Duly v. Brooks
Duly v. Brooks
Opinion of the Court
delivered the opinion of the court.
The question in this case is whether a justice of the peace, under the third section of the territorial act of February 1, 1817, could take the acknowledgment of a deed conveying land not situated in the county in which he acted as a justice. By the territorial act of October 1, 1804, deeds were required to be acknowledged before one of the judges of the general court, or before One of the justices of the court of common pleas of the district where the land conveyed lies. So at that time justices of the peace could not take the proof and acknowledgment of deeds. By the act of July 7,1807, (sec. 3,) it was made lawful for any judge of the court of common pleas within the territory, or for any justice of the peace of the district where the land lies, to take the proof or acknowledgment of deeds. It will be observed that this act enabled judges of the court of common pleas to take the acknowledgment of deeds for land wherever situated, and for the first time enabled justices to take acknowledgments, but limited their authority to the district where the laud lies. Afterwards it was enacted by the third section of the act of February 1, 1817, that all deeds, conveyances, bonds and obligations for the conveyance of lands lying and being sit
We must, from courtesy, presume that the territorial assembly had some object in view in introducing an entire section into a statute. It could not have intended that, after its solemn enactment, the law should remain precisely as it was before, especially as it had been and then was in as plain terms as it could be expressed, and no doubt could have possibly been entertained as to its meaning. We should not make the legislature guilty of the folly of taking up a law as plain in its terms as it could be written, and which could not be misunderstood, and, without designing the slightest alteration in its sense, to reenact it in language, which can not be interpreted alike by all, and which gives rise to strife and litigation. The reenactment of the law in relation to justices of the peace taking the acknowledgment and proof of deeds, with the omission to reenact it as to all other officers performing the same duty, when we consider their authority was already co-extensive with the territory, can only be attributed to the fact that the intent of the law was to put all officers on the same footing so far as the taking of the acknowledgment of deeds was concerned. The words of the statute are “ all deeds, &c., for the conveyance of lands, &c., lying and being situated in this territory, may be proved and acknowledged before any justice of the peace in this territory in the same manner and under the same restrictions as are now provided by law.” So that any jtistice in the territory may take the acknowledgment of any deed. After the law had selected the agent and prescribed the ex
Attention has already been solicited to the resemblance between the language of the act of February 7,1807, which removed the restraint on the'power of judges of the court of common pleas in taking the acknowledgment of deeds, and that of the words of the third section of the act of 1817, which, it is maintained, was designed to have the same effect on justices of the peace. When the power of the judges of the court of common pleas was to be restrained in taking the acknowledgment of deeds, the judges were limited to “ the district where the land lies.” The power of justices in relation to the matter was limited by the same language. When it was intended to remove the restraint on the judges, these words were dropped. What else can be inferred from their omission in the reenactment of the law in relation to the power of justices in taking acknowledgments, but the design of removing the same restraint on them. The phrase “ in the district where the land lies” had become familiar from its long and frequent use, and was a clear and distinct way of expressing the limitation on the power of officers in taking the acknowledgment of deeds, and it would be remarkable that the legislature should omit those words, and leave the restraint on the authority of justices to be inferred from the equivocal word “ restrictions.”
G-eyer’s digest was published in 1818. The law now un
Reference
- Full Case Name
- Duly, in Error v. Brooks, in Error
- Status
- Published