Creigh v. Beelin , 1 Watts & Serg. 83 ( 1841 )

The opinion of the Court was delivered by

Sergeant, J.

There is nothing in this case to take it out of the general principle repeatedly settled by this court, that, by the acceptance of the deed, and giving bonds for the purchase money, the articles are merged in the conveyance, and thenceforth become null and void. The tract of land is described in the articles, dated 4th May 1833, as containing about one hundred acres, and surveyed in the name of James Martin; but it was sold at so much an acre, with a provision that it should be ascertained by-survey, and sold by the acre with allowance. Nearly two years afterwards, the deed was executed, according to a survey then made, and the tract was conveyed by courses and distances, and described as containing 91 acres and 19 perches; and the mortgage and bonds for the purchase money were given for this quantity. It is plain that the parties were fully apprised of the whole transaction. No fraud or mistake in the execution of the conveyance is alleged, and the defendant is to pay for no more land than he received. On the contrary, the parol evidence tends strongly to prove, that it was not intended more should be conveyed, because the plaintiff’s father had previously disposed of five acres, a portion of the one hundred acres, to Shuman, who took possession of it, and resided and died upon it; and this was known to both parties. We think there was no error in the answer of the court to the defendant’s first and second points.

The plaintiff offered in evidence a judgment obtained by Roth’s administrators against Shuman’s administrators, with execution levied on the five acres above mentioned, and a sale and conveyance by the sheriff to Henry Lupfer: ■ to which the defendant objected, but the court admitted the evidence, and sealed a bill of exceptions. I do not perceive any error in this. It went to show, that the sale by the plaintiff’s father to Shuman, was a bona fide and valid sale, passing the title to him, and under him to a purchaser : and thus to confirm the inference, that the parties did not mean that the whole hundred acres should be inserted in the deed. It was, perhaps, not very important evidence in the case, but it was not altogether irrelevant and immaterial.

The principal question of difficulty in the case is, whether there was sufficient proof of the acknowledgment of the release by Daniel Johnson and wife to the defendant. The acknowledgment of this release by the wife was taken before Murdoch M’Lean, one of the judges of the Circuit Court of the County of Huntingdon, in the state of Indiana; and there is a certificate annexed by Isaac N. Harlan, clerk of said court, that Murdoch M’Lean, Esq., before whom the acknowledgment was taken, was then, at the time of taking the same, an acting and duly elected and commissioned judge of the Huntingdon Circuit Court aforesaid; that the signature was genuine, &c., in witness whereof he had set his hand and private seal, (there being no seal of said court.) It is contended, that this acknowledgment is not conformable to the Act of 24th February, 1770, for taking acknowledgments of deeds in other states, conveying land situate in this state. That Act provides, that all deeds and conveyances, made and executed by husband and wife, not residing within this province, the acknowledgment thereof being taken and made before any mayor, or chief magistrate, or officer of the cities, towns, or places, where such deeds or conveyances aré, or shall be made or executed, and certified under the common or public seal of such cities, towns, or places, shall be valid and effectual. The objection made is to the private seal of the clerk, and also, that it is not stated, nor does it appear, that the judge was the chief magistrate of the court, or chief officer of the county in which this acknowledgment was taken.

It is unnecessary to examine into this objection, because there is a later Act of Assembly, for taking this kind of acknowledgments, which is more free from the objection. I mean the act of 23d March, 1819, which authorizes acknowledgments of bargains and sales, deeds, &c. to be made before one of the judges of the Supreme Court of the United States, or a judge of the District Court of the United States, or before any one of the judges or justices of the supreme or superior court or courts of Common Pleas of any state or territory, &c.; and so certified under the hand of the judge and seal of court; and extends it expressly to the case of the separate examination of a, feme covert. The Circuit Courts of Indiana, it appears by the constitution of that state, are courts of Common Pleas; for they are invested with common law and chancery, as well as criminal jurisdiction.

Then, as to the seal of the court, we conceive it to be within the object and equity of the statute to hold, that the requisition that the certificate shall be under the seal of court, means where there is a seal of such court; and that when it appears by the certificate of the clerk, that the court has no seal, the certificate signed by the clerk, and sealed with his private seal, is sufficient.

On the other points, we see no error in the opinion of the court below.

Judgment affirmed.