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STARKWEATHER. MARTIN,

or affix to his book an image of whatever the grantor may have treated as his seal, or to suggest by expressions or tokens of his own, that the paper was sealed. They contend that any thing which was allowed by law to be a constituent or appendage of the original, and which from its nature was incapable of being specifically ear-marked upon the record, was considered as an unrecordable badge of the original; and that any mere statement, suggestion or symbol of the register, to denote a sealing, and not answering to the character of a substantial copy, or even intended to stand as a copy, would have been in truth nothing more than an unauthorized and unofficial certificate of the officer based on his opinion, and wholly destitute of legal value.

It is not to be denied that these opposing positions, and the arguments made in their support, possess a good deal of force. The question to be considered naturally suggests the propriety of bringing into view the contemporary regulations for sealing and recording deeds, and their practical bearing upon conveyancing and recording. For the purpose of examining this case the two laws should be regarded as in pari materia.

Under the recording law of the territory in force in 1830, applicable to lands outside of Detroit, a deed, signed and sealed by the grantor, and signed by two or more witnesses, and acknowledged by the grantor, or proved by one or more of the subscribing witnesses, and having endorsed upon it a certificate of such acknowledgment or proof, signed by the person taking it, being one of the officers mentioned in the statute, was entitled to be "recorded in the office of the register of probate for the county;" and every deed was required to be "recorded in the order and as of the time when the same should be delivered to any register for that purpose, and to be considered as recorded from the time of such delivery." The register was enjoined to make an entry in the margin of the record, of the day, month, and year, and the time of the day when recorded,

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and to endorse and sign a certificate on such deed, of the particular time when, and the book and page in which it was recorded.

While the law was thus very precise in delineating the course and duty of the register touching certain particulars in the matter of recording, it will not escape notice that in regard to other things it was very unprecise and at large, and that it did not in direct and express terms prescribe any method of transcription, or define what he should do to give his work the stamp of a complete and legal record. The instrument being seen to have been regularly executed, witnessed and authenticated, was then to be recorded.

The statute did not in terms require the certificates of acknowledgment or proof to be recorded. It did not specify that the spelling or punctuation should be followed, or in what way, if at all, the seal should be represented. The duty of making the entry in such form as to import the true original was expressed by the phrase, "shall be recorded." This undoubtedly contemplated that the original document, with all its written testimonial adjuncts, should be substantially copied. But it did not contemplate that in making the copy, incorrect spelling not varying the sense, or interlineations, or blots, must be counterfeited, or that any attempt should be made to present a fac simile of any feature.

In regard to this there appears to be no controversy. Indeed, the defendants' counsel, while insisting that the entry, in order to amount to a record and afford evidence that the original was sealed, must bear some mark, device or statement of the register upon it evincive of a seal, yet conceded that it was not essential that it should be in any special definite form, to the exclusion of every other. He contended that the seal should be represented in some intelligible way, and admitted that the word, "seal," or the letters, "L. S." would suffice. This admission implies that it was not encumbent on the register to try to represent the specific seal, but only that his record should import the fact that there was a seal.

STARKWEATHER V. MARTIN.

We may now notice the law which prevailed here on the subject of sealing, when the deed was made and recorded in 1830; and we have no occasion to explore the curious learning connected with the introduction, use and former utility of private seals. Great changes have taken place, and the main, if not all, the substantial reasons which once existed for the practice of private sealing have disappeared. Certainly we look for them in vain here. Some remnants of the ancient law still linger in our code, through the indulgence of legislation, and they mainly seem to perpetuate useless distinctions and engender perplexing and unprofitable questions.

The law which prevailed in 1830 is found in the act of June 10, 1828. It contained two sections. The first enacted "that any instrument to which the person making the same shall affix any device by way of seal, shall be adjudged and held to be of the same force and obligation as if it were actually sealed." The second section applied the rule to all instruments executed after the 31st of De

cember, 1827.-Rev. Stat. 1833, p. 516. A recent compilation contains what purports to have been a law passed, or rather adopted, by the governor and judges in 1822 in the same terms as the first section of the act of 1828.—Territorial Laws, Vol. 1, p. 272.

Assuming that this law of 1828 contemplated that the "device affixed" should be something visibly importing that it was meant for a seal, this instrument of 1830 may have been lawfully sealed with any such "device." The law chose to leave it to the fancy or caprice of the grantor, and then provided that an instrument thus constituted might be "recorded." Admitting that it was the register's duty, whatever the "device" was, to set some special sign of its existence upon the record, was the circumstance that the entry, on inspection, did not disclose the trace of any such sign, sufficient to warrant the opinion that the the original was unsealed, and to justify the rejection of the evidence?

STARKWEATHER U. MARTIN.

That there was a genuine original, sealed or unsealed, seems not to be questioned, or to admit of question. The entry appeared to have been made by the proper officer, and in the appropriate place. It had stood, at the time of the trial, forty years, and nearly twenty when the patentee made the conflicting grant. The conclusion, and attestation clause, and the certificate of acknowledgment, all speak of the instrument as under seal. Unless it was sealed they were untrue. It was contrary to the duty of the justice to take the acknowledgment unless it was sealed. It was contrary to the duty of the register to record it unless it was sealed. It was the common course, the lawful course, to seal conveyances of real estate. These facts and incidents taken together afford a very strong presumption that the paper was sealed, and that the proceeding was meant to have effect, and not be useless.

On the other hand, we have the proposition that if the original was sealed, it was incumbent on the register to signify the fact in some special form; and on this proposition we have the argument that the absence of such an indication is a fatal defect in the record, whether the original was sealed or not, and at the same time affords an inference that the original was unsealed, and hence not entitled to be recorded.

Conceding that in strictness it was the duty of the register to put something of his own upon the record to indicate that the paper he recorded was sealed, the facts in the case will not allow his omission to do so, to overcome the evidence that the paper was sealed, or to do away with the record itself. When we reflect upon the state of the law as to sealing and recording in 1830, it is very easy to perceive that a register may have deemed it quite unimportant that he should make any special device of his own on the record. The omission under the circumstances is not entitled to the grave significance which the defendants ascribe to it.

Upon full consideration we think the evidence derived

STARKWEATHER v. MARTIN.

from facts, inferences and presumptions, supports the opinion that the original instrument was sealed, and that enough appeared upon the face of the registry, when rightly viewed, to denote the fact. This being so, the omission of the register to attach some special mark or statement of his own to signify the same idea was at the most a mere clerical misprision not sufficient to detract from the validity or force of the entry as a record.

The rejection of the evidence, then, of the Cass record, was incorrect, and as the finding proceeded on a state of facts wholly different from the case which would have been presented if this evidence had been admitted, we have no finding in the cause, upon the proofs which ought to have been allowed and considered. As this court can not make

a new finding, the case must be retried.

The points decided in favor of the plaintiff are not now open to review, and those ruled against him, which have not been considered, are either unimportant or will not be likely to come up again.

The judgment and finding should be set aside, with costs, and a new trial ordered.

CAMPBELL and COOLEY, JJ., concurred.

CHRISTIANCY, J., did not sit in this case.

Practice:

Benjamin D. Morse v. Lauren K. Hewett.

Order of proof. An objection which relates to the order of proof merely will not be considered on error. Certificate: Construction: Technical objections. It is the policy of the law to uphold certificates when substance is found, and not to suffer conveyances or the proof of them to be defeated by technical or unsubstantial objections. Certificate: Judicial notice: County clerk : Clerk of supreme court: Court of record. In construing a certificate of authenticity of the proof or acknowledg28 MICH.-61.

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