8 Paige Ch. 428 | New York Court of Chancery | 1840
The laws of this state recognize the existence of two classes of commissioners of deeds, who are authorized to take affidavits to be read in this court, and to perform various other duties prescribed by law; commissioners for counties and commissioners for cities. (2 R. S. 282, § 41; 284, § 39.) And provision is also
It appears to be a well settled principle of the common law, that as between third persons, the acts of an officer de faoto, who comes into the office by color of an election or appointment to such office, and who claims and continues to exercise the duties of the office, are valid and that in a collateral proceeding, to -which he is not a party, the courts will not decide upon the validity of his title to the office. In the case of The People v. Collins, (7 John. Rep. 551,) Kent, C. J. says : “That law is too well settled to be discussed.” And the principle was again recognized by the supreme court in the case of Mclnstry v. Tanner, (9 Idem, 135,) where upon certiorari it was sought to call in question the right of the justice to the office; on the ground that he was a clergyman, and therefore constitutionally disqualified to hold any office in this state. A case very analogous to the present will also be found in the reports of an adjoining state. There the defendant in a suit sought to repudiate the service of the process of the court, by a plea in abatement, on the ground that the sheriff who served the writ had been appointed to that office, by the governor and his council, before the law organizing the county had gone into effect; and of course, before there was any law authorizing the appointment of a sheriff for that county. The court, in that case, held that the right of the sheriff to the office could not be inquired into in a suit to which he was not a party. (See Fowler v. Beebe and another, 9 Mass. R. 231.) In that case, the whole facts upon which the question as to the right to the office arose, and
Without expressing any opinion, therefore, upon the question as to the correctness of the conclusion at which the vice chancellor arrived relative to the power of the governor and senate to appoint commissioners of deeds for the city of Buffalo, the fact that the affidavit was sworn before an officer who had been actually appointed to the office of commissioner of deeds in a city, and who was de facto such officer under color of that appointment, was sufficient to authorize it to be read upon the motion between these parties.
The objection that it does not appear upon the affidavit that it was sworn to within the limits of the city of Buffalo, is not well taken. It is sufficient that it does not appear to have been sworn to out of the jurisdiction of the commissioner ; as the court will not presume the officer has been guilty of a breach of duty, in taking an affidavit at any place out of the limits of his jurisdiction.
The order appealed from must therefore be reversed ; and the bill must be dismissed as to the appellant for w-ant of prosecution, with costs.