32 Wis. 277 | Wis. | 1873
This was an action of ejectment; and the principle is familiar that in such an action the plaintiff must recover
By the statutes of the Territory of Michigan, 1833, page 281, section 7, it was enacted, that all deeds and conveyances of lands within the territory, which were afterwards made and executed in any other state or territory, whereby such lands were conveyed or otherwise affected, should be acknowledged,
The volume of revised statutes of New York introduced in evidence shows what officers were authorized by the laws of that state to take acknowledgments of deeds in 1828; and j ustices of the peace are not included among them. Besides, ch. 238, Session Laws of 1840, also introduced in evidence, gives that authority to justices of the peace in the several towns of that state, on abolishing the office of commissioner of deeds. In view of this legislation the question is, Can it be presumed that a justice of the peace in and for the city and county of New York had authority in November, 1835, to take acknowledgment of deeds. If so, upon what ground can the presumption be made? It is suggested that a presumption, arises from the act of acknowledgment by the justice, that he had authority. But how can such a presumption be made in view of the fact that in 1840 the legislature conferred the authority upon justices to take acknowledgments ? Is it consonant with reason and probability that the legislature would confer an authority already conferred upon and exercised by these officers ? It seems to me not. The passage of the law of 1840 can be accounted for on no other rational supposition than that it was intended to confer upon justices of the peace some power which they could not before lawfully exercise. This presumption would seem to be too powerful to be overcome by any inference to be drawn from the acknowledgment itself, or even by the rule laid down in section 105, ch. 137, R. S. That section in effect declares that all deeds or other instruments in writing relating to real estate situated within this state, which •shall have been recorded before that enactment, puporting to have been acknowledged or proved without this state, and having upon them substantially the ordinary form of a certifi
The judgment of the circuit court must therefore be affirmed.
By the Oourt.— Judgment affirmed.