Wickes's Lessee v. Caulk , 5 H. & J. 36 ( 1820 )

Dorsey, J.

delivered the opinion of the court ^(a).

It has been urged by the appellant’s counsel, that the deed from Miller and wife to Moore, inserted in the first bill of exceptions, was inoperative on two grounds: 1st. Because the deed appeared to be acknowledged before its execution; and 2dly. Because the names of the attesting witnesses were erased. The first objection is not well founded in point of fact, and must be abandoned by referring to the change produced by the alteration of the calendar.

The court are of opinion that the second objection cannot be sustained. There is no evidence in the record that any person or persons attested the execution of the deed. By the inspection of the original deed, the names of the two persons are written in the place where attesting witnesses generally write their names, and the names are erased, but when they were erased, whether before or after the execution of the deed, does not appear; and it is incumbent on the party who wishes to avoid a deed by its erasure, to prove that the alteration was made after its execution and delivery. Attesting witnesses are not necessary to the validity of a deed, and the erasure of their names, by a stranger, would not avoid it. As the court therefore were xiot bound to presume that the erasure was made by the grantee, or those claiming under him, after the execution and delivery of the deed, the lessor of the plaintiff could not call on the court to declaim the deed inoperative.

The court are also of opinion, that the opinion expressed by the court below, in the second bill of exceptions, is Correct. Both the deed and acknowledgment-wererecorded within the time prescribed by law, and although the year in which the acknowledgment was made does not appear on the deed in letters or figures, it must necessarily have been made in due time, or it could not have been recorded within due time.

The next question which presents itself for the consideration of the court, is this-—Has the court erred in the opinion which they gave on the third bill of exceptions?

It must be admitted that the act of 1718, chap. 18, created a special jurisdiction unknown to the common law, and clothed the commissioners with powers of an extraordinary, and, we might add of a frightful nature. They are empowered to establish the bounds of lands upon the application of any person interested, and the parties litigant were debarred the aid of counsel. No review or appeal was allowed from their decision, except to the King in Council, and that only in cases where the acting commissioners should- adjudge, that the pretensions of the party grieved exceeded three hundred pounds sterling. It was urged in argument by the counsel for the appellee, that the proceedings of the commissioners, being unappealed from, and unreversed, must be conclusive evidence of the facts found by them, as all review, except before the King in Council, is expressly interdicted by the act.

It is a well established principle of law, that thé proceedings of any tribunal, not having jurisdiction over the subject matter which it professes to decide, are void; and it is equally well established, that the proceedings of tribunals of limited jurisdiction must, on the face of them, state the facts which are necessary to give them jurisdiction.

The Circuit Courts of the United States, as it respects their jurisdiction between citizens of different states, are considered as courts of limited jurisdiction, and therefore it must be averred on the record, that the plaintiff and defendant are citizens of different states, or their proceedings would be irregular. It is unnecessary to cite authority to prove this proposition, as it must be familiar to all who have read the decisions of the Supreme Court, as reported by Graneh.

That the proceedings of tribunals having no jurisdiction to decide the case, are not voidable, but void, is a proposition equally clear, and among other cases, was fully established by this court in the case of Partridge vs. Dorsey's Lessee, at December term 1813, where the court decided, that a plaintiff in an ejectment might shew that a decree of the chancellor, ordering lands to be conveyed in a case where he had no jurisdiction to make such a decree, was void, and he therefore could give no title, though such decree had not been appealed from or reversed.

If the proceedings exhibit a case in which the commissioners who did act, had power to act, their award is final, until reversed in the manner prescribed by the act; but if on the contrary they shew themselves that they had no jurisdiction, the whole must be considered as corcm non judies, and therefore a nullity.

The law provides that the commissioners named by the governor shall meet at their several and respective court houses the second day of every county court, to receive the petitions, which must be in writing, of all pex-sons that shall have occasion to make application to them for the as • cex’taining the bounds of any lands, lying in the county, provided that the party petitioning, twenty days beforethe px-eferi-ing such petition, shall have given due notice of his intention to apply, by setting up notes at the court house door, and parish church, where the land lies, certifying the time when he means to make application to the commissioners, at which time and place all persons, both complainants and defendants, concerned in the dispute about the bounds of such lands, are x-equired to meet, and rn the presence of the commissioners present, to make choice of- any number of the afoi-esaid commissionex-s, not being less than three, to determine the matter in controversy, which number of commissioners, being mutually chosen by the parties contending, shall proceed to decide, &e.

The law further provides, that if any party concex-ned, or any way intex-ested in the bounds of lands in dispute, shall obstinately or wilfully, after publicado» as aforesaid, refuse to meet the complainant before the commissioners, at the time notified for the preferring the petition, or if present will not join in making the election or choice, that then it shall be lawful for the major part of the commissioners, not being related to either party, or interested in the lands in dispute, to proceed in the manner as before mentioned.

To give jurisdiction, therefore, to the commissioners, whose acts are the subjects of consideration, four things at least are essential; first, that Moore should give the notice prescribed. Secondly, that he should petition the commissioners. Thirdly, that the land should lie in Kent county. And fourthly, that the commissioners were a regular constituted board. Let us then examine whether the board who acted were regularly constituted?

It is in proof, that seven commissioners out of the nine qualified, and that the boai’d of commissioners who acted, were selected by the petitioner, Moore, and one Kenslaugh, who represented himself to the commissioners as the guardian of William Kelley, who was interested in the establishment of the bounds which Moore sought to prove. The commissioners further certify, that they had discovered that William Kelley was of age at the time Moore exhibited his petition, and that Kenslaugh had fraudulently represented himself as the guardian of Kelley.

From these facts, which are certified by the commissioners, it is evident that they were chosen by election, when they ought not to have been selected in that manner. William Kelley, who was of age, either did or did not attend the meeting of the commissioners according to the notice of Moore; if he did attend, he did not unite with Moore in the election of commissioners; and either in the event of his attending and not uniting in the choice, or of his refusing to attend, the law has expressly declared that the acting commissioners shall not be designated by election. It is no answer to say that Kenslaugh represented himself as the guardian of William Kelley, because the commissioners certify that they had discovered the fraud practised by him, and had amerced him therefor in a considerable sum. As soon as the commissioners had detected the fraud, they should have peased to act, as not being a regular constituted board. The choice was made by Moore and Kenslaugh, (who it was supposed at the- time, represented William Kelley, and was therefore authorised to join in the selection,) necessarily precluded any other of the seven commissioners from acting, when it was the intention of the legislature that, in the event of a selection not being duly made, the whole, or a majority of the commissioners, might act. The board was constituted by nomination, when, in point of law, the persons making the election had no authority to do so. The board being improperly constituted had no authority to proceed, and their acts must be deemed void, and if void for the want of jurisdiction, no acquiescence on the part of those interested in the lands can give them legal efficacy. This being the view of the court, it becomes unnecessary to decide the other points suggested by the appellant’s counsel. The court therefore think, that the opinion of the court below, in the third bill of exceptions, was erroneous.

Johnson, J. dissented, as to the opinion on the last bill of exceptions.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.

(a) Buchanan and Martin, J. concurred.