Eadie

(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…

(dissenting).

I dissent. Section 301 of chapter 32 of the Alaska Code of Civil Procedure, prescribing who may bring actions to recover the possession of real property, is as follows: “Sec. 301. Any person- who has a legal estate in real property and a present right to the possession thereof, may recover such possession, with damages for withholding the same, by .an action. Such action shall be commenced against the person in the actual possession of the property at the time, or if the property be not in the actual possession of any one, then against the person acting as the owner thereof.” Act June 6, 1900, c. 786, 31 Stat. 383 .

The present being an action at law to recover the possession of real property, with damages for its withholding, it was essential to its maintenance for the plaintiff to establish in himself a legal estate in the property sued for, and a right to its possession; and so the court below in effect instructed the jury.

The plaintiff attempted to do that by means of the deed from Whittren to him. The primary objection made by the defendants to that deed was that it was only witnessed by one person. The validity of the deed in that respect is, of course, to…