
    Orleans County,
    Adjourned Term, July, 1828.
    
      President and Fellows of Middlebury College vs. Joel Cheney.
    
    That the knowledge of the Court of the law of a neighbouring state, empowering a Justice of the Peace to take acknowledgment of deeds, may be sufficient without other proof.
    That when a grantor of land, with warranty, afterwards purchases an outstanding title, that enures to the benefit of his grantee, in respect to title, and for his own benefit in discharge of his covenants.
    That the acknowledgement of a deed before R. T. Judge of the Supreme Comí, is good in this state.
    That the description of the land in a deed, may be by numbers of lots in figures as lot No. 54.
    This was an action of Ejectment for lands in Albany, which had been tried at the Supreme Court, and exceptions taken to several decisions, which fully appear in the following case allowed by the Judge who tried the cause.
    “ Ejectment for a parcel of land with the appurtenances, lying and being in Albany, in said county, described as follows : being lot number fifty four, drawn to the right of Isaac White, original proprietor; plea the general issue. The plaintiffs in support of the issue on their part, offered in evidence to the ljury the following, viz: — First, the copy of the record ol the charter of Lutter-loch, marked A, dated June 26, 1782, Isaac White a grantee. To the reading of which the defendant objected, for that it did oot sufficiently appear from the certificate of the Secretary of state, that the original charter had fever been recorded ;• but the objection was overruled by the court, and the instrument was read. Second, the copy of the deed from Isaac White,faxid* twenty-nine others, to Joshua :Stanton, marked B, dated May 25,1795; to the reading of which the defendant objected, for that itldid not appear that by the laws of Connecticut, a justice of the peace was authorized to take the acknowledgment of deed's; but the objection waá overruled by the court, and the instrument was read. Third, the copy of the deed from Josk&a Stanton to Ira Alien marked C,which was read,dated Aúgüst 16,1893. Fourth, the copy of a decree of the Court of Chancery in favor of Ira -Alien against Joshua Stanton, marked D, and the copy of the deed from Ira Allen to Jonathan Spafford, mark'ed'E, — decree dated June term, 1803, and deed dated April 5, 1802 : to the reading of Which the defendant objected, for that Allen liad no tille[td the land in question at the time of the execution of said deed, and therefore it conveyed nothing to Spafford, and that the deed from. Stanton to Allen, being subsequent in point óf time, the legal fee remained in Allen, and never had passed to said Spafford; but the court overruled the Objection, and the said instruments were read. Fifth, the copy of the deed Jona. Spafford td Ana. and Arad Hunt, marked F; to the réading of which the défendantob-jected,for that it was acknowledged before Roy til Tyler, judge Of the Supreme Court. But the court overruled the objection, and the instrument was read — dated April 5, 1804. Sixth, the deed from Arad Hunt to the President and fellows of Middlehufy College, dated May 6, 1813, marked G, and the deed from Jona. Hunt to the same, marked H, dated May 31, 1817 ; to the reading of both which said deeds the defendant objected, for thatnei. ther of them contained any sufficient description bf the lands intended to be conveyed : but the court overruled the exception to both said deeds, and they were read. Seventh, the act incorporating the President and Fellows of Middlelury College, passed Nov. 1,1800, and the charter of said College, dated Nov. 1,1800 and recorded on the ninth day of said month,which were also read. The plaintiff also gave parol testimony to the jury, tending to show that the town of Lutterloch,now Albany, has been surveyed,in fact, into lots, and that the said lots have-been divided among the proprietors j. these lots being drawn to each original proprietor’s right — that lots-numbered 41,42, and 54 were drawn to the right of Isaac White ; that the lands in said town are held according to this survey and division, and that the defendant was, at the commencement of this action, and still is, in possession of said lot number fifty four.
    
    The defendant, to support the issue on his part, offered in evidence to the jury the deed, from John Skinner, collector of a road tax, laid on the said- town by a special act of the legislature, passed .in October 1821,. to him the said defendant,, marked I, which was-, read : whereupon it was contended by the plaintiffs,, that the said’ deed was- void and of no. avail to convey the said land to the defendant, because at the time of granting the said tax, the said land belonged to said College, and was not liable to said tax, for that the defendant had not shown to the jury that at the time of granting-said tax, the said College held and possessed other lands of the yearly value of two thousand dollars — and also for that said premises was land sequestered forpublic, pious or charitable uses.. And it was contended by the defendant that the said deed was good and valid to convey said premises to him,, because the plaintiffs: had not shown to the jury that they did.' not possess other lands-of the yearly value of two thousand dollars, and also for that the, premises was not. land sequestered for-publick, pious or charitable uses..
    Whereup.on the court instructed the jury that if from-the aforesaid evidence on the part of the plaintiffs, they found that the lands in question, belonged to- the said College at the time of granting the. said tax,the said deedmarked I,was not good and valid in the law to convey the said premises-to the defendant,for that the said defend— , nnt had not given any evidenee-tendingto shew that the said College did, at the time o-f granting said tax, hold or possess other lands to the yearly value of two-thousand dollars:; whereupon the jury returned a verdict for the plaintiffs. The several instruments before referred to,, marked A, B, C, D, E, F, G, H and I, together with-the said acts, incorporating the President and Fellows of Middleimry College, and the said charter of said College, are made a part of this case. And to the several decisions of the court aforesaid the defendant excepts.
    
      
      Argument for the defendant.— It is contended by the defendant, 'that, a title obtained by -a gtantor subsequent -to his having conveyed a defective title, has never been adjudged to enure to the benefit of his grantee, unless it were where the grantor was liable upon his covenants to make his title good, seeking at the same time to recover against his grantee in an action of ejectment, and then only as an estoppel or reubuttal, that is, the right of action shall rebut the right of .entry. Hence Coke Lit. 265, a. says, ■“If a son release a future right in the life .of his father, the release “ is void, because he had no right at the time of the release madé, í‘ but all the right was at that time in the father; but after the de- “ cease of the father, the son shall enter into the land against his “ own release.” — Shop-. Touch. 243. — Id. 509. If Ira Allan’s deed of 5th of April, 1SG2, .to Jonathan Stafford, had contained no covenants for title, any person claiming under Allen by conveyance, subsequent to his deed from Stanton, the 16th of August, 1803,-wouldhold the lands; and though there were covenants in Allen’s deed t6 Stafford — yet it does not alter the cage, because, the present defendant is -not heir to Allen’s estate, nor do they hold under Allen ; therefore cannot be affected by the covenants of his deed, for Colee in the next paragraph says, “For “ if there be a warranty annexed to .the release, then the son “ shall be barred; for though the release cannot bar the right “ for the cause aforesaid, yet the warranty may rebut, and.-báí' “ him and his heirs of a future right which was not in him at the “time — and the reason (which in all cases is to be sought'out) “ wherefore a warranty, being á covenant real, should bar a future “right, is for avoiding circuity of action, (which is not favored in “ law) as [otherwise] he that made -the warranty should [would] “ recover against the ierre-tenant,and he,by force of the warranty, to have as much in value against the satne person.” If the -reason hete 'assigned by Coke is the true reason why the covenan-ter shall not be permitted to recover against the covenants in bis own deed, and iio other can be assigned, it foliotes, that the subject of the covenants, barring the right of the defendant to dispute the validity of title conveyed by Allen to Stafford, is at rest, the defendants, notiiolding under Allen, but by title adverse, and in nó wise affected by his covenants. Can there be a case found in which,-by the English laws, tlie covenants of the grantor were-adjudged to be an estoppel to the recovery of his assignee. Before-the Satuie of 6th Edward I. called" the Statute of Gloucester, all warranties which descended to them who were heirs to those who made the warranties, were bars to the same heirs to demand any lands or tenements against the warranties, except the warranties which commenced with disseizen: but, by the provisions of' that statute, it was no bar to an heir in tail, unless assets came to his hands from the warranty. — Co. Lit. sec. 697 — [365, a.] It is a novelty,indeed, that the assigns are to be bound by the covenants that their grantor might have inserted in a previous deed to: a stranger, but a very proper thing that the heirs of the covenantor should; becáuse the claim, in case of recovery, is assets, with, which the heir would be bound to discharge the covenants. But if tire son-let an estate to his father for life, or term of years, and the father by ■ deed conveys to another in fee, and binds himself and heirs by Covenant to warrant, and then dies, the warranty shall not bind the son, because the warranty. commenced by disseizen. Co. Lit. s. 698. ■ The remark incidentally made by Judge Thompson in the case of Jaclcson ex dem. Benson vs. Matadorf c.i al. 11 Johsnon'97, was founded upon the same principle. — Ben. Benson,lessor of the plaintiff, had formerly given a deed to Kesiah, daughter to Ambrose Benson, in trust for Ambrose; and Benjamin afterwards executed another deed direct to Ambrose, and the last, “which” says the judge “if it contained covenants of warranty, would pass any title subsequently acquired by the grantor,” citing the same authority, (Coke 265 a.) Aside from this]dictum gratuitiously thrown in, the case was decided upon the grounds that the plaintiffs right was a resulting trust to Am-brose Benson, under whom the defendant held. The case in 13 Johnson, 316, Jackson ex dem. Stevens vs. Stevens,is reported with many typographical errors,and does not warrant the reporter in his marginal note. The point decided was that the plaintiff was estopped from recovering against his own prior deed of the premises 16” the assignee of the defendant. The principle contended for by-the "plaintiffs does not apply in this case; this .is hot a quest'ion between the grantor and grantee; or their assigns, but between parties claiming by adverse titles. It is .a case frequently-occurring, and as frequently made the subject of litigation in courts of chancery, which circumstance (that is, of jurisdiction) sufficiently evinces that courts of law cannot right the wrong — they cannot reach the evil complained of. — Sugden,523. The grantor conveys no more than he enjoys, or has a right to enjoy ; and if he possesses nothing in fact,or in estimation of law, at the delivery of his deed, he conveys nothing, and if he executes covenants in his deed, those are broken — are choses in action, inserted for the. express purpose of protecting the purchaser against the loss of his purchase money. And if the grantor afterwards buys in the title,, he must reconvey before the grantee derives a benefit from it,, which can be compelled only by a decree in the alternative, to deed or pay the value. I have not noticed the decree in chance--ry : it is not material in this case ; nor is the question whether M-len could, or could not, by his deed of the 5th April, 1802, convey an equitable title to Stafford. One thing is certain, that by that deed, he did not convey a legal title, and his equity against jStanton was of that description, that a court of chancery could not, by a sovereign exercise of its powers, enforce it — unlike an -injunction upon the operation or use of a deed, whereby a title would fall to another person, they could decree only, that Stanton should either deed to Allen, or pay a certain sum of money by a limited time. Suppose Stanton had elected to do neither,and upon further application to the court, an execution had issued,and-the money paid; will it be pretended that Stafford could have drawn the same sum out of Allen’s hands upon a general count for money had and received ? If not, then where is the equity conveyed to him by Allen f
    
    The deed from Stafford to Jonathan and Arad Hunt' conveyed to them no title, it not having been acknowledged as the law directs. The statute requires that a deed,conveying lands, shall be acknowledged before a justice of the peace. The reason why the legislature saw fit to direct that justices of the peace should discharge that duty in particular, is not necessary to be inquired into •, it is sufficient ¿that the law has appointed that that officer-only - should perform that particular duty, and to act m that capacity, to have the ackowú edgment of a- deed valid. It is admitted that liad the letter of the law extended to judges of the. supreme and county courtsj or justices of the peace, it would have been more convenient. But it is said that a Judge of the Supreme Court is ex officio jus-* lice of tile peace. There are other instances of two offices being united by the same appointment. Judge of the county and justice of the peace ; clerk of the Supreme and County Court and notaries public; high bailiff and sheriff brevet. And yet, in the discharge of die ditties of each office, it is essentially necessary that their official signature should characterize the office in which they are officiating. For instance, each clerk ol the Supreme or County Courts, are by law constituted notaries public,; but should eithei of said clerks sign an execution asnptaries public, it is apprehended that it would be void. Nor would signing as clerk of the court answer any beneficial purpose where a notarial seal should be required. It follows that .it is not the man, but the character .in which he acts,that gives validity to his doings. And though it maybe said that a Judge of the Supreme Courtis also a justice of peacp, ex officio, yet it was a Judge of the Supreme Court, who took the acknowledgment oí Stafford’s deed to the Hunts, and not a justice of the peace. A writ of error signed Royal Tyler¿ justice of the peace, would hardly operate as a supercedeas. A Judge of the Supreme Court, as justice of the peace,may hear and determine causes within the jurisdiction of a justice,.but in issuing execution he must sign as justice of the peace, and not as Judge of the Supreme Court. Judges of the County Court are justices' of the peace, ex officio, and though one Judge may in some cases try causes, yet, as County Court, he cannot hear, try, &c. where a justice of peace hath jurisdiction; nor as justice of peace, can he bear, try, &c. where the County Court hath jurisdiction; though it be the same man, yet as Judge of the Supreme or County Court, he cannot take jurisdiction of the same subject matter, that he -might as justice of the peace; it being the character in which be acts that determines his powers and duties. ’
    Again, when two public offices are united in the same man, if is perfectly immaterial whether it was by two appointments, or whether one was the legal consequence of the other, in as much as after they are appointed, the duties are all the same, and community are bound at their peril to know all the public officers of the government: it follows, that if it be the person acting intstead of the character in which he acts, that gives legality io his proceedings, it would be immaterial which official signature be affixed to his name, as it would be tiré same man in either cáse; and Benjamin JF. Deming may grant letter of administration, styling himself ■ Commissioner of Goal Delivery; both appointments being made by the 'Legislature, and united, in him.
    Suppose Royal Tyler, in certifying the acknowledgement, had not styled himself Judge or Justice,, it would most manifestly have been invalid ; and yet, in this case, there is. as entire a want of that official signature which the law points out. Let a Judge of the county court sign a writ as Justice of the Peace, returnable into the county court, would it be contended that that writ might.be served out of tire county, and the service be valid ? As Justice of the Peace, he is known as a ministerial officer, as in the ac-knowledgement of deeds, and in taking depositions y but as Judge, is, in no case, a ministerial officer — his acts, if legal, are all Judicial.
    As to. the objection to- t'he deed from Jonathan Hunt to the plaintiffs, dated 6th May, 1813. — -It has always, been considered necessary to observe certain rules in conveyancing: From time-immemorial, it has been held that a deed must be written on parchment or paper. Shepherd in his Touchstone, p. 54, observes,. “ To the making of every good deed, containing any agreement,, these things are necessary, that is, that it be written on parch’ment or paper, add that the agreement be legally and formally set down, and he sufficient in law for the composition and frame of the words”; So in Coke, (T71, h.) every deed must be in writing. But it may be written in any language, French, Latin, Text, Court, or Roman hand. — Shep. Touch. 54. — It is believed that hieroglyphics cannot be used in conveyancing, though their meaning he as definitely understood as are figures; in truth, figures are hieroglyphics, known by the name of characters. — Johns. Lex. — The reason assigned by commentators, why deeds should Written on parchment or paper/and written in some known language, is to give durability to the instrument, and security against alteration, (2 Black. Coin. 297.) a security which characters or figures do not afford. There can be no better method devised for the security of parties giving and receiving conveyances, than that already pointed out by law. And it would, moreover'; be dangerous, or at least inexpedient, to make inroads upon a principle so well established and so long practised upon. Though the deed from Jonathan Hunt to plaintiffs of 6th May,' 1813, has the usual recital of the subject matter of which the parties were about to contract, yet in the description, there is nothing which, though taken in connection with the intention of the parties, can be understood to refer to lands. No. 12, may mean one thing to one man, and another thing to others. The description of land in, a deed ought to be so definite and certain, as that ejectment Will lie, or a writ of possession may be served, described in the same manner. Would it.be a sufficient description in ejectment, saying, “ to wit, No. 12.” Figures are ftot to be recognized in law as any part of a deed, and if they were accompanied by no word or words to aid or qualify their meaning, must certainly be adjudged too vague to convey a title.
    It is contended by the defendant that the deed from John Skinner to him, of the land in question, was improperly rejected. By the general laws of the state, all lands are taxable, excépt those which are exempt by general or special reservation. If the property of Middlebury College is exempt, it is only in a limited degree; a privilege upon condition; and they must shew themselves entitled to the privilege in order to enjoy it. If a defendant pleads his privilege in court, he is bound to support his plea with proof, and not call upon the adverse party to shew him not entitled to it. This is one of those cases where it is more proper that a fact positive in its nature, shown for the purpose of establishing a negative, should be made out by the-party claiming the benefit of the negative, (to wit, the plaintiff in this case,) than that the defendant should be called on to make out the same fact, the evidence being in possession of the plaintiff and no possible method of drawing it Out. The plaintiffs have said their books were open for inspection J ■ be it so : who keeps them i where is their office ? who certifies copies ? what process in law to compel a party to furnish evidence against himself I A bill of discovery might be filed ; but would the court require it, and the plaintiffs have the evidence in their pocket ? The plaintiffs support their objection to the deed by shewing their corporate charter, authorizing them to hold real estate, and a conveyance of the land in question ; then a special privilege to hold lands, ife. free of taxation, to the yearly value of $2000. This clause of the statute presents but one proposition, and it is believed the plaintiffs must shew the extent of their póssessions or profits,in order to have the privilege attach at all.; and it is more reasonable that they should shew this, as they have it, in. their power, and the defendants have not; and it was so decided in Watsonvs.Halefl SaundAQ\,c. A plaintifisueing for having his last cow attached, must shew it to be such. We, however, do not believe that the lands in question are freed from taxation, by the fact of their being deeded to Middlebury Gollege; for though we admit the right which the state had, at the time of granting the charter, to make a reservation to public &c. uses, yet after a town is settled and organized, no portion of the lands can be freed from taxation by an act of the legislature, without infringing upon the rights and privileges of those who had made their purchase, and commenced their improvements, before such exemption attached ; for in this, as well as in like cases, the burthen of taxes, upon the taxable lands in the town, is increased in the same proportion as the quantity of exempted lands shall be augmented. — 5 Whea. 307, Loughborough vs. SlaJce.
    
    
      Argument for the plaintiffs. 1. Defendant’s first objection to copy of charter of Luiterloch (now Albany,) is groundless, as it . does appear from die certificate of the secretary of state, that said charter is of record in said office.
    2. Defendant objects to deed from Isaac White, and tvvehty-nine others,to Joshua Stanton — acknowledged before a justice of peace in Connecticut. That a Justice of Peace in Connecticut has authority, or is authorized to take the acknowledgment of deeds in that state, is a matter of notoriety, and might be proved by witnesses. And a deed thus ac~ knowledged is prima facie evidence, and good until the contrary be shown. But sec Swift’s Digest, p: 12 4.
    
    3. Copy of deed from Joshua Stanton to Ira Mien — not objected to.
    4. Copy of the decree of the Court of Chancery in favor of Ira Alien against Joshua Stanton — and copy of deed from Ira Allen to Jonathan Spafford. — Defendant contends that the deed from Ira Alien to Jonathan Spafford, dated April 5, 1802, eon- ' veyed no title to Spafford, for that the deed from Stanton to Hi-len was subsequent in point of time, (viz. 16th August 1803). In answer to this objection, the deed from Allen to Spafford is a warrantee deed, with all the usual covenants of wárranty and sei-zen,warranting and defending the premises to said Spafford and his heirs and assigns forever. If the deed from Allen to Spaf-ford had been a quit-claim, or release only, of the legal interest said Allen then possessed, a question might have arisen with respect to the claim he (Allen,) afterwards obtained by virtue of his deed from Stanton. But no one will contend but that any title snbsequ ently purchased in by a grantor, by a deed of warranty, enures to such precedent grantee. But in the present case, the equitable title was in Allen, as appears by said copy of the decree of the Court of Chancery, which bill in Chancery was pending at the time of the date of said deed from Allen to Spafford. And that the deed from Stanton to Allen, was only perfecting the legal title In Allen and his assigns, of what they already had the equitable title.
    5. That the deed from Spafford to Jonathan and Arad Hunt was not legal, because it was acknowledged before Royal Tyler, Judge of the supreme court. — This was the only title he could assume or annex to his name, whereby he could be known as a justice of the peace. Judge of the supreme court is the popular name, and the only one by which he was christened by the Legislature. And thereby being justice of the peace ex officio, by virtue of the Constitution — without that, he was not a justice of the peace.
    6. To the deed from Arad Hunt to íheCollege, and to the deed from Jonathan-Hunt to the Gol-lege, for want of sufficient descrip-lion of the lands intended to be conveyed. — The deed from Aradfflunt to the College isa quit-claim deed of all the title and interest which he had toa tract of land in Lutterloch, (now Albany,) which he possessed by virtue of a deed from Spafford to him and Jonathan Hunt, to hold as tenants in common,and not as joint tenants — reference being particularly . made in said Arad Hunt’s deed to the College to the deed from Spafford to Hunts, for a particular description of the premises. And in said deed from Spafford to Hunts, referred to as aforesaid, the original proprietor’s name, and the numbers of the lots conveyed, are particularly set forth in said deed. And in the deed from Jonathan Hunt to the College, (which is but a deed of division of lands held in common by him and the College,) the number of the lots therein deeded to the College are set forth in said deed, and are part of the same lots of land deeded by Spafford to said Hunts, by his deed to them which reference to the warrantee deed from Spaffordl is deemed to be all the description that could have been given in said quitclaim deeds from said Hunts to the College.
    
    7. The act incorporating the President and Fellows of Mid-dlebury College, passed Nov. 1,1800, and the charter of said College dated Nov. 1, 1800, were read, and not objected to.— Nor did the defendant object to the evidence given for the plaintiffs relative to the draft, survey, and division of said town of Jll* bany — or that said lot No. 54 was drawn to Isaac White, or that defendant was in possession of said lot, &c. The deed from John Skinner, collector of a road tax, granted by the Legislature in Oct. 1821, which was offered and read in defence, was void, and of no avail to defeat the plaintiffs’ title : because, at the time of granting said tax, the land in question did belong to said College, and was not liable to be taxed, as will appear from the act incorporating the President and Fellows of said College — For that at the time of granting said tax, said College did not hold or possess other lands of the yearly value of $2000 — and also that said laud was sequestered to public, pious or charitable uses.— And there was no;error in the court in permitting said evidence to go to the jury — or in the charge of the court to the jury.
    
      This cause was argued at' the March Term of this court in 1S27, before Hutchinson and Roycé, justices, and a full opinion then expressed in affirmance of the verdict. But, on the request of the defendant’s counsel, urging that further testimony might be adduced to make the case clear for the defendant, on the subject of the vendue title, which was thought unnecessary on the former trial; the court considering that the other causes were, by rule, entered of record, to abide the event of this, omitted to enter the judgment at that time, and gave the defendant leave to move for a new trial on the ground of surprise ; both parties to procure and file, such affidavits as they should think best in reference to the question of surprise. And now at this term, no affidavits nor new motion. having been filed by the defendant, and the plaintiffs having filed- several affidavits, showing that they have never held lands to the yearly value of two thousand dollars, the cause was again argued upon the original exceptions, before Hutchinsow and TueNer, justices, both of whom expressed their opinions and their reasons for the same ore tenus, during the term, in affirmance of the decisions on trial.
   Hutchinson, J.

delivered the opinion of the court. The first exception taken on trial, with regard to the reading of the copy of the charter, is now abandoned by the counsel.

The objection to the deed from Isaac White, and twenty-nine others, was,that it appears to have been acknowledged before a justice of peace of the State of Connecticut, and no evidence was adduced to show that in that state, a justice had power to take acknowment of deeds. This objection was overruled. The court possess sufficient knowledge of the laws of Connecticut to admit the deed without further proof upon that point. Very many of the ancient deeds of land in this state were acknowledged in that state before magistrates, and are frequently read in our courts. That was a question to the court, and any testimony must have been addressed to the court. And they needed none to a fact so fully known.

3d and 4lh. The admission of the deed from Stanton to Alien, and the decree Mien against Stanton, and the deed from Mien to Spafford. — IThe objection to all these is, that they forts UO title in Allen that enabled him to convey to Spafford; of course, Spafford could convey nothing to the Hunts, under whom the plaintiffs claim: that is, Mien, having ’conveyed to Spafford, April 5, 1802, when he had in himself no tille. The title of Spafford is nót perfected by the decree of chancery, and the deed from Stanton to Mien, in the year 1803. We find, On inspection of Mien's deed to Spafford, that it contains the usual covenants of Warranty. Hence his after-purchase enures to the benefit of Spafford. This is well settled law. It is salutary that such should be the law. What a farce it would seem for Mien to recover the lands of Spafford, because he has now a title which he had not when he cotiveyed to Spafford, and then Spaford recover of Allen the full value of the lands, and, perhaps, extra damages, on the covenants of Allen's deed, which assured Spafford at the timé, that Allen had a title and was well seized, and would warrant and defend the premises. The law 'abhors such circuity of action. A man may, by mistake, convey land he does not own. His grantee is made good, if the title is obtained and used in confirmation of that title, before any eviction or ouster. It appears in this case that Allen, when he conveyed to Spafford, had such an equitable claim to the land, as enabled him, by a bill in chancery, then pending, to compel Stanton to confirm his title. When this was accomplished, the title passed from Allen to Spafford, by operation of law, and in discharge of the covenants of Allen's deed to Spafford.

If, before this, Spafford had sued upon these covenants, ■ absd the suit was yet pending, after this he could recover only nominal damages. A suit brought by Spafford, after this, would be barred such a perfecting of title in Allen. The breach of the covenants would thereby be healed. We now speak upon supposition that Spafford sustained no special damage by eviction, or otherwise, while the title was in Stanton: The objection to these papers is also overruled.

The deed from Spafford to the two Hunts is objected to, because, the acknowledgment was taken before Royal Tyler, Judge of the Supreme Court; whereas, if he took the acknowledgment, he ought to have certified as a justice of the peace. ■

The constitution of this slate makes every Judge of the Supreme Court, ex officio, justice of the peace, throughout the state. Possibly tiie bptter course for them would be, to sign in that capacity in which they act. Rut, when such a Judge does an act which should be done as justice of the peace, and he signs as Judge of the Supreme Court, that, exm termini, carries with it justice of the peace also.' Yet not so, should he sign as justice of the peace, what should be done as Judge; for it is not included in die term. The deed in question was sufficiently.acknowledged, ■and correctly admitted in evidence.

The objection to the deed from árad Hunt to the plaintiffs, and the deed from Jonathan Hunt to the plaintiffs, is, the want of a sufficient description of the premises conveyed. The objection \as to one, is now abandoned by counsel. The description in the . other is, “ certain tracts and pieces of land, numbered 42, 44,” &c. It appears by the case that the township had been surveyed into Jots, and the lots numbered, and the division among the proprietors was made by drawing the numbers oí lots, as pointed out by the statute. ,A conveyance of lands, so surveyed and numbered and divided, maybe made by numbers of the lots; and the different terms, lots or pieces, would not affect the title. It is more safe to give a more full description, and write out the numbers at length, through fear of misreading figures. Rut, when there is no dispute about the figures, and all read them alike, they answer the purpose in a conveyance. These deeds were correctly admitted.

The only remaining question arises upon the exclusion of the vendue deed, offered by the defendant, or the virtual exclusion of it, by requiring proof on the par.t of the defendant, that the plaintiffs, at the period of die tax, held lands of the yearly value of two thousand dollars; the amount they might hold by their charter, free of taxation. Under this head two questions are raised.

1. Whether these lands are taxable under their circumstances ? and 2dly. If not, on whom the burthen of proof lies in the use of this vendue deed ?

The statute, laying the tax, lays it upon all the lands in the town, except lands sequestered to public, pious, and charitable uses. Now, it is contended that this means sequestered by charier, as some lauds are in every charter in the state. Rut wé see no sufficient reason thus to confine the expression. The législaturé might, in the statute, have said,sequestered by charter, or any other expression they saw fit to use. But théy have excepted what was thus sequestered. That is broad enough to include all methods of sequestering that are authorized by law. And we think the better construction is, to extend the exception to all that was, in a legal sense, sequestered to those uses, at the date of the statute assessing the tax.

Now we entertain no doubt, but that a conveyance to plaintiffs' for the use of the College, was a public use. It is in every sense public. No individual has any interest in it but what is common to others. Further, if the plaintiffs were capable of taking to the use of the College, the conveyance of the land, by Messrs. Arad and Jona. Hunt, passed the title effectually from them, and vested the same in the plaintiffs for the use of the College that is, sequestered it to a public use. And further, if the plaintiffs did not already hold lands of the yearly value of $2000, they were capable of taking, and the sequestration had become complete before thejax existed, and,of course, come within the exception of the statute. After the affidavits now produced by the plaintiffs, and none produced by the defendant, though a whole vacation has been given him for that purpose, we must treat,as beyond dispute, the fact that the plaintiffs had not lands of the yearly value of $2000, at the time the tax was laid. The conclusion is irre-sistable, that the lands were freed from taxation,and were not liable to the tax in question, and could not be divested from the plaintiffs by the vendue deed in question. Having arrived at this conclusion,it would be of no use to the defendant to grant him anew trial, even if the decision at the former trial was wrong, and the bur-then of proof was not on him; for we now must be convinced that he has no proof that would aid him in that respect. We further perceive that the whole cause has been decided correctly: that is, the verdict is correct. In such a case a new trial is not granted without some necessity forced upon the court by some evidently incorrect decision on the trial.

Paddock and Fletcher, for defendant.

Young, Prentiss and Starr, for plaintiffs»

There is now no importance to the other question, on whom the burthen of proof lay, as to the yearly value of the lands held by the plaintiffs ? This is of no consequence, while there is no proof favorable to the defendant. But it is urged that the fact lay within the knowledge and in the power of the plaintiffs, and not of defendant. And, further, that if the plaintiffs would claim an exemption from a general tax, they must show themselves within the exceptions of the statute.

The facts lay within the knowledge ol the plaintiffs more than of the defendant; but the defendant might claim inspection of the records of the corporation, or take the testimony of the clerk; and they could find no trouble from their want of power to obtain the proof that was thus in the knowledge of the plaintiffs. This1 question must not be determined wholly by the affirmative or negative character of the testimony ^wanted ; but more from the circumstance,who needs it to make out his case. He must produce it, whether it be affirmative or negative. For instance, if the defendant with his vendue deed showed atax fastened by the statute to all the land in town; this would make him a prima facie case, and throw upon the plaintiffs the necessity of proving whatever would discharge, their lands from the tax. In this case the defendant shows a tax that never was attached to any land that was sequestered to public, pious or charitable uses : he, therefore, should produce testimony to show, prima facie at least, that this land was not so sequestered. Showing a tax, which might or might not affect the land, does not make out his defence. He must show one that does so affect it. Then he will succeed, unless his prima facie showing is done away by the plaintiffs. The decision was correct requiring this prima facie evidence to be produced by the defendant. Let judgment be entered for the plaintiffs, according to the verdict.  