It is very clear from the evidence of the justice who took the acknowledgment, that the conveyance under which the defendant claims title was not attested by a subscribing witness until the time of the first acknowledgment.
The principal question in the case is upon the effect of a deed thus unattested and unacknowledged. The revised statutes (1 R. S. 738, § 137) require every grant in fee, if not duly ácknowledged previous to delivery, to be attested by at least one witness, and, if not so attested, it shall not take effect as against a purchaser or an incumbrancer until so acknowledged. The statute makes no exception, in terms, in favor of a purchaser in good faith. And if it did, it would not affect this case,-as the plaintiff claims under a judgment, and the statute is explicit that it shall not take effect as against an incumbrancer.
What the effect would be in a case where the proof showed beyond controversy that the conveyance was actually delivered and possession taken under it at the time of its date, it is not necessary in this case to determine. The statute- hiakes: no" exception, in terms, in favor of such purchasers.
*158[Oneida General Term, January 5, 1857.In this case there was clearly a fair question of fact for the jury to find whether the deed in question was actually exe* cuted and delivered at the time of its date, or not. It was held in Elsey v. Metcalf, (1 Denio, 323,) that the presump-, tion that an instrument was executed and delivered at the time it hears date does not hold in relation to deeds in fee, unattested apd unacknowledged. Without the aid of such presumption, in this case, and upon the evidence alone, the proof was, to say the least, conflicting upon this point. Has* well’s testimony would tend to show the affirmative; but the testimony of Gen ter and Tracy, accompanied with the circum* stances that the defendant attempted to procure a fraudulent acknowledgment to he certified upon it, would tend to cast doubt upon the correctness of Haswell’s testimony. It was clearly not a case for a nonsuit.
Hew trial granted.
Hubbard, Pratt, Bacon, and W. P. Allen, Justices.]