Ritter v. Worth

Barnard, P. J.

The jury have settled the question of adverse possession as to lots ten and twelve between these parties. The evidence was conflicting upon the point, and even if we thought the jury came to a wrong conclusion, the rule, is entirely settled, that an appellate court should not interfere with the verdict. The acknowledgments to the deeds are not defective. The deed from "Whiter to Oberkircher is objected to, because the certificate of acknowledgment does not contain therein the clause that the evidence of the witness who swears to the identity of grantors is Ksatisfactory evidence” to the commissioner of deeds. The law makes the oath of the witness satisfactory evidence, and the commissioner had no power to refuse it credence.

The deed from Oberkircher to Eck is objected to for the same reason, and for the additional reason that the certificate does not set out the commissioner’s knowledge of the witness. The witness did not prove the acknowledgment as subscribing witness. The certificate recites that the identity of the grantors was “ proven by the oath of John A. Stemmier.” It is only when the subscribing witness makes an acknowledgment as such, that the officer need certify his knowledge of the witness being the same man whose name is affixed to the deed. The subscribing witness as such, proving a deed, must testify to his residence. The deed from Eck to Ritter is acknowledged by the parties. Their identity only is proven by the witness. This disposes of the objection to that deed.

The mere pendency of a former suit, if between the same parties, is not a legal bar. 9 How. Pr. 228. This action is not between the same parties.

The offer to prove the third answer was properly rejected. The delivery of the deed by the master in chancery to the defendant was a delivery to Wolters, and he had the right to its possession. No fraud by which he got possession, if known to his grantees, could destroy his or their title. The deed w;as made out to Wolters, was intended so to be by defendant, and by his direction and was delivered to him when defendant took it.

As to lot twenty-four, the question is one of law, and was properly disposed of at the trial. The land was not assessed to the owner or occupant, and the tax for which the premises were sold did not correspond with the tax imposed, but was in excess of it. I think the authorities sustain the judge at circuit in holding that under the evidence in this case, the plaintiff was entitled, as matter of law, to a verdict for this part of the premises claimed by plaintiffs.

Judgment affirmed with costs.