
    Joseph A. McRaven vs. Joseph McGuire.
    Where all the testimony is not embodied'in the bill of exceptions, this court will not inquire whether a motion for new trial, because the verdict was against the evidence, was improperly overruled.
    Depositions, not incorporated in the bill of exceptions, though- copied by the clerk in the record, are no part of the record.
    If an objection to the admissibility of evidence is made at the time of its admission, the admission may be made the grounds of a motion for a new trial, even though not excepted to at the time of such admission; but if admitted without objection, that will be considered a waiver of all objections to its validity, and its admission cannot afterwards be made ground of motion for a new trial.
    A deed with a scroll opposite the name of the grantor, in the midst of which scroll is written the word “ seal," is, under our statute, (How. & Hutch. Dig. 617,) sufficiently sealed, even though it be not expressed in the body of the instrument that the grantor signed and sealed it, or adopted the scroll as his seal.
    The statute of this state, which declares that where a scroll is attached to any instrument, by way of seal, it shall have the same force as though the instrument were really sealed, makes a scroll with the word “ seal ” written in it, placed opposite the grantor’s name, a sufficient seal, though the seal is not spoken of in the body of the deed.
    A deed which is regularly acknowledged, but not recorded within three months thereafter, is, under our statutes of registration, upon the same footing with a deed recorded within three months, except as to the time of its taking effect; which, as to subsequent purchasers without notice, and creditors, is from the time it is delivered for record ; but as between the vendor and vendee, and purchasers with notice, it still takes effect from the time of delivery.
    By the statutes of this state an acknowledgment of a deed, taken before the clerk of the probate court, under his seal of office, is valid ; and, by the general statute in regard to clerks, authority is given to their deputies “ to perform all the acts and duties enjoined upon their principals held, therefore, that a deputy of the probate clerk may lawfully take the acknowledgment, under the official seal. Chief Justice Sharkey dissenting.
    
      If in a deed certain particulars are once sufficiently ascertained, designating the thing granted, a false or mistaken circumstance added will not frustrate the deed ; hut where a deed calls for the north-east quarter of a section, it cannot be made to convey the south-east quarter, where there is nothing in the deed to show that the south-east quarter was intended to be conveyed, except that the south-east quarter adjoined the other land conveyed, and the north-east quarter did not; and it did not appear by the deed that the land was intended to be conveyed in one body.
    In the trial of an action of ejectment the court instructed the jury that, in the absence of any proof of title to the land in controversy on the part of the defendant, he had no right to complain of any adjustment between the lessor of the plaintiff and the person through whom the lessor of the plaintiff claimed as to the particular land the vendor of the lessor designed conveying ; and that what he designed conveying was in fact that which was actually conveyed ; it was held, that this instruction was erroneous; that whether the defendant had title in the land or not was immaterial, the plaintiff must still show a complete title and identify the land in accordance therewith; and the intentions of himself and Ms vendor would not prevail, unless expressed in a legal shape.
    The judgments of the high court of errors and appeals are, during the term at which they are rendered, subject to the control of the court; and the individual'opinions of one of the judges maybe recalled and changed, if he becomes satisfied of error.
    In error from the circuit court of Washington county; Hon. George Coalter, judge.
    The record in this case contains depositions and papers not embodied in the bill of exceptions; these were disregarded by the court, and are therefore not noticed in the statement of the case.
    By the record it appears that John Doe, on the demise of Joseph McGuire, filed his declaration in ejectment, in the circuit court of Bolivar county, in which there were two demises, both dated 1st January, 1839. The first was “ of a certain tract or parcel of land, containing three hundred and twenty acres, bounded on the north by the Mississippi river, and on the south by the Choctaw line, to begin where the said line strikes said river, and to run up by the regular survey, so as to include three hundred and twenty acres between said line on the south, and said river on the north, lying within the county of Bolivar aforesaid.”
    
      The second was “ of a certain tract or parcel of land, containing three hundred and twenty acres, being the western sides or segments of sections six and eight, in township twenty-two, range eight, west, of the lands ceded to the United States by the Choctaw nation of Indians, by the treaty concluded at Dancing Rabbit Creek ratified in February, 1831, fronting on the Mississippi, a sufficient distance to make the north-west fractional quarter of section six, and the north-west fractional quarter of section eight contain, by a due south line, commencing at a point on the Mississippi river, in the north-east fractional quarter of section six, thence due south, to a point on the line between the north-east and south-east quarter of said section eight, contain the said quantity of three hundred and twenty acres.”
    Joseph A. McRaven was admitted a defendant, and entered into the common rule, and plead not guilty. The venire was changed to Washington county. At the April term, 1844, of the circuit court of that county, a trial was had, and verdict and judgment for the plaintiff.
    The bill of exceptions taken to the refusal to grant a new trial, shows that on the trial the lessor of the plaintiff offered to read to the jury, a paper purporting to be a deed from William Foster, late of the Choctaw nation of Indians, to him, of date April 4, 1831, and for the consideration of fifteen hundred dollars,, and purports to convey all the right, title, &c., of said Foster to a certain tract or parcel of land, which he claims in virtue of the stipulations of the late treaty between the United States and Choctaws. Beginning where the Choctaw line was, on the bank of the Mississippi, one mile below the mouth of the Arkansas river, to include three hundred and twenty acres, or one half section of land, to be taken by regular survey, to be bounded on the one side, by the late line of demarcation, and on the other by the Mississippi river. This deed concluded in this way:
    “ And said William Foster doth further consent and agree with him, the said McGuire, to bind himself, his heirs, executors, and administrators, to him, said McGuire, his heirs or assigns, to warrant and defend the aforesaid title, against any claims whatever, and to make him a good and lawful title, within the term of five years. Willtam FosteR. (Seal.)”
    The word seal being written within the scroll.
    The certificate of the subscribing witnesses was in these words: “Signed, sealed, and delivered, in the presence of the subscribing witnesses, Joseph Stockton, Joel Huntington.”
    This deed was proven on the 30th day of June, 1831, by the acknowledgment of Foster, before a justice of the peaee for Washington county; and on the same day admitted to record in Washington county. On the 15th day of September, 1838, the deed was again proven by the subscribing witnesses, before the clerk of the probate court in Bolivar county; and again admitted to record in Bolivar county. To the reading of which deed to the jury the defendant objected, but the court overruled the objection, and the defendant excepted.
    The lessor of the plaintiff then offered to read to the jury another deed, dated 11th March, 1836, from said William Foster to him, in which the former deed is recited, with the consideration, and boundary of the land conveyed. It states that the land was so described in consequence of the public surveys not having then been made. But because said surveys were then made, Foster, by the deed, says: “ It is my desire to describe said three hundred and twenty acres of land, more specifically by the surveys so made by the general government, for the consideration as expressed in my deed of conveyance. Know all men, by these presents, that 1, William Foster, in confirmation of my said deed, executed as aforesaid, &c., have described the aforesaid three hundred and twenty acres of land, as being and lying on the west side of sections six and eight, in township twenty-two, of range eight, west, fronting on the Mississippi river, a sufficient distance, to make the north-west fractional quarter of section six, and the northeast quarter of fractional section eight contain by a due south line, commencing at a point on the Mississippi river, in the north-east fractional quarter of section six; and from thence due south to a point on the lines between the north-east and southeast quarter of section eight, so as to make the aforesaid quantity of three hundred and twenty acres of land, as conveyed and intended to be described in my original deed of conveyance, to the aforesaid Joseph McGuire, hereby ratifying and confirming the same as the land conveyed and intended to be conveyed by my aforesaid original deed, to the aforesaid Joseph McGuire, his heirs and assigns.” This deed was acknowledged before a member of the board of police of Bolivar county, by one of the subscribing witnesses, on the 13th May, 1839; was filed for record in Bolivar county, on the 14th May, 1839, and recorded on the 17th May, 1839. The sealing of this deed was similar to that of the other. The court permitted this deed to be read to the jury, and the defendant excepted. The lessor then read to the jury, without objection, the affidavit of Joseph R. Enloe, Esq. his attorney in the case, for a continuance, in which it is stated that the witnesses, mentioned in it, would prove “ That John Y. Newman, the tenant in possession of the premises, at the filing the declaration, and the commencement of the suit, was in possession. That the defendant, Joseph A. McRaven, at the time he pretended to have purchased from William Foster, was fully advised that the plaintiff, Joseph McGuire, had previously purchased the same from said Foster, and that on being advised of said purchase by said plaintiff, that he remarked that he did not care for McGuire’s purchase, and that too while he was negotiating a contract with said Foster for said land. That said McRaven purchased said land with a full knowledge of the previous purchase by McGuire.” It was also stated that a survey had been made, under an order made in the circuit court of Bolivar, which order had not been certified to the circuit court of Washington. The defendant admitted that the witnesses mentioned in the affidavit, if present, would prove the facts stated in said affidavit, and for the purposes of a trial at that time, that they had proved said facts. And he further agreed that the survey referred to in the affidavit might be read on the trial.
    The lessor then read to the jury without objection, the following agreement: “ It is agreed that Joseph McGuire and Joseph A. McRaven both claim the land in controversy, under William Foster, and his title is admitted.” This agreement was signed by both parties.
    The lessor then read to the jury without objection a plat and certificate of survey, made by James B. Smith, the county surveyor of Bolivar county, which locates the land claimed, east of the line between ranges eight and nine, on the west of sections six and eight, in township twenty-two, range eight, west, and between the Mississippi on the north and the Choctaw boundary on the south; but does not locate the point where the Choctaw boundary strikes the river. It is not deemed necessary to make any further note of this survey, except to state that it surveyed the whole three hundred and twenty acres, in a body, in sections six and eight, which lie adjoining each other ; and that the land was included in the south-west quarter of section six, and the north-west quarter of section eight.
    The plaintiff then introduced as a witness, Smith, who made the survey, who testified that he made it, as he supposed, in conformity to the calls of the second deed from Foster to McGuire. That the plat and certificate of survey contain and represent the true boundary and situation of the land surveyed by him, representing the exterior lines of the claim surveyed for the lessor of the plaintiffs, and the extent that the inclosure of McRaven interfered with the same. This witness further testified, that fractional section six had no north-east or northwest fractional quarter, and that he did not know whether said fractional section was run off into quarter sections or fractional quarter sections, or into lots. That he had the government survey before him when he made his survey. If there was any fractional quarter section to said section six, the western half of said section six represented on the plat, would be the south-west fractional quarter, and the east half would be the south-east fractional quarter of said section. And here the evidence closed in behalf of the lessor of the plaintiff.
    The defendant then offered to read to the jury, as evidence, a deed from William Foster to Hiram Coffee, Joseph A. McRaven, and Franklin E. Plummer. This deed was acknowledged before a deputy clerk of the probate court of Hinds county, on the 1st, day of November, 1834, and was recorded in Washington county on the 10th day of February, 1835. And there being no other proof of its execution, the court below excluded it from the jury; to which McRaven excepted. To which the lessor of the plaintiff objected, and the objection was sustained, and the said deed was not read; and the defendant excepted. The defendant then read to the jury a plat of the lands in controversy, taken from the surveyor-general’s office at Jackson, of which it is not necessary to say more, than that it showed that fractional section six had been laid off in fractional quarter sections by government surveys.
    John J. Guión, a witness for the defendant, then testified that the lands ceded by the treaty at Dancing Rabbit Creek, were not surveyed by the government until the latter part of 1831, or fore part of-1832; and no locating of reservations was made until 1832. This he did not know of his own knowledge, but had learnt the same lately from papers, while investigating the claims to Choctaw reservations which were submitted to him, and from the general history of the country. The surveyor, Smith, then introduced by defendant, testified that, if one hundred and forty acres were laid off, on the eastern boundary of the survey made by him, the same would include, the inclosure of McRaven, as represented on the plat made by him.
    And here the testimony, so far as embodied in the bill of exceptions, closed.
    The lessors of the plaintiff then asked, and the court gave the following instructions to the jury, to wit:
    1. If they believe there was a mistake, as to the north-west and north-east quarter of section six, and the parties Foster and McGuire intended the south-west and south-east quarter; and there is a sufficiency in the deed, to identify the land as surveyed by Smith as the land intended to be conveyed, said mistake does not invalidate the deed.
    2. The palpable mistake of a word will not defeat the manifest intention of the parties.
    
      3. That if there are sufficient words in the deed to specify the agreement, and bind the parties, it is a good deed, though it may not have all the formal parts usually drawn out in a deed.
    4. That the jury were to look to both deeds introduced by the lessor of the plaintiff, and the other testimony in the case, and by them and said testimony to ascertain the boundary of the land claimed by the lessor of the plaintiff, and if this boundary so ascertained, includes the defendant’s, they should find for the plaintiff.
    5. That in the absence of any proof that the defendant has any title to the land, he has no right to complain of any adjustment between Foster and the lessor of plaintiff, as to the land conveyed, or intended to be conveyed, and that the land agreed upon between them, as the land conveyed and intended to be conveyed, is the land actually conveyed, and if the plat made out by the surveyor is in conformity with the understanding of Foster and McGuire, the jury should find for the plaintiff.
    To these instructions the defendant excepted. The defendant then asked the court to instruct the jury :
    1. The lessors of the plaintiff in this action can under no' circumstances claim any land other than that which is found, by beginning where the old Choctaw boundary intersects the Mississippi river, thence running up the river, and with the old Choctaw boundary, to include three hundred and twenty acres. And if by this running and laying down the survey, the jury find from the testimony that the defendant is not included, then they should find for the defendant.
    
      2. That the second deed read' by the lessor of the plaintiff, dated in 1836, is nothing but a deed of confirmation, and cannot be construed, so as to include in its boundary, anything which was not included in the boundary of the first deed.
    3. The lessor of the plaintiff can claim no legal title by virtue of his first deed from Foster, because the same is not sealed; nor can he claim anything under his second deed, because it does not operate until after the date of the demise in the declaration.
    4. If the jury find from the testimony that lessor of plaintiff claims under a deed executed before the reservation of Foster was located and reserved from sale ; and has no other conveyance executed since said location and reservation, by which the title to the property in dispute passed, the lessor of the plaintiff has no title, and cannot recover.
    Which instructions were refused, and defendant excepted. Upon application of the defendant the following instructions were given to the jury:
    1. The lessor of the plaintiff cannot recover in this action, merely because the defendant has shown no title; but he must, in order to recover, make out a good title to the land he claims, and show that the defendant is in possession of land included within the. boundary of his deed of conveyance.
    2. Unless by a reference to the deeds and surveys made in conformity thereto, and the public surveys, the lessor of the plaintiff can fix to a reasonable certainty, the boundary to which he is entitled, under his deed or deeds, the deed or deeds will be void for want of certainty.
    3. If the jury-find that McRaven, the defendant, has shown no title, his possession cannot be construed to go beyond his inclosure, and consequently there can be no verdict against him, unless the said inclosure is within the boundary of the lessor of the plaintiff.
    The defendant entered « motion for a new trial, because,
    1st. On application of the lessor of the plaintiff, the court improperly charged as to the law of the case.
    2d. Because the court refused to charge as asked by the defendants.
    3d. Because the jury found against the law as charged by the court.
    4th. The jury found contrary to law.
    5th. The verdict is contrary to evidence.
    The motion was overruled, and the defendant excepted, and prosecutes this writ of error.
    
      
      Robert Hughes, for plaintiff in error.
    1. It is insisted that the first instrument offered in evidence to the jury by the lessor of the plaintiff below, purporting to be a deed from William Foster to him for the land in dispute or part of it, is no deed. There is in fact no seal attached to it, but a scroll, and there is no testatum clause. True, it is said at the foot of the deed, signed, sealed, &c. See Bohannon v. Hough, Walk. R. 461; Baird et ais. v. Blaigrove, 1 Wash. Ya. 170; Austin's Administrator v. Whitlock's Executors, 1 Munf. 487; 1 Dyer, 19, a; Goddard's Case, 2 Rep. 5; Jones et al-v. Logioood, 1 Wash. Ya. 42; Anderson v. Bullock, 4 Munf.. 442; Lee v. Adkins, 1 Alab. R. 187.
    2. The second deed offered in evidence, was dated the 11th day of March, 1836. The execution thereof, was not proved on the trial, by witnesses, but it was offered in evidence as a recorded instrument. It was proven on the 13th day of May, 1839, before a member of the board of police of Bolivar county, and filed for record on the 14th May, 1839. The time for proving and recording, under our statute, is three months. Rev. Code, 452, 453, §§ 1, 3, 5.
    In order that the probate of this deed should now be evidence, it should have been taken before the time limited for record had expired. See Moore v. Farrar, 3 Marsh. Ky. R. 41; Anderson v. Turner, 2 Littell’s R. 237; Wenlock v. Hardy, 4 lb. 272.
    An acknowledgment or probate of instrument is not evidence of its execution, unless by force of some statutory provision rendering it so. Dudley v. Sumner, 5 Mass. R. 463 ; Catlin v. Ware, 9 lb. 218; Milligan v. Dickson, 1 Peters C. C. R. 433, 434, et seq.
    If a time is limited in which to record, the officer has no power to record after the time. Nomack v. Hughes, Litt. Selected Cases, 292 ; McConnell v. Brown, lb. 459; Wenlock v. Hardy, 4 Littell, 272; Taylor v. Shields, 5 lb. 295 ; Cunningham’s Lessee v. Buckingham, 1 Hammond’s R. 264; Bank of Kentucky v. Haggan, 1 Mar. K. R. 306; Shields v. Buchan-nan, 2 Yeates’s R. 219; Ross v. Clow, 3 Dana, 195; Williams's Heirs v. Wilson, 4 lb. 508.
    
      Our statute provides that deeds not recorded within the three months, shall be good from recording, as to creditors, &c. from the time' of recording, leaving the question as to others unprovided for. Rev. Code, 453, §§ 3, 5.
    3. The deed from William Foster to Coffee, McRaven, and Plummer, was improperly rejected. The proof of this deed was properly taken, and certified by a deputy clerk. See Rev. Code, 73, § 6.
    A deputy may do an act in his own name, except a deputy sheriff. See Parker v. Kett, 1 Salkeld, 96.
    It was properly admitted to record in Washington county. The county included all the country north of a line running from Mayhew to Elliot, and west to the Mississippi river, which line would run south of, or through the land in dispute. See the late map of the United States, the maps of Mississippi, by Gwin and La Tonette, and the acts of the legislature of 1829, and January, 1830 ; edition of laws of 1838, p. 196, 237.
    The northern and north-east boundary of Washington county was the old Choctaw boundary, and the Mississippi river. See the maps as before, and the act of 1827, laws published in 1838, p. 128; and Bolivar county was not established until 1836. See laws before referred to, p. 538.
    This deed passed the title to the land mentioned, from Foster to the grantees, although it purports to be articles, &c. It does appear from the whole instrument, that the parties intended to pass the title in fee, and there are words of conveyance in pre-sentí. If, notwithstanding these words, a view of the whole instrument would show that it was not the intention to pass the fee, but that there was merely an agreement to do so, the intention would prevail, and so e converso. See opinion of Kent, Ch. J., in Jackson v. Myers, 3 John. 394.
    4. There should have been a new trial in the court below. The court were asked to instruct the jury, that the plaintiff below could claim no more land than that embraced by beginning at where the old Choctaw boundary strikes the Mississippi, thence east with the river and said Choctaw boundary, for and to include three hundred and twenty acres, which was in substance the calls of his deed; by so running, the inclosure of McRaven, the defendant would not have been included.
    This instruction the court refused. No proof was given on the part of the plaintiff below, as to where said Choctaw boundary would strike the river; but evidence was given which showed that by beginning at the point on the river where the Choctaw boundary strikes it, about one hundred and forty acres or more would be included, between the river, said boundary, and the line between ranges eight and nine; and that laying off one hundred and forty acres, on the eastern boundary of the land claimed by plaintiff below, and which he had surveyed in range eight, would include McRaven’s inclosure; from which it results that he, McRaven, was not within the boundary of McGuire’s first deed. But it is sought to sustain the verdict by the second deed. This deed is a mere confirmation, on its face, if it is good for any purpose. A confirmation may enlarge an estate in a specific boundary; but can hardly be construed to extend to other estate than that mentioned in the instrument confirmed. See 2 Thomas’s Coke, Confirmation, 516, 529, 546.
    5. But this deed is void for want of certainty. See 3 Phillips on Evidence, Cow. & Hill’s notes, 1360, 1361; Worthington v. Hylyer, 4 Mass. R. 205; Gilarrt’s Administrator v. Hoioell, 1 How. 198.
    6. The first deed, as shown by the testimony, was executed before the public surveys were made, consequently before Foster had located his reservation. Before location he had no title to the property sold, and could not convey. Merrell v. Legrand, 1 How. 150; Newman v. Harris and Plummer, 4 lb. 522; opinion of Sharkey, C. J. 554.
    
      James R. Enloe, for defendant in error.
    1. The court cannot take notice of the exceptions embodied in the bill taken to the refusal to grant a new trial, because the evidence is not set out, and the exceptions were not taken at the time, and sealed before the jury retired. 4 How. 249; Walk. R. 92; 1 How. 572; 7 lb. 164; 5 lb. 19; 4 lb. 431; 2 S. & M. 510; 1 lb. 330; 9 Peters R. 414;. 2 Tidd’s Pr. 863.
    2. The plaintiff below was not bound to prove McRaven in possession, as he admitted himself to be the landlord of the party on whom notice of the ejectment was served. Tilling. Ad. Eject. 275, n. a; 2 Dev. 174; 14 Pet. 322, 332, 333; 4 How. 13.
    3. His being landlord, was of itself sufficient possession.
    4. The jury found according to the evidence, under the instruction of the court; and where there is evidence on both sides, courts do not readily disturb their verdict. 8 Cow. 411; 2 Bailey, 11; 2 Atk. 15; 3 lb. 144; 2 Ghitty’s R. 272; 7 How. 165.
    5. The court did not err in permitting the title deeds of the plaintiff’s lessor to go in evidence to the jury. On this point, and the others involved in the case, Mr. Enloe cited 4 How. 23 ; Noy’s Max. 15; 2 Wheat. R. 196; 2 How. 928; 4 Kent, 98, 261, 492, 494, 495, 496, 497, 697; 1 Harr. <fc McH. 523; Adams’s Eject. 275, n. a; Peak’s Ev. 161; 4 Pet. 512; 2 Black. Com. 241, n. 7; 6 Pet. 598-611; 2 Pet. Dig. 27-31; 7 Johns. 217; Tennessee R. 107; 2 Black. Com. 325; Walk. R. 119-130; 2 Black. R. 929; 1 Bac. Abr. 781; 3 Ohio, 161.
   Mr. Chief Justice Sharkey

delivered the following opinion.

This was an action of ejectment, in which the plaintiff below recovered a verdict. The defendant moved for a new •trial, and on its being overruled, excepted. Several depositions were offered in evidence, which, although copied by the clerk, are not incorporated in the bill of exceptions. Whether the verdict was or was not contrary to the evidence, is a question that cannot .be determined, as all the evidence is not properly presented. Our inquiries will therefore be confined to the propriety. of the decisions in admitting, or in excluding such evidence as has been inserted in the bill of exceptions, and also as to the correctness of the charges given. It has been insisted, however, for the defendant in error, that as no bill of exceptions was taken to the introduction of evidence at the time it was offered, no question can be raised on it afterwards. This is a misapprehension of the rule. If no objection is made to it.s admission, the party is supposed to waive objections, and is concluded. But if its admission be objected to, such objection, if it be overruled,'may be made the ground of an application for a new trial; and if it appear by the bill of exceptions taken on the motion for a new trial, that an objection was made when the evidence was offered, it will be sufficient. The doctrine in regard to bills of exceptions, as now in force, was considered in the case of Phillips v. Lane, 4 How. 122, to which it is sufficient to refer.

The errors assigned are, that the court permitted evidence to go to the jury which should have been excluded ; that the court refused to charge the jury as requested for defendant; and that the motion for a new trial was improperly refused.

We find in the bill'of exceptions an agreement that both parties derived title from William Foster, and that his title would therefore be admitted.

The plaintiff below commenced his proof by introducing a deed from Foster, which bears date the 4th of April, 1831. This was objected to because it is said to be without a seal", and the case of Bohannon v. Hough, Walk. R. 461, and other authorities are relied on. The name of the grantor is placed opposite to a circular scroll, in which the word “seal” is written. The statute declares that where a scroll is attached to any instrument by way of seal, it shall have the same force as though the instrument were really sealed. This statute authorizes parties to adopt a more convenient mode of sealing instruments, by substituting a scroll for wax, and wherever it is manifest that the scroll was intended to be used “ by way of seal,” it must have the effect, wheth.er it so appears from the body of the instrument, or from the scroll itself. How. & Hutch. Dig. 617. This is the obvious meaning of the statute. The deed was therefore sufficiently perfect in this respect.

The plaintiff introduced also a second deed from Foster, bearing date the 11th of March, 1836, which recites the former deed, and describes the land with more particularity, according to the public surveys, which had been made in the meantime, as was stated by a witness, and so recited in the deed. This instrument, although not strictly a confirmation, professes to confirm McGuire in his previous right, which is admitted to have been an absolute and complete conveyance, except that the land was imperfectly described, for the reason given. A confirmation is only used to perfect an imperfect title. This too was objected to, for this reason; it was not regularly proved and recorded until May, 1839, nearly three years after its execution, and it is therefore said that it was not proven and delivered for record within three months, as the statute requires, it should not have been received without proof of its execution by the subscribing witnesses. The statute declares that all deeds properly proved and delivered for record, within three months, shall take effect from their date; but the same section declares that deeds not delivered to be recorded within three months, shall take effect and be valid as to all subsequent purchasers without notice, and as to all creditors, from the time they are acknowledged or proved, and delivered to the clerk for record. The plain import of this provision is, that a deed may be recorded, if properly acknowledged or proved, at any time, and it will stand upon the footing of a deed recorded within three months, except as to the time of its taking effect, which, as to subsequent purchasers without notice, and creditors, is from the time it is delivered for record; but as between vendor and vendee, and purchasers with notice, it still, of course, takes effect from the time of delivery. The rule established by the authorities cited on this point, can have no application under this statute. The plaintiff then introduced other evidence, which was not objected to.

The defendant offered to introduce an article of agreement between Foster, McRaven, Coffee, and Plummer, which is without date, but was acknowledged on the 1st of November, 1834. This instrument contains various clauses and stipulations. It begins by reciting Foster’s right to a section and a half of land under the Choctaw treaty, which had been located on certain sections named, and proceeds to convey the same absolutely to the parties of the second part. Provision was .-made that Foster should deliver immediate possession of the land, except a portion of it, on which he was to reside five years, so as to complete his title and receive a grant from the government; and when received he was to convey to the vendees, McRaven, Coffee, and Plummer, in certain proportions; and they stipulated to pay the residue of the purchase-money, (having paid part) in certain instalments. This instrument was evidently drawn under a supposition that Foster’s title might be imperfect, and that certain conditions were to be performed by him to complete it. Its character may seem rather doubtful. In some of its provisions it is very much like a mere contract to convey at a subsequent period; but it also contains language sufficient to pass Foster’s title, if he had one. The agreement to. convey to the vendees, did not depend upon any condition to be performed by them, nor was there a reservation of title in Foster for his own security. He manifested a willingness and an intention to part with all the right he had; but it was evidently thought that his title might be imperfect; and to meet such a contingency he was to reside on part of the land so as to perfect his title,'and when so perfected, he was to convey to McRaven, Coffee, and Plummer. But this instrument was acknowledged before a deputy clerk of the probate court of Hinds county, and we do not find any power conferred on deputy clerks by statute, to take acknowledgments. It has been insisted that the deputy clerk may do whatever his principal can. That is true only in regard to the duties which the law requires the clerk to perform, in virtue of his office as clerk, but this is no part of the official duty of the clerk. He is not liable on his bond for failing to take an acknowledgment, or for taking it improperly. He is only a person designated by law, before whom an acknowledgment may be taken. A judge does not take an acknowledgment as part of his official duty. The law only says that an acknowledgment may be made, or proof of execution of a deed made, before a clerk. How. & Hutch. Dig. 368. The clerk is responsible for the acts of his deputy, but it will not be contended that if a deputy should take an acknowledgment improperly, the principal is responsible. Bond v. Ward, 7 Mass. R. 123; Gorham v. Gale, 6 Cowen, (note a,) 467. The statute is a special commission or authority, designating no official duty, but only describing a certain person by his office, who, whilst he holds that office, may take the acknowledgment. This deed was therefore properly rejected without proof of its execution.

As there was no error in the admission and rejection of the several deeds, the application for a new trial must turn exclusively on the charges given, and the propriety of rejecting those asked for defendant. The propriety of the decisions in this respect will depend in some degree on the evidence, as charges are always to be given with a view to the state of case before the court.

The plaintiff had offered two deeds, but undertook to establish boundary according to the calls in the second deed, in reference to the calls in which, the survey introduced on the trial was made under an order of court. The first deed is therefore of no use in this controversy, so far as boundary is concerned. The land is described in the second deed as lying on the west side of sections six and eight, of township twenty-two, of range eight, west, fronting on the Mississippi river a sufficient distance to make the north-west fractional quarter of section six, and the north-west fractional quarter of section eight contain, by a due south line commencing at a point on the Mississippi river, in the north-east fractional quarter of section six, and from thence due south to a point on the line between the north-east and south-east quarters of section eight, so as to make the aforesaid quantity of three hundred and twenty acres of land.” Instead of literally complying with the calls, the land was laid off by the surveyor in the southwest quarter of section six, and north-west quarter of section eight, which made the land in a solid body; whereas if he had followed the deed, it must have been in two parcels, separated by the south-east quarter of section six. If the land was intended to be conveyed in one body, then there is an evident mistake in description. The court charged the jury in reference to this matter, that if there was a mistake as to the northwest and north-east quarter of section six, and that the parties intended the south-west and south-east quarters, and there is sufficient in the deed to identify the land as surveyed by the surveyor as the land intended to be conveyed, such mistake did not invalidate the deed. This charge is not free from difficulty. If the land had been run out when sold, the lines would have established the identity, and a false description would have been immaterial. The question of mistake in a deed was considered in the case of Jackson v. Clark, 7 Johns. 217, and it was said “if there are certain particulars once sufficiently ascertained, which designate the thing intended to be granted, the addition of a circumstance, false or mistaken, will not frustrate the deed.” The general rule is, that a false or immaterial description may be rejected, provided there be enough to show clearly what was intended to be granted. It has been decided that when the different parts of a description are contradictory, such parts may be retained and such rejected, as will leave enough to designate plainly the land intended to be conveyed. 1 Paine, 494. The sections, according to law and the public surveys, are divided into quarters and eighths. If section six were an entire section, then it would be too clear to admit of doubt that a deed calling for the north-east quarter, could not be made to convey the south-east quarter. But the surveyor says that this is a fractional section, and has no northeast quarter, by which I suppose we are to understand, that if it were divided as sections usually are, with one hundred and sixty acres to each quarter. According to his survey it is less, altogether, than a half section in quantity, being bounded on the north by the river. But by a map introduced by the defendant, taken from the land office, it appears that there is a north-west fractional quarter of section six. It does not appear however that Foster had any right to convey the south-west quarter of section six. Altogether, the matter seems to be involved in great doubt, and we think the charge of the court was rather too broad, when applied to the facts. But as the defendants had possession of part of the north-west quarter of section eight, which is sufficiently described as intended to be conveyed, the plaintiff was entitled to recover so much, even if he had no right to the south-east quarter of section six as claimed.

The court also charged the jury, that in the absence of any proof that the defendant had any title to the land, he had no right to complain of any adjustment between Foster and the lessor of the plaintiff, as to the land conveyed, or intended to be conveyed ; and that the land agreed upon between them as the land conveyed and intended to be conveyed, is the land actually conveyed; and if the plat made out by the surveyor is in accordance with the understanding of Foster and McGuire, the jury should find for the plaintiff. We cannot assent to. the correctness of this as a legal proposition, that because the defendant in ejectment introduces no proof, that he cannot object to the regularity of the plaintiff’s title, and that the plaintiff can recover according to the intention of himself and his vendor, whether that intention be expressed in a legal shape or not. If this were true, there is no use for paper title at all, in case the defendant does not prove title. Whether the defendant introduces proof of title or not, makes no difference; the plaintiff must still'show a complete title, and identify the land in accordance therewith. On this point we might have rested the case. We have noticed others, because they were discussed, and must, or probably will arise on a second trial.

Judgment reversed, and cause remanded.

Mr. Justice Clayton concurred in the foregoing opinion when it was delivered ; but on one point subsequently changed his views, and concurred with Mr. Justice Thachee ; his opinion, filed afterwards, will be found infra, immediately following Justice ThacheR’s.

Mr. Justice Thacher

delivered the following opinion.

The 'majority of the court are of the opinion that an acknowledgment of a deed taken by a deputy clerk of a court of record, is not a sufficient acknowledgment of a deed. I am at present not willing to yield my assent to this proposition. The statute says it shall be lawful to make proof or acknowledgment of deeds of conveyance before any clerk of any court of record in this state. How. & Hutch. 368, sep. 99. Other statutes authorize such clerks to appoint deputies who “shall have full power and authority to do and perform all the several acts and duties enjoined upon their principals.” How. & Hutch. 471, sec, 15, 484, sec. 16, 508, sec. 15, 535, sec. 14, et passim, of clerks. Under the comprehensive terms in which the power of deputy clerks is clothed, it is difficult to conceive of any act or duty that may be performed by the principal clerk which cannot be performed by the deputy. In law, their acts are one and the same. A distinction, however, is assumed, that the taking of acknowledgments is not an official act, but that the principal clerk is a special commissioner appointed by statute for that purpose. A special commissioner is a particular person appointed by competent authority to perform a particular act. The statute referred to does not appoint any particular person, but makes the act lawful if performed by certain officers, and it is only by virtue of holding such offices that the act can be performed by their incumbents. Strip the incumbent of his office of clerk, and he cannot perform the act; clothe him with the office, and he can perform it. Hence it is clear that the act pertains to the officer, and not to the person who may chance to hold the office.

It is true that the terms of the statute, namely, that it shall be lawful to make proofs and acknowledgments before clerks, are apparently permissive and enabling; but the enabling act is for the benefit of the public, and not a personal privilege granted to the clerk. When such statutes are passed, for the ends of justice or public convenience, they are always obligatory upon the officer, and the act made lawful for him to perform is as much enjoined upon him as if the words of the statute had been peremptory and commanding. In Dwarris on Statutes, 712, the following views upon this subject are expressed : “Words of permission shall in certain cases be obligatory. Where a statute directs the doing of a thing for the sake of justice, the word may means the same as the word shall. The stat. 23, H. 6, c. 10, says, the sheriff, &c., may take bail; but the construction has been, that he shall be bound to bail. So, if a statute says, that a thing may be done which is for the public benefit, it shall be construed that it must be done. Exception was taken to an indictment, (upon the stat. 14, C. 2, c. 12,) against churchwardens and overseers, for not having made a rate to reimburse a constable ; and it was urged, that the statute only puts it in their power, by the word may, to make such, a rate, but does not require the doing of it as a duty, for the omission of which they are punishable. The exception was not allowed; and the court held that an indictment lies against them, if they refuse it.” See, also, McEwin v. The State, 3 S. & M. 120, in connection with How. & Hutch. 294, sec. 13; Rex v. Flockwold Inclosure, 2 Chit. 251; Comyn’s Dig. 5, tit. Parliament, R. 21; 7 Bac. Abridg. tit. Statute, I. 7.

The doctrine deduced from Bond v. Ward, 7 Mass. 123, and Gorham v. Gale, 6 Cowen, (note a,) 467, cited by the court, that a sheriff is not bound for such acts of his deputy as the principal himself is not authorized by law to perform, is not disputed. But I can perceive no analogy between such a case and the one at bar. Here the principal clerk is authorized by law to take acknowledgments of deeds; and the deputy is authorized by law to do and perform all acts and duties enjoined upon his principal. If it be not an “ official duty” it certainly is an “ act” which the principal clerk is bound to perform when required, and the dejmty being for all lawful purposes the clerk himself, it follows that he may perform such “ act.”

Mr. Justice Clayton

filed the following opinion, at a subsequent day of the term.

When the opinions in this case were delivered, on a former day of the term, I concurred with the chief justice, that the deputy clerk had no power to take the probate or acknowledgment of a deed. Subsequent reflection and examination have induced me to change that conclusion, and to concur with Judge Thacher on that point.

The statute of 1833, (How. & Hutch. 368, sec. 99,) directs that the proof or acknowledgment of a deed, if taken before a clerk or notary, shall be certified under the seal of office. This direction shows that it was the intention of the legislature, that it should be regarded as an official act. The general statute, in regard to clerks, gives to the deputies right “ to perform all the acts and duties enjoined upon their principals.” How. & Hutch. 471, sec. 15. If this is an official act, it may be performed by the deputy, and I adopt that as the true construction of the statute;

This produces no change in the result of the judgment of this court, as a new trial must be granted. But on the next trial, this deed rejected upon this ground must be read, if there be no other valid objection to it.

During the term the judgments of that term are always under the control of the court; of course the opinions of each or either of the judges, may be recalled, and changed, if he becomes satisfied of error.  