
    Lewisburg.
    Shanks & als. v. Lancaster.
    
    (Absent Brooke, J.)
    1. On the trial of a writ of ejectment, the plaintiff, to connect his title with the patent under which he claims, offered in evidence a deed bearing date I3th January 1791, from a prior holder, to whom he traced title from the patentee, to a person from whom plaintiff traced the title by regular conveyances to himself. This deed was not proved, but the plaintiff introduced parol proof for the purpose of shewing possession in conformity with the deed; but the proofs did not shew the possession farther back than the date of the deed from this grantee to a purchaser from him, which was fifteen years after the date of the deed offered in evidence. The tenant also offered evidence to rebut and disprove the parol proof of the plaintiff, but the Court excluded the evidence of the tenant and admitted the deed. Held :
    3. It was error to exclude tenant’s evidence.
    2. The deed was improperly admitted, it not being proved, and there being no sufficient proof of possession in conformity therewith.
    2. The plaintiff who claimed under one of the heirs of K, offered in evidence a record of a suit for partition of If’s lands amongst his heirs. This record shewed that there had been a decree appointing commissioners to lay off and assign to the heirs respectively, their shares of said lands, and that these commissioners had performed the duty, and made their report to the Court, accompanied by a plat of the division, which report and plat were ordered to be recorded. Held : The record is admissible evidence that partition had been made by the final decree of the Court amongst said heirs.
    3. A power of attorney for the conveyance of lands, falls within both the letter and spirit of the act regulating conveyances, 1 Rev. Code, ch. 99, § 7, p. 363, authorizing deeds to be acknowledged before any two justices of the peace for any county or corporation of the United States; and the certificate of the justices is sufficient for the admission of the power of attorney to record with the conveyance, although it does not certify the instrument to any Court or clerk’s office, for the purpose of being recorded.
    4. The act 1 Rev. Code, ch. 99, § 15, p. 365, does not embrace powers of attorney, or authorize two justices to take and certify the privy examination of the wife as to her execution thereof.
    5. A deed executed by an attorney in fact, in which he refers to the power of attorney, but conveys in his own name as attorney, and covenants and warrants in his own name on behalf of his principal, the deed being signed with the name of the principal, as by the attorney, is the deed of the principal.
    6. It is a sufficient execution of a deed by an attorney in fact for his principal, if he signs the name of the principal with a seal annexed, stating it to be done by him as attorney for the principal ; or if he signs his own name with a seal annexed, stating it to be for the princpal.
    7. A deed of husband and wife, executed under a power of attorney, is the deed of the husband, though it is void as to the wife, the power being void as to her.
    .8. There can be no adversary possession against the Commonwealth; and therefore a junior patentee cannot go behind the elder patent for the purpose of giving colour to his possession prior thereto. But a junior patentee may go behind his own patent, and also behind the elder patent, for the purpose of giving colour to his possession from, or subsequently to the granting of the elder patent.
    9. It is immaterial whether an adversary possession under a claim of title be under a good or a bad, a legal or an equitable title.
    10. A tenant in ejectment claiming under a junior patent founded on an inclusive survey, may, to shew possession under colour of title prior to his patent, introduce in evidence the entries for the different tracts embraced in the inclusive survey, the order of Court authoriziag the survey, and the survey itself
    This was an action of ejectment in the Circuit Court °f Botetourt, by Thomas C. Lancaster against Thomas Shanlcs and John T. and Francis T. Anderson. On the trial, the plaintiff introduced in evidence a patent from the Commonwealth of Virginia to Henry Banks, bearing date the 1st of August 1786, and embracing the land in controversy ; and a deed from Banks to Charles Young, dated 14th of December of the same year; and then offered in evidence a deed from Young to Henry Fisk, dated the 13th of January 1791, which was attested by three subscribing witnesses; and on which was endorsed a certificate not under seal, that Young had, on the 13th. of January 1791, acknowledged the said deed before Samuel Miles, mayor of the City of Philadelphia. This deed had been presented to the County Court of Botetourt, in May 1834, and on the certificate aforesaid had been ordered to be recorded. The defendants objected to the introduction of this deed as evidence, without proof of its execution, or of possession under it; and their objection was sustained by the Court. The plaintiff then offered in evidence a deed from Fisk to Peter Korfman, dated the 13th of November 1805, which had been duly admitted to record ; and further offered to prove, that by virtue of this conveyance to him, Korfman entered upon said land, and held possession thereof for thirty years. To this evidence the defendants objected, because Korfman's possession, if proved, must have commenced fifteen years after the date of said deed from Young to Fisk, and was not in conformity thereto, nor accompanying said deed. But the Court overruled the objection; and they excepted to the opinion of the Court. The plaintiff then proved, that in 1805, Korfman had cut timber on the land, which he sawed into plank and sold; that he sold timber from the land to another person, who, whilst he was cutting it, was visited by Henry Stair, under whom the defendants claimed, who said it was not his land, but Korfman's; that after the death Korfman, the land was divided in 1834, by commissioners appointed by the County Court of Botetourt, among the heirs of Korfman; and that afterwards, Jacob Beckner, who had married a daughter of Korfman, and to whom the land in controversy was allotted, put up a log pen on the land for the purpose, as he said, of taking possession of the land. No proof of the execution of the deed from Young to Fisk was offered, except the certificate before mentioned.
    The defendants then offered to introduce evidence to prove, that Korfman's sale of plank was not until 1820; that the defendants, and those under whom they claimed, had obtained a patent for said land in 1803, and had held continual and actual adversary possession of it ever since to the time of the trial; and that this actual possession existed at the date of the deed from Fisk to Korfman; and that Stair had never admitted that the land in controversy was not his land. But the Court refused to hear the said evidence of the defendants; and on the evidence of possession given by the plaintiff, permitted the deed from Young to Fisk to be given in evidence. Whereupon the defendants again excepted to the opinion of the Court.
    After the evideuce mentioned above had been introduced, the plaintiff offered in evidence the record of a suit between Korfman's heirs, for partition of his real estate. The suit was brought in the County Court of Botetourt, by one of the heirs of Korfman against the others, for a partition : and the Court made a decree appointing commissioners to lay off and assign to the heirs respectively entitled to distribution, their shares of the said lands, and make report thereof to the Court; and one of the heirs admitting that he had received a sum money for the rent of a part of Korfman?s land, he was directed by the decree to pay over any such money in his hands to a receiver appointed by the Court, who was directed to pav out of this fund the costs of the suit, and if any surplus remained, to pay it over to the parties entitled.
    Under this decree the commissioners proceeded to divide the lands, and allot to each their shares; and returned to the Court a report of their proceedings with a plat of the lands, and of the division they had made; and at a subsequent term of the Court, it was ordered to be recorded. The defendants objected to this evidence on the ground that no final decree had been rendered in the cause: but the Court overruled the objection and admitted the evidence, and the defendants again excepted.
    The plaintiff having proved that Jacob Beckner had married Catharine Korfman, one of the children and heirs of Peter Korfman, and to whom the land in controversy had been allotted by the commissioners in the division of Korfman's lands before mentioned, offered in evidence a power of attorney from Beckner and wife to Abraham Beckner, with the certificate of two justices of the peace of the county of Hawkins in the State of Tennessee, where the parties lived, of the acknowledgment of the power by Beckner, and of the privy examination of his wife ; and with these they offered in evidence a deed executed by Abraham Beckner to the plaintiff, for the said land. The power authorized the attorney to sell and convey the land. The certificate was of the acknowledgment of the power by Beckner and of the privy examination of the wife; but it did not state that the justices were requested to certify it to any officer or Court, that it might be recorded.
    The deed made by the attorney was in the name of “ Abraham Beckner, attorney in fact for Jacob Beckner 
      and Catharine his wife, of the first part.” It proceeded in the same style to convey the land, describing it as land allotted to Jacob Beckner and wife in the division before mentioned; and in the same style he covenanted “ for himself, his heirs and executors, in behalf of the said Jacob Beckner and Catharine his wife, under authority of a power of attorney duly executed and of record,” &c., to warrant the title of the land to the plaintiff, free from the claims of himself and his heirs, and from the claim of Jacob Beckner and his wife, and their heirs. And it concluded: “ In witness whereof the said Abraham Beckner, attorney in fact for Jacob Beckner and Catharine his wife, as aforesaid, has hereunto set his hand and seal this day and year first above written.
    
      Jacob Beckner, ******** . „ , . .. i Seal.® and Cathanne his wife, S»**»S
    ******** Seal. | 5 I *£4**4** By Abraham Beckner, their attorney in fact, 1*!
    The defendants objected to the admission of the power of attorney as evidence, on the ground that it was not proved; and they objected to the deed as not being the deed of Jacob Beckner. But the Court overruled the objections, and admitted the papers as evidence; and the defendants again excepted.
    The plaintiff having introduced the evidence above mentioned, and also evidence tending to prove possession by himself and those under whom he claimed, in accordance with his title, the defendants, to sustain the issue on their part, introduced a patent from the Commonwealth to Nicholas Carper, bearing date the 11th day of July 1803, founded on an inclusive survey, and embracing within its boundaries the land in controversy ; and they offered to introduce as evidence the entries for the different tracts embraced in the inclusive survey, the order of the County Court of Botetourt authorizing that survey, and the inclusive survey itself. These entries were severally made in April 1786, November 1791, and March and May 1794,- and the order of the Court was in February 1794. And they stated the object of this evidence to be to shew a colour of . , . . . , „ . title commencing anterior to the date of the patent to @ar!Peri on which to ground an adversary possession; and they professed to be ready to prove the possession of the land in controversy in said Carper from the date of said entries and inclusive survey down to the emanation of the said patent and long after. But the Court excluded the evidence, and the defendants again excepted.
    The jury found a verdict for the plaintiff, and the Court gave a judgment accordingly; and thereupon the defendants applied to this Court for a supersedeas, which was granted.
    
      Michie, for the appellants.
    Eskridge, for the appellee.
   Baldwin, J.

delivered the opinion of the Court.

The Court is of opinion, that the Circuit Court erred in refusing to permit the appellants to introduce the evidence offered by them to the Court, as stated in their first bill of exceptions, for the purpose of rebutting the evidence which the appellee had introduced, as stated in that bill of exceptions, in order to prove that there had been such possession in conformity with the alleged deed from Charles Young to Henry Fisk, of the 13th of January 1791, as warranted the introduction of that paper as evidence to the jury; and that the Circuit Court moreover erred in permitting that paper to go in evidence to the jury, there being no legal proof of its execution, and no sufficient evidence of such possession in conformity therewith.

And the Court is further of opinion, that the Circuit Court did not err in permitting the appellee to give in evidence to the jury the copy of the record from the County Court of Botetourt, in the appellants’ second bill of exceptions mentioned, as proof that partition had been made by the final decree of the said County Court amongst the heirs of Peter Korfman deceased, of the lands in that record mentioned.

And the Court is further of opinion, that a power of attorney for the conveyance of lands falls within both the letter and the spirit of the seventh section of the act regulating conveyances, 1 Rev. Code, ch. 99, p. 363, authorizing deeds to be acknowledged before any two justices of the peace for any county or corporation within the United States; and that such instrument may, upon due certificate by the justices of such acknowledgment by the grantor therein, be admitted to record, together with the deed of conveyance made under the authority thereof, in the proper county or corporation within this Commonwealth. And although the form of the certificate by the justices of such acknowledgment of a deed given in the act, states that the party desired them to certify the acknowledgment to the clerk of the County or Corporation Court of , in order that the same may be recorded; yet, inasmuch as the statute does not require the precise form, but only the effect of the certificate therein stated, to be observed, this, as well as other parts of the statute, ought to be construed according to its spirit, and with a view to the purpose it was intended to accomplish. The object of mentioning the county or corporation in the certificate is not to determine whether the grantor desires that the instrument shall be recorded or not, for that is the privilege not of the grantor but of the grantee, who may exercise it, upon proof by the subscribing witnesses of the sealing and delivery of the deed, without proving by them that the grantor desired it to be recorded. Nor was it the intent of the legislature that the validity of the recordation should depend upon the will of the grantor in regard to the county or corporation in which the deed should be admitted to record, for that is a matter which the law itself has determined, by requiring the instrument to be recorded in the county or corporation where the land lies. The only rational purPose mentioning the county or corporation in the certificate, is to designate the county or corporation in which the law requires the deed to be recorded, for wherever that may be, it is idle to suppose that the parties did not intend necessarily, and as a matter of course, that the instrument should be there recorded. And after a deed has been recorded in the proper county, to hold the recordation invalid, because the certificate does not express the grantor’s desire to that effect, would sacrifice the substance for the sake of the shadow, and in all probability shake many land titles within this Commonwealth.

The Court is therefore of opinion that the power of attorney from Jacob Beckner and wife, to Abraham Beckner, in the appellants’ third bill of exceptions mentioned, was duly acknowledged, certified and admitted to record in Botetourt county, as regards the grantor Beckner, but not as regards the female grantor therein, inasmuch as the 15th section of the said act, which confers upon two justices of the peace the power to take, upon privy examination, and certify the acknowledgment by a feme covert of a deed executed by her and her husband, embraces only by its letter and its spirit deeds of conveyance, and not powers of attorney.

And the Court is further of opinion, that the deed of conveyance from the said Abraham Beckner, as attorney in fact of the said Jacob Beckner and wife, to the appellee, also mentioned in the appellants’ third bill of exceptions, is the deed of the said Jacob Beckner, but not of his wife; the same having been duly executed as regards him "by his said attorney in fact, pursuant to the authority conferred by said power of attorney, and duly admitted to record ; but as regards her, having been executed and admitted to record without any lawful authority. There is nothing in the form of the deed, or of its execution by said attorney in fact, to prevent its operating as the deed of the said Jacob Beckner. It is a sufficient execution of a deed by an attorney in fact for his principal, if he signs the name of the principal with a seal annexed, stating it to be done by hitn as attorney for the principal; or if he signs his own name with a seal annexed, stating it to be for the principal: and the present instance embraces both these modes of execution. And though by the terms of this conveyance, Abraham Beckner bargains and sells and warrants the land, yet he does so for, and on the part of, and by the authority of his principal, as conferred by the power of attorney: and this raises a use from the principal to the grantee, which the statute executes by passing the title.

The Court is therefore of opinion, that the Circuit Court did not err in permitting said power of attorney and said deed to the appellee, to go to the jury; the same being proper and lawful evidence for the purpose of proving that whatever title or interest the said Jacob Beckner may have had in the subject, passed by conveyance from him to the appellee.

And the Court is further of opinion, that the Circuit Court erred in refusing to permit the appellants to give in evidence to the jury the entries, order of the County Court, and inclusive survey, in their fourth bill of exceptions mentioned, upon which the patent therein mentioned, to Nicholas Carper, under whom the appellants claim, is founded; for although there can be no adversary possession against the Commonwealth, and therefore a junior patentee cannot go behind the elder patent for the purpose of giving colour to his possession prior thereto, yet there may be an adversary possession against one who has derived title from the Commonwealth, and therefore a junior patentee may go behind his own pateut, and also behind the patent of the elder patentee, for the purpose of giving colour to his possession, from: or subsequently to the granting of the elder patent: and he and those claiming under him may do this not only . . . . to establish an adversary possession under his junior patent> w^ich confers itself no legal title, but to establish an adversary possession prior to his junior patent, under the entries and surveys upon which the same is founded, it being immaterial whether an adversary possession under a claim of title, be under a good or a bad, a legal- or an equitable title.

It is therefore considered by the Court that the judgment of the Circuit Court is erroneous.

Judgment reversed with costs, verdict set aside, and cause remanded for new trial, on which the Court is to be governed by the principles above declared.  