Fleming v. Ervin's Committee

Patjll, Judge; On tbe trial of an action of ejectment in the County of Gilmer, in March 1869, tbe. Plaintff, in order to sus-tein bis title, proposed to offer in evidence a deed executed by Samuel S. Stout to Robert R. Marshall, for tbe premises in controversy, bearing date on tbe 27th day of October 1863; having appended thereto a certificate of acknowledgment by tbe grantor, given by Nicholas K. Stout, Mayor of Staunton; and, also, a certificate from Benjamin Pollard, Clerk of tbe Circuit Court of the City of Richmond, that said deed was admitted to record in bis office; and, also, a certificate from William A. Burnet, clerk of tbe County Court, of Augusta County, ’Virginia; that said deed with tbe certificates, aforesaid, of tbe Mayor of Staunton, and tbe Clerk of tbe Circuit Court, of Richmond, annexed, bad been admitted to record in his office. To the introduction of this deed, thus authenticated, objection was made by the Defendants, and tbe objection was sustained by tbe Court, and tbe deed excluded; and to this ruling of the Court tbe Plaintiff excepted. I am of opinion that the objection was properly sustained by tbe Court. I know of no authority of law for tbe authentication of a deed in that form, for its acknowledgment before tbe Mayor of any city or town within the limits of tbe United States, upon whose certificate tbe deed could be admitted to record within this State; the deed was properly excluded. [218] After the exclusion of the deed, aforesaid, for want of proper authentication the plaintiff proved the due execution of said deed by the grantor by witnesses introduced for that purpose, one of whom was the- grantee, who proved that the grantor signed, executed and delivered said deed to him for record; five other witnesses testify to the genuineness of the grantors signature, and one of them from his declaration that he had sold his land to the grantee, and made him a deed therefor. The Defendants then proceeded to inquire of the witnesses or some of them, as to the consideration mentioned in said deed, and whether the same had been paid in Confederate money. To this inquiry the Plaintiff objected, but the objection was overruled by the Court,, and the testimony admitted; and to this ruling of the Court the plaintiff excepted. The fact that the payment of the $1200, the consideration named in the deed, was made in Confederate money does not invalidate the transaction or avoid the deed unless1 there was an unlawful, wrongful or immoral purpose on the part of the parties thereto, connected with it and nothing of this kind appears on the record. Thorington vs. Smith, 8 Wallace 1, and Mathew W. Harrison, Ex’or, &c., vs. Farmer’s Bank of Virginia, decided by this Court at the present term. The Plaintiff then-proposed to prove his possession of the premises by virtue of the deed aforesaid, and that William Erwin became his tenant by reason of his title under said! deed, and not otherwise; to the admission of this evidence the Defendants objected, and the court excluded! the testimony, on the ground that the said deed from. Stout to Marshall was void, and that the latter had acquired no such right by virtue thereof, as the Court could enforce; and to this action of the Court, the Plaintiff excepted. For the reasons hereinbefore assigned, this ruling of the Court was érroneous. There are no other questions appearing upon the record, requiring [219] the notice of the Court. Under the proceedings had in this case, as hereinbe-fore detailed, the jury found a verdict for the Defendants, and a judgment was rendered in their favor for the costs of this suit. Under the views and principles hereinbefore announced, it is manifest that the verdict is erroneous, and the judgment is hereby reversed, with costs to the appellant according to law; and. the verdict of the jury set aside; and this case is remanded to the Circuit Court of Gilmer county, and the Plaintiff awarded a new trial therein. Moore and Hoffman, Judges concur in the foregoing opinion. Haymond President, absent.