Morse v. Hewett

• Decision Date: 05 January 1874
• Citation: 28 Mich. 481
• Court: Michigan Supreme Court
• Parties: Benjamin D. Morse v. Lauren K. Hewett

28 Mich. 481

Benjamin D. Morse v. Lauren K. Hewett

Supreme Court of Michigan

January 5, 1874

Submitted on Briefs November 5, 1873

Error to Livingston Circuit.

Ejectment. Defendant brings error. Affirmed.

Judgment affirmed, with costs.

D Shields and O. Hawkins, for plaintiff in error.

H. H Harmon, for defendant in error.

Graves, Ch. J. Campbell and Cooley, JJ., concurred. Christiancy, J., did not sit in this case.

OPINION

Graves, Ch. J.

Hewett brought ejectment against Morse in 1871 for the northwest quarter of section twenty-one, in township four north, of range three east, being in the township of Conway, in Livingston county. The court heard the case without a jury, and gave judgment for Hewett on a special finding. A bill of exceptions was settled, and Morse has brought the cause here for review on the finding and the exceptions as settled. The parties dispensed with an oral argument, and submitted the cause on briefs.

It appears by the record that on the 16th of August, 1837, the land in dispute was patented by the United States to one George Hewlett described in the patents as "of the city of New York." Upon this there was no controversy, and Hewett, the plaintiff in ejectment, sought in the first place to deduce title to himself from Hewlett, the patentee; and to that end he offered in evidence the record of a power of attorney to convey the premises, purporting to have been given to William A. Clark, of Howell, in the county of Livingston, by George Hewlett and Mary Hewlett, his wife, "of New Rockaway, in the county of Queens, in the State of New York," on the 26th day of November, 1855. Along with the record of power, and offered with it, was the record of what purported to be a certificate of acknowledgment by Hewlett and his wife, taken in Queens county, New York, before a justice of the peace of the county, and bearing even date with the power; and also along with the record of the power, and likewise offered with it, was the record of what is claimed to have been a certificate of authentication of the due execution and acknowledgment of the power. The record of this latter instrument was as follows:

State of New York: County of Queens,--ss. I, John S. Snediker, clerk of the county of Queens, do hereby certify that Henry Pearsall, Esq., whose name is subscribed to the certificate of the proof of acknowledgment of the annexed instrument, and thereon written was, at the time of taking such proof of acknowledgment, a justice of the peace in and for said county, elected, sworn, and duly authorized to take the same, and further, that I am well acquainted with the hand-writing of such justice and verily believe that the signature to the certificate of proof or acknowledgment is genuine, and also that the annexed instrument is executed according to the laws of this State.

"In testimony whereof I have hereunto set my hand and affixed the seal of the said county, the 30th day of November, 1855.

[L. S.] John S. Snediker, Clerk."

Morse objected to the admission of the record of the power and certificates on three grounds. First, that it was incumbent on the plaintiff to first identify the patentee with the grantor of the power; second, that the record of such an instrument was not receivable in evidence; and third, that the certificate "of the clerk," as to the execution of the instrument, was not sufficient to authorize it to be recorded. The objections were overruled, the evidence admitted, and the defendant excepted.

The defendant in error contends with much reason that the third ground of objection was too indefinite, but the views we take of the question which the objecting counsel seems to have contemplated incline us to consider it.

Were these objections well founded? The second is here wholly unimportant, and is not insisted on. If either of the other two is maintainable, then it is useless. And on the other hand, if both the first and third are unsound, the second is plainly unsustainable.

It was not a valid objection to the reception of the record of the power in evidence that special proof was not first given to show that the actual giver of the power was the same person to whom the patent issued. The objection was aimed at the order of proof, and it assumed that previous to the introduction of the power it was incumbent on the plaintiff to furnish evidence to show that the maker of it was the patentee. Whatever question of identify there may have been, it was certainly within the discretion of the court to allow the facts relating to it to be introduced in any order not prejudicial to the defendant, and the record of the power assuredly was one of these facts, and we are unable to discover how its admission before special proof on the point of identity, could operate injuriously against the defendant. The case raises no question upon the effect due to the evidence relating to or bearing on this subject.

The next ground of objection is that the certificate of authentication by the clerk was not in compliance with our recording law, and hence did not authorize the registry of the power. First, it is said that the certificate, as shown by the register's entry, does not appear to have been made by a clerk of a court of record; and second, that it does not appear to have certified that the power was acknowledged according to the laws of New York.--Comp. L., § 4212; Sess. L., 1861, p. 17, § 3.

We agree with the Supreme Court of the United States that, "it is the policy of the law to uphold certificates when substance is found, and not to suffer conveyances or the proof of them to be defeated by technical or unsubstantial objections," and that the court will, if possible, sustain such instruments, when to do otherwise would lead to the loss of estates.--Carpenter v. Dexter, 75 U.S. 513, 8 Wall. 513. We have heretofore acted on this principle, and are fully convinced of its justice and utility.--Shotwell v. Harrison, 22 Mich. 410; Harrington v. Fish, 10 Mich. 415; Galpin v. Abbott , 6 Mich. 17; Ives v. Kimball, 1 Mich. 308; Brown v. McCormick; supra, p. 215. In Anderson v. Baughman, 7 Mich. 69, a similar view was expressed. The question there arose upon the description in a mortgage, and the court say "that deeds and other written instruments should be so construed as to render them valid and effectual rather than void." Our Legislature has favored the same policy, as is proved by the passage of several curative and saving acts.

Now as matter of fact, the clerk of Queens county is made by the constitution of New York the clerk of the Supreme Court. And as matter of fact, the Supreme Court is a court of record. In Shotwell v. Harrison, we took judicial notice that the Supreme Court of Massachusetts was a court of record, and hence, if the certificate in question had contained an express statement by Mr. Snediker who made it, that he was clerk of the Supreme Court, the point would have been ruled by our decision in that case, and we must have taken judicial cognizance that he was clerk of a court of record. What is lacking here, is a statement by him in his certificate of his constitutional status as clerk of the Supreme Court.

As the constitution fixes his condition as clerk, and in so doing makes him the recording officer and a component of the court, I think we may as well, in order to uphold a conveyance, take notice of this constitutional arrangement, an arrangement which relates to the composition of the court that it may possess the character of a court of record, as we may take notice that a named tribunal of another State is made by the laws of that State a court of record. If in connection with our recording laws we may so far take notice of the composition of the court as to ascertain that it has the dignity of a court of record, we may so far take notice of its composition as to see that by a fundamental requirement the county clerk belongs to it as its recording officer. Our law (Comp. L., § 4212), contemplates the performance of an official act in another State, and by an officer of that State, as a step in the authentication of a conveyance for record here, and it has not explicitly prescribed that he shall set forth in his certificate his own official character.

As the court said in Van Ness v. Bank of the United States, 13 Pet. 17-21, "it is no doubt usual and proper to do so, because the statement in the certificate is prima facie evidence of the fact when the instrument has been received and recorded by the proper authority." But when the recorded certificate does not contain such a statement and yet upon its face purports to have been made by one endowed by the proper character by the constitution of the State to whose laws and regulations our own statute refers, it appears to me that the "soundest principles of justice and policy" demand that we should make "every reasonable intendment" to support the conveyance; and should therefore presume, in the absence of any thing leading to another view, that the author of the certificate acted rightly in making it, and in that official character he held which the very nature of the act and the occasion for it explicitly called upon him to act in. A refusal to do this in view of our regulations for authenticating deeds made in sister States; and when our established law (Comp. L., § 5935) has expressly made the printed copies of the acts and resolves of other States prima facie evidence of such laws and resolves in our courts, would, it is conceived, give countenance to unreasonable distinctions and unprofitable refinements.

The point that the certificate did not show that the power was acknowledged according to the laws of New York, is not deemed to be supported by the record. The clerk had the power and...