LESSEE OF CUNNINGHAM ET AL. v. BUCKINGHAM.

JUDGES HITCHCOCK AND BURNETT.

1824.

The omission to record a deed does not render it necessarily void as against a subsequent purchaser. Its validity or invalidity depends upon the fact of notice to the subsequent purchaser, which may be proved by parol.

Adverse possession in such a case is not evidence of actual notice, yet it may afford a strong presumption.

The plaintiff gave in evidence a deed from James Black to Cunningham, one of the lessors, and John Cully, for the lot in controversey, dated January 18, 1822. Consideration $140. Also a deed for the same premises, from John Cully to John W. Cully, the other lessor.

The defendant then proved that the lot in question was levied on by virtue of an execution, in 1810, and sold as the property of James Black,-that Schenck and Stansbury became the purchasers,—that James Black, the then owner of the lot, being satisfied with the sale, agreed for a small additional consideration, to execute a deed to the purchasers under the sheriff. He then offered a deed for the lot in question, from James Black and wife, to Schenck and Stansbury, under whom he claimed, dated 19th May, 1810. This deed was objected to, on the ground that it had not been recorded within six months after its execution, according to the act providing for the acknowledgement and recording of deeds. The clause of the statute relied on, is in these words: "And if any deed for the conveyance of lands, tenements, or hereditaments, made and executed, whereby the same shall be affected in law, or in any manner incumbered, shall not be acknowledged, or proved and recorded within the respective times allowed, the same shall be deemed fraudulent against any subsequent bona fide purchaser or purchasers, without knowledge of the exe ecution of such former deed or conveyance.

The court were of opinion, that the omission to record the deed, did not necessarily destroy its validity. That it was not an objection to the deed itself but to its effect as evidence in the cause, and that the objection might be rebutted by parol testimony. They, therefore, overruled the objection, and the deed was read to the jury.

The defendant then called several witness for the purpose of charging the lessors of the plaintiff with notice.

Mr. Statton, testified that, Cunnningham and Cully were living in the town of Newark, at the time of the levy and sale-that the sale was made near Mr. Cully's door-that the sale and the deed from Black to Schenck and Stansbury, were generally known and spoken of in the town-that the making of the deed was a subject of conversation for several weeks, and that there were not at that time, more than a dozen families residing in the town.

Mr. Johnston, testified, that he saw the sheriff's advertisement; that he was present at the sale to Schenck and Stansbury, and that the circumstances of the sale were generally known and spoken of in the town.

Judge Wilson, testified, that he recollected the sale and purchase by Schenck and Stansbury,--that it was notorious and commonly talked about, and so was the deed from Black. He understood, and he thinks it was generally understood, that Huston and McDougal were in possession of the lot under Schenck and Stansbury.

Mr. Wright, testified, that he knew of the sale at the time; that it was generally known and talked of, and he supposed every body knew it.

Mr. Van Buskirk heard it publicly talked of, that Black had given the deed to Schenck and Stansbury.

Mr. Lincoln lived in town at the time of the sale, which was a notorious thing-he supposed every body knew it. He thinks, from the conversation on the subject, that every person in town must have known it.

Mr. Black-he was at the sale, it was generally known.

Mr. Smith, testified, that Cunningham was searching the records for the deed.

Mr. Evans, testified, that Cunningham had told him he had searched for the deed.

The plaintiffs then called several witnesses to rebut.

Colonel Davidson, testified, that he had heard a long time back of the sale to Schenck and Stansbury-that some said there was a deed-that others thought

not.

Mr. Obannon, testified, that he did not live in town at the time of the sale, but heard of it, and that there was a difference of opinion about it.

Mr. Gillespie had heard of the sale and purchase.

Mr. Elliot was in town, and knew of the sale, but not of the deed. Mr. McDougal, testified, that he always understood there was a deed from Black to the purchasers, under the sheriff.

On this testimony the cause went to the jury.

The plaintiff's counsel called on the Court to charge them, that it was necessary for the defendant to prove that the lessors of the plaintiff had actual notice of the deed from Black, under which the defendant claimed; and that if such proof had not been made, it would be their duty to find for the plaintiff.

The court refused to give the direction required; but after stating the case, and summing up the evidence, informed them, that the omission to record the deed, did not necessarily render it void. That its validity or invalidity, depended on the fact of notice, which might be proved by the same description of evidence, that is admitted in other cases. That violent presumption, or the proof of such facts as imply notice, was sufficient, and that if their minds were convinced, by the whole testimony, that the lessors of the plaintiff had knowledge of the deed, under which the defendant claimed, they should be charged with notice. That a man was not at liberty to shut his eyes against the truth, and shelter himself under the plea of ignorance. That where a fact comes to his knowledge, that necessarily puts him on his guard, he is bound to make diligent enquiry, and to search for information at the sources, from which it is most natural to expect it. That although the adverse possession which existed,

in this case, and was known to the plaintiffs, was not evidence of actual notice, yet it was a violent presumption, which, in connection with other facts, might satisfy the mind of a jury. That the cases under the registry acts of Great Britain, cited at the bar, were inapplicable, as those acts do not contain the proviso, that is found in ours. They declare the instrument absolutely void, and relief against them can be had only in chancery, on the general principles of equity. Stricter proof is therefore required. The party applying for relief, must make out a clear case of fraud, but our statute provides relief, and the jury is authorised to examine, and decide the fact, and they must do it according to the established rules of evidence, in ordinary cases, at common law.

Verdict for the defendant.

HARVEY ET AL. v. BROWN ET AL.

JUDGES SHERMAN AND BURNET.

1824.

The minutes of the daily proceedings of courts form no part of the record, nor can they be con sidered as the foundation of an assignment of errors.

Such minutes, however, ought to be made with the same precision as is required in the complete record.

The facts of the case were these. The cause having been called in its order, in the Common Pleas, the defendants were defaulted, and judgment ordered to be entered against them. The clerk, in making up the minutes of the day, stated the cause, and entered the order in these words, "Judgment," &c. in which form the entry stood, when the minutes were read and signed by the presiding judge. After the rising of the court, the clerk made up a complete record of all the proceedings in the cause, setting out the judgment fully and technically, and entered the same in the book provided, and kept for that pur pose, agreeably to the statute. The writ of error was then taken out and returned, with a transcript of that record certified in due form. An attested copy of the minutes of the court, containing the original entry of the judgment, was also annexed to, and returned with the writ.

Woods, for the plaintiff in error.

By the COURT.

The copy of the minutes forms no part of the record, and cannot be consid. ered as the foundation of an assignment of errors.-The statute makes a clear distinction between the daily entries on the minute book, and the complete record which is to be made up in the vacation and entered in the book of records. The former is intended to prevent mistakes in entering the orders of the day, and to detect them, where they are made. The latter is considered the record of the cause, and supersedes the necessity of any further recurrence to the minute book. The writ of error must be returned with a transcript of this record, and the assignment must be predicated on it. The plaintiff cannot be permitted to contradict it by a paper purporting to be a copy of detached parts of the proceedings in the cause.

Such a course, is unprecedented, and might jeopardize a large portion of the judgments that have been rendered, in the Common Pleas, throughout the state. On the same principle, the copy of any paper, improperly admitted, or rejected, or of any motion improperly granted or overruled, might be tacked to the record, without having been made a part of it, by a bill of exceptions. Such a practice would lead to endless confusion-it would destroy the certainty of records, and defeat the object for which they are made. The entries which are required to be made in vacation, are the records of the court, and as there is no error in the transcript of that record, the judgment must be affirmed.

It may not be improper, however, to make a remark on the manner in which the entries should be made on the daily minutes of the court. Although the 87th section of the Judiciary Act, which requires the proceedings to be entered, read and signed, does not prescribe the form in which the minutes shall be kept, or expressly require the orders, judgments, and decrees, to be entered at length, or direct the clerk to pursue the exact form of those entries, in making up the record, yet that course would be the most safe one, and would be most conformable to the spirit of the statute. This, however, has not been the common construction given to that section by the clerks throughout the state. Many of them have considered the minutes as concise memoranda of the proceedings of the day, from which full records were to be made up in the vacation, and if those memoranda were sufficiently explicit to enable them to make the record with certainty and correctness, they have considered them as made in conformity with the statute. This construction has probably resulted from the reason given in the statute, for requiring the duty, which is "to prevent errors in entering the judgments, orders, and decrees, of each court." It is the opinion of this court, however, that the correct course is to make the entries with the same technical precision as is required in the complete record made up in

vacation.

Judgment affirmed.

TREASURER OF CHAMPAIGN COUNTY v. NORTON.

JUDGES BURNET AND SHERMAN.

1824.

The acquiescence of the attorney of record, binds the party.

An appeal from the Common Pleas to the Supreme Court, does not vacate a submission to arbitrators nor their award, but the award is open to the same exceptions in the Supreme Court as in the Court below.

It was an action of debt, brought on an administrator's bond. From the record it appeared that the parties had submitted the cause to the Court of Common Pleas, on an agreed case. The court referred it to a special commissioner, who reported a balance due from, and in the hands of the defendant as administrator. Exceptions were filed to the report, which were overruled. Judgment was entered for the plaintiff, and an appeal taken to this court.

O. PARISH, for the defendant, moved to set aside the report: first, because the submission was made to the Common Pleas, without the knowledge, or con

sent of the defendant's attorney on record. Secondly, because the report having been made on a reference in the Common Pleas, prior to the judgment, it ought to be considered as vacated by the appeal.

As it appeared from the record that the cause had remained in the court below more than a year after the submission, before the rendition of judgment, during which time one of the attornies of that court, at the request of the attorney on record, had answered to the suit without objecting to the submission or the reference, and it appearing further that the submission and agreed case were signed by the attorney of a co-defendant, with the knowledge of the agent of Norton's attorney, the court were of opinion, that whatever might have been the merits of the motion, had it been made in time, it was then too late for the party to avail himself of it.

On the second ground, it was the opinion of the court, that neither the submission, nor the report, were vacated by the appeal, but that the report was open to the same exceptions as in the court below. Motion overruled.

The defendant then took sundry exceptions to the report, some of which were sustained, and it appearing that payments had been made by the defendant, for the benefit of the estate, which had not been submitted to the commissioner, in consequence of the vouchers not being in the possession of defendant, the case was referred to the same commissioner for re-examination and report, at the next term.

MILLER v. THE COMMISSIONERS OF MONTGOMERY COUNTY.

JUDGES BURNET AND SHERMAN.

1824.

Summary proceedings under the statute cannot be had, when the collector's bond is erroneously

taken.

It appeared from the record, that James L. Miller, had been appointed collector for the county of Montgomery, and had executed a bond, payable to the treasurer of Montgomery, conditioned for the faithful performance of his duty. The money contained on the duplicate, not having been paid over, agreeably to the condition of the bond, the commissioners served the collector with notice of a motion for judgment, and in pursuance of that notice, a motion was made before the Court of Common Pleas, and a judgment entered in the name of the commissioners, against the collector, for the sum claimed to be due, with twelve per cent. damages thereon, and cost of suit. To reverse this judgment, the writ of error was sued out.

ALEXANDER for the plaintiff, relied on two crrors: having been taken agreeably to the statute, was void.

first, that the bond, not Second, that the court

were not authorized to render a judgment against the collector, for a greater penalty than ten per centum.

By the COURT.

The statute under which these proceedings were had, requires the collector