| Ind. | May 28, 1841
This was an action of debt brought by /. F. Dufour, assignee of J. Dalmazzo, against J. Sheets and V. Dufour, on a promissory note. There are four pleas in bar. 1. That the note sued on, with two others, was given to the payee, Dalmazzo, for the price of an undivided moiety of certain real estate, sold by him to Sheets, one of the defendants; that Dalmazzo, at the time of the contract, gave Sheets a bond conditioned for the execution of a good and sufficient deed in fee-simple for the land, on payment of the purchase-money; that the note sued on is the only one of those given for the land that remains unpaid; that Dalmazzo has not conveyed nor offered to convey the land to Sheets, but has refused, &c. The second and third are pleas of payment; to which replications in denial were filed. 4. That the note was given in consideration of the land mentioned in the first plea; and that the payee bound himself, as in that plea stated, to convey the land in fee-simple to Sheets on payment of the note; that the payee has not a good title to the land; nor has he offered or tendered a good and sufficient deed to Sheets for the same. Replication to the first and fourth pleas, that Dalmazzo has a good and sufficient title to the land mentioned in the pleas; and that he did, on, &c., tender to Sheets a good and sufficient deed of conveyance in fee-simple for the same; that Sheets refused to receive the deed, and the same is now brought into Court. Rejoinder in denial of the replication to the first and fourth pleas. The cause was submitted to the Court, and judgment rendered for the plaintiff.
The defendants admit the execution of the note sued on; and the consideration for which it was given is shown by the pleadings. The only questions in dispute at the trial were, 1st, Had Dalmazzo a good title to the land for which the note was given? 2dly, If he had, did he offer a good and sufficient deed of conveyance for the same to Sheets?
With regard to the first question, it was proved that Dalmazzo held the land by a general warranty deed duly executed by Vincent Dufour and wife, which was a good title, prima facie; and nothing against it being shown, it was sufficient.
But, on the second question, the defendants should have succeeded. The plaintiff offered in evidence a. deed for the land, which Dalmazzo had tendered to Sheets before the suit was commenced, and which Sheets had refused to accept. The defendants objected to the Heed .as evidence, but it was admitted. The objection should have been sustained. Mrs. Dalmazzo, who had executed the deed with her'husband, was under the age of twenty-one years, and her father was dead. She had a mother living named Mary Price, whose name appeared to be signed to ,a certificate of consent to Mrs. Dalmazzo's execution of the deed. That certificate was indorsed on the deed; but there was no proof that the name of Mrs. Price which appeared to the certificate, had been signed b'y her in the presence of two witnesses as the statute requires, nor, indeed, that she had signed it at all. Stat. 1839, p.. 14. The certificate in question, to be sure, is followed by the certificate of a justice of. the peace that Mrs. Price had acknowledged before him, that she had signed and-sealed the certificate of consent,, but that'is not legal evidence that she had executed it. This certificate of consent, like any other written instrument with subscribing, witnesses, should'be, proved by examining those witnesses or one of them, if they or either of them can be procured. If neither of them can be procured, resort should be had to the next best evidence. ' In no event, can the certificate of a justice of the peace, or of any body else, that he had heard Mrs. Price admit that she had executed the instrument, be admissible to prove it; still less to'prove, that she had executed it in the presence of two witnesses. ■ It appears to. us, therefore, that the deed of Dalmazzo and wife, which had been tendered to Sheets, ought not to have been admitted in evidence, the written consent of Mrs. Price not being sufficiently proved. - 1 ■ •
The judgment is reversed with costs. Cause remanded, &c.