Jackson ex dem. Merritt v. Gumaer

2 Cow. 552

Opinion

Curia, per Savage, Ch. Justice.

The first question raised on the trial was as to the sufficiency of the certificate of acknowledgment on the mortgage executed by De Witt Eose. The Judge certifies that the grantor was known to him, but does not add that he knew him to be “ the person described in and who executed the deed.” Were we called on to establish a form for such a certificate, I should certainly be for inserting that the grantor was known to the Judge, or other officer takiqg the acknowledgment, to be the person described in the deed; but the legislature could not expect the officer to know that the grantor described in the deed actually executed it, otherwise than by his acknowledgment, or proof by a witness. The form used in this case has been in very general use, and the practice in this respect, may perhaps amount to a construction of the act.

(y) At all events, I am unwilling to say that titles which depend for proof upon certificates thus drawn, are to be put in jeopardy by the allowance of such a technical objection; for I cannot but consider the acknowledging officer drawing such a certificate as possessing all the knowledge requited by the The Judge, in my opinion, decided correctly, that the mortgage should be received in evidence.

The objection to-the power of the commissioner to administer the oath and take the affidavit of the regularity of the proceedings, as well as to the form of his certificate, are both untenable.

As to the admissibility of the testimony offered to prove the lunacy of De Witt Rose, when he executed the mortgage, it is clear that the acts of a lunatic before office found are not void but voidable, and .it is enough that the defendant does not stand in such a relation to the lunatic as entitles him to avail himself of the testimony.(z)

tyjie evidence of adverse possession was also properly rejected. If such testimony would be proper as between individuals deriving title from the same person, (which it is not necessary to decide,) yet it was not admissible as against the people of the state. The reason which makes a deed void, because executed by a grantor out of possession, is, “ for avoiding of maintenance, suppression of right, and stirring up of suits: and, therefore, nothing in action, entry, or re-éntry, can be granted over; for so, under color thereof, pretended titles might be granted to great men, whereby . right might be trodden down, and the weak oppressed, which the common law forbiddeth, as men to grant before they be in possession.” (Co. Litt. 214, a.) Our statute against champerty and maintenance is in affirmance of the common law, and superadds a forfeiture. The reason of the common law and of the statute cannot be applicable to the state, and therefore the rule fails. That such is the constmction put upon a similar statute in the state of Connecticut, appears from the case of Allen v. Hoyt,(a) and Barney v. Cutler.(b)

On all the points raised, therefore, I am of opinion that the plaintiff is entitled to recover.(c)

New trial denied.

M’Kean v. De Lancy's Lessee, 5 Cranch, 32.

Beverly’s case, 4 Rep. 123.

Kirby's rep. 221.

1 Root’s Rep. 489, 491, por Cur.

In Barney v. Cutler & Moulthrop, (1 Root’s Rep. 491,) the Superier Court of Connecticut, say, that “ Guardians who give deeds of the lands of their wards, pursuant to a decree of a Court of Chancery; execulora, &c., who give deeds of the lands of the deceased by order of the Assembly or the Court of Probate; and collectors who sell lands for payment of taxes by order of law ; and the treasurer who gives deeds of lands belonging to the state—cannot be said to be seised or disseised of the lands they undertake to convoy. Those who do not act in their own right, or by virtue of any interest they have, but wholly by public authority, cannot be considered as being in any sense within the statute. Besides, most of them are under injunctions to convey in a limited time, which would render the nerformanco of their duty impracticable, if it was necessary, in such cases, that possession should be recovered before a sale would be valid.”