From Martin.
A deed made by husband and wife had a certificate indorsed on it by the clerk of the County Court, "that the wife appeared in open court and acknowledged the deed, before the court was privately examined, and said it was done freely and without compulsion"; and on the minute docket of the court there was an entry that "a deed from A. B. and C. B. to D. E. was acknowledged. " The deed was registered: Held, that upon the trial of an ejectment the deed shall be given in evidence to the jury. For although the record does not expressly state A. B., the husband, acknowledged the deed, yet it states that a deed from him to D. E. was acknowledged; and the necessary inference is that the acknowledgement was made by him and not by another.
Nancy Kelly appeared in open court and acknowledged the within deed, before the court was privately examined, and said it was done freely and without compulsion.
THOMAS HUNTER, Clerk.
The plaintiff also offered in evidence the minute docket of Martin County Court, in which there was the following entry, to wit:
"17 March, 1794. The court met according to adjournment. A deed from Auterson Kelly and Nancy Kelly to Henry Hunter was acknowledged."
The reading of this deed in evidence was objected to by the defendant's counsel: 1. Because it did not sufficiently appear that the feme covert was privately examined. 2. Because the execution of the deed by both or either of the grantors was not sufficiently proven either by the minutes of the County Court or by the certificate of the clerk indorsed on the deed. 3. Because it did not sufficiently appear from the indorsement on the deed in what County Court, or at what term, the acknowledgment and private examination of the feme covert were taken. And on argument the court refused the plaintiff the liberty of reading the deed in evidence, on the ground that the execution of it by Auterson Kelly was not legally proven.
The plaintiff's counsel then offered parol evidence to show that the deed had been acknowledged by both the grantors, and that the feme covert had been privately examined in a proper and legal manner, and that there was no unfairness or fraud in the record. This evidence was rejected by the court.
The plaintiff's counsel then contended that as the court were of opinion the execution of the deed by Nancy Kelly, one of the grantors, was sufficiently proven, the deed (180) should be submitted to the jury as color of title; and they then offered to prove actual possession under it for more than seven years. This evidence was rejected by the court, and the plaintiff was nonsuited. A rule for a new trial was obtained, and being discharged by the court, the plaintiff appealed.
HALL, J.
The deed ought to have been received in evidence, on the ground of the acknowledgment in the County Court. The certificate of the clerk appointed and trusted for that purpose states that the deed was acknowledged. A deed cannot be acknowledged except by him or them who have executed it. It is not indispensably necessary that the names of the persons by whom the acknowledgment was made should be set forth. When an officer sets forth that anything has been done in this office officially, by him, we must presume that it was done legally, unless the contrary legally appears. Here we must presume that the acknowledgement was made either by the husband and wife or by the husband alone, in either of which cases it ought to be read. It is a far-fetched presumption that it was made by the wife alone, without the consent or participation of the husband. If, then, it was made by the husband it ought to be read as to him. It is a matter of little moment whether it was acknowledged by the wife or not, unless her privy examination was also produced. However, it is not the province of this Court to look into the deed and say what interest passed by it; that belongs to the court and jury, who shall try the cause below. Let the rule for a new trial be made absolute.
(181)