State v. Saucier

delivered the opinion of the court.

This is an appeal by the state from the action of the circuit court of Jackson county in sustaining a demurrer to the indictment against defendant, charging him in three counts with the forging and uttering of a deed to one E. H. Davis. The precise point in this case is whether an unsealed deed purporting to have been executed prior to the abolishment of private seals is a subject of forgery. The deed in the present case is set out in full in the indictment, and it is apparently valid and binding on its face, unless the absence of the seal renders the same absolutely void.

*901In some jurisdictions it has been held that an instrument which the law required to be sealed cannot be the subject of forgery, unless the seal is made a part of the forged instrument. We do not think that this is the rule in Mississippi. Was the instrument which it is alleged defendant forged capable of producing an injury to the parties whose land appears thereby to have been conveyed? It is certain that the alleged forged instrument would not have the effect to convey the legal title to the land described therein, but it is also certain that the deed, if executed by the alleged grantors therein, would have conveyed an equitable title to the grantees. This court in the ease of McCaleb et al. v. Pradat, 25 Miss. 257, in speaking of a deed, said: “Though not under seal, it gives a good equitable title, and on the face of it it shows that the party was acting as agent for the heirs, and intended to sell their interest. It is one of the usual powers of a court of equity to correct a defective execution of a power so as to effect the object designed. ” The same principle announced in the case just cited is reannounced in the case of Hines v. Imperial Naval Stores Co., 58 South. 650, and has become the settled law of this state, whatever may be the law of other states.

Inasmuch as the deed was simply a defective attempt to convey the title to the property, it is clear under the law in this state that it might have injured the grantors to the deed.

We think, however, the demurrer was properly sustained to the third count, because we can conceive of no way in which this instrument could have injured the chancery clerk.

We think the other two counts charge the crime of forgery, and therefore this case is reversed and remanded.

Reversed and remanded.