Two Witnesses, Two Secretaries and an Original Deed

Claims about land title often turn on formalities: the deed must be witnessed by two people; it must pass through the hands of an officer; the original — not a copy — is what counts. Each of these has a real lineage.

Jeremiah's field

The fullest ancient account of a land transfer is in Jeremiah 32. The prophet buys a field, and "subscribed the evidence, and sealed it, and took witnesses, and weighed him the money in the balances." Two copies of the deed were made: one sealed, one left open. Both were handed to Baruch the scribe in the presence of witnesses and placed in an earthen vessel "that they may continue many days." The sealed copy protected against tampering; the open copy allowed it to be read; the scribe and the witnesses vouched for the whole.

The rule that a matter stands on the testimony of two or three witnesses appears in Deuteronomy 19:15. The idea that two witnesses make an act credible runs through Western law.

Witnesses today

Most American states now require a deed to be signed and acknowledged before a notary to be recorded, without subscribing witnesses. Some keep witnesses: Florida requires two subscribing witnesses for a conveyance of real property (Fla. Stat. § 689.01), and Georgia requires attestation by an officer and one other witness (O.C.G.A. § 44-5-30). England, after abolishing seals for individuals in 1989, requires a deed to be signed in the presence of a witness who attests it.

The secretaries

Behind the witnesses stands the officer who writes, certifies or keeps the record: Jeremiah's scribe, the medieval notary, the colonial secretary or clerk who kept land records, and today the notary who takes the acknowledgment and the county recorder who indexes the deed. Two roles are combined in that history — one officer to authenticate the act, another to preserve it. The modern acknowledgment and recording mirror the sealed and open copies of the ancient deed.

The original deed

Popular title claims often insist that only the original deed proves ownership. The law of evidence takes a narrower view. A properly certified copy of a recorded document is self-authenticating (Fed. R. Evid. 902(4)), the record of a document affecting an interest in property is admissible to prove its contents (Rule 803(14)), and public records may be proved by certified copy (Rule 1005). A lost original deed does not undo a conveyance that has already taken effect by delivery.

What remains

The formalities have always served the same purpose: to make a private act provable to strangers long after the parties are gone. Jeremiah's earthen jar and the county recorder's database are answers to one question — how a community can trust that land changed hands. The interesting shift is from trust in persons who saw the act to trust in an institution that keeps its record.