
    MILLER'S LESSEE vs. HOLT.
    A certified copy of a Deed cannot be received in evidence unless it appear that the original was duly proved.
    A grant amended by order of the county court without notice may be used in the same manner as if no alteration had been made.
    Ejectment, plea not guilty. The Lessor of the plaintiff derived his tide from a grant issued to Thomas King for 640 acres of land, dated the 8th of April 1794, and registered the 4th of April, 1800. A deed from King to Miller dated February 11th, 1802, was produced, and also another grant for 640 acres, dated April the 30th, 1803. No. 315, upon an entry made in John Armstrong's office on the 9th of April, 1784, but the warrant upon this entry was removed and surveyed at the place now in contest.
    Miller, for the defendant
    objected to the reading of the grant to the lessor of the plaintiff, dated in April, 1803. being long after the filing of the declaration in ejectment. He insisted this paper certainly could not be read, to support an action which was commenced before it had an existence ; this grant did not issue until, the 30th of April, 1803 ; the present action was commenced on the 10th of February, 1802.
    The defendant deduced his claim from a grant is sued to James King, dated the 10th of February 1795. No. 200 registered July the 1st, 1804, for 5000 acres upon a John Armstrong Warrant a deed from James King to Stockley Donelson registered April 8th, 1800. A general power of attorney from Stokely Donelson, to John Hacket, dated 29th September, 1795.
    The counsel for the Lessor of the plaintiff objected that this power could not be read as evidence upon a certificate of the probate and registration only there being no law to authorise the recording powers of attorney.
    In answer to this objection it was observed by the defendants counsel, that under similar circumstances the court had on a former occasion, admitted a letter of attorney to be read upon a certificate of probate and recording.
    Per Curiam. It is not recollected that there is any act which directs that letters of attorney shall be recorded.
    
      In the act establishing the fees of the county court clerks,  there is an allowance to the clerk for recording a power of attorney.  For the present we are willing that the paper be read to the jury as a part of the title of the defendant, and if this should not be satifactory, the point can again be brought before the court, when it can be more maturely considered. The defendant then proceeded in the deraignment of his title, by shewing a deed from Stockly Donelson by John Hacket his attorney to D. Scott for 250 acres, being part of the 5000 acre tract dated October the 31st, 1796, and a deed from Scott to William Hoxey, dated December 24th, 1799. for the same 250 acres which includes the lands of which the defendant is in possession.
    The counsel for the plaintiff objected to the reading of the deed from Scott to Hoxey, upon the certificate of registration, because it did not appear from that certificate, or any other, that the deed had been proved agreeably to law.
    In answer to this objection it was contended that the court would presume probate, for otherwise the register could not legally register the deed, and the court will presume that the register acted legally and with propriety ; otherwise great inconvenience might arise from an inadvertent omission of this kind.
    Per Curiam. This deed, from the copy produced does not appear to have been proved as the law requires before it could be admitted to registration ; but as it should have been, it is said we ought to presume, that the officer would not have put it on his books without previous probate. We are not of that opinion, nor do we believe the doctrine of presumption will warrant such an idea ; if it does not, the reason and policy of the law, with respect to the registration of deeds, would be averse to such a presumption. No doubt but instances have, and may occur where instruments of writing have been copied on the registers books, which the law has not directed to be placed there. The register is not by law authorised to take probates ; this power is given to other officers ; registers may think themselves authorised to copy writings offered, into their books upon such evidence as shall be produced ; or perhaps without any, for the lawful fee, believing it not their province to judge of the legality of probates. Upon the death or resignation of a register his books are handed over to his successor, who would no doubt certify any instrument copied on his books, in the manner he might find it. If no probate appeared, he could not certify one, if otherwise he could certify it.
    The register is a ministerial officer whose acts in this respect are not to be viewed in the light of interlocutory steps in a suit at law, as to which presumption might be raised after a final determination of the cause.
    Registration is the ultimate design of the law as to the preservation of the intention of the parties ; there is no other act to be done, which would shew that probate had been made, for it cannot be dispensed with.
    As a necessary measure to preserve the purity and verity of papers of this kind it seems necessary, it should appear that probate was made, otherwise a copy cannot be received as evidence. Upon the defendants failing in this chain of title, he resorted to another, the evidence of which was produced.
    A judgment was obtained by Joseph Beard against Stockly Donelson, upon which a fieri facias issued for $6--22 & a half cents, which was levied on the above 5000 acres of land, and sold for $110 to Andrew Jackson who obtained a sheriffs deed, dated April 13th. 1801, Jackson gave Charles M’Clung a power of attorney, to sell this land or a part of it.
    M’Clung as attorney in fact for Jackson,
    by deed bearing date the 11th July, 1801. Conveyed of this tract 250 acres to Holt the defendant, being the land now in dispute. This deed appears to have been intended for confirmation principally; it recites a chain of conveyances which had been formerly made, beginning with the grant to King; noticing several titles, then to Hoxey, and from him to Holt, all of which are noticed, except the deed to Holt, in the first attempt to deduce a title.
    Miller, for the defendant
    took another objection to the title of the plaintiff, supported by certified copies from the secretaries office of North-Carolina ; from these copies it appeared, that Thomas King, under whose title the lessor of the plaintiff claims, obtained his grant upon a Carters warrant, No. 235 to William Baily, that two other grants, had issued to Elisha Walling, and William Baily, upon surveys having reference to warants of the same number.
    Under these circumstances it was contended that the grant to Thomas King, was void, another grant having before issued upon the same warrant ; and consequently the claim of Miller was void, he being in no better situation than King himself.
    Scott, for the defendant,
    read a certified copy of the grant to Thomas King, from which it appeared that the survey was different from that read by the counsel for the plaintiff.
    This copy accorded with the grant as altered.
    
    Campbell, and Whiteside, for the lessor of the plaintiff
    —The objection taken to our title on account of several grants having been obtained upon warrants of the same number, cannot prevail ; for admitting it to be an evidence of fraud in King, which does not appear, yet Miller is not charged with having notice of this fraud, and consequently must he considered as an innocent purchaser and not to be affected ; the imputation of fraud has always been considered as a personal consideration.
    It is true the grant to Thomas King as read by us differs from the copy produced by the defendants counsel, which can be accounted for to the satisfaction of the court.
    Upon a motion for a new trial in this case it was determined that the grant as altered could not be read, because notice did not appear to have been given to the defendant or any person then holding the title under which the defendant claims ; it was then conceived necessary tinder the act of assembly.
    
      Not being permitted to read the grant as altered, we have offered it as it originally stood. It certainly ought to go to the jury, for it would seem unusually hard ; more so, than would accord with the principles of justice, that we should neither read the grant as altered, nor as it originally stood.
    If per chance the man has innocently omitted a step necessary to be observed in the amendment, it would be beyond the utmost rigor of justice to say that his grant should he destroyed altogether.
    Gen. White having been introduced as a witness, proved that King, informed him that he intended to run the land differently from what was expressed in the original grant ; and that he did not know but it had been ran in that manner.
    The evidence of General White, clearly proved that there was a mistake in the surveyor, for the plat does not appear to be in the form which was described in the evidence. The jury in the decision they are now about to make are competent to the rectification of this mistake agreeably to the case of Person, against Roundtree, mentioned in Haywood’s Reports 378. In one of these cases it appeared that the survey as run, lay entirely on the opposite side of the creek, from the courses mentioned in the plat. If a mistake in that case where the lines in the plat did not include a foot of the land surveyed, could he rectified in the consideration of a court of justice, this may, where the mistake is not so gross. It certainly was a mistake in the surveyor for a tree marked as a corner in the line of a tract which it was intended to adjoin, is to be found as it is stated in the testimony, yet the courses do not go there. There being such a tree marked is strong evidence that it was intended as the corner. Before the subject is dismissed it may be necessary to recur to some of the arguments used on the other side respecting the alteration of the grant.
    The common law is resorted to as governing this case—If a deed be altered in any part either material or immaterial, by the party interested in it, its obligation is annulled. This reasoning cannot apply to the principal case, for we have produced an order of the county court, shewing the ground of the alteration by the secretary of North Carolina ; it was not done by the party himself with a fraudulent intent, but by an officer of government. This appeared to be the substance of the arguments and evidence on both sides.
    In what cases a jury can rectify a mistake in a grant.
    
      
      Whit J.—Having been employed, was absent.
    
    
      
       1796. ch. 7.
    
    
      
       Powers,of attorney are now expressly authorised to be recorded, act 1807. C. 73.
    
    
      
       Vide ante pa. 40.
    
   Per Curiam.

The first question to be determined is whether the grant as it originally stood, before amendment should be read.

The English authorities which have been referred to, are surely founded in reason ; there is however no doubt but that these authorities pre-suppose the idea of mala fides in the alteration by the party himself.

The common law has wisely determined not to look to what effect an alteration by the person interested might have on the meaning of a contract. To preserve the inviolability of written contracts, it will not permit the impious touch of fraud, without destruction. By no possible means can this reasoning apply to the case before the court. The grant as altered could not be read, so as to affect the defendant because he, nor any person whose right he claimed had notice, so as to contest the proposed alteration. It cannot be supposed that the lessor of the plaintiff had any intention of making an alteration in his grant otherwise than as the laws of his country authorised; for this purpose he applied to the county court, who decided that the alteration should be made, and certified the same to the secretary of North-Carolina, in consequence of which it was done. If the lessor of the plaintiff omitted to give notice, for want of which it could not be read against the defendant or any other individual having title at the time of the alteration, it would be too much to say, that the right should be destroyed altogether.

The reasoning of the common law does not apply to this case, though the letter may, but, qui haeret in litera, haeret in cortice. The next inquiry will be. what effect this grant shall have; it is admitted that it does not cover the land in dispute.

The cases in Hayw. appear correct; but whether they will apply to this case the jury must determine, it is however proper to remark, that the authority in Haywood shews that the party had been in possession of the land as surveyed, which it would seem operated as notice to subsequent enterers.

In the case before the court, the jury will consider whether the original claimant of the 5000 acre tract,had any notice of Kings claim to the land in dispute. It appears from the grant of the 5000 acres that no notice at all was taken of the claim of 640 acres of Thomas King.

The jury are certainly competent to rectify the mistake, should they conceive it one, but not so as to affect subsequent claimants, having no other notice of the manner in which the land was run, than what the registers books would afford; the grant for the 640 acre tract as it stands registered, appears complete; all the lines closing. The case of a clerical mistake might admit of a different consideration, there the face of the grant would shew a mistake—as for instance if in calling for the closing line, a contrary course from the one which would close the surveyed, is expressed in the grant.

It has been objected that the plaintiff cannot prevail on account of fraud, in procuring the original grant to Thomas King.

No evidence has been offered to shew that the mere circumstance of the three surveys made in the name of Baily, King, and Walling, calling for a warrant of the same number, is sufficient proof of fraud in obtaining the grant from North Carolina; whether the court have the power of enquiring into the manner in which the grant has been obtained it is not now necessary to determine. Whether Thomas King imposed upon or defrauded the state in obtaining his grant, is not material with the lessor of the plaintiff, unless he had notice of that fraud. If he had not, he was an innocent purchaser and ought not to be affected.

Verdict for the defendant. 
      
       See2 Ver 599. 751. Amb. 313 2. Fonb. 307. 8. 9. 1. John 537. Newl. cont. 510. 511. Sug. 650. 2. Eq. ca. Cowp. 278. 2.Com. Dig. 718. 3 Atk. 407.
     