Connelly v. Bowie , 6 H. & J. 141 ( 1823 )

The opinion of the court was delivered by

Dorsey, J.

This was an action of trespass quare c7.au* cum fregit, brought in Montgomery county court, by John Bowie, the appellee, against John Gonnelly, the intestate of the appellant. The general issue was joined, and defence on. warrant taken. The plaintiff - below located, on, plots filed in the cause, a tract of land called The Hermitage, granted to William 'Joseph on. the 6th of June 1689, • for 3866 acres. He also located a deed executed on the •.. •14th, -of November 1748, by .Benjamin Harris to John Bowie, "for a tract of land culled Harris’s Adventure En- • larged,, being part ofa tract of land called The. Hermitage, and he,made a location of a deed said to be executed on the 4th of July 1738, by Thomas Boteler. to Benjamin Perry, for. 200 acres of land, part of The Hermitage* The defendant counterloeated the tract of. ’latid- called The Hermitage, as also the deed fronx, Harris to Bowie for. Harris’s Adventure Enlarged. The plaintiff at the trial gave in evidence the grant of The Hermitage, and, the plots and explanations,'and offered toread to.the court, and jury the deed executed- by Harris to Bowie, for Harris’s Adventure Enlarged, as also the copy of a deed pur» 'porting to be. executed on the 4th of July 1738, by Thomas Boteler to Benjamin. Perry, for 200 acres, part of The Hermitage, and. certified under the. (land and official seal of the clerk of Prince Georgecounty court, to be truly copied from the land records of that county. The defendant, by his counsel, objected to these papers being read to the jury. b,ut the court below declared they were admissible evidence in the. cause, and they were accordingly read. To this opinion the defendant excepted. And this court are of opinion, that the deed executed by Harris to Bowie was correctly admitted in evidence, but that the paper, purporting to be the copy ofa deed from Boteler to Perry, ought not to have been read to the jury. First, as lo thé admissibility of Harris's deed. It calls to begin at the end of one hundred perches on the third line of The Hermitage, owned by Pirnj. Thé third, line of The Hermitage is thus described in the grant} “south south west fifis most apparent that the parties to the deed could not mean to refer to a point in the third line of the whole tract as the beginning, as that line is only fifty perches lotig; whether they intended that the beginning should commence at the end of one hundred perches on the third line of that part of the tract which, was owned by Perry, or at some other point, was á question of fact to bé tried by the'jury; ánd as thé plaintiff1 had located this deed, according to its courses and distances, the court think that it wás legally admissible in evidence. Secondly, as to the admissibility of the writing, purporting to be a copy of a deed from the records of Prince- George?s county. The endorsement, as certified by the c the following words: “Memorandum. That on the day and year within written came the within named Thomas Boteler, and acknowledged the within land and premises to be the right of the within named Benjamin Perry, his heirs and assigns, for ever.

John Beall,

Turner Wootton.”

Thé official character of the persons before whom the supposed acknowledgment was taken, does not appear on the Face of it, and the paper is equally silent as to the counproof in the record showing that John Heall and Turner tVootion were justices of the peace, or that the acknowledgment was made in the county in which the lands were then situate. This copy per sc, cannot be read in evidence nilless the original was required to be recorded. By the act of 1715, ch. 47, it is declared, that no manors, lands, tenements or hereditaments, shall pass front one to another, whereby an estate of inheritance or freehold, or any estate above seven years, shall be made, or take effect in any person, by reason of a deed of bargain and sale, except the same be made by writing, indented and sealed, and be'acknowledged in the provincial court, or before a jrdge thereof, or in the county court, or before two justices ty in which the acknowledgment was taken, nor is there any oT’the same, where sucli manors, lands, tenements, and hereditaments ’do lie, and enrolled within six months after the-date of such writing1, indented ás aforesaid.” Now, as there is iio evidence in this case to warrant the presumption that the original was acknowledged in conformity to the provision’s of the act,, a Copy cannot per se be read as evidence, for 'copies aré only admissible in proof when the Originals aré required to be recorded to give them legal efficacy. This 'copy must therefore be considered as inofficial, and cah only be used under the satae limitations and exceptions as private copies of deeds", or other instruments of writing. If th'e plaintiff had offered evidence that Benjamin Perry, and those claiming under him, had possessed and enjoyed the land under Bolder’s title, a strong foundation would have been laid for presitming that the original deed was acknowledged in conformity to the provisions ' of law, but in the absence of all such proof; there is no room for healing inferences; The court are of opinion, that the judgment of .the court below must be reversed, and that a. procedendo be awarded.

Judgment reversed.