
    Lessee of Peters and another against Condron and others.
    In Error.
    EJECTMENT by the lessee of Richard Peters and John Barclay- in the Common Pleas of Huntingdon county, brought to' April Term, 1803.
    On the trial of this ejectment the plaintiffs gave in evidence a deed poll from Samuel Hunts, in whom the title to the tract of land in question was vested, to William Coxe, dated the 1st July, 1762. They also offered in evidence an exemplification, under the hand and seal of the recorder of ‘ Huntingdon county, of a deed of partition, dated the 6th March, 1769, between William Coxe, William Peters, (by his attomies, Richard Peters, Richard Peters, jun., and James Biddle,) and William Trent. The subscribing witnesses, Andrew Robeson and Alexander Graydon, were not produced, nor any account given of them: but on the deed it appeared, that Richard Peters, one of the said attornies, and one of the plaintiffs in this suit, on the 16th May, 1803, before the then recorder of the city of Philadelphia, made probate of the handwriting of the subscribing witnesses, and the sealing and delivering of the deed by William Coxe, William Trent, James Biddle, Richard Peters, jun., and himself. This evidence .was objected to by the defendants, and overruled by the Court, who sealed a bill- of exceptions.
    
      1 A plaintiff in the suit is not a competent witness to prove the execution of a deed to which he was a party with‘other persons. No person can be admitted to prove a deed until it appear that the subscribing witnesses are dead, or not to "be had.
    Where a deed is executed by three attornies in fact, the acknowledgment should he by all the attornies, as the act of their principal, not as their own.
    The^probate of a deed before the recorder of the city of Philadelphia, made on the 16th May, 1803, tor lands in Huntingdon county, held void.
    A deed cannot be given in evidence until some interest, $ilheR inlaw or equity, is shewn to exist in the grantor.
    
      The plaintiffs then offered in evidence an exemplification from the records of Huntingdon county, of a deed dated 4th February, 1786, between William Peters of the first part, Richard Peters, James Biddle, and John Barclay of the ser cond part, and Ralph Peters of the third part, containing, among other things, a conveyance from William Peters to Richard Peters, James Biddle, and John Barclay, of all his American estate on certain trusts. They stated on- offering it, that they meant to follow it by another deed between William Coxe, (to whom the plaintiff had traced title to the tract of land in question) William Trent and William Peters, by his trustees Richard Peters, James Biddle, and John Barclay, or some of them, shewing a partition or division of the tract in question, and other tracts, between William Coxe, William Trent, and William Peters, or his trustees, by which the title to the tract in question became vested in William Peters or his trustees the lessors of the plaintiff. The defendants objected to this evidence, because the plaintiffs had shewn no title or colour of title in William Peters. The Court overruled the evidence, and sealed another bill of exceptions.
    
      Huston, for the plaintiff in error.
    
      Duncan, contra.
   Tilghman C. J.

In this case the counsel for the plaintiff took two bills of exceptions to the opinion of the Court below. The first was on the rejection of an exemplification under the hand and seal of the recorder of Huntingdon, of a deed of partition, dated 6th March, 1769, between William Coxe, William Peters, (by his attornies. Richard Peters, Richard Peters, jun., and James Biddle,) and William Trent. The subscribing witnesses to this deed were Andrew Robe son and Alexander Graydon. Those witnesses were not pro» duced, nor was any account given of them ; but there was a Probate on the deed by the oath of Richard Peters, one of the said attornies of William Peters, and one of the plaintiffs in this suit, taken on the 16th May, 1803, since the commencement of the suit, before the recorder of the city of Philadelphia. Mr. Peters proved the hand writing of the witnesses, and the sealing and delivery of the deed by William Coxe, William Trent, James Biddle, Richard Peters, jun., and the deponent himself. The objections to this probate are insuperable. Richard Peters, being plaintiff in this suit, was not a competent witness, and if he had been, he could not be admitted to prove the execution of this deed, until it appeared,, that the subscribing witnesses were dead or not to be had. This the plaintiff’s counsel admits, but endeavours to support the probate as an acknowledgment by one of the grantors, which would be sufficient to have the deed put on record. But the probate is not all in the nature of an acknowledgment, nor could it at any rate be considered as an acknowledgment by one of the grantors, for William Peters is the grantee, represented by his three attornies, who are to acknowledge the instrument as his act and deed, and not as their own. Besides, this probate is altogether void, because the recorder of Philadelphia had no authority to enter it. By the act of 30th September, 1791, the recorder of the city of Philadelphia has power, “ to receive the proof or acknow- “ ledgtaent of all instruments of writing in the same manner “ as the justices of the peace might or could have done, un~ “ der the act entitled, “ an act for acknowledging and record- “ ing of deeds,” passed the 28th May, 1715, or as the justices of the Common Pleas might or could have done, by one other act, entitled, “ a supplement to the act, entitled, an act “for acknowledging and recording of deeds,” passed 18th March, 1775. Now by reference to these acts it will appear, that none but justices of the peace, or of the Common Pleas of the county in which the lands were situated, had power to .take proof or acknowledgment of the deed whereby the lands were conveyed; consequently, the recorder of Philadelphia could receive the proof of deeds only within the city, or at most the county of Philadelphia. The power was enlarged i» part by the act of 11th April, 1799, by which the recorder -of Philadelphia was authorised t6 take acknowledgments of deeds for lands, ini any part of the commonwealth. Why was he not also authorised to receive the proof of deeds ? I know not; but as no such authority was given, we cannot confer it on him. I am of opinion, therefore, that the exemplification, offered in this case, was not evidence, the original having been recorded in Huntingdon county contrary to law.

The second exception was to the Court’s opinion in rejecting the exemplification of a deed from William Peters to Richard Peters and others. The original had been well proved and recorded. But the evidence was objected to, because, no interest in the land in dispute had been shewn in William Peters ; before the deed was offered, the plaintiff had shewn title in William Coxe, and when he offered it he declared^ that it was -his intention to give in evidence after-wards another deed, by which it would appear, that William Coxe held in trust for William Peters. But the Court were of opinion, that he should first shew some interest in Peters in law or equity. With the opinion I agree. A deed is not evidence, unless it is relevant to the matter in issue; and it cannot be relevant unless the grantor has some right to the land in controversy.

This has been the general understanding and practice both at Nisi Prius and in Bank, with the single exception of a case in Dallas, where it was hastily laid down, that any deed whatever may be read to the jury. This decision has been considered as a slip in the hurry of business, for if it were law the administration of justice might be obstructed at the pleasure of any party, by reading papers no way pertinent to the cause. This is not denied by the counsel for the plaintiff, but he contends, that as he had undertaken to follow up this deed with other evidence which would render it pertinent, the Court ought to have admitted it; I cannot think so ; the natural order was, first to shew the interest of the grantor, and then his deed. Because, the plaintiff might have been mistaken as to the evidence which he intended to produce after-wards. Nor does it appear, that he had any such evidence in Court. On the contrary, I take for granted he had npt, for if he had, he would certainly have produced it, when h« understood from the Court, that it was necessary, in order to introduce the deed in question.

The plaintiff in error having failed in supporting either of his exceptions, I am of opinion, that the judgment should be affirmed.

Yeates J. absent.

Brackenridge J. concurred.

Judgment affirmed.  