Whitney v. Arnold

Field, J., after stating the facts of the case, delivered the opinion of the Court Terry, C. J., and Baldwin, J., concurring.

Ho objection is taken to the record of the deed to the plaintiff, and the case turns on the question whether the proof of the execution of the deed to the defendant was sufficient to entitle the deed to record. The plaintiff purchased without actual notice of the defendant’s title, and can only be defeated of a recovery by constructive notice from the registry. The form in which the proof of the execution of the deed to the defendant is presented, is objected to. It is contended that it is not the certificate of the officer, but merely the affidavit of the subscribing witness. "We do not think the objection well taken. The signature of the witness, and the addition of the usual jurat to an affidavit, were unnecessary, and may be rejected as mere surplusage. They [533]can not vitiate, by their presence, the certificate, if without them it shows a substantial compliance with the requirements of the statute. No particular form is necessary to the certificate of the officer. It shall set forth, says the statute, “ the following matters : first, the fact that such subscribing witness was personally known to the officer granting the certificate to be the person whose name is subscribed to such conveyance, as a witness thereto, or was proved to be such by oath or affirmation of a witness whose name shall be inserted in the certificate; second, the proof given by such witness of the execution of such conveyance, and of the fact, that the person whose name is subscribed "in such conveyance, as a party thereto, is the person who executed the same, and that such witness subscribed his name to such conveyance as a witness thereof." (Act concerning Conveyances, § 13.)

The certificate to the deed of the defendant conforms substantially to the provisions of this section. It shows the identity of the witness produced with the person whose name is subscribed as a witness to the conveyance, such identity resting in the personal knowledge of the officer, and sets forth the proof of the execution, and that Caulfield, “ whose name is subscribed to such conveyance as a party thereto,” executed the same, which is equivalent to the words “is the person who executed the same,” in the presence of the witness, who thereupon became a subscribing witness thereof. Further particularity is not required. It follows, that the certificate was sufficient to entitle the deed to registry, and its record imparted notice to the plaintiff.