
    Cales v. Miller & al.
    July Term, 1851,
    Lewisburg'.
    (Absent Cabell, P.)
    i. Evidence — Commissioner’s Deed — .What nust Be Offered with Deed. — A party offering in evidence a deed purporting’ to be executed by a commissioner under the decree of a Court, and conveying land, must offer with it so much of the record of the cause in which the decree was made, as will show the authority of the commissioner to convey the land described in the deed.
    2. Deeds — Foreign Acknowledgment before Mayor.— A deed executed in 1799 which shows upon its face that the parties to it resided out of the State of Virginia, was properly acknowledged before the mayor of a city in another State, and the certificate of the mayor, describing himself as such, and purporting to be under the seal of the city, was a sufficient authentication of the deed to authorize its admission to record.
    3. Same — Same—Certificate as Evidence of Grantor’s Residence. — in such a case the certificate of the acknowledgment of the deed by the grantor before the mayor of the city, is sufficient evidence *that the grantor, for the time being, resided in the said city; though the deed on its face described him as being a citizen of another State.
    4. Deeds — Acknowledgment—What Residence Suffi° cient. — It seems that a residence, however temporary, is sufficient to authorize the acknowledgment of a deed there, by a non-resident of Virginia, nnder the act of 1792, ch. 90.
    5. Depositions — Caption.—The caption of a deposition describing it as taken in a proceeding of forcible entry and detainer, is sufficiently accurate to authorize the reading of the deposition, though the proceeding is for an unlawful detainer.
    
      ■6. Bonds — Condition to Convey Land — No Title in Ob-ligor — Effect.—A bond with condition to convey land of which the obligor had neither title or possession, passes nothing. And a decree in a cause between the parties, for a conveyance of the land by a commissioner, and his conveyance, passes nothing-; none of the parties ever having had either title or actual possession.
    On the 29th day of February 1848, John Miller and Joel McPherson made complaint before a justice of the peace of the county of Greenbrier, that James Cales had unlawfully turned them out of possession of a certain cabin and tenement containing about forty acres, on the end of Chesnut mountain, part of a survey or tract of eleven hundred acres, in the county aforesaid; whereof they prayed restitution. A warrant was thereupon issued b3r the justice, directing the sheriff to summon a jury for the 18th of March, and to give notice to two justices at least, to attend at that time. This was done, and the cause was regularly continued from that time until June 1848, when it came on to be tried.
    In the progress of the trial the plaintiffs introduced as evidence a deed from Jacob Maddy to John Miller, bearing date in the year 1846, by which in consideration of 40 dollars, Maddy conveyed to Miller one moiety of a tract of eleven hundred acres of land, lying in the county of Greenbrier, on New river, above and below the falls of the river. The plaintiffs also offered in evidence two decrees, which purported to be decrees of the Circuit court of Greenbrier, the first made at its May term 1842, in a cause therein depending, in which Jacob Maddy and Kichard Thomas were plaintiffs and *Samuel Fox was defendant. This decree after directing the defendant to pay to the plaintiffs certain sums of money therein specified, being for the purchase money of the land thereinafter mentioned, provided that if the money was not paid within ninety days, a commissioner named should proceed to sell the tract of land mentioned in the bill, &c. ; and that he report his proceedings to the Court. The second decree was made at the May term 1843, and came on upon the papers formerly read and the report of the commissioner appointed to sell the land. This report was confirmed and Thomas C. Burwell was appointed a commissioner to convey the land to the purchasers.
    The plaintiffs also offered in evidence a deed dated the 26th of October 1843, executed, by the commissioner Thomas C. Burwell to Jacob Maddy and Joel McPherson, whereby after reciting the foregoing decrees, he conveyed to them the land referred to in said decrees. To the introduction of these decrees and the deed from Burwell, the defendant objected, upon the ground that it was incumbent on the plaintiffs to shew by evidence that a suit existed authorizing such decrees and deed: And for this purpose it was necessary that the whole record should be produced to the Court and jurjr. But the Court overruled the objection and admitted the evidence; and the defendant excepted.
    In the further progress of the cause the defendant introduced in evidence a patent from the Commonwealth to David Morton, bearing date the 13th day of March 1798, for the land in controversy; and he then offered in evidence an office copy of a deed bearing ■date the 1st of August 1799, purporting on its face to be from David Morton, of the borough 'of Wilmington, in the State of Delaware, to John Morton, of the City of Philadelphia, in the State of Pennsylvania, by which the tract of eleven hundred acres mentioned. in the aforesaid patent was conveyed to John Morton.
    *Upon this deed was endorsed a certificate of Robert Wharton, who styled himself mayor of the City of Philadelphia, that the above named David Morton personally appeared before him and acknowledged the above written indenture to be his act and deed, and desired the same, as such might be recorded according to the laws of the State of Virginia. This certificate purports to be under the seal of the City of Philadelphia, and bears date the 1st of August 1799; and upon this certificate the deed was admitted to record in the District court held at the Sweet Springs, on the Í9th of May 1800. To the introduction of this copy of the deed as evidence, the plaintiffs objected, and the Court sustained the objection, and excluded the evidence on the ground that the original deed was not duly authenticated for record. And the defendant again excepted.
    The defendant also offered in evidence the deposition of Benjamin Willard. On this deposition the plaintiffs’ counsel had endorsed two exceptions. The first was,
    1 ‘because there is no warrant or action of forcible entry, &c., depending in Greenbrier County court, between the parties in the cause mentioned therein.” The affidavit by the defendant which was the foundation of the motion for permission to take the deposition of the witness, the commission, and notice to the plaintiffs, spoke of the proceeding depending in the County court of Greenbrier, between the plaintiffs and defendant,’ as a writ of forcible entry and detainer. It was therefore, of course, that the justice who took the deposition, described it as a deposition to be read as evidence on the trial of a writ of forcible entry and detainer. The Court sustained the exception, and excluded the deposition; whereupon the defendant again excepted.
    The jury found a verdict for the plaintiffs, which the defendant moved the Court to set aside, on the ground that it was contrary to the evidence; but the Court overruled the motion, and rendered a judgment for the *plaintiffs; whereupon the defendant again excepted: and the facts were stated on the record.
    in addition to the evidence hereinbefore stated to have been introduced on the trial, the plaintiffs introduced a patent from the Commonwealth to themselves, for eleven hundred acres of land, including the land in controversy, bearing date the 29th of February 1848. They also proved that a certain Abraham Bragg occupied a portion of the tract of eleven hundred acres, known as the'“old bottom,” for some ten years. That he took possession of the old bottom about the year 1831, and resided there without claiming the land. That he sold his improvements at the “old bottom” to the plaintiff, Jacob Maddy, together with two hundred acres of land for which he had the legal title; and when he was about to give a title bond to Maddy, the latter requested him to make him a title bond for the whole of the eleven hundred acre tract. That Abraham Bragg at first refused to do it, stating to Maddy that he did not own the land, and had only sold his improvements on it, and that the land was claimed by Joseph Willard; and that if he gave such title bond his brother, Daniel Bragg, who lived on the mountain place at the time, would be displeased; but Maddy said to him, as he was going off it would make no difference. Abraham Bragg then consented to give, and did give, a title bond to Maddy for the eleven hundred acre tract. That Maddy at the time he traded with Abraham Bragg, knew that Joseph Willard claimed the tract of land embracing the improvements on the “old bottom.” That Maddy afterwards sold the tract of land he purchased of Abraham Bragg to Richard Thomas, and passed to him Bragg’s title bond. That Thomas sold the same land to Samuel Fox and passed to Fox the same bond; and that Thomas only sold to Fox, Bragg’s improvements at the “oldbottom,” and two hundred acres aforesaid.
    *The defendant in addition to the patent to David Morton, which it was proved covered the same land embraced in the patent to the plaintiffs, proved that in the year 1815 or 1816 Jeremiah Meadows took possession of the land embraced in the grant to Morton, under and as the tenant and agent of Joseph Willard, who claimed said land; and Meadows agreed to hold the land for Willard and pay the taxes that might accrue thereon. That Meadows as such tenant, held the land for two or three years, paying the taxes during that time, and residing thereon at the place called “the old bottom.” That Meadows in 1820 or 1821 placed Daniel Bragg in possession of said tract of eleven hundred acres of land on a small improvement on another part of the same tract called the “mountain place:” Daniel Bragg agreeing to hold and occupy the land as tenant of Willard, and pay the taxes as they should accrue thereon, and give possession to Willard when it should be demanded. That Daniel Bragg cleared some forty or fifty acres on the mountain, and resided there until 1838 or 1839, paying the' taxes, when by an agreement between him and Thomas Bragg he gave possession to the latter, who was to occupy the land in the same manner in which Daniel Bragg had occupied it. That Thomas Bragg held the possession until the fall of 1847, and then gave it up, and the defendant went into possession of the mountain place.
    The defendant further proved that Abraham Bragg at the time he took possession of “the old bottom,” agreed to pay the taxes on the Willard tract, but failed to do so. And he also proved that the eleven hundred acre tract was entered upon the commissioner’s books of Greenbrier county, in the name of Joseph Willard, in 1816, and continued thereon in his name to the time of the trial; and that the taxes on said land had all been paid.
    *The defendant applied to the Circuit court of Greenbrier county for a su-persedeas to the judgment, which was awarded; but when the cause came on to be heard in that Court, the judgment of the County court was affirmed. Whereupon the defendant applied to this Court for a supersedeas, which was granted.
    Reynolds, for the appellant.
    ' William Smith and Price, for the appel-lees.
    
      
      Evidence — Commissioner’s Deed — What Must Be Offered with Deed. — See principal case cited in Ketchum v. Spurlock, 34 W. Va. 603, 12 S. E. Rep. 834; Waggoner v. Wolf, 28 W. Va. 825,
      Same — Deeds.—See principal case cited in Mason v. Bridge Co.. 20 W. Va. 237. The Virginia and West Virginia cases on this subject are collected in a monographic note on ‘’Deeds’’ appended to Fiott v. Com., 12 Gratt. 564.
    
    
      
       Deeds — Certificate of Acknowledgment as Evidence of Grantor’s Residence. — in Hassler v. King. 9 Gratt. 120, the principal case was cited with approval to the point that the acknowledgmentby the grantor of a deed before the mayor of a city affords sufficient evidence that said grantor, for the time being, dwelt in that city; and that this is true though the deed on its face described him as being a citizen of another state. The principal case was also cited on this point in Shue v. Turk, 15 Gratt. 263. See further on this subject, monographic note on “Acknowledgments’* appended to Taliaferro v. Pryor, 12 Gratt. 277.
    
    
      
      Depositions — Notice—'What It Should Indicate. — Notice to take depositions should indicate to the adverse party, with reasonable certainty, when, where, and in what canse the depositions are to be taken. Bowyer v. Knapp, 15 W. Va. 293, citing the principal case.
      On all matters pertaining to depositions, see mono-graphic note on “Depositions” appended to Field v. Brown, 24 Gratt. 74.
    
    
      
       Bonds. — See monographic note on “Bonds’* appended to Ward v. Churn, 18 Gratt. 801.
    
   AlfL/EjN, J.,

delivered the opinion of the Court.

The Court is of opinion that as the decrees offered in evidence merelj' directed the commissioners thereby appointed to sell and convey the tract of 1100 acres referred to in the bill, such a general description of the land did not satisfactorily prove the authority of the commissioner, Thomas C. Burwell, to convey the particular tract of land in Greenbrier county described in his deed of the 26th October 1843, to Jacob Maddy and Joel McPherson; and it was incumbent on the parties claiming under such deed, to have shewn by the record of the suit referred to in the decrees and deed, what specific tract of land the commissioner was authorized to sell and convey.

The Court is therefore of opinion that the County court erred in permitting said deed to be read in evidence as set forth in the first bill of exceptions taken by the plaintiff in error, without the production of the record of the suit therein referred to, or so much thereof as would have shewn the particular tract of land the commissioner was empowered to sell and convey.

The Court is further of opinion, that as it appears upon the face of the deed dated the 1st of August 1799, between David Morton, of the State of Delaware, of the one part, and John Morton, of the State of Pennsylvania, of the other part, and set forth in the 2d *bill of exceptions filed by the plaintiff in error, that the parties to said deed resided without the jurisdiction of this State, the acknowledgment by the non-resident grantor before the miyor of the City of Philadelphia, afforded sufficient evidence that said grantor, for the time being, dwelt in said City of Philadelphia, and said deed was duly authenticated for record; and the Court is therefore of opinion the County court erred in rejecting a copy of said deed as evidence, because the same had not been properly authenticated for record.

The Court is further of opinion, that the said County court erred in excluding the deposition of Benjamin Willard, offered to be read as evidence by the plaintiff in error as set forth in his third bill of exceptions, on the ground of a misdescription of the complaint in the notice, commission and caption of the deposition. The general description of the action as contained in the act under which the proceeding was had, is “an act to explain and amend an act reducing into one the several acts concerning forcible entries and detainersand though the form of complaint was modified to suit the particular injury complained of, the description of the action was sufficient to give notice to the parties of the controversy in which the deposition was intended to be used. Whether the evidence would have been proper if not excluded for the cause aforesaid, would have depended upon the fact that the plaintiff in error had in some way connected his possession with said Joseph Willard; for though it would not have been competent to prove a transmission of the title alleged to have been vested in David Morton the patentee to said Joseph Willard, by such parol evidence, the evidence in connexion with other evidence tending to prove that said Joseph Willard had entered into said land by himself or his agents, held possession thereof by his tenants and agents, and had the same assessed in his own name and paid the taxes thereon; and also shewing the duration *of such possession so taken and held, would have been proper to shew the intent with which said Willard entered and held possession, whether as a claimant of the land as owner or as a mere intruder; and if as owner of the land, whether such possession so taken and held had not continued for a sufficient length of time to protect said Willard and those holding under him against any adverse claimant.

And the Court is further of opinion, that upon the facts certified as proved upon the trial of the complaint, the County court erred in overruling the motion of the plaintiff in error to set aside the verdict and grant him a new trial, on the ground that the verdict was contrary to evidence. The defendants in error had not shewn either a possession or a right to the possession of the tenement in the complaint mentioned. If they claimed under the alleged contract and title bond of Abraham Bragg, it does not appear he was ever in possession of the tenement in question. On the contrary it appears that at the time of such alleged sale by Abraham Bragg, the tenement in question was in the actual occupation of Daniel Bragg as tenant of Joseph Willard, and that the defendants in error, or those under whom tbe3^ claim, never had possession thereof. The deed executed to the said Maddy and McPherson by the commissioner of the Court, Thomas C. Burwell, and the deed from Maddy to John Miller, one of the complainants, passed neither possession or right of possession; it not appearing that any of the parties connected therewith ever had title to the land conveyed; nor is any possession of any part of the land conveyed, shewn to have been ever actually-held by any of them, except Abraham Bragg, and his possession was as tenant of said Joseph Willard, and did not extend to or embrace the tenement in controversy.

If the defendants in error claimed under their patent of the 29th day of Feb-rua'ry 1848, the patent of itself ^vested them with no title or seisin actual, or constructive, the whole title thereto having’ passed out of the Commonwealth by the prior grant of the same land to the said David Morton, and there is no evidence proving any actual entry of the defendants in error claiming under and by virtue of their junior grant. The plaintiff in error had entered into possession of the tenement in question prior to the date of the patent of the defendants in error, and held the same at the date thereof; their patent bearing even date with their complaint before the justice. His entry may have been unlawful as regarded Morton or Willard claiming under him, but could not have been so as to the defendants claiming under a patent bearing date after such entry, and which of itself in the absence of all proof of actual possession thereunder, conferred no title whatever, as the ' land had been previously granted to another.

It is therefore considered, that the judgment of the Circuit court, affirming the judgment of the County court, is erroneous; and the same is reversed, with costs to the plaintiff in error. And this Court proceeding to render such judgment as the Circuit court should have done, it is further considered, that the judgment of the County court is erroneous; and the same is reversed, with costs to the plaintiff in error; and the verdict is set aside, and the cause is remanded to the County court for a new trial, upon which the County court will be instructed to govern itself by the principles above declared and adjudged.  