Thurman v. Cameron , 24 Wend. 86 ( 1840 )

By the Court,

Cowen, J.

There being no count in the declaration except on the plaintiff’s title, he was bound to show a valid deed to himself. He claimed under Gaylord Wells, by deed dated in August, 1834, who claimed under George Hooker and Richard A. Ives by sundry mesne conveyances. They had in 1825 authorized Mr. Baldwin to convey, but had revoked that power in 1827, by themselves then giving a deed to Charles G. Ives, from whom the paper title came to the plaintiff, if he had any. Yet Mr. Baldwin conveyed to the defendant in 1828. This deed was unavailable, as passing any title, for two reasons: 1. Hooker & Ives, as we have seen, had before conveyed; and 2. If they had not, the deed was null, as being or purporting to be in Mr. Baldwin’s own name and right. This latter was so, notwithstanding the letter of attorney to him declared that he might convey in his oWn name, or in the name of his principals. The parties could not thus change the established forms of conveyancing. The attorney is bound to use the name of his principal both in the body of the deed, and by way of signature, and for and in the name of his principal to affix the proper seal. If he make the deed in his own name, it is his own personal contract, and cannot operate as against his principal for any purpose. Storey on Agency, 137 et seq., ed. of 1839.

The defendant then, I think, must be taken in every sense as having a possession, and claiming under the independent deed of Mr. Baldwin so early as 1828. That possession was actually adverse as to part, and constructively for the residue. The defendant had for several years cultivated the premises in question as owner, making considerable improvements. All this was public, notorious, and well known to the plaintiff in 1834, when he took his deed from Wells; and that deed was taken with the express view to this litigation. It was therefore clearly void, as being both against the letter and spirit of the law to prevent maintenance, *un- [ *91 ] less the adverse character of the possession was destroyed or qualified by the defendant’s decl aration that Mr. Baldwin, when he conveyed, or contracted to convey, acted as the agent of Hooker & Ives. This, it is supposed, operated as a recognition of their title; and that the defendant, in effect, must be taken as claiming under them at sufferance, because the conveyance from their attorney, which he believed to be valid, was void. I have supposed the defendant’s acknowledgment to have been djreet that he took under Mr. Baldwin as the attorney or agent of Hooker & Ives, for the jury might possibly have considered the defendant’s declaration to Woodward as referring to them. Mr. Baldwin probably had no authority except from them. Yet I do not see how this is to detract from the adverse character of the defendant’s possession. He took a deed, believing that he got a good title, either from Mr. Baldwin, from Hooker & Ives, or both, and under it held a possession actually adverse. Neither Mr. Baldwin nor Hooker & Ives had any title. It had passed to Charles Gr. Ives. But this was not known to the defendant, and he was in under such color of title as led to a belief of his right. He acted accordingly. It was not necessary, in order to create an adverse possession, that he should have a legal title. Suppose he had taken a deed from Hooker & Ives in person, clearly his possession would have been adverse, though their deed would have been void; and can the possession be considered less, because the deed came from their agent ? Would not the possession which followed, running twenty-five years, have matured into a title ? Mr. Baldwin’s deed covered the whole lot, and the defendant was in actual possession of all the cultivated portion. His possession was clearly constructive in respect to the residue, according to all the cases decided by this court.

The^certificates of acknowledgment were, we think, properly received in evidence. The objections to them, if all allowed, would destroy almost entirely the utility of the statutes, which declare a probate or certificate of acknowledgment endorsed by certain officers upon a deed, to be pri- [ ‘92 J ma facie evidence of its execution. If their official ^character, their signatures, and that they acted within their territorial jurisdiction must be shown by extrinsic evidence, the party may as well, and in general perhaps with more convenience to himself, procure the common law proof. The practice is to take a certificate which appears on its face to be in conformity with the statutes, as proof of its own genuineness. It need only be produced. There is no need of extrinsic proof, such as showing by whom it was made, any more than of a notary’s certificate when received under the commercial or civil law, Chitty on Bills, Am. ed. 1889, p. 642. a; 2 Dom. tit. 1, § 1, pl. 29; or a clerk’s certified rule of the court in which the cause is pending. Cowen & Hill’s 1 Phil. Ev. 388. Accordingly, where the certificate describes the proper officer, acting in the proper place, it is taken as proof both of bis character and local jurisdiction. Rhoades’ lessee v. Selin, 4 Wash. C. C. R. 718. Willink's lessee v. Miles, 1 Pet. C. C. R. 429. Vid. Morris v. Wadsworth, 17 Wendell, 103, 112, 113. He is like an officer authorized to take testimony de bene esse under various statutes. Vid. Ruggles v. Bucknor, 1 Paine’s C. C. R. 358, 362. Thompson J. there said, prima facie the officer is to be presumed, de facto and de jure, such as he is described to be. Indeed the certificate stands much on the same ground as the return to a special commission for taking testimony. There it would be deemed a singular objection, that the commissioners must be identified and shown to have proceeded regularly, by evidence collateral to the return.!

The certificates purport to be taken at the place where the officers had power to act. That they acted within their territorial jurisdiction is therefore proved, even if it were not to be presumed without the fact being stated. The cases holding that certificates may be impeached because the act was done out of such jurisdiction, are those where the presumption was overturned, or offered to be, by collateral proof. Jackson, ex dem. Walsh v. Colden, 4 Cowen, 266, 278. Jackson ex dem. Wyckoff, v. Humphrey, 1 Johns. R. 498. Certificates of this character are not treated by the statutes as more than prima facie evidence; nor are they more either ®in respect to their own regularity or the facts which they are ad- [ *93 ] duced to prove. They are open to attack in a great variety of ways. Vid. Cowen & Hill’s Notes to 1 Phil. 1249, 1250. They are, however, by recent statutes, made receivable to authenticate almost every kind of instrument; and to consider them less than prima facie evidence, per se, would render them literally useless, especially in those local jurisdictions where they are of most importance.

Although the statutes in terms required that these certificates should be endorsed, 1 R. S. 748, 2d ed. § 15, 1 R. L. of 1813, 369, § 1, they need not be followed according to the local import of the word. A certificate subjoined and expressing the same things mutatis mutandis as if endorsed, has the same effect, and may even be described in an indictment ás an endorsement. Rex v. Bigg, 1 Str. 18. Being on the same sheet with the deed, there is no more chance for committing a fraud, than by an endorsement in form. A certificate thus subjoined passed without objection in Jackson, ex dem. Merritt, v. Gumaer, 2 Cowen, 532. This case also held that the certificate saying “ A. B., to me known, came before me, one, &c, and acknowledged,” &c. A. B. being in truth the name of the grantor, though the certificate omitted to say so, was a sufficient compliance with that part of the statute requiring the officer to state that the person named was well known, &c. to be the person described in and who executed, &c. This is even more than an answer to the objection now taken, in respect to the officer’s certificates of knowledge.

Some of the points now made were not mentioned at the trial. Such is the objection that the deed from Hooker & Ives was void as a trust deed within the 1 R. L. of 1813, 75, § 1; and again, that no title was shown in them. It seems to have been assumed, on the trial, by both parties, that they once had title.

The effect of recording the deed from Asahel Hooker to Gaylord Wells before Mr. Baldwin executed the deed to the defendant, was not mooted at the trial, nor am I aware how it could vary the case if it had been. [ *94 ] *But a new trial must be granted, on the ground that the immediate deed to the plaintiff was void by reason of the defeadant’s adverse possession at the time.

New trial granted.