#### Myrick vs. McMillan.

Under the Territorial Statutes of 1839, the acknowledgment of a deed by the grantor was not essential to render it operative as between the parties to it, but only to authorize its admission to record.

A certificate of a justice of the peace, stating that the execution of a deed was proved before him to his satisfaction„by one of the subscribing witnesses, and that the grantor was duly summoned before him to hear such proof, by personal service of a summons, with a copy of the deed attached, and was present at the examination of the subscribing witness, was sufficient, under that statute, to authorize the deed to be recorded.

APPEAL from tbe Circuit Court for *Dane*County.

Tbis action was brought in tbe circuit court for La Crosse county, and tbe place of trial was changed to tbe county of Dane. On tbe trial, tbe plaintiff offered in evidence a deed from Peter Cameron for tbe land in controversy, wbicli was objected to, and excluded by tbe court, and tbe defendant bad judgment. Tbe other facts of tbe case are stated in tbe opinion of tbe court.

*Angus Garrieron*and *S. U.*Pinney, for tbe appellant,

argued that tbe deed of Cameron, though not acknowledged by him, was sufficient to pass tbe legal title to tbe land, and was a good deed as against tbe grantor and all claiming under him with notice of it, tbe acknowledgment or proof of tbe execution of a deed being necessary only for tbe purpose of admitting it to record. *Marshall vs. Fish,*6 Mass., 24; *Dole vs.*Thurbw, 12 Met., 157 ; *Lawry vs.*Williams, 13 Me., *281; Beaman vs.*Whitney, 20 id., 413; *Buck vs. Bab-cock,*36 id., 491; 6 N. H., 250 ; 13 id., 389; 2 Poster, 468; 3 McLean, 362; 2 Blackfl, 32 ; 2 Scam., 315, 371; 6 Peters, 124; 5 Cal., 315 ; 31 Miss., 307. As to tbe sufficiency of tbe justice’s certificate of tbe proof of tbe execution of tbe deed, counsel cited *Gatlin vs. Washburn,*3Vt.,24. Tbe possession of tbe deed by tbe grantee was *prima facie*evidence that it bad been delivered. *Ford vs.*Gregory, 10 B. Mon., 180 ; *Lessee of Sicard vs. Davis,*6 Peters, 137.

*W. H. Tucker*and *Hugh Garrieron,*for respondent:

Tbe deed from Peter Cameron was properly excluded. 1. There is no evidence that Peter Cameron refused to acknowledge tbe deed, and consequently it does not appear *189that the justice had. power to take proceedings to prove it. 2. The certificate of the justice should show on its face the statute authorizing such proceedings has been strictly pursued. The summons should have been fully set out. *Bex vs. Oroke,*1 Cowper, 26. A defective summons or notice is not cured by the appearance of the party. The certificate, therefore, does not show jurisdiction. *Bex vs. The Mayor of*Liverpool, 4 Burr., 2,244; *Gilbert vs. Columbia T.*Co., 8 John. Oases, 107; *Medclock vs.*Williams, 12 Ohio, 886. 3. The due execution of the deed was not proved before the justice. There is no evidence that it was executed in the presence of two subscribing witnesses, and a deed not so executed is void. *Clark vs.*Graham, 6 Wheat., 577; *Allston vs.*Thompson, and *Craig vs.*Pinson, Cheves’ Law Bep., 271-2. 4. There is no evidence that the deed was delivered by Peter Oameron. His refusal to acknowledge it repels the presumption arising from *Myrick's*possession. A deed must be perfect in all respects before delivery. *McKee vs. Hicks,*3 Dev., 379 ; *Parker vs. Parker,*1 Gray, 409. 5. Not having been properly proved, the deed was not entitled to record, and the improper recording of it does not authorize its introduction in evidence for any purpose. *Kerns vs. Swope,*2 Watts, 75 ; *Pidge vs. Tyler,*4 Mass., 541; *Morgan vs. Bealle,*1 A. K. Marsh., 310.

January 2.

*By the Court,*

Oole, J.

The only question we have to consider in this case is, whether the circuit court properly excluded the deed given by Peter Oameron to *Nathan My-rick.*The deed was executed by Oameron on the the 28th of May, 1848, in the presence of two witnesses who signed the deed as such witnesses. But for some reason, it appears that the grantor did not *then*acknowledge the deed, and on the 20th day of September, 1851, the grantee proceeded to prove before a justice of the peace, by one of the subscribing witnesses thereto, the proper execution of the deed, in conformity to sections 16 and 17, chapter 59, R. S. 1849. Several-objections are taken to the deed, and to the certificate of the justice indorsed thereon. In the first place it is insisted that by section 9, p. 179, Territorial Statutes of *1901839 — tlie law in force at tbe time this deed was executed— _ no conveyance was valid to pass the title to lands as between the grantor and grantee, unless “ signed, sealed and delivered by the parties granting the same, having good and lawful right and authority thereunto, and signed by two or more witnesses, and acknowledged by such grantor or grantors,” &c. In other words, it is contended that under this section, though a deed may be ju’operly signed and sealed by the grantor, and duly witnessed and delivered, but not acknowledged, still it is not a valid conveyance and passes no estate, even as against such grantor. But this we deem an incorrect construction of this provision of the statute. *We*apprehend that it was not the intention of the statute to change the law upon this subject, and to make the acknowledgment of a deed by the grantor essential to pass an estate to the grantee, but that the acknowledgment was necessary in order to entitle the deed to be recorded. This is very obvious from the language of the next section, which declares that a deed not acknowledged, proved and recorded as therein directed, *“*shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee, for valuable consideration, without notice, *unless*such deed or conveyance be recorded as aforesaid, before the recording of the deed or conveyance under which such subsequent purchaser or mortgagee may claim.” This shows clearly that a deed not acknowledged or recorded was valid as against the grantor, but would not be good as against a subsequent purchaser, for a valuable consideration, without notice, whose conveyance should first be recorded, The object of the acknowledgment is to entitle the deed to be placed upon record, in order thus to give notice to all the world of its existence; but it was not essential to render the conveyance operative as between the parties thereto. This is very apparent, as well from the plain reading of the statute as from the authorities where similar statutes have been construed. *Dole vs. Thurlow,*12 Met., 157; *Montgomery vs.*Dorion, 6 N. H., 250; *Wark vs.*Willard, 13 id., 389; Lawry *vs. Williams,*13 Maine, 281; *Buck vs. Babcock,*36 id., 491; *Lessee of Sicard vs. Davis,*6 Peters, 124.

*191Our attention was called to some decisions in Oblo, wbicb beld that a deed not attested by two witnesses does not rate to pass an estate, under the law of that state ; but these cases are inapplicable here, on account of the dissimilarity of the statute of Ohio and the one under which the conveyance in the present case was made.

In this case the original deed was offered in evidence, upon which was the following certificate of the justice of the peace before whom its execution by the grantor was proven:

> “ State oe 'Wisconsin': County and town of La Orosse, — ss. On this 20th day of September, in the year 1851, the within and foregoing named E. A. 0. Hatch, a subscribing witness to the annexed and within deed, personally appeared and made oath before me, one of the justices of the peace in said county, that he saw the within named Peter Cameron voluntarily sign and seal the said deed ; that he subscribed his name thereto as a subscribing witness at the same time, - which proof was satisfactory. The said Peter Cameron, at the request of Nathan Myrick, the grantee, was duly summoned to appear before me at the time and place of said examination, to hear the testimony of the said subscribing witness, by an original summons, served personally upon the said Peter Cameron, together with a true copy of said deed annexed, by the sheriff through his deputy of said county, on the 22d day of August, ,1851; that on the day therein mentioned said examination was adjourned, by consent of both parties, to the 20th day of September, when the same took place according to law. And I further certify that on. the said 20th day of September, 1851, aforesaid, the said Peter Cameron was present at such examination. Bobebt LOONEY, Justice Peace.”

It is objected that this certificate is defective and insufficient on several grounds, all of which we deem untenable. By section 10 T. S. "Wis., 1839j p. 179, it was necessary before a deed could be recorded,' that it should be acknowledged by the grantor, “ or proved by one or more of the subscribing witnesses thereto,” before a justice of the peace, or some other officer therein stated, the proof being endorsed thereon. Section 14, chapter 59, B. S., 1849, and the fol*192lowing sections, provide tbe way in wbicb tbe execution of _ a deed, not acknowledged, may be 5proven in tbe several cases therein named. When tbe grantor resided within tbe state and refused to acknowledge tbe deed, tbe grantee, or any person claiming under him, might apply to any justice of * tbe peace in tbe county where tbe land lay, or where tbe grantor or any subscribing witness resided; wbicb justice was thereupon authorized to issue a summons to tbe grantor to appear at a certain time and place before tbe said justice to bear tbe testimony of tbe subscribing witnesses to tbe deed; and tbe summons, with a copy of tbe deed annexed, was required to be'served at least seven days before tbe time assigned for proving tbe deed (Section 16). At the time mentioned in tbe summons, or at any time to wbicb tbe bearing might be adjourned, tbe due execution of tbe deed might be proved by tbe testimony of one or more of tbe subscribing witnesses; “ and if proved to tbe satisfaction of tbe justice, be shall certify tbe same thereon, and in such certificate be shall note tbe presence or absence of tbe grantor, as tbe fact may be.” (Section 17.) This is all tbe statute prescribes in respect to tbe form or substance of tbe certificate of tbe justice, or as to what it shall contain. We cannot doubt that the one in this case is sufficiently full to authorize tbe deed . to be recorded. It probably does not contain all tbe matters appearing before tbe justice- — tbe various questions put to tbe subscribing witness, with bis answers thereto — nor does tbe statute require tbe j ustice to certify to these things. If tbe due execution of tbe deed is proven to tbe satisfaction of tbe justice, be is required to certify tbe same, stating in tbe certificate whether tbe grantor was present at tbe bearing or not. All this, and much more, is set forth in tbe certificate in this case, and it fully appears from tbe testimony of the subscribing witness, that Peter Cameron duly executed tbe deed, and that tbe same was entitled to be recorded. Upon tbe question as to tbe sufficiency of this certificate, we were referred to tbe case of *Catlin vs.*Washburn, 3 Vt., 24, which appears to be a case in point, and wbicb we are disposed to follow. The objections taken to tbe certificate in that case *193were muck like those taken in tbe ease at bar, and they were all overruled. So we think they must be here.

It follows from these views that the judgment of the circuit court must be reversed, and a new trial ordered.

Dixon, O. J., did not sit in this case, the cause having been tried before him while a judge of the circuit court.