Ross v. Hole

Caton, C. J. There are several errors in this record, for which the judgment must be reversed. In the first place, we think it was competent to show by the certificate of the county clerk, the state of the county records, for the purpose of proving that Fisk, before whom the acknowledgment of the deed was taken, was not, at the time the acknowledgment purported to have been taken, a justice of the peace. It seems to us as competent to make it appear by the certificate of the - county clerk that his records show that there was no such justice in the county at the time, as that a particular person was at a particular time a justice of the peace. Such certificate would not establish, conclusively, that Fisk was not, a justice, but it was competent evidence, as tending to show that fact. He may have been a justice de facto, although therbwas not any record of his commission. This certificate should have been admitted. We shall pass over some other errors in the record, which will not be likely to arise on another trial; and consider the exception taken to the decision of the court in refusing to permit the plaintiff to introduce in evidence, the deed from Patterson and wife to L. W. Ross, dated the 15th of March, 1852. The execution of this deed had been proved, but it had never been recorded. The defendant’s attorneys, Walker and Conwell, had, for the purpose of proving title in themselves and consequently out of the plaintiffj introduced a deed from Patterson and wife, executed in 1861. The defendant objected to the reading of the deed in evidence which was offered by the plaintiff, on the ground that it had not been recorded, and the court sustained the objection. In this the court undoubtedly erred. The recording could have no possible effect upon its validity. The recording laws might postpone it in favor of subsequent bona fide purchasers, but the deed was nevertheless valid. It should have been admitted in evidence, and then the question would have been fairly open to controversy, whether the subsequent purchasers had, before they purchased, such notice of the plaintiff’s claim of title to the lot, as made it incumbent on them, in good faith, to have inquired of him. what title he had. The judgment must be reversed, and the cause remanded. Judgment reversed.