Hines v. Greenlee

| Ala. | Jun 15, 1841

ORMOND, J.

Without entering: on the- enquiry whether the constat or inspeximns of the King’s- grant is as high evidence as the original at common law, or (as insisted by Judge Johnson,) that such effect is given to it by the statutes of 4th Edward and 13th and 17th of Elizabeth1, we think the question, at least in this country, may be placed on clear and indisputable grounds.-

The law provides' that on certain acts being done, the- citizen shall acquire title to a portion- of the public lands, and that a patent therefor shall issue, which shall be recorded. The patent is not the title* but merely evidence, that according to law, a portion of the public domain has been transferred to a citizen. Its efficacy proceeds from the law which authorizes and requires certain public officers to issue and record it. The record showing this to have been done, is a public act, and therefore a second patent, which may issue, is not a copy of the first, but is rather a republication of the original, and imports the same absolute verity.

The difference between the record of patents and the registration of the deeds is,, that the object of the latter is notice, and the registration is not of the essence, or necessary to the validity of a deed — but patents are by law recorded when issued. The record is therefore a public document.

Upon the subjeet of deeds, which by law are required to be enrolled, Chief Baron Gilbert, in his Law of Evidence, 87, says: “ Where a deed needs enrolment, then the enrolment is the sign of the lawful execution of such deed, and the officer appointed to authenticate such deeds by enrolment, is also im-power&d to take care of the fairness and legality of such deeds, and therefore a copy of such enrolment must be sufficient, for when the law has appointed them to be made public acts; the copy of such public acts shall be a^'sufficient attestation. But when a deed needs no enrolment, then, though it be enrolled .the inspeximus of such an enrolment is not evidence, because since the officer has no authority to enrol them, such enrolment cannot make them public acts, and consequently cannot entitle the copy of them to be given in evidence, for then, if the deed were doubtful, it were but to enrol it, and bring the copy or in-speximus in evidence, and thereby avoid producing a, deed which was any way suspicious.”

We are,, for the reasons given, of the opinion, that the supposed copies offered in evidence, were of as high dignity as the originals, and that the Court did not err in permitting them to go to the jury.

Neither is the second assigment of error well taken. The jury find a verdict for two undivided thirds of the lands in the declaration mentioned, and assess damages “ by reason of the detention of the premises in the declaration mentioned.” It would be a forced construction, to suppose that the jury assessed damages for the detention of lands which their verdict ascertains do not belong to the plaintiffs; but the natural and fair interpretation is, that the damages were assessed for the detention of the lands which belonged to the plaintiffs. The course of this Court has'been, to support the judgment of the Court below, when it can be concluded from the verdict, as.is shown by the cases referred to by the counsel for the defendant in error.

■ There is no error in the judgment of the Court below, and it is therefore affirmed.