
    [Sunbury,
    July 1, 1824.]
    SCOTT against GALLAGHER and another.
    IN ERROR.
    The omission to state, in a certificate of the acknowledgment of a deed, that the person before whom the acknowledgment was made, was a justice of the peace of the county in which the land was situated, does not render the certificate void. It may be supplied by parol proofj that he was an acting justice of the peace at the time the acknowledgment was taken.
    "Where the handwriting of a deceased subscribing witness to a deed has been proved, the court has no right itself to examine witnesses, and on a belief, that the instrument is forged, withdraw it from the jury.
    If a deed, purporting to be by husband and wife, of the husband’s lands, be proved, by proof of the handwriting of a deceased subscribing witness, it vests the title in the grantee, notwithstanding the signature of the wife is forged.
    Ejectment in the Common Pleas of Mifflin county, in which James Scott was plaintiff, and Lydia Gallagher and James Harrell defendants.
    After, having shown title to the land in dispute in Joshua Smith, the plaintiff offered in evidence a deed, dated 5th of February, 1777, from the said Smith to Joseph Cdokson. The defendants’ counsel objected to its being read, upon which, the counsel for the plaintiff called John Oliver, Esq. to prove the handwriting of Samuel Lyon, Esq. before whom the deed purported to have been acknowledged, and also to prove, that Mr. Lyon was an acting justice of the peace. The defendants’ counsel opposed the admission of this testimony, but the court directed the witness to be sworn, who stated, that he had often seen Samuel Lyon write; that he knew his handwriting, and believed that which was shown to him, to be his handwriting. He added, that he knew Mr. Lyon was an acting justice of the peace, at the time the acknowledgment purported to have been taken. The deed was then read to the jury without further opposition. The plaintiff, after this, offered in evidence an exemplification of a deed from the said John Cookson to Thomas Gallagher, dated 2d of January, 1782, recorded 1st of July, 1794, which was objected to by the counsel for the defendants, on the ground, that no authority appeared in the person by whom the acknowledgment was taken. The acknowledgment was in these words:
    
      “ The third day of January, A. D. 1782, before me came Joseph Cookson, and Priscilla his wife, above-mentioned, and acknowledged the above-written indenture to be their act an'd deed, and desired the same might be recorded as such, the-said Priscilla thereunto voluntarily agenting, she being of full age, separate, apart from her husband, by me examined, and the contents thereof unto her fully made known. Given under my hand and seal, the day and year aforesaid.”
    ciChurch Cox.” \Seal.'\
    
    
      The plaintiff proposed to prove, by David'Walker, Esq. that Church Cox was an acting- justice of the peace in Cumberland county at the date of the acknowledgment. The defendants’ counsel objected to the admission of the testimony, and the court rejected it, and sealed a bill of exceptions. The defed was again offered in evidence by the plaintiff, but rejected by the court, and an exception taken to their opinion.
    A deed from Thomas Gallagher, and Lydia his wife, to Duncan M‘Corrnick, dated 21st of November, 1786, was then offered in evidence by the plaintiff, with parol proof, that Lydia Gallagher, the defendant, was a grantor in the deed, and that James Horrell was her tenant when this ejectment was brought, The parol proof was objected to by the counsel for the defendants, but admitted by the court.
    
      David Walker then stated, that Lydia Gallagher was the widow of Thomas Gallagher: That James Horrell acknowledged, that he was the tenant of Lydia Gallagher, who made the same acknowledgment herself: That the name, Thomas Gallagher, to the deed produced, was the handwriting of the said Thomas Gallagher: That Mrs. Gallagher said, they had sold the. land to Duncan M‘Cormick, and got some instrument of writing, to secure payment of the money, but that it never was paid, and that the land was sold long before Thomas Gallagher’s death. The witness then proved the handwriting of William M’-Coy, as a witness to the deed, who, he said, was dead, and added, that the other witness, who lived in the neighbourhood of M’-Coy, went to Ohio, and was also dead. MiCoy, he stated, was a justice of the peace, but he could not say, that the name, William M(Coy, to the acknowledgment, was in his handwriting.
    The defendants then called Thomas Gallagher, the son of Lydia, one of the alleged grantors, who testified, that the signature, Lydia Gallagher, was not in his mother’s handwriting; she never wrote, he said, near so good a hand ; he had often seen her write, tie also swore, that he had been to school to M’-Coy a long time, had often seen him write, and did not believe that his name, signed to the acknowledgment, was in his handwriting.
    After this evidence had been given, the deed was offered in evidence by the plaintiff, objected to by the defendants, and rejected by the court, whose opinion was again excepted to.
    
      Hale, for the plaintiff in error,
    now contended, that the court below erred in rejecting the exemplification of the deed from Cook-son toGallagher,accompanied as it was offered tobe, with proof, that the person before whom it was acknowledged, was an acting justice of the peace of the county in which t'áfe land was situated.
    2. That there was error in - Acting the deed from Gallagher and wife, to M(Cormick, as me plaintiff had proved the handwriting of one of the subscribing witnesses, and that the other had moved out of the state, and was dead.
    
      
      Carothers, for the defendants in error,
    answered, that it was not said, either by direct assertion, or by reference to any thing, in what county the acknowledgment was taken, or that Church Cox, who took it, was a justice of the peace. The parol evidence of that fact, was not sufficient. No proof was given of his handwriting, nor any evidence, that he who took the acknowledgment, and he who acted as justice, were the same person.
    2. The court having rejected the deed from Cookson to Gallagher, no title was shown in the latter, and consequently his deed was not evidence. It is true, however, that the court did not go on this ground. They examined witnesses on both sides, and re» jected the deed, because they thought it a forgery. It is admitted, that this mode of procedure has been determined by this court to be irregular, and therefore, the rejection of the deed, will not be attempted to be sustained on this ground.
   The opinion of the court was delivered by

Duncan, J.

The defendants came into possession, and claimed title under Thomas Gallagher, the husband of Lydia. The plaintiff showed title in Joseph Cookson. The first and second bills of exceptions are to the rejection of the deed from Joseph Cookson to Thomas Gallagher. That deed being an ancient deed, 22d of January, 17S2, and possession having accompanied, and being in fact held under it, it proved itself. This conveyance was recorded on the acknowledgment before Church Cox, The objection to the acknowledgment was, that it did not state Church Cox to be a justice of the peace in the county where the land lay. This, to be sure, is very informal, but does not vitiate the acknowledgment, and evidence being offered, that Church Cox was an acting justice of the peace at the time of the acknowledgment, in that county, it obviated any difficulty as to his authority; and, acting as a justice of the peace in the county in which the land lay, in the very county in which the cause was trying, the notoriety of his acting as a justice of the peace, sitting in the Court of Quarter Sessions, &c. would be sufficient evidence in a case of that kind, evidence that the court received of the preceding deed, from Smith, the patentee, to Cookson. It would be dangerous to hesitate in the opinion, that the omission to state the authority in the acknowledgment, did not render it void, as this inaccuracy prevailed very generally with justices in that county; for if the acknowledgment was void, then all deeds thus acknowledged by femes covert, would be void; and the registering of all instruments, so acknowledged, would be a nullity. The deed ought to have been admitted.

The third bill of exceptions is, to the rejection of a deed for the premises, from Thomas Gallagher, and Lydia, his wife, to Bun-can MlCormick. The wife was a defendant, the estate the husband’s; the conveyance without joining the wife, would have vested the title in Cormick, subject to the wife’s right of dower, which is but an excrescence out of the estate. Evidence of the handwriting of the subscribing witness, Mr. M‘Coy, was given, and that the name of Thomas Gallagher, was of his handwriting. This was the best evidence the nature of the thing was capable of; it was a prima facie case, to let the deed go in evidence to the jury. It was not competent to the defendants to take this from the jury, by the introduction of the evidence to the court, to impeach its authority, after it had been read in evidence. The defendants could have given evidence to the jury for that purpose, who were alone the judges, to try, whether it was the deed of the grantors, or not. In very ancient times, Lord Coke observes, judges did judge upon the view, deeds to be void if erased or interlined in material points or places; but of late times, the judges have left it to be tried at the bar by the jury. Co Lilt. 225, b. But here there was legal evidence of the execution of the deed, and the court could not assume the province of interrupting the plaintiff in conducting his trial — receive witnesses of the defendant — withdraw the fact from the jury, and decide it themselves. This they undertook to do here. But admit that Lydia Gallagher did not sign the deed, her signature was not necessary to transfer the title ; and this, even if a false signature, did not divest the property out of the grantee. In executory contracts, provable by written instruments, the remedy is sometimes lost, by the loss of the evidence; and bonds and notes altered by the obligee or payee, are no longer proof of an obligation or promise, which, when given by the party charged, was expressed in other words than the instrument adduced against him. But this has not the same operation, where the title to real estate is in question. The cancelling a deed will not divest property which has once vested, by a transmutation of possession. A man’s title to his estate is not destroyed by the destruction of his deed. 10 Co. 92. Halate and others v. Halate, 9 Mass. Rep. 39. And here, in addition to the proof of the handwriting of the subscribing witness who was dead, Lydia Gallagher had acknowledged, that they had sold the land to Duncan M Cor miele, and got some instrument of writing to secure the purchase money, but that it had not been paid. This deed was likewise well proved to go to the jury, and to vest Gallagher’s title in the plaintiff.

Judgment reversed, and a venire facias de novo awarded.  