
    *Daniel B. Webster and others v. Mary E. Harris and others.
    A certified copy from the office of the county recorder .of an instrument not required to be recorded, can not be given in evidence as proof of the execution and contents of the lost original, but with other proof of the-execution of the instrument, it may be evidence to prove its contents.
    
      Where the intention is palpable, and the consideration has been paid, the contract will be so reformed as to conform to the manifest intention of the parties.
    Where the terms of a power of attorney are departed from under circumstances that justify the belief that the departure was made pursuant to the parol assent of the principal, the contract will be enforced, if in other respects there are no obstacles.
    Where the general and specific prayer of a bill are sufficient to meet the principal object of the complainant, the prayer is sufficient.
    This is a bill in chancery, reserved in the county of Athens.
    The object of the bill is to .quiet complainant’s title to the north half of section 19, and the whole of fraction 19, in township 6, range 12, in the Ohio Company’s purchase, and the execution of a contract for the sale of the same.
    It charges that, in 1805, Moses Cleveland, being the owner of the section and fraction, by Payne Cleveland, his attorney in fact, sold the same to Archibald Johnson for $1,610, to be paid, part in horses, part in four lots in McKeesport, and part in cash. The contract of sale was reduced to writing.
    Johnson delivered the horses, and paid all the money except ninety-five dollars before November, 1806, when Moses died before the ninety-five dollars was paid, or the four lots conveyed. In November, 1807, on petition of Kirtland, administrator of Moses, the court of common pleas of Trumbull county, Ohio, where Payne resided, ordered the contract tó be executed ; which has been done on the part of Johnson, and the administrator made Johnson a deed in 1808, which has been lost, and was •never recorded,-and in which, as well as in the said contract and proceedings, the land is imperfectly described, and no legal title passed. Johnson in 1808 conveyed *the fraction and north half of section to Stingecomb, who possessed and paid taxes on tho same till a short time prior to 1823, when it was sold for taxes. Complainants have now both of these titles, to wit, the tax title and Stingecomb’s title. They have been since 1823, and are now, in possession and have a legal tax title, and pray to be quieted against defendants, who are the heirs of Moses Cleveland and claimed title; and also for an execution of said contract of sale. Stingecomb and Johnson’s heirs are also made defendants.
    The heirs of Moses answer, admitting their heirship, and that they claim title to the land, and say that they are ignorant of the other matters in the bill.
    The other defendants are in default for answers.
    The defendants’ counsel object to the execution of the contract of sale:
    1. Because the power of attorney is not proved.
    2. Because the contract of sale does not pursue the power.
    The facts of the case, necessary to be noticed, as bearing upon these objections, are substantially as follows :
    There is on file a certified copy, from the recorder’s office in Trumbull county, Ohio, of a power of attorney from Moses Cleveland to Payne Cleveland, dated May 7,1804, in Windham county, Conn., acknowledged before Goddard, notary public, recorded in Trumbull county, December 11, 1804, empowering Payne Cleveland, “ to take care of, manage, superintend, receive, bargain, selb and convey all the land ” which Moses had “ in the Ohio Company,” and also his “ Salt Spring ” land in Trumbull county. This paper has no seal or subscribing witnesses. The notary, before whom it was acknowledged, is dead. This copy has also been recorded in Athens county, and a copy of this last record has been also put on file in this case.
    Moses Cleveland owned two “shares ” in the “Ohio Company.” In one of these shares was this section and fraction *19, and in the other was section and fraction 13, which adjoins section and fraction 19.
    Moses Cleveland died in November, 1806. He left three children, of whom one has since died without issue. The remaining two children, the defendants, were minors, aged 7 and 11 years at the time of his death. Mrs. Harris was married in February, 1814.
    Mrs. Betsey Cleveland, of Trumbull county, Ohio, testifies that she is the widow of Camden Cleveland, deceased, aged 83; that Payne, who was brother to Moses and Camden, came to Ohio, Trumbull county, in 1803 or 1804. She understood that her father, Aaron C., and her brother Moses had bought some rights in the Ohio Company; that Payne and Moses owned them together, and that Payne had power of attorney to sell them. Payne and her husband, about a year after he came on, went down the river to see the land. On the way back, she understood, he sold the section and fraction to one Archibald Johnson, of McKeesport, Alleghany ■county, Pennsylvania. He brought home several horses, which, together with some lots in McKeesport, he said he got for the land. One of the horses died, the others were sold by Payne to Slay-maker & McG-ilbert, who ran off without paying for them. Aaron ■died long before 1800.
    Hon. George Tod, deceased, was Payne’s executor. David Tod, Esq., son of George Tod, has searched his father’s papers, but finds no power of attorney, nor any other papers relating to the case, except the original contract of sale executed by Payne to Johnson, which he found after this was brdught. This is dated .July 17, 1805. The witnesses arc both dead. By this contract Payne, “ as agent for Moses,” sells to Johnson a tract of land, etc., ■containing 640 and 262 acres, etc., for $1,610, as follows: One stud-horse and two others, specified at $520; lots Nos. 6, 26, 22, and 25 in McKeesport, at $800, and a balance, $390, in horses, in two equal yearly payments, to Payne, as agent.
    By a copy of a record from the office of the clerk of common *pleas in Trumbull county, it appears that in November, 1807, Kirtland, administrator of Moses, filed a petition in said court, setting forth this contract, and that it was made under a power of attorney, etc., and that Johhson had paid all except $95, and praying the court to order a deed to Payne for the lots, and a deed to Johnson for the land—which the court accordingly ordered; but the land is imperfectly described, the county in which it lies being left blank.
    Shortly after this order of the court, Johnson conveyed the lots to Payne, and paid the administrator, Kirtland, $95. There is no direct proof of a deed for the land made under this order. Indorsed on the back of the contract is Johnson’s receipt for such a deed, together with the receipt for the horses, etc., by Payne and Kirtland,
    In 1808, Johnson conveyed the fraction and north half of the .section to Stingecomb, of Alleghany county, Pennsylvania, by deed of that date, which is the only deed on record in Athens county prior to the tax sale. This deed recites-that Johnson derived his title under a “decree of the court of Trumbull county.”
    Stingecomb is still alive, and testifies that he paid Johnson two ■dollars per acre, a full price for the land, and came on and occupied said land, and had his deed recorded in May, 1809. Johnson told him he had paid up for the land, and that Payne had a power of attorney to sell it, and that he had seen the power of attorney. Johnson was Stingeeomb’s brother-in-law. He went to some place in Ohio twenty years ago, and Stingecomb understands he died ■insolvent, but does not know where he died, nor who has the control of his papers, or whether he had any administrator, or who his heirs are, or whether they are to be found. Stingecomb says he paid the taxes till 1818 or ’19, and that Paul Fearing, of Marietta, was his agent. Fearing also confirms this.
    David Putnam, of Marietta, says he, as agent for Moses, paid the taxes on the two entire shares, from 1805 to 1807. Woodbridgc •paid them as agent for Moses from 1799 to 1805. *In 1806, Payne and Kirtland jointly requested him to undertake the payment of taxes on Moses’ lands, which he accordingly did, and paid the taxes till 1819, omitting the section and fraction 19. Kirtland furnished the money. His last letter, inclosing twenty dollars, was in October, 1819. In 1820 he refused to send funds, saying ho had settled his administration account. Since 1808, the one-half section and fraction have been taxed in Stingeeomb’s name, and the other lands in M. Cleveland’s name, or his heirs.
    Esther Cleveland, Moses’ widow, and one Adams, were appointed administrators of Moses in Connecticut, and General Ripley, of Trumbull county, Ohio, acted as their agent in Ohio. Among 'General Ripley’s papers relating to their business is found a paper purporting to be a settlement between Kirtland, as administrator, and Payne, on behalf of the heirs of Aaron C., which' contains •charges in favor of K., for “settling witli A. Johnson,” in December 1807—“ money sent David Putnam to pay taxes ”—for “fees on money collected of Johnson”—“going to McKeesport to sell lots,” etc., and a statement, in conclusion, signed by both, that the notes on Slaymaker &'McGilbert, and the land in the Ohio Company, except that sold to Johnson, and the four lots in McKeesport, belonged, 17-38 parts to Aaron’s heirs, and 21-38 to Moses’ heirs; and that Payne held a settlement of Aaron’s estate which was not included in this settlement.
    It appears from an old paper on file, found also among General Ripley’s papers in relation to the estate of Moses C., that Kirtland leased these four McKeesport lots, and received the rent till 1813. Lot No. 6 rented for forty dollars in 1809, and seems to have been .sold by Kirtland, as administrator, in 1813.
    Esther Cleveland, and Adams, administrators of Moses, in June, 1812, filed a petition in said Trumbull court praying the execution of a contract made by Payne, “ as attorney in fact for Moses,” to one Heaton, of a part of the “ Salt Spring ” land—made in May, 1806—which the court ordered *to be executed. Among the papers in that case, with the petition on file in the clerk’s office, is an exact copy of the recorded power of attorney.
    George Parsons testifies that he was clerk of said Trumbull court from 1807 till 1838; that Kirtland’s petition is in his own handwriting; that Kirtland is above eighty years old, and his mind nearly all gone now; that John S. Edwards, an attorney of “very good standing,” was the recorder, and filed the petition of' Esther C., and Adams; that since 1803 it has been customary to sell land on credit in the “ Reserve,” and that Payne traded in that way. H. Bartlett and I. Barker testify that this custom was the same in Athens county.
    Payne, by his will, devises his equitable or legal right, to one-half of the remaining Salt Spring land, and the remaining lands in the Ohio Company, and lots in McKeesport.
    Complainants have been in possession, under the tax title, for some sixteen years. The tax sale was in May, 1823, to Skinner, whose title, if any, has been transferred to them; and in 1840, Welch, one of the complainants, purchased from Stingecomb, who transferred to him, and he to the other complainants, all the right of Johnson to the land.
    The land was taxed in the name of Stingecomb from 1808 to 1823, and the adjoining section and fraction No. 13, taxed in the name of Moses C. during that time, and till 1831, when it was soldfor taxes. There was no actual possession till 1823—the land being wild.
    In 1839, Dr. E. G. Carpenter called on Dr. Harris at Canterbury, Connecticut, for Welch, to get him, and the heirs, his wife and sister-in-law, to release their right, for a nominal sum. This was in presence of his wife—stating that the land had been sold by Payne, Cleveland, etc., as stated above. The doctor replied that he knew Payne had sold some of the Ohio land, but would be unable to tell which land, without referring to his tax receipts—which receipts were then brought forward by Mrs. C., and examined. They found in the bundle, which was large, receipts for the section and fraction thirteen, from a very early date to within a few years of *that time, but no receipts for this land. The doctor then said 'his attorney in Cleveland, Ohio, had some papers in his hands, and might have receipts for this land, and that he would make inquiry, and if he became satisfied they had not paid the taxes, they would release, and make no charge.
    The probate records of Canturbury show that Esther and Adams, who are both dead, settled with Kirtland, and with Payne.
    John Welch and Simeon Nash, for complainant:
    Whether the copy of the power of attorney from the records of Trumbull county or of Athens county be competent evidence to prove its execution, is immaterial, inasmuch as we prove facts which authorize the court to presume that such an instrument was executed. All the circumstances go to establish the fact, time, long-continued acquiescence, possession, etc. Under these circumstances the court will presume the legal execution of a legal power of attorney from Moses to Payne Cleveland. 8 Ohio, 83, 135, 518; 3 Ohio, 107 ; 1 P. C. Bro. 165; 7 Johns. 5; Greenl. Ev. 24, 25, 50-54;. 13 Johns. 513; 10 Johns. 475; 9 Ohio, 177; 1 Greenl. 21; 7 Wend. 62; 2 Phil. Ev. 311, 360; 12 Johns. 76; 6 Har. & Johns. 336, 353, 361; 1 Stark. Ev. 69, 330 ; 7 Wheat. 110; 10 Ohio, 513, 524.
    If the execution of the instrument be established, there is nothing in the technical objection that the contract of sale was in the name of the attorney and not in the name of his principal. A court of equity will reform contracts of this kind, and make them conform to the intentions of the parties. A defective execution of a power will always be aided in a court of equity, provided there is a power, and an attempt to execute it. Sug. on Pow. 96-100; Jer. Eq. 372; 1 Story’s Eq. 181-184; 3 Ohio, 529; Sug. on Vend; 716 ; Poth. on Obl. 82, 447, 448; Story on Cont. 201; 9 Cranch, 153.
    ^The sale in this case was well made, for though formerly it was held that the power to sell was a power to sell for cash only, the rule is now changed, and under a general power, the agent may sell according to the custom of the country. But in this case, the most comprehensive terms are used in conlerring the power upon the agent. 3 B. & A. 616; 12 Johns. 300; 5 Johns. 43 ; Com. on Con. 542; 13 Johns. 367 ; 6 Johns. 69 ; 1 Liv. Ag. 96, 104, 105; 3 Johns. 319 ; Pal. Ag. 159, 173; 2 H. Blk. 618 ; 7 Johns. Ch. 35; 22 Pick. 92 ; 2 H. Blk. 92; 1 Ohio, 234.
    But were the law otherwise, the court will not, after so long acquiescence on the part of those interested, disturb the sale. It will rather presume a confirmation, or an original parol authority to sell in this manner. And the circumstances need not be so strong to authorize a presumption of confirmation, as a presumption of original power. See the authorities cited above, and also Paley’s Agen. 112, 171, 173, 323, 324, 331; 5 Johns. 47; 3 Dow. 16; 1 Chit. Eq. Dig. 649, 655; 17 Ves. 97; 1 Ball. & B. 489; 4 Bibb, 530; 8 Ohio, 540.
    Charles 0. Converse, for defendants:
    At the time of recording the pretended power of attorney, there was no law of Ohio authorizing the recording of such instruments. Consequently, the copy of the record is no evidence of the execution of the original; and till that be produced, or a copy procured according to the mode in which all instruments not required to be recorded are obtained, there is no legal evidence that any power of attorney ever existed from Moses to Payne Cleveland. 2 Ohio, 55; 3 Ohio, 368; 23 Pick. 80; 8 Peters, 30; 1 Har. & Johns. 527; 1 Tenn. 111; 2 Wall. 75; 1 Davis, 522; 1 Call, 117; 7 J. J. Marsh. 202 ; 2 Porter, 24.
    The circumstances do not authorize the court to presume *the execution of a power. No knowledge of the acts of Payne Cleveland is brought home to Moses, nor to his heirs, and the acquiesence of others can not affect their rights. Neither the admissions, nor the acts of administrators, can affect the titles of heirs to real estate. 1 Munf. 437; 6 Johns. Ch. 373; 4 Har. & Johns. 270; 3 Gill & Johns, 259; 2 Yerg. 10; 5 Hill, 135; Phil. on Ev. by Cow. & Hill, 317, 318, 366.
    The complainants, and those under whom they claim, have never been in possession under the purchase from Payne Cleveland, but under the tax title. Hence they make no case for presumption. Where there is no possession, the presumption fails. Gilbert on Ev. 103, 104; Bull. N. P. 555 ; 3 Johns. 292; Gilb. 19 ; Peake, 72, 73 ; Fleta. 426; 1 Roll. 132 ; 2 Mod. 323; 2 Term, 466; 1 Blk. 532; 4 N. H. 371; 8 Wend. 431; 5 Peters, 319.
    If the existence of the power—both its execution and its contents—as claimed by the complainants, were established by positive testimony, the case shows no sale made by the attorney, in pursuance of the power.
    The power, not being under seal, did not authorize the attorney to bind his principal by deed. It required, by its express terms, a sale in the name of Moses Cleveland, and did not authorize a sale in the name of Payne Cleveland.
    
      The contract attempted to be set up, is under seal, and in the name of Payne Cleveland alone. It is his contract, both at law and in equity, and can not be made available as against Moses Cleveland or his heirs. 1 Hill’s N. Y. 111.
    But there is another departure from the power under which the attorney presumed to act. He sold the land for certain town lots to be conveyed to himself, and certain horses delivered, and to be delivered, by Johnson. The power authorized no such sale. It did not authorize an exchange or a barter. In the absence of express direction, the agent is only authorized to sell for cash. 5 Johns. 58; 11 Ves. *467, 477; 1 Mod. 214; 3 Hill, 361; Ib, 374; 1 Ohio, 232; 5 Pet. 319; 8 Barr. & Ald. 616; 12 Mod. 514; 1 Campb. 250.
    The description of the land is too defective to convey any title, or to advise the court what lands were intended, and for this reason the contract should be held void. 4 Mass. 205; 3 S. & E. 607.
   Birchard, C. J.

The first question which presents itself in considering this case is the authority of Payne Cleveland to contract in behalf of Moses Cleveland. A certified copy of an instrument is produced from the recorder’s office, in the county of Trumbull, which is, in form, a full and ample power of attorney, authorizing Payne Cleveland to bargain, sell, and convey” the lands in controversy, together with certain other lands lying in Trumbull county. This instrument purports to have been signed by Moses Cleveland, is without a seal or subscribing witness, and was acknowledged under date of May 7, 1804, before Cavin Goddard, a justice of the peace and notary public, at Windham county, in the State of Connecticut. It was recorded December 11, 1805. It is supposed that no law of this state required the recording of a power of attorney to convey lands prior to 1818, and that this certified copy can not be received as clothed with any official sanction belonging to duly recorded instruments, properly executed, and by law required to be placed on record. We have already, at this term, decided, and it had before been repeatedly held, that an imperfectly executed instrument, or one not required to be recorded, derived no efficacy from being placed on record.

Without being referred to a statute authorizing the record of this instrument, and in the absence of authority showing that a power executed as this was, would be valid, even by the laws of Connecticut (although it is believed that without a seal it would be well executed under the laws of Connecticut for the conveyance of lands within the state), we must reject the certified copy; as evidence to. prove the existence *and contents of the original. Can it be received as a copy, or as an item of evidence to show the contents of the original, in connection with the other proof of facts and circumstances connected with this case? We think it may be so received. It is found in the records of a public office, made over forty years since. Those living at its date, and who could have testified concerning the original, have departed from the scene of action. It was acted upon more than forty years ago, and (or many years after its date, and treated as a genuine instrument by those who were interested in knowing whether it was a valid power. Whether it was genuine, contracts and conveyances were made in virtue of it, and the aid of courts invoked and granted to perfect such conveyances. Possession of lands was surrendered, and taken and occupied till time has cured all defects in the conveyances so made. Under this state of (acts it may be presumed, and we are satisfied that the presumption is the truth, that there was an original, of which this is an exact copy. As to the lands in the Salt Spring tract in Trumbull, the execution of the original would be presumed to sustain the long possessions of Heaton. And to establish the genuineness of the lost instrument in one instance, is sufficient to authorize the reception of a copy.

The next inquiry is, what rights were acquired by the acts of Payne Cleveland done under this power? In his contract with Johnson he describes himself as “Payne Cleveland, attorney in fact for Moses Cleveland.” In all other respects the article of agreement is the same as if he wore contracting in his own name and on his own behalf. The covenants are his personal covenants—the real estate is his. The lots received in McKeesport, as part of the consideration, appear to have been conveyed to him, and yet, in 1810, we find the administrator, Moses Cleveland, accounting with him, receiving the proceeds of the sale, and renting and controlling the McKeesport property, as the property of Moses Cleveland’s estate. What the real facts were, how the accounts were settled, and what the agreements were originally between *Payne and Moses Cleveland’s administrator, can only be gathered from the memoranda of transactions which took place more than thirty years since. Age has so impaired the only survivor, Judge Kirtland, that when his deposition was sought, his once active mind had become a blank, and he could give no account of anything in which ho was formerly concerned. Still, the slate of the title, the force of the expression “attorney in fact for Moses,’’ the possession and control of the lot in McKeesport, received in exchange, the acts of the administrator in seokingthe authority of the court in Trumbull to complete the contract by a conveyance on behalf of the estate of Moses Cleveland, although of no validity as a judicial proceeding, speak a language that can not be misunderstood, showing that the true intention was to act in the capacity of attorney under the authority of the power above referred to. It matters little wbat was the lorm of the contract, when the intention of tho parties is palpable, and a full consideration has boon paid and received. It would be a reproach to a court of equity could it be said that in such a case mero form must work a denial of justice. Whatever it might be at law, this contract with Johnston was in equity the contract of Moses, not Payne Cleveland, and for the simple reason that both intended that it should be so. That was what they designed, and tho accidental circumstance of affixing a seal to the signature of Payne, will not be allowed in this court to make it otherwise. We look to a result that will be consistent with the ends of justice, and where tho way to maintain it is so manifest, shall not be turned out of it, unless tho well-settled rules of law present insuperable obstacles. No well-settled rule or well-considered adjudication will be contravened by rejecting tho seal and reforming this contract, so as to make it effect the objects of the contracting parties. The omission to sign as the attorney of Moses and affixing a seal were accidental circumstances, which originated in unskillfulnoss, ignorance, or mistake, and ought not to defeat an agreement which all parties for many years treated as obligatory, which on one part was fully executed, *and upon the other was for thirty years without disaffirmance.

• Again, it is said that the power was departed from by receiving a part of the consideration in lands. Numerous authorities have been cited to establish th doctrine that a naked power to sell, authorizes only a sale lor money. The facts of this case do not require at our hands a critical examination into the technical distinctions of the law upon this branch of the case. Without ad-milting or denying the legal proposition, we leave it to be settled in some case that may require the expression of an opinion on the point. The evidence of George Parsons and other's, shows that in some cases it was customary for land agents to receive other considerations than money in payment for land sold, and as already stated, it is shown that long since the consideration of this land went to the benefit of the 'estate. In the view we have taken it may well be assumed, that by parol Payne Cleveland was authorized to contract in this way by his brother, and that the acts of the representative of the estate, both those in Connecticut and Ohio, are in equity a sufficient ratification. It can not be doubted that they had full knowledge of all the circumstances of the sale. Kirtland’s attempt to make a deed, shows that he was aware of the 'fact. The nature of his settlements with Payne, and his dealings with tho Connecticut administrators, prove that they were not ignorant upon the subject. It would be reasoning against probabilities to suppose that the mother of these respondents would have acquiesced in the acts of her brother-in-law Payne, to the prejudice of her infant children, if she had not known that her husband, their father, had given to his brother permission to act as we find him acting. .

Another point made in the case is to b.e considered. The premises described in the bill are section No. 19, and fraction No. 19, in township No. 6, of range No. 12, of the Ohio Company’s purchase, Athens county.

In the contract, the description is “a certain tract of land situate, lying, and being in the county of--and State of *Ohio, as laid out in township 6, range 12, No. 19, containing 640 acres, and all of a practical part of a survey adjoining the same, containing 260 acres.”

It is urged that this description is so uncertain and vague, that it is void. We do not think this position can be sound. Payne Cleveland was evidently endeavoring to dispose of his brother’s land in the Ohio Company’s purchase. Moses Cleveland had but one section 19, and one fraction 19, which adjoined it in township 6, range 12. • Both these tracts lay in Athens county, and constituted one of the two shares owned by him in the Ohio Company's purchase. It is quite certain that the lands described in the bill are the same that the contract embraces, or that the parties intended to embrace.

The remaining objection necessary to be considered, touches the frame of the bill; for in the view we have taken of the ease, it is wholly unnecessary to consider the tax title of the plaintiffs, or any other question which has been presented by counsel.

The bill, after stating the ease and bringing before the court the proper parties, prays for a decree against all the defendants, compelling them to release to complainants all their claims and rights at law, in the land described, or to execute a conveyance, and also a decree to quiet the title of complainants, and that they majr have such other relief as pertains to equity. ¥e can discover no difficulty in.the way of a proper decree. There is no need of an express prayer to reform the contract of Payne, so as to make it road in the name of Moses Cleveland ; a prayer for its execution, or for such relief as pertains to equity, is sufficient. A conveyance according to the intention of the parties is the great object of the bill, and it would be mere circuity to decree: 1. A proper execution of the power of attorney. 2. A reforming of the contract, and finally, a conveyance. It is bettor to seek, as this bill does, a direct conveyance, and the decree may be so prepared, with a perpetual injunction against further proceedings at law by the respondents, to disturb the complainant’s possession, and a decree for costs.  