Brown v. Edson

23 Vt. 435

• Court: Supreme Court of Vermont
• Decided: March 15, 1851
• Status: Published

Opinion

The opinion of the court was delivered by

Redfield, J.

This case involves numerous questions, and many of very considerable importance. The case being presented very much at length on the exceptions, and having been very thoroughly discussed at the bar, it seems important to the interests of the parties, that all the questions presented, which are material to its final determination should now be decided.

I. The first question arises in regard to an office copy of a deed from John Grimes to Josiah Willard of the right in question, being the right of said Grimes to one share of land in the town of Saltash, (now Plymouth,) dated July 15, 1765, from the registry of deeds in Exeter N. H. The registry is dated “July ye 18,1765.” This copy is certified by the present register ; and his authentication is verified by the certificate of the clerk of common pleas of that county. Two questions are made in regard to this copy.

1. Whether the original registry js of such a character, that it can be regarded as evidence of the original deed. This will depend upon the inquiry, whether, at; the date of the registry, there was any law justifying such registry. We should always incline to give effect to such ancient proceedings, if possible, upon the ground, that the very fact of their having been taken raises, some presumption in their favor, that, at the time, they were regarded as valid, and unless we can perceive some good ground, upon which their insufficency rests, it ought to be presumed, that some law then existed, by which the proceeding was justified, and which has escaped our investigation, through the obscurity, which lapse of time always induces. This is not only just, in order to preserve and give efficacy to things, as they exist, but will very often be abundantly vindicated by more thorough examination. And in the present case, we do not positively know, that some such law did not exist. And we do know, that this portion of the state was in those early times claimed by the inhabitants to belong to the state of New Hampshire, and the jurisdiction de facto was, for many years, always somewhat in dubio between New York and New Hampshire, the jurisdiction de jure always belonging to New York, probably, but New Hampshire in fact maintaining the actual government, — which is the sufficient justification for going there for official acts. We are not prepared, then, to say, that this registry is not authentic; but we do think, that more proof should be put into the case, to show affirmatively that such was the law, and the practice, at that date.

2. Is this authentication sufficient to make the office copy legal proof of the original ? The general rule undoubtedly is, that where the constitution of the United States has reserved any subject to the congress of the United States, and they have legislated in regard to it, the provisions of such enactment are exclusive, and supersede all other provisions of law. We see no good reason, why this should not be applicable to the subject of authenticating records of the courts of the different states, and other proceedings. In Greenl. Ev. 606, in note, are numerous cases cited to show such is not the law; and see State v. Stade, 1 D. Chip. 303. And we do not think such has been the course of practice. It is every day’s practice to prove the laws of other states by the printed statute books of those states, and this has been acquiesced in. So, too, I have known copies, from the records and proceedings of other states, authenticated much in the manner these copies are, to be received. But generally, of late certainly, they have been more formally authenticated; and if there be a law upon the subject of authenticating such copies, we do not see, why it should not be followed. Starkweather v. Loomis, 2 Vt. 575. Blodgett v. Jordan, 6 Vt. 580. The case of Ingersol v. Van-Gilder, 1 D. Chip. 59, where it is said, that a judgment of a justice of the peace in another state need not be authenticated in conformity to the act of congress, and that it is only prima facie evidence of the debt, has not been regarded as Jaw, upon either point, for many years. A justice must certify his record, and then certify, that he has no seal, or clerk, but acts as clerk of his own court, and that the foregoing attestation is in due form; and such record is as conclusive to all intents, as a record of the highest court in the state. The case of depositions taken in other states does not come within the act of congress. The party may always give evidence of a record, or quasi record, like an enrolment, or registry, by a sworn copy; but if he resort to an office copy, it should be legally authenticated.

II. The deed from Josiah Willard to David Baldwin, dated February 21, 1781, seems to us to merit a different consideration. This is attempted to be proved by a copy of a registry in the registry of deeds in the county of Cheshire and state of New Hampshire. Now so far as the land in Plymouth was concerned, there was not the least pretence for making a registry of this deed in any county in the state of New Hampshire. This state was fully organized as early as 1777, and has ever since maintained that organization. The first constitution was established in July, 1777, and provides, that all conveyances of land shall be recorded in the town clerk’s office. And by statute passed in 1779 it was provided, that deeds of land shall be recorded in the town clerk’s office, where they have one, and if not, in some adjoining town, and for want of a clerk in such adjoining town, in the county clerk’s office. And at the date of this deed, (and as early as 1779,) two counties were fully organized, with clerks, and books of registry, Cumberland and Bennington — this town belonging to the former. So that we see no excuse for recording this deed in Cheshire county, New Hampshire, more than in any other place. So that if we could apply the same rule to the authentication of this copy, which has been applied to the presumptive proof of originals, from lapse of time and their being brought from some proper place of deposit, (which has never yet been done,) we should yet find, that the facts in the case did not come within the rule. And yet it is undoubtedly true, that the copy affords some kind of moral evidence of the existence of such an original, but not coming within any rule of legal proof. This deed no doubt should have been recorded in Cumberland county. But such mistakes no doubt exist in this state to a very considerable extent, — the grantees recording their deeds in the old counties, after the newer counties were organized. I have myself found such mistakes, in tracing land titles, while at the bar, — more generally, perhaps, where the deed contained lands in both the old and new counties; but I could never devise any mode, by which such departure from the law could be justified any more in the registry of ancient deeds, than later deeds. In either case the registry is made without any warrant of law, and is not record evidence, any more than if recorded in the office of the register of probate. Possibly this may form a proper subject of legislative interference.

III. In regard to the passing of the title from Baldwin to Jonathan Wilder, there is undoubtedly some irregularity, not easily explained. It is an attempt to convey land in this state, the title of which was in a deceased person, by virtue of an administrator and order of sale, obtained in the state of Massachusetts. Such administrator could have no authority, as such, over lands in this state. No rule of law is better settled, than that the authority of an administrator is strictly confined to the jurisdiction.

But in the particular case, if the deeds attempted to be proved were properly in evidence, and the identity of the parties shown, the title would be in the administrator himself, instead of his intestate. In such a case it becomes a grave question, whether the grantor is not estopped to deny, that whatever title he possessed did pass. I should, for one, be inclined to believe such must be the effect of his deed. It has often been held, that the owner of land, who stands by and aids in the execution of a deed of such land, by a stranger, and himself becomes a witness of the conveyance, is thereby estopped to deny, that the title passes; a fortiori, if he give a deed of the land himself, although as administrator of some one possessing no title, and of whose estate he has no legal administration.

IV. But the jury are told, that if they do not find the David Baldwins to be the same persons, then they may presume a deed to Kendall from the circumstances in the case, if they believe such to have been the fact. We think this part of the charge was erroneous. From what has been said above it is evident, such a deed will not avail the plaintiff, until he shows a legal conveyance from Kendall. But we do not think there is, in the present case, any legal ground to presume a deed. It is done, not to quiet a possession, but to extend title, when no possession existed. Possession, as has been always held, is the indispensable basis, upon which all such presumptions must rest. The books are full of cases to this effect Appleton v. Edson, 8 Vt. 239, is a full authority to this point. There are many cases in the Vermont Reports to the same extent. A case in this county at the last term went upon the same ground. Williams v. Bass, 22 Vt. 352.

The fact, that Luke Rice and his grantors had deeds on record of the right of Grimes, and were recognized as the proprietors by the other proprietors, is not sufficient. Such cases, in the northern counties in the state, occur every term of their county courts, almost ; and if this rule of presuming deeds were to obtain, when an ancient deed could not be found, it would change the title of immense tracts of land, which are now esteemed as fully settled in another direction, perhaps. It would be impossible to make any such presumption, except in favor of actual possession; and that would not be necessary, except in cases where the statute of limitations does not apply, as the title would have become quieted by the statute of limitations.

V. We think the acquiescence offered to be shown, or which the testimony tended to show, in regard to the divisional line between the Luke Rice pitch and the minister’s right, must be regarded as sufficient to establish that, as the true line. We must take it for granted, that the true original line was the one, which the jury have established by their verdict. But the testimony tended to show, that Luke Rice, and those who derived the title from him, down to the plaintiff, as late as 1840, while in possession, pointed out and claimed the line attempted to be established by the defendant, as the true division line between the Luke Rice pitch and the minister’s right. Luke Rice went into possession in 1792. Since that time, in 1796, the remainder of the town was surveyed, and the minister’s right laid down, as adjoining the Luke Rice pitch, and we may presume, on the faith of this new line, claimed by Rice, being the true line of his pitch. Such a state of facts would operate an estoppel upon the proprietors of the plaintiff’s lot. And the mere acquiescence in a line as a dividing line, between adjoining proprietors, for fifteen years, although hut one of the owners, and perhaps neither, is in actual possession, is, we think, sufficient to establish that line, as the true line of division, if known and claimed by both proprietors,— which would very naturally be the case, when one of the owners was in actual possession. This is the only acquiescence-there ever is in the actual division of towns by survey only, when no actual possession exists, and that has always been held sufficient to make the division binding upon all the proprietors. If so, we see no reason, why a similar acquiescence should not bind adjoining proprietors.

VI. In regard to the depositions, we have no doubt, they contain some testimony of the admissions of the plaintiff, which may be used by the defendants; but it does not appear, that this particular question was brought to the notice of the court below. It seems then to have been claimed, that the declarations of Rice were evidence; and the ruling of the court seems to have gone upon this point, probably.

Judgment reversed and case remanded.