(dissenting).
I dissent. Section 301 of chapter 32 of the Alaska Code of Civil Procedure, prescribing who may bring actions to recover the possession of real property, is as follows: “Sec. 301. Any person- who has a legal estate in real property and a present right to the possession thereof, may recover such possession, with damages for withholding the same, by .an action. Such action shall be commenced against the person in the actual possession of the property at the time, or if the property be not in the actual possession of any one, then against the person acting as the owner thereof.” Act June 6, 1900, c. 786, 31 Stat. 383.
The present being an action at law to recover the possession of real property, with damages for its withholding, it was essential to its maintenance for the plaintiff to establish in himself a legal estate in the property sued for, and a right to its possession; and so the court below in effect instructed the jury.
The plaintiff attempted to do that by means of the deed from Whittren to him. The primary objection made by the defendants to that deed was that it was only witnessed by one person. The validity of the deed in that respect is, of course, to be tested by the provisions of the Alaska *405statutes. Sections 73 and 82 of the Civil Code enacted by Congress June 6, 1900, for that District, are as follows:
“Sec. 73. A conveyance of- lands, or of any estate or interest therein, may be made by deed signed and sealed by the person from whom the estate or interest is intended to páss, being of lawful age, or by his lawful agent or attorney, and acknowledged, or proved, and recorded as directed in this chapter, without any other act or ceremony whatever.”
“Sec. 82. Deeds executed within the district of lands or any interest in lands therein, shall be executed in the presence of two witnesses, who shall subscribe their names to the same as such; and the persons executing such deeds may acknowledge the execution thereof before any judge, clerk of the district court, notary public, or commissioner within the district, and the officer taking such acknowledgment shall indorse thereon a certificate of the acknowledgment thereof, and the true date of making the same, under his hand.”
It is contended on behalf of the defendant in error that: “The attesting witnesses and acknowledgment are no part of the deed, but are the means by which it is prepared for record, so that it may constitute constructive notice.”
And such seems to have been the view of the trial court.
The provisions of the act of June 6, 1900, in respect to the acknowledgment, proof, and recording of deeds, are as follows:
“Sec. 88. No acknowledgment of any conveyance having been executed shall be taken by any officer unless he shall know, or have satisfactory evidence that the person making such acknowledgment is the individual described in and who executed such conveyance.
“Sec. 89. Proof of the execution of any conveyance may be made before any officer authorized to take acknowledgment of deeds, and shall be made by a subscribing witness thereto, who shall state his own place of residence, and that he knew the person described in and who executed such conveyance, and such proof shall not be taken unless the officer is personally acquainted with such subscribing witness or has satisfactory evidence that he *406is the same person who was a subscribing witness to such instrument.
“Sec. 90. When any grantor is dead, out of the district, or refuses to acknowledge his deed, and all the subscribing witnesses to such deed shall also be dead or reside out of the district, the same may be proved before the district court or any judge thereof, by proving the handwriting of the grantor and of any subscribing witness thereto.
“Sec. 91. Upon the application of any grantee or of any person claiming under him, verified by the oath of the applicant setting forth that the grantor is dead, out of the district, or refused to acknowledge his deed, and that any witness to such conveyance refuses to appear and testify touching the execution thereof, and that such conveyance cannot be proven without his evidence, any officer authorized to take the acknowledgment or proof of conveyance, except a commissioner of deeds, may issue a subpoena requiring such witness to appear and testify before such officer touching the execution of such conveyance.”
“Sec. 93. Every officer who shall take the proof of any conveyance shall endorse his certificate thereon, signed by himself on the conveyance, and in such certificate shall set forth the things hereinbefore required to be done, known or proved, together with the names of the witnesses examined before such officer, and their places of residence and the substance of the evidence by them given.
“Sec. 94. Every conveyance acknowledged or proved or certified in the manner hereinbefore prescribed by any of the officers before named, may be read in evidence without further proof thereof, and shall be entitled to be recorded in the precinct in which the lands lie.”
From the foregoing provisions of the statute in relation to the execution, proof, acknowledgment, and recording of deeds in the district of Alaska, it is apparent, I think, that the attesting of the two witnesses is an essential part of the execution. Congress thus made provision for the execution of deeds covering lands in Alaska, for their acknowledgment by the grantor before an officer authorized to take such acknowledgments, and for the proof before *407such an officer of such execution by one or both of the two witnesses it provided should sign all such deeds as attesting witnesses. Perhaps one of the reasons for those provisions lies in the peculiar conditions existing in the extensive region of country with which it was dealing, the roaming character of its people, going into it with a rush in the spring and coming out of it with a rush in the fall, with many practical difficulties while there in the way of making either acknowledgment or proof of such instruments; but, whatever the reason, the courts have no power to dispense with the requirement by Congress that such an instrument shall be attested by two witnesses. If so, they have the same power to hold that there may be no attesting witness at all.
A similar case came before the Supreme Court from Ohio, one of the statutes of which state at the time required all deeds of land therein to be executed in the presence of two witnesses, who should subscribe their names thereto. The case is reported in 6 Wheat. 577, 5 L.Ed. 334, under the title of Clark v. Graham, where the Supreme Court said: “The deed of Massie was executed in the presence of one witness only; whereas, the law of Ohio requires all deeds of land to be executed in the presence of two witnesses. It is perfectly clear that no title to the lands can be acquired or passed unless according to the laws of the state in which they are situated. The act of Ohio, regulating the conveyance of lands, passed on the 14th of February, 1805, provides: ‘That all deeds for the conveyance of lands, tenements and hereditaments, situated, lying and being within this state, shall be signed and sealed by the grantor in the presence of two witnesses, who shall subscribe the said deed or conveyance, attesting the acknowledgment of the signing and sealing thereof; and if executed within this state, shall be acknowledged by the party or parties, or proven by the subscribing witnesses, before a judge of the’court of common pleas, or a justice of the peace in any county in this state.’ Although there are no negative words in this clause declaring all deeds for the conveyance of lands executed in any other manner to be void, yet this must be necessarily inferred from the claus'e in the absence of all words indicating a different legislative intent, and, in point of fact, such is *408understood to be the uniform construction of the act in the courts of Ohio. The deed, then, in this case not being executed according to the laws of the state, the evidence was properly rejected by the Circuit Court.”
In á recent case brought here from Alaska (Alaska Exploration Company v. Northern Mining & Trading Company, 152 F. 145, 81 C.C.A. 363), we held that a deed to an interest in a mining claim in Alaska, which was neither witnessed by two witnesses nor acknowledged as required by sections 5342, 5350, 5354, 5355 of the Oregon statutes (B. & C.Comp.), made applicable to Alaska by the act of Congress of May 17, 1884 (chapter 53, 23 Stat. 24), was' not entitled to record, and hence that the record thereof was not constructive notice to a subsequent purchaser.-
That Congress meant what it said when by section 82 of the act of June 6, 1900, above quoted, it required all subsequent deeds to lands in Alaska to be attested by two subscribing witnesses, is, I think, further manifested by sections 108, 111, and 113 of the same act, which are as follows:
“Sec. 108. All conveyances of real property heretofore made and acknowledged, or proved in accordance with the laws of the district in force at the time of such making and acknowledgment of proof, shall have the same force as evidence and be recorded in the same manner and with like effect as conveyances executed and acknowledged in pursuance of the provisions of this chapter.”
“Sec. Ill, All defective and informal acknowledgments of deeds, powers of attorney, mortgages or other instruments for the conveyance of land or interest therein heretofore made by any person or persons in good faith, whether the acknowledgments were taken by or before any clerk, deputy clerk or judge of any court of record within the district, or any commissioner or notary public of the district, shall be and the same are hereby legalized.”
“Sec. 113. All deeds to real property heretofore executed in the district which shall have been signed by the grantors in due form, shall be sufficient in law to convey the legal title to the premises therein described "from the grantors to the grantees without .any other execution or ac*409knowledgment whatever; and such deeds so executed shall be received in evidence in all courts of the district and be evidence of the title to the lands therein described against the grantors, their heirs and assigns.”
These are remedial sections, and the very fact that Congress thereby provided that all deeds theretofore made and acknowledged or proved in accordance with the laws of the District of Alaska in force at the time of such making and acknowledgment or proof should be received in evidence notwithstanding the provisions of the act of June 6, 1900, and that all deeds to real property theretofore made in Alaska by the mere signing by the grantor, without any other execution, should be deemed sufficient in law to convey the legal title to the premises therein described from the grantor to the grantee, and be received in evidence notwithstanding the provisions of the act of June 6,1900, makes the conclusion quite irresistible, in my opinion, that its intention was that, in respect to deeds executed after the passage of that act, those only which conformed to its provisions should be held to be valid conveyances of the legal title to the premises therein described, or receivable as evidence of such title.