
    Richard Sessions et al. vs. John Doe, ex dem. James M. Reynolds.
    Under the statute of this state, H. & H. 605, sect. 24, which makes duly authenticated copies of the records appertaining and belonging to the land offices of the United States established in this state, evidence where the originals would be, the duly authenticated copy of a certificate of confirmation by the board of commissioners west of Pearl River of a Spanish grant of land, . taken from the records in the land office at Washington in this state, is competent testimony, without accounting for the original.
    By the statute of the Mississippi territory, which made all deeds not recorded within twelve months from their date of execution void as against a subsequent purchaser or mortgagee without notice, a subsequent purchaser or mortgagee from the same source or grantor is meant; as to all those claiming title from a different source the unregistered deed would be as valid without recording as with it; where therefore a deed was made in 1806 from a person claiming under a Spanish grant and the deed was not recorded until 1841; and in 1843 the United States government granted a patent to the land to a different party, the deed from the Spanish grantee would not be void as against such patentee.
    
      A deed which purports to “ remise, release and quit-claim ” title to land is competent testimony on behalf of the releasee therein; for even though the words be not sufficient to pass an entire estate in land, yet they are sufficient to perfect a title in one having claim of title ; and therefore as a link in the chain of title depending for its effect upon its connection with other instruments or evidence and as a constituent part of title, such deed is competent testimony.
    Under the statute of this state which declares that “ where the parties or witnesses to a deed reside in a foreign kingdom, state, nation or colony, the acknowledgment or proof made before any court of law or mayor, &c. certified by the said court, mayor, &e. in the manner such acts are usually authenticated by them or him, shall be sufficient,” an acknowledgment to a deed purporting to have been taken before the mayor of Liverpool, and to be his official certificate, and which bears the corporate seal, but which is not signed by that officer, but is signed by the town clerk, is sufficient; the rule being that the certificate of a mayor of a foreign city is prima evidence in due form, or in the usual form of authenticating such acts, but it is not conclusive.
    Where the validity of the certificate of a state officer is called in question, its conformity to law is a question of law for the court, being regulated by a public law of the state; but the conformity of the certificate of a foreign officer to the foreign law is a question of fact, to be established by evidence.
    Where a certificate of a foreign officer is made, the certificate is prima facie evidence of its conformity to law and it devolves on him who questions its admissibility to show that it is not in the usual form; to do which he must produce an authenticated copy of the foreign law, or if that cannot be had, the best evidence which the nature of the thing admits of must be produced.
    Where the court below rejects proof of a particular fact, which fact can only be established in a particular way, the record must show that the proof rejected was pertinent to the establishment of that particular fact in that way; where, therefore, the bill of exceptions recited that1 ‘ the defendant offered to prove ” that the acknowledgment of a foreign officer was not in due form, without showing how or by what proof, and the court below rejected the proof, it was held that the record did not show that the court below had erred, and the presumption of law was in favor of its correctness.
    The duly authenticated copy of a plat and survey of lands contained in a confirmation of a Spanish grant from the office of the surveyor-general of lands, south of Tennessee, is under the statute (H. & H. 605, sect. 2'4,) evidence; nor will the fact that in the certificate of authentication the surveyor-general puts no date make any difference; he certifies as surveyor-general, and the presumption is the certificate is true until the contrary is shown ; nor will the fact, that the copy of such survey from the surveyor-general’s office differs materially from the map of the same land in the register’s office, exclude the former from testimony; both copies are testimony under the statute, and of equally high grade; the mistakes in the maps can only be corrected by actual surveys.
    Although, as an abstract proposition, it is true that a grantor who disposes of land by a valid operative deed, cannot subsequently dispose of the same land by a valid operative deed to a different person; yet if the original conveyance be defective, the second of course would pass the estate; whether if the same person claim under both grants, he may establish his right under either, as he may please. Qucere ?
    
    It seems that a mere release of title to land does not pass the right to land of which another person is in the actual, visible possession, claiming a right; yet it may be used as a conveyance of the estate to one in possession; or as a mean of-transferring or enlarging an estate by giving some new interest; or as perfecting an imperfect and defeasible estate; and it seems that any interest in the person to whom the release is made, either by possession, by deed, or in law in his own or another’s right, any vested interest without an actual possession, will be a sufficient foundation for the release to stand upon.
    
      In a country abounding in wild land, a deed or grant is a constructive possession.in the grantee sufficient to uphold a title derived by a release from one having title to the land ; where, therefore, the Spanish government granted the same land first to R. and afterward to F., and R. subsequently released to F., the constructive .possession of F. under this grant will be sufficient to uphold the release from R.
    Where a release of title to land was thirty-five years old, it was held to be of an age sufficient to draw to its support the favorable presumption of the law, that it was operative at the time of its execution; which presumption is supported by proof of the possession of the releasee as far back as there is any evidence of possession.
    The title to the whole of a tract of land, with possession of part of it, is a possession of the whole of it, and will support a release of title to the whole.
    In order to defeat a release, it seems there should be proof of an actual adverse possession under a claim of right; therefore where the release was in possession long before there was any adverse claim, and for anything that appeared to the contrary was in possession when the release was made ; it was held, that the release would be operative.
    The objection to a release on the ground of the want of possession or other interest to uphold it in the releasee at the time of its execution, loses much of its force when made in this court for the first time; and when the objection made to its admissibility in the court below was as to its authenticity. There are no statutes on the subject of champerty in this state ; the English statutes of 32 Hen. VIII. c. 9, on that subject, is not in force here ; in order therefore to avoid a contract on the ground of champerty, the common law offence must be complete ; to constitute which it must not only be proved that there was adverse possession at the time of sale, but that the purchaser had knowledge of such adverse possession ; this is especially the case where the land granted was in forest and wild at the time of the grant.
    It seems that the English statutes as far back as the 32 Hen. VIII. are not in force in this state.
    In error from the circuit court of Adams county; Hon. C. C. Cage, judge.
    John Doe, on the demise of James M. Reynolds, sued Richard Sessions and others, in ejectment for a tract of land in Adams county; to which, on the common order being entered into, the defendants plead not guilty.
    On the trial, the plaintiff read, in evidence to the jury, a regularly executed Spanish grant for two thousand arpens of land in favor of Ezekiel Forman, dated the 1st. of June, 1792 ; and a certificate of the survey of the lands therein granted by Carlos Trudeau, the then Spanish surveyor; this patent recited that the lands therein granted are the same before granted to Jane Rumsey; he then read, in evidence, a copy of the certificate of the board of commissioners west of Pearl River, established by act of congress, regulating the grants of land, and providing for the disposal of the lands of the United States south of the state of Tennessee, confirming to the legal representatives of David Forman the two thousand arpens granted by the Spanish government to Ezekiel Forman; this confirmation was dated on the 27th of February, 1806; the plaintiff then read to the jury a quit-claim deed from the legal heirs of David Forman, deceased, to James M. Reynolds, the lessor of the plaintiff, dated March 13, 1834; he read also the certificate of the register of the land office at Washington in Adams county, that William Gordon Forman had, on the 30th of March, 1804, as the surviving executor of the last will and testament of David Forman, filed his notice of his claim to the two thousand arpens, under the grant to Ezekiel Forman, and a deed from the executors of Ezekiel to' David Forman; and that this claim, on the 30th of November, 1804, was laid before the board of commissioners, with the proper documents in its support, and on the 27th of February, 1806, was allowed and confirmed.
    The plaintiff then read, in evidence, an order of survey, and a survey made for Jane Rumsey in 1786, and a complete Spanish grant to her, dated the 8th day of October, 1787, to the same two thousand arpens granted to Ezekiel Forman. He then read a certificate of confirmation by the board of commissioners,, similar to confirmation of Forman’s grant, dated the 3d day of July, 1805 ; at the foot of this confirmation was this attestation: “ I hereby certify that the within certificate is truly copied from, the records in this office. Given under my hand the 12th July, 1839. Thomas W. Newman, register of the land office.” The defendant excepted, because the court below permitted this copy to be read without proving the loss of or accounting for the original.
    The plaintiff then read this deed : “ This indenture, made-this 18th day of December, A. D. 1806, between Lacy Rumsey,. of the county of Jefferson, in the Mississippi territory, of the one part, and William Gordon Forman, of the city of Natchez, of the other part, witnesseth that the said Rumsey, for and in consideration of the sum of two thousand dollars to him in hand paid by the said Forman, the receipt whereof is hereby acknowledged, hath remised, released, and forever quit-claimed, and by these presents doth remise, release, and forever quit-claim unto the said Forman, his heirs and assigns forever, all the right, title, interest and claim; whatsoever, both at law and in equity, of him the said Rumsey, of, in and to the following tract of land, (the deed here described the two thousand arpens of land, patented to Jane Rumsey, deceased, and which the grantor claimed as her heir at law,) to have and to hold the above described tract or parcel of land, with all the privileges and appurtenances thereto belonging, or in anywise appertaining to the only proper use, benefit, and behoof of him, the said William Gordon Forman, his heirs and assigns forever. In witness, &c.”
    This deed was acknowledged by one of the subscribing witnesses on the 30th day of November, 1807, before Thomas Rodney, Esq., one of the superior judges for the Mississippi territory, and was filed for record in the probate clerk’s office, on the 10th day of March, 1841.
    The defendants objected to the introduction of this deed, without further proof, atrd in support of their objection, read to the court the patent from the United States, under which they claimed, dated in 1823; the objection was, however, overruled, and exceptions taken.
    The plaintiff then read a deed from William Gordon Forman, who was admitted not to be an heir of David Forman, deceased, to George Salkeld, dated the 1st of March, 1811, for one moiety of the land included in the grant to Ezekiel Forman, and another deed from the same to the same, dated July 3, 1811; he also read a deed from George Salkeld to Thomas B. Barclay, George P. Barclay and Frederick M. Barclay to the same land, dated May 6, 1820; he then offered a paper purporting to be a power of attorney, from Thomas B., George P., and Frederick M. Barclay, of England, to Robert Lyons, dated 26th September, 1827, authorizing Lyons, to sell and convey this land ; this power of attorney, after being duly signed and sealed by the makers, was attested, and certified as follows: viz. “Witnesses to the signature of Thomas Brockhurst Barclay, G. W. Crooke, R. Gladslock. Witnesses to the signature of George Pearkes Barclay and Frederick Maud Barclay, F. J. Manillier, John Shakspeare, Jr.
    “ London, to wit:
    “ Frederick John Manillier, of Little Trinity Lane, gentleman, maketh oath, and saith that he, this deponent, together with John Shakspeare the younger, was present, and did see George Pearkes Barclay and Frederick Maud Barclay, two of the constituents named in the letter of attorney hereto, duly sign, seal, and as and for their acts and deeds in due form of law deliver the said letter of attorney to and for the uses and purposes therein mentioned ; and this deponent further saith, that he, together with the said John Shakspeare the younger, also present, did see the said George Pearkes Barclay. and Frederick Maud Barclay sign the schedule annexed to the said letter of attorney, and that the names or signatures, ‘ George P. Barclay and Frederick M. Barclay,’ thereto set and subscribed as the parties executing the said letter of attorney and signing the said schedule, are of their proper handwriting, and that the signatures, F. J. Manillier and John Shakspeare, Jr. thereto set and subscribed as the witnesses to the due execution thereof, are of the proper handwriting of this deponent and the said John Shakspeare the younger.
    
      “ Sworn at the Mansion House, London, this 2d of October, 1827, before A. Brown, Mayor. F. J. ManillieR.”
    Appended to this certificate was the certificate of Thomas As-pinwall, consul of the United States at London, that the signature A. Brown, mayor, was that of the Hon. Anthony Brown, lord mayor and chief magistrate of the city of London, and that the seal thereto affixed was that of the mayoralty of the city.
    
      There was, in addition, a full certificate of the majmr, under the corporate seal, of the oath taken by F. J. Manillier before him, and the contents of that oath, as set forth above.
    Robert Gladstone, Jr. appeared before Thomas Littledale, mayor of Liverpool, and made oath of the signing of the power of attorney by Thomas Brockhurst Barclay, similar to that taken before the mayor of London. The signature to the affidavit was in these words : !t Sworn at Liverpool aforesaid, the 6th day of October, 1827, before me, Thomas Littledale, mayor.” Then followed a certificate of Gladstone’s having made the oath as stated; the certificate was similar to that of the mayor of London in its recitals, and commenced as follows, viz.:
    “ To all to whom these presents shall come :
    “ I, Thomas Littledale, Esq., mayor of the borough and town of Liverpool, in the county palatine of Lancaster, and kingdom of Great Britain, &c. do hereby certify that on the day of the date hereof, personally appeared before me Robert Gladstone the younger, of, &c.”
    It concluded in this way, viz.: “In faith and testimony whereof, I the said mayor have caused the said seal of mayoralty of the said borough and town to be hereunto put and affixed, <fcc. dated at Liverpool the 6th day of October, in the eighth, year of the reign of our sovereign lord George the Fourth, by the grace of God king, &c.; in the year of our Lord, 1827.
    “ By order of the mayor,
    [l. s.] “ Statham, Town Cleric.”
    
    There was also a certificate by the consul of the United States at Liverpool, that Thomas Littledale was the mayor of Liverpool. To the introduction of this power of attorney the defendants objected, and offered to prove, in support of their objection, that it was not authenticated according to the usages of the city of London; that the mayor of London usually certified under his official seal. The objection was overruled, and the proof excluded and exceptions taken.
    The plaintiffs then read a deed from Lyons, as agent and attorney in part for the three Barclays, to the lessor of the plaintiff, of the land in controversy, dated in May, 1828.
    The plaintiff then offered a copy of a map of a survey made by George Davis, D. S. of the Lacy Rumsey certificate, which was certified as follows, viz.:
    
      “ I certify that the foregoing is a true copy of the survey of Lacy Rumsey’s claim, as on record in this office.
    “Yolney E. Howakd,
    “ Surveyor General of Public Lands South of Tennessee.
    “ Surveyor’s Office, Jackson, Miss.”
    
    To the introduction of this map the defendants objected, and proved, in support of their objection, by Thomas W. Newman, register of the land-office at Washington, Miss., and late a clerk in the surveyor-general’s office, that by the rules of the survey- or-general’s office, no plat made by a deputy surveyor was complete without the approval of the surveyor-general marked on it; that Freeman was surveyor-general, while Davis acted as deputy surveyor; that there was no such paper as the one offered in evidence among the records of the register’s office at Washington; but on the contrary, a materially different survey and plat, approved by Thomas Freeman, the surveyor-general, was of record in that office; the court below overruled these objections and permitted the survey and plat to be read to the jury, to which exceptions were taken.
    The bill of exceptions then recites, that various and conflicting testimony was then introduced in relation to the eastern limit of said Forman and Rumsey tracts, by which the plaintiff attempted to prove that the said grants, or at least one of them, included the tract in dispute, and admitted to be in possession of the defendants, It was also proven that a portion of the lands in dispute were and still are forest, and the whole tract not surrounded by any fence or enclosure, but that a portion was under fence and in cultivation by the defendants or. those claiming under the same title, ever since 1832, and that the plaintiff and the said Barclays and Salkeld, under whom he claimed, had for many years a plantation in cultivation on the part of the said Forman and Rumsey grants; but it did not appear that, with these exceptions, either party had previously actual occupation by enclosures of the whole of said disputed lands.”
    Other testimony on the part of the defendants was introduced, touching the question of boundary, which it is not deemed requisite to notice further.
    Ten instructions were asked for by the plaintiff’s counsel, and given; it is deemed necessary to notice only the following:
    1. “ The plaintiffs have shown a complete legal title emanating from the Spanish government, in two grants, one to Jane Rumsey, the other to Ezekiel Forman; and if the land in controversy is embraced by either of said grants, the plaintiff is entitled to recover, unless the defendants have shown a superior title.
    2. “ Adverse possession to defeat a deed for maintenance, must be a possession by actual visible boundaries and occupancy ; or by exercising acts of ownership.’’
    The defendants asked the court to instruct the jury : 1. That if the jury find that at the time of the execution of the deed from the heirs of Gen. David Forman to James M. Reynolds, the defendants, or those under whom they claim, were in notorious possession of the land in controversy, under an adverse title, such as a patent from the United States, said conveyance of so much of the land thus conveyed was void, and no title passed thereby.
    2. That if the jury find that at the time of the conveyance from Forman’s heirs to Reynolds, the defendants, or those under whom they claim, were in actual adverse possession of a part of the land in controversy, and claiming adversely the whole tract, the conveyance as to so much of the land thus claimed was void.
    These instructions were refused; and the whole case embodied by the defendants in a bill of exceptions.
    The jury found for the plaintiffs below, and the defendants sued out this writ of error.
    They now assign for error:
    
      1. The admission of the certificate of confirmation of the Rumsey grant.
    2. The admission of the deed of release of Rumsey to For-man.
    3. .The admission of the power of attorney of the Barclays, and the exclusion of the proof touching the custom of the mayor of London.
    4. In admitting the plat and survey from the records of the surveyor-general’s office.
    5. In giving the plaintiffs’ charges to the jury.
    6. In refusing the defendants charges.
    
      1Quitman and McMurran, for plaintiffs in error.
    1. The grant to Ezekiel Forman, by the Spanish government, is utterly void. These identical lands had previously, in 1787, been granted to Jane Rumsey. Neither the sovereign power of a country, nor- an individual, can make a second grant for the same land. In such case the last grant will be utterly void. We have been informed that this point has been thus decided by this court, and so are the authorities.
    2. The conveyance, of the heirs of David Forman, who resided in New Jersey, was made March 13, 1834. At this time the defendants were in possession, under a patent from the United States, and it does not appear from the record that the heirs of David Forman were ever in possession of the disputed premises. A conveyance made by a disseised party, of lands held adversely by another, conveys no title. Bradstreet v. Huntington, 5 Pet. R. 434; 3 Mass. 675; Bledsoe v. Little, 4 How. 24; Weart v. Brown, 7 Ibid. 181; 11 Mass. 554.
    3. It cannot be said that the defendants had not such adverse possession as would entitle them to set up this defence. In 1832, it appears, they were cultivating a portion of the land included in their patent, and claiming the whole, according to the United States survey. If the whole was not actually possessed and occupied, by inclosure, still, in law, their possession extended to the whole area covered by the patent. The public records of the land-office notoriously showed the extent of the patent, and their claims. The adjustment of the surveys belonged to the United States land-offices, and the sale to Joseph Sessions was made according to the surveys in the land-office, recorded and approved. This survey showed that the land in possession of defendants, and now in controversy, was clearly included within the patent to Sessions. A pedis possessio, or an occupation of every part of the tract, by boundaries, is not, therefore, necessary, to establish the adverse possession. 5 Pet.-319, 402 ; 10 Ibid. 414; 4 How. R. 24; 7 Ibid. 181.
    4. The quit-claim, or release, of Lacy Rumsey to W. G. For-man, contains no words of grant, or conveyance of title. The words are, remised, release, and quit-claim. These words may perfect a title in one having a claim of title ; but of themselves they convey no estate whatever. No title will pass by a release, when neither party has possession. Mayo v. Libby, 12 Mass. 347; Warren v. Childs, 11 Ibid. 222; Porter v. Perkins, 3 Ibid. 237.
    5. If, however, we are mistaken in the operation of this release, we insist that the instrument was improperly admitted in evidence. 5 Pet. R. 344. There was no proof of its execution, and it was not recorded at the time of the demise laid, or even at the date of the institution of the suit. The defendants were purchasers, for a valuable consideration, without notice. As to them this release was unrecorded, and void. It was also improperly recorded, in 1841.
    6. Again, no title to the Rumsey grant passed by the deed of William Gordon Forman to G. Salkeld, in 1811. They purport only to convey the “lands granted by the Spanish government to Ezekiel Forman.”
    7. We think it is evident that the paper admitted in evidence, purporting to be a duly authenticated power, should have been rejected upon the proof offered. Independently of our statute, it would have been necessary to prove this instrument, by the usual rules of evidence. In departing from these the statute must be strictly pursued. It provides (How. & Hutch. 346, § 14,) that the acknowledgment, or proof, “ shall be certified by such foreign court, mayor, or magistrate, in the manner such acts are usually authenticated by them.” This power of attorney is not certified by the mayor of London, or Liverpool. The name of neither of these magistrates is appended to the certificate, and the court refused to receive proof that the certificate was not made in the manner such acts are usually authenticated.
    8. The first and tenth instructions, given for the plaintiff, must be held bad, if we have shown that but one of the titles set up was imperfect. For instance, if the Forman grant is void, it was error in the court to instruct the jury that both titles were complete, and that if they found the lat\d in controversy not embraced in the valid title, but included in the void grant, still, the plaintiff would be entitled to recover. These instructions are so broad that, if either of the Spanish grants should be held invalid, or if the chain of title under either is not perfect, there is palpable and fatal error in the instruction.
    9. For the purpose of showing that the Rumney grant extended over the tracts in dispute, the plaintiffs offered the plat, signed George Davis, D. S. This paper was objected to, but admitted. In this the court erred,
    1st. Because the certificate of Yolney Howard has no date, and it does not appear to have been made by him while surveyor- general.
    2d. Because it never was approved by the surveyor-general,
    3d. Because it was not made in conformity to law, or the practice of the land-office.
    4th. Because it appears that another and materially different survey of that grant, was approved, and remains of record.
    It has been decided that Spanish grants of lands in Adams county had no intrinsic validity. That their validity arises entirely out of the articles of agreement and cession with Georgia, and the subsequent acts of congress. These also provide for the ascertaining and locating of these grants, and we contend that their location by the authorities of the United States should be conclusive. In this case the plaintiff did not show any location but that made under the United States; and certainly it was erroneous in the court to admit a plat, or a copy of a plat, which was proven to be incorrect, and in conflict with the plats which were approved and filed in the register’s office, as a guide to those entrusted with the sale of the public lands.
    10. The grant to Forman was specifically for the same identical land previously granted to Rumsey. If, therefore, the surveyor, in running out the Forman grant, had embraced within the lines of the survey lands not contained in the Rumsey grant, it would be but an error in the surveyor; such excess of lands could not pass by the grant. Again, if the grant on its face is for lands previously granted, it is void in toto.
    11. The court clearly erred in refusing the instructions asked for by defendants, as an inspection of the cases above referred to will show, and we consider these questions arising out of these instructions settled by this court, in the cases of Bledsoe v. Lillie, and Weart v. Brown, above cited.
    
      Dvbuisson, on the same side.
    1. Where there are two grants for the same thing to different grantees, they cannot both be valid. A deed of gift conveys all that it purports to convey from the grantor. If it be absolute, his rights in the subject are all gone from the time of sealing arid delivering the deed, and his own act cannot revoke it. The same principle applies to governments as to individuals. A government cannot revoke its own grants, but the grantee acquires a conclusive title against the grantor.
    2. The claim of title from the Ezekiel Forman Spanish grant is not complete without the quit-claim deed from the heirs of David Forman, made in 1834. W. G. Forman, to whom the plaintiff traces his title, was not an heir of David Forman, and his deed to Salkeld in 1811 was a disseisin of those who claimed title under the Ezekiel Forman grant.
    3. We contend that the quit-claim deed from the heirs of Da-rnel Forman gave no title to the plaintiff; 1. Because the grant to Ezekiel Forman and the confirmation by the commissi ners, were void, as has been seen, the grant and confirmation to Rumsey being prior in date; and if they had no title they could give none. In a quit-claim deed, the grantor does nothing more than to acquit the grantee from any title or right in action which the grantee may have. 2 How. 60, 609. A release is giving or discharging of a right or action which a man hath against another, or that which is his ; or it is the conveyance of a man’s interest or right which he hath unto a thing, to another who has the possession. 1 Sheppard, 320. 2. The deed is void as to the defendants in this action; because the plaintiff was holding the lands adversely to them, and their release to him only acquitted him of their right to what he had in possession. An estate in lands cannot pass by quit-claim. Ibid. 320 ; 4 Coke, 25.
    The right to a freehold in presentí or in futuro maybe released, l. To the tenant of the freehold in deed or in law; 2. To him in remainder; 3. To him in reversion; but not to a mere stranger. A distinction is made between the grant or assignment of choses in action to a stranger and a release of rights to the terre-tenant. lb. 322. Again ; in all cases of a release of a bare right of freehold in lands, he to whom the release is made must have, at the time of making the release, the freehold in possession, remainder, or reversion ; for rights of entry and actions and the like are not transferable to strangers but are thus to be released. Ib. 327. The whole extent and meaning of releases is to quiet claims; not to transfer rights of action and entry. They cannot create estates, but perfect imperfect ones. 5 Mason C. C. R. 16; 4 Cruise Dig. ch. 6.
    It is a general rule of law, that a deed made by a person out of possession at the time, though he have the legal right, is void. The law will not suffer a man to sell a quarrel, or as it is commonly called, a pretended title. Such conveyance is an offence at common law and by statute of 39 Hen. VIII. 2 How. 347; 5 Mass. 236, 237; 11 Mass. 554.
    Lord Coke, in speaking of this statute, says, A man may make a pretended title in two ways. 1. When it is merely a pretence, and nothing in verity; 2. Where it is a good title and right in verity, and made pretenced by act of the party ; and both are within the statute. 3 Thomas’s Coke, 426, 427 ; Tenn. Rep. 101.
    
      “The deed of one disseised is utterly void. His freehold is then held to be out of him, and his title is converted into a right of action, and, as such, no more subject of transfer than an ordinary chose in action.” 5 Peters, 436; 3 Mass. 573 ; 7 Law Library, 170.
    4. The necessity of possession, actual or legal, on the part of the vendor of land, in order to make a valid conveyance, is imperative. A deed to land held adversely is void. See further on this point 8 Johns. Rep. 220; 1 N. Car. Rep. 114; 4 Kent, 446; 3 Johns. Chan. Cases, 101; 24 Wend. 8, 587; 1 Peters’s C. C. R. 49; 1 Munf. 162, 163; 3 Call, 411; 5 Peters, 436; 1 Inst. 214; 2 Hilliard’s Dig. 130; Pertle’s Dig. 154; 4 How. 24; and the case of Brown v. Neast, reported in 7 How. These authorities are conclusive on the point, and the decisions of our own court go as far as any of them.
    5. The next question is, whether the proof for the defendants in the cause was sufficient to entitle them to this defence. In the case of Prescott v. Nevers, 4 Mason C. C. R. 326, it is said that when a party enters into possession under an unrecorded deed claiming title to the entirety, and exercising acts of ownership, it is a disseisin of all persons who claim title to the same land to the extent of the boundaries of the deed. “ When a person enters under a deed or title, his possession is coextensive with his deed or title. And although the deed may turn out to be deceptive or void, yet the true owner will be deemed disseised to the extent of the boundaries of such deed or title. This, however, is subject to some qualification ; for if the true owner be at the same time in possession of part of the land, —■ that is, in the disseisor’s deed,— claiming title to the whole, then his seisin extends by construction of law to all the land which is not in the actual possession by an enclosure or other-wise of the party claiming under a defective title or deed.” 5 Peters, 319 ; 4 Peters, 418.
    Again, an entry into possession of a tract of land under a deed containing specific metes and bounds, gives a constructive possession of the whole tract, if not in adverse possession, although there be no fence or enclosure around the ambit of the tract, and actual residence on only a part of it. To constitute actual possession it is not necessary that there should be any fence or enclosure round the land. 10 Peters, 414. Again, when there has been an entry under color of title by deed, although the actual settlement and improvement were only on a small part of the tract only; in such case when there is no adverse possession, the law construes the entry to be coextensive with the grant to the party, upon the ground that it is the clear intention to assert such possession. 10 Peters, 414 ; Bledsoe v. Little, 4 How. 24.
    6. We contend, that there is a fatal breach in this chain of title, and the plaintiff has no rights under the Rumsey grant. 1st. The release was utterly void, and vested mo estate in For-man, and his deed to Salkeld conveyed no right, for he had none. 2d. Our statute provides that an executor shall make no profit by or from his decedent’s estate. And it is well settled that if a trustee, executor or agent, buy debts due his. cestue que trust, testator or principal, the profit in the purchase belongs to the person or estate for whom he acted. Prevost v. Gratz, 1 Peters C. C. R. 364.
    But suppose that the quit-claim divested from Rumsey, the grantor, all of his rights, and that it be intended by law that W. J. Forman took under it as executor of David For-man, and for the benefit of the heirs. In this view of the case the plaintiff’s title is no better, for it is not pretended that he made title to the lands in his representative capacity. He acted as if he had the right in him, and in direct opposition to the law. It is well settled in this state and in all the books, that an administrator, or executor, must comply with the directions of the statute in the sale of real estate of his decedent. See statute of Mississippi on this subject. 2 Peters, 492.
    But we deny that this deed could effect the interest and rights of the defendants in this cause, even if it had been properly made and were valid between the parties.
    1st. The first section of the registry act of 1803, amended by the act of 1807, provides that any deed, or conveyance of lands then made, or to be made thereafter (to 1803) shall be acknowledged by the grantor, or proved before a judge of the supreme court, or a justice of the peace, by one or more of the subscribing witnesses. See Turner’s Digest, 76.
    The 2d section provides that no such conveyance shall be admitted to record without such proof, ibid. And the 7th section provides that every deed not so recorded and proved (within twelve months) after sealing and delivery, shall be void against subsequent purchasers for a valuable consideration, but shall be valid between the parties to the deed. Ibid. 77.
    7. The court below erred in admitting the power of attorney, made by the Barclays in England, to Lyons, in 1827, and in refusing to permit the defendants to show that the certification or authentication was not according to the custom of London. •If the authentication was informal or incorrect, the defendants certainly had a right to show it. Also the defendants’ ancestor was in possession of the land in dispute at the time of this deed from Lyon’s attorney to the plaintiff, and even if it conveyed the land in dispute by name, it would be void for maintenance on the same ground as the other.
    8. The court below erred in allowing the maps from the surveyor-general’s office to be read as~ evidence to the jury. It has not the requisites of a record; in objecting to its introduction the defendants showed that the custom of the office was not to record such plats, or surveys made by deputy-surveyors were not complete until approved by the surveyor-general ; and the return of the deputy should show the authority under which he acted. That, until the survey is, duly approved it may be amended, and it was the constant custom of Thomas Freeman to have errors in surveys corrected ; that according to these rules the plat in question is improperly of record.
    When a record is introduced as evidence, it must all be before the court, or it should not be received. If it be imperfect and does not comply with the requisitions of the law under which it is made, it should not be admitted. See How. & Hutch. 744, § 5 ; 748, $ 11; 753, $ 5 ; 769, § 11, as to the power and acts of the surveyor-general of lands.
    
      9. The court below erred in giving all of the instructions asked by the plaintiffs, though some of them may be good law. In the first, the court instructs the jury that the plaintiff have proved title, &c., the very thing they were to find.
    10. And the refusal to give the instructions asked by the defendants was equally erroneous. The law in regard to the principles contained in these instructions is clearly laid down in instructions already referred to, and need not be repeated.
    
      Montgomery and Boyd, for defendant in error.
    The certificate of confirmation in favor of Lacy Rumsey, was admissible under the statute of this ' state, which provides that copies of all the records of the land offices, in this state, duly authenticated, shall be read as evidence, subject to the same rules as in cases of records of court. How. & Hutch. 605, sec. 24.
    The first objection which may be raised to this evidence, is, that it is not a record appertaining to the register’s office. But this objection is fully met by the act of congress, regulating grants of land, &c. which, after providing for the granting certificates of confirmation, declares, that the certificate being recorded by the register of the land office, whose duty it shall be to record the same, shall be a relinquishment of the title of the United States. How. & Hutch. 745, sec. 6.
    Another objection is, that the original was not produced nor accounted for. In addition to the position above taken, that the original would not be evidence, we contend that a fair construction of the act of the legislature makes a copy evidence, without accounting for the original. The language is, that the copies “ shall be admitted ” “without further or other proof,” “ in the same manner and with the same effect, and subject to the same rules and regulations as in cases of certified copies of records of any court of this state.”
    2. The next point, was an objection to the admissibility of the deed from Rumsey to Forman.
    The first objection to its admissibility is, that it was not proved and recorded according to the act of the legislature. As it was not recorded until after this suit was commenced, there may be some doubt of its admissibility, under the act of 1822;  but as that question is unimportant, we will not discuss it, but content ourselves with referring to the act of the legislature of 1803, “ respecting conveyances; ” the first section of which provides for the acknowledgment or proof of deeds, and concludes thus : “ Then every deed or conveyance so acknowledged or proved, and certified, shall be received in evidence in any court of this territory, as if the .same were then and there produced and proved.” The proof was made before, and certified by a judge of the superior court of the territory, and the certificate contains all the requisites of the statute.
    The next objection is, that the defendants were subsequent purchasers from the United States, for a valuable consideration without notice. It has been decided, that as between persons claiming under different grantors, priority of registry has no legal effect. Registry is constructive notice, only as between purchasers from one grantor. Tyler v. Hammond, 11 Pick. R. 193 ; Tracy v. Jenks, 15 Pick. R. 465.
    3. When the power of attorney to Lyons was offered, an objection was taken that it was not properly authenticated.
    The act of the legislature, under which this is offered as evidence, provides that all deeds and other instruments in writing, made between persons residing in a foreign kingdom, proved by the requisite number of witnesses, before the mayor of a city in which the parties shall, dwell, certified by the mayor, in the manner such acts are usually authenticated by him, shall be evidence in all courts of record. How. & Hutch. 605.
    The same rule is prescribed for the authentication of deeds. Ib. 346.
    Where an officer is authorized to give certificates, such certificates are evidence without further proof, because it is part of the laws of the land, which courts are bound to notice. Gilb. Ev. 22-26; Peake’s Ev. 60, 61.
    
      When the law appoints a person for any purpose, the law must trust him as far as he acts under authority. Bul. N. P. 229.
    The statements in the certificate are prima facie evidence of the facts, when the deed is recorded by the proper officer. 13 Peters R. 21; 1 McLean R. 620.
    From these authorities we conceive the doctrine that the court is bound, of its own knowledge, to determine whether the certificate of the mayor of London is in the manner such acts are usually authenticated; and that having been done by an officer appointed by the law for that purpose, the court must give him credit for having done his duty, and cannot at least hear parol evidence that his authentication is in proper form, and is fairly deduced.
    4. Again, as it is admitted the plaintiff had possession under the deed, or otherwise, of the land authorized to be conveyed by the power, and in virtue of a deed made by the attorney therein constituted, a legal acknowledgment might be presumed. Con-nelly v. Boucie, 6 Har. & John. 141.
    5. The next objection was as to the admissibility of a copy of the map of Jane Rumsey’s survey, certified by Y. Howard, surveyor-general. The first objection to it, was that it had not been approved by the surveyor-general, according to the usage of the office, and proof of the usage was offered, which was rejected by the court. To this objection we answer, that usage cannot alter the law, and the certificate conformed to the law making it evidence. The act of congress which provides for the surveying the lands in this country, adopts the regulations previously adopted for the surveying the lands of the United States in the North-Western Territory. Laws &c. relating to Public lands, 488, § 11, of act 1803, and the act regulating the survey of the land in the North-Western Territory, after directing the manner of surveying &c.., prescribes that maps of such surveys shall be made and recorded in books to be kept for that purpose. Ib. 421.
    Our own statute before recited, making copies of all papers appertaining to any of the land-offices in this state, evidence, embraced the map in question, and it was therefore admissible on .its face, and as the law does not require any other evidence of its having been approved by the surveyor-general, it was not competent for the court to annex that condition to its admissibility as evidence on proof of a custom adopted by the officer.
    The law requires the principal surveyor to record surveys; these and other matters required to be recorded, must be read as conclusive evidence ; and parol evidence cannot be received to invalidate them, unless fraud be shown. 4 Pet. 346.
    6. As to the first instruction we conceive there can be no doubt. It appears from the testimony, that shortly after the confirmation of the Rumsey and Forman grants, that W. G. Forman, who was acting as executor of D. Forman, and who as executor, petitioned for the confirmation of the grant to E. Forman, became the purchaser of the title to Rumsey, and the title from him is complete, if all the evidence was properly admitted. And Reynolds had subsequently, and before suit brought, purchased the title of the heirs of D. Forman, therefore he was the legal holder of both grants, and was entitled to all the land granted by either. But admitting that the conveyance from W. G. Forman were not properly admitted, still we contend that Reynolds shew a clear title to the land in both grants. For when W. G. Forman acquired the title to the Rumsey grant, he was acting as executor of George D. Forman, and had prosecuted in that character the claim to the land under the grant to E. Forman. Now it is well settled that an executor cannot acquire a title adverse to the devisees, whose interest he .represents, and consequently the outstanding title purchased by him enured to the benefit of the heirs of D. For-man, subject to a charge for the money paid by the executor for the purchase of it. 5 Johns. G. R. 338.
    But it is admitted in the record that both grants embrace the same land, and therefore the first and second and tenth instructions, if erroneous, were innocent, and could not have affected the verdict.
    7. The second instruction is sustained by the decision of this court in the case of Nevittv. Beaumont et al., not reported.
    
      The fourth, fifth, sixth aud seventh, are fully sustained by the decisions in Martin v. King’s heirs, and Newman v. Foster.
    
    8. There must be a real, substantial enclosure, an actual occupancy, a possessio pedis, which is definite, positive, and notorious to constitute an adverse possession, when that is the only defence, and is to countervail a legal title. 2 Johns. R. 230.
    9. The ninth instruction is equally well sustained. When a boundary is ancient, reputation is admissible to establish it. 2 Litt. 159; 2 Marsh. 158; 3 lb. 226. Boundaries may be proved by hearsay evidence. 6 Pet. 341; 4 Hawk. 116 ; 1 lb. 45; 10 Johns. 377; 4 Day, 265; 4 Dev. 342; 6 Litt. 7.
    The instructions moved for by defendant and refused by the court, are ingeniously drawn, and require critical examination. The term notorious possession is used to avoid the requisitions of the authorities, that the land must be enclosed by visible boundaries. Now a party may be in possession of land, and such possession may be notorious, although he has neither pos-sessio pedis nor actual habitation, nor enclosure designating the extent to which the party claims. The terms notorious possession would be satisfied by the ordinary act of ownership, of going on the land and taking timber off it, &c., which does not constitute such an adverse possession as will avoid a deed for champerty. 8 Johns. R. 220.
    10. The last instruction asked was clearly not law, as actual adverse possession would not avoid the deed for all the land claimed by the party in possession, but only to the extent of possession designated by actual boundaries enclosed.
    11. But it appears clearly from the record, that both instructions were abstract points of law, as the record states that the proof was that the land in dispute was not enclosed, but that a part had been fenced and cultivated by the defendant, and those under whom he claimed, until 1832. The deed from D. For-man’s heirs was not made until 1834, at which time it was not pretended that there was such adverse, possession as is contemplated by the authorities.
    
      
       A deed may bo given in evidence, though it was acknowledged after suit brought. Paine’s Cir. Court Rep. 549; 2 Peters’s Dig. 200.
    
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This was an action of ejectment brought by the defendant in error against the plaintiff. The plaintiff below claimed title under two Spanish grants legally and fully executed; one to Jane Rumsey, for 2000 arpens ofland, dated the 8th of October, 1787, and the other to Ezekiel Forman, professing to be for the same land granted to Jane Rumsey, bearing date the 1st of June, 1702, for 2000 arpens of land. The defendant below claimed title under a patent from the United States,- issued in 1823. The defendants only claim title to part of the land conveyed by the Spanish grants; or at least the quantity in controversy is but about one hundred and eighty acres. A bill of exceptions was taken on the trial, on which errors are assigned, six in number.

First. It is said the court erred in admitting the paper purporting to be a certificate of confirmation by the Board of commissioners west of Pearl River, to Lacy Rumsey, for 2000 arpens of land. The certificate of confirmation is in due form, but the objection is, that it was but a copy, and no proof was made of the loss of the original. To this objection several answers may be given. It does not appear that there ever was an original, other than that which is spread upon the record of the proceedings of the commissioners. But the statute declares in express words that copies of the records appertaining and belonging to the land-offices of the United States established in this state, duly authenticated by the proper officer having charge of the said records, shall be admitted as evidence in suits depending in this state, in all cases where the originals or sworn copies could be admitted, without further or other proof of such record. How. and Hutch. Dig. 605, sec. 24. The register certified that the certificate of confirmation was truly copied from the records in his office. This certificate then, was properly admitted.

Secondly it is assigned as error that the court improperly admitted the release or quit-claim deed of Lacy Rumsey to William Gordon Forman, and the indorsements thereon, to be read to the jury. Several objections are made to this instrument It is insisted that it was not authenticated in the proper manner to make it evidence. It was executed on the 8th of December, 1806, in the presence of two. witnesses. On the 30th of November, 1807, it was proven before Thomas Rodney, a judge of the superior court of the Mississippi territory, by one of the subscribing witnesses. The law as it then stood authorized the proof or acknowledgment of deeds to be made or taken by a judge of the superior court, and further provided that every deed so acknowledged or proven and certified, should be received in evidence. A further provision entitled deeds so acknowledged or proven, to be admitted to record; and deeds not recorded within twelve calendar months were declared void as against a subsequent purchaser or mortgagee without notice, but the statute contains no other restriction as to recording. The certificate of the judge on this deed, conforms to the provisions of the statute, and of course the deed was free from objections on this ground. Toulman’s Dig. 243. But this deed was not recorded until the 10th of March, 1841 and it is insisted that it was therefore void as against the defendant, who is a subsequent purchaser, without notice, from the United States. As between these parties no registration was necessary. The registry act only avoids a prior unregistered deed in favor of a subsequent grantee from the same grantor. But the registration is of no consequence as between parties who derive their titles from different sources. The mischief which the law was intended to prevent, cannot in such cases exist. • When the statute declares that unregistered deeds shall be void as to subsequent purchasers and creditors without notice, it can only mean to prefer a purchaser who has taken a conveyance from the same person who executed the unregistered deed. But the title under the Spanish government was recorded in the proper office. This deed then was as valid without recording, as to this defendant, as it would have been with it. It is also insisted that this was a mere quit-claim or release, and therefore insufficient to pass an estate. This is an objection which applies to its legal effect, rather than to its competency, or admissibility. It is admitted that the words “remise, release, and quit-claim,” used in the deed, may be sufficient to perfect a title in one having claim of title. As a link, then, in the chain of title, it was proper evidence. Its legal effect may more properly be considered under another head. An instrument is not necessarily to be rejected because it does not amount to a sufficient title to pass the entire estate. If it constitute a constituent part of title, it must be admitted. Its effect may depend upon its connection with other instruments. It may be insufficient in itself, to prove enough, and still it may be competent proof, when applied in its proper connection.

Thirdly, that the court erred in admitting in evidence the paper purporting to be a power of attorney from T. B. Barclay, G. P. Barclay, and T. M. Barclay, to Robert Lyons, and the in-dorsements thereon; and in excluding the proof offered by the plaintiff in error to show that according to the custom of London, the acknowledgments, as certified thereon, were not in due form, ■or legal. It seems that two of the constituents Avho executed the power of attorney, resided in London, and the other in Liverpool. The power was executed in presence of witnesses, who proved the execution, by two of the Barclays, before the mayor of London. Thomas B. Barclay resided in Liverpool, and there signed the power of attorney in presence of witness; the proof as to his execution, was made before the mayor of Liverpool, by a subscribing witness. The certificate of the lord mayor of London, is made under the official seal and signature of the mayor, but it is said the certificate of the mayor of Liverpool is defective in this, that it is not subscribed by that officer, but by the town clerk. It bears however the impress of the corporate seal, and purports, by beginning with the name of the mayor, to be his official certificate. The affidavit subscribed by the witness bears also the signature of the mayor, who administered the oath; it is the separate certificate that the witness appeared and deposed to the truth of the matters contained in the affidavit, which was signed by the town clerk by order of the mayor, and sealed with the corporate seal. The corporate seal must be regarded as imparting the requisite authenticity, and as proof that its character is truly stated in the instrument itself. These -certificates are not of themselves evidence, but made so by stat„ute, which declares that where the parties or witnesses to a deed, reside in a foreign kingdom, state, nation or colony, the acknowledgment or proof made before any court of law, or mayor or other chief magistrate of any city, borough or corporation, of such kingdom, state, nation or colony in which the said party or witnesses reside, certified by the said court, mayor, or chief magistrate, in the manner such acts are usually authenticated by them or him, shall be as good and effectual as if it had been made before, and certified by one of the judges of the supreme court of this state. This statute appoints such foreign officers as are therein designated, as certifying officers, and it adopts the foreign law or custom in regard to the form of the certificate. The certificate of the mayor of a foreign city, is prima facie evidence that the certificate itself is in due form, or in the usual form of authenticating such acts, but it is not conclusive. 3 Phil. Ev. 1249. The certificate of a state officer is not of itself conclusive evidence that it is in due form, but may be shown to be defective, and whether defective or not is a question of law, because the manner of certifying is regulated by a public law which the courts of the state are bound to notice. But the question whether the certificate of a foreign officer conforms to the foreign law or custom, is a question of fact, because the manner of certifying is regulated by the foreign law, of which our courts are not bound to take notice, but which must be proven as a question of fact. It is only when the certificates are made in the usual manner of certifying that they become evidence here; the certificate itself is prima facie evidence that it is in due form, but the party who objects to its admissibility, may rebut this presranption by showing that it is not in the usual or legal manner of certifying. The question is then, how, or by what evidence may the objecting party prove that the certificate is imperfect ? If the mode of certifying be regulated by law, then an authenticated copy of the foreign law must be exhibited to the court, in order that it may instruct the jury what the law is. If such a copy cannot be procured, then inferior evidence may be resorted to. The general principle here prevails, that the best evidence which the nature of the thing admits of, must be produced. Story’s Confl. of Laws, 2d ed. 527 — 529. By the bill of exceptions it seems that the defendant in the court below offered to prove that the certificate of the mayor of London was not authenticated according to the usages of the city of London, but how, or by what proof the defendant offered to- establish this fact, does not appear. We cannot say that the court erred in not permitting a party to offer proof of a particular fact, which can only he proved in a certain way, unless it also appears that the proof excluded was pertinent to establish the fact which the party desired to establish. It may be that parol proof was offered. This would not do, except in connection with the fact that the mayor of London is not governed by any law in making his certificates. We conclude then that the certificates were properly admitted, and that no error is shown to have occurred in excluding the proof offered to impeach them.

Fourthly, it is assigned as error, that the court admitted a paper purporting to be a plat and survey of the land contained in the certificate of confirmation, certified hy Yolney E. Howard as the surveyor-general of lands south of Tennessee. We have before shown that the certificates of the officers of the several land offices established in this state, are made evidence by the statute. This certificate is by the surveyor-general, and within the statute. One of the objections to this certificate is that the map or plat differs materially from the map of the same land in the register’s office. By the act of congress it was made the duty of the surveyor of lands south of the state of Tennessee to cause a survey to be made of all private land claims, and also of all public lands, and to transmit to the register’s office general and particular plats of all the lands surveyed. Act of congress of the 3d of March, 1803. This we must suppose was done. The map so transmitted to the register’s office, cannot he better than that retained by the surveyor-general. The statute makes copies of both evidence, and if there be a difference, it cannot be reconciled by making one superior to the other. Mistakes in the maps can only be corrected by actual surveys. Another objection to this certificate is that it is without date, and hence it is said that it cannot be known that Howard was surveyor-general when the certificate was given. He certifies as surveyor-general, and it is his official character which makes the certificate evidence. We must presume that all the certificate is true, until the contrary is shown.

Fifthly, it is said the court erred in giving the several instructions asked by the plaintiff’s counsel. The charges given were ten in number, and we shall only notice such as may seem to require comment. The first charge given was that the plaintiff had shown a complete legal title which emanated from the Spanish government by two grants; one to Jane Rumsey, the other to Ezekial Forman, and if the land in controversy was embraced by either of the grants, the plaintiff was entitled to recover, unless the defendant held under a superior title. Under this charge we may properly notice several objections made to the plaintiffs title, in the arguments of counsel. It is insisted that the Spanish grant to Forman conveyed no title, because it recited that the same land had been previously granted to Jane Rumsey. As an abstract proposition, it is undoubtedly true that a grantor, who disposes of land by a valid operative deed, cannot subsequently dispose of the same land by a valid operative deed to a different person. There is nothing on which such a deed can operate, since the entire estate passed from the grantor by the first conveyance. But if the original conveyance were inherently defective, then of course the second would pass the estate. These two titles seem now to be centred in the same individual. They are not arrayed against each other, and we are not called on to say which was the superior grant. To the Rumsey grant, in its inception, there is no objection, and if the plaintiff can trace his title regularly back to that grant, it must be sufficient. The chain of title is complete with one exception, but that, it is insisted, is a defect which cannot be overcome. Lacy Rumsey conveyed by release, or quit-claim deed, to William Gordon Forman, on the 18th December, 1806. The board of commissioners had granted a certificate of confirmation to Lacy Rumsey, as the legal representative' of Jane Rumsey, on the 23d of July, 1806, in virtue of the Spanish patent to Jane Rumsey. The plaintiff, through regular mesne conveyances, derives title from William Gordon Forman. The defect in the chain of title is said to consist in this: that no estate passed by the release, or quit-claim deed, of Lacy Rumsey to William Gordon Forman. To sustain this position it is assumed that Forman was not in possession, and it is argued that a release can only confer title to one who is in possession. A release, it is true, does not pass the right to land, of which another person is in the actual visible possession claiming a right. 12 Mass. R. 339; 11 Ibid. 222. A release, however, may be used as a conveyance of the estate to one in possession ; or as a mean of transferring or enlarging an estate by giving some new interest. Arid so/7 says one author, it doth sometimes perfect an estate that was imperfect and defeasible before, and enure by way of entry and feoffment.” Sheppard’s Touchstone, 320 et seq. So it is said lands, tenements, and he-reditaments may be given and transferred by way of release. Ibid. 321. And it seems that any interest in the person to whom the release is made, either by possession, by deed or in law, in his own or another’s right, will be a sufficient foundation for the release to stand upon. Ibid. 323. Even if he be tenant at will it seems to be sufficient. But we find, from high authority, that a vested interest, without an actual possession, will be sufficient to sustain a release. Cruise’s Dig. title Lease & Release. In a country abounding in wild land, a deed or grant may be regarded as a constructive possession, which was the case in this country whén these titles originated. If William G. Forman, at the date of Rumsey’s release to him, had actual possession, the title passed to him by the release. Or if he had constructive possession by virtue of the grant to his testator, it would seem to be sufficient. We have said that in order to avoid the release, counsel had assumed the position that Forman was not in possession. In this remark we are justified by the record, which furnishes no proof of any such fact; and we may advert to the history of the title, for the purpose of showing that it even favors a presumption the other way. We have before us extracts from the proceedings of the board of commissioners, from which it seems, that in March, 1804, William G. Forman, as the executor of David Forman, presented his claim to be confirmed in the title under the Spanish grant to Ezekiel For-man. The petition was before the board at various times, from March, 1804, up to 1806, when the certificate of confirmation issued. Forman produced to the board the original Spanish patent to Ezekial Forman as the foundation of his claim, and also other title papers and evidence. All this transpired at Washington, in the immediate vicinity of the land. But in addition to this, we find Lacy Rumsey, as a citizen of Jefferson county, which is at some distance from the land, conveying by release to William G. Forman, on the 18th of December, 1806, shortly after the legal representatives of David Forman had been confirmed in their title. In addition to these facts, it appears that Salkeld and the Barclays had for many years a plantation in cultivation on part of the Rumsey and Forman grants, and that the plaintiff has been in possession ever since he received a conveyance, with this qualification, that part of the land was, and is still, uninclosed. If Salkeld had a plantation on the land, it was probably as early as 1811, which was long before the defendant’s ancestor acquired title. Nor is there any proof of an adverse possession, until 1832, which was after the plaintiff had acquired title. At the time of the trial, the deed of release was thirty-five years old, an age sufficient to draw to its support the favorable presumptions of law. It was said by Chief Justice Marshall, that in favor of long possession, in favor of strong apparent equity, much may be presumed. 7 Wheat. 546. In the case of Jackson v. Lamb, 7 Cow. 431, it was decided that a mutilated lease, in connection with proof of long possession, might be regarded as sufficient to justify the presumption that a release had been executed, as the lease seemed to have been drawn with a view to a conveyance by release. It is not uncommon, from proof of long possession, to presume that the possession was held under a deed. Jackson v. Lunn, 3 Johns. Cases, 109; 2 Notes to Phil. Ev. 364, et seq. So on proof of long possession, and all other things regularly made out, the title shall not fail for a single defective item. Ibid. It is true that where length of possession is relied on as furnishing a presumption of title, it must be established by unequivocal proof. But such strictness cannot be requisite when a deed is proven which is to rest upon possession. The principle is, that proof of one ingredient of title will draw to it another. Here the release is well proven, and lacks nothing but proof of possession, or of a lease at the time it was executed to support it. This defect is supplied by a presumption, based upon the possession of the release, as far back as there is any evidence of possession. It is not, moreover, contended that there was any adverse possession until 1823, and no actual possession until 1832, when the present plaintiff was in possession under his title. His title to the whole and possession of part, was possession of the whole. Hammond v. Ridgely. 5 Har. & John. 215, 264. But it would seem, from the cases referred to in 11 & 12 Mass. R. that in order to defeat a release, there should be proof of an actual adverse possession, under a claim of right. There is no such proof in this case. It is the case of one seeking to avoid a title by release, when the releasee was in possession long before the defendant acquired title, and who, for anything that appears to the contrary, was in possession when the release was made. If the validity ef the release rested alone on presumption of possession, it might be a question proper for a jury. But it is fortified by the absence of all proof of an adverse possession, and by the additional consideration that the great objection to it in the court below, was as to its authenticity. By the bill of exceptions it seems that the plaintiff read the release and certificates thereon, without any further proof, to the admission of which in evidence the defendant by his counsel objected.” From this language we must understand that the objection was intended to apply only to the omission to introduce further proof of the execution of the instrument. The argument as to the effect of a release as a conveyance has been much pressed in this court, and we have endeavored to meet it by showing that the facts in the case were such as would have obviated the objection, even if it had been pressed to the court below. The remaining charges do not seem to us to require special comment.

For the defendant, the court was requested to charge the jury that if the plaintiff took his conveyance when defendant held adversely under a patent, the deed was void. It is insisted that the court erred in refusing this charge, because a deed so taken would be void for champerty, at least to the extent of the land held adversely, and the case of Levitt v. Poor, 11 Mass. R. 549, is relied on. That was a contract clearly within the common law doctrine of champerty, and therefore void. We might declare a similar contract void for the same reason. Champerty is an offence at the common law, and no contract which contains within itself a violation of law can be valid. But it is to be noted that on this subject we are governed by the common law only. We have no such statute as that of the 32 of Hen. 8, ch. 9, which prohibited the sale or purchase of land, unless the vendor had received the profits thereof for one year next preceding the sale. In order, then, to avoid the contract, the common law offence of champerty must be complete, for it is because of the offence that the sale is void ; and if there be no offence, the sale is valid. Parties may act innocently in consequence of an entire ignorance of the adverse possession. For example, one who buys a section of land without knowing precisely the metes and bounds, if, when the lines are ascertained, it should turn out that part of the land is in possession of an adversary claimant, is not guilty of champerty. The common law has in view the prevention of a great mischief, and as the case put does not fall within the evil, the law does not apply; especially in this country in which there is so much land uncultivated, and which is held only by constructive possession. It is not an uncommon thing for purchasers to contract for large quantities of land, without ever having seen it. If champerty is committed by innocently buying a tract of land, a small quantity of which is claimed by another, the offence is quite common. To constitute champerty it is necessary to prove something more than that part of the land was claimed by another. The purchaser should have some knowledge of the adverse claim. This seems to accord with the view that was taken of the subject in the case referred to. It seems that all the land in dispute was in forest when the plaintiff purchased ; and there is no proof that he knew anything of the defendant’s claim. There is then no ground for holding the deed void for any part of the land conveyed.

In conclusion we may remark that both titles seem to be perfect, and that this is one of those cases of conflict of boundary which has originated out of the imperfect manner in which the orignal surveys of the country were made. But the bill of exceptions does not present the question of boundary in such a manner as to enable us to perceive where the difficulty lies. If a survey was made under an order of court, it is not brought up. The efforts of the defendant’s counsel seem to have been directed against the plaintiff’s title, rather than against his boundary.

The judgment must be affirmed.  