Milligan & Dickson

17 F. Cas. 376 | U.S. Circuit Court for the District of Pennsylvania | 1817

WASHINGTON, Circuit Justice.

When this cause was formerly tried, the only question which I could judicially decide, was, whether under the words of the act of 1705, a power of attorney acknowledged before the mayor or chief magistrate of a city, and certified under the public or common seal, could be given in evidence. That act declares, that all sales or conveyances of lands thereafter to be made, by virtue of any letters of attorney, duly executed, and expressly giving a power to sell lands or other estates, certified to have been proved by two or more of the witnesses thereunto, before any mayor or chief magistrate of a city, &c. under the common seal, &c., or proved in Pennsylvania before any justice of the peace, by one or more of the witnesses thereto, &c. shall be good and effectual in law, to all intents and purposes, whatsoever, as if the said constituent had by his deed conveyed the same.

Upon the construction of this law, it- appeared to me there could scarcely be two opinions. It allowed powers of attorney, proved as the law directs, by the attesting witnesses, to be given in evidence; but it did not extend the same privilege to powers acknowledged by the party. The former case, therefore, was no longer open to the common law objection, that a deed must be proved upon the trial of a cause in which it is offered, by the attesting witnesses, if they can be produced, subject to the legal exceptions and qualifications of the rule. The latter case was left exposed to the full operation of that principle, as it was not provided for by this statute. There was no testimony given of a practice and usage like that which has been proved in this case. It is true, Judge Peters stated to me the general understanding of legal and dther men, upon this subject, substantially, as he has now testified. But no proof of such a practice was given, so that I could act judicially upon it, or to enable the supreme court to judge how far such practice had controlled or affected the principle of the common law. I could not therefore, give any other opinion than the one I did, which was unfavourable to this evidence.

This trial presents a perfectly new case, upon the evidence which has beet given.

It is contended by the defendants’ counsel, that no practice or usage can repeal or control an express statute; and that for this reason the cases of Davey v. Turner, 1 Dall. [1 U. S.] 11, and the lessee of Lloyd v. Taylor, Id. 17, in which it was decided, that a feme covert had legally parted with her estate by being privily examined without a fine being levied, and even by the mere joining her husband in the deed, are no authority in this case; because, the long and uniform practice, which, by those decisions, sanctions this mode of disposing of her estate, violated no statute of this state, but merely a rule of the common law, whieli required a -flue to be levied, in order to bind the estate of a feme covert. Now, admit for a moment, that a usage, however ancient, cannot control or vary the plain interpretation of a statute; still it is obvious, that the error of the argument consists in supposing that the usage set up in this case, is at variance with the provisions of the act of 1703. That act provides merely for the case of powers of attorney, proved by the attesting witness, but it does not exclude other modes of proof. It does not declare that the acknowledgment of the party shall not be sufficient, or that the certificate of the magistrate shall be sufficient to authenticate the instrument in no instance, but where the execution of it is proved by the witnesses thereto. All that can be said is, that the acknowledgment before the magistrate is not provided for; and therefore, upon common law rules, the certificate of the acknowledgment could not be received as evidence of the execution. Here, then, the practice, coeval, it is probable, with the act of 1703, and certainly extending beyond the memory of man, steps in and supplies the omission in the law to provide for the case. This practice originated, no doubt, in the opinion, that the acknowledgment of a deed is equivalent to proof by witnesses, and that, therefore, it was within the equity of the statute. This opinion became practically embodied into the land titles of this state; insomuch that we find, as far back as the recollection of the oldest witness, who has been examined extends, foreign powers of attorney were certified upon the acknowledgment of the party who gave them, and that this mode of proving the execution was much more practised than the other. What is this, then, but a usage or common law of. the state, controlling the common law of England; supplying an omission in the statute law of the state, not violating any one of its provisions? In this view of the subject, then, it is plain that the cases cited from 1 Dall. [1 U. S.] have settled a principle which is strictly applicable to this case.

The witnesses who have been examined as to the usage asserted in this case, do not recollect that this question has ever been directly decided in the courts of this state; if if had, I presume it would not now be contested. But, I would ask, what stronger evidence can we have that the usage has become incorporated into the law of this state, than the uniform admission of deeds, executed under powers of attorney so acknowledged and certified as evidence of their execution, by all the courts, without an objection having been made, either at the bar or on the bench? If the objection was never taken, it must have been because the law was understood to be too plain to be controverted.

This usage, then, forms one of the great and essential land marks of real property in this state; and if the titles depending upon it are to be uprooted at this day, I will not be the judge to commence this work of devastation. Never was there a case where the principle communis error facit jus, was more strictly, and necessarily applicable.

It is therefore the opinion of the court, that the evidence which has been offered ought to go to the jury; and if, upon the evidence which has been given, they are satisfied that the usage as I have stated it, has been proved, their verdict ought to be for the plaintiff.

Verdict for plaintiff.