The opinion of the court was delivered at the circuit session, in September, 1855, by
Redfield, Ch. J.This case having been twice argued, it seems desirable to determine it, without further delay. It was decided in the court below, upon a very narrow ground, the sufficiency of the acknowledgment and record of the deed from Youngs to Heman Allen, dated April 10,1773, and acknowledged the 14th of the same April, and recorded February 20,1795, It is of course not necessary to go beyond these questions. No question of presumption has been properly raised in the case, and whether one can be raised in regard to the execution of this deed, as the evidence in the case shows that the defendant does not claim to hold the land under this deed, but under an independent title, originating in a vendue sale, it is not needful here to inquire.
The first inquiry is in regard to the sufficiency of the acknowledgment. Indeed, the two questions of record and proof or acknowledgment of the deed seem to be inseperably united. The acknowledgment is of no avail, except for the purpose of entitling the deed to record. The thing really aimed at is to ascertain whether the existence and execution of the deed can be shown by the copy of the record. The record is of no avail unless the proof or acknowledgment of the deed, and the registry was made in conformity with the law of the place, where the land was. For the conveyance of land, is to be made according to the law of the place of the land, that is, the lex rei sitce. And if there be a conflict of jurisdiction, in that place, the law of the government, defacto, exercising the jurisdiction, rather than of the government, de jure, is to prevail.
Strictly speaking then, we could only look at the law of the province of New Hampshire, and of this state, after it superseded that law. For although the present territory of Yermont did rightfully belong to the province of New York, the actual jurisdiction *124was always maintained by New Hampshire. And we are not aware of any such connection between the provinces of the British empire here, as will make the case differ from that of entirely seperate jurisdictions.
The acknowledgment of the deed as to John Wright, and the proof of its execution by the other grantors, seems to be sufficient under the New York statute of 1771, a copy of which is put in the case, unless there is some fatal objection to one of the grantors in a joint deed, executed by more than one person, being a witness to the execution of the deed, by his co-grantors. If the interest or title conveyed were joint, it would seem that each owner is interested in the entirety, and so not competent to prove the execution of the deed, by his co-grantors, any more than by himself. And although one may acknowledge a deed for himself, it would not be allowable probably for him to prove the execution by himself, or to be a witness to his own execution. And if the interest of these grantors was several, it is not easy to comprehend, why they should have joined in the execution of the deed. It seems not easy, then, to make out clearly, that this John Wright, who appears by the certificate of the magistrate, to be the same person, who executed the deed and also witnessed it, is really competent to perform both offices, unless we can presume the interests conveyed, to have been several, which is not a reasonable presumption in any case of a joint deed. For if the interest is really several it seems almost an absurdity to suppose they should have joined in the deed.
But if we could surmount this difficulty, the proof of the execution of the deed is only according to the law of a foreign jurisdiction, when the land was granted, held and to be conveyed according to the laws of New Hampshire. And by this law deeds could only be proved, as they can now, and always could in this state, when the grantor was dead, incompetent to make the acknowledgment, or refused to do it. And the statute of the province of New Hampshire, in force from 1701 to 1792, (it would seem from the edition of the statute laws of New Hampshire, published in 1815,) only admitted to record, deeds acknowledged, or proved according to that statute. And the proof of a deed, according to the provincial statute of New Hampshire, could only be made, in any case, as a sort of caveat, after the grantor had been committed for con*125tempt, in not acknowledging the deed, and only during the continuance of such contempt. But in New York proof and acknowledgment were at the election of the parties, and always have been, we suppose. The case then fails upon this point also.
There is still another difficulty in the admission of the copy of the record of this deed, made in 1795, that there was no law in force in the state, at that time, allowing a deed executed out of the state, prior to 1787, and acknowledged or proved according to the laws of the state or country where executed, to be recorded in this state. And the statute in this state passed in 1797, admitting such deeds to record, could have no effect in legalizing a record, made before the statute was passed.
Viewing this case upon the law merely, the ruling of the court below seems to have been without just foundation.
The question of presumption from lapse of time and attending circumstances, is one of fact to be submitted to the jury, under proper instructions, which was not attempted. We have no occasion to speak of it further.
Judgment reversed and case remanded.