Morey v. McGuire

| Vt. | Mar 15, 1832

Hutchinson, C. J.,

. . delivered ike opinion of the Court.The deed from Stevens to the defendant was correctly admitted. The certificate of the town-clerk of his having recorded a deed, is only prima facie evidence of the fact. It is not made evidence by any statute ; and if the recording is not full and correct, that may be shown notwithstanding this certificate. The Court must be convinced that the deed has been recorded, before they admit it to be read to the jury ; and it is very convenient and proper for these certificates to be treated as prim.a facie evidence of the fact, when all appears regular. What is lacking of this regular appearance must be supplied in some way.- The certificate,, that the deed was received by the town-clerk for record, was regularly made and signed by him. And no person can read that part of the certificate, which is not signed, without knowing it to be in the same hand writing with that certificate, which is signed. The Court did right in considering this want of the signing at the bottom of the whole, a mere slip, and the certificates, with one signing, sufficient prima jade evidence of the recording. Or the defendant might have got the clerk, if living, to add his signature, and thus cured the defect. This the clerk, on discovering it, if he knew it to be a mete omission, should make correct forthwith, by signing his name as clerk, having it operate as nunc pro tunc. When all the substance is as it should be, the evidence,, that it is so, should be perfected as soon as possible.

We will now examine the instructions given to the jury, to which exception was taken. It appears by the exceptions, that, when the plaintiff's intestate, who was mortgagor of the land, on which this timber grew, had neglected payment after the money became due, the mortgagee had conveyed to the defendant, and promised'-that said mortgagor should leave possession by the first of May, 1830 ; and that the said intestate, being told of this, assented to it, and promised to quit the possession by said first of May ; that all this took place before the cutting of the timber in question, which was cut in the winter and spring of 1830 ; that said intestate left the premises, and the defendant took the possession of the same, before the conversion complained of. Upon this state of facts, the said intestate was a wrong doer in cutting the timber ; and he could gain no title to it, against the defendant, who wrs then owner ns mortgagee, with a right to possession, by such wrongful cutting. The said intestate’s right to possession, under our statute, had ceased with the arrival of pay day without- pay-rnent. His possession, when he cut this timber, was a mere aney at will; and, as the defendant had obtained a conveyance of the mortgagee’s title, his said possession was as tenant at will to the defendant. And, whether his right of redemption was foreclosed or not, would make no difference in this respect. The legal rights of the parties must be decided at law ; and it would seem rather' remarkable, if the law would admit the tenant at will to cut the trees of his landlord, and then recover in trover of his landlord for using those trees. Upon such a doctrine the plaintiff’s claim seems to be founded. And there is no reason to suspect a "mistake in this; for the intestate acknowledged this right of the defendant, when he purchased other timber of him upon the same land. Upon the whole, the timber sued for did belong to the defendant; and the charge of the county court was correct.

There has been presented, also, a petition for a new trial in this same case on the ground of newly discovered evidence. That may be sufficiently disposed of by saying, that the newly discovered evidence can have no possible bearing upon the cause. That relates wholly to rails, which the intestate carried to a Mr. Cutler, and the time of his carrying them. This suit relates wholly to the timber left on the farm by the intestate, and converted by the defendant. The petitioner takes nothing by his petition ; and,

The judgement of the county court is affirmed.