Hastings v. Vaughn

California Supreme Court Jul 1, 1855Published

Before: Heydenfeldt

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Holding. The court held that a deed is not void for lack of a formal seal if it contains a scrawl or mark intended as a seal, and that delivery of a deed is a question of fact for the jury based on the grantor's intent. Furthermore, a deed lacking a proper officer's seal for registration is not void, but remains valid between the parties and against those with notice.

Issues

Whether a deed is void for lack of a formal seal if it contains a scrawl or mark.
Whether delivery of a deed is a question of law or a question of fact for the jury.
Whether a deed lacking the seal of the officer taking the acknowledgment is void.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“We see no good reason why such impression should not be made with a pen, as well as with what is technically a stamp.”

“That delivery is a question of fact, to be determined by the jury, is, we think, undeniable”

“It is still good as between the parties, and as to all the world, except subsequent purchasers without notice.”

Synopsis

An impression upon paper constitutes a good seal, and this may be made as well by a pen as by a stamp ; therefore, a scrawl, with the word seal written within it, or with the initials L. S., is sufficient.

Delivery of a conveyance is a question of fact to be determined by the jury, and depends more upon the intention of the parties, than upon the mode of fulfilling the intention.

The statute requires the seal of the officer taking the acknowledgment to be attached, as preliminary to fitting the deed for registration, and without conforming strictly to the statute, the registration will not be of such a character as to charge constructive notice.

Although a deed be defective in the acknowledgment, so as not to entitle it to registration, it is not void, but is still good as between the parties, and as to all the world, except subsequent purchasers without notice.

A deed defective in the acknowledgment, should not be rejected as evidence for that reason, but should be admitted, with instructions to the jury as to its effect in giving notice to third persons.

Heydenfeldt, J., delivered the opinion of the Court-. Murray, C. J., and Bryan, J., concurred.

The only question necessary to be examined, is the exclusion from [318]the jury of the deed made by Cooper to his wife and children; the Court deciding that the deed was void, because, first, it was not executed with a seal by the grantor; second; that the record did not impart notice, for the want of the seal of the officer before whom it was acknowledged.

To these objections to the deed, the respondent adds, that the deed was not delivered.

In Connolly v. Goodwin & Co., July Term, 1855, we decided that an impression upon paper constituted a good seal. We see no good reason why such impression should not be made with a pen, as well as with what is technically a stamp. The object is to give character to the instrument, and enable it to be distinguished and recognized for that which it was intended to be. This is as well effected by a scrawl, with the word seal written within it, or with the initials L. S., a common mode resorted to in copying sealed instruments. The authorities cited to the contrary, we look upon as founded upon too purely technical reasons, and are unsound expositions of the common law.

In regard to the question of delivery, the authorities are conflicting. In Maynard v. Maynard, 10 Mass., the execution and delivery for the purpose of registration, is held not to be a delivery.

In Barns v. Hatch, 3 N. H., the same act was held to be no delivery, where it was coupled with the declaration that it was made tti prevent the land from being taken to pay an unjust debt. The correct doctrine, we think, is laid down in Doe on the demise of Gamons v. Knight, 5 Barn. and Cres., 673. There, it was left to the jury to decide as to the intention of the grantor. Many authorities are cited, and much good reasoning brought out, in support of the position that a deed will be operative although never parted with by the person who executed it. In other words, that delivery depends more upon intention, than upon the mode of fulfilling the intention. That delivery is a question of fact, to be determined by the jury, is, we think, undeniable, and has been so held, not only in the case above cited, but also in Lindsay v. Lindsay, 11 Verm., 521; Vanhook v. Barnett, 4 Dev., 268; Hannah v. Swainer, 8 Watts, 9; and many others.

The remaining question, is as to the want of the seal of the officer taking the acknowledgment. The statute requires it, as a preliminary

Hastings v. Vaughn

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