LOREE v. ABNER et al., 57 F. 159

BARR, District Judge, (after stating the facts.) The errors assigned are that the court should not have allowed the certified copy of the deed from Samuel Young to Charles Vancouver to be read to the jury, and that it erred in instructing the jury to find for the defendants. If the certified copy of the deed from Young to Vancouver was competent evidence, the instruction of the court to find for the defendants was correct, as that conveyance proved the title was not in Samuel Young at the date of the deed to W. Gitt, through whom plaintiff claimed.

Whether this certified copy was competent evidence depends upon the question of whether the original deed had been legally executed and acknowledged, so as to authorize its record in the Bourbon county court under the laws of Virginia. This land lay in Bourbon county, and the county court of that county had authority to order it to record if it had been executed and acknowledged according to the statutes of Virginia. The Virginia statute of October, 1748, prescribed the mode of conveying land where the interest was a life estate or more than a life interest.

The statute was similar to the one enacted October, 1710. See 3 Hen. St. p. 517.

By these statutes, nonresidents of the colony of Virginia were required to have their deeds recorded in the records of the general court, or the county court of the county where the land, or part of it, lay, within two years after the sealing and delivery thereof; and it was provided, as to these deeds, they should not— “Be admitted to record in the general court, or in any comity court, unless the same be acknowledged in such court by the grantor or grantors thereof in person, or by some or one of them, to be his, her, or their proper act and deed, or else that proof thereof be made in open court, by the oath of three witnesses at the least.” 5 Hen.

St. p. 409. These statutes which required nonresidents of the colony to acknowledge their deeds in person before the general court or the county court of the county where the land lay, or else prove their execution in one of said courts by three witnesses, were found to be inconvenient and difficult, and in October, 1776, the then commonwealth of Virginia changed this by statute.

This statute, after reciting the difficulty and inconvenience of requiring nonresidents of the state to acknowledge deeds in person, or prove them by witnesses in the general court or the county court of the state, provided that such deeds should be acknowledged by the party or parties making same, or should be proven by three witnesses— “Before rlie mayor or other chief magistrate of the city, town, or corporation wherein or near to which he, she, or they shall reside; and such acknowledgment or proof, certified by the mayor or other chief magistrate, under the common seal of said city, town, or corporation, annexed to the deed, shall be admitted to record in the general court or the county court where the lands or other estate lie, and shall be effectual for passing- the estate therein mentioned, as if the conveyance had been acknowledged or proven in such court; or -when the parties making such deeds shall reside in any of the states of America, and there shall happen to be no city or town corporate within tli«s county wherein they _ shall dwell, a certificate, under the hands and seals of two justices or magistrales of the county, that such proof or acknowledgment hath been made before them, together with a certificate from the governor, under the seal of the state, or from the clerk of the county court, under the common seal of the county, that the persons certifying such proof or acknowledgment are justices or magistrales within tile same, shall authorize the recording of such deeds, and make them effectual as aforesaid.” 9 Hen.

St. p. 207.

In October, 1785, another statute was passed by Virginia, regulating conveyances, in which it was enacted: “That no estate of inheritance or freehold, or for a term of more than five years, in lands or tenements, shall be conveyed from one to another unless the conveyance be declared by writing, sealed and delivered, nor shall such conveyance be good against a purchaser, for valuable consideration, not having notice thereof, or any creditor, unless the same writing be acknowledged by tin; party or parties who shall have sealed and delivered' it, or be proved by three witnesses to be his, her, or their act, before the general court or before the court of that county, city, or corporation in which the- land conveyed, or some part thereof, lietli, or in the manner hereinafter directed.” The manner thereinafter directed was this, viz.: “If the party who shall sign and seal any such writing reside not in Virginia, tlie acknowledgment by such party, or the proof by the number of witnesses requisite, of the sealing and delivering of the writing-, before any court of law, or the mayor or other chief magistrate of any oily, town, or corporation of the county in which tlie party shall dwell, certified by such court or mayor or chief magistrate, in tlie manner such acts are usually authenticated by them, and offered to the proper court to be recorded within eighteen months after tlie sealing and delivering, shall be as effectual as if it had been in the last-mentioned court.” 12 Hen.

St. p. 154. This act, by its terms, did not take effect until January 1, 1787, so that the acknowledgment before Judges Fleeson and Shippen was under the act of 1776, and the acknowledgment before Judges Gill and Pollard was under the act of 1785. The latter act repealed the formersso far as it related to conveyances of real estate. Hynes v. Campbell, 6 T. B. Mon. 286.

This deed was not offered before the county court of Bourbon county for record within (he required two years, and hence the first acknowledgment need not be considered, as we assume that the county court of Bourbon did not act judicially in admitting this deed to record. The questions to be determined in this view are, did Judges Gill, and Pollard constitute a court of law, within the meaning of the act of 1785, and is the certificate of Prothonot-ary Smith in the form and manner such acts are usually authenticated?

This certificate of Jonathan Bayard Smith, prothonotary of the court of 'common pleas for the county of Philadelphia, is sufficient as to the fact that Judges Gill and Pollard were justices of said court, and that all acts done by them as justices were entitled to full credit; and this certificate, being under seal of Smith as prothonofary, must, we think, raise the presumption that the authentication is in the usual manner of such authentication. Ewing’s Heirs v. Sawary, 3 Bibb, 237.

But he did not certify that these two justices' constituted this court of common pleas, or that they would be a quorum to hold such a court. We do not think it necessary that these justices should have taken this acknowledgment in open court, or as a court at all, but it is sufficient that they should have constituted a court of law.

It cannot be assumed that Virginia intended the courts of the several states of the Confederation who might take acknowledgments of deeds to lands in Virginia, or hear proof thereof, would enter such proceedings in the records of these courts, and have them authenticated as judgments or other like proceedings would have been authenticated. Bank v. Portman, 9 Dana, 112. These acknowledgments were ministerial acts, rather than judicial ones, and, being done under the statute of another state, could not properly be entered upon the records of the common pleas court of Philadelphia.

In view of the provisions of the act of 1776 which authorized, in certain cases, these acknowledgments, or the proof thereof, to be taken before two justices or magistrates of the county, and the provision of this act (1785) which authorized the mayor and other like officers to take such acknowledgments and proof, we conclude “any court of law” in this act means any person or persons who at the time constituted a court of law in the state where the grantor resided.

This was intended to designate the person or persons who constituted a court of law, and authorize him or them to take such acknowledgments or proof, but not to require a court of law, as a court, to take such acknowledgments and proof. As there is no evidence offered by the defendants other than the copy of this deed and the certificates thereon, the trial court must have taken judicial notice of the laws of Pennsylvania, and decided those laws made this court of common pleas a court of law, and constituted two justices a court.

The states of Virginia and Pennsylvania were then part of the United States of the Confederation. Our present Union was not perfected until July 21, 1788, by the ratification of tfie requisite nine states. Pennsylvania was one of the nine, having ratified the constitution December 12, 1787, but Virginia did not ratify it until July 25, 1788. Although this government and the courts thereunder were first established under the present constitution, which was ratified and became effectual in July, 1788, we think the court was correct in taking judicial knowledge of the laws of Pennsylvania in May, 1788.

The federal courts take judicial knowledge of the laws of the several states of the Union, (Church v. Hubbart, 2 Cranch, 187; Hanley v. Donoghue, 116 U. S. 1, 6 Sup. Ct. Rep. 242,) and have taken judicial notice of the laws of Mexico in force in territory acquired afterwards by tlie republic of Texas, and then by tbe United States, (U. S. v. Perot, 98 U. S. 430,) and also of the laws of California éxisting before that territory was acquired by the United States, (Fremont v. U.

S., 17 How. 557.) We find that there was a court styled the “County Court of Common Pleas” established by the colony of Pennsylvania in and for the county of Philadelphia as early as May 22, 1722, and that it was given common-law jurisdiction, but that law required three or more of the justices to constitute the court. See 1 Laws Pa. ,1810, p. 142. There was no change in the number of justices necessary to constitute this court of common pleas until after the adoption of tbe constitution of 1790 by Pennsylvania.

That constitution provided for the appointment of not fewer than three, nor more than four, justices, including a presiding justice, who should compose courts of common pleas, and in some instances two of said justices were allowed to constitute a court; but, as this was after the acknowledgment of this deed by Young, it cannot aid hjs acknowledgment. It is likely the mistake in thus taking the acknowl-. edgnient before two justices was because the parties were not aware of the repeal of the act of 1776 by the act of 1785.

As this deed had not been acknowledged by Samuel Young before those authorized by the act of 1785 to receive such acknowledgment, it was not legally recordable by the county court of Bourbon; hence a copy thereof was incompetent evidence, and it was error to allow it to be read. For this error the case must he reversed, and a new trial granted, and proceedings had in conformity with this opinion; and it is so ordered