| Mich. | Jul 13, 1868
The plaintiff below — defendant in error — having introduced the patent from the Hnited States to Oliver Johnson, dated August 10, 1839, and the deed from Johnson to him•self, dated November 23, 1858, had thus established full title in himself, and might properly have rested without further evidence, until that deduction of title had been invalidated by the defendant.
But the deed from Johnson to plaintiff, after conveying the land, went on to declare that its object was to cure the defects in a power of attorney and certain deeds undertaken to be executed under and dependent upon it, by which, if perfect, the title would have been derived to the plaintiff without the deed of Johnson directly to him, above noticed. The plaintiff sought to show that defective power of attorney and the deeds depending upon it, for the purpose, as it would seem (for there could be no other), of showing that the defects referred to in Johnson’s deed to him actually existed. This testimony, though wholly unnecessary, could
This, therefore, disposes of the first, second, third, and fourth assignments of error. And, as the testimony of Geo. C. Munroe, alluded to by the sixth assignment of error, related only to ’the chain of title thus admitted and claimed to be defective, and to the description pf the land, only for the purpose of showing that one of those defective deeds must have been intended to refer to the same lands claimed by the plaintiff under Johnson’s deed to him of subsequent date, the objection to this testimony stands upon the same ground as the objections to the defective power and the defective deeds. Though unnecessary, it could not in any manner have prejudiced the defendant; and there was no error in its admission.
There was no error in allowing the plaintiff to testify to his having gone into possession in 1841, and that the defendants (Wright and his wife) went into possession in 1843 or 1844 and remained in possession ever since, and that the wife died after the commencement of this suit.
This was objected to upon the single ground, that these facts, or some of them, must, if true, have been equally within the knowledge of the deceased wife: and the defendant, Austin Wright, was defending not only in his own right, but as administrator of his deceased wife.
This objection, as is clear from the nature of the testimony of plaintiff, can only refer to that part of his testimony in reference to the two defendants, Austin Wright
Without undertaking to decide whether the third section of the act of 1861, prohibiting a party from testifying “in relation to matters which, if true, must have been equally within the knowledge of such deceased person,” was intended to apply to facts of this character, which in their nature, must be open and notorious and easy of proof from any source, it is sufficient for the present ease to say that, as the defendant Austin Wright, one of the parties to whom the testimony referred, was still living and defending in his own right, as well as that of his deceased wife, we do not think the testimony falls within the object of the prohibition of this statute. Had the testimony referred merely to a conversation with the deceased alone, or to some fact the knowledge of which had been confined to the plaintiff and the deceased, the result might have been different. But the principal object of this prohibition, we think, was to prevent a living party from obtaining an unequal advantage from his own testimony, upon matters known only to himself and the deceased, or better known to them than to others, and of which the deceased party can, of course, no longer speak. Whether the prohibition was intended to go beyond this in any case, it is not necessary here to decide, as it is quite apparent from the evidence and the nature of the case that this matter of taking and holding possession of this land, by the defendant and his wife together, must have been equally within the knowledge of the surviving party, Austin Wright, as in that of his deceased wife; and he was entirely competent to testify in relation to it.
The only remaining questions are those arising upon the admission of the record of the deed from Ellis and wife to Johnson.
The defendant, on the trial, without attempting to deduce title to himself or his deceased wife, but for the purpose of defeating the plaintiff’s title under the deed from
But the plaintiff, to counteract the effept of this deed, and to show that whatever title it conveyed had been reconveyed to Johnson prior to Johnson’s deed to himself, introduced the record of a deed from said Ellis and his wife to Oliver Johnson, dated August 6, 1836, purporting to reconvey the same land to said Johnson, “acting as trustee for and in behalf of the Michigan College, his successor or successors, as trustee or trustees for ever; habendum to the said Oliver Johnson and his successors, as aforesaid, in fee simple forever.”
The certificate of acknowledgment attached to this deed was in the following words:
Personally appeared before mo the above named John M. Ellis, to' me known to be the person described as the grantor in tbe foregoing deed, and acknowledged tliat lie signed, sealed and delivered tbe same for tbe uses and purposes therein mentioned as their free act and deed.
Given under my band this sixth day of August, A. D. 1836.
Personally appeared before me Josepbena M. Ellis, the wife of die said John M. Ellis, who being by me examined separately and apart
Given under my hand this sixth day of August, A. D. 1836.
ERASTUS ROOT,
Justice of the Peace.
Eoot also witnessed the execution by both parties.
This record was objected to, first, because the deed did not appear to have been “acknowledged by the said John M. Ellis,” the certificate to his acknowledgment not being signed by the justice; second, taken as a whole it does not conform to the statute so as to entitle it to be recorded; and, third, it does not show that the person taking the acknowledgments was a justice of the peace for.any county.
The Circuit Judge held the certificates of acknowledgment to be in effect one certificate only, and the signature at the end of the last as intended to be a signature to both, and that the caption of the certificate and the signature import that such officer was an officer in and for the county named in the caption.
In this we see no error. The strong probability is that the blank for the deed was one which had the acknowledgment of the wife in form separate from that of the husband ; and the former being placed directly under the latter, was treated by the justice as in effect but a single certificate, the signature to the last being considered by him as a signature to the whole. The fact that such certificates of acknowledgment are generally made as one, that the blank for the date in the first was filled as in the last and with the same date, and that the justice appears to have signed as a subscribing, witness to the execution by both, all tend to confirm this view. And we think the court was entirely right in holding that, when the county is named in the caption of such certificate, and it is signed officially as justice of the peace, the caption, in connection with such official signature, imports that he is such officer in and for the county named in the caption.
This case having been submitted to us without either a brief or an argument on the part of the plaintiff in error, we are not entirely certain what particular question was intended to be raised by this objection. We do not, therefore, feel justified in going beyond the questions necessarily involved in the case.
If the legal effect of the deed was, as supposed by this objection, we can see no good reason why the defendant below should object to its introduction; since in that event, the case, so far as related to the .undivided interest conveyed by the deed, must have been decided in favor' of the defendant, unless the court in his finding should give a contrary •.effect to the deed. And in .the latter event, supposing the defendant’s view .of its legal effect to be correct, the only error operating to the prejudice of the defendant, would .consist in this erroneous finding, and not in the admission •of the evidence. The deed was relevant to the issue, as, •upon any view of its effect, it tended to show where the title was, and might have been followed by other evidence, tracing it to any party.
To enable the defendant to avail himself of an error of this kind, he should have excepted to the finding, and assigned the error upon that. But no exception was taken nor any error assigned to the finding of the .judge, either as to the facts or his conclusions of law. No question, therefore, upon the legal effect of this deed, as vesting the title in the cestuy que trust or in Johnson, with power of sale, can be properly raised upon this record.
The judgment of the Circuit Court must be affirmed with costs.