink seal, attested by one witness only, and proved by him before a justice, with out having been recorded, admitted in evidence. A Deed executed by two persons, with, one wax, and another ink seal, attested by one witness only, and merely proved by him. before a justice, without being recorded, was offered in evidence. It was objected, that by the act of assembly (1 Sm. Laws, 94), a deed must be executed before, and be proved by, two witnesses; and that even that kind of proof was not to be received, unless the party was dead, or otherwise unable to appear and acknowledge the *execution; which was not the case of the lessor of the plaintiff, when the deed was act- L ually proved before the justice. To this, it was answered, that the act of assembly only related to the proof which entitled a deed to be recorded, &c.; that many deeds might be given in evidence, which were not so entitled; as in the case of a long possession under an old deed. Another act declares that one or more subscribing witnesses is sufficient (1 Sm. Laws, 422), and it is established, that the attestation of witnesses is not of the essence of the deed. Before the statute of frauds, the necessity of subscribing witnesses to any instrument, did not exist'in England; and there is no instance in which the legislature of Pennsylvania has expressly called for the attestation of two witnesses, but in that of the assignment of a bond. This cause was tried at Lancaster N. P., on the 18th May 1781, before McKean, C. J., Atlee and Evans, Justices. [MAJORITY — By the Court.] By the Court. The signing of a deed is now the material part of the execution; the seal has -become a mere form, and a written or ink seal, as it is called, is good. Any deed under seal, when proved, is proper to be given in evidence (Ford v. Ld. Gray), 6 Mod. 45. And, we are of opinion, that a deed, the execution of which is sworn to by one witness be-fare a magistrate, who certifies the same, is within the rule. Besides, the last act of assembly certainly allows the proof of one witness to be sufficient. s. p. Long v. Ramsay, 1 S. & R., 72. In Shrider v. Nargan, post, p. 68, the court again adopted this broad principle, C. J. McKean saying, “we cannot hinder the reading of a deed under seal, but what use will be made of it is another thing.” And in Bioren’s Lessee v. Keep, 1 Yeates 442, the same doctrine prevailed, against the opinion of Smith, J. These decisions, however, have been disproved of in subsequent cases. In Faulkner v. Eddy, 1 Binn. 190, C. J. Tilghman, referring to McDill v. McDill, said, “ It has been generally conceived, that in that case the law was carried too far.” And on the question immediately before him, he remarked, “ the case (Faulkner v. Eddy) stands nakedly as of one who, having no kind of title, makes a deed convoying his right to another. It has been the practice at Nisi Prius to reject the deed in such cases ; and I see no reason why it should be altered.” So, in Peters v. Condron, 2 S. & R. 82, it was observed by the same learned judge, “ This decision (McDill v. McDill) has been considered a slip in the hurry of business, for if it were law, the administration of justice might be obstructed at the pleasure of any party, by reading papers no way pertinent to the cause.” And in the recent case of Hoak v. Long, 10 S. & R. 1, it was declared to be a well-established rule, that a deed is not evidence, without some proof of title in the grantor. s. p. Hamilton v. Galloway, post, p. 93.