Beall's Lessee v. Lynn , 6 H. & J. 336 ( 1824 )

At this term the opinion of the court was delivered by

Martin, J.

This'was an action of ejectment, instituted to recover two tracts of land, the one called Walnut Bottom, the other The Brothers, or The Rusurvey on The Brothers. The plaintiff having shown a title to Walnut Bottom in the patentee, George Mason? offered to read in, evidence to the jury a deed from him to Thomas Beall, the lessor of the plaintiff) but the court were of opinion the «leed was not legal evidence, and it was rejected.

It appears from the record, that at the time the deed from Mason.was executed, Walnut Bottom was in Washington, county, and ilie grantor, was a nonresident of this state, and resided in Virginia. That the deed was not acknowledged by Mason in person, hut by his attorney, and that the letter of attorney, giving authority to make the acknowledgment, was proved before Richard Thompson, who is stated to be a justice of the peace tor Montgomery county.

It was coni ended, that this deed could have no legal operation — -1st. Because one justice of the pbacehad no authority to take the probate of the letter offittorney, and therefore it was not well and sufficiently'proved according to law. 2d. If one justice of the peace had authority to take probate of its execution, it does not legally appear that Richard Thompson, before whom this probate was made, had authority to administer an oath, the clerk not having, certified that he was duly commissioned and sworn.

The privilege of acknowledging a deed by attorney, was. conferred by the act of 1766, ch. 14, and we must have recourse to that act to see if the letter of attorney was well and sufficiently proved, according to the meaning of the, legislature. After declaring how deeds shall be acknowledged and enrolled, where thc.grar.ior resides within the state, th & fourth section points out the course to be pursued, where the grantor is a nonresident of the state. It declares “that a deed made by a nonresident of the state shall be acknowledged by letter of attorney, well and sufficiently proved, either in the, provincial court, or. county court where the land intendqd to he conveyed, or the use thereof limited or declared, doth lie, or before one justice of the provincial, or two justices of the county court, as aforesaid.5*

It is perfectly clear that the tribunal or persons before whom the acknowledgment is made, may have the witnesses to the letter of attorney brought before them, and if they are satisfied of the due execution of the power, take the acknowledgment. Whether it must be proved before tiie same persons wiip take the acknowledgment, or may be proved before one of the tribunals mentioned in ¡he act of 1766, and be acknowledged-before another, as for instance, proved before one provincial justice, and acknowledged before another provincial justice, it is not necessary for us now to decide. The question presented by tho first bill of exceptions is, whether one justice of the peace had authority to take the probate?

This act of assembly, giving a new remedy, amLccnferring a. special authority, ought perhaps to receive a strict construction; but if we give the most liberal effect to the words “well and sufficiently proved;” they must mean, proved according to law, that is, proved in the manner ex - pressly required by the, act of 1T66; or before'some person or tribunal authorised to take its probate, independent of that act. It must be conceded, that one justice of the peace is riot empowered to take theprohate, by the express, words of the act, for no authority is 'expressly given to one justice of the peace to do any act whatever by that law. Where a justice of the peace is mentioned, the law always requires ihe co-operation of twp of them; thus- 'the acknowledgment is to be made, not before one but two justices of the peace. If the legislature meant to invest one. justice with power to take the probate, why not also give one authority to take the acknowledgment? It surely does not require more talents, integrity or knowledge, to take the haré acknowledgment of the deed, than to receive the testimony of tire witnesses, in such a manner as to give, legal effect, and operation to the letter of attorney. If then this act does not expressly authorise one justice to take the, probate, from whence does he derive this power? If.it is by implication, still the act requires it to be “well and sufficiently proved”. — that can only mean, proved before some other tribunal authorised, to take the probate. How does a, justice of the peace daim this right? It is not conferred on him by any other act of assembly, and we look in vain to the principles of the common law to find-it. Supposes letter of attorney had been given1 for any other purpose, for instance to collect debts,' and it became necessary, in a trial at law, to use, it, to show the. authority of the agent, what would be legal evidence of its due execution? A certificate from a justice of the peace, that he had in pais examined the witnesses to it? — surely not — It must be proved like other deeds. The. court, before, whom the cause, ■was depending, must have the witnesses before them, or in their unavoidable absence, proof of their handwriting.

The construction we give' to the fourth section of the, act is, that the letter of attorney must be proved, either before the provincial or county court, or before one justice of the provincial, or two justices of the county court, where the lands lie. It is certainly the safest course to. prove it before the same persons who-take the acknowledge tnent. But whether that is required by the act is a ques« ■iiou, as before observed, not necessary now to be decided, and on which no opinion is intended to be expressed.

Having disposed of this question, it is unnecessary to examine the objection to the certificate of the clerk. The deed not having been legally acknowledged, il is perfectly immaterial whether that certificate was correct, we therefore pass it without remark.

It was contended, by the counsel for the appellant, that although a justice of the peace had no authority to take the probale of a letter of attorney, yet the jury ought to .presume, from the long possession of the plaintiff, and those under whom lie claims, that this letter of attorney liad been duly and legally proved, dr in other words, that it had been proved as required by the act of 1766. The doctrine of presumption, from long possession, is too well Established to be called in question at this day: It is a doctrine founded in justice, and id intended to support thé title of bona fide holders of land, where from accident or casualty their title papers may be supposed to be lost. It quiets the possession of estates, and ought to be sustained bv the courts, whore a proper foundation is laid for the pro'Sumption. Eat to direct the jury to presume a fact, in' direct opposition to the evidence produced and relied on hy the party, has never yet been countenanced by any decision we have seen. Had the plaintiff entirely withdrawn tiiis defective deed, and then moved the court to instruct the jury, they might, from the possession and acts of ownership, presume a ¡good deed, it would have presented a very different question. In this case, the plaintiff offered in evidence a letter oí «Homey, proved in pais, before a 'single justice of the peace, and produced a record to show it was thus proved, and yet calls on the jury to presume it was not proved as he has established it, but in a manner entirely different; every presumption that might have arisen "from the want or absence of proof, is'heie rebutted and destroyed by thfe proof offered.

The second and third bills of exceptions are in principle alike, and do indeed present an anomaly in judicial proceedings. Witnesses offered by the plaintiff were objected to by the defendant on account of interest, and the court decided they ware incompetent. The defendant then withdrew all objection to the competency and credibility of the Said witnesses, which might arise from the opinion of tli& court, or from any other cause, and the court were of opinion, and so directed the jury, that the witnesses might be examined; but the plaintiff would have them received upon his own terms, or not át all, and took exception to the procedure of the court; we see nothing in those exceptions on which this court Slight to hesitate a moment. Whether the witnesses offered were competent; is nota question before us. The objection made to them was withdrawn by the defendant, and if the plaintiff had not the benefit of their testimony, it was his own fault; We sit here to administer justice, and not to settle points of punctilious etiquette between the parties.

The fourth bill of exceptioiis remains i'o be considered. This ejectment was instituted, as before stated, to recover two tracts of land, the one called Walnut Bottom, the other The Brothers, the defendant took defence for all the laud included within the lines of a tract called George’s Adventure, and not within the lines of "Walnut Bottom, as located by him. Also for the land included within the lines of a tract called Crooked Meanders Resv.riieyed, as comprehended within a deed from the lessor of the plaintiff to William Mh Mahon, and a deed from the lessor of the plaintiff to the defendant, dated the 5th day of June 1813, and for all the land located upon the plats as the possession of the defendant

The plaintiff, to prove his title to the tract called The Brothers, read in evidence to the jury the patent by which it was granted to Thomas French, on the 29th of November 1774; he then read a deed from James Clarke to A* brahanv Faw, for this land, dated the 7th of November 1785, and a deed from Faw"to the lessor of the plaintiff for the same land, dated the 4th of September 1810. Both the deeds from Clarke to Faw, and from Faw to the lessor of the plaintiff, contain veciiak, slating that a deed for this land was passed by Thomas French, the patentee, to James Clarke, on the 23d of October 1779. 'inisdeed, however* was not produced, and evidence was given that no such deed could be found among the records. He also gave parol evidence,. (Filey, Fisher, GimMns, and MiMahon,) to prove that James Clarke claimed the land called' The Brothers, anil exercised acts of ownership over it in the year 1782, and afterwards. That a tenant under him held ?>bssessiou of part of the laud, and cleared it. That the lessor oí' the plaintiff, and those claiming under him, have been in actual possession ’of parts of this land since the year 1792. That Sic made an addition to the Town of Cumberland more than 26 years before the institution of this suit, by selling out lots to different persons, from The Brothers, (claiming the whole tract under Jibraham Favo,) the possession of which lots has never been disturbed. That in 1799, this land was assessed to Favo, and the taxes were paid by Hie lessor of the plaintiff. The defendant then offered evidence to show, he had been in possession of part of The Brothers for many years, claiming the same not as ¿¡art of The Brothers, but as being included within. Cue Hues of other tí acts of land, to which he was entitled. The counsel for the plaintiff then prayed the court to instruct the jury, if they believed the evidence given on the part of the plaintiff and defendant, they may presume a deed from Thomas French, the patentee, to James Clarke, fo> The Brothers, bCibre the 7th day of November 1785$ which instruction the court refused to give.

If ail the testimony submitted to the jury was legal evidence, and the possession of the defendant was not a mixed or conVicting possession, so as to affect the title of The Brothers, it is difficult to imagine a case that would afford a stronger foundation to presume a deed. The court below have not ¡hated the ground upon which they rejected the prayer, but it is contended here, by the comiso! for the appellee, in defence of their opinion, that there was a mixed possession oí The Brothers'by ü\q lessor of the plaintiff and the defendant, and therefore a deed should not be presumed on the possession of cither against the oilier; and, although the deeds from Clarke to Bax, and from Favo to the lessor of the plain ¡iff, were permitted to be read in evidence to the jury, they were not legal evidence, and therefore ought to be rejected by this court, and without their aid, there was not a sufficient foundation to presume the deed.

If there had been a mixed possession by plaintiff and defendant, both claiming under The Brothers, we are not prepared to say the opinion of the court was erroneous, nor its it necessary to decide that question. But in this case it appears, that although the defendant was in possession of part of this laud, he did not claim it as being part of The Brothers, but as being included within the lines of other tracts of land to which he was entitled, and whose locatU on interfered with The Brothers. (See the testimony of Eager Perry, who was 'a witness produced by the defendant and his counsel in the cause.) His possession then did not conflict with the title of The Brothers, but with its location. lie claimed,-, not as the proprietor of that land, but as the owner of other tracts', whose lines took away a part of it. He might rightfully hold all the land in hiá possession under the other tracts, although the plaintiff- had a legal title to The Brothers. His possession does not affect the title to The Brothers, but its location-only. Wheá a mixed possession can be used, to prevent thé: presumption of a deed, that possession must beheld by both parties; 'claiming title to the same laud.

It has been urged that the deeds front Clarice to Faw« hnd front Faw to the lessor of the plaintiff) Were not legal evidence, and ought to be rejected by this court. The examination of this part of the c’ase presents two questions, 1st. Were those deeds, or either of them,, legal evidence? 2d. If they: hr either of them, aré to -be rejected, was there sufficient evidence, without the aid of tire rejected deed, to support the prayer made by the counsel for the plaintiff?

The opinion of the court on the first bill of exceptions, is conclusive upon the deed Of Faw to the lessor of tho plaintiff. Faw was a nonresident of the state, and the deed’ was acknowledged by letter of attorney; the acknowledgment was made before two justices of the peace of Allegany county, and the letter of attorney was proved* before one justice of the peace for Montgomery county, and before the mayor of Alexandria; Neither of them had authority to take such probate; arid therefore the letter of attorney was not well and sufficiently proved. The deed from Clarice to Faw is not liable to the same objection — Clarke resided in Baltimore county, and the acknowledgment was made by him before Isaac Vn. Bibber and Thomas Euss'ell, who state themselves’ to be two justices of the peace for that county; the certificate of the clerk of Baltimore county is in' the following words: “I hereby certify, that Isaac Vn. Bibber and Thomas Bus- . sell, gentlemen, before whom the above acknowledgment wes made, and who have thereunto subscribed their names. were at the day of the date thereof, and still are, two jys¡* tices of the peace for the county aforesaid, and to all certificates by them given, as such, due faith and credit is and ought to be given, as well in courts of justice as there-out.” it is objected that this certificate is not sufficient, because it does not state the justices were duly commissioned and sworn. It has been decided in the second trial of Gitlings and Hall in 1809, that these particular words are not necessary to constitute a good- certificate. The words there w'ere '•'•legally authorised and assigned, and due faith and credit ought to be given to their certificates.’? Chief Justice Chase says, “the clerk is the person intrust - ed to make the certificate — he had knowledge of. the facts-whereon to ground his certificate, which is to authorise the recording the deed. The court think a substantial compliance with the directions of the act is all that is requisite, and the court consider the words of that import.Tiie words legally authorised are of the same import as duly commissioned and sworn. The court consider that tSie justices could not he legally authorised unless they had been.commissioned and sworn.’? 1-n that.case there were auxiliary words, not to be found in this — legally uu~ thorised and assigned — and the court rely on those words, not because there is any magic ia them, but because they import that the justices must have been commissioned and. awoi'h, and are therefore a substantial compliance with the act. Any other words then, which necessarily import that they were commissioned and sworn, would be as substantial compliance with the act, as legally authorised and assigned. But independent of that decision, and if the question was now for the first time before us, we think justice ought not to be perverted, ami the estates of third persons defeated, by a mere clerical error in the literal observance of a form. "Where the law requires the clerk to give a certificate, and he substantially complies with it, it is sufficient. This certificate states “they were justices of the peace, and that due faith and credit is and ought to be, given, as well in courts of justice as thereout, to all certificates given by them as justices.” Now what is the irresistible import of those words? If they were justices of the peace, they must have been duly commissioned, for unless duly commissioned they could not be justices; and if due faith and credit ought to he .given to their certifi,-cates «5 justices, they must have be.en sworn, for they are. not authorised to give certificates as justifies unless t-hey had been swqrn. Wo consider this certificate a substantial compliance, with the act, and the deed was proper evidence to be submitted to the jury.

Was there then, sufficient evidence to justify the prayer of the counsel for the plaintiff, if we retain the deed from, Clarke to Faw, and reject that from Faw to the lessor of-the plaintiff? The. Brothers was patented to. French in. 1774. , In 1782, although then a great part was in woods, we find it in the possession of Clarke, by his tenant claiming it as his property, and exercising acts of ownership^ over it. In' 1785 it is conveyed by Clarke to Faw, who stands assessed for it in 1799. The taxes are paid by the lessor of the plaintiff, who continues in the possession of the land, claiming it, as some of the vyitnesses declare, under Faw, from the year 1792. He adds to the town of-Cumberland, by laying out lots from this land — he sells, leases, and disposes of those lots at his pleasure, and the possession of them, remains undisturbed; and during the whole of this period, from the first possession by Clarke/ no person set up an adversary claim to it. We think this,testimony afforded a sufficient foundation to presume tire deed, and that the court ought so to have instructed the jury/

. We concur in opinion with the court below, on the first, second, and third exceptions, and reverse the judgment on the fourth. ’ ''

Archer; J-.

The question arising on the first bill of exceptions taken in this cause, is as to the admissibility in evidence of the deed from George Mason, the patentee of Walnut Bottom, to the lessor of the plaintiff, dat.ed the 25th of October 1783. 'Mason, the grantor, at the time of the execution of the deed, resided in the state of Virginia, and on the same day executed ¿ power of attorney to Jllexunder Claggelt, and Daniel Cresap, junior, empowering them, or either of them, to acknowledge the deed- in his' Xiame, in conformity with the' act of assembly providing - for the acknowledgment of deeds in cases where the grantors resided out of the state. One óf the attesting; wit- . nesses to the power of attorney appeared before Richard. Thompson, in Montgomery county; and made, oath to the due execution of the power, which is certified by the said 'Thompson. To this is annexed a certificate of the clerk of Montgomery county, that Richard Thompson, at th<^ time when the said proof was made, was a justice of the peace of Montgomery county, duly authorised and assigned. It further appears, that the land intended to be conveyed by said deed, lay in Washington county, and was, by Alexander Cktggett, one of the attornies, on the 8th day of Nov. 1783, acknowledged before two justices of the peace for Washington county, and recorded within the time prescribed by law. Evidence was also given on the part of the plaintiff of his full and undisturbed enjoyment and possession of the land described in the deed iroia the date thereof to the institution of this suit, a period of thirty years.

Two questions have been discussed in the investigation of this subject.

1st. 'Whether the power of attorney is well and sufficiently proved in conformity with the act of 1766, ch. 11?. And

2dly. "Whether presumption, from length of possession, r;an be called in aid of the defect, if one exist?

It has been urged by the counsel for the defendant, that the power of attorney must be proved either before the justices who take the acknowledgment, or before some justice of the county where the land lies. To give the construction to the act, first contended for, would violate every rule of interpretation. It was obviously the intention of the legislature to designate alone where deeds should be acknowledged, and where recorded, and not to limit the place where, or the persons before whom the proof should be made. It was further the intention of the legislature, in their enactment of the fourth section of the law of 1706, ch. id, to facilitate the means by which nonresidents might transfer their lands, and to obviate the difficulties which existed in the transfer of lauded property in cases not provided for by the act of 1715. Viewing it in this light, the most liberal construction, to effectuate the object oí the legislature, should be given to the section. To confine the proof of the power to the county where the laud lies would, if it did not multiply difficulties to the nonresident grantor in the transfer of his landed properly, at least leave him where it found him. It certainly would be v.hoilyium material where, the proof was made, provided- it was made, before any person having power by law to administer an path. The. object of-the legislature, in requiring proof of the power, was cerfainl-y salutary, but, why should we confine the proof to be made in tire county where the land, lies, when by so doing no object, beneficial to the parties, -could be attained, and a. strained1 construction would, have to be given to the law, and-when this strained, construction would inyolve the legislature in the just imputation of-this absurdity, that they considered, an oath more, obligatory when made in one place than another*

The affidavit made by the subscribing witness to the, power, has been considered as entirety voluntary, inasmuch as it was made out of the county where the land lies,- but this presupposes the fact, that either the proof, was.not required to be made, or that the justice of • Montgomery had, no power to administer the oath, both of which propositions are to.nsidgre.d equally groundless. It has also been urged* that the justice possessed neither a special or general jurisdiction, as it regards the administration of oaths in proof of the power, I consider the act of 17Gb as requiring the proof, and not designating before whom it shall be taken. In such á case there,is certainly a power impliedly granted; to all justices of-the peace, and other judicial officers, to. take the proof required. If. it be once admitted that the proof is not limited to. be taken in the county by the act of assembly, and surely spch is the only rational construction, it would seem nepessarily. to follow, that justices of the ¡feace any where could take the proof, otherwise the act would in this respec.t be nugatory.

If then the.justice had the.power to take the proof, does it sufficiently appear to the; court that he was a justice ok the peace of Montgomery county? The only evidence of this is the certificate of the clerk of- that county, and this, it has been urged, is insufficient, no. act oFassembly expressly warranting a certificate to be given in this particular case. The, original commissions to all justices of the. peace are transmitted to the .respective counties for which they are appointed. They are required to assemble at the respective court-houses to take tlje, oaths required- by the constitution and the laws, one of whicl), oaths,. at least, is* by the act of 1777, required to be recorded,' By whom, then could their appointment and qualification.be attested. uní by the officer having charge of their commissions, a.mi the evidence on record of their qualifications? Such evidence is certainly admitted in analogous cases, by express legislation. But 1 consider the admissibility of this evidence as settled by the decision of this court, in the case of M‘Comas vs. Bradford’s Lessee. This cause was tried iu Harford county court, and was brought up by appeal to this court. A copy of a lease from the agent of the Lord Proprietary, for 99 ymars, dated in 17"44, was offered in evidence. It was proved by the affidavit of the auditor of the State, in whose office the original was deposited, to be a true copy*. The affidavit was taken in Anne Arundel conniy before a Justice of the peace, with a certificate of the Clerk of that county annexed, that the person, before whom fiie affidavit was taken, was duly commissioned and sworn. This court, at December term 1813, decided that the copy was competent evidence; It will tie perceived by a reference to the act of assembly of 1T93, eh. 103, that copies of the books and papers in the auditors office, attested by that officer, and sworn to by him to be true, copies were made evidence, in the same manner as if the original were produced. That case, and the present, have but one feature by which they can be distinguished. The act of IfGG, 1 have endeav oured to show; made no designation of the officer before whom the proof should be made. The act of 1T93 directed generally that the audiior should be sworn, without saying before whom, and in each cas;e the oath is ¡nade in a different county from that in which the papers are Adduced in evidence. In neither caSe is there any evi-> deuce to satisfy the mind, that the oath was taken before it person empowered by law to administer oaths, except the certificate of the clerk of the county where the justice resided. The feature before alluded to, which distinguishes the two cases, is that in one certificate-the justice is said in be duly commissioned and sworn, and in the other that ha was authorised and assigned. Since the determination in the case of Gildings and Hall, the expression in either certificate is sufficient, the words being considered equiva-* lent. No other reason can be given for the determination of the case of M’Comas and Bradford?s Lessee, than that this court considered the clerk’s certificate was sufficient to prove that the person, before whom the oath was taken, was a justice of the peace; and governing iu that case, it should govern iii this. All adherence to decisions, [it can Scarcely be necessary to observé,) is of great consequence to the public. Tt would be infinitely better to adhere to a determination, from which no possible inconvenience could flow, relative to the propriety of which a reasonable doubt might be entertained, than by rescinding it, to open a door to endless litigátion. I cannot but think, that the giving fefficacy to this deed is of great importance to the security of those land titles which are derived through nonresident grantors. These titles are undoubtedly numerous in the state. The cases of practice under this law, which have come under my observation, have generally been conducted by counsél, and in these the proof of the powers, and five acknowledgments of the deeds, have been made iii the ¡county courts where the lands lay. What has been the jpopulár construction and practice with regard to it, I am tillable to say, but doubtlessly this deed has many intimately allied to it iii the mod e of proof and manner of execution, indeed this record furnishes us with two deeds precisely of the same character, from which a deduction may reasonably be drawn that they are more numerous than at first view might be imagined; ,

Believing the deed sufficient ori the first ground,! do not think it necessary to make any remarks on the power, which it is urged the court would have, to call in to its support the aid of présumption. So far as regards the compe1 tency of the witnesses, vvliose testimony is detailed in the second and third bills of exceptions, I do not deem it necessary to express an opinion! I concur with the court below in rejecting the prayers made by the plaintiff. When all objections to the competency of the witnesses, and to their credibility! were withdrawn, the plaintiff could have had the benefit of their testimony if lie had pleased, and the jury were surely bound to respect it. To call on the court, under these circumstances! for the expression of their opinion as to the competency of the witnesses, was asking the court, in effect, for a mere speculative opinion, which was properly refused.

The court below were called upon, in th a fourth bill of exceptions, to direct the jury that they might presume a deed from Thomas French, the patentee of the tract of land called The Brothers, to James Clarke, before the 7th of November 1785, the data of his conveyance to Faiv, which conveyance recited that a deed had been made by the patentee to Clarké. < Presumption is often resorted to for the purpose of supplying defective evidence, and in this country is not oftcner applied to any subject than to supply defective title to lands. It would be difficult to make ‘out the titles to many of the elder tracts of land in this state, by a regular deduction of title deeds from the patentees down to the present proprietors, without resorting hi some stage of them to presumption. Records may sometimes be lost or destroyed. Ancient title papers may be defectively executed, or the proof of them, from lapse of time, may be impossible. Yet in all these cases the possession may have been invariably in the person claiming the land, and in those from whom he derives his title- In such cases possession, which has been long and undisturbed, and which is in general the concomitant of title, induces a be - lief in the mind, of title little short of that which wóuldbe produced by the adduction of the most undeniable and best authenticated evidences of right The grant of incorporeal hereditaments is often presumed from the undisturbed user thereof for a length of time. Grants from the crown, in England, are presumed, from length of possession, aud here even proprietary grants, under certain circumstances, arc presumed. In general these presumptions are bottomed upon the existence of certain facts, which can leave but little doubt upon the mind of the truth of the fact which we are called upon to presume. They frequently too, derive their force aud efficacy from that vigilance with which the law guards ancient possessions, which sooner than they should be disturbed, presumes that they had in contract a rightful commencement. In this case, however, it has been strongly urged, that the possession of the plaintiff was not of such a character that a presumption could justifiably be founded upon it, and that if if were of such a chai actor, yet that it has been rebutted by an opposing possession of the defendant, which would preclude the idea that a conveyance had been made in conformity with the prayer.

In order to lay a ground for a presumption, it certainly would not be necessary that there should have been a possession by enclosure. Were this the case, presumption need never be called in aid of title, for the statute would protect the possession without it. If one have the right in a tract of land, and possession of part, his possession of a párt is possession of the whole tract', according to the trim position and 'location of the land. It appears from the evidence, in addition to the deeds which are contained in the record, and which were offered in evidence, that Clarke ih the year 1782 leased the land to Benjamin Wiley, who lived on it eight or ten months; that in 1788 or lT^S, Wilkins cleared a field on the land; and held it some years* always claiming title under the lessors of the plaintiff, from \vhich period the lessor of the plaintiff, and those from. *whom he claimed'* and under whom he claimed, have been in the actual possession and occupation of parts of the land, by cutting timber thereon, clearing land, leasing out and . Selling parts of it to different persons* always claiming title to the whole tract aS having been purchased of 'Faw. It is unaccountable that the patentee', or his representatives* should 'have permitted Clarke to take possession of this tract of laúd* hold it in his possession for several years* place upon the records of the country á deed of conveyance for it, reciting too that the patentee had conveyed his title to him; that he should have permitted Clarke and his grantees* to remain in the quiet and undisturbed possessK on of this property for a period of thirty-one years, without making a single effort to dispossess them, unless we be;lieve he had conveyed the lands; It is not pretended that any such effort ever was made on the part Of the patentee* In the absence then, of such evidence, the conveyances executed by the persons in possession, the long and uninterrupted possession of Clarke, and those who claim under him, furnish evidence of a character sufficiently strong* upon which to build the presumption prayed for by the plaintiff’s counsel in the court below. The testimony adduced by the defendantis not at all, in my apprehension, calculated to lessen the weight of those circumstances which naturally give rise to the idea of a conveyance having been made. The defendant has taken defence for George’s Jl<h venture, Crooked Meanders* and part of Walnut Bottomj whether this be from the casual interference of the lines off these tracts with The Brothers, Or whether the tracts, when originally taken up, were laid altogether upon The Brothers, under the impression that it did not extend as far as now laid down, and claimed by the plaintiff, or that they were vacancies, are questions perhaps immaterial to the investigation and determination of this subject. The de- . lendant, and those from whom he claims, have been in possession of three several parcels of the land for which he fakes defence, one from 1795, another from 1797 or 1798, and the third from 1799 or 1800, but he has never claimed' either as belonging to The Brothers, but sets up a rigid independent of that tract, and in no way, as to title, connected with it, always contending that the just location of the plaintiff’s tract would not cover his lands. His claim and pretensions, his enjoyment and possession of these lands, are in no wise inconsistent with the plaintiff’s right and title to The Brothers, or with any presumption, which may be made in aid of the plaintiff’s t elective title, except so far as. by the proper location they may be found to interfere. There, has been no mixed possession of the tract which the plaintiff • claims, but the possession of each has been of separate and. independent tracts of land, by different names and different grants. Each may have a perfect title in the several, tracts which they claim,' so far as grants and regular conveyances alone can confer a right; but which is to have the precedence may, nay must entirely depend on a question of location, which i? a question of fact for a jury alone to. determine. Presumption is a question of law, and if the defendant had been sufficiently long in the possession ot those tracts, for which he takes defence., there could be nothing contradictory or inconsistent in allowing to each the benefit of presumption to supply defective, title papers. In sack a case the determination of the question, of right would be made from the seniority of their respective grants, and their inteifering locations, which would have.to.be adjusted by the judgment off a jury from the evidence each might adduce. I therefore,think the plaintiff entitled- to. the direction he lias asked in the fourth bill of exceptions.

It has, however, been strongly urged, that two of the deeds upon which the plaintiff' grounds hia evidence, upon which, to make the presumption, are defective. I believe the deed from Fai.v to Beall, bearing date the 24th of September 18¡0?. good and admissible evidence, for the reasons assigned in the consideration of the question arising on the. fust bill of exceptions. The other deed from Clarke to Fino, dated the 7th of November 1785, was acknowledged before two justices of Baltimore county, and-the clerk of that county has certified that the persons before whom the acknowledgment was made were justices of the peace, and that to' all their ads as such faith and credit ought to he gipen. The certificate aleñe is objected to, and it is said-not to be in conformity with the third section of the act of-1766, eh. 14, that requires the certificate to state, that fhe persons before whom the acknowledgment was made Were justices of the peace, commissioned, and sworn. In the case of Gittings fy Hall, it ,was determined: that. the. Words of the act need not be, pursued, but that equivalent words would, be sufficient. Faith and credit could not be, given- to their acts as justices, of the peace, unless they were commissioned and sworn, and, the assertion of the. former in the clerk’s certificate', necessarily implies the. latter, and brings the certificate within the decision in the case above alluded to. It is therefore considered, that the deeds objected to are admissible, in .evidence, and can form no ground to support the refusal of the court below to, grant the prayer of the plaintiff

judgment reversed, and procedendo awarded.