Skinner v. Watson
Skinner v. Watson
Dissenting Opinion
I do not view this subject in the same manner as it is viewed by my brethren, and feel compelled to dissent from the decision which has just been made.
In passing a title by the levy of an execution, a strict compliance with the statute in every particular is required. The returns of officers setting off real estate on execution have been severely criti-cised, both in this, and other states, where property is transferred in this way, much beyond what I have thought a just regard to the rights of creditors and debtors required. It has nevertheless always been considered, that the statute must be complied with, and the doubts which have been entertained, have been rather as
^ appears to me that the statute has made it essential to pass the title, that the execution shall be recorded in the office wherein deeds respecting the same lands are required by law to be recorded, and also that it shall be returned into the office of the clerk of the court, or justice of the peace, from which the same issued, and there recorded. This being done, the statute says, “ shall make a good title to the party for whom such estate was taken, his heirs,” fee. The statute requires the execution to be recorded, and, in tny opinion, nothing passes until this is done, and until the original execution itself is recorded : recording a copy is neither a compliance with the statute, nor is it of any avail for the purpose of notice, or ¡tiny other purpose whatever.
Recording is enrolling a paper on the public records, whether of the town or county, by, or under, the superintendance and direction of the officer who is appointed to make the records, and who must not suffer any paper to be enrolled or copied into the records, but such as he knows, or is proved to him, to be the paper intended to be recorded. A departure from this in any instance is to make the evidence of title derived from the record uncertain, precarious, and liable to great fraud and imposition.
One of my brethren'has urged, that nothing more is intended by the record than notice of the execution. If this was all the object intended by the recording, still it would be essential that the notice should be such as the statute requires, or it would be no notice at all. I cannot accord with the view which has been taken of this notice, which, indeed, renders it immaterial, whether the record was made from the original, from memory, from a copy, or from a copy of a copy, or from something even still more remote, and which also renders it immaterial, who furnishes the copy for the recording officer, whether the officer levying the execution, the creditor, or even a bye-stander. If all that is required is, that á correct copy of the execution shall be found on the records, it would be as immaterial how it came there, as was said in the argument, as it would be whether the record was made with black ink or red ink.
But such a record of a copy of a deed has been decided by this court to be of no avail. In the case of Stevens vs. Brown, in Grand-Isle county, 1830, (3 Vt. Rep. 420.) it was expressly laid down and adjudged by this Court, that “ the record of a copy
I apprehend however that something more than notice, merely,' was intended by this requisition, as to recording the execution. It is made essential to pass the title.
When deeds are recorded, the record becomes evidence of title'. The record, or copies from the record, have been decided to be such evidence, and why, i ask, does it not as well comport with the statute for a town clerk to record t he copy of a deed, as the copy of an execution, without having any legal evidence of the existence of the deed, or of the execution, and without knowing that they compare with the original ? I can see no difference : yet we see that this Court have considered such a record, as to a deed, of no avail, and not authorized. It has been deemed necessary, inasmuch as these records of deeds, executions, &c., are evidence of title, and copies from the record may be read in court without producing .the original, except when the original is in the custody of the party making the title, to make legislative provision on the subject of recording. A recording officer is to be appointed he must be sworn, and in some cases give bonds. He must know that the paper recorded is carefully copied on to the records. If it is not done by himself, it must be under his inspection and control, so that in either case, lie can certify that it is duly recorded ; and-ho should not suffer nor permit any paper to be copied there, but what he knows to be the paper intended to be recorded. Indeed, the security of our titles depends upon this.
But can the recording officer know that the copy of a deed, or of an execution, given to him, compares with the original, or that there is any deed or execution to be recorded ?
The sheriff or officer levying an execution is not made a certifying officer, and copies attested by him are no better authenticated than if attested by any other individual.
If a deed may not be recorded unless there is a certificate under the hand of a magistrate endorsed thereon, that the same has been acknowledged by the grantor, or proved by witnesses, by what process of reasoning can welcome to the conclusion, that a copy of another instrument transfering the property of an individual against his consent, not authenticated by the certificate of any offi
Again, I cannot assent to the-proposition, that all that is required 's> f°r l^e court t0 satisfied, that what appears on reeord compares with the original, without any reference to the inquiry by whom it was placed there, or from what it was copied. If this was the case, we ought always to compare the record with the original, and the certificate of the recording officer ought not and would not be received, as the slightest evidence that any original ever existed. I admit that the record ought to be a true copy of the original; but the evidence, and the only evidence, of this fact, is the certificate of him whose duty it was to see that the original was truly copied, and enrolled on the record.
Nor do I see that any argument can be drawn, in favor of thus recording a copy, either from the old statute which was passed in 1779, or in the fee bill in the statute passed in 1797. The statute of 1779 did not make it necessary that the execution should be recorded, in the town clerk’s office, to pass the title ; but only required that a copy should be lodged in his office, which he was directed to enter on the town book of records. While this statute was in existence, such a record, as the plaintiff claims in this case, would have been good. Probably from the inconveniences which were experienced under this statute, it was repealed after a •fewyears ; and since the year 1787, the law has always required the execution itself to be recorded. — Old Stat. Has. ed. p. 67.
The fee bill of 1797 was also repealed after a fewyears. There was in that fee bill among the fees allowed to sheriffs, &c., an item of fifty cents, for a “ copy of an execution extended on lands, and the return thereof to the office for record.” If this would authorize recording from a copy, it would as well apply to the record in the office of the clerk of the court, or justice of the peace, from whence the execution issued, as to the record in the town clerk’s office. In the same fee bill, it may be noticed, the fees, which are given to the town clerk, and the clerk of the court, as magistrates, are for recording the execution.
There is nothing in this fee bill which repeals the positive directions of the statute, in relation to recording the execution ; and it cannot be repealed by so remote and distant an inference as would be drawn from the expression made use of in the fee hill. This item was probably inserted by mistake, from the practice which has obtained while the statute of 1779 was in force.
It appears tometljatthe inference to be drawn from the exist-
I do not know that this form, or a practice under it, was generally adopted or prevailed in this state; though I am sensible it was ■so in some counties. Nor do I know that it was ever .established by any judicial decision. On the contrary all the decisions,.which.have come .to my knowledge, have been, that a record from a copy of an execution was not good, and passed no title.
It has been urged, however, that these decisions are not reported. I consider them, nevertheless, as authorities which ought to govern our decision in this case. The decisions of this Court do not derive any additional efficacy as authorities, from being ■reported. A hasty decision, whether reported or not, if it will not bear examination,.and leads to great and manifest linoenveni-•ences, may be overruled. A course of decisions, whether report.ed or not,which have been considered as .establishing the law, and which .affect .property to any great extent, ought not to be over■ruled without weighty and good reasons therefor. Surely, they ought not to he, merely because we think that they might have been otherwise at first.
•I think, however, it will be found that the-decisions Upon'this •subject in this Court have been uniform, as much so, as upon any •subject whatever. -I have been informed, 'that it was so decided prior to the year 1821, and by more than one court : I do not know in what case, or at what time. Rut when I first came on 40 the bench in 1822,1 found thaMhis question had been decided •the yea r before, while C. J. Van Ness presided in this Court, and the decision was not questioned in several cases where a title was set up under an execution no otherwise recorded in the town clerk’s office than by a copy. In 1823 there were further changes in the members of the Court, so that there was an entire 'change of the members since the year 1821. During that year this question was considered as settled ; and if I mistake not, this very levy was decided to be bad on that account, during that
It has been said that many levies have been made in this way, and there is danger in deciding against them. The danger, if any exists, I apprehend will be in overruling these decisions at • this-time. Property may have been bought and sold upon the belief that the law was settled agreeably to these determinations. I feel very confident, few persons Would have considered a levy, when there was no other record, than from a copy as in this case, as any embarrassment on the title of a debtor. Creditors, who had thus levied their executions, may have obtained'a further satisfaction, considering their levy void. This very defendant may have neglected to call on his grantor for any further security, fully relying,that by the decision of the Supreme Court, the law was settled, and his title perfect. If any sheriffs, deputy sheriffs, or constables, have been exposed to hazard by the former decisions, as is said by one of my brethren, I presume no levy has been made in this way very recently ; and they are now protected by the statute of limitations. If they are not,, the decisions of this Court should not be changed for their benefit particularly.
expressed his opinion as follows: this question, whether the levy of execution upon real estate, otherwise perfectly regular, yet recorded in the town clerk’s office from a- copy, lodged with him by the levying officer, has become very important, by reason of the extensive practice, for many years, to record in this way. And it does appear to me, that strong reasons exist for supporting such levies, if it can be d8ne by any fair construction of the several statutes.. In the first place, the creditor never takes real estate for his debts because he chooses it;
The statute of 1797 requires, in nearly or quite the same words, the recording of the execution and levy in both offices. There was, undoubtedly, some beneficial object in this requisition. There is no better rule in construing statutes, than so to construe as to give effect to the object intended. It is easy to see, that the recording in the office from which the execution issued, was proper and, perhaps, necessary, to let the debtor see that the judgement and execution were satisfied, and the exact property with which it was satisfied, its description, appraisal, &c ; — to let him see the costs of the levy, and the exact date of the levy and return, whence to calculate when to redeem, if he would redeem at all. There, also, is the place of payment, if he would redeem tbe premises at all. And there could be no possible use for the statute to require any other record for the debtor himself. He knows before what court he is sued to appear; and where logo
Wherever the law requires originals rather than copies, and excludes copies of copies, the reason of that law is, that, otherwise, mistakes may intervene to the injury of those who might be affected by such evidence, if admitted. In the position I would now maintain, I exclude the possibility of these mistakes, by requiring die right matter to be recorded. This is always capable of proof,, or detection, as either parly may wish, by comparison with the-original, or with a copy of the record in the office, where the judgement was rendered and recorded.
I know there have been some decisions to the contrary of this, as mentioned by Mr. Justice Williams. These are not reported, so that we might see the exact grounds of such decisions. But I have no doubt of the fact, that, at a time, this court considered the law so settled as to exelude further investigation, than
Opinion of the Court
The opinion of the Court was delivered by
We are called upon to decide whether this res. cord of the copy of the execution extended on lands, and officer’s return thereon, made in the records of the town where the lands lie, on the 3d of August, 1820, is sufficient in law. In deciding this point I shall take a concise view of our registry acts, and see whether they have ever permitted a copy of a deed, or a copy of an execution, extended on lands, to he recorded in the town records, instead of recording the deed, or execution itself.
The act of February, 1779, says, “that henceforth, all deeds or conveyances of any houses or lands, within this state, signed and sealed by the parties granting the same, having good and lawful right or authority thereto, and attested by two or more witnesses, and acknowledged by such grantor or grantors, before an assistant or j'ustice of the peace, and recorded at length in the town records where such houses and lands do lie, shall be valid to pass without any other act or ceremony in law whatsoever.”
“ That the town clerks in the several towns in this state, shall fairly enter, and record at length in their records, all deeds, conveyances, and mortgages of lands, tenements, rents or other her-editaments, lying and being within the town where such clerk’s records are kept, within this state — made,executed, and acknowledged, or received in manner aforesaid, which shall be brought to him to record ; and shall on receipt thereof in his office, note thereon the day, month and year when he received the same, and the record shall bear date accordingly.” — (State papers, 336-7. The act of March 8, 1787, says, “that all deeds or conveyances of any houses or lands, within this state, signed, sealed, and delivered, by the parties granting the same, having good and lawful
■“ That the town clerks, in the several towns in this state, shall fairly enter and record at large in their records,all deeds and conveyances of lands, tenements and hereditaments — and shall, on receipt thereof in their offices, note thereon the time when they received the same, and shall date the record and filing thereof accordingly.” — (HaswelPs ed. Stat. p. 32.)
The Act of March 6, 1797, says, “ that all deeds and other conveyances of any lands, tenements or hereditaments, lying in this state,signed and sealed by the party granting the same, having good and lawful authority thereunto, and signed by two or more witnesses, and acknowledged, by such grantor or grantors, before a justice of the peace, and recorded, at length, in the clerk’s office of the town in which such lands tenements and hereditaments lie, shall be valid to pass the same, without any other act or ceremony in law whatever.” — (Slade's ed. 167.)
Act of 28th February, 1797 : — “ And it is hereby made the duty of the town clerk or tegister, truly to record all deeds and conveyances of any houses, lands or tenements, and all writs and executions, when by law it becomes necessary. — (Slade’s ed. 415.)
The above statutes relate to deeds, and the following to executions. The act of 1779, says, “ All executions duly served upon any houses and lands, being returned into the clerk’s office of the court out of which the same issued, and there recorded ; as also a copy thereof lodged in the town clerk’s office in the town, where such houses orlands lie, (which said clerk shall enter in the town book of records,takingthe same fee as allowed forrecording deeds,) shall make a good title for the party for whom they shall be taken, his heirs and assigns forever.” — (Ft. state papers, 363.)
The act of 1787, says, “ And all executions duly served upon any such houses and lands, with the return of the officer thereon, being recorded in the records in the town wherein such houses and lands are situate, or in the office where deeds respecting such lands ought by law to be recorded, and also returned into the office of the clerk of the court or justice, whence the same issued, and there recorded,shall,as against the debtor,his heirs and assigns, make a good title to the party for whonuhey shall be taken, his heirs and assigns forever.”
The act of 1797, says, “ And all executions extended and levied upon any houses, lands, or tenements, as aforesaid, with the return of the officer thereon, being recorded in the records of lands of the town in which such houses, lands-or tenements are. situate, or in the office wherein deeds respecting the same are required by law to be recorded, and also returned into the office of the clerk of the court, or justice of the peace, from which such execution issued, and there recorded, shall, as against such debtor, his heirs and assigns, make a good title to the party /or whom such estate was taken, his heirs and assigns for ever.” — (Ch. 28, s. 3, Slade’s ed. 210.)
The general fee bill of 1793, under the head of sheriff’s fees, has this item : “ Copy of an execution extended on lands, and the return thereof to the office for record, 0,50.”
The statutes before 1797 are repealed, and are referred to for the belter ascertaining the meaning of the legislature in passing die acts of 1797 and 1798. It is a rule that every statute should be construed according to the intention of tb.e legislature, and where there is doubt, all other statutes made in pari materia, whether repealed or not, should be considered. In taking this view, I am satisfied, that the intention of the legislature, in their, acts directing the recording of deeds, was, to have the town-clerk-make the record from the deed itself, and not from a copy. But in. considering the acts, which direct the recording of executions extended on lands, I atn inclined to believe that the record in the-town clel-k’s office may be made from a copy of such execution and officer’s return thereon. The act of 1779, says, “A copy of the execution shall be left in the town clerk’s office, which copy said clerk shall enter in the town book of records.” Here the practice of recording a copy of the execution, and officer’s return thereon commenced, and continued, in all probability, so-long as that act was in force. Under the act of 1787, it was the duty of the officer “to cause execution, with his, endoresment thereon,to be entered on the town records.” Most likely the practice of recotding from a copy, of the execution and officer’s return was not so uniform under this act as il.was-under the act of 1779. I however presume that no small share of the records were made.
The execution in question was levied on land on the 2nd of August, 1820. On the 3d of August the officer left a copy of the execution and his return thereon in the town clerk’s office in Hydepark, for record. And the town clerk certifies as follows: “ The above is a true record of the officer’s copy, received August 3, 1820.”
“Attest, Abner Flanders, To ton-Clerk.”
As the levy of the execution and record of the copy were made while the aforesaid acts of 1797 and 1798 were in' lores, the Court decide, that the record of the copy is sufficient, if it substantially agrees with the execution and officer’s return thereon. If the record does not agree with the execution and return, it is erroneous, and whether the record be void or not, will depend on the error it contains. If the error tends not to the injuiry of any person, and the record is sufficient to answer all the purposes for which it was made, then it is not void.
But suppose there is no fatal error in this record, (which wo do not now decide,) then the question is, who has the better title to the land in question, the plaintiffs or the defendants ? The plaintiffs’ title was complete on the 3d of August, 1820, and the mortgage deed from Hadly to McDaniel was executed. January 10, 1821 : so the decree of foreclosure on this mortgage could not affect the plaintiff’s prior title. The vendue title of McDaniel is defective : the record of the committee’s advertisement does not show the year in which it was printed in the Rutland Herald ; and no list of lands on which the taxes had been paid was furnished the collector by the committee, so as to enable him to sell or deed for the non-payment of taxes. We have already decided in the writ of review, John Skinner et al. vs. John McDaniel, at this term, that the judgement in the action of ejectment in favor of said McDaniel vs. plaintiffs et al. was, as it respected the plaintiffs,
After the forgoing opinion was pronounced by Mr. Justice BaY-lies, Mr. Justice Royce pronounced the opinion of the Court in the action in favor of Aaron P. Cleaveland vs. Ephraim Garvin and John McDaniels, in which was litigated the same question as in the action of Skinner and Hurds vs. Watson and McDaniels, with regard to the validity of the levy of an execution upon the lands of the debtor, where the. recording of the execution and levy was made, in the town clerk’s office, from a copy left by the officer ; there being no dispute, but that the recording contained the true and correct matter, as ifit were recorded from the original; yet it appeared at the close of the record, that it was recorded from a copy. This opinion supported the levy, affirming the opinion in the other cause upon this point: in which opinion considerable stress was laid upon the circumstance that the officers may probably have been led to leave a copy for record ' with the town clerk, by reason of the statutes allowing a feo to the officer for leaving such copy, and the amount of property, which has been set off in satisfaction of executions, and where the record was thus made from the copy, is very considerable.
Reference
- Full Case Name
- John Skinner, John Hurd and Wm. Hurd v. Jeffry Watson and John McDaniel
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- 1 case
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- Published