Doe ex dem. O'Bannon v. Roe

24 Ga. 489

• Court: Supreme Court of Georgia
• Decided: January 15, 1858
• Status: Published

Opinion

McDonald, J.

By the Court. delivering the opinion.

[1.] The first assignment of error is on the decision of the Court rejecting the power of attorney executed by O’Bannou, in Texas, to James R. Butts, to convey the tract ofland sued for. The land lies in this State. The power of attorney was attested by J. S. Thomason, and P. H. Spiller, a Justice of the Peace, of Montgomery county, Texas, and acknowledged before Charles B. Stewart, of th^same county and State.

Appleton Gay, as Clerk of the County Court of the same county and State, certified to the official character of Spiller and Stewart respectively. But for our own legislation, the power of attorney in this case would, perhaps, be sufficiently proven. The official attestation alone of a Justice of the Peace or Notary Public of another, or a foreign State, without an affidavit, it seems to us, was not intended by our legislature, to be a sufficient authentication of a conveyance of title to land, or of a power of attorney under which a conveyance was made, to give it full force and effect. The act of 17S5, prescribes the manner in which letters of attorney or other powers in writing executed [in either of the United States shall be authenticated to be used as evidence in one of the Courts in this State. There must be proof of execution by one or more of the witnesses thereunto, by affidavit, or solemn affirmation in writing, before any Governor, Chief Justice, Mayor, or other Justice, and certified and transmitted under the common or public seal of the State, Court, city or place where the instrument is executed. The affidavit or affirmation must express the addition of the person making the affidavit or affirmation, and the particular place of his abode. Cobb, 165. This mode of authentication must be followed, when the subscribing witness is not examined in Court, or by interrogatories, when the opposite party will have the power of cross examination.

[2.] The certificate of Robert D. Johnson, the Georgia commissioner, as to the official character of the notary public iu Texas, was inadmissible. He has no authority to make such certificates. A functionary of Georgia has no power to ■certify to the official character of a person who holds his appointment under another State.

[3.] The Court committed no error in admitting the deed from O’Ban non to Jarrett. It was a deed with warranty, and the only evidence before the jury was the grant in support of the demise from O’Ban non, and if O’Bannon were to recover under his demise, he would be immediately liable to an action for breach of warranty. This Court has alreadjr decided, that to prevent this circuity of action, he must be held to be estopped by his deed.

Judgment affirmed.