Donohoo's Lessee v. Brannon

• Decision Date: 31 October 1808
• Citation: 1 Tenn. 327
• Parties: DONOHOO'S LESSEE v. BRANNON ET ALS.
• Court: Tennessee Circuit Court

1 Tenn. 327

DONOHOO'S LESSEE

v.BRANNON ET ALS.

Superior Court of Law and Equity of Tennessee.

October, 1808.

The plaintiff, in deducing his title, produced a deed, on the back of which was a memorandum dated in the year 1793 in the following words: “this day came before me the bargainor, and acknowledged the execution of the within deed for the purposes expressed,” signed “John M'Nairy,” upon which the deed was registered in the proper county, and certified by the register.

Whiteside, for the defendant, objected to the reading of this deed in evidence, because the probate does not state the official capacity of the person taking the acknowledgment. and relied upon former decisions of the Court, particularly commitments by justice of the peace. If the mittimus does not state the official capacity of the justice a person will be discharged.

Overton, J.

Some years past an appeal was sent up from the County Court of Davidson; the transcript was headed “pleas, &c., before, &c.,” expressing the court, the clerk signed his name thus “a copy,

Andrew Ewing.”

The Court decided that this could not judicially prove that Andrew Ewing was clerk of Davidson county unless he had signed his name officially; upon suggestion of diminution a certiorari was allowed, and a correct record brought up. I am not disposed at this time to question the propriety of this decision, but it seems to me to border on nicety. In this case, however, the certificate of the clerk had not any date from which the Court could know that at the time of signing, Andrew Ewing was clerk of the court or not.

In the case of Coulter's Lessee v. Hodge, at Knoxville, a copy of an entry signed “A. B., E. T.” was received, though without date, and though the Court knew that A. B. had not been entry taker for a great length of time. The case of a mittimus by a justice of the peace does not apply.

The law seems to be, that this court may know officially all officers known to the laws of the State of whose appointment there is a record. Though we may know such officers, we are not bound to acquire this knowledge, nor in fact the law presume it as to inferior officers.

Though we may know the respective officers in the State whose duties are pointed out by the laws, yet we may not know them. Hence an officer ought to state the character in which he does an act. When this is done, the law will presume he possesses the character he assumes. It is not absolutely necessary that an officer should state his official capacity if in the body of the certificate facts are stated from which an incontrovertible presumption arises that the act was done in an official capacity, it seems to be sufficient. ^a1 In this case the law of the State enables us to know that a judge of the Superior Court, out of court, was authorized to receive the acknowledgment of deeds for lands or probate by witnesses, and that such deeds thus authenticated were to be registered.

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