Skinner v. Watson

Williams, J.

I do not view this subject in the same manner as it is viewed by my brethren, and feel compelled to dissent from the decision which has just been made.

In passing a title by the levy of an execution, a strict compliance with the statute in every particular is required. The returns of officers setting off real estate on execution have been severely criti-cised, both in this, and other states, where property is transferred in this way, much beyond what I have thought a just regard to the rights of creditors and debtors required. It has nevertheless always been considered, that the statute must be complied with, and the doubts which have been entertained, have been rather as *430to what shall be evidence of a compliance with the statute, tliats whether an omission to do what was necessary to pass the title could in any case be supplied by doing something not required.

^ appears to me that the statute has made it essential to pass the title, that the execution shall be recorded in the office wherein deeds respecting the same lands are required by law to be recorded, and also that it shall be returned into the office of the clerk of the court, or justice of the peace, from which the same issued, and there recorded. This being done, the statute says, shall make a good title to the party for whom such estate was taken, his heirs,” fee. The statute requires the execution to be recorded, and, in tny opinion, nothing passes until this is done, and until the original execution itself is recorded : recording a copy is neither a compliance with the statute, nor is it of any avail for the purpose of notice, or ¡tiny other purpose whatever.

Recording is enrolling a paper on the public records, whether of the town or county, by, or under, the superintendance and direction of the officer who is appointed to make the records, and who must not suffer any paper to be enrolled or copied into the records, but such as he knows, or is proved to him, to be the paper intended to be recorded. A departure from this in any instance is to make the evidence of title derived from the record uncertain, precarious, and liable to great fraud and imposition.

One of my brethren'has urged, that nothing more is intended by the record than notice of the execution. If this was all the object intended by the recording, still it would be essential that the notice should be such as the statute requires, or it would be no notice at all. I cannot accord with the view which has been taken of this notice, which, indeed, renders it immaterial, whether the record was made from the original, from memory, from a copy, or from a copy of a copy, or from something even still more remote, and which also renders it immaterial, who furnishes the copy for the recording officer, whether the officer levying the execution, the creditor, or even a bye-stander. If all that is required is, that á correct copy of the execution shall be found on the records, it would be as immaterial how it came there, as was said in the argument, as it would be whether the record was made with black ink or red ink.

But such a record of a copy of a deed has been decided by this court to be of no avail. In the case of Stevens vs. Brown, in Grand-Isle county, 1830, (3 Vt. Rep. 420.) it was expressly laid down and adjudged by this Court, that the record of a copy *431is not in law a record of the original deed, and is no evidence of ti-tie ; that “it is a nullity, and cannot be good for the purpose of notice, or avail to any effect in law.” The emphatic language of the Court in that case well applies to the recording of the copy of an execution.

I apprehend however that something more than notice, merely,' was intended by this requisition, as to recording the execution. It is made essential to pass the title.

When deeds are recorded, the record becomes evidence of title'. The record, or copies from the record, have been decided to be such evidence, and why, i ask, does it not as well comport with the statute for a town clerk to record t he copy of a deed, as the copy of an execution, without having any legal evidence of the existence of the deed, or of the execution, and without knowing that they compare with the original ? I can see no difference : yet we see that this Court have considered such a record, as to a deed, of no avail, and not authorized. It has been deemed necessary, inasmuch as these records of deeds, executions, &c., are evidence of title, and copies from the record may be read in court without producing .the original, except when the original is in the custody of the party making the title, to make legislative provision on the subject of recording. A recording officer is to be appointed he must be sworn, and in some cases give bonds. He must know that the paper recorded is carefully copied on to the records. If it is not done by himself, it must be under his inspection and control, so that in either case, lie can certify that it is duly recorded ; and-ho should not suffer nor permit any paper to be copied there, but what he knows to be the paper intended to be recorded. Indeed, the security of our titles depends upon this.

But can the recording officer know that the copy of a deed, or of an execution, given to him, compares with the original, or that there is any deed or execution to be recorded ?

The sheriff or officer levying an execution is not made a certifying officer, and copies attested by him are no better authenticated than if attested by any other individual.

If a deed may not be recorded unless there is a certificate under the hand of a magistrate endorsed thereon, that the same has been acknowledged by the grantor, or proved by witnesses, by what process of reasoning can welcome to the conclusion, that a copy of another instrument transfering the property of an individual against his consent, not authenticated by the certificate of any offi*432cer duly authorized, may be placed on the record and considered as a record of the original ?

Again, I cannot assent to the-proposition, that all that is required 's> f°r l^e court t0 satisfied, that what appears on reeord compares with the original, without any reference to the inquiry by whom it was placed there, or from what it was copied. If this was the case, we ought always to compare the record with the original, and the certificate of the recording officer ought not and would not be received, as the slightest evidence that any original ever existed. I admit that the record ought to be a true copy of the original; but the evidence, and the only evidence, of this fact, is the certificate of him whose duty it was to see that the original was truly copied, and enrolled on the record.

Nor do I see that any argument can be drawn, in favor of thus recording a copy, either from the old statute which was passed in 1779, or in the fee bill in the statute passed in 1797. The statute of 1779 did not make it necessary that the execution should be recorded, in the town clerk’s office, to pass the title ; but only required that a copy should be lodged in his office, which he was directed to enter on the town book of records. While this statute was in existence, such a record, as the plaintiff claims in this case, would have been good. Probably from the inconveniences which were experienced under this statute, it was repealed after a •fewyears ; and since the year 1787, the law has always required the execution itself to be recorded. — Old Stat. Has. ed. p. 67.

The fee bill of 1797 was also repealed after a fewyears. There was in that fee bill among the fees allowed to sheriffs, &c., an item of fifty cents, for a “ copy of an execution extended on lands, and the return thereof to the office for record.” If this would authorize recording from a copy, it would as well apply to the record in the office of the clerk of the court, or justice of the peace, from whence the execution issued, as to the record in the town clerk’s office. In the same fee bill, it may be noticed, the fees, which are given to the town clerk, and the clerk of the court, as magistrates, are for recording the execution.

There is nothing in this fee bill which repeals the positive directions of the statute, in relation to recording the execution ; and it cannot be repealed by so remote and distant an inference as would be drawn from the expression made use of in the fee hill. This item was probably inserted by mistake, from the practice which has obtained while the statute of 1779 was in force.

It appears tometljatthe inference to be drawn from the exist-*433snce and repeal of the statute of 1779, is not in favor of the po■sition claimed by the plaintiffs, but directly against it ; and that •the repeal of the clause in the fee-bill is an argument that the le•gislature'considered, that 'there was no service-to be performed by the officer which entitled him to that fee. l am aware there ■was a book of forms published some time since, in which the offi■•cer-is made-to state in his return, on an execution levied on land, ithat he 'has left a copy with the town clerk for record. Í cannot admit however, that a hook oj forms, published by an individual, should repeal a statute.

I do not know that this form, or a practice under it, was generally adopted or prevailed in this state; though I am sensible it was ■so in some counties. Nor do I know that it was ever .established by any judicial decision. On the contrary all the decisions,.which.have come .to my knowledge, have been, that a record from a copy of an execution was not good, and passed no title.

It has been urged, however, that these decisions are not reported. I consider them, nevertheless, as authorities which ought to govern our decision in this case. The decisions of this Court do not derive any additional efficacy as authorities, from being ■reported. A hasty decision, whether reported or not, if it will not bear examination,.and leads to great and manifest linoenveni-•ences, may be overruled. A course of decisions, whether report.ed or not,which have been considered as .establishing the law, and which .affect .property to any great extent, ought not to be over■ruled without weighty and good reasons therefor. Surely, they ought not to he, merely because we think that they might have been otherwise at first.

•I think, however, it will be found that the-decisions Upon'this •subject in this Court have been uniform, as much so, as upon any •subject whatever. -I have been informed, 'that it was so decided prior to the year 1821, and by more than one court : I do not know in what case, or at what time. Rut when I first came on 40 the bench in 1822,1 found thaMhis question had been decided •the yea r before, while C. J. Van Ness presided in this Court, and the decision was not questioned in several cases where a title was set up under an execution no otherwise recorded in the town clerk’s office than by a copy. In 1823 there were further changes in the members of the Court, so that there was an entire 'change of the members since the year 1821. During that year this question was considered as settled ; and if I mistake not, this very levy was decided to be bad on that account, during that *434embraces a period of four years, when no doubt was entertained by the bench, that a levy of an execution upon lands when the execution was not recorded, or when only a copy was recor(3ed, was considered as bad, and conveying no title, I am not sensible of a decision to the contrary, eithei before or since. The language of the present Chief Justice in the case of Hubbard vs. Dewey, 2 Aik. 312, has been supposed to countenance these decisions, and was read in this case as an authority against these levies. We learn, however, from him, that this supposition is-erroneous ; that the case was decided upon this ground, that from the evidence it appeared the execution was recorded from the original,and not from a copy. The fact- had been overlooked by the Court, who had made two decisions against the validity of that levy.

It has been said that many levies have been made in this way, and there is danger in deciding against them. The danger, if any exists, I apprehend will be in overruling these decisions at • this-time. Property may have been bought and sold upon the belief that the law was settled agreeably to these determinations. I feel very confident, few persons Would have considered a levy, when there was no other record, than from a copy as in this case, as any embarrassment on the title of a debtor. Creditors, who had thus levied their executions, may have obtained'a further satisfaction, considering their levy void. This very defendant may have neglected to call on his grantor for any further security, fully relying,that by the decision of the Supreme Court, the law was settled, and his title perfect. If any sheriffs, deputy sheriffs, or constables, have been exposed to hazard by the former decisions, as is said by one of my brethren, I presume no levy has been made in this way very recently ; and they are now protected by the statute of limitations. If they are not,, the decisions of this Court should not be changed for their benefit particularly.

Hutchinson, C. J.,

expressed his opinion as follows: this question, whether the levy of execution upon real estate, otherwise perfectly regular, yet recorded in the town clerk’s office from a- copy, lodged with him by the levying officer, has become very important, by reason of the extensive practice, for many years, to record in this way. And it does appear to me, that strong reasons exist for supporting such levies, if it can be d8ne by any fair construction of the several statutes.. In the first place, the creditor never takes real estate for his debts because he chooses it; *435nor because it will be as good for him as the money ; nor because he expects it will come to him at a low price ; but he takes it as the last, and only resort, to save his debt, and knowing that the money would be better for him, and knowing, that he must pay the full value of such real estate. Again, the statutes were calculated to lead to such a practice ; and it would be hard if officers, who are able, should be obliged to make the creditors good for ■such a defect. If they are not able, the creditor must lose his debt at all events, if such defects are adjudged fatal to the levy. It would not be at all strange, if a well informed officer, when making a levy of execution upon real estate, and knowing that a record must be made in the office whence the execution issued, and also in the town clerk’s office; and seeing the statute of 1798, which gives him a fee in these words, “ Copy of an execution extended on lauds, and the return thereof to the office for record, 50 centsit would not be strange if such an officer should be led to suppose that a copy must be left, or no fee would be given ; and to enquire for the use of such copy, and be unable to discover any use, unless it were to make the record required by the statute of 1797, and hence conclude, that the leaving of this copy was all that was required of him to enable the town clerk to make the record, required by law. Many officers were thus led to do their business ■in this way, with no doubt of its correctness. These considerations are of such weight with me, I acknowledge, I have approached the subject with a strong desire to find some fair construction of the statutes that will support the levies which are thus recorded, and which are liable to no other objection.

The statute of 1797 requires, in nearly or quite the same words, the recording of the execution and levy in both offices. There was, undoubtedly, some beneficial object in this requisition. There is no better rule in construing statutes, than so to construe as to give effect to the object intended. It is easy to see, that the recording in the office from which the execution issued, was proper and, perhaps, necessary, to let the debtor see that the judgement and execution were satisfied, and the exact property with which it was satisfied, its description, appraisal, &c ; — to let him see the costs of the levy, and the exact date of the levy and return, whence to calculate when to redeem, if he would redeem at all. There, also, is the place of payment, if he would redeem tbe premises at all. And there could be no possible use for the statute to require any other record for the debtor himself. He knows before what court he is sued to appear; and where logo *436toleafn'every thing connecter] with the suit. Creditors and purchasers’rrtay get information in the same way, at the same office j but they are not supposed to know where to find that office. They have had no official notice, before what court the suit was' brought, or whether there was any suit', that could affect the title of the land’. They should be able to obtain such notices as may affect tire title of land's, by applying at the office where suclr titles are usually recorded. Hence the statute provides fov the recording of executions and levies in the office of the town clerk of the-town where the land lies. The sole object of this must be notice to creditors and purchasers. It is of no use to the debtor, as already observed. He has no right to redeem by payment to the town clerk ; he must pay at the office where the judgement was rendered. If I am correct in this, that the object of recording in the town clerk’soffice, is notice to creditors and purchasers’, what sort of recording will effect this object ? Surely, nothing short of recording the correct matter, which operates as notice. There must be the- recording of that, which, if read, gives the same information, as the reading of the original execution and levy. I am not fully satisfied’ with any reason that can be given for requiring more. Whether the town clerk had'the- execution and levy before him, and looked alternately npon it ana fits record book, taking sentence after sentence, or thus looked at a correct copy, or had seen the original a mile off, and so recollected its contents, as to write them verbatim in his record book, seems to me of no consequence to the creditors or purchasers, if the correct matter is-written, it gives the correct notice ; and with this they may well be satisfied.

Wherever the law requires originals rather than copies, and excludes copies of copies, the reason of that law is, that, otherwise, mistakes may intervene to the injury of those who might be affected by such evidence, if admitted. In the position I would now maintain, I exclude the possibility of these mistakes, by requiring die right matter to be recorded. This is always capable of proof,, or detection, as either parly may wish, by comparison with the-original, or with a copy of the record in the office, where the judgement was rendered and recorded.

I know there have been some decisions to the contrary of this, as mentioned by Mr. Justice Williams. These are not reported, so that we might see the exact grounds of such decisions. But I have no doubt of the fact, that, at a time, this court considered the law so settled as to exelude further investigation, than *437to team'that the recording was by copy. The decisions in'the cii-cuit court of the United States, I believe, have been both'ways. The last decision there made, Justice Thompson presiding, was as vve now decide.

Phelps, J., was absent.