Hilgendorf v. Ostrom

Mr. Justice Waterman. It is not seriously contended that the abstract furnished showed a good title. . What is principally insisted by appellant is, that the defects therein appearing have been cured by lapse of time and possession; in other words, that by matters not shown upon the abstract and not of record, it is the case, and was made to appear, that appellant had a good title. Appellant’s title is derived under a deed made by Thomas J. Dunldn and wife to Abel T. Edgerton, Alexander H. Washburn and William Gardner; a deed by William Gardner and wife to Abel T. Edgerton and Albemarle H. Wash-burn. It is not contended that the names Alexander and Albemarle are idem sonans; what is insisted is, that in the first deed Alexander was erroneously written, Albemarle being the party meant. As to the effect of such error the case of Pitts v. Brown, 49 Vt. 86-88, is instructive. The recital in the second deed is said to be evidence of this; the first deed conveys an interest in 240 acres, the second, in 400; the recital is not, therefore, in any event, entirely accurate. The second deed is not shown to have been properly acknowledged. No statute of New York permitting the acknowledgment of deeds before a commissioner of the Supreme Court, is to be found in the record, although the master says that one has been shown to him. Such statute, if introduced in evidence, should have been incorporated in the certificate. Not being found in the record, we can not take notice thereof. It is quite likely that some statute was shown to the master at some time, but none ever offered in evidence. The certificate of the clerk of the Supreme Court of New York, dated July 19, 1838, that “ Barroll ” is a commissioner duly authorized to take proof and acknowledgment of deeds,” does not show that upon the 18th of July, 1838, he was such commissioner. It is suggested that to this discrepancy of one day, the maxim de minimis non our at lex may be applied. It is true that the courts of justice do not usually take note of fractions of a day, but we have never understood that the acts of an individual done before lie becomes an official, may be treated as duly performed official acts, because of their performance so brief a time before he was inducted into office. This case not being one in which there was an attempt to obtain a specific performance, or to enforce the contract, but a contest merely over the $1,000 deposited, no attempt was made to establish title by the production of original documents, certified copies thereof or proof of the contents of missing deeds, or by such testimony as to the abstracts as would have made them prima facie evidence. What might have-been established as to these alleged deeds, that is, deeds merely noted upon the abstract, we can not say; but we do not think that in such a case as this, it- can be said that these deeds need no proof because they are ancient, when the only evidence that there ever were such deeds, consists of an abstract of title, upon which such deeds are noted, the abstract itself failing to show any sufficient proof of the execution of such documents. Upon the whole case we see no sufficient reason for interfering with the decree of the court below, and it will be affirmed. Decree affirmed,.