EADIE et al. v. CHAMBERS, 3 Alaska Fed. 396

GILBERT, Circuit Judge (after stating the facts as above). The principal question in the case is whether the deed from Whittren to the defendant in error, attested as it was by but one witness, was sufficient to convey the title as between the parties thereto. At common law a deed is valid between parties and their privies, if signed, sealed, and delivered, and attestation is no part of its execution. 2 Blackstone, Com. 307; Dole v. Thurlow, 12 Metc. (Mass.) 164; Hepburn v. Dubois, 12 Pet. 345, 9 L.R.A. 1111.

In adopting systems of registration of conveyances, about one-half of the states have enacted statutes requiring that the execution of deeds be attested by witnesses, who shall subscribe their names thereto as such. It is the decided weight of authority that the purpose of such a statute is to entitle the conveyance to be recorded, and that, while compliance therewith is essential to registration, a failure to comply does not affect the common-law rule that a deed signed, sealed, and delivered is good as between the parties.

The statute of Alaska, which was adopted from the statutes of Oregon, is not essentially different from that which is in force in the states hereinafter referred to.

Section 73, c. 11, of the Civil Code of Alaska, provides: “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 pass, 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.”

Section 82 provides: “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.”

Section 113 is a curative statute, also adopted from the statutes of Oregon.

It provides: “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 acknowledgment whatever, and such deeds so executed shall be received in evidence in all courts in the district, and be evidence of the title to the lands therein described against the grantors, their heirs and assigns.” If it be argued from the language of this curative statute that it was the understanding of the lawmakers that an unattested deed was insufficient to pass title between the parties without the aid of a curative statute, the answer is that the defects intended to be cured by the statute are other and more vital 'than the mere omission of attesting witnesses.

It was the intention to make valid as between the parties unsealed deeds, deeds which lacked one of the essential requisites of a common-law conveyance even as between the parties. In adopting the Oregon statute for Alaska, there was adopted with it the construction placed upon it in Moore v. Thomas, 1 Or. 201, in which the court held that an unacknowledged, unrecorded mortgage was good between the parties thereto, for the principle involved is the same whether a deed lack acknowledgment or subscribing witnesses.

The court, by Williams, Chief Justice, said: “When said mortgages were signed, sealed, and delivered by Thomas to Moore, they were certainly good at common law, and there is no reason to suppose that the design of the registry act was to prevent the operation of a deed so made or to protect the parties thereto as against each other; but the manifest and exclusive object of such act was to protect third persons from fraud or injury by means of prior secret conveyances.” In Goodenough v.

Warren, 5 Sawy. 494, Fed.Cas.No.5,534, Judge Deady, after referring to the fact that at common law a deed is valid between the parties though not witnessed, acknowledged, or recorded, inquired: “Dqes the statute of Oregon change this rule?

Section 1 of the act relating to conveyances (Laws Or. 1854 — 55, p. 519) declares that ‘conveyances of land or of any estate or interest therein may be made by deed signed and sealed,’ and although in the same

section and sentence it is further provided that such deeds may be ‘acknowledged or proved and recorded’ as therein directed, yet it is not declared, and evidently was not intended to make either such acknowledgment, proof or record any part of the execution of such instrument. * * * But

section 10 of the act aforesaid does declare that ‘deeds executed within this state 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, while this provision may not make such attestation an essential part of the execution of the deed, yet it is probable that, where the execution is controverted, it cannot be shown if not so attested.

It is not a part of the execution, but the means by which it must be proven if necessary.” In Brewster on Conveyances, § 251, it is said: “Generally speaking, in those states where statutes- provide that conveyances shall be attested by witnesses, the requirement is not essential to the validity of the deed as between the parties, but, like the requirement as to acknowledgment, is a formality necessary under the statute to entitle the deed to be recorded.” In Wisconsin in Leinenkugel v.

Kehl, 73 Wis. 238, 40 N.W. 683, the court reviewed its prior decisions, holding that attestation and acknowledgment of deeds required' by the statute were but formalities to entitle the deed to be recorded, so as to operate as' notice to subseqüent purchasers, but were not essential to the transfer of the title as between the parties. That doctrine, the court said, was “in accord with the great weight of authority upon this subject.” In Pearson v.

Davis, 41 Neb. 608, 59 N.W. 885, the Supreme Court of Nebraska, following a line of its prior decisions, held that a deed to real estate executed, acknowledged, and delivered by the grantor is valid between the parties to it, although the same is not witnessed. In Howard v. Russell, 104 Ga. 230, 30 S.E. 802, the court Said: “While the Code of this state requires such paper to be attested by two witnesses, it does not declare that a deed attested by but one witness is void. The main object of the attestation by two witnesses is to comply with the registration laws of the state.” Of similar import are McLane v.

Canales (Tex.Civ.App.) 25 S.W. 29; Robsion v. Gray et al. (Ky.) 97 S.W. 347; Fitzhugh v. Croghan, 2 J.J.Marsh. (Ky.) 429, 19 Am.Dec. 139; Stone v. Ashley, 13 N.H. 38; Hastings v. Cutler, 24 N.H. 481. As opposed to this construction we are referred to decisions in Connecticut, Ohio, Alabama, Michigan, and Minnesota. The Michigan case which is cited is Crane v. Reader, 21 Mich. 24, 4 Am.Rep. 430.

In that case, in determining the validity under the territorial law of 1820 of an unattested deed made in 1823, the court held that the ordinance of 1787 requiring the attestation of two witnesses, which was in substance re-enacted in 1820, was intended to supplant the common law of the territory of Michigan, and that since the law in force in that territory prior to the ordinance was the French law, under which deeds were required to be attested by witnesses, a deed without witnesses was void; but in Dougherty v.

Randall, 3 Mich. 581, the court held that the statute of Michigan of 1840 requiring two subscribing witnesses to a deed of real estate was a provision for registration only, and that by the common law title passes by an unwitnessed deed. Such has been the ruling of that court ever since. Price v. Haynes, 37 Mich. 487; Baker v. Clark, 52 Mich. 22, 17 N.E. 225; Fulton v. Priddy, 123 Mich. 298, 82 N.W. 65, 81 Am.St.Rep. 201; Carpenter v. Carpenter, 126 Mich. 217, 85 N.W. 576. The Minnesota case which is cited is Meighen v.

Strong, 6 Minn. 177 (Gil. 111), 80 Am.Dec. 441, in which it was held that a statute which requires that a conveyance shall be executed in the presence of witnesses, who shall subscribe their names thereto as such, is imperative and must be complied with to give the instrument any validity as a conveyance; but under the statute of Minnesota as amended in 1868 (Laws 1868, p. 100, c. 61, § 1) which provided: “Deeds of land or any interest in lands within this state shall be executed in the presence of two witnesses who shall subscribe their names •to the same as such” —the court held in Morton v.

Leland, 27 Minn. 35, 6 N.W. 378, that, to pass title from the grantor to thé grantee, nothing more was necessary than the execution and delivery of the deed, and that neither witnesses nor acknowledgment were requisite. The same was held in Johnson v. Sandhoff, 30 Minn. 197, 14 N.W. 889, and in Conlan v. Grace, 36 Minn. 276, 30 N.W. 880.

In the light of the authorities, and especially the construction given by the Oregon courts to the Oregon statute before its adoption for Alaska, we find no error in the ruling of the trial court that the deed was sufficient to convey title from Whittren- to the defendant in error. Error is assigned to the instruction of the court to the jury on the subject of alteration of the deed.

The court, in substance, instructed the jury that if they found that the deed was altered or changed by the consent of the parties, or by the grantor Whittren, or that the change was made with Whittren’s consent, and that the alteration was made by reducing the amount of property conveyed, the deed was a good and valid conveyance, if redelivered, of an undivided one-half interest in the property. That the court in so instructing the jury correctly stated the law of the case is too clear to require discussion.

If a three-fourths interest was vested in the grantee by the deed as originally made, the alteration could at the utmost operate no further than to divest him of an undivided one-fourth interest. Error is assigned to the instruction to the jury concerning the rights of the lessees Waskey and Eadie under their leases from Whittren as against the title of the defendant in error.

The court charged the jury that a lease for a term of years of a mining claim is personal property under the Alaskan Code, and not a conveyance of land or real property such as to raise the question of priority of record between a deed and a lease, and that under the law the question of innocent purchaser does not arise in the case. The action had been begun on October 8, 1906.

The plaintiff in error Waskey answered the complaint, setting forth the lease of June 11, 1906, and the lease of june 20, 1906, whereby the lessees were given authority to operate the mine at their own expense upon the payment of a royalty to the lessors; that possession was taken under said leases in good faith, for a valuable consideration, without knowledge or notice of the interest of the defendant in error in said claim; and that the lessees operated the leased property for a long period of time in good faith and at great expense without knowledge or notice of said interest of the defendant in error.

The leases were for a term of two years. The amount of money expended thereunder by the lessees is not set forth in the answer.

The Civil Code of Alaska (chapter 11, § 98) provides: “Every conveyance of real property within the district hereinafter made, which shall not be filed for record as provided in this chapter, shall be void against any subsequent innocent purchaser, in good faith and for a valuable consideration, of the same real property or any portion thereof, whose conveyance shall be first duly recorded.” There are two reasons why Waskey and Eadie cannot avail themselves of the defense of innocent purchaser. In the first place, their leases for a term of two years were not conveyances.

In several of the states, the term “conveyance” is defined by statute; but there is no such definition in the laws of Alaska or in those of Oregon from which they were taken. At common law a “conveyance” is an instrument in writing by which property or the title to property is conveyed or transmitted from one person to another. 9 Cyc. 860; Prouty v. Clark et al., 73 Iowa, 55, 34 N.W. 614; Brigham v. Kenyon (C.C.) 76 F.

Section 181, c. 18, of the Civil Code of Alaska, declares that real property “includes all lands, tenements and hereditaments and rights thereto, and all interests therein, whether in fee simple or for the life of another.” In construing the Oregon statute from which this was taken, the Supreme Court of Oregon, in Edwards v. Perkins, 7 Or. 149, held a lease of land for a term of years to be a chattel interest, and not an interest in the land.

The court said: “The statute provides for the conveyance of land by deed, and we think embraces only such conveyances as purport to convey a freehold estate, such as may descend to the heirs, or is for the life of the grantee, and does not include leases.” In the second place, the lessees were not purchasers for a valuable consideration. By the terms of their leases, they were to operate the mine, and out of the proceeds pay a royalty to the lessor.

It is true that they expended money in developing and in operating the leased property; but the evidence shows that they have been reimbursed by the product of the mine. We find no error for which the judgment should be reversed. It is therefore affirmed.