Brotherton against Livingston, 3 Watts & Serg. 334

The opinion of the Court was delivered by Gibson, C. J. There was no reason for an exception to the refusal of the motion to direct a verdict for Lutz and Bittinger, to have them examined as witnesses for their co-defendants. They were included in the writ, and proved by the return of service to be in possession; so that it cannot be said there was no evidence to affect them. Even had the primh facie evidence of the return been rebutted by counter-proof, the question of possession would still have been for the jury.

But as no such proof was attempted, there was no colour to say that these parties, as defendants in possession, did not stand affected by the evidence. Besides, it is far from clear that the measure demanded did not lie in the discretion of the court; and the denial of no other right than a legal one, is a subject of error. But the refusal to allow the two agreements, signed by Doctor Hamilton, to go before the jury, is not so well founded. These, it is true, are not deeds, but they are nevertheless contracts which may be enforced in equity.

The recording Acts certainly embrace more than conveyances executed; for it has never been supposed that articles for the sale of land may not be recorded; yet a simple contract, provided it be in writing, may as readily be enforced by a decree in equity, as if it were a covenant. Nothing is more common in the British courts than decrees for the specific performance of parol contracts witnessed by any memorandum which happens to satisfy the fourth

section of their statute of frauds. As an equitable conveyance then, why should not such a memorandum be recorded ? There is nothing in the terms of the recording Acts to restrain their operation to specialties. They describe the documents to be recorded, as deeds, conveyances, or instruments concerning lands; and it cannot be said that these agreements are not instruments because they are not sealed, any more than it can be said that promissory notes, bills of exchange, or underwritten policies of insurance, are not instruments.

They fall within the very words of almost all the statutes on the subject; so that there is no room for an objection to them on the first ground stated in the bill of exceptions. Nor was the objection, that the execution of them had not been proved, founded in fact. The usual certificate of proof by the .subscribing witness before a magistrate, was annexed to the one; and a certificate of acknowledgment, to the other. Surely that was enough to dispense with the common law evidence of execution.

The remaining ground of exception might have been a plausible one, had there not been an offer to follow the agreements with proof of possession taken under them, or at least one of them. The bargain was not for a particular tract or specific parcel; but as the generality of its terms might be reduced to certainty by the election of the bargainee, it was not void. It was for so many acres of “ my land which I hold in the South Mountain, anywhere on the turnpike road between Newman’s and the bridge over the Canadequingt creek;” which certainly gave him a right of selection.

In one of the agreements such a right is given in terms; but even if that were not so, the result would be the same; for, as was held in Coxe v. Blanden, (1 Watts 536), want of designation may be supplied by the election of the grantee even under a conveyance by a public officer. An agreement such as these, is in principle like an indescriptive warrant, which is attached to the subject of the grant by being surveyed on particular land selected by the warrantee.

It is similar also to an incomplete sale of a chattel, which requires something to be done to give it operation and effect, such as naming the price, or settling any other condition of the contract, by the agency of a third person: and the difficulty is to understand how an agreement, which presently vests no title and gives no notice to purchasers, may be recorded so as have an effect in the mean time. It is to be remembered, however, that the object of the recording Acts is not only to give notice, but to perpetuate the writing and the proof of its execution.

Had notice been the only object, the common law evidence of execution would not have been dispensed with, as it has, by the Act of 1715, which provides that an exemplification of a recorded deed shall be allowed in all courts to be as good evidence us the original. Now the fitness of a writing as a subject for recording, has not been thought to depend on the efficacy of its operation or the completeness of its provisions. It has been thought sufficient by the Legislature that it be an instrument touching or concerning real estate.

There are an unusual number of statutes on the subject, and it would be tedious to recapitulate the expressions in each; but that provision in substance runs through them all, and it clearly embraces the writings before us. Had these been admitted in evidence, the existence of notice would have been a subject for subsequent inquiry; and without proof of possession, to put a purchaser on the scent of the plaintiff’s title, their case would not have been made out. But that matter was not connected with the competency of the agreements as evidence, and furnished no reason why they should not go to the jury.

Judgment reversed, and venire facias de novo awarded.