Doe v. Vandewater

Dewey, J. — On the trial of an action of ejectment, the defendant produced the record of deeds for Whitley county, and offered to read therefrom, as evidence to the jury, the copy of a deed from the lessor of the plaintiff, conveying to a third person the land in controversy, which was situate in that county. The copy purported to -be the copy of a deed, acknowledged before a notary public of Allen county, “under his hand and seal. ” The evidence was objected to, but admitted by the Court. Verdict and judgment for the defendant. It is urged against the legality of the testimony, that the deed was not properly admitted to record in Whitley county, for the following reasons; first, because the notary did not certify that the seal affixed to the authentication of the acknowledgment of the deed was his “notarial seal;” and, secondly, because his official character was not attested by the clerk of the Circuit Court of Allen county, under the seal of that Court.- These objections are without foundation. A notary public has the same power to take acknowledgment of deeds, which a justice of the peace possesses; “ and his certificate and attestation, with his official seal, shall be taken in all cases to be of equal verity and validity with the certificate, atiesta [7] tion, and seal of the clerk of a Circuit Court.” R. S. 1838, pp. 420, 421. The seal, which the notary attached to his authentication of the acknowledgment of .the deed, and which he certified to be his seal, must be presumed to be his official or notarial seal; and his certificate and seal needed no support from the attestation and seal of the clerk of the Circuit Court, as they are placed by the statute on the same footing with these. The deed was properly admitted to record in Whitley county; and as the defendant was no party to, and cannot be presumed to have had the control of it, the record was admissible evidence without farther proof of the execution of the deed. Bowser v. Warren, 4 Blackf. 522. II. Cooper, for the appellant. W. II. Coombs, for the appellee. Per Curiam. — The judgment is affirmed at the costs of the lessor.