Hart v. Gage

The opinion of the court was pronounced by Mattocks, J. — It has been So often and so long settled in this state, that a division in fact made and acquiesced in, may be shown in lieu of one wholly according to the statute, that the propriety of such a course is not now to be drawn in question. Such tremendous consequences would follow from folding otherwise, by throwing, in many instances, a considerable part of cultivated townships into common again, that it cannot be permitted. And a Field Booh, accompanied with testimony showing that it had been recognized as such, was pregnattt evidence of the two necessary facts, survey in fact, and an acquiescence under it. And these books, and the maps made from them, as they ripen by time, and monuments perish, may, like Doomsday Book, be the best, if not the only evidence of many ancient surveys. The plaintiff also offered the proprietors records of Addison, and was permitted to read in evidence, although objected to by defendant, the re [173] cord of three deeds to make out his title, dated in 1763, 1775, and 1781, and all recorded by the proprietor’s clefls before the year 1783. It is obvious that these papers were not admissible as original deeds — they did not purport to be such. The loss of the originals was not proved in order to let in secondary evidence, nor were these sworn or proved copies. The only question then is, whether they were records. And this depends on the act eited of February, 1783, entitled, “An act to authorize proprietors’ clerks to record deeds,” which declares, “ That any proprietor’s clerks that have been, or rrfay hereafter be, elected and duly qualified in the said office of proprietor’s clerk, are hereby declared legal officers for receiving and recording deeds of land lying in such town.” Now this act, like most acts, was prospective, and not like some, retrospective; and these deeds were not recorded after the passing of the act, but before, when the proprietor’s-'clerk had no authority to record deeds. The act does not purport to make deeds already recorded valid, which is strong evidence that the General Assembly had no such intention; for at that day they never dreamed that they had not as good a right to look back as forward in their enactments: and as no copying a private paper into a book can make the copy a record, unless the law gives such authority to the recorder, and as the proprietor’s clerk had no such authority, when he made what was offered and admitted as a record, there was error in the county court in admitting the copies of these deeds; and therefore; The judgment of the county court is reversed.