ON a certificate of division of opinion, of the judges of the circuit court of the United States of West Tennessee. This case was submitted to the court, on a printed argument, by Mr Leigh.
The opinion of the court was delivered by: Mr Justice M'lean delivered the opinion of the Court.
The plaintiffs in this case, brought an action of ejectment against the defendants, in the circuit court for the district of West Tennessee: and on the trial, certain questions were made to the court, in which the opinions of the judges were opposed; and these questions have been certified to this court for their decision.
To sustain their action, the plaintiffs offered in evidence, a grant for five thousand acres of land to Stokely Donelson, from the state of North Carolina, dated the 7th day of April 1790.
This grant was duly authenticated under the seal of the state of North Carolina, and the certificate of the governor; the certificate was registered in Giles county, in the state of Tennessee, within which the land is situated, on the 10th of December 1810. And both the grant and certificate appear to have been registered in the same county, on the 2d of June 1817.
The plaintiffs then offered to read a deed for the same land, from Stokely Donelson to John Hook, of the state of Virginia; dated the 24th of March 1791. On the 29th of March 1799, this deed was acknowledged by the grantor, before David Campbell, one of the judges of the state of Tennessee; and on the 16th of April 1799, it was registered in the county of Davidson.
It was proved that when this deed was executed and registered, and until the fall of 1818, the Indian title to the land was not extinguished: and that the county of Giles was not established until 1809; but the law organizing the county did not take effect until January 1810.
Upon these facts, was this deed offered by the plaintiffs, and objected to by the defendants; on the ground, that it had not been duly acknowledged and registered: and upon this question, the opinions of the judges were opposed; and this constitutes the first point for examination and decision by this court.
In the state of Tennessee, until a deed is duly proved and registered, the fee does not pass to the grantee; and to this rule may, in some degree, be attributed the numerous legislative acts of the state, to cover defective cases of proof and registration of deeds.
By the act of 1715, adopted by Tennessee from North Carolina, it is provided, that 'no conveyance or bill of sale for lands, in what manner or form soever drawn, shall be good and available in law, unless the same shall be acknowledged by the vendor, or proved by one or more evidences, upon oath, and registered by the public register of the county where the land lieth; and all deeds so done and executed, shall be valid, and pass estates,' &c.
By the act of the 30th of September 1794, it was provided, 'that all deeds and mesne conveyances of lands, tenements and hereditaments, not already registered, acknowledged or proved, shall and may, within two years after the passing of this act, be acknowledged by the grantor or proved by one or more of the subscribing witnesses, and registered in the county where the land lies,' & c.
On the 27th of October 1797, this act was extended until the termination of the next general assembly of the state; and before the expiration of this extension, the deed under consideration was proved and registered in the county of Davidson. There is no objection as to the proof of the deed, by the acknowledgement of the grantor before judge Campbell; but it is admitted there was no law which authorized its registration in the county of Davidson; and unless such registration has been sanctioned by a subsequent law, the deed is not valid.
It is contended that this registration is made good by the third section of the act of the 23d of November 1809; which provides, 'that all deeds for the absolute conveyance of any real estate within this state, to which the Indian title was not extinguished, at the time of the execution of such deed, and at the time of the registration of the same, as hereinafter mentioned, which deed shall have been proved by one or more of the subscribing witnesses thereto, in any court of record, or before any judge of the superior courts in the state, or shall have been so proved before any court of record or any judge of a court or mayor of a city out of this state, and shall have been registered in any county in this state; within the time required for the probate and registration of deeds; such probate and registration shall be sufficient to entitle such deed or deeds to be read in evidence, in any court within this state; and shall also be sufficient to entitle such deed or deeds to registration in the county or counties where said land may lie, when the Indian title is extinguished thereto.'
That the deed to Hook is embraced by the provisions in this statute, in two particulars, is clear. It calls for land to which the Indian title was not extinguished, when the deed was proved and registered, or indeed until nine or ten years after this act was passed. And it appears that it was registered in the county of Davidson, 'within the time required for the probate and registration of deeds.' In these respects, the deed comes within the statute. But it is objected, that the statute makes provision for such deeds only, as 'have been proved by one or more of the subscribing witnesses thereto, in any court of record, or before any judge of the superior courts of the state;' and that the deed to Hook was not proved by one or more of the subscribing witnesses, but by the acknowledgement of the grantor. That judge Campbell, who took the acknowledgement, had power to take it, is not contested; nor that he had power to take the proof by the subscribing witnesses: but, as the proof was not made by one or more of the subscribing witnesses, it is contended, the probate was not such as contemplated by the statute, and, of course, that the deed is not within it.
This construction the counsel for the plaintiffs contend is an extremely technical one, and ought not to be given to a remedial statute. That the object of the legislature was to provide for deeds, which had been duly proved and registered in any county in the state, calling for lands covered by the Indian title; and not within any organized county. And that such a ...