195 F. 402 | 4th Cir. | 1912
(after stating the facts as above).
There are a number of assignments of error which may be epitomized as follows:
(1) That a certified copy of the deed of Solomon W. Jewett to James C. Burnett was incompetent as evidence, in that: it was not under the official seal of the notary public before whom the grantor acknowledged the execution of the same, and that this deed was void because the. original had not been properly acknowledged, and therefore the recordation thereof irregular.
(2) That copies of the eight surveys, purporting to be certified copies of the original surveys of lands from the records of Randolph county, W. Va.—not embracing the land in controversy—but for the purpose of locating and describing the land in controversy, were introduced over the objection of the defendants.
(3) That the court erred in excluding the defendants’ evidence.
(4) That the court erred in submitting to the jury plaintiff’s instruction No. 1.
(5) That the court erred in refusing to set aside the verdict of the jury, and also that the court erred in entering judgment in favor of the plaintiff.
_ This question has been passed upon in many instances by the courts of various states, with the result that in a large majority of cases it has been held that, .where a certified copy of a deed is offered in evidence, and it appears from an inspection of the same that the official seal of the officer had been affixed to the original writing, the courts will admit such attested copy as evidence in the case. Some of the courts have even gone so far as to hold that it is not necessary for the recording officer to place the seal upon his record. However, in this instance it does appear, as we have stated, that the certificate of the official who certified this copy recites the fact that the seal was attached to the original.
The requirement that deeds acknowledged before a notary public or any official having a seal should be attested by attaching the seal of such official is a wise provision, inasmuch as the use of such seal imports the verity of the document in question, and thus prevents to a great extent the use of forged instruments as evidence in the trial
“We think the court erred in excluding the deed in this case. Take the transcript all together, and we think it shows sufficiently that the seal of the notary was affixed to the instrument. The certificate asserts that the notary affixed his seal to it, and the words ‘no seal,’ in brackets in the margin, do not imply that there was no seal affixed, but are a mere note of the recorder of the place of the notarial seal, which he had probably no means of copying, nor was it necessary that he should transcribe it.”
In the case of Addis et al. v. Graham et al., 88 Mo. 197, the first syllabus is in the following language:
“Where in the record copy of a deed offered in evidence the statement of the officer taking the acknowledgment that he affixed his seal appears in the body of his certificate, the presumption aris.es that his seal was attached thereto, although no written scroll or seal was copied into the record by the officer recording the deed.” .
In the case of Witt v. Harlan, 66 Tex. 660, 2 S. W. 41, Chief Justice Willie, in disposing of this question, said:
“It was not essential to the admission in evidence of the record copy of the deed from Eingo to Barnes that anything should appear in the copy to represent the seal required to accompany the certificate of acknowledgment. This was settled in Ballard v. Perry, 28 Tex. 847, and is not now an open question.”
This rule is sustained by the following authorities: Colvin v. Land Company, 23 Neb. 75, 36 N. W. 361, 8 Am. St. Rep. 114; Norfleet v. Russell, 64 Mo. 176; Thorn v. Mayer, 12 Misc. Rep. 487, 33 N. Y. Supp. 664; Kelly v. McBlain, 42 Kan. 764, 22 Pac. 994.
We have carefully considered the West Virginia authorities relied upon by counsel for the defendants, and we are of opinion that they do not apply to the case at bar. Therefore we are of opinion that the ruling of the court below in admitting this evidence was proper.
“All prosecuting attorneys, county recorders, clerks of the several district courts, county clerks, sheriffs, assessors, collectors of taxes, and constables, are hereby authorized to appoint deputies, who shall have power to transact all official business pertaining to said officers, to the same extent as their principals.”
By reference to chapter 7, § 11, of the Code of West Virginia 1868, Acts of 1863, c. 14, § 1, the following provision will be found:
“The clerk of any conrt, with the consent of sneh court, or of the judge or judges thereof, iu vacation may appoint any person his deputy. A sheriff, recorder, or surveyor of lands, with the consent of the -circuit court of the county, or the judge thereof in vacation, may appoint any person his deputy. An assessor may appoint a deputy with the consent of the board of supervisors of the county; or, if there be no such board, with the consent of the judge of the circuit. Such consent shall in each case be entered of record. The deputy during his continuance in office, may discharge any of the duties of his principal; and, any default or misfeasance in office of the deputy shall be deemed a breach of the condition of the official bond of the principal.”
It is but fair to assume that where an acknowledgment as to the execution of a deed is taken in another state and signed by the principal officer by his deputy, said deputy was acting under the authority conferred upon him by his appointment; and that he was authorized by the law of that state to take such acknowledgment. A deputy thus appointed becomes a public officer, and it would work great hardship if it were not the policy of the law to uphold certificates of this character. Objections of this kind are highly technical and should not be countenanced unless it clearly appears that such certificates are not supported by any fair inference to be drawn from the facts and circumstances surrounding the transaction. It will be seen from the West Virginia statute, which we have just quoted, that a deputy during his continuance in office by virtue of his appointment is entitled to discharge any of the duties of his principal, and this provision is identical with the provision contained in the Nevada statute which we have also quoted.
By the Acts of the Legislature of West Virginia, passed June 26, 1863 (c. 1, § 1, p. 3, Acts of 1863), it was provided:
“The recorder of every county shall have the same powers and perform the same duties, in relation to receiving acknowledgment or proof of, admitting to record, recording, listing and certifying deeds, contracts, powers of attorney. wills, inventories and other writings; and docketing judgments and decrees and bonds and recognizances having the force of judgments, and recording lis pendens and attachments; and the issuing of marriage licenses, as the clerk of the court of such county had or was liable to perform, under the laws of Virginia, in force within the limits of this state, on the nineteenth day of June, eighteen hundred and sixty-three.”
By the Code of Virginia of 1860, c. 121, § 3, p. 569, it was provided that:
“Such court or clerk shall also admit any such writing to record as to any person whose name is signed thereto,, upon a certificate of his acknowledgment before a justice or notary public of the United States, written or annexed to the same to the following effect, to wit: 'County (or corporation) of ......to wit: X,....... a justice of the peace (or notary public) for the*408 county (or corporation) aforesaid, in the state (or territory or district) of .......do certify that E. E. (or E. E. and G. H., etc.), whose name (or names) is (or are) signed to the writing above (or hereto annexed), hearing date of the....., day of......, has (or have) acknowledged the same before me in my said county (or corporation) aforesaid.’ ”
Thus it will be seen that the statute of West Virginia, at the time the deed in question was executed, did not require that the clerk of a foreign court should certify the acknowledgment of a grantor under his official seal. While we do not deem it necessary to rely upon this provision of the West Virginia statute, nevertheless it should be considered in connection with the other facts and circumstances.
The defendants relying upon possession under color of title, it thereby became important to show the exact location of each of the tracts claimed by the defendants in order that the court might determine as to where the defendants had been in possession of the tracts to which we have referred, and, further, as to whether any of the land in controversy was included within such tracts as may have been in the adverse possession of defendants under color of title. It clearly appears that the location of these separate tracts, although contiguous, does not in any wise interfere with the boundary of land claimed by the plaintiff. It appears from the evidence of Surveyor Wilson, who made the official plat, that he indicated thereon the 'several tracts or parcels of land as shown by the attested copies of the eight surveys in question. The defendants, by their witness Yaeger, a practical surveyor, show that he had made a survey of the outside boundary of the
I rnder the circumstances, we think that the ruling of the lower court in admitting this evidence was eminently proper.
The contention of counsel for the defendants that the land in controversy was forfeited to the state of West Virginia for nonpayment of taxes, and that, by virtue of such forfeiture, the title to this tract passed to another, has been carefully considered; but, after a careful. examination of the record, we are of the opinion that such contention is without merit.
“Xo person shall make an entry on, or bring an action to recover, any land, bnt within ten years after the time at which the right to make such entry or to bring such action shall have first accrued to himself or to some person through whom he claims.”
The syllabus in the case of Core v. Faupel, 24 W. Va. 238, thus states the law as to what is required to constitute possession under color of title:
‘‘To constitute such a possession, as will bar the title of the legal owner to land, it must be adverse, actual, visible, and exclusive, continuous, and under a claim or color of title. If any one of these constituents is wanting, the possession will not effect a bar of the legal title.”
Judge Snyder, speaking for the court in this case, said:
“it must be (1) hostile or adverse, (2) actual, and (3) visible, notorious, and exclusive, (4) continuous and under a claim or color of title.”
Judge Snyder, speaking further, said:
“To make out a title by adverse possession, as a general rule, the title must be adverse in its inception. What is the extent of Ms possession is to lie determined by the limits of his title or color of title. He must show that such adverse possession has been continued, consecutive, and unbroken for the statutory period. The moment the premises become vacant, that moment the owner, by reason of his legal title, will be regarded in the constructive possession, and the adverse possession of the wrongdoer at an end. The principal office of a claim or color of title is to define the boundaries and describe the extent of the adverse holding. The question of what is color of title is a matter of law, and, when the facts exhibiting the title are shown, the court must determine whether they amount to color of tide. It has been assorted that a deed, void on its face or disclosing facts which show that the person from whom it is acquired had no title, cannot form the basis of an adverse possession. Moore v. Brown, 11 How. 414 [13 L. Ed. 751]; Simmons v. Lane, 25 Ga. 178; Marsh v. Weir, 21 Tex. 97.”
Notwithstanding the fact that each of the eight tracts in question, as we have stated, are fully described in the respective conveyances, it appears that Col. Klilm I-íutton et al. on the 27th day of July, 1888, executed a deed to J. B. Walker et al.} the boundary lines of which
The court below, in passing upon the evidence as to defendants’ title, held that possession on any of the other tracts or surveys, so far as the 1,000-acre Vanzandt tract was concerned, was not “open, continuous, adverse, notorious, nor' exclusive,” and that inasmuch as there was no evidence to show that the defendants had had open, continuous, adverse, notorious, or exclusive possession of any portion of the land in controversy for 10 years next preceding the commencement of this action, that, as a matter of law, the defendants had not acquired a legal title to the lands in controversy by possession.
There is nothing contáined in the description of either of the eight tracts of land claimed by the defendants, nor in the deed of July 27, 1888, and others executed subsequent thereto, to show that the defendants claimed any land within that boundary save the eight tracts that were specifically described. Therefore, if one had gone to the office of the recorder of deeds, he could have found nothing to indicate that any one (except the plaintiff and his cotenant) claimed the Vanzandt tract. Therefore important links necessary to constitute title by possession are wanting. As was stated in the case of Core v. Faupel, supra:
“The principal office of a claim or color of title is to define the boundaries and describe the extent of the adverse holding.”
We have examined the record with a great deal of care and fail to find any evidence to show that the defendants had had actual possession of any part of the 1,000-acre tract for the statutory period prescribed by the laws of the state of West Virginia.
Some Confusion has arisen in this case owing to the fact that the official plat shows that there is located on the southern end thereof what is supposed to be a 300-acre tract designated as the Huling tract. There is no legal evidence in this case to show that Huling has or ever had title to the 300 acres as located. As to why this tract was located upon the map we are unable to say, inasmuch as no dteed or record of any kind was introduced at the trial purporting to show the outstanding title to this tract in Huling or any one else. It was also in
It is well to remember, however, that Yaeger was at that time acting as agent on behalf of the defendants, and, being a surveyor, one can easily understand how the plaintiff, who was not acquainted with the locality or at all versed in the technicalities relating to the conveyance of land, might have been misled into believing that Huling had a bona tide claim to the 300 acres as pointed out by Yaeger. However, in each count of the declaration it is sought to recover the “west half” of the tract, and nowhere in the pleadings does it appear nor is it shown in the evidence that the plaintiff in any wise recognized the existence of title in any one for the 300 acres in question. It can hardly be contended, under the circumstances, that any statement the plaintiff may have made as to this 300-acrc tract would estop him forever from claiming title to the lands which he owned by virtue of his deed from Mrs. Aultman. To contend otherwise would he unreasonable, and we know of no principle by which such a proposition could be maintained.
Applying this rule, if we look back to the deed from McCullough to Mrs. Aultman, we will find that Mrs. Aultman’s interest in said land consisted! of a certain portion of the 1,000 acre Vanzandt tract. Therefore it necessarily follows that the land she owned, at the time of her conveyance to Seybold, was that portion of this tract of'land to which she had acquired title from McCullough. Thus we have no difficulty in ascertaining what portion of land passed to Seybold in this conveyance, notwithstanding the fact that there was a misdescription contained! in the deed to Seybold. That this is the proper construction to be placed upon this deed is borne out by the rule announced in the case of Bank v. Stuart, 93 Va. 447, 25 S. E. 543, in which the court, among, other things, said :
“It is one of the maxims of the law that a false description does not render a deed or other writing inoperative, if, after rejecting- so much of the description as is false, there remains a snfiieient description to ascertain with legal certainty the subject-matter to which the instrument applies. This rule of construction is said to be derived from the civil law. Balsa donupistratio non nocet cum de corpore constat. 2 Minor’s Inst. 1003 (4th Bel.); 1 Greenleaf on Ev. § 301; 2 Taylor on Ev. § 1218; Wootton v. Redd, 53 Va. 196, 209; Preston & Massey v. Heiskell, 73 Va. 48, 59, 60; Broom’s Legal Maxims, 629 (7th Ed.).
“In the case of Loomis v. Jackson, 19 Johns. (N. Y.) 449, a lot was described in the deed by a wrong number, yet, being also described by fixed and known objects, it was held that the number of the lot might he rejected.
“In Sharp v. Thompson, 100 Ill. 447, 39 Am. Rep. 61, the mortgage under consideration described the several lots conveyed by numbers with the additional clause ‘being all block twenty-five.’ Block 25 did not contain -che lot mentioned in the deed, but they were in another block. It appearing, however, that it was the 'intention of the mortgagor to mortgage the block in which he resided and that he resided in block 25. it was held that block 25 was, and the lots named were not, subject to the mortgage.
“In Worthington v. Hylyer, 4 Mass. 196, the description in the deed was ‘all that my farm of land in Washington on which I now dwell, being lot No. seventeen in the front division of lands there, containing one hundred acres, with my dwelling house thereon standing, bounding west on the land of Joseph Chappel, northerly by a pond, easterly by lot number eighteen and southerly by lot number nineteen, having a highway through it.’ The limits of the lots were correctly described, but the farm on which the grantor lived was not No. 17, but a different parcel of land. The court rejected the false description, because the description was sufficiently definite without it, and if it were considered an essential part of the description the eifect would render the deed inoperative. Many instances of the apxfiication of, this rule are cited in the text-books and decisions. 2 Minor’s Inst. p. 10ú’3; 1 Greenleaf on Ev. § 301; Broom’s Legal Maxims, p. 629; 2 Devlin on Deeds, §§ 1016, 1038; Wootton v. Redd, 53 Va. 196.”
Applying this rule and rejecting the words “surveyed off the north side,” we have almost the identical • description contained in the McCullough, Brown, and Burnett deeds; and, further, the contention on the part of counsel for the defendants as to the intent of the parties is flatly contradicted by the terms of the deed itself; for the deed
There was a subsequent deed from the heir at law (daughter) of Airs. Aultman and her husband (Jbsiah Aultman) to Seybold. The effect of this conveyance was to give Seybold title to the west half of this tract to which Airs. Aultman, as above stated, had taken title from McCullough; hut we do not think that this deed need be considered as at all necessary to establish the title of the plaintiff. This was dearly the opinion of counsel for the plaintiff in the court below. Tn referring to this deed he said:
“Xow, 11' the court jilease, we might just as well state frankly to the court that that is our contention, and has been all the time, and is now. that we have whatever title Mrs. Aultman had in that land. This deed is introduced for the purpose of showing that after her death, if there was any remainder remaining in her, it was conveyed to Mr. Seybold and whatever title she had is his tille. We don't claim anything but what was vested in Mrs. Aultman.”
The court then stated that it. was admissible for descriptive purposes and as a quitclaim of any title which Mrs. Aultman may have had.
The plaintiff having shown title to and located the land claimed in the declaration, it necessarily follows that the court below acted properly in granting plaintiff's instruction No. 1, which is in the following language:
“The court instructs the jury to find for the plaintiff the possession of, and that he has the fee-simple title to_, the western half of the tract of land described in the first count of his original and amended declaration, designated on the map of Surveyor Ellsworth Wilson introduced in evidence, by the red and black lines, and by the figures 1, 2, 3, 4, 5, and 6, which western half is designated on said map by the points marked 1, 2, 3, 4, 7, 8, and 1, and one cent damages.”
It appears that this case was fairly and impartially tried in the court below, andl that the defendants were given ample opportunity to establish the contention that they had acquired title to the locus in quo by possession under color of title; but they failed to establish this fact. Under the circumstances, we think that the errors assigned are without merit and that substantial justice has been had.
An examination of the authorities relied upon by counsel for the defendants as to the various points at issue discloses the fact that they do not apply to the case at bar.
The judgment of the lower court is therefore affirmed.
Affirmed.
McDOWEDD, District Judge, dissents.