A decree of the Supreme Court of Ohio ordered that the patentee
of a certain tract of land should, within six months, make a deed
&c. with covenants of warranty conveying a portion of the land
held under a patent to the complainants in that suit, and on the
failure of A to make the said deed, &c.,
"that then and in that case the complainant shall hold, possess,
and enjoy the said portion of land in as full and ample a manner as
if the same had been conveyed to him."
The decree of the Supreme Court of Ohio by which a conveyance of
land is directed to be made, the decree being according to the laws
of Ohio, vested in those to whom the deed was ordered to be made
such a legal title to the land to have been conveyed by the deed as
would have been vested by a deed of equal date, and the Registry
Act of Ohio applies as well to a title under such a decree as it
would do if the party held under a
bona fide deed of the
same date with the patent of the land, and the decree gives a legal
title as ample as a deed.
The Registry Act of Ohio directs that all deeds made within the
state shall be recorded within six months from the time of the
actual execution thereof, and declares that if any such deed shall
not be recorded in the county where the land lies within the limits
allowed by the law, "the same shall be deemed fraudulent and void
against any subsequent purchaser for a valuable consideration
without note of such deed."
In the construction of the Registry Act of Ohio, the term
"purchasers" is usually taken in its limited legal sense. It means
a complete purchaser, or in other words, a purchaser clothed with a
legal title.
It is not necessary that a deed made to a subsequent
bona
fide purchaser without notice shall be recorded to give it
operation against a prior unrecorded deed, as by the provisions of
the registry acts the prior deed is declared in itself absolutely
void as against such purchaser.
Whether erasures and alterations in a deed are material or not
is a question of law to be decided by the court.
The construction of words belongs to the court, and the
materiality of an alteration in a deed is a question of
construction.
This was a writ of error to the Circuit Court of the United
States for the District of Ohio to reverse the judgment of that
court in favor of the defendant in error in an action of ejectment
instituted by the plaintiff in error to recover a tract of land in
Perry County in the State of Ohio.
The title claimed and exhibited by the plaintiff in the
ejectment was originally derived under a patent from the United
States to Jesse Spencer, dated November 15, 1811, who with George
Spencer and others were the heirs at law of Thomas Spencer
deceased, and in order to show the title acquired by the patent, he
offered in evidence a deed from Jesse Spencer, the patentee, and
Catharine his wife to William Steele, purporting
Page 26 U. S. 553
to bear date 20 January, 1818, and which appeared on that day by
the certificate on the deed to have been acknowledged before a
justice of the peace.
"William Fulton, one of the subscribing witnesses proved that he
attested the deed in the office of Jesse Spencer, but could not
state when; that William Steele was not present; that he knew
nothing of the purchase of the land by William Steele from Jesse
Spencer; and that he saw no more of the deed until about one year
ago, when Spencer and Steele were together, and Spencer produced
the deed to see if the witness would recognize his signature."
Wherever the name of William Steele appeared either in the body
of the deed or the label thereon, it manifestly appeared to have
been written on an erasure, and with ink of a different color, as
did the words "Ross" and "Ohio," in describing the place of
residence of said Steele. The alterations on the face of the deed
were not accounted for by any testimony. This deed was not recorded
in the county where the land lies or elsewhere. The plaintiff
further offered in evidence a deed from William Steele and Sarah
his wife to Robert Steele, the lessor of the plaintiff, bearing
date 7 July, 1821. Also the deposition of John Daragh to prove the
execution of said deed, which deed and the certificate and
acknowledgment thereon, and also the deposition of John Daragh,
were also not recorded.
The defendants in the ejectment were in possession of the land,
and they claimed to hold it under a decree of the Supreme Court of
the State of Ohio for Ross County, sitting in chancery rendered on
3 January, 1820, in a proceeding by a bill filed in Perry County,
and, under advisement in Ross County, by the heirs of Thomas
Spencer, deceased, against Jesse Spencer and others, by which
decree Jesse Spencer was ordered to convey the land in controversy,
to certain of the parties in the said bill, upon their full
compliance with the terms and conditions stated in the said decree.
The decree also proceeds as follows:
"It is further ordered and decreed, that if the complainants
shall within the time specified, deposit and pay to the clerk of
Perry County aforesaid, the several sums of money aforesaid, and
interest thereon, as aforesaid, and the defendant, Jesse Spencer,
shall fail to make out, execute and deliver to said clerk, a deed
for nine-tenths of the land aforesaid, within the times aforesaid,
in manner aforesaid, that then and in that case, the heirs at law
aforesaid, to whom the land aforesaid is decreed to be conveyed, in
manner aforesaid, shall hold, possess and enjoy, nine-tenths of the
half section aforesaid, to them, their heirs, and assigns forever,
in as full and ample a manner as though the same were conveyed to
them by the said Jesse Spencer, defendant, in manner aforesaid. . .
. It is further ordered that Jesse Spencer,
Page 26 U. S. 554
the defendant, pay the costs of the suit in seven months from
the date of this decree, and if he fail so to do, that then
execution or executions issue in the same manner as executions
issue on judgments at law. It is further ordered and decreed that
the bill as to the other two defendants, to-wit, William Spencer
and James Spencer, is dismissed without costs, and that the Clerk
of the Supreme Court for Ross County enter this decree of record in
the said Supreme Court of Ross County, and that he transmit a copy
of this decree to the Clerk of the Supreme Court of Perry County,
it being in the same county from which this cause was removed here
for decision, and that the same be entered of record in the Supreme
Court of the said County of Perry in the same manner as if the
cause had been there heard and decreed. It is further ordered and
decreed that if the money is not paid and deposited in manner
aforesaid, and within the time aforesaid, that then these
complainants shall pay all the costs of the suit."
The defendants also exhibited evidence of their having fully
complied with all the requisites of the said decree by the payment
of the sum of $524, the amount decreed to be paid, and also that
the decree was duly recorded in the proper office for recording of
deeds of the County of Perry on 24 July, 1822.
After the evidence was closed, the court, on the motion of the
counsel for the defendants, instructed the jury as follows:
1. That the decree of the Supreme Court of the State of Ohio
given in evidence in this cause by the defendants vested in them
such a legal title to the land in question as would have been
conveyed by deed of equal date from Jesse Spencer, the patentee,
and that the Registry Act of Ohio applies as well to the title of
the defendants under the said decree as it would do if they held
under a
bona fide deed of the same date from the said
patentee.
Page 26 U. S. 559
2. That if the elder deed be not recorded within the time
specified by the Registry Act of Ohio, it is wholly void as to
subsequent
bona fide purchasers without notice of the
existence of such deed.
3. That if the deed from Jesse Spencer to William Steele was
altered in a material part after it was sealed, attested, and
acknowledged, such alterations absolutely avoid the deed, and it
can convey no title to the lessor of the plaintiff. The counsel of
the defendant objected to those parts of the instructions contained
in the first and second specifications. They submitted to this
Court the following points:
1. The court below erred in charging the jury that the Registry
Act of Ohio applies as well to the title of the defendants
Page 26 U. S. 555
under the decree set forth in the bill of exceptions as if they
held under a
bona fide deed of the same date.
2. The court below erred in charging the jury that if the deed
from Jesse Spencer to William Steele was altered in a material part
after it was sealed, attested, and acknowledged, such alteration
absolutely avoids the deed, and it can convey no title to the
lessor of the plaintiff, because
1. Such an alteration, if made without the consent of the
grantee, would not avoid the deed and divest the estate vested by
the execution of the deed in the grantee.
2. An alteration of the deed made with the consent of the
grantee could not divest the estate conveyed by the deed and revest
the same in the grantor.
Page 26 U. S. 557
MR. JUSTICE TRIMBLE delivered the opinion of the Court:
This writ of error is prosecuted to reverse a judgment of the
Circuit Court for the District of Ohio rendered in favor of the
defendants in an action of ejectment instituted by the plaintiff in
error against the defendants in the court below to recover a tract
of land in Perry County,
On the trial of the general issue which was joined between the
parties, the plaintiff gave in evidence a patent from the President
of the United States to Jesse Spencer dated 15 November, 1811, for
the land in controversy, a deed of conveyance for the land from
Jesse Spencer to William Steele purporting to bear date 20 January,
1818, and also a deed from William Steele to Robert Steele dated 7
July, 1821, prior to the institution of the suit.
It appeared from a certificate on the deed from Jesse Spencer to
William Steele that it had been acknowledged on the day of its date
before a justice of the peace, and it was attested by two
subscribing witnesses.
The deed from Jesse Spencer to Steele had never been recorded
either in the county where the land lies or elsewhere. Wherever the
name of William Steele appeared in the body of the deed or in the
label thereon, it appeared to have been written over an erasure,
and with ink of a different color, as did the words "Ross" and
"Ohio" in describing the place of residence of Steele. This was
unaccounted for by any testimony in the cause.
Page 26 U. S. 558
The defendants gave in evidence a record and decree of the
Supreme Court of the State of Ohio in a cause in which the heirs of
Thomas Spencer and the defendants in this cause were complainants
and Jesse Spencer, the patentee of the land, was defendant.
This decree was rendered by the Supreme Court on 3 January,
1820, while sitting in Ross County, having heard the cause in Perry
County, where the suit was instituted and where the land lies, and
having held it under a advisement, as is the practice in Ohio, the
decree was pronounced in the cause at Ross County, and was
certified from thence to Perry County, to be there entered on
record in the suit in the same manner as if rendered while the
Supreme Court was sitting in Perry County, and it was so entered on
record accordingly.
The decree was also recorded in the office of the recorder of
deeds on 24 July, 1822, in Perry County.
The decree,
inter alia, ordered Jesse Spencer, the
patentee of the land,
"within six months from the date of the decree, to make out a
deed with covenants of general warranty conveying to the
complainants in that cause and defendants in this an undivided nine
parts out of ten, or nine-tenths, of the tract of land in
controversy, and to deposit said deed, duly executed, acknowledged,
and attested, with the Clerk of the Supreme Court of the County of
Perry within the said term of six months, and by the clerk to be
delivered to the complainants upon their paying and depositing with
the clerk, within the said term of six months, certain sums of
money, with interest, as specified in the decree, and that upon the
failure of the said Jesse Spencer to make out and deposit a deed as
above directed within the said term of six months, that then and in
that case the complainants shall hold, possess, and enjoy
nine-tenths of the said tract of land in as full and ample a manner
as if the same were conveyed to them by the said Jesse
Spencer."
The defendants paid and deposited with the clerk the money
required by the decree within the six months, and took his receipt
for the same.
It appears by a bill of exceptions tendered by the plaintiff's
counsel that after the evidence was closed, the counsel of the
defendants moved the court to instruct the jury, 1st, that the
decree of the Supreme Court of the State of Ohio given in evidence
by the defendants vested in them such a legal title to the land in
question as would have been vested by a conveyance from Jesse
Spencer of equal date, and that the Registry Act of Ohio applies as
well to the title of the defendants under the said decree as it
would do if they held under a
bona fide deed of the same
date from the patentee.
2. That if the elder deed be not recorded within the time
specified by the Registry Act of Ohio, it is wholly void as to
subsequent
bona fide purchasers without notice of the
existence of such deed.
3d. That if the deed from Jesse Spencer to William Steele, was
altered in a material point after it was sealed, attested, and
acknowledged, such alteration absolutely avoids the deed; and it
can convey no title to the lessor of the plaintiff: which
instructions the court gave, and the plaintiff excepted.
The counsel for the plaintiff, relies on the following points
for a reversal of the judgment.
1. The court below erred in charging the jury, that the Registry
Act of Ohio applies as well to the title of the defendants, under
the decree set forth in the bill of exceptions, as if they held
under a
bona fide deed of the same date.
2. That the court below erred in charging the jury that if the
deed from Jesse Spencer to William Steele was altered in a material
part after it was sealed, attested, and acknowledged; such
alteration absolutely avoids the deed, and it can pass no title to
the lessor of the plaintiff.
The propriety of the first instruction given by the court to the
jury admits not of a doubt. The statute of Ohio entitled "An act
directing the mode of proceeding in chancery" declares
"That where a decree shall be made for a conveyance, release, or
acquittance, &c., and the party against whom the decree shall
pass shall not comply therewith by the time appointed, then such
decree shall be considered and taken in all courts of law and
equity to have the same operation and effect and be as available as
if the conveyance, release, or acquittance had been executed
conformably to such decree."
Land Laws for Ohio 296.
The Registry Act of Ohio directs that all deeds made within the
state shall be recorded "within six months from the actual time of
signing or executing of such deeds," and declares that if any such
deed shall not be recorded in the county where the land lies within
the time allowed by the act, "the same shall be deemed fraudulent
against any subsequent
bona fide purchaser, for valuable
consideration, without notice of such deed."
In the construction of registry acts, the term "purchaser" is
usually taken in its technical legal sense. It means a complete
purchaser, or in other words a purchaser clothed with the legal
title. The meaning of the statute is that an unrecorded deed shall,
after the expiration of the time limited by the statute, be deemed
fraudulent and void as against all subsequent purchasers who may
have obtained the legal title for valuable consideration without
notice. The case of the defendants
Page 26 U. S. 560
is then within the terms of the Registry Act. They obtained
their decree and paid the purchase money directed by the decree
without notice, and the decree had obtained, by operation of the
statute, all the attributes of a perfect legal title.
The argument for the plaintiff on this branch of the case was
founded on a supposition that to bring the defendants' case within
the terms of the Registry Act, it must be shown that their title
has been recorded as a deed, and their title being not a deed, but
a decree, it is insisted they are not within the terms of the
statute. This is a mistake. The plaintiff's deed not being
recorded, the statute avoids it in terms as against all subsequent
purchasers for valuable consideration without notice, whether their
titles be recorded or not. If the defendants had held under a
conveyance executed by Jesse Spencer in obedience to the decree,
their title deed, although not recorded, would, by the terms of the
statute, prevail against the plaintiff's prior unrecorded deed. A
deed not being recorded avoids it as against subsequent, but not as
against prior, purchasers. By the laws of the State of Ohio, the
decree obtained by the defendants clothes them with the legal title
in as ample a manner as a deed. They are purchasers for valuable
consideration without notice, and are therefore not only within the
words but also within the spirit and intention of the statute.
This reasoning has been indulged upon a supposition that the
title of the defendants has not been sufficiently recorded, which
is not admitted. The decree, which is their title, is of record in
the chancery suit in the proper county where the land lies, and it
was recorded in the office of the recorder of deeds. Whether this
last mode of recording the decree is usually practiced in Ohio or
not we are not informed. But we suppose the defendants had done all
they could do to commit their title to record in the proper
county.
The third instruction given by the court to the jury, which
forms the second ground relied on by the plaintiff's counsel for a
reversal of the judgment, cannot be sustained. Although the
proposition may be true that a material erasure or alteration in a
deed, after its execution may avoid the deed, yet the instruction
ought not to have been given in the terms used by the court.
Whether erasures and alterations had been made in the deed or not
was a question of fact proper to be referred to the jury, but
whether the erasures and alterations were material or not was a
question of law which ought to have been decided by the court. The
instruction given refers the question of materiality to the jury as
well as the fact of alteration and erasure.
Page 26 U. S. 561
If the name of William Steele was inserted in the deed as
grantee after its full execution and attestation instead of the
name of some other grantee which was stricken out, no doubt the
alteration was very material and nothing could in that case pass by
the deed to William Steele. The two other alterations supposed in
the words "Ross" and "Ohio" in the description of the grantee's
residence may have been either material or immaterial, as upon a
sound construction of the whole instrument they would or would not
alter or change its operation and effect.
The court ought to have decided the question of materiality in
each instance, leaving the fact of alteration to the jury for their
decision. The instruction given was calculated to mislead the jury
by impressing on it the belief that it was warranted in finding
either of the supposed alterations to be material, however it may
have been in point of law. The construction of deeds belongs to the
province of the court; the materiality of an alteration in a deed
is a question of construction, and in this case the court committed
an error by giving an instruction to the jury which imposed on it a
difficult question of construction upon which the jury ought to
have been enlightened by the decision of the court.
The judgment of the circuit court must be reversed and the
cause remanded with instructions to award a venire facias de
novo.
