#### Reusens *v.*Staples.

*(Circuit Court, W. D. Virginia.*

April 23, 1892.)

Deeds—Execution and Acknowledgment—Effacement of Seals.

Deeds executed in Massachusetts in 1800 and 183S conveying land in Virginia, the signing and ensealing whereof were acknowledged and verified according to the registry acts then in force, (Acts Va. Deo. 1792, and Feb. 1819,) and duly admitted to record in pursuance thereof, must he held to have passed the legal title, although no seals appear upon the deeds at this date; for it will be presumed that the waxen seals then in use, and which were liable to be effaced, were properly affixed.

At Law.

Statement by Paul, District Judge:

This was an action of ejectment brought by G. Reusens, a citizen of New York, against A. P. Staples, a citizen of Virginia, to recover 16,649 acres of land lying in Patrick county, Va. In the course of the trial the plaintiff offered in evidence, by way of tracing his title, two deeds, the first of which was from John Soley, of Boston, Mass., conveying 50,000-acres of land in Patrick county, Va., to John-Miller Russell, of Charles-town, in the state aforesaid. (This deed also conveyed several other tracts of land lying in Bath and other counties in Virginia from said John Soley to said John Miller Russell, Joseph Russell, and John La Farge, but the said lands are not involved in the suit at bar.)

The attestations on said deed are as follows:

“In witness whereof the said John Soley, Jun’r, hath hereunto set his hand and seal this twentieth day of March, in the year of our Lord one thousand and eight hundred. John Soley, Jun’r.

“Signed, sealed, and delivered in the presence of

“ George Blake.

“William Alline,

“John Pryor, Jr.”

*“Commonwealth of Massachusetts, Suffolk:*On this twentieth v „ of March, in the year of our Lord one thousand eight hundred, before me, Wm. Alline, a justice of the peace for the county of Suffolk aforesaid, personally appeared Mr. John Soley and acknowledged the within written instrument by him subscribed to be his voluntary act and deed, and consented that the same should be entered of record. Wm. Alline, Justice of Peace.”

“ *Commonwealth of Massachusetts, Suffolk—sc.:*At the supreme judicial court, begun and holden at Boston, within and for the county of Suffolk, on the third Tuesday of February, being the eighteenth day of said month, A. D. 1800, personally appeared before the court George Blake, William Alline, and John Pryor, Jun’r, the witnesses to this instrument, and severally make oath that they saw the said John Soley, Jun’r, sign, seal, and deliver the same as his free act and deed, and that they severally subscribed their names thereunto at the same time. John Tucker, Clerk.”

“I certify that Tucker, Esquire, signer of the above, is now, and was at the time of signing the above acknowledgment, clerk of said supreme judicial court, and that full faith and credit are and ought to be given to his attestations as such. Isaac Parker, Chief J ustice of said Court.

*“Boston, August 12th,*1815.”

*92(Here follows the certificate of the clerk of the county court of Bath county, Va., that said deed was admitted to record in his office on 19th February, 1818.)

“Patrick County Clerk’s Office, February 26th, 1818.

*“Virginia, to wit:*This instrument of writing from John Soley, Jun’r, to Miller Russell, and from said Russell to Joseph Russell and John La Farge, with the certificates indorsed thereon, was presented in said office and admitted to record. Samuel Staples, Clerk. ”

The second of said deeds was from John Miller Russell, of Cambridge, in the county of Middlesex and commonwealth of Massachusetts, conveying to Henry 0. Middleton, of Fredericksburg, in the state of Virginia, 50,000 acres of land lying in Patrick county, Va., described as being the same tract of land which was conveyed by “John Soley to this grantor by deed the 20th day of March, in the year of our Lord one thousand eight hundred.”

The attestation clause of this said deed is as follows:

“In witness whereof the said John Miller Russell hath hereunto set his hand and seal this twentieth day of July, in the year of our Lord one thou.sand eight hundred and thirty-eight. John Miller Russell.

“Signed, sealed, and delivered in the presence of

“Henry M. Chamberlain.

“Hathan Fiske.”

“July 27 th, 1838.

*“Commonwealth of Massachusetts, Middlesex—ss.:*We, Hathan Fiske and Henry M. Chamberlain, justices of the peace in and for said county of Middlesex, do hereby certify that John Miller Russell, named grantor in the above instrument, personally appeared before us and acknowledged the same to be his act and deed on the day and year above written.

“Hathan Fiske,

“Henry M. Chamberlain,

“Justices of the Peace.”

“July 27th, 1838.

“ *County of Middlesex, Commonwealth of Massachusetts:*I hereby certify that Hathan Fiske and Henry M. Chamberlain are and were magistrates at the time of taking the acknowledgment of the grantor in the above deed. In testimony whereof I, Elias Phinney, clerk of the supreme judicial court of the commonwealth of Massachusetts for the county of Middlesex, have hereunto set my hand and affixed the seal of said court this 27th day of July, 1838.

“Elias Phinney.”

“25th January, 1840.

*“In Patrick Clerk's Office:*This deed from John Miller Russell to Henry O. Middleton with the certificate of acknowledgment thereon indorsed (authenticated according to the act of congress) was presented in the clerk’s office aforesaid, and admitted to record. A. Staples, Clerk.”

To the introduction of these deeds as evidence objection was made by the defendant on the ground that said deeds were not under seal, and instructions on this point were asked for by defendant’s counsel,

P. *Bouldin, Jr., D. S. Pierce,*and *E. E. Bouldin,*for plaintiff.

*N. PI. Hairston*and *Berryman Green,*for defendant.

*93Paul, District Judge,

*(after stating the facts.)*The Virginia act of assembly, passed December 13, 1792, provided as follows:

> “1. That no estate of inheritance or freehold or for a term of more than five years, in lands or tenements, shall be conveyed from one to another, unless the conveyance be declared by writing, sealed, and delivered; nor shall such conveyance be good against a purchaser for valuable consideration, not having notice thereof, or any creditor, unless the same writing be acknowledged by the party or parties who shall have sealed and delivered it, or be proved by three witnesses to be his, her, or their act before the general court, or the coart of that district, county, city, or corporation in which the land conveyed, or some part thereof, lieth, or in the manner hereinafter directed within eight months after the time of sealing and delivering, and be lodged with the clerk of such court to be there recorded.”

> *$****$$$

> “5. If the party who shall sign and seal such writing reside not in Virginia, or in the district or county where the lands conveyed lie, the acknowledgment by such party, or the proof by the number of witnesses requisite, or the sealing and delivering of the writing, before any court of law, or the mayor or other chief magistrate of any city, town, or corporation of the county in which the party shall dwell, certified by such court or mayor or chief magistrate in the manner such acts are usually authenticated by them, and offered to the proper court to be recorded within eighteen months after the sealing and delivering, where the party resides out of this commonwealth, and within eight months after the sealing and delivery where the party resides within this commonwealth, shall be as effectual as if it had been in the last-mentioned court.”

So, also, the Virginia act of assembly, passed February 24, 1819, after re-enacting, in substance and without change so far as the case at bar is concerned, provided in its seventh section as follows:

7. Any deed may in like manner be admitted to record upon the certificate under seal of any two justices of the peace for any county or corporation within the United States, or any territory thereof, or within the District of Columbia, annexed to such deed, and to the following effect, to-wit:

*“(County or Corporation,)sc.:*We, A. B. and C. D., justices of the peace in the county (or corporation) aforesaid, in the state (or territory or district) of-, do hereby certify that E. E., a party (or E. E. and G.H., etc., parties) to a certain deed, bearing date on the-day of-, and hereto annexed, personally appeared before us, in our county (or corporation) aforesaid, and acknowledged the same to be his (or their) act and deed, and desired us to certify the said acknowledgment to the clerk of the county (or corporation) court of-, in order that the said deed may be recorded. Given under our hands and seals this-day of-.

“A. B. [Seal.]

“C. D. [Seal.]”.

Mow, the deed from John Soley, Jr., to John Miller Russell, dated 20th of March, 1800, was acknowledged and proved in a court of record of the state of Massachusetts in compliance with the requirements of the Virginia statute, (section 5, Act Dec. 13, 1792,) and it conveyed to said John Miller Russell the legal title to the land described in said deed. The deed from John Miller Russell to Henry 0. Middleton, dated 27th day of July, 1838, was acknowledged before two justices of the peace in the state of Massachusetts, in compliance with the provisions of section *94Y of the act of assembly of February 24, 1819, and conveyed the legal title to the land to the grantee, and not an equitable interest only, as contended by the defendant. The contention of counsel for the defendant that these deeds were not properly executed, because the seals do not appear attached to the signatures of the grantors, the attesting witnesses, .and the justices before whom acknowledged, cannot be sustained. We must remember that at the time these deeds were executed the usual way of affixing a seal was by an impression in wax. The scroll, as used now, had not come into general use. The seals, being of wax, were liable to be effaced or broken off; hence the necessity of having witnesses to the signing and sealing. If, at this remote day from the execution of these ancient documents, we are at liberty to ignore their sanctity as ■sealed instruments, because the impression in wax is not to be found on them, or the scroll, its legally authorized substitute, in its stead, though we have the highest record evidence that, the seals were attached to the documents at the time of their execution and delivery, it would go very far towards converting into equitable, what have been for a century regarded as legal, titles.

“A deed executed in Boston in December, 1798, by parties living there conveying land in Virginia, is properly admitted to record upon a certificate of the proof of its execution by the subscribing witnesses before the court of Suffolk county, signed by a person describing himself as clerk of the court, though no seal is attached to it.” *Smith*v. *Chap*man, 10 Grat. 445. The instructions asking the court to construe these deeds as conveying only equitable interests must be refused.