Galpin v. Abbott, 6 Mich. 17 (Mich.)

Case details

Full caption

Horace Galpin v. James Abbott and Others.

Country

United States

Jurisdiction

Michigan (MI)

Court

Michigan Supreme Court

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Oiieistiancy J.:

The main question in this case is, whether the two deeds from Macy to Dodd and Hoxie respectively, dated August 4th, 1835, acknowledged the same day, and recorded in the uffice of the register of deeds in the city of Detroit, October 9th, 1835, were so executed, attested, and acknowledged, as to be entitled to record under the then existing laws of the territory. If entitled to be recorded, the record was notice to all the world of the title of Dodd and Hoxie, and they should have ■«closure suit; and not having been made parties to the fore-been made parties, they were

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Hot bound by the decree, and they or their grantees would' now be entitled to redeem. But if not entitled to record,, then, though, recorded in fact, the record is notice to no one,, and Dodd and Hoxie, and their grantees, are barred of all' rights of redemption by the foreclosure against Macy alone;all the mortgaged premises having been purchased by the other defendants from Abbott, and neither he nor his-, grantees- having any notice of the titles in question, aside fi‘om the record.

These deeds purport to have been executed in the state of New York, and each has but a single witness, who is, the same person before whom the acknowledgment was taken*

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The defendants insist that these deeds were not entitled to record, First, Because not properly acknowledged and certified, according to the laws of the state of New York, and the seventh section of the territorial act of Michigan, of April 12th, 182V (Compilation of 1888, p. 281, efic.); and, Second, If duly acknowledged and certified, they could not be legally recorded, because not attested by two witnesses.

The first ground of objection we think wholly untenable. It is fully met by the decision of this court in Ives v. Kim-ball, 1 Mich. 308, which arose under the same law. The only circumstance which might distinguish that case from the present (as relates to this point), is, that in that case

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the acknowledgment was taken before a judge of the Court of Common Pleas, wbñe in tbe case before us it was before a commissioner. The provision, of the New York Revised Statutes (.Edition of 1836, vol. 1, p. '749, section eighteen), to which we are referred, and which requires a clerk’s certificate to a commissioner’s acknowledgment when the deed is to be recorded in another county, manifestly has no application to this case, as it only applies when the deed is to be recorded in some other county of that state. This clerk’s certificate is no part of the acknowledgment, or of the certificate of acknowledgment. The latter under' section seven of the is the only certificate required territorial act. The question

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hero is, whether the acknowledgment, and the certificate of such acknowledgment, were in accordance with the laws of New York. TJpon this question we can not entertain a doubt. We think, therefore, the deeds were sufficiently acknowledged and certified to entitle them to record here, if they could be recorded with a single witness only.

But the question still remains, whether the deeds were entitled to record with but a single subscribing witness. .

This question depends entirely upon the territorial statute originally adopted by the Governor and Judges, March 27th, 1820, from the laws of five of the original states {Laws of 1820, p. 156, et seq.), re-enacted without altera

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tion (so far as this point is involved), April 12th, 1827 (Laws of 1827, p. 258; and Laws of 1883, p. 279), and in force at the time the deeds in question were made and recorded. "We say the question depends entirely upon this statute, because it was the only statute in force upon the subject, and because, though statutes in pari materia often shed much light upon the true construction of a particular statute in a doubtful case, yet, in the present case, we think the legislative intent can be easily deduced from this statute itself, and if it could not, such is the peculiar nature of the case, that little .light could be derived either from prior or subsequent legislation. Little from the for

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mer, as this was tbe first act of the legislative power of the territory in reference to the material questions here in-, volved. And whether the provision of the Ordinance requiring two witnesses (until other provisions should be made by the territorial laws) was, or was not, in force when this act was adopted, it ceased upon its adoption, and its prior existence can furnish no safe inference in itself, whether the policy of that Ordinance in this'respect was intended to be continued or changed by the act. The one inference might be as probable as the other, and the question can only be settled by the provisions of the act itself Quite as little light is to be derived from subsequent legislation;

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because, First, There was no subsequent act on the subject till after these deeds were executed and recorded, and a legislative construction could have little effect upon prior transactions; and, Second, The subsequent legislation so entirely changed and re-changed the law relative to witnesses, and deeds executed out of the state, that the principal inference to be drawn from this subsequent legislation as to the understanding or intention, of the Legislature in reference to this act, is, that' they were not satisfied with the law as it was, and therefore chose to alter it by making a different provision.

The question must, therefore, be settled by an analysis of the provisions of the act itself; and its solution will be found to depend mainly upon the first and seventh sections.

The first section provides “That all deeds or other conveyances of any lands, tenements, or hereditaments, lying in this territory, signed and sealed 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, or proved, and recorded, as hereinafter provided, shall he good and valid to pass

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the same lands, tenements, or hereditaments, to the grantee or grantees, without any other act or ceremony in law whatever.”

Whether a deed without two witnesses would be invalid to pass the title inter partes, under this -section, is a question upon which we express no .opinion, as it is not involved in the case. But whether it relates to the validity of the deed inter partes, or only to its validity for the purposes of registry, for which provision is made in the subsequent sections, can make little difference here: whether it relates to the one or the other, or to both, we are satisfied from the nature of the provision, and the whole scope of the act — the obvious design of which was to provide a system for the conveyance of lands and the registry of deeds, which should be complete in itself — that this see, tion must be construed as exclusive in its operation, though there are no negative words; and this is abundantly shown by the following authorities, cited by the counsel of the defendants.— Wiswall v. Ross, 4 Port. Ala. 321; Claris v, Graham, 6 Wheat. 577; Alston v. Thompson, 1 Cheves, 271; Gorham v. Daniels, 23 Vt. 600.

But if this provision, touching the validity of the deed, relates only to its validity for the purpose of registry (and, it certainly relates to this, whether it has any greater extent or not), no one can doubt that, in this respect at least, the provision is exclusive, and no deed included under this section could be recorded without two witnesses. There was no registry at common law; and so far as this pro-, vision relates to validity for the purpose of registry, it is an enabling act. The validity of the deed for the pur-, pose of registry can extend no further than the affirmative provisions of the statute have extended it; the common law can not supply any omission or deficiency of the statute. The same reasoning will apply to, and the same conclusion result from, the provisions of section seven, touching the validity of deeds there mentioned. We can not, therefore,

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resist the conclusion that to authorize the registry of a deed under this statute, it must be a valid deed under this statute, and that its validity must depend upon the affirmative provisions of the statute itself; unless, indeed, the statute has in some way recognized a common law deed as susceptible of record — a point which we shall consider in the proper place.

But do the provisions of this section, in reference to the execution and attestation of deeds, extend to the deeds mentioned in the seventh section? The language of the first section is general, and on its face purports to apply to all deeds affecting lands in the territory; and must therefore be applied to all the deeds mentioned in the act, unless clearly limited to a part only, by some subsequent .provision. It is also apparent that while this section purports to prescribe rules for the execution and attestation of all deeds affecting lands in the territory, it has made no provision for the mode of acknowledgment, or proof (as a substitute for acknowledgment), or registry, of the deeds mentioned in it; but for provisions touching these subjects it exp'essly refers to the subsequent provisions of the act, by the clause “and acknowledged, or proved, and recorded, as hereinafter provided.”

This reference would seem to extend to all the subsequent provisions of the act on the subject of acknowledgment or proof and registry, and plainly to indicate that all the deeds and conveyances for the acknowledgment or proof and registry, of which provision is made in any subsequent Section, were understood to be included among the deeds and conveyances mentioned in this section, unless this reference should be found to be limited by some subsequent provision.

The subsequent provisions relating • to the acknowledgment or proof and registry are to be found in sections two, three, four, six, and seven.

Section two (which will be noticed more fully hereafter)

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provides for the acknowledgment or proof of deeds within the territory only, requires them to be recorded, and prescribes the consequences of omitting to record them. It makes no provision for acknowledgment or proof out of the territory, nor does it prescribe the order or manner oí recording.

Section three provides for a register of deeds in the city ■of Detroit.

Section four provides for the acknowledgment of deeds of married women: 1st, those residing in the territory; 2d, those residing toithout the territory; and authorizes the recording of deeds of the latter class.

Section six, provides that “ all deeds,” &c., entitled to be recorded “by virtue of this act,” shall be recorded in the order and within the time therein prescribed ; and makes the deed when recorded, with the register’s certificate on the same, as well as the record, or a transcript thereof, evidence in any court, without further proof. This is the only section which provides for the order or mode of recording.

Section seven, upon which the questions in this cause mainly depend, is in the following words: “That all deeds and conveyances of lands, tenements, or hereditaments, situate lying and being within this territory, which shall hereafter be made and executed in any other territory, state, or country, whereby such lands, tenements, or hereditaments shall be conveyed, in whole or in part, or otherwise affected or incumbered in law, shall be acknowledged, and proved, and certified, according to, and in conformity with, the laws and usages of the territory, state, or country, in which such deeds or conveyances were acknowledged or proved, or in which they shall be acknowledged or proved; and all such deeds and conveyances are hereby declared effectual and valid in law, to all intents and purposes, as though the same acknowledgments had been taken, or proof of execution made, within this territory, and in pursuance of the laws thereof; and such deeds and conveyances, so acknowledged

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or proved as aforesaid, may be admitted to be, and shall be, recorded in the respective counties in which such lands, tenements, or hereditaments, do or may lie; and all deeds and conveyances of lands, tenements, and hereditaments, situate'lying and being within this territory, which have been acknowledged or proved in any other territory, state, or country, according to, and in compliance with, the laws and usages of such territory, state, or country, and which deeds or conveyances have been recorded within this territory, be and the same are hereby, confirmed and declared effectual and valid in law, to all intents and purposes, as though the said deeds or conveyances, so acknowledged or proved and, recorded, had, prior to being recorded, been acknowledged or proved within this territory.”

It is contended by the complainant’s counsel that the general provisions of section one are restrained by the language of section two, so as to include no other deeds than those which are required to be acknowledged under the provisions of section two, and that the reference contained in the language of section one in the clause “as hereinafter provided,” &c., is thereby restrained in like manner; that section seven provides for a class of deeds not included in section one, and is to be treated as complete in itself, providing for the execution, acknowledgment, and registry of all deeds executed out of the territory; and in support of this view (and necessary to its support) it is further contended, that the execution of the deeds mentioned in section seven is sufficiently provided for by the, section itself, either, 1st (as maintained by the counsel who opened the argument), by adopting a common law deed and a common law execution; or, 2d (as urged with much ability by the_ counsel who closed), that this section has adopted, for the purposes of execution, the law of the place of execution.

Let us see whether this construction will fairly harmonize the various provisions of the statute.

Is the first section limited by the second as contended?

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It can not be denied that, on a first inspection, confining ourselves strictly to the particular words, “all such deeds,” &c., in connection with the provision for acknowledgment within the territory, this view would appear plausible; but Avhen we come to look at the leading idea and main object of the section, in connection with the various provisions which precede and follow it, we do not think this view can be maintained. The leading- idea and chief purpose of this section were not to limit the preceding section, but to provide for the acknowledgment of deeds within the territory, and before officers within the territory; to require such deeds to be recorded, and to prescribe the consequences of a neglect to record. The apparent repugnancy between this section and the preceding, considered with reference to its main scope and professed object, is merely incidental; while to construe it only with reference to the particular words referred to, would create a direct conflict between this section and sections one, six, and seven. The same harmony of transition from one section or one provision to another is, perhaps, hardly to be expected in an act adopted, as this was, from the laws of five separate states, as would be expected in an act prepared and passed, as a whole, by the same legislature. But statutes should always be so construed as to produce the least conflict, and to harmonize, as far as possible, all their provisions.

The construction contended for by the complainant would confine the express general reference in section one (of which we have spoken) exclusively to the deeds mentioned in section two; while it is manifest, we think, that this reference extends also to those mentioned in section six, which latter section obviously includes those mentioned in section seven, as well as those in section two, — and it is admitted that those mentioned in section two are included in section one. Indeed, we think the reference is quite as clear to section six as to section two; as the sixth section is the only one which provides fully the

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order and manner of recording, and prescribes the effect of the record. If, then, it extends to the deeds mentioned in the sixth section, how can it be claimed not to extend to those mentioned in the seventh, which are included in the sixth?

The same reference of section one just as evidently extends to the second class of deeds mentioned in section four, which, if executed out of the territory, might, as we think, and as complainant’s counsel contend, be acknowledged or proved out of the territory, under the provisions of section seven. And it can not well be doubted that the same class of deeds might also be acknowledged in the territory under section two.

Section seven refers only to deeds executed out of the territory; and is entirely silent as to the manner of executing or attesting such deeds, but makes full and express provision for the mode of acknowledgment, or proof, and • the certificate thereof, when taken in any other state or country — not by adopting the law of the place of execution, but of the place where such acknowledgment or proof may be taken.

We cannot suppose that by the terms “deed or conveyance made and executed” (see section seven) the Legislature intended to adopt a common law deed merely, or the mode of execution at common law. We can see no foundation for such an in_ ference in the language; and there is nothing in the context or general scope of the statute to warrant the inference that they intended to use the terms “ deed or conveyance,” in this section in any different sense from that in which the same terms are used in every other portion of the act. Nor can we suppose, especially in the absence of any language indicative of such an intent, that they intended to authorize the recording of deeds, not only without a witness, but without even the signature of the grantor, neither of which was essential at common law— sealing alone being sufficient.

It may, we think, be safely affirmed that this feature of the common law was never recognized in the territory of Michigan, if in any of the northwestern states; and the construction

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Which would allow such a deed to be recorded, would certainly violate the rule of construction contended forby the complainant’s counsel, that the plain and obvious meaning should be 'taken, instead of one only discoverable by professional criticism, for which he cited 23 Pa. St.* 242.

Again, as already intimated, a married woman residing out 'of the territory, might, by virtue of section four, either execute and acknowledge her deed out of the territory under section seven, or within it under section two; and the construction contended for by complainant would then make the same word, in the same connection and in the same place, mean a common law deed under section seven, or a statute deed under section one, as. it might happen to be acknowledged within or Without the territory.

But the construction claimed by one of the complainant’s counsel, that this section has adopted, in reference to the execu~ ■tion of the deed, the law of place of execution, is, if possible, still less tenable. The language of the section precludes any such construction. It has not adopted the law of the place of execution for any purpose; while it has adopted, in the most explicit terms, in reference to the acknowledgment or proof, the law of the place where acknowledged or proved. It is but treasonable to suppose that if it intended to adopt the law of the place of execution, that intention would also have been expressed. The expression of the one is the exclusion of the -other.

Now, the execution of the deed, and the attestation by subscribing witnesses — whether it be a part of the execution (as we think it is, under this statute) or not, are distinct from the acknowledgment, and complete -without it. And we see no good reason why a deed executed in the state of New York might not, under section seven, be acknowledged or proved in the state of Pennsylvania or Ohio. In such case, the law of the place of execution and the place of acknowledgment would be different, and the latter only would apply.

But again: Section seven after providing for the acknowl

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edgment ont of the territory, declares that “ all such deeds and conveyances ” shall be “ as effectual and valid in law, to all intents and purposes, as though the same acknowledgments had been taken, or proof of execution made, within this territory, and in pursuance of the laws thereof.” This necessarily implies that the deed, though executed out of the territory, might have been acknowledged here, and, if so, it must have been under the provisions of section two, as this was the only law under which, any acknowledgment could be taken here; and, in this case,, beyond all controversy, the two witnesses would have been required ; as it is admitted, on all liands, that all the deeds, for-the acknowledgment of which provision is made in section two, are included in, and referred to. by section one.

The conclusions, then, to be drawn from an analysis of the statute, are that the reference in section one extends to the deeds mentioned in section seven; that, consequently, the deeds mentioned in section seven are included among those for the execution and attestation of which provision is made in the first section; and that the seventh section, being silent on the subject of execution and attestation, and only providing for acknowledgment or proof, a deed with but a single witness Avould be of no greater validity for the purposes of registry, when acknowledged out of the territory under section seven, than if the same deed, so attested, had been acknowledged within the territory under section tAvo.

Let us now see if this final conclusion is not expressed in plain and unmistakable terms in the language of section seven itself. After having made provision for the acknowledgment or proof of deeds out of the territory, it adopts the following language already quoted — “ and all such deeds, and conveyances are hereby declared effectual and valid in law, to ah intents and purposes, as though the same acknowledgments had leen taken, or proof of execution made, within this territory, and in pursuance of the laws thereof.”

We are compelled to regard this as a plain and direct Statute enactment of the conclusion at which Ave have already arrived by analysis of the Avhole act.

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It declares just liow far such deeds shall be valid; not to all intents and purposes, but to the same extent as if the same ■deed had been acknowledged “in this territory, and in pursuance of the laws thereof.” No reference could be more direct to the provisions of section two of this act, 'which was the ■only law under which the acknowledgment could be -taken in the territory.

The test question then is, Had these deeds from Macy to Dodd and Hoxie, with but a single subscribing witness, been acknowledged in the territory under section two of this act, would they have been valid deeds, for the purpose of registry ? Clearly they would not, since it is not, and can not be, denied that all the deeds for the acknowledgment or proof of which provision is made hi the second section, are included in the first section, and must -be executed according to the provisions of the latter to entitle them to record.

We think, therefore, that whatever doubt might be entertained whether the reference hi section one extends to section 'seven, there can be little doubt that the language of section seven, above quoted, refers directly to section two, and, through that, to section one, for all that is essential to entitle a deed to record, except the acknowledgment or proof, and certificate, provided for in the seventh section. A similar limitation as to validity, and a similar reference to the first two sections of the act, are contained in the latter part of the seventh section,, in reference to deeds previously acknowledged out of the territory.

The language referred to is too plain and explicit, and the whole provision too cautiously worded, especially when twice used in the same section, to have been the result of accident or mistake. At all events, if a mistake, it is one which this court can not correct.

We are, therefore, of opinion that the deeds from Macy to Dodd and Hoxie were not entitled to be recorded; that, though recorded in fact, the record was notice to no one; and, therefore, that Macy and his grantees were barred of the right ■of redemption by the foreclosure suit against Macy alone.

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For these reasons the decree of the court below, dismissing the bill, must be affirmed.

Martin Oh. J. and Manning J. concurred. Campbell J. did not sit in this case, having been counsel for one of the parties.

It was argued with much ability, by the counsel on each side of this case, that the prior, as well as subsequent, legislation on the subject of conveyances, threw light Upon the particular point under discussion here, and justified the construction put by each upon the provision in question. A reference, in this place, to the prior legist lalion upon this subject, may possibly be-of interest to the profession. *29’The post of Detroit was surrendered to the British authorities in the capitulation \>f Montreal, September 8th, 1760. Formal possession was taken the twenty - ninth of November following, and jurisdiction coded by the treaty of peace between Great Britain and France of February 10th, 1763. By the Ordinance of 1787, real estate lix the Northwest Territory might be “ conveyed by lease and release, or bargain and Sale, signed, sealed, and delivered by the person, being of full age, in whom the estate may bo, and attested by two witnesses, provided” “such conveyances be acknowledged, or the execution thereof duly proved, and be recorded within oho year after the proper magistrates, courts, hnd registers shall be appointed for that purpose.” In Lessee of Lindsley v. Coats, 1 Ohio, 243, it was held that the ancient common 'law conveyances, as such, had never been adopted in this territory, and that, by the Ordinance of 1787, it was not the intention t>f Congress merely to legalize those modes 'of conveyance which are mentioned in the Ordinance, leaving it at the option of owners of real estate within the territory, upon the sale of their lands, to convey the same "either by the ancient common law mode of feoffment with livery of seizin, or by , deed duly executed as provided by the Ordinance, but to provide that every conventional transfer of real estate, by v'endor to vendee, should be by the latter mod’e only. 'Section eight of “A law establishing the Becorder’s Office,” published by the Governor and Judges of the Northwest Territory, June 18th, 1795, to take effect August 1st, 1795 '(1 Chase's Statutes, 167), provides that “All deeds and conveyances which shall be made and executed within this territory, of or concerning any lands, tenements, or hereditaments therein, or whereby the same may be in any way affected, in law or equity, shall be acknowledged by one of the grantors or bargainors, or proved by one or more of the subscribing witnesses to such deed, before one of the judges of the General Court, or before one of the justices of the Court of Common Pleas of the county where the lands conveyed do lie, and shall be recorded in the recorder’s office of the county where such lands or hereditaments are lying and being, within twelve months after the execution of such deeds or conveyances; and every such deed and conveyance that shall, at any time after the publication hereof, be made and executed, aud which- shall not he proved and recorded as aforesaid, shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless such deed or conveyance be recorded as aforesaid before the proving and recording of the deod or conveyance under which such subsequent purchaser or mortgagee shall claim.” Section nine of the same act provides for proving deeds when the grantors and *30witnesses were dead, or could not be produced. In Abbott v. Godfroy's Heirs, 1 Mich. 178; it is said, by tbe Supreme Court, that, qs Michigan, remained under British jurisdiction. until 1796, the Ordinance of 1787 (and the rule would be the same as to the territorial enactments) was not in force hero until that time. How far the laws before in force here ceased to have effect with this change of jurisdiction, or at what time thereafter any particular statute or custom was impliedly superseded by American legislation, will not be discussed here. There was no formal repeal of the former laws until September 16th, 1810, when, by an act of the Governor and Judges of Michigan, the acts of the Parliament of England, and of the Parliament of Great Britain, the Coutume de Paris, or ancient French Common Law, existing in this country, the laws, acts, ordinances, arrets, and decrees of the Governors and other authorities of the Province of Canada, and of the Province of Louisiana, under the ancient French Crown, and of thp- Gov-, ernors, Parliaments, or other authorities of the Province of Canada, and of'Upper Ca-. nada, under the British Crown the laws adopted and made by the Governor and Judges of the Territory of the United States Northwest of the river Ohio, and the laws made by the General Assembly of the said territory, and the laws .adopted and made by the Governor and Judges of the territory of Indiana-r-_were. repealed,, with saving of rights accrued. — Cass Cods, 119; Code, O/1820, 460; Code, 0/1827,499. By “A Law rendering the Acknowledgment of Deeds more easy,” adopted and published by the Governor and Judges, of the Northwest Territory May 1st, 1798ti “all grants and deeds made of houses and lands may be acknowledged before one of the judges of the territory, justice of the common pleas, or justice of the peace», any former law to the contrary notwithstanding.” — 1 Chase Stat. 210. The act of Congress to divide the Northwest Territory into two separate governments, approved May 7th, 1800 (2 Stat. at Large, 58), provided that “from and after the fourth day of July next, all that paTfc of the Territory of the United States North-west of the Ohio Liver, which lies to the westward of a line beginning at the Ohio opposite to the mouth of the Kentucky Liver, and running thence to Fort Locov-. ery, and thence north until its hall intersect the territorial line between the United States and Canada, shall, for the purpose of temporary government, constitute a se-parate territory, and be called the Indiana Territory.” By the second section it was. provided that there should be established in the Indiana Territory a government in all respects similar to that provided by the Ordinance of 1787, “and the inhabi-. tants thereof shall be entitled to, and enjoy all and singular the rights, privileges, and advantages granted and secured to the. people by the safd. Ordinance.” *31!Port Recovery was erected on the site of St. Clair’s defeat by the Indians, near the north boundary of the present county of Darke, Ohio, and some two or three miles east of the present state line between Ohio and Indiana. It will be perceived that, by this act, the eastern boundary line of Indiana Territory passed north through the present State of Michigan, some twenty miles west of the principal meridian as subsequently established, leaving the eastorn portion of the present state still included in what remained the NorthWest Territory. Ckillicothe was made the capital of the Northwest Territory by this act, and Vincennes of Indiana Territory, until otherwise ordered by the territorial legislative authorities. “An Act providing for the Acknowledgment and Recording of Deeds in certain cases” (1 Chase Stat. 342; Lems of Lf.W. Territory, 1802, p. 135), adopted by the Territorial Legislature of the Northwest Territory, at Ckillicothe, January 20th, 1802 (at the same session at which the towns of Detroit and Cincinnati were incorporated), was so important, and, in some respects, so peculiar in its phraseology and provisions, that it is here copied in full: “An Act providing for the Acknowledge ment and Recording of Deeds in certa/in cases. “■Whereas it has been represented to this Legislature that, in many instances, deeds and conveyances of lands, tenements, and hereditaments, situate, lying and being within this territory, have been executed, acknowledged or proved in other states and countries, in pursuance to the laws or customs in such states and countries, and whereas doubts are entertained respecting the validity and legal effect of such acknowledgments and proofs, and of the propriety of admitting such deeds and conveyances, so acknowledged and proved, to be recorded within said territory: Therefore, to remove all doubts, and to render such acknowledgments and proofs equally valid and effectual, in law, with acknowledgments and proofs of deeds made within the territory, and in strict compliance with the acts and laws thereof: “See. 1, Be it enacted by the Legislative Council and House of Representatives in General Assembly, and it is hereby enacted, by the authority of the same, that all deeds and conveyances of lands, tenements, and hereditaments, situate, lying and being within this territory, heretofore executed, and which said deeds and conveyances have been, or hereafter may be, acknowledged or proved, according to and in compliance with the laws and usages of the territory, state, or country in which such deeds and conveyances were acknowledged and proved, or in which they shall be acknowledged or proven, are hereby declared effectual and valid in law, to all intents and purposes, as though the same acknowledgments had been taken, or proof of execution made, within this territory, and *32in pursuance to the acts and laws thereof; and such deeds, so acknowledged or proved as aforesaid, may be admitted to be recorded in the respective counties in which such lands, tenements, and hereditaments do or may lie, any thing in the acts and laws of the territory to the contrary thereof notwithstanding : Provided, That such deeds and conveyances, so executed, acknowledged or proven, or to be acknowledged and proven, be recorded within two years from tho passing of this act. And provided aleo, That all deeds and conveyances of lands, tenements, and hereditaments situated within this territory, which have been acknowledged or proved in any other territory, state, or country, according to, and in compliance with, the laws and usages of such territory, state, or country, and which deeds and conveyances have been recorded within this territory, be, and the same are hereby confirmed, and declared effective and valid in law, to all intents and purposes, as though the said deeds or conveyances, so acknowledged or proven, and recorded, had, prior to being recorded, been acknowledged or proved within this territory. “ Sec. *2. And be it further enacted, that all deeds and conveyances of lands, tenements, and hereditaments, situate, lying, and being within this territory, which shall hereafter be made, executed, and acknowledged or proved in any other territory, state or country whatever, shall not be admitted to be recorded within this territory, unless such deed or conveyance shall be accompanied with a certificate annexed of some clerk or prothonotary of a court of record, or a notary public of the county, state, or country in which such acknowledgment was taken or proof made, under the seal of the court or office (as the case may be), stating that the acknowledgment was taken or proof made before a competent authority, according to the laws and usages of such state or country, which certificate so made and annexed shall be recorded, together with the deed or conveyance, and shall have like effect in law as though the same had been acknowledged or proven within this territory, and no other “ Sec. 3. And be it further enacted, that all deeds and conveyances of lands, tenements, and hereditaments, situate, lying and being within this territory, which shall hereafter be made and executed in any other territory, state, or country, whereby such lands, tenements, and hereditaments shall be convoyed, in whole or in part, or otherwise affected or incumbered in law, shall be acknowledged, or proved, and certified as aforesaid, and recorded in tho county in which such lands, tenements, or hereditaments so conveyed or affected shall be situate, within one year after the day on which such deed was executed. And all deeds and conveyances which shall be made and executed within the said territory, for the conve3rance of any lands, tenements, or hereditaments situated within tho *33same, whereby such lands, tenements, and hereditaments shall be conveyed, affected, or incumbered, shall be acknowledged, or proven, and recorded within, six months of the actual time of signing or executing such deeds; and if any deed or conveyance of lands, tenements, and hereditaments, made, and executed, or to be made and executed, whereby the same shall bo affected in law, or in any manner incumbered, shall not be acknowledged or proved, and recorded, within the respective terms allowed by this act, the same shall be deemed fraudulent against any subsequent bona fide purchaser or purchasers without knowledge of the existence of such former •deed or conveyance. “ Sec. 4. And be it further enacted, that •deeds for lands, tenements, or hereditaments lying within this territory, may be ■acknowledged before a justice of the common pleas, or of the peace, of any county in the territory, and bo recorded in that county in which such lands, tenements, and hereditaments are situated; and such •acknowledgment shall have like effect as though made in the same county in which such lands, tenements, and hereditaments ■do or shall lie. “Sec. 5. And be it further enacted, that so much of the acts and laws of the territory as come within the purview of this act, be, and the same are hereby repealed.” This act is said, in Lessee of Allen v. Parish, 3 Ohio, 107, to have been passed on the application of the Governor of Connecticut, representing that many deeds and conveyances of land lying within the territory had been executed in that state, under an impression that its jurisdiction extended over the district commonly called the Connecticut Reserve. And it was held in that case, that where a deed was executed and acknowledged in Now Hampshire, in 1801, according to the laws of that state, but not recorded within the time limited in the proviso to section one, its validity as against the grantor or his heirs was not affected by the failure so to record it. By the act of Congress of April 30th, 1802 (2 Stat at Large, 173), all that portion of the then Northwest Territory not included within the boundaries of the state of Ohio, thereby authorized to be formed, was thereby “ attached to and made a part of the Indiana Territory, from and after the formation of the said state.” The Constitution of Ohio was adopted November 29th, 1802. It would seem, therefore, that the act of the Governor and Judges of January 20th, 1802, above given was in force in the eastern portion of the present state of Michigan from that date, until November 29th of the same year, when the whole of Michigan came under the jurisdiction of Indiana. No acts on the subject of conveyances are believed to have been adopted by the legislative authority of Indiana Territory between November 29th, 1802, and the organization of Michigan Territory by the act of Congress of January 11th, 1800, which *34took effect July 1st of that year. This act contained a similar provision for the formation of a territorial government to that contained in the act organizing Indiana Territory; but neither in this, nor in the act of Congress of April 30th, 1802, above cited, was there any express provision continuing in force any laws. As before stated, all the enactments of the legislative authorities of the Northwest and Indiana Territories were expressly repealed by the Governor and Judges of Michigan, September 16th, 1810. “An Act concerning the Recording of Deeds and other "Writings,” adopted by the Governor and Judges August 29th, 1805 (Woockoai'd Code, §87), provides “That the clerk of every court shall record all deeds and writings acknowledged or proved before such court, or any judge thereof, or any justice of the peace, or any notary public, together with the acknowledgments of married women, and all endorsements and papers thereto annexed, by entering them, word for word, in proper books, to be carefully preserved, and shall afterwards re - deliver them to the parties entitled to them. “That when husband and, wife have sealed and delivered a writing, if the wife appear before such court, judge, or justice, or notary public, and being examined privily and apart from her husband, shall declare that she did freely and willingly seal ’and deliver the said writing, to be then shown and explained to her, and wishes not to retract it, and consenteth that it may be recorded, a certificate of such privy examination being returned and recorded with the writing, and the writing being acknowledged also by the husband, or proved by witnesses to be his act, in such case the said ■writing shall not only be sufficient to convey or release any right of dower, thereby intended to be released or conveyed, but be as effectual for every other purpose, as if she were an unmarriod woman. “That if the party reside not in Michigan, the acknowledgment by such party, or the proof by the number of witnesses requisite, of the sealing and delivery of the writing, before any court of law, or the mayor, or any chief magistrate of any city, town, or corporation, in which the party shall dwell, certified by such court, mayor, or magistrate, in the manner.sucli acts are usually authenticated by them, together with any relinquishment of dower, shall be effectual.” “An Act concerning the Recording of Deeds and other “Writings” of the date of February 21st, 1809, was, among other laws, declared void, as not properly adopted and signed, by the Supreme Court of the territory at its September term, 1809. These laws had been adopted in the absence of the Chief Justice, and were signed only by the Governor as presiding officer of the legislative body. Section six of “An Act in addition ta ‘An Act to adjust the Estates and Affair *35of Deceased Persons, testate and intestate, and for other purposes,’ ” adopted November 4th, 1815, provides: “That all deeds and conveyances which shall be made and executed within this territory, of or concerning any lands, tenements, or hereditaments therein, or whereby the same may be any way affected in law or equity, shall bo recorded in the register’s office of the district where such lands or hereditaments are lying and being, within six months after the execution of such deeds or conveyances; and every such deed and conveyance that shall, at any time after the publication hereof, be made and executed, and which shall not be proved and recorded as aforesaid, shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless such deed or conveyance be recorded as aforesaid, before the proving and recording of the deed or conveyance under which such subsequent purchaser or mortgagee may claim.” — Cass Code, p. 80. Section one of “An Act concerning Deeds and Conveyances,” adopted by the Governor and Judges March 27th, 1820 (Code of 1820, 156), was re-enacted as section one of the act of *1827. — Code of 1827, p. 258; Revision of 1888, p. 279. Section two of the act of 1820, is as follows: “And be it farther enacted, that all such deeds, or other conveyances, of or concerning any lands, tenements, or hereditaments lying within this territory, or whereby the same may be in anywise affected, in law or equity, shall be acknowledged by the party or parties executing the same, or proved by one or more of the subscribing witnesses thereto, before one of the judges of the Supreme Court, or before one of the justices of any county court, a notary public, or any justice of the peace, in any county within this ter-, ritory; and a certificate of such acknowl-. edgment or proof being endorsed thereon, and signed by the person before whom tho same was taken, such deed or conveyance shall be recorded in the office of register of probate for the county, or register for the city, where such lands, tenements, or hereditaments, respectively, are situated, lying and being, within six months after the execution of such deed or conveyance; ,and every such deed or conveyance that shall, at any time after the publication hereof, be made and executed, and which shall not be acknowledged or proved, and recorded, as aforesaid, shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable cont sideration, 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. And all deeds and convey-, anees which have been heretofore executed, of or concerning any lands, tenements, or hereditaments within this territory, whereby the same may have been affected in *36anywise in law or equity, and wliicli have not been heretofore recorded according to law, shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless such deed or conveyance shall be recorded in the office of the proper register of probate, or of the register of the city of Detroit, as the case may require, agreeably 'to the provisions of this act, on or before the first day of December, which will be in the year of our Lord one thousand eight hundred and twenty - one, or unless such deed or conveyance be recorded as aforesaid, before the acknowledging or proving •and recording of the deed or conveyance tinder which such subsequent purchaser ■Or mortgagee may claim.” Sections three, four, five, six, and eight were subsequently re-enacted as sections three, four, five, six, and seven of the act of 1827. Section seven was as follows: “ And be it further enacted, that it shall not be lawful for any register of any city or county in this territory, to record any deed, conveyance, or writing above mentioned, unless the same shall he acknowledged or proved as is directed by this act, and which acknowledgment or proof shall be recorded therewith.” March 16th, 1822, this section seven was repealed. — Pamphlet Laws, pul), éwl824». p. 18. October 23d, 1822, “An Act respecting Seals” was adoptod, which provided “That any instrument to which the person making the same shall affix any device by way of seal, shall be adjudged and holden to be of the same force and obligation as if it were actually sealed.” — Pa/mphlet Laws pul), iu 1824, p. 34. "With these two changes, the act of 1820 remained in force in 1827.