1 Blackf. 157 | Ind. | 1822
Shepherd brought ejectment in the Clark Circuit Court against Henthorn for a tract of land in the Illinois Grant. To support his action, he produced a transcript of the acts of assembly of Virginia of 1783 and 1786, attested by William Mun-ford, keeper of the rolls, under his hand, (there being no seal of office;) in addition to which is the certificate of the governor of Virginia, with the great seal of the state annexed. These acts, of assembly were produced for the purpose of showing the authority of the board of commissioners, appointed by the government of Virginia, to convey to the rightful claimants the lands granted to the officers and soldiers of the Illinois regiment. The plaintiff also produced a document, pui yoxUng to 1>« a transcript of a patent from the state of Virginia to the said commissioners, made in pursuance of the said acts of assembly, signed by Edmond Randolph, governor, with the lesser seal of the state, and dated the 14th of December, 1786. This transcript is attested by William G. Pendleton, register of the land-office, with his seal-of office thereto affixed; to which is added the certificate of Thomas M. Randolph, governor of the state of Virginia, with the great seal of the state annexed, certifying that William G. Pendleton is register of the land-office, but omitting to state that his attestation is in due form. These documents were severally objected to by the counsel for the defendant, bat were admitted by the Court. The plaintiff also offered in evidence a deed from the commissioners for the land in question; which deed was objected to, because it did not appear to have been recorded pursuant to the ordinance of congress of 1787; but the Court overruled the objection, and permitted the deed to go to the jury. The deposition of Robert Breckenridge was offered by the plaintiff, and opposed by the defendant; but the Court overruled the objection, and the deposition was used.
The admission of Breckenridge's deposition is the first error
Leaving this point undecided for the present, there is another view of the subject which may perhaps obviate the difficulty. Prior to the year 1783, the state of Virginia had the sovereignty of all the territory now included in the states of Ohio, Indiana, and Illinois. By her act of cession to the United States in 1783, and her deed in conformity thereto, she transferred all her territory north-west of the Ohio river, saving and excepting certain reserves. Among others, she reserved a tract granted by her to the officers and soldiers of the Elinois regiment, containing 150,000 acres, now known by the name of the Illinois Grant, with the express stipulation that the said tract should be divided among the said officers and soldiers in due proportion, according to the laws of Virginia. The power of legislation may cease', and the operation and obligation of the laws remain: such is the case generally in conquered and ceded countries; such is the case in all the new states of this union. 4 Cranch, 384. But the compact, in this case, seems to intend something more than a stipulation for a continuance of the operation of laws already in existence. The state of Virginia and the United States were f wo sovereigns, treating for a cession of territory. Virginia had
• The second error assigned questions the propriety of permitting the deed from- the- commissioners to Shepherd to be read to the jury; the Said- deed not having been acknowledged and recorded agreeably to the provisions of the ordinance of congress of 1787. The legal title to the land was vested in Shepherd by the execution of the deed agreeably to the laws of Virginia, and ¡-did not depend on any act of congress for its validity. The design of recording' a deed is not to vest a title in the grantee; and neglect on his part to have it recorded, does not destroy or make void a title once vested. Its design is to perpetuate the evidence of a title already complete, and to give notice of its existence for the safety of subsequent purchasers. This objection is without foundation.
From a view of the whole case we are of opinion, that no transcript of any act of assembly of Virginia was requisite to support the action; no exemplification of the patent was necessary; and any proof of the deed from the commissioners to Shepherd was altogether superfluous and useless. The deed, being more than 30 years old, required no proof. The patent having been acted upon, and deeds executed by the commissioners to claimants, from time to time, for upwards of 30. years;. and these proceedings being public, notorious facts, making a part of the history of the country, afford ground for the strongest presumption that a patent, from the government to the commissioners, was executed according to the provisions of the act of 1783. But this fact does not rest on presumption: it is reduced to certainty by the act of 1796. The transcripts of the acts of assembly of Virginia which were offered in evidence on the trial, were sufficiently authenticated; but the act of 1796, which has an important bearing on this case, was not brought before the, Court in that way. We consider this act as fully within the
Where evidence has been improperly admitted in the Court below, the usual practice is to reverse the judgment, and remand the cause for further proceedings. In this cáse the deposition of Breckenridge was improperly admitted; but we cannot hold ourselves justifiable in reversing the judgment, and subjecting the parties to the expense of another trial, on account of the improper admission of evidence which was wholly superfluous and useless; especially when the plaintiff is clearly entitled to recover on the merits, and must recover in another trial
The judgment is affirmed, with costs.
Where the seal of a state is affixed to an exemplification of an act of the legislature, the attestation of a public officer is not required. The United States v. Johns, 4 Dallas, 412. The seal itself is supposed to import absolute verity; and the annexation must, in the absence of all contrary evidence, always be presumed to be by a person having the custody thereof, and competent authority to do the act. The United States v. Amedy, 11 Wheat. 392, 407.
The certificate of the presiding judge, under the act of congress of 1790, that the person whose name is signed to the attestation of the record is clerk of the Court, and that the signature is his own handwriting, is not sufficient: the attestation must be according to the form used in the state from which
For the decisions respecting the admissibility of copies of enrolled deeds as evidence, vide 1 Stark. Ev. Am. ed. 366 — 369, and notes. Since that publication, a case on this subject has occurred in the Supreme Court of the United Stales. A statute directed certain deeds to be recorded, but was silent as to copies being evidence; and a bargainee set up a deed of that kind against the attachment of a third person issued against the bargainor: the question was, whether a regularly certified copy of the deed was admissible evidence for the bargainee, without his showing that the original was not within his power? The Court held the copy to be inadmissible, on the ground that its admission would violate the great principle, that the best evidence the nature of the case admits of must be produced. Brooks v. Marbury, 11 Wheat. 78, 82.
Quiere, Whether, besides the ancient date of the instrument, some corroborating circumstance should not be proved; as, that possession of the land accompanied the deed, dr that the writing was found in the proper custody. Vide 1 Stark. Ev. Am. ed. 343 — 345, and notes. The rule, that after a lapse of 30 years regular proof shall be unnecessary, is not confined to deeds or wills, but extends to letters and other written documents coming from the proper custody. The rule is founded on the antiquity of the instrument, and the great difficulty, nay, impossibility of proving the handwriting of the party after such a lapse of time. Wynne v. Tyrwhilt, 4 Barn. and Ald. 376.
Vide Doe d. Wood v. West, ante, pp. 133, 136, note 2.
For the statutes of Virginia, and a copy of the patent, referred to in the text, vide Appendix.
If there be sufficient evidence to warrant a verdict, without the admission of a witness who has been improperly received, the Court, looking into the circumstances of such particular case, will not set aside the verdict. Harford v. Wilson, 1 Taunt. 12. — Nathan v. Buckland, 2 Moore, 153. So, when evidence has been improperly rejected at law upon an issue directed out of chancery, the Chancellor will not grant a new .trial, if, upon the whole evidence, including that rejected, he is satisfied that justice has been done. Hampson v. Hampson, 3 Ves. & Bea. 41. — Bootle v. Blundell, 19 Ves. 503. — Pemberton v. Pemberton, 11 Ves. 52. — The Warden, &c. of St. Paul’s v. Morris, 9 Ves. 169. — Head v. Plead, 1 Turn 142. — Bullen v. Michell, 2 Price, 492. — 1 Hov. Sup. 36. Sed vide Marquand v. Webb, 16 Johns. R. 89; where it is held, that, if the Court below admit improper evidence, the Court of error must reverse -, though there was other evidence given, fully sufficient to support the verdict.