Walton v. Jones ( 1873 )

Opinion by

Judge Pryor:

Although we are not inclined to differ with the court below in the reasons assigned for sustaining the demurrer to the answer and cross-petition, still it is unnecessary to decide that question. The deed filed with the petition shows that it was acknowledged and recorded within the time required by law. The certificate reads: “I do certify that this deed from John Walden and Louisa, his wife, to L. D. Husbands, was, on the. 1st day. of August, 1857, acknowledged before me in my office by the said John C. Walden and Louisa B. Walden to be their act and deed. Wherefore, I have admitted the same, together with this certificate, to record in my office. Given under my hand this 1st day of September, 1858.” Signed by the clerk. There is nothing in this certificate showing that the deed was recorded in September, 1858, but it does appear that the clerk, on the 1st of September, 1858, certifies that the deed was’ acknowledged and recorded on the 1st of August, 1857. The allegation in the answer and cross-petition cannot be admitted as true on demurrer when the deed itself is made an exhibit with the petition and shows what was done by the clerk, or a certificate presenting a state of facts from which it must be inferred that the deed was recorded when acknowledged and, if so, must have been recorded in proper time. There is no fraud or mistake alleged in regard to this certificate and its verity is unquestioned.

Marshall & Bloomñeld, for appellant. -■, for appellees.

Judgment affirmed.