Green v. Drinker , 7 Watts & Serg. 440 ( 1844 )

The opinion of the court was delivered by

Huston, J.

The judge who tried the cause having detailed the evidence, minutely instructed the jury upon the law arising out of the facts; and to this opinion the errors are assigned. 1st. In saying that there was no connection between Green and Ewalt. After suit brought, and perhaps before, when he heard of Drinker’s title having been sold, he said to one person that he claimed under Ewalt: but there was no intimation of any lease, parol or written, or any kind of contract between them. The judge did not, therefore, err in saying there was no evidence of any such thing.

The next error assigned was in saying to the jury that the deed from Kirby to Foot, having been illegally recorded, was no notice to a subsequent purchaser. The judge was right in saying that this had been so often decided that the law was settled. 2 Binn. 42.

The next assignment of error was in the opinion of the court to the jury that the act of the 16th April 1840 was not to be construed retrospectively so as to affect the title of a third person not a party to the deed. This statute makes the record valid against the grantor, but' clearly it cannot devest the title of other persons acquired before its passage. Our first Recording Act was passed for the purpose of giving a deed of bargain and sale the effect of feoffment in transferring the possession, and also of preserving the deed by making a certified copy of it when duly recorded as good evidence as the original. The next Act made the recording of a legally proved or acknowledged deed notice to affect all subsequent purchasers from the same grantor. Where a matter, not in fact known, is to affect a person with notice, it must be a thing done according to the law which makes it notice. A deed acknowledged in another State might always have been legally recorded, but the law provides before what officers such acknowledgement must be made (and a justice of the peace is not one of them) or by what evidence it must be authenticated. I am not sure that the fifteenth section of the Act of the 16th April 1840 was not intended to be applied solely to cure defects in the acknowledgements of deeds by husband and wife, as the next section goes to supply the defects in such acknowledgements made in this State. But however this may be, the fifteenth section does not speak of or cure the defective or illegal acknowledgement of deeds theretofore executed, nor does it repeal that provision of the Recording Act of 1775 which postpones an unrecorded title to one subsequent to it, which is duly recorded. There was no error in this part of the charge.

The remaining error assigned was to the opinion of the court with regard to the alleged notice arising out of the occupation of the land before 1804. The court left it to the jury whether there was any such occupancy of the land in the month of November 1806 as would put any person on inquiry, or whether there was any indication of the person of whom inquiry might be made. The defendant had no cause to complain of this part of the charge.

Judgment affirmed.