
    Petermans v. Laws.
    July, 1835,
    Lewisburg.
    (Absent Bbooke and Cabe,, J.)
    Foreign Deeds — Office Copies — Evidence—Office copies of deeds registered in another state, are not admissible as evidence in this state, unless duly authenticated according to the laws of the U. States.
    Same — Authentication-,Virginia Statute. — The statutes of Virginia concerning the authentication of foreign deeds apply to the original deeds, not copies.
    Same — Office Copy — Evidence—Case at Bar. — An office copy of a deed registered in N. Carolina, is not admissible as primary evidence in this state, unless there be some statute of N. C. making them so.
    Trustee’s Sale — Warranty of Title — Witness—Competency. — In case of a sale by a trustee, neither the trustee nor the cestui que trust, without an express contract to warrant, is a warrantor of the title; therefore, in an action by the purchaser from the trustee to recover the property, the ces-tui que trust is a competent witness for the plaintiff.
    Detinue for a slave named Peter, brought by James Daws against Michael and Simon Peterman, in the circuit court of Montgomery. Plea, the general issue. At the trial, the defendants filed several bills of exceptions to opinions of the court, only two of which are material, *since the others were abandoned by their counsel in this court, and therefore the court gave no opinion on the points therein stated.
    1. The first bill of exceptions stated, that the plaintiff offered in evidence, an office copy of a deed, from the register’s office of Orange county North Carolina, executed by Jonathan Daws on the 7th March 1827, whereby he conveyed the slave Peter to Samuel Yarbrough, in trust to indemnify Deonard Daws, surety for Jonathan Daws as guardian of James and Prances Daws, from loss by reason of his suretyship, and authorized the trustee, when required by either Jonathan or Deo-nard Daws, to sell the slave at public sale, on twenty days notice, and out of the proceeds of sale to pay James and Prances Daws whatever debt or balance should be certified, by the clerk of the county court of Orange, to be due from Jonathan Daws to them. To this copy of the deed, there were subjoined 1. an office copy of a certificate of William Norwood, of the proof of the deed by the subscribing witness thereto before him, and of his' order for the registry of the deed and of his certificate of the probat: 2. an original certificate signed by J. M. Kerall, that the copy of the deed, and of the certificate of probat and order for the registry thereof, was a true copy from the record in his office: 3. an original certificate in these words- — ■“ State of North Carolina, I John Taylor clerk of Orange county court of pleas and quarter ses-sicms, do hereby certify, that J. M. Keralt, who signed the aboye certificate, is the duly qualified register of said county — In witness whereof, I do hereto set my hand and seal of office, 8th April 1829” — (signed) “J. Taylor, clerk,” with his seal of office annexed: and 4. another original certificate in these words — “State of North Carolina, I Abner B. Bruce, chairman of the court of pleas and quarter sessions for Orange county, do hereby certify, that John Taylor, whose signature and seal of office are to the foregoing certificate, is now, *and was at the time of signing the same, clerk of the said court, that his attestation is in due form of law, and that full faith and credit ought to be given to his official acts as such — -Given under my hand and private seal this 8th April, 1829” — (signed) “A. B. Bruce,” with a .scroll by way of seal. And the plaintiff adducing no other evidence of the execution of the deed of the 7th March 1827 under which he claimed, but the certificates above mentioned, the counsel for the defendants objected, that the copy of the deed was not admissible evidence; but the court overruled the objection, and permitted the paper to be read in evidence to the jury.
    2. The second bill of exceptions stated, that the plaintiff offered in evidence, the deposition (admitted to have been regularly taken) of Leonard Laws, the cestui que trust indemnified by the deed of the 7th March 1827; who deposed, that the slave Peter conveyed by that deed to the trustee Yarbrough, was at the date thereof, the property of Jonathan Laws, the grantor; that the trustee Yarbrough took possession of the slave Peter, in February 1828; that two persons named Peterman came to Orange, N. Carolina, about the same time, and demanded him of Yarbrough, as the property of their father; that Yarbrough refused to deliver him to them, and shewed them the deed of Jonathan Laws conveying the slave to him, for the indemnification of the deponent; that the deponent was the surety of Jonathan Laws as guardian of James and Frances Laws; that the guardian was found indebted to his wards 300 dollars; that Yarbrough, the trustee, after due advertisement, sold the slave, at public sale, to James Laws (the plaintiff in this action) for 331 dollars; and that James Laws thereupon took possession of the slave, and held him till he carried him to Montgomery county, Virginia, whither James Laws went sometime after. The defendants’ counsel objected to the reading of this deposition *in evidence, because the matter it contained was not admissible evidence, and because the deponent was interested and incompetent; but the court overruled the objection, and admitted the deposition ; to which the defendants excepted.
    There was a verdict and judgment for the plaintiff; to which this court, upon the petition of the defendants, allowed a super-sedeas.
    Anderson, for the plaintiffs in error,
    insisted, 1. That the copy of the deed of the 7th March 1827, under which the plaintiff below claimed, was improperly admitted as evidence. It did not appear to have been duly proved; for the certificate of Mr. Norwood, of the proof of it before him, nowise imported that he acted in any official character. Nor was the copy properly authenticated. Mr. Kerall’s certificate did not import that he was the register, or that he acted in any official character; and he neither annexed any seal of office to it, nor certified that there was no such seal of office. The clerk certified, that Mr. Kerall was the register; but he omitted to certify, that Mr. Kerall’s attestation was in due form of law. Mr. Bruce, the chairman of the court of pleas and quarter sessions, certified to the official character of the clerk, and that his attestation was in due form of law; but he certified nothing as to Mr. Kerall’s official character, or the due form of his attestation ; which, as he was the register and had the custody of the records of the office, was the most material point. And Mr. Bruce neither annexed his seal of office to his certificate, nor certified that there was none. This paper, then, was not duly authenticated, either according to the laws of the U. States, or the statutes of Virginia. Acts of congress of May 26, 1790, 2 Bior. ch. 38, p. 102, and March 27, 1804, 3 Bior. ch. 409, p. 621; 1 Rev. Code, ch. 100, p. 371, and act of 1827-8, ch. 28; Supp. to Rev. Code, ch. 155, p. 213. But if *the authentication had been perfect, yet, he said, the office copy of the deed was not admissible, without good reason shewn for not producing the original. In Brooks v. Marbury, 11 Wheat. 79, chief justice Marshall held, that an office copy of a registered deed was not admissible evidence, without accounting for the non-production of the original, unless there was some express statutory provision making the copy primary evidence. In England, even before the statute of Ann. ch. 13, % 3, there was much authority for the admissibility of copies of ancient deeds, enrolled on the acknowledgment of the grantors, and accompanied by possession; 1 Phil. Law E)v. 409, and the same principle was recognized by this court, in Rowletts v. Daniel, 4 Munf. 473, and Ben v. Peete, 2 Rand. 539, but it was not contended there, that office copies of all deeds of which the law authorizes the register, were admissible as primary evidence in lieu of the originals. He said, Baker v. Preston, Gilm. 235, was the only case, in which an office copy of a recorded deed had been held admissible as primary evidence; but even there, it was admitted, that a party had a right to call for the original. And that decision had been overruled in almost every point, by subsequent adjudications, and could hardly now be regarded as authority. 2. He contended, that Leonard Laws was not a competent witness for the plaintiff. He was interested to maintain his title. For, he argued, he was the cestui que trust in the deed of the 7th March 1827, under which Yarbrough sold the slave in question to the plaintiff; and as he was the person for whose benefit the sale was made, and, in truth the real vendor, he ought to be held to warrant the title to the purchaser. If the trustee had not paid the purchase money over to the wards of Jonathan Laws, the purchaser would be entitled to demand it of the trustee; if it had been paid to them, they were bound to refund it to the purchaser. And if the sale was ineffectual or *non-productive, the witness would still be liable as surety for Jonathan Laws, the guardian, for the debt he owed to his wards.
    M’Comas and Preston, for the defendant in error,
    said, as to the last point, that the trustee (unless he made 'some express contract, which was not pretended) sold only such title as he had — the title, namely, of his grantor. Who was the warrantor of the title? Not the trustee, who had no interest in the property; not the cestui que trust, for he never pretended any title in himself, and was not, in any sense, the vendor; but the grantor, who claimed title in the subject, and mortgaged it for his debts. They admitted, that the office copy of the deed of the 7th March was not duly authenticated according to the laws of the U. States; but, as they understood, the judge of the circuit court had held it admissible, as properly authenticated according to the statutes of Virginia; and they made a faint attempt to shew that it was so.
    
      
       Judge Cabb was prevented by ill health from sitting during the.remainder of this term at Lewis-burg.
    
    
      
      See monographic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 564.
    
    
      
      Public Sale of Land — Title of Purchaser — Warranty. —A purchaser of land at a public sale, made by a trustee, must look to the title of the grantor of the land, and he is entitled only to a deed with special warranty of title. He cannot look to the trustee for a good title, for in making the sale he is but an agent; he cannot look to the creditor, for he sells nothing, and is merely to receive the proceeds of the sale. To such a sale the principle of caveat emptor applies. Fleming v. Holt, 12 W. Va. 162, citing Petermans v. Laws, 6 Leigh 529; Saunders v. Pate, 4 Rand. 8; Sutton v. Sutton, 7 Gratt. 237; Findlay v. Toncray, 2 Rob. 374; Rawle Cov. 418; Goddin v. Vaughn, 14 Gratt. 117. The principal case is cited and approved in Jones v. Thorn, 45 W. Va. 193, 32 S. E. Rep. 176; Findlay v. Hickman, 10 Leigh 363.
    
   TUCKRR, . P.

Two objections were made in this case, to the admissibility of the copy of the deed of trust, which was introduced at the trial, and either of them appears to me to be insurmountable.

The deed of trust was executed in North Carolina, and purports to have been regisr tered there. It is obvious, however, that it was not authenticated according to the provisions of the acts of congress, and still less in pursuance of our own statute, 1 Rev. Code, ch. 100. It is scarcely necessary to collate the authentication with the acts of congress, both because the variance is palpable, and because it is conceded, that the judgment is not to be sustained under those acts. It was intimated by counsel, that the statute of Virginia above quoted, and the additional statute of 1827-8, ch. 28, were thought by the learned judge who tried this cause, to sustain the admissibility of the paper. In this, I *think, the counsel müst have misapprehended him, since neither, of those statutes respect copies of recorded instruments, but refer only to the manner in which original deeds or instruments shall be proved in another state, so as to be admissible evidence in this. The authentication was not sufficient.

But even had the authentication been perfectly formal, I should not think the copy admissible evidence, as the failure to produce the original was not duly accounted for. It is not necessary to consider, whether the case of Baker v. Preston settles the rule, that office copies of deeds registered in Virginia, are primary evidence. Whether copies of deeds recorded in Virginia are or are not primary evidence, the copy of a deed recorded in North Carolina cannot be so, without proof, that it would be received as evidence, in lieu of the original, in the courts of that state; for such faith and credit only are to be given to it here, as it would have, by law or usage in the courts of that state. On this subject, | we have no proof; and without proof of a rule in their courts, which permits the introduction of the secondary evidence instead of the original deed, the general principle must prevail, which excludes such evidence.

The deposition of Leonard Laws was competent testimony. The purchaser under the deed of trust must look, I take it, to the title of the grantor. He cannot look to the trustee, who is but an agent, nor to the creditor, who sells nothing, and is merely to receive the proceeds of sale. The grantor or debtor is the person whose title passes, and the sale made by the trustee is his sale, for the purpose of raising funds for the payment of his debt. Upon the principle settled as to sheriff’s sales, 4 Rand. 8, 5 Serg. & Rawle, 225, 9 Wheat. 616, the creditor by deed, of trust can no more be liable to refund the money he receives, than the creditor by execution. As it respects them, it is not perceived that *there is an assignable difference. To hold the creditor liable to the vendee, were to make him a war-rantor, when he has had no agency in the sale. He merely receives the avails, when they are raised by the trustee. The debtor, indeed, warrants the title; but to whom does that warranty enure? To the party who purchases out and out and holds the legal title, or to the cestui que trust, who has an interest in and right to such part of the proceeds of sale only, as may suffice to liquidate his demand? To the former assuredly; and if so, it cannot enure to the latter also. On this point, therefore, I am of opinion, that there is no error; but on the other grounds, I am of opinion, that the judgment must be reversed, and the cause sent back for a new trial.

The other judges concurred. Judgment reversed, and cause remanded &c.  