2 Iowa 75 | Iowa | 1855
The evidence offered, to show that Gardner was clerk of the commissioners’ court, was competent, and should have been received. Van Ness v. Bank U. S., 13 Pet. 21; Shults v. Moore, 1 McLean, 520, recognizing the foregoing case. The People v. Ammons, 5 Gilm. 105.
The term “parol evidence,” as used in the bill of exceptions, is assumed to mean oral evidence, as this is the ordinary sense in which it is used, although some of the books, and some of the writers on evidence, use the word parol in its broader sense, as well when speaking of evidence, as when speaking of contracts.- This evidence is allowed in relation to officers, civil and municipal, to show that they were officers at a given time, and, perhaps, to show that they acted as such. And the same has been done in relation to an officer of a corporation. Mechanics’ Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326. This practice, however, is limited, to' cases where the question arises between third persons And it is familiar to every lawyer, where an act has been done, which could be done by an officer only, or by a certain officer, to show that the person doing this act was such officer, and to show, by oral evidence, that he was an officer de facto. 1 Phil. Ev. 432; 3 lb. 449, notes 280, 281. As between third persons, when the question arises, whether a person doing an act was an officer, it is sufficient to show him to be such de facto ; and it is not required of the person claiming or justifying under the act of the officer, to show that he was such, by the high'est and best evidence. This is required when the officer himself is a party, and he justifies, or claims, by virtue of his office.
It is difficult to perceive, why this principle does not apply to the case before us.- Gardner has done an act which is valid, if done by the clerk, and which could be done, only by the person holding that office. And why
Perhaps, however, the argument is intended to apply in this form: that having signed as agent, it oannot be shown that he was clerk, nor be claimed that he executed it as clerk. This thought has no weight. It is not pretended but that this act was, at least, an attempt to exercise the power given by the acts named in the statement. And the case contains sufficient to show, that such was the transaction. His styling himself agent, does not negative the idea that he may have been clerk, nor that he did the act in his capacity of clerk. The two things are not inconsistent. He was an •agent, call him what else you will. The1 county clerk was
Since he has not expressed his office, it may be shown aliunde, and then the presumption will be, that he executed it as such officer; and the same presumption would hold, if he had not added the words “ agent of J. C.” See 13 Pet, ut supra. The danger to our titles and property, apprehended by the plaintiff’s counsel, does not exist. In the case put by him, of a deed purporting to be from the state, and signed by the name only, of the governor, without the addition of his office, it would undoubtedly be good, and his office might be shown by other proper evidence. Patents signed by the president of the United States do not express-his office fully. They are usually, “ By the President, Z, Taylor.” President of -what ? His act of signing does not show. But in this instance, the president of the time supposed,- is judicially recognized. This judicial cognizance,
But it is urged, that if the court erred in rejecting this evidence, it was an error that did not prejudice the defendant, because he cannot hold under the deed in any event, and therefore the error cannot avail him here. It is said that Gardner, even as such clerk, could not make the deed and convey the property. We will examine this proposition. The argument is thus: that by the special act of February 16, 1842, the agent of Johnson county could make the deeds, but that by the general act of February 17, 1842, the agent could not make them ; that by the act of 1847, repealing the special act of February 16, the clerk is remitted to the general act of February 17, for his powers, and consequently could not make the deed, but that it must be made by the county commissioners. If the agent or clerk is thus remitted to the above general act for his power, this argument is a valid one. And probably the result of the cause, depends upon this point. It must be noticed that under the above special act, the powers and duties of the agent of Johnson county, are more numerous and extensive than those of agents appointed under the general act. He is to have the possession and control of all moneys, bonds, notes, and other papers arising from, or belonging to, the sale of the lots of the county, and the treasurer is to pass these over to him; he is to collect the moneys arising from the sales, and pay over on orders from the county commissioners; he is to take all notes and obligations for the sale of county property, in the name of himself and his successor in office; he is to make title bonds and execute deeds, and to execute deeds on bonds before given by the board of commissioners. Under the general act, the agent makes the contract, and gives a certificate only, and when the payment is made, the board of commissioners make the deed. By the repealing act of 1847, the clerk is authorized to perform all the duties heretofore enjoined upon the county agent. There is, perhaps,
"We have viewed the case strictly with reference to the manner in which it is presented to us, and with reference to ‘the errors assigned; the second of which, relates to the rejection of the evidence of Gardner being clerk, and the first of •which, is on the-rejection of the deed. This rejection of the ■deed, we take to have been for the reason, that Gardner does not appear upon it, to have been clerk, and we adjudicate it upon no other. Evidence being admitted-that Gardner was clerk, then, quoad hoc, the deed is admissible.
The rule that the elder title from government, must prevail, does not apply. It holds in-relation to the government only, where the doctrine of notice does not prevail.
The argument of plaintiff’s counsel, that the bill should show that this was all the evidence, is fallacious, and has no •place dn -the present attitude of the-cause. This was one -step in the defendant’s evidence, and an important step.
The judgment of the District Court is reversed, and a writ of jprocedendo will issue, directing that court to proceed in. the cause, in a manner consistent with, this opinion.