Doe ex dem. Truluck v. Roe

1 Ga. 3

• Court: Supreme Court of Georgia
• Decided: March 15, 1846
• Docket: No. 2
• Status: Published

Opinion

By the court

Warner, Judge.

The error assigned in this case is the rejection of the Deed mentioned in the Record, and awarding a nonsuit in the court below. The only question for the decision of this court is, whether the deed was properly executed, according to the provisions of the several Acts of the Legislature of the State of Georgia, to have admitted the same in evidence.

By the Act of 22d February, 1785, (Prince’s Dig. 162,) it is enacted, “ That all deeds of conveyances by way of bargain and sale, bona fide, of lands or tenements, and executed under hand and seal, in the presence of two or more witnesses, and a valuable consideration paid, that are. proved or acknowledged, before a Justice of the Peace, or before tbe Chief Justice, or one of the Associate Justices, and the said deed is registered by the clerk of the court in the county where such lands or tenements lie, in a book by him to be kept for that purpose, within twelve months from the date thereof, such deed of conveyance is declared to lie good,” &c.

By the 3d section of the Act of 26th December, 1827, (Prince’s Dig, 166,) it is enacted, “ Every deed of conveyance or mortgage of either real or personal property hereafter to be made, may, upon being executed in the presence of, and attested by a notary public, Judge of the Superior Court, Justice of the Inferior Court, or Justice of the Peace, and incases of real property by one other witness, be admitted to record, and made evidence in the different courts of law and equity in this State,” &c. The deed offered in evidence in the court below, is attested by two witnesses, and acknowledged in the presence of a Justice of the Peace, and recorded in the county of Cass, 21st June, 1839. The objection urged by the defendants in error was; it did not appear on the face of the deed, when and where the acknowledgment before the Justice of the Peace was made. The deed on its face purports to have been made in Decatur county, in this State, on the 29th January, 1833. And this court will presume the acknowledgment was made in the county where the deed purports to have been made ; and at the time it purports to bear date, in the absence of all proof to the contrary.

We shall not voluntarily impute malpractice to the officer before whom the acknowledgment was made, bypresuming it was taken at a time, and place, when, and where, he had no authority to take it.

It is presumed, till the contrary is proved, that every man obeys the mandates of the law, and performs all his official and social duties, —Greenleafs Evidence, 47 ; The Bank U. S. vs. Dandridge, 12 Wheaton’s Rep. 64; Hartwell vs. Root, 19 John’s Rep. 345.

We are therefore all of the opinion, the deed ought to have been admitted in evidence, and that the court below committed error in rejecting the same and awarding a nonsuit. Let the nonsuit be set aside and the case reinstated.