
    [Sunbury,
    June 30, 1823.]
    GRIFFITH against BLACK. SAME against LAWSHE.
    A certificate of a notary m a foreign country, of the proof before him by two witnesses, of a power of attorney, for the sale of lands in Pennsylvania, is not suificient, under the act of 1705.
    Nor is evidence admissible, in an ejectment by one claiming under such power, that other persons had purchased and held lands in the same place under the power, that the defendant held a lot, not the one in dispute Under it; or that the attorney had acknowledged in writing the subsequent revocation of his power, and the appointment of a new attorney by the principal.
    These were writs of error to the Court of Common Pleas of Union county, in causes which depended on the same title, and were in this court decided together. They were ejectments for two lots of ground in the town Louisburg, commonly called Derr’s Town, on the west branch of the river Susquehanna. The plaintiff gave in evidence a patent to Richard Peters, dated the 11th JLugust, 1772, for a tract of 320 acres of land, called Prescott, including the land in dispute, and then showed a regular chain of title down to Peter Borger, of the city of Philadelphia, who by deed, dated the 2d January, 1787, conveyed in fee to Carl Ellinckheusen, of the city of Rotterdam, merchant. The plaintiff then offered in evidence a deed from Carl Ellinckheusen, by his attorney Peter Borger to Richard and James Potter, which deed recited the power of attorney. To this the counsel for the defendant objected. The court rejected the evidence, and an exception was taken to their opinion.
    The plaintiff offered in evidence the exemplification of a power of attorney recorded in the Roll’s office, from Carl Ellinckheusen “to Peter Borger, and gave parol evidence that the original was not to be found. This power of attorney was not signed or sealed by Ellinckheusen, but it was certified by a notary public of Rotterdam, that Ellinckheusen personally appeared before him with two witnesses, and declared that he had given power to Peter Borger, to sell and convey his lands and lots in the town of Louisburg. This declaration was attested by the said two witnesses and the notary, and certified in the usual forms, under the notarial seal, &e. The plaintiff offered, moreover, to give a variety of other matters in evidence, as introductory to the deed from Ellinckheusen by his attorney Borger to Richard and James Potter, after which he proposed to offer the said deed again in evidence. The substance of these matters was as follows: Evidence was offered that Peter Borger, as attorney for Carl Ellinckheusen, executed a deed to Matthias J. Ellinckheusen, (son of Carl,) for a number of lots in Louisburg. That Ellinckheusen, the son, sold many of these lots to persons who had erected buildings on them*, and held the possession to the day of trial. That the said Borger, as attorney aforesaid, sold and conveyed many other lots to other persons, who paid for the same, and had erected buildings, and held uninterrupted possession. That John Lawshe, one of the defendants, was in possession of one or more lots under a title derived from Peter Borger, as attorney to Carl Ellinckheusen, and that the said Borger, wrote a letter to the Rev. J. C. Helbron, dated the 18th January, 1791, by which he acknowledged that he had received notice of the revocation of his aforesaid power of attorney, and of the grant of a new power of attorney by the said Carl Ellinckheusen to the said J. C. Helbron. The evidence was objected to by the defendant, and overruled by the pourt, whereupon the plaintiff excepted.
    
      Hale and Greenough, for the plaintiff in error,
    urged, that the court below had erred in rejecting the power of attorney from Ellinckheusen to Peter Borger. The present case was a peculiar one. Many deeds have been made under this power for lots in Louisburg: and their titles will be shaken by requiring a power more regularly executed than the one offered on the trial. But independently of the power, there was an equitable title in the plaintiff, and to shew this, the papers offered ought to have been admitted. It was powerful evidence that the son of Carl Ellinckheusen accepted a deed for 50 lots under Borger's power, which he sold out, and neither Carl, nor any of his family, have ever objected to the sales made by his son or by Borger, under the power of attorney. It was also strong evidence that the defendant himself held under the same power. It is not yet settled, at what precise time a deed may be given in evidence without proof. Ellinckheusen having acquiesced for 27 years, during which the lots in Louisburg were built on, it ought' to be presumed that he had received the purchase money, and in that case he would have been barred in equity. 9 Johns. 170. 10 Johns. 292, 3. 2 Johns. 589.
    In Vanhorn v. Frick, 3 Serg. & Rawle, 278, the court held, that a number of circumstances which, in the aggregate, would in equity, bar the plaintiff’s recovery, ought to go to the jury. If one has title, and sees another going on to make improvements, supposing that he had title, and gives no notice, he is barred in equity. 2 Atk. 98. 3 Atk. 692. 2 Johns. Ch, 244, 253. Where one has given reason to another to think his title is secure, the court will compel him to make it secure.
    
      Lashells and Burnside, contra.
    Titles to land must be governed by the laws of the place where the land is situate. United States v. Crosby, 7 Cranch, 115. By the act of assembly of 1705, Purd. Dig. 43, all letters of attorney for the sale of lands in Pennsylvania, must be proved by two or more of the witnesses thereto, before any mayor or chief magistrate or officer of the city, town, or place where they are executed, and certified under the common or public, seal of the city, town or place where they are proved. A notary is not within these words: his business is of a‘commercial cha*» ' racter: bis certificate is at common law evidence of nothing but the protest of a bill of exchange. 1 Phill. Ev. 321 note. 1 Yeates, 200. A deed 30 years old proves itself, if accompanied with possession. But no possession has been proved under the plaintiff, and it was but 24 years from the date of the alleged power to the year 1814, when these suits were commenced. There can be no presumption of a power under these circumstances. Nor, indeed, can a good power ever be presumed where, as in the present case, a defective one appears. There is no privity between the defendant and Ellinckkeusen: the defendant stands on his own possession: and the plaintiff must show a title before he can recover. As to the equitable title, there is no proof of any contract for the lots, or moneypaid to Ellinckkeusen. on account of them.
   The opinion of the court was delivered by

Tilghman, C. J.

(After stating the case.) This is a summary of the evidence under cover of which, it was proposed by the plaintiff’s counsel to introduce the deed from Carl Ellinckkeusen, (by his attorney, P. Borger,) to Richard and James Potter. We have an act of assembly passed in the year 1705, providing for the case of sales of land, by attorneys constituted by owners of land living out of the state. This act directs, that proof of the power shall be made by two or more of the witnesses, before any mayor, or chief magistrate, or oificer of the city, town, or place, where such letter of attorney shall be made or executed, and accordingly certified under the common or public seal of the city, town or place where the said letter of attorney shall be proved. None of the provisions of this law has been complied with, in the present instance. There was no proof by witnesses, no mayor or chief oificer,. no common or public seal, and yet the transaction took place in Rotterdam, a great commercial city. The acts of a notary public are regarded by all nations, in matters relating to commerce, particularly in the protest of foreign bills of exchange. In such cases, their certificates, under their official seal are admitted as evidence. But when the conveyance of land is in question,- every country looks to its own laws. In that case, we pay no regard to foreign acts or certificates of any kind, further than they are sanctioned by our laws. It is clear, therefore, that the certificate of the notary, on the present occasion, could not be received as evidence', in any court of Pennsylvania. Let us consider, then, whether the plaintiff’s case was strengthened by his supplementary evidence. If no power of attorney had been shown, this evidence might have raised a probability that there had once been a power in existence, which had been lost. Though it must be confessed, the probability was lessened, by the total want of proof, that Carl Ellinckkeusen knew of the proceedings of Borger, that he had corresponded with him after the date of the supposed power, received money from him, or in any manner recognised any of his acts. But what throws an insu.parable difficulty in the plaintiff’s way, is, that he produced an exemplified copy of the power, suchas it was, and it was not such as our law requires. There is no ground therefore, for argument founded on probability. Here is the instrument, we see it, and it is radically defective. It is unnecessary to mention minor objections, or it might be remarked, that in all cases where presumptions are resorted to, possession is a strong ingredient, which in the present instance is wanting; for there is no proof of possession ever having been held under a title derived from Ellinckheusen. The defendants stand upon their possession, and put the plaintiff to proof of his title. As to those persons who purchased from Borger, and paid their money to him; who have made valuable improvements, and had long possession, I should be extremely sorry indeed, if they were in danger. But I trust they are safe. For as Ellinckheusen has never yet attempted to disturb them, there is no reason to suppose that he ever will. And even if he should, as I have no doubt that he really did appear before the notary in Rotterdam, and declare that he had constituted Borger his attorney, it is hardly possible that a case may not be made out, which in equity would prevent him from recovering against the present occupiers. The witnesses who attested the minute made by the notary in his official book, may be examined if living, and if dead, their handwriting may be proved. No doubt the book of the notary, it being of a public nature, is still in existence. So that upon a commission sent to Rotterdam, there is strong probability that such evidence may be presumed, as, either in 'law or equity, will quiet the titles of those who purchased, and paid their money to Borger, as attorney for Carl Ellinckheusen. But that will be of no service to the plaintiff in this ejectment. His cause was brought on without sufficient evidence. I am of opinion, that there was no error in rejecting the evidence which he offered, and therefore the judgment should be affirmed»

Judgment affirmed.  