James Smith v. Nathaniel Townsend, 1 Dallam 569

HEMPHILL, Chief Justice. —The action in this case was instituted for the recovery of damages for alleged trespass on real property. During the progress of the trial an instrument was introduced purporting to be a copy of a public act of sale from one Jesse C. Tannehill to the plaintiff, which was objected to; and a bill of exceptions is filed in the record, containing all the points in controversy on which the action of this court is requested. The competency of the instrument as evidence is excepted to on the grounds: 1. That the instrument was not the original deed from Tannehill to plaintiff. 2.

If it were, the same was not sufficiently authenticated. Tannehill proved that he never signed the instrument referred to, but that he had conveyed the land therein described, by another deed signed by himself.

It was in proof that such instruments were made out as second originals, in conformity to the then custom of the country; that the second original was never signed by the grantor or grantee, but by the judge of the first instance, or other officer, with instrumental and assisting witnesses, and that the same, when thus executed, etc., was the only evidence of title which the grantee received from the grantor.

The instrument, to the introduction of which exception was taken, has been sent up to this court for inspection, and purports to be a copy of a public act of sale, executed on April 25, 1835, in the town of Mina, before Thomas J.-Gazley, judge of the first instance of the jurisdiction of Mina. It is certified to be a true copy of the original (with the addition of the plot), which remained in the office, under the charge of the said judge. The certificate was dated on the day of the execution of the original, and was signed by the said judge with two assisting witnesses.

In considering the first objection, we have to regret that the want of authorities in relation to the former laws of the country prevents us from attaining—on some of the points involved in this case—to conclusions which are altogether satisfactory. Guided, however, by the feeble and confused lights with which we are furnished, we proceed to decide this controversy, confining our opinion to the points which must necessarily be adjudicated.

No objection was taken to the act as not having been executed before a notary public, and any examination of the powers of a judge of the first instance to authenticate public instruments is therefore rendered unnecessary. It was treated as a notarial act and will be considered as such. Is, then, a copy of a notarial act admissible in evidence without the production of the original? And if so, does the mere production of the instrument cause full proof of its contents, without evidence as to the capacity or signature of the notary and assisting witnesses? In the case of the United States v.

Perchman, 7 Peters, 51, the claimant offered in evidence a copy, from the office of the keeper of the public archives, of the original grant on which the claim was founded; and it was decided, that on general principles of law, a copy given by a public officer, whose duty it is to keep the original, ought to be received in evidence.

The seal and signature of the governor who made the grant was proved; and the judge in the court below added, “that where either party would suggest that the original in the office of the keeper of the public archives is deemed necessary to be produced in court, on motion therefor a subpoena will be issued by order of the court for said keeper to appear and produce the original for examination.” Justice Story in delivering the opinion of the court in 0wings v.

Hull, 9 Peters, 625, after noticing the high credit and authenticity of contracts and other acts executed before notaries in Louisiana and in all other countries using the civil law, proceeds to state, that “where a contract or other act is executed in a particular manner before a notary, the proetocol or original remains in his possession apud acta; and the act is deemed what is technically called ‘an authentic act;’ and a true copy by the notary, who is the depository of the original, or his successor, is deemed proof of what is contained in the original; for the plain reason, that the original is properly in the custody of the officer and not deliverable to the parties.” He refers to the Civil Code of Louisiana from

article 2231 to 2250. “It was decided that, the absence of the original being duly accounted for by its remaining in possession of the notary, the copy being duly proved was properly admissible in evidence.” In the case of Mitchell v. United States, 9 Peters, 732, objection was made to the admission of copies of certain acts of confirmation of Indian sales made by Governor Folet. It was not sustained. The court say, “that deeds of confirmation were made according to the ruLes of the civil law adopted by Spain, and in force in Florida and Cuba.

The original is a record and preserved in the office, which can not be taken out; a testimonio, or copy, is delivered to the party, which is deemed to be and is certified as an original paper, having all the effect of one in all counties governed by the civil law.” The instruments produced were regarded by the court as original deeds of confirmation. Their authenticity as public documents was proved, and the official signatures were established by the testimony of witnesses.

Adverting now to such Spanish works as are within reach of the court, we find Sala in his fourth book treating, but briefly, of the execution of public instruments and their force and effect when introduced in evidence. We have not discovered in this work any satisfactory solution of the question under consideration. In Book 3, title 7, of the Institutes of Aso and Manuel, page 297, it is laid down, that a “public instrument is divided into three classes: the original draft, register, or protocol—the original—and the copy.

The register is the original draft, or writing, which is delivered and remains in possession of the escribano, which we also call protocol; by which doubts are determined that may be offered with respect to the instruments which are copied from it.

The deed which is immediately copied from the protocol is the original, which causes faith; inasmuch as it is authorized by the public escribano, before whom it passed, or by him to whom the protocols of the latter have passed; but if another escribano copies it, with the authority of the judge and citation of the party, it is valid.” In 3 Partidas, title 19, Law 9, notaries are required to have a book to serve as a register, in which they must write the minutes of every act required by the contracting parties; from which they draw up the public act itself and deliver it to the person entitled thereto.

In a note to this law a decree is referred to, from which doubtless may be deduced the practice of executing notarial instruments as known to this country under its former laws and governments. In this decree, dated in 1503, notaries were required to draw up on their registers the original act in full, and not by notes or minutes. A copy is then furnished the party to serve him instead of the act itself, which was formerly made out from such notes. Febro. Lib. Escrie, chap. 16, Nos, 3, 9.

From the authorities and laws to which we have referred, as well as from the facts proven in this case, we conclude that copies of notarial acts were (at the time of the execution of this instrument) regarded in contemplation of law as originals; that they were the only evidence of title which the party interested was entitled to retain in his possession, and that they are properly admissible for all the purposes which by the introduction of the originals themselves could be effected.

In the cases of Perchman and Mitchell et ah, cited from the United States Reports, proof was made of the official seal and signature of the public officer from whom the copies emanated; and in the case of Owings v. Hull the copy of the notarial act is described as duly proven. In the case before us, no objection was urged on the ground that proof was not made of the official capacity and signature of the judge, or of the signatures of the witnesses.

The court at which the trial below was had was within the limits of the territory once designated as the jurisdiction of Mina, and the facts above alluded to were perhaps matters of public notoriety, and proof of them was not required.

We confine ourselves however to the grounds on which this appeal was taken, and will not enter into the question of the "proofs, which under many circumstances might be required, to establish the authenticity of copies of public instruments; nor will we enumerate the cases in which the production of the originals might be deemed essential, nor the causes for which their validity might be attacked and destroyed. These and similar questions will be disposed of when they properly arise in cases which may be presented for our consideration.

The second objection urged in the bill of exceptions is, that the instrument before us is not sufficiently authenticated. This is vague and indefinite in its terms, and no notice having been taken of it in the argument, we can not ascertain with any certainty the grounds on which it was raised. There being no glaring defect of authenticity in the instruments and none being pointed out for the inspection of the court, we will pass over this point without further remark or attention.

The law and facts of this case being considered, we are of opinion that the court below did not err in admitting the instrument excepted to; and it is therefore ordered, adjudged and decreed that the appeal be dismissed. Dismissed.