Steele's Lessee v. Spencer. 1 P.

altered in a material point after it was sealed, attested, and acknowledged, such alteration absolutely avoids the deed; and it can convey no title to the lessor of the plaintiff; which instructions the court gave and the plaintiff excepted.

The counsel for the plaintiff relies on the following points for a reversal of the judgment:

1. The court below erred in charging the jury that the Registry Act of Ohio applies as well to the title of the defendants under the decree set forth in the bill of exceptions, as if they held under a bond fide deed of the same date.

2. That the court below erred in charging the jury that if the deed from Jesse Spencer to William Steele was altered in a material part, after it was sealed, attested, and acknowledged, such alteration absolutely avoids the deed, and it can pass no title to the lessor of the plaintiff.

The propriety of the first instruction given by the court to the jury, admits not of a doubt. The statute of Ohio, entitled "an act directing the mode of proceeding in chancery," declares: "That where a decree shall be made for a conveyance, release, or acquittance, &c., and the party against whom the decree shall pass shall not comply therewith by the time appointed, then such decree shall be considered and taken in all courts of law and equity, to have the same operation and effect, and be as available as if the conveyance, release, or acquittance, had been executed conformably to such decree." Land Laws for Ohio, 296.

The Registry Act of Ohio directs that all deeds made within the State, shall be recorded" within six months from the actual time of signing or executing of such deeds;" and declares, that if any such deed shall not be recorded in the county where the land lies within the time allowed by the act, "the same shall be deemed fraudulent against any subsequent bona fide purchaser for valuable consideration without notice of such deed."

In the construction of registry acts, the term "purchaser" is usually taken in its technical, legal sense. It means a complete purchaser; or, in other words, a purchaser clothed with the legal title. The meaning of the statute is, that an unrecorded deed shall, after the expiration of the time limited by the statute, be deemed fraudu lent and void, as against all subsequent purchasers who may have

obtained the legal title for valuable consideration without [560] notice. The case of the defendants is then within the terms of the Registry Act. They obtained their decree, and paid the purchase-money directed by the decree without notice; and the decree had obtained, by operation of the statute, all the attributes of a perfect legal title.

F

Steele's Lessee v. Spencer. 1 P.

The argument for the plaintiff on this branch of the case, was founded on a supposition that, to bring the defendant's case within the terms of the Registry Act, it must be shown that their title has been recorded as a deed, and their title being not a deed but a decree, it is insisted they are not within the terms of the statute. This is a mistake. The plaintiff's deed not being recorded, the statute avoids it, in terms, as against all subsequent purchasers for valuable consideration without notice, whether their titles be recorded or not. If the defendants had held under a conveyance executed by Jesse Spencer in obedience to the decree, their title-deed, although not recorded, would, by the terms of the statute, prevail against the plaintiff's prior unrecorded deed. A deed not being recorded avoids it as against subsequent, but not as against prior purchasers. By the laws of the State of Ohio, the decree obtained by the defendants, clothes them with the legal title in as ample a manner as a deed. They are purchasers for valuable consideration without notice; and are, therefore, not only within the words, but also within the spirit and intention of the statute.

This reasoning has been indulged upon a supposition that the title of the defendants has not been sufficiently recorded, which is not admitted. The decree, which is their title, is of record in the chancery suit in the proper county where the land lies, and it was recorded in the office of the recorder of deeds. Whether this last mode of recording the decree is usually practised in Ohio or not, we are not informed. But we suppose the defendants had done all they could do, to commit their title to record in the proper county.

The third instruction given by the court to the jury, which forms the second ground relied on by the plaintiff's counsel for a reversal of the judgment, cannot be sustained. Although the proposition may be true, that a material erasure or alteration in a deed after its execution may avoid the deed, yet the instruction ought not to have been given in the terms used by the court. Whether erasures and alterations had been made in the deed or not, was a question of fact proper to be referred to the jury; but whether the erasures and alterations were material or not, was a question of law which ought to have been decided by the court. The instruction given refers the question of materiality to the jury, as well as the fact of alteration and erasure.

*If the name of William Steele was inserted in the deed [*561 ] as grantee after its full execution and attestation, instead of

the name of some other grantee which was stricken out, no doubt the alteration was very material, and nothing could in that case pass by the deed to William Steele. The two other alterations supposed 59

VOL. VII.

Nicholls v. Hodges. 1 P.

in the words "Ross" and " Ohio," in the description of the grantee's residence, may have been either material or immaterial, as upon a sound construction of the whole instrument they would or would not alter or change its operation and effect.

The court ought to have decided the question of materiality in each instance, leaving the fact of alteration to the jury for their decision. The instruction given was calculated to mislead the jury by impressing on them the belief that they were warranted in finding either of the supposed alterations to be material, however it may have been in point of law. The construction of deeds belongs to the province of the court, the materiality of an alteration in a deed is a question of construction, and in this case the court committed an error, by giving an instruction to the jury which imposed on them a difficult question of construction, upon which the jury ought to have been enlightened by the decision of the court.

The judgment of the circuit court must be reversed, and the cause remanded, with instructions to award a venire facias de novo.

WILLIAM S. NICHOLLS, and others, Appellants, v. THOMAS HODges, Executor of THOMAS C. HODGES, deceased.

1 P 562.

The decision of the orphans' court for the county of Washington in the District of Columbia, as to the quantum of commissions to be allowed to an executor is conclusive, and no appeal lies.

THE case is stated in the opinion of the court.

Key, for the appellant.

Coxe, contrà.

[* 564 ]

* DUVALL, J., delivered the opinion of the court.

The appellee in this case obtained letters testamentary on the estate of Thomas C. Hodges, deceased, and passed accounts in the orphans' court for Washington county, in which he was allowed ten per cent. commission on the inventory of the deceased's estate, amounting to $2,358.70, and $1,200 for services rendered to the deceased in his lifetime. The appellants, creditors of the deceased, finding that the estate would probably be insufficient to pay the full amount of their claims, filed their petition in the orphans' court objecting to the allowance of the claims of the executor, alleging that the property of the deceased consisted only of a store of goods in Georgetown, and a few debts due to him, and that the settlement of the estate was made without much labor or expense. Upon the

Nicholls v. Hodges. 1 P.

answer of the executor, and the testimony taken in the cause, the judge of the orphans' court decided in favor of the executor, and decreed that both claims be allowed. From this decree an appeal was prayed and granted to the circuit court, for Washington county, in which the judgment of the orphans' court was affirmed. From this decision the cause is brought up by appeal to this court for final hearing and decree.

Several questions have been raised in arguing this cause. On the part of the appellants, it is contended, first, that the 'allowance of ten per cent. on the inventory, circumstanced [*565 ] as this case appears to be, is unjust and unreasonable. Secondly, That there is no foundation for the claim of $1,200, made by the executor for services rendered the testator in his lifetime.

The counsel for the appellee contends, first, that the whole allowance made by the orphans' court was no more than a moderate compensation for the attention and prompt settlement of the accounts of the deceased, by the executor, and for his services for several years as a clerk in the store of the deceased; and secondly, that the decision of the orphans' court was final and conclusive, and from which there ought to have been no appeal.

The power and authority of the orphans' court is derived from the testamentary laws of Maryland. The last general act upon the subject is that passed in the year 1798, c. 101. The orphans' court has a general power to administer justice in all matters relative to the affairs of deceased persons, according to law. The commission to be allowed to an executor or administrator, is submitted to the discretion of the court, "not under five per cent. nor exceeding ten per cent. on the amount of the inventory." If the executor has a claim against the deceased, it shall stand on an equal footing with other claims of the same nature. On a plenary proceeding, if either party shall require, the court will direct an issue or issues to be made up and sent to a court of law to be tried, and any person conceiving himself aggrieved by any judgment, decree, decision, or order, may appeal to the court of chancery, or to a court of law. And in Maryland, the decision of the court in which the appeal is made is final and conclusive. But in the case under consideration, this court has jurisdiction by virtue of the act of congress of February, 1801,1 by which the circuit court for the District of Columbia was created, which provides, s. 8, that "any final judgment, order, or decree, in the said circuit court, wherein the matter in dispute, exclusive of costs, shall exceed the value of $100, may be reëxamined, and reversed or affirmed in the supreme court of the United States, by writ of error or appeal."

12 Stats. at Large, 106.

Nicholls v. Hodges. 1 P.

By an act of congress' subsequently passed, the matter in dispute exclusive of costs must exceed the value of $1,000 in order to entitle the party to an appeal.

With respect to the commission to be allowed to the executor or administrator, it is submitted by law to the discretion of the court, not less than five nor more than ten per cent. They may allow the lowest or highest rate, or any intermediate proportion between the minimum and maximum, to which, in their discretion, [*566] they may adjudge the party to be entitled *upon a consideration of all circumstances, according to the services rendered, and the trouble and expense in completing the administration. Upon a just construction of this act, it was obviously the intention of the legislature, that the decision of the orphans' court should be final and conclusive, and such is the opinion of this court. The claim of $1,200, for services rendered in the lifetime of the testator, rests upon different ground. The law places it "on an equal footing with other claims of the same nature." The legality and equity of the claim must be examined in the same manner as the claim of any other creditor Of course, it is a claim on the trial of which either party might have required a trial by jury in the manner prescribed by law. But this was not asked, and the claim was submitted in gross to the decision of the orphans' court, and was decided on in like manner by the circuit court; and it is now brought in the same shape before this court.

To support a claim of this nature, it is incumbent on the party making it to prove some contract, promise, or agreement, expressed or implied, in relation to it. The testimony contained in the record may be summed up in a few words. It is admitted by the appellee, that there was no agreement to pay him wages. It is in proof that he lived with his uncle three or four years in the capacity of a clerk, and that, for more than half the time, he was the only clerk in the store, his uncle having great confidence in him. That it was distinctly understood between them that the testator had agreed to pay his board, to find him in clothing, and to pay his expenses generally. That it was customary among merchants to take young men of a certain age for their board and clothes; that the uncle had said that at a future day he intended to take him into partnership with him; and it was proved that the testator, at the time of making his will, observed that he had given his nephew a legacy as a consideration for his services, and that he had always intended to give him something. It is not denied that the testator had fully complied with his engagement to pay his board, supply him with clothes, and pay his

13 Stats. at Large, 261.