18 F. Cas. 151 | U.S. Circuit Court for the District of Michigan | 1850
OPINION OF
This is a motion for a new trial, by the defendants’ counsel, on the following grounds: 1. Because the transcript of the record of the deed from Isaac Carrier to Lathrop A. G. Grant, was improperly admitted in evidence. 2. Because the transcript of the record of the deed from the said Grant to William Hines, was improperly received in evidence, said deed having been recorded in the office of the register of probate, and said transcript being signed by the county register. 3. Because the deed from Seaman & Norton to plaintiff was improperly admitted in evidence. 4. Because the plaintiff, as a foreign corporation, cannot hold said lands under the laws of Michigan.
The first objection to the deed from Carrier to Grant was, that it was not entitled to be recorded. And if this be sustained, it will follow that the tianscript of the record cannot be received as evidence. A certified copy is evidence only where the instrument is required by law to be recorded, or where the law expressly makes the copy evidence. This deed, it is said, was executed under the act of 1827 (Rev. Laws Mich. p. 258). The deed was recorded in 1832. The 1st section of the act provides: “That all deeds or other conveyances of any lands, tenements or heredita-ments lying in this territory, signed and sealed by the parties granting the same, having good and lawful right and authority thereunto, and signed by two or more witnesses, and acknowledged by such grantor or grantors, or proved and recorded as is hereinafter provided, shall be good and valid to pass the same lands,” &c. But the deed in question was executed in the state of New York, and under a law which gives effect to it as such, if executed as deeds are required to be executed by the law of New York. Seeing that deeds executed in the territory or state of Michigan, are regulated by statute, it cannot be important to inquire what constituted a valid deed at common law. It is known that at an early day in the history of England, it was not usual for the grantor to affix his signature to the deed, except by his seal, as but few could write. And especially was this the case in regard to witnesses. Their names, when required, were found endorsed on the back of the deed or were mentioned within it. The 7th section of the same act which requires
The objection to the authentication of the copy seems not to be sustainable. The law authorized the deed to be recorded at first by the register of probate, but the records kept by him have been transferred by law to the register of deeds, and they are now legally in his custody. Under such circumstances the keeper of the records may certify copies, the same as the register of probate might have certified, had he retained the custody of the original records. The law which makes copies evidence, when duly certified, is satisfied by the certificate of the person who has the legal custody of the records. No other individual could certify copies. This right appertains to him from the legal possession of the records. In the case of U. S. v. Percheman, 7 Pet. [32 U. S.] 85, the supreme court say: “We think that, on general principles, a copy given by a public officer, whose duty it is to keep the original, ought to be received in evidence.”
The third objection is, that the deed from Seaman and Norton was improperly admitted in evidence, because the title set forth in said deed is inconsistent with the title sought to be traced to the said Seaman, and also because it appears by said deed that the title to said premises obtained through the sheriff’s sale set forth therein, had been previously conveyed to Henry H. Elliott. And also because the plaintiff had no authority to take or hold the lands in controversy in this suit. Under the declaration the plaintiffs had a right to show a vested legal title, no matter how, if it was fairly acquired, or through whom it may have been derived. It is sufficient to show that the legal title was in Seaman, and that a quit claim was executed by him. Whether Norton had title or not is of no importance. The recital in the deed shows no title, inconsistent with that which the plaintiff claims through the quit claim of Seaman. It does not appear from the recitals as alleged, that the title had been conveyed to Elliott. The sheriff did not deed the land to Elliott — at most the recital can show nothing more than an equity. The objection that the plaintiff under its charter had no power to hold the land in controversy, is founded on the supposition, that a corporation must show the land was taken in its regular course of business, and within its corporate powers. Under the common law, a corporation, unless prohibited, may purchase and hold real estate. Ang. & A. Corp. 65; 1 Kyd, Corp. 69; 2 Kent, Comm. 277, 281. The restriction in England'''')» this is found in the statutes of mortmain, which have not been enacted in Michigan. The right to take and hold real estate in connection and in furtherance of their corporate powers, is Incidental to a corporation. A bank, without any express powers to that effect, may take and hold real estate as a banking-house, and also in furtherance of its business. Ang. & A. Corp. 65, 66, 87-92, 200; 5 Hammond [Ohio] 205; 3 Pick. 239. In the 1st section of the act of incorporation, a right to take and hold such real estate as may be necessary in the transaction of its business, is expressly given. Having this power, the corporation received the land in the exercise of its legitimate functions, as this will be presumed in the absence of proof to the contrary. 3 Wend. 94; 16 Mass. 102; 7 Serg. & R. 313; 7 Cow. 540; Virginia & Farmers’ Bank v. Poitiaux, 3 Rand. [Va.] 136.
It is never necessary for a bank to allege, when suing on a note, that it was taken in the ordinary course of business. A corporation is never presumed to have, violated its charter. 15 Pick. 310; New Haven Steamboat & Transportation Co. v. Vanderbilt, 16 Conn. 420; 19 Johns. 347; 11 Johns. 517. A note and mortgage appearing on its face to. have been executed to the State Bank of Indiana, in its corporate name, will be presumed to be taken in conformity with its charter. Sparks v. State Bank, 7 Blackf. 469. In [Society for Propagation of Gospel v. Town of Pawlet) 4 Pet. [29 U. S.] 501, it is said that the general issue not only admits the general right to sue, in a corporation, but also to bring the action set forth in the declaration. And that case was brought by a foreign corporation, and the action was in ejectment. In the discharge of its corporate functions, a bank or any other corporation, is limited to the jurisdiction in which it is created, but it is not controverted, that a bank may sue to recover a debt in any other state. This is placed on the ground of comity, and the right may be exercised wherever it is not prohibited. This doctrine was laid down fully in the Bank of Augusta v. Earle, 13 Pet. [38 U. S.] 519. The right of suing in another state is not only recognized, but also the right to make contracts which are clearly within its powers, through comity. Any state may prohibit the making of such contracts or the prosecution of suits, but, until this is done, the comity will be presumed to exist.
By an amendment to the original charter
The motion for a new trial is overruled.