Mi*. Chief Justice Walker
delivered the opinion of the Court:
After a careful inspection of the original deed read in evidence in this case, we see that the name in the body of the deed is Fulton. It is true, the scrivener who drafted it, formed the" final letter in the name as most persons form the last letter of the alphabet; but an examination of the deed shows that in other words terminating in the letter “ n,” that letter is formed in the same way. Were it not for this fact, it might leave the mind in some doubt as to the name; but seeing that the same letter when final in other words was formed, in the same way, all doubt is removed. The court below, therefore, committed no error in permitting this deed to be read in evidence.
It is insisted that the deec^ from Stephens, the patentee, to Fulton, was not sufficiently authenticated to entitle it to be read in evidence. There was an attempt to acknowledge this deed before the County Court of Jefferson county, in the State of Virginia, on the 26th day of April, 1829, to which the clerk of that court certifies on the 28 th day of September, in the same year. The presiding justice of that court also certifies that the clerk was duly elected, and that his attestation is in form. Moore, a clerk of the same court, on the 11th day of July, 1853, certifies to the official character of the former clerk, on the 28th of September, 1819; and the presiding justice, on the same day, certifies to Moore’s official character. Then follows a certificate of conformity to the laws of Virginia, in which Moore states that the certificates of acknowledgment of April 26, 1819, and of the 24th of April, 1820, are in conformity to the laws of Virginia, as they existed on the 1st day of December, 1818, the date of the deed, and on the 20th day pf April, 1819, and on the 24th day of April, 1820, the dates of the acknowledgment.
• This certificate of conformity is not under the seal of the court; but a scroll is attached, which the clerk states is used instead of .the seal of the court, which had been lost. The statute declares the seal to the certificate to be an authentication sufficient to entitle the certificate to be received. Having adopted this mode of authentication, we must conclude that it was intended the seal of the court must be attached, and that a scroll or private seal of the clerk could not be substituted, íf a scroll might be adopted in place of the seal of the court, there would be no security against fraudulent certificates of that ' character. There is also annexed to the deed this certificate:
“State oe Kentucky, “ Boone County,
“ This day personally appeared before the undersigned, clerk of the County Court of said Boone county, which court is a court of record under the laws of Kentucky, having a seal, Lee M. Fulton and James F. King, two competent and credible witnesses to me personally lcno^vn, who being by me severally sworn according to law, did each depose and say that they personally knew the handwriting of John Stephens, the grantor, and James Fulton, one of the subscribing witnesses to the annexed deed, and that they well knew the signatures of each of them, having frequently seen them and each of them write, and from having seen writings recognized by them as in their handwriting; and that they each believe the names of such grantor and subscribing witness to the deed aforesaid were thereto subscribed by the said John Stephens, the grantor, and the said James F. King, the subscribing witness, respectively, and that the said John Stephens, the grantor, and the said James Fulton and Hubert T. Jack, two of the subscribing witnesses to such deed, are dead, and that the other subscribing witness, John Carlisle, when last heard from, went to Kanawha, in the State of Virginia, which was in the year 1822, which to me affords sufficient evidence of the due execution of said deed.
“ In testimony whereof, I have hereunto set my hand and affixed the seal of said County Court at my office in [l. s.] Burlington, in said County of Boone, in the State of Kentucky, April 21st, 1864.
“LEWIS W. WEBB, Cleric,
(Stamp attached, 5 cents.) “By Edw’d Webb, D. CP
The objection urged against the form of this certificate is, that the clerk refers to James F. King as a subscribing witness when he was not such a witness.. It, however, appears that King was one of the witnesses by whom the handwriting of the grantor and subscribing witnesses was proved. This was manifestly a clerical mistake, and cannot vitiate the certificate if in other respects sufficient.
It is, however, insisted that the witnesses fail to state that Carlisle was dead at the time of making the proof. They state that the other two subscribing witnesses were dead, and that Carlisle, in 1822, had gone to Kanawha, which was the last they had heard of him. Under the twentieth section of our conveyance law, which authorizes proof to be made of the execution of deeds of conveyance, it is declared that, when the person executing such deed, and the subscribing witnesses, are dead or cannot be had, the officer may take proof of the handwriting of such deceased party and subscribing witness or witnesses ; and a competent and credible witness, who shall state, on oath or affirmation, that he personally knew the person whose handwriting he is called to prove, and he well knew his signature, stating his means of knowledge, and that he believes the name of such person subscribed to such deed, as a party or a witness, was thereto subscribed by such person, shall be sufficient.- These witnesses prove the signatures, and they also state a sufficient means of knowing their handwriting.
The absence of Carlisle, the other attesting witness, seemed to be sufficiently accounted for by the proof. The last they had known or heard of him was more than forty years previous to that time. We may safely infer that after a lapse of forty years without friends and acquaintances hearing from a witness, he cannot be had. This seems to have been the view of the officer taking the proof; and we think he was warranted in the conclusion at which he arrived. This we think was proper proof of the execution of the deed, and the 'court committed no error in admitting it in evidence.
Appellee introduced in evidence the deposition of C. H. H. Brown, who testified that he knew Robert Fulton from 1811 till the time of his death, which was between 1836 and 1840; that he knew all of the family of Robert Fulton, and there survived him only appellee and his sister, Mary Elizabeth, who was married at the time of his death ; that his only surviving heirs are appellee and his sister, Mary Elizabeth.
Robert H. Humphries testified that he had known plaintiff from boyhood, and knew his father Robert Fulton from his boyhood until his death, which was a year or two prior to 1842; that he knew the wife of Robert Fulton, who died before he did;' that he also knew plaintiff and his sister, Mary Elizabeth; that they were the only children who survived their father; that he knew that Mary Elizabeth was married.
While the evidence proves that appellee and his sister are the children, and are heirs of Robert Fulton, it by no meajis proves that they are the only heirs.
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Mi*. Chief Justice Walker
delivered the opinion of the Court:
After a careful inspection of the original deed read in evidence in this case, we see that the name in the body of the deed is Fulton. It is true, the scrivener who drafted it, formed the" final letter in the name as most persons form the last letter of the alphabet; but an examination of the deed shows that in other words terminating in the letter “ n,” that letter is formed in the same way. Were it not for this fact, it might leave the mind in some doubt as to the name; but seeing that the same letter when final in other words was formed, in the same way, all doubt is removed. The court below, therefore, committed no error in permitting this deed to be read in evidence.
It is insisted that the deec^ from Stephens, the patentee, to Fulton, was not sufficiently authenticated to entitle it to be read in evidence. There was an attempt to acknowledge this deed before the County Court of Jefferson county, in the State of Virginia, on the 26th day of April, 1829, to which the clerk of that court certifies on the 28 th day of September, in the same year. The presiding justice of that court also certifies that the clerk was duly elected, and that his attestation is in form. Moore, a clerk of the same court, on the 11th day of July, 1853, certifies to the official character of the former clerk, on the 28th of September, 1819; and the presiding justice, on the same day, certifies to Moore’s official character. Then follows a certificate of conformity to the laws of Virginia, in which Moore states that the certificates of acknowledgment of April 26, 1819, and of the 24th of April, 1820, are in conformity to the laws of Virginia, as they existed on the 1st day of December, 1818, the date of the deed, and on the 20th day pf April, 1819, and on the 24th day of April, 1820, the dates of the acknowledgment.
• This certificate of conformity is not under the seal of the court; but a scroll is attached, which the clerk states is used instead of .the seal of the court, which had been lost. The statute declares the seal to the certificate to be an authentication sufficient to entitle the certificate to be received. Having adopted this mode of authentication, we must conclude that it was intended the seal of the court must be attached, and that a scroll or private seal of the clerk could not be substituted, íf a scroll might be adopted in place of the seal of the court, there would be no security against fraudulent certificates of that ' character. There is also annexed to the deed this certificate:
“State oe Kentucky, “ Boone County,
“ This day personally appeared before the undersigned, clerk of the County Court of said Boone county, which court is a court of record under the laws of Kentucky, having a seal, Lee M. Fulton and James F. King, two competent and credible witnesses to me personally lcno^vn, who being by me severally sworn according to law, did each depose and say that they personally knew the handwriting of John Stephens, the grantor, and James Fulton, one of the subscribing witnesses to the annexed deed, and that they well knew the signatures of each of them, having frequently seen them and each of them write, and from having seen writings recognized by them as in their handwriting; and that they each believe the names of such grantor and subscribing witness to the deed aforesaid were thereto subscribed by the said John Stephens, the grantor, and the said James F. King, the subscribing witness, respectively, and that the said John Stephens, the grantor, and the said James Fulton and Hubert T. Jack, two of the subscribing witnesses to such deed, are dead, and that the other subscribing witness, John Carlisle, when last heard from, went to Kanawha, in the State of Virginia, which was in the year 1822, which to me affords sufficient evidence of the due execution of said deed.
“ In testimony whereof, I have hereunto set my hand and affixed the seal of said County Court at my office in [l. s.] Burlington, in said County of Boone, in the State of Kentucky, April 21st, 1864.
“LEWIS W. WEBB, Cleric,
(Stamp attached, 5 cents.) “By Edw’d Webb, D. CP
The objection urged against the form of this certificate is, that the clerk refers to James F. King as a subscribing witness when he was not such a witness.. It, however, appears that King was one of the witnesses by whom the handwriting of the grantor and subscribing witnesses was proved. This was manifestly a clerical mistake, and cannot vitiate the certificate if in other respects sufficient.
It is, however, insisted that the witnesses fail to state that Carlisle was dead at the time of making the proof. They state that the other two subscribing witnesses were dead, and that Carlisle, in 1822, had gone to Kanawha, which was the last they had heard of him. Under the twentieth section of our conveyance law, which authorizes proof to be made of the execution of deeds of conveyance, it is declared that, when the person executing such deed, and the subscribing witnesses, are dead or cannot be had, the officer may take proof of the handwriting of such deceased party and subscribing witness or witnesses ; and a competent and credible witness, who shall state, on oath or affirmation, that he personally knew the person whose handwriting he is called to prove, and he well knew his signature, stating his means of knowledge, and that he believes the name of such person subscribed to such deed, as a party or a witness, was thereto subscribed by such person, shall be sufficient.- These witnesses prove the signatures, and they also state a sufficient means of knowing their handwriting.
The absence of Carlisle, the other attesting witness, seemed to be sufficiently accounted for by the proof. The last they had known or heard of him was more than forty years previous to that time. We may safely infer that after a lapse of forty years without friends and acquaintances hearing from a witness, he cannot be had. This seems to have been the view of the officer taking the proof; and we think he was warranted in the conclusion at which he arrived. This we think was proper proof of the execution of the deed, and the 'court committed no error in admitting it in evidence.
Appellee introduced in evidence the deposition of C. H. H. Brown, who testified that he knew Robert Fulton from 1811 till the time of his death, which was between 1836 and 1840; that he knew all of the family of Robert Fulton, and there survived him only appellee and his sister, Mary Elizabeth, who was married at the time of his death ; that his only surviving heirs are appellee and his sister, Mary Elizabeth.
Robert H. Humphries testified that he had known plaintiff from boyhood, and knew his father Robert Fulton from his boyhood until his death, which was a year or two prior to 1842; that he knew the wife of Robert Fulton, who died before he did;' that he also knew plaintiff and his sister, Mary Elizabeth; that they were the only children who survived their father; that he knew that Mary Elizabeth was married.
While the evidence proves that appellee and his sister are the children, and are heirs of Robert Fulton, it by no meajis proves that they are the only heirs. They are proved to be his only children who survived him, but, for aught that appears, he may have had children who died before he did, leaving children who were also heirs with his surviving children. Because the witnesses have said that these persons are the only surviving heirs, it does not follow that such is the law. They should state who are his children, and whether he left grandchildren surviving him, and leave the law to determine who are the heirs. Had the proof shown that these were the only children he ever had, or that other children had died leaving no children, or husbands, or wives, then the law would declare them to be the only heirs. The proof fails to show this, and is insufficient. It shows that he had other children, but fails to show that they died unmarried, or without lawful issue.
It is insisted, that the deed from John P. Brown, and Mary Elizabeth, his wife, is not shown to be from appellee’s sister to him. C. H. H. Brown testifies that appellee’s sister’s name was Mary Elizabeth Follow, as written by the clerk, but we suppose it should have been Fulton; and she was married, but he does not state to whom. But Humphrey states that she was married to Ply ton Brown. How we fail to see any discrepency in the name. The witness states that she was married to Ply ton Brown, and John P. Brown signs the deed, and is described in it as the husband of Mary Elizabeth, the sister of appellee. It may be reasonably inferred that John P. and Plyton Brown are one and the same person.
Appellant insists that the court erred in rejecting his tax deed as evidence on the trial. It was obtained under a sale of the land for-the road tax of the year 1836, the sale for the collection of which was made in 1837, by the county clerk. He failed to show that the prerequisites of the statute had been complied with so as to authorize the sale. The act of 1835, in regard to road tax, under which this sale was made, does not declare the deed to be prima facie proof of the regularity of the sale, or that the requisite steps had been taken to authorize it. Hor was the deed offered as color of title; and until the preliminary proof of a compliance with the statutory requirements had been made, the deed could not be read as evidence of title. The court below, therefore, committed no error in rejecting this deed as evidence.
But, for the reasons indicated, the judgment of the court below must be reversed, and the cause remanded.
Judgment reversed.