Warner v. Hardy

Tuck, J., delivered the opinion of this court. Three objections were taken to the admissibility of the deed of 24th December 1850, all of which were properly ruled against the defendant below. A certified copy of an instrument required by law to be' recorded, proves itself as prima facie evidence of all circumstances necessary to give it validity. 6 H. & J., 234 , Craufurd vs. State. Ante, 78, Barry vs. Hoffman.

Upon the question of residence of the grantors, we do not perceive that there is any difference in principle between this and the case of Carroll vs. Tyler, 2 H. & G., 57, where it was decided that the acknowledgment of a receipt was prima facie evidence that the party resided in the county in which it was taken, and certified under the act of 1809, ch. 168, which requires such papers to be acknowledged in the county of the party’s residence. The justices of the peace certified that the persons acknowledging the deed, were known to them to be the parties named as and professing to be parties to the same. This, we think, was a sufficient compliance with the act of 1831, ch. 205. It shows that they were satisfied of the identity of the parties from their own knowledge; the law requires a substantial compliance.

This was decided in Hollingsworth vs. McDonald, 2 H. & J., 236 , in relation to an acknowledgment under the' act of 1715, ch. 47, where the form is prescribed. 7 G. & J., 260 , Young vs. State. The certificate of the clerks to this deed is sufficient under the act of 1766, ch. 14. The words^ “were at the time of so-doing,” relate as well to the acknowledgment by the parties, as to the signing of the certificate. In contemplation of law they are but one act.

The acknowledgment in 2 H. & J., 380 , referred to on the part of the appellant, is more specially drawn; but the certificates before us are in accordance with a form which has been in use for many years, and should not be questioned by this court. 1 Ev. Har., 22. We approve of the court’s refusal to admit the agreement offered in the second exception. It is not understood to have ⁵³⁸ been tendered for the purpose of showing title in the defendant, or in any other person.

For that object it was clearly inadmissible. But it is insisted that it ought to have been received, because it showed, with other evidence thereafter to have been offered, that the defendant occupied such a position in relation to the land in controversy, as entitled him to notice and demand before the commencement of the suit. This-position cannot be maintained. The identity of the land is-by no means apparent.

No person, looking at this agreement alone, can say that the lands are the same, and the defendant did not accompany his offer by a proposal to adduce evidence' of identity. It is said that there was prima facie evidence on this point; but this conclusion depended upon inferences which the court could not have been expected to draw from the evidence then in the cause, as preliminary to receiving the agreement. The circumstances that the lands mentioned in the agreement were in Howard county, and contained one hundred and ninety-six acres, more or less; that the declaration claims two hundred and three acres in the same county; and that the deed to the plaintiffs conveys one hundred and ninety acres in that county, without any other fact to show that the lands are the same, were not sufficient to' allow the reception of this paper to defeat the claim of the present plaintiffs, who are not the parties with whom the' agreement was made, but purchasers without notice of an equity in Shaffer, or in' any person claiming under him.Whatever ground of defence, for want of demand before suit, this- agreement might have- furnished as against Evan D. Hammond, in an- action for the same lands, it is very certain that his grantees, without notice, cannot be affected by any suck proof. It is true that a party may, generally,- offer hi& evidence in the order preferred by himself, (9 Gill & Johns., 476,) but the testimony, as proposed, must appear to be pertinent to the matter in controversy, or be accompanied by an offer to show its relevancy in the progress of the cause. 6 G. & J., 481 , Goodhand vs. Benton. 5 Md. Rep., 433 , Stewart vs. Spedden.

Moreover, there is no evidence or offer to prove' ⁵³⁹ Chat Shaffer, or any person claiming under him, had entered upon the premises under this agreement, and therefore the «ases relied upon do not apply. The ruling of the court in the third exception is not objectionable. The plaintiffs offered proof, that Hammond, under "whom they claimed, had held the lands by possession since 1811, by renting to a person, in consideration that the tenant would enclose them, and that part had been enclosed: the plaintiffs stating at the time, that they relied on title by patent and by possession for more than twenty years. The defendant then offered to prove, “that the lands had never