
    ENSIGN v. McKINNEY.
    
      N. Y. Supreme Court; General Term; Fourth Department,
    
    1883.
    Ejectment.—Evidence ; best and secondary.—Presumption of Begularity of Official Act.—Power of Attorney lost. —Authority of Agent or Copartner to convey as Attorney. —Acknowledgment of Deed.
    An ancient deed purporting to have been executed by virtue of a power of attorney, and acknowledged as such and recorded, may be admitted in evidence on proof of unsuccessful search for a power, and circumstantial evidence of the relations and business customs of the parties; and for this purpose, other transactions done by them in a similar manner at about the same time are competent. So held, where the supposed attorney was a partner with the other grantors, and their common agent, and executed the deed in both capacities.
    In support of a deed executed by an attorney, and reciting that he had authority and certified to have been acknowledged and recorded, there being no direct evidence that he had any written authority to convey, it appeared in evidence that several men who were the apparent grantors, and under whom the title was now claimed, had been engaged in 1833 to 1835, as partners in the lumber and land business, owning a very large tract; and that one of them (the signer of the deed) was an attorney at law and had charge of the interests of the company, and acted as its attorney; that the members of the association had a common office where their documents were kept and their meetings and deliberations held, and conveyances directed to be made; and that their attorney was accustomed to prepare their deeds, and make deeds like the one in question; and a witness testified to having, on several occasions, been a witness to a deed executed as this deed was. The attorney was accustomed to keep his associates informed as to what land was sold.
    
      Held, 1, that this evidence entitled the party to adduce, as further secondary evidence of the existence of a written authority, other transactions between the parties; such as a later deed of an undivided share from one to another, admitting that the particular painel now in litigation had been previously sold, and deeds to third persons executed in the same manner as the one offered in evidence.
    3. That upon the whole of such secondary evidence, the party was entitled to have the deed received in evidence for the jury to pass on the question of the existence-of authority to sign it.
    In such a case the recital itself is some evidence of the existence of the power.
    The partnership relation.would sustain a deed executed by one partner by parol authority of the others.
    Tlie presumption that a public officer did his duty avails, in the case of an ancient deed, to allow the jury to infer the existence of a power of attorney in support of an ancient deed, from the certificate of the acknowledging officer that the one ostensibly executing a deed as attorney, was known to liim to be the person executing it; and from its admission to record by the recording officer.
    It is a general principle that the presumption that a public officer did his duty is enough, as between third persons, to cast the burden on the party impeaching the act; and documents admitted to legal record by a public officer, and protected by age and safe-keeping, are prima facie admissible.
    Possession is not essential in case of an instrument over thirty years of age.
    
    Appeal from a judgment as of nonsuit ordered at tlie circuit.
    William H. Ensign, and others, brought ejectment against John L. McKinney, and others, in the supreme court, involving the title to a large and valuable tract of oil lands. The action was commenced July 16, 1879.
    The main controversy was as -to whether a deed which plaintiff offered in evidence to show his title could be received in the absence of a written authority to the attorney who executed it, or of direct evidence that he ever had such authority.
    The circumstances are fully stated in the opinion.
    
      E. Darwin Smith and E. D. Northrup (Mr. Northrup, attorney), for the plaintiff,
    Cited, to the point that the question was for the jury: Justice v. Lang, 52 N. Y. 323, 328; Greenl. Ev. § 48; 1 Best on Ev. 
      p. 569, and § 315; Jackson v. Warford, 7 Wend. 62, 67; Schauber v. Jackson, 2 Wend. 13, opin. of Stebbins, S. As to the secondary evidence: Jackson ex dem. Livingston v. Neely, 10 Johns. 374. Partnership deeds: Worrall v. Munn, 5 N. Y. 229; 3 Kent Com. 48, 49, n. 1. p. 44; Cady v. Shepherd, 11 Pick. 400; Burton v. Burton, 1 Chitt. 707; Skinner v.. Dayton, 19 Johns. 513; Gram v. Seton (a full and elaborate discussion by Chas. Jones), 1 Hall, 262; Van Brunt v. Applegate, 44 N. Y. 544; Mabbett v. White, 12 N. Y. 442; Graser v. Stellwagen, 25 N. Y. 315. Presumption of regularity: 2 Best Ev. §§ 353, 354; § 304; Greenl. Ev. § 46; 2 Whart. Ev. §§ 1318, 1359 ; Mandeville v. Reynolds, 68 N. Y. 528; Forsaith v. Clark, 21 N. H. (1 Fost.) 409; Van Cortlandt v. Tozer, 17 Wend. 338; aff’d. in 20 Id. 423; Ancient deeds: Greenl. Ev. § 21, n. to § 144 in 13th ed.; Enders v. Sternberg, 2 Abb. Ct. App. Dec. 31; Clark v. Owens, 18 N. Y. 437; Jackson ex dem. Henry v. Thompson, 6 Cow. 178; Willson v. Betts, 4 Den. 201; Staring v. Bowen, 6 Barb. 109; Troup v. Hurlbut, 10 Id. 354; Jackson ex dem. Lewis v. Laroway, 3 Johns. Cas. 283; Jackson v. Sellick, 8 Johns. 262, 269; Hassenfrats v. Kelly, 13 Johns. 466, 468, 469; 2 Cow. & Hill's N. 903, p. 1310. As to the right to go to the jury: Wormser v. Meyer, 54 How. Pr. 189 ; Bissell v. Harrington, 18 Hun. 81; Williams v. Gillies, 75 N. Y. 197; 53 How. Pr. 429. Presumption as to ancient deed: Tolman v. Emerson, 4 Pick. 162 (Parker, Ch. J.); Robinson v. Craig, 1 Hill (So. Car.) 389; Doe ex dem. Clinton v. Phelps, 9 Johns. 169; Doe ex dem. Clinton v. Campbell, 10 Id. 475; Monroe v. Merchant, 26 Barb. 383, 408; Dow v. Cooke, 6 Bing. 174, 179; Attorney-Gen. v. St. Cross Hospital, 17 Beav. 435. As to ratification by co-partners: Woodbury v. Larned, 5 Minn. 339; Story Ag. §§ 255, 259; Murray v. Binnger, 3 Abb. Ct. App. Dec. 336; Hasard v. Spears, 2 Id.; Leslie v. Wiley, 47 N. Y. 648 ; Ahern v. Goodspeed, 72 Id. 108, 116 ; 2 Tayl. Ev. 876, § 907 ; Eagle Bank v. Smith, 5 Conn. 71; Neal v. Erving, 1 Esp. 61; Barber v. Gingell, 3 Id. 60. As to course of dealing in other transactions: Cobb v. Sweet, 4 Greenl. 503.
    
      Cary, Jewell & Rumsey, for defendant McKinney, and others ; and Bolles & Moulton, for defendant Weston.
    I. As to necessity of written power, cited 2 It. S. pt. 2, c. 7, tit. 1, § 6 ; same stat. 2 Mdm. ed. 139, § 6 ; Story Ag. §§ 49, 242, 252 ; Hanford v. McNair, 9 Wend. 54, 56 ; Blood v. Goodrich, Id. 68.
    II. 1. The rule under which plaintiffs seek to take shelter is clear and definite. It requires positive and explicit proof {a) of the existence of the given instrument, (b) of its loss, or at least of an unsuccessful and thorough search for it in its natural and proper place of deposit, and (c) of its contents. And while in the case of an ancient deed the rigor of the rule1 as to proof of loss may be somewhat relaxed, its antiquity does not have any effect to abolish or impair the other prerequisites, and the party must prove by cogent and decisive evidence, the fact of the instrument and its contents. There is in this case no pretense of a compliance with these requirements. There is not the slightest proof of the existence of any power of attorney or its legal equivalent.
    2. But they ask the court to infer or to permit the jury to infer the existence and effect of such a power from the fact of its exercise, and from the preliminary inference that Chamberlain knew it and had been exercised and acquiesced in it. In other words, they build inference on inference and guess on guess, and insist that an important question as to the title of land of great value shall be determined by this chain of conjecture. But the true theory of their position is even more absurd than as above stated. They reason in a circle. They say that because Hall had the legal power, Chamberlain acquiesced in his assumption of it, and because Chamberlain acquiesced in the assumption, Hall must have had the legal power. The law does not allow its settled and salutary rules to be supplanted by such sophistry.
    3. The vicious character of the plaintiff’s assumption is demonstrated by still another view of the situation. They insist that because Hall assumed to act, Chamberlain must have known of it, and that if he knew and did not dissent, which they assume he did not do, he was included. Grant that this was so. It only proves that Chamberlain ratified the exercise of the assumed power in the given case, or in each of a series of given cases. It has no tendency to prove the existence of a general power to convey the lands. It justifies the inference of ratification in the special 'instance, because that is the natural and direct and necessary deduction from the facts; but it does not justify the inference of an original general power, because that is not the direct or necessary result of the facts. While the former is a logical sequence, the latter is merely speculation.
    
      
      
         See Enders v. Sternbergh, 2 Abb. Ct. App. Dec. 31, and cases cited.
    
    
      
       Reversed in 28 N. Y. 9.
    
   By the Court.—Macomber, J.

The action is ejectment for the recovery of certain real estate of which the defendants are in possession.

The plaintiff’s title is derived immediately from Seth Rowley, to whom the premises are claimed to have been conveyed by Benjamin Chamberlain, Alpheus Hawley, J esse Morrison, Josiah Hall and James Hall. The deed to Rowley was executed by Josiah Hall in behalf of himself and as attorney in fact for the other grantors, February 3,1883, and was recorded in the proper clerk's office. There was however, no written power of attorney to Josiah Hall produced upon the trial nor any record of it or any direct evidence given that the same ever existed. The court for that reason excluded the deed as evidence and refused to permit the plaintiff to go to the jury upon the question whether or not such power of attorney existed at the time of the execution of the deed.

Under the proof in the case it was established that on August 17,1831, the state of New York agreed to sell to Alpheus Hawley a tract of land conveyed by the HoEand Land Company to the state, located in Cattaraugus county, supposed to contain 100,633 acres, for a sum of $28,310.36 and on September 10, 1831, the state executed to him a certificate of sale thereof. In December of the same year, Alpheus Hawley sold an undivided three-fifths of the land to Benjamin Chamberlain, James Hall and Josiah Hall. On November 33, 1834, an assignment of partition was made between all the parties interested in the land, including Jesse Morrison. This agreement contained a clause making it subject to all the sales, both by deed and contract, that had been made previously thereto. The residue of the evidence in the case in behalf of the plaintiff and which was offered for the purpose of showing that the deed to Rowdey was duly executed by Hall himself and as attorney in fact for the other grantors, was to the effect, that Chamberlain, Morrison, Josiah and James Hall were engaged as copartners in the lumbering and land business under the name of “The State Land Company,” in the years 1833, .1833, 1834, and 1835, having in the county'of Cattaraugus upward of one hundred thousand acres of land mentioned in the patent; that Josiah Hall was an attorney at-law and had charge of the interests of the company and acted as the attorney of the company. It was also shown that the company had an office at Great Valley where books, records, maps and filed notes were kept; that all the members of the partnership took part in the selling of lands, frequently meeting to discuss prices, and directed from time to time deeds to be given after full payment and accounting for the receipts of the consideration moneys ; that Josiah Hall prepared the form of the blanks for deeds. Alonzo Hawley testifies that Josiah Hall was accustomed to make like deeds at about the time of the date of this deed ; that he knew he was deeding lands, and that he was, on several occasions, a witness to the deeds executed in the manner that this one was. These sales and deeds, the witness says, he reported to the parties and kept them posted as to what land was sold. He further says he thinks that the rest of the company did not execute any deeds in those years and knew of no person executing any deed except Mr. Hall and himself.

Plaintiffs also offered in evidence a deed from Benjamin Chamberlain to Alpheus Hawley, dated November 19, 1835, conveying an equal undivided half of lands described in the deed, except such as were marked “sold” on a map annexed. It appears that among those that were marked upon the map as sold, which was put in evidence, was the land conveyed to Seth Rowley. This was objected to by defendant’s counsel and excluded. Three other deeds were also offered in evidence, one to John Hurlbert, another to Samuel S. Clark, and a third to Grove Hulbert, executed in the same manner that the one now in controversy was. These were also excluded.

It further appears that before making the partition deed above mentioned, the original part owners of the land had a full accounting between themselves, and a balance-sheet was struck and the accounts all adjusted; and that the partition was made upon the basis of such accounting.

Proof was also given of a thorough search for the power of attorney under which Mr. Hall was supposed to act; but it was unavailing.

The court having excluded the deed of Rowley, it followed, as matter of course, that all subsequent deeds from Rowley should be excluded also.

It thus appears that no power of attorney to Josiah Hall was recorded in Cattaraugus county, either before or after the execution of the Rowley deed, nor is it shown- that such a power of attorney as an existing instrument in writing, under the signature and seal of the principal as the statute requires (2 Edmonds' ed. 139, 6), ever existed] Nevertheless, we think that it was error for the trial court to withhold the deed to Rowley from the consideration of the j ary.

The plaintiffs were entitled to prove the existence of the power of attorney by secondary evidence, and we think that the facts which were received in evidence, and which were offered upon that question and excluded, made such a case as that the jury would be warranted in finding as matter of fact, that Josiah Hall acted under a legal power of attorney. The fact that the power of attorney existed is asserted upon the face of the deed itself. In Jackson ex dem. Livingston v. Neely (10 Johns. 374), the deed recited the power of attorney, and it was held that a subsequent purchaser had notice thereof by reason of its recital in the deed.

It has frequently been held that one partner may bind the rest of the firm by deed executed in behalf of the firm, under a parol authority or a subsequent parol adoption or ratification of the act (Gram v. Seton, 1 Hall, 262; Skinner v. Dayton, 19 Johns. 513). The deed was sufficiently proved as to Josiah Hall as a party to it in his own behalf, and not only did it contain the assertion of the power of attorney, but the instrument itself was admitted to record by the county clerk in February, 1883. The officer, taking the acknowledgment of Hall both individually and as attorney in fact, properly certifies that Hall was personally known to him to be the same person who executed the deed and acknowledged the same as his act and deed, as well as the act and deed of Chamberlain, Hall, Hawley and Morrison. It will, as it seems to us, be presumed in this case, as it frequently is, that a public officer does his duty, and that neither the officer taking the acknowledgement nor the county clerk receiving the deed of record would have verified such official acts respectively, had there not been present before them legal proof, which in this case would be an instrument in writing under the hand and seal of the principals, of the existence' of such power-of attorney, inasmuch as a long period of time had elapsed since the execution of the instrument, namely, forty-eight years at the time of the trial.

In Forsaith v. Clark, 21 N. H. (1 Foster), 409, it was held, that in the case of an acknowledgment which purported to have been taken before a justice of the peace in Massachusetts, the presumption was that the register of deeds had sufficient evidence of the official character of the magistrate to entitle the deed to be recorded in New Hampshire. The court says the register of deeds may have had plenary evidence of the official character of the magistrate at the time he recorded the deed, and that evidence is now lost. Every presumption is to be made in favor of the legality of the record after such lapse of time. Says Wharton, in his work on evidence, sec. 1, 318: “The acts of government officers, e. g., the acts of sheriffs, treasurers, surveyors, etc., are presumed to be regular so far as to throw the burden on the party assailing such acts collaterally, on the ground of irregularity.” The officer is assumed prima facie to have done his duty till the contrary is shown, and when the acts relate to the cases when a registry is established by law, the question is one of the burden of proof, and documents protected by age and safe keeping are prima facie received in evidence, and the burden is on him who would resist their admission (Sec. 1359; Wood v. Terry, 4 Lans. 80; Cooper v. Bean, 5 Id. 318; Lucas v. Second Baptist Church, 4 How. Pr. 353 ; Hartwell v. Root, 19 Johns. 345 ; Wood v. Moorhouse, 45 N. Y. 369).

When an instrument is over thirty years of age, which is frequently declared to be a period at which an instrument becomes an ancient deed, it is admissible in evidence upon its bare production, says Greenleaf on Evidence, 21. See also Cowen & Hill, note 882, p. 1269, where it is declared that a power to execute a deed will in many cases be presumed (See Doe ex dem Clinton v. Phelps, 9 Johns. 169 ; The same v. Campbell, 10 Id. 475).

In the two cases last cited possession under the deeds were shown ; but whether the plaintiff is bound first to show some acts of possession under deed is, says Greenleaf, “ a point not perfectly clear upon the authorities ; but the weight of opinion seems in the negative ” (§ 21). In a note to § 144 (13th ed.) it is further stated that the weight of authority at present seems clearly not to require such proof; and it is now agreed, that where proof of possession cannot be had, the deed may be read, if its genuineness is satisfactorily established by other circumstances, citing among other cases Jackson v. Laroway, 3 Johns. Cas. 283, 287; Jackson v. Luquere, 5 Cow. 221,225 ; Jackson v. Lamb. 7 Cow. 431; Hewlett v. Cock, 7 Wend. 371; Willson v. Betts, 4 Den. 201.

The plaintiffs, we think, had the right to have all the facts which were proved and which were offered to be proved, submitted to the jury for their consideration and for them to say whether such facts and snob inferences as they should properly adduce therefrom, together with such presumptions of law as they should be instructed existed, established the existence of a valid power of attorney in Josiah Hall to execute the deed to Rowley ia behalf of his associates.

Moreover, the partition agreement between the owners by the clause, namely; 1 ‘ the above described tracts being subject to all sales, both by deed and contract, made previous to the date hereof,” taken in connection with-the map and the other evidences above referred to, is a recognition of the regularity and validity of the Rowley deed, or at least a proper case was presented by it for the jury to find such recognition and ratification by the principals.

It follows that the judgment must be reversed and a new trial ordered, with costs to abide the event.

Order accordingly. 
      
       § 6 “No estate or interest in lands, other than leases for a term not exceeding one year, nor. any trust or power, over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing."
     