LOREE 11. ABNER.
LOREE v. ABNER et III (Circult Court of Appeals, Sixth Oircult. June 8, 1893.}
No. L
62-
EVIDBNOB-JOOICIAL NOTICE-STATUTES OF STATES.
'l'he federal courts may properly take jUdicial notice of the statutes of the various states which were In force prior to the adoption or the con· s1li1:lltion of the United States.
2.
DEEDB-AClOIOWLEDGMENT-VIRGINIA STATUTE.
Act Va. Oct. 1785, (12 Hen. St. 154,) reqUdred conveyances of lands made by persons not resident in Virginia. to be acknowledged "befQre any court of Iaw," and "certified by such court * · * In the manner such acts are usually authenticated by them." Hel(j, that thIs acknowl,edgment before the "court" was a minlsterial, rather than a judIcIal, act, and was not a. matter to be entered of record, or even to be done by the court as such. It was sufflcient if done before tlhe pel'Eons constitutlng the court; bnt, where the court was composed of several members, the acknowledgment was Invalid unless taken befQre a su:flicient number to constitute the court. Where a Virginia deed bore a certificate of acknowledgment sIgned by two justices of a Peunsylvania court, accompanied by the certIficate of a prothonotary thnt the sIgners of the first certificate were In fact such justices, and entitled to full credit as such, the fact that the prothonotary's certificate was under his seal as such was su:fliclent to raise a presumption that the certificatic·n was "In the manner such acts are usually authenticated by them," as required by the Virginia statute.
8.
SAME-CERTIFICATE OF PROTHONOTARy-PRESUMPTIONS.
'4.
'SAME-SUFFICIENCY OF ACKNOWLEDGMENT.
By the laws of Pennsylvania In' fQrce in May, 1788, (1 Laws 1810, p. 142,) tlhree JUBtices were necessary to constitute the court of CQmmon pleas for the county of PhiladelphIa, and an acknowledgment of a Vir, glnia deed under the said act of 1785, before two of them only, was invalid.
This Is an action of ejectment, In which plaintiff, Loree, sued for the recovery of a tract of land patented tv Samuel Young by the commonwealth of Virginia on· the 4th day of January, 1786, contaming over 30,000 acres, lying in what are now the counties of Lee, Wolfe, and Powell, In the state of Kentucky. The defendants answered, and put in issue plaintiff's title, and claim adverse possession, and pleaded the statute of llmitation. Some of them deilly that the deed fn,m YQung to Gltt, throrugh whom plaintiff clalms title, li'l valid, and allege tllat It was never executed by the patootee, Young, and the alleged deed to GUt Is fraudulent and void. On the trial, plaintiff read a copy of the patent to Samuel YOlmg froan the commonwealth of Virginia, dated January 4, 1786, and a copy of a deed from Samuel YOlmg to W. W. Gitt, dated Mal' 23, 1845, and then a deed from Gitt to plaintiff. This was plaintiff's chain of title, and, after he introduced testimony tending to prove that the defendants were in the possesSiion of portions of the land sued for, he rested his case. 1'he defendants then read, with the permission of the court, and over the objections of. the plaintur, a cerWled copy of a deed from Samuel Young
In Error to the Circuit Court of the United States for the District of Kentucky. At Law. Action of ejectment by John Loree against William Abner and others. Judgment was given for defendants. Plaintiff brings error. Reversed. Statement by BARR, District Judge:
,160
FEDERAL REPORTER,
vol. 57.
to Charles Vancouver, dated March 9, 1786, which conveyed the same land patented to Young by the connnohwealth of Viroglnla, January 4, 1786. This certified copy Is in words W'I follows,. viz,: "This indenfure, made the ninth day of MalXlh, In the year of our Lord one thousand seven hundred and eighty-six, between Samuel Young, of the city of Philadelphia, a merchant, of the one part, a.nd Charles Vaneouvel; of. the same city, gentleman, of the other part. Whereas, Patrick Henry, patent, under his hand and 1lhe lesser seal of the commonwealth of Virginia, bearihg date the'4tb day of January last past,dld grant unto the said Samuel Young, his heirs and assigns, forever, a certain tract or parcel of land, containing thirty thousand nine hundred and seventy-three and one-third acres by surVey, bearing date 1lhe 7th day of May, 1784, lying and being in the county of Fayette, in Kentucky; beginning at tile letter 'A' in the plat, a black oak, standing at the end of four hundred and forty poles nortll, nine degrees west, line drawn from llie mouth of the north fork of ' tile tIlree forkS of the Kentucky river, and run.n]ng thence north, dine degrees west, thirty-eight hundred and fifty poles, to letter 'B,' a hickory; thence north,eighty-one degrees east, thirteen hundred and seventy-five poles. to letter 'C,' a black ool{; tIlence south, nine degrees east, t'hree thou-· sand poles, to letter 'D,' on Kentucky river, at a sugar tree, near the mouth of a large branch; thence running down, and binding with the meanders of the river, to letter 'E,' a buckeye, at fue end of six hundred and forty poles when reduced to astratght line, where it Intersects with an entry made by Adams and Crow; thence bounding by said entry, north, eighty-seven degrees west, two hundred and forty poles; tIlence south, four degrees east, seventy poles; thence soufu, eighty-six degrees west, one hundred and eighty poles; thence south, seventy-seven degrees west, four hundred poles; thence south, forty degrees west, one hundred and eighty poles, to the begimting, as by tile said and recorded at Richmond fully appears: Now this indenture witnesseth that said Samuel Young, for and in consideration of the jlum of one fuouslmd three bundred and fifty pounds IllJwfUl money of Pennsylvania, to him in hand paid at the time of the execution thereof, thl} receipt whereof is hereby duly acknowledged, hath, and. by tIlese present.'l doth, grant,. bargain, sell, alien, enfeoff, release, and confirm unto the said {''harles Vancouver, his helirs and assigns, all that the above-described tract of land, togethm' with all :md siuglliar the rights, privileges, immunities, l)ereditaments. :Lnd appurtellanees whatsoever.' to the same belonging, and the reversions, remainders, rents, issues, and profits thereof, and all tile estate, right, title, and interest whatsoever of the said Samuel Yotmg of, unto, and out .of the same. To have and to hold all and singular the herebywifu the nppurtenances, unto the said Charles Vanconver. his heirs and assigns, to his and their own proper use and benefit, forever, and the said Samuel Young, and his heirs, all and singular, the herebygranted premises, with all the appurtenances, unto the said Charles Vancouver, Ills heh'S and al'lsigns, against hitnsel.l' and his heirs, and aga lust all ·persons whatsoever lawfully claiming or to claim by, through, from, or under him or them, shall !lnd will warrant and forever defend by these presents. In wd.tness whereof, the !laid partleshave hereunto set tIlelr hands and seals, interchangeably, the day and year first above written. "Samuel Young. [L. S.] "Sealed and delivered in presence of us: "Miers Fishel'. "John HallOWell." "I "0 hereby acknowledge to have received the full consideration money Samuel Young. above mentioned. "'Witnesses: "Miers Fisher. "John Hallowell." "Philadelphia connty-ss.: Before us, the subscribers, two of the justices of the court of common (lleas for' the county of Philadelphia, personally came Samuel Young, in the above indenture na.med, and in due form vf
LOREE 'V. ABNER.
161
law aclmowledged the same as his act and deed. In witness whereof have hereto set our hands seals. the ninth day of March, !in t!he year of our Lord one thousand seven hundred and eighty-six. "Plunket Fleeson. [L. S.] "Edward Shippen. [L. S.]" "(L. C. S.) Philadelphia county-ss.: I, Jonathan Bayard Smith, Esquire, prothonotary of the comt of common pleas of Philadelphia. do hereby certify that Plunket Fle('son and Edward Shippen, Esquires, the persons taking the foregoing acknowledgment, are, and at the time of taking and suhscribing same were, justices of the court of common pleas for the said county, as by their commh:lsions remaining of record in my office fully appear, and that, to all acts and deeds by them s11bscribed, full credit is and ought to be given. In witness whereof, I have hereunto atlixed the common seal of the said court. and set my haud, the tenth day of March, in the year of our Lord one thousand seven hundred and eighty-six. "J. B. Smith." "Philadelphia, in Pennsylvllnla-ss.: Before us, the subscribers, two of fue justices of the court of common pleas for the of Philadelphia, personally appeared Samuel Young, in the within written indenture named, and that on the third day of May, in this present year, he had again sealed and delivered the within indenture as his act and dero, and now desires that the same IDay bp- recorded as SUCh. Witness ()I\lr hands aUlI seals, the third day of May, one thousand seven hundred and eighty-eight. "John Gill. "William Pollard." "I, Jonathan Bayard Smith, Esquire, prothonotary of the court of common pleas for the county of Fhiladelphia, do hereby certlfythat Jolin Gill and 'William Pollard. IjJsqulres. the persons taking t1he foregoing acknowledgment, al'e, and at the time of taking the same were, justices of the court of common pleas and of the peace for the same county, and that, to all acts by them done as such, full credit 16 a.nd ought to be given. Witness my hand ann seal, the sixth day of :i\.Iay, in the year of our Lord one thousand seven hundred aM eighty-eight. J. B. Smith, Pro,t'y. [L. C. S.]" "Recorded In the office for recording deeds. etc., for the city and county of Philadelphia, in Deed Book No. 16. pages 175, etc. Witness hand and seal of office, the 30th of March, A. D. 1786. . "Mathw. Irwin, Rec'r. [L. C. S.]" "The time for the wIthin written Indenture, according to the laws of VIrginia. being expired, the was agaIn sealed and delivel"ed. by the said Samuel Yonng as and for his act and deed, this present third day of May, in the year of our Lord one thousand seven hundred and eightyeight, in the presence of us, to the end that the same may be yet recordeJ there. Mierl:1 Fisher. "John Hallowell." "At a court held for Bonrbon county, at the conrthouse, on Tuesday, the 18th day of November, one thousand seven hundred and eighty-eight, the above indenture of bargain and sale, from Samuel Young to Charles VallCOllver. acknowledged before Plunk. Fleeson and Edward Shippen, Esquires, justices of the peace for Philadelphia county, in the state of Peunsylvania, IlJIld cerldfted by Jonathan Bayard Smith, prothonotary of the said county, with the saId county seal affixed thereto, was admitted and ordered to be recorded. "Test: John Edwards, O. C. B. C." "State of Kentucky, Bourbon county-Set.: I, Wm. Myall, clerk of the Bourbon county court, Kentucky, certify that the foregoing is a true and complete copy of a deed from Samuel Young to Oharles Vancouver, together with the certificates to same, as same appears of record in my office. Given under my hand, November 24th, 1891. Wm. Myall, C. B. C. C."
v.57I<'.no.1-11
FEDERA;hRE;E'ORTER,
,ThilideEld beh1g read, the CQuf!: ID$tructed the jury they must tind for dejudgm'eht entered t1hereon. and the plaintltf fendimts.,., ',l'his 'was done,,' has sued out 'it. writ of error. ,
and
& Trabue and St. JQlin Boyle, (S. F. J. Trabue, E. F. Trabue, and Strother & Gordon, on the brief,) for defendants 1n error.
C. error.
O'Hara&. Bryan, and T. M. Hinlke, for plaintiff in
Before JACKSON, Circnit Judge, and SEVERENS and BARR, Disttict Judges. ' BARR, District Judge, (after stating the facts.) The errors assigned are iliat the court shonld not have allowed the certified copy of the deed from Samuel YOullg tQ Charles Vancouver to be read to the jUTY,i'and that it erred in instructing the jury to find for the .. If the certifie<l'copy of the deed from Young to Vancouver competent evideJ:lce, the instnIction of the court to find for the detendantswas correct,. as that conveyance proved the title Young at the date Af the deed to W. Gitt, through whom :plaintiff claimed. Whether this certified copy was competent eVIdence depends upon the question of whether the original deed had been legally executed and acknowledged, so as to authorize itlil record in tlie Bourbon county court under the laws of Virginia.,T4ilil land lay in Bourbon county, and the county court of that county had authority to order it to record if it had been executed and acknowledged according to the statutes of Virginia. The Virginia statute of October; 1748, prescribed the mode of conveying land where the interest was a life estate or more than a life interest.'J11e statute wasshnilar to the one enacted October, 1710. See 3 Hen. St. p. 517. By these statutes, nonresidents of the colony of Virginia were required to have their deeds recorded in the records of the general court, or the county cour1;of the county where the land, or part of it, lay, within two years after the sealing and delivery thereof; and it was provideti, as to these deeds, they should notthe same be, acknowledged in such court by the grantor or grantors thereof In person, or, by some or one of them, to 'be his, her, or their proper act and deed, or elSe that proof thereof be made in open court, by the oath of three
"Be admitted to record in the general court, or in any county court, unless
witnesses at the least." 5 Hen. St. p. 409.
These statutes which required nonresidents of· the colony to acknowledge their deeds ill person before the geXleral court or the county court of tl1.e county where the land lay, or else prove their execution in one of said courts by three witnesses, were found to be inconvenient and difficult, and in October, 1776, the then commonwealth of Yirginia changed this by statute. This statute, after reciting the difficulty and 1nconvenience· of requiring nonresidents of the state to acknowledge deeds in person, or prove them by witnesses in the general court or the county .court of the state,
LO:REE V. ABNER.
1'63
provided that stich deeds should be acknowledged by the party or parties making same, or should be proven by three witnesses"Before the mayor or other chief magistrate of the city, town, or corporation wherein or near to whlcl;1 he, she, or they shall reside; and sucb acknowledgment or proof, certified" by the mayor or other dhief magistrate, under the common seal of said city, town, or corporation. annexed to the deed, shall be admitted to record in the general court or the county court wbere. the lands or other estate lie, and shall be effectual tor passing the estate therein mentioned, as it the conveyance had been acknowledged ()r proven in sucb court; or when the parties making such deeds shall reside in any of the states of America, and there shall bappen to be no city or town corporate within the county wherein they shall dwell, a certificate, under the hands and seals of two justices or magistrates of the county, that such proof or edgment hath been made before them, together with a certificate from the governor, under the seal of the state, or from the clerk of the county court, under the common seal of the county, that the persons certifying such proof or acknowledgment are justices or magistrates within the same, shall authorize the recording of sucb deeds, and make them effectual as aforesaid." 9 Hen. St. p. 207.
In October, 1785, another statute was passed by Virginia, regulating conveyances, in which it was enacted: "That no estate of inheritance or freehold, or for a term of more than five years, in lands or tenements, shall be conveyed from one to another unless the conveyance be declared by writing, sealed and dellvered, nor shall such conveyance be good against a purchaser, for valuable consideration, not having notice thereof, or any creditor, unless the same writing be acknowledged by the party or parties wbo shall have sealed and delivered it, or be proved by three witnesses to be his, ber, or their act, before the general court or before the court of that cQunty, city, or corporation in which the land conveyed, or some part thereof, lieth, or in the manner hereinafter directed."
The manner thereinafter directed was this, viz.: nesses requisite, of the sealing and dellvering of the writing, before any court of law, or the mayor or other chief magistrate of any city, town, or corporation of the county in which the party shall dwell, certified by such court or mayor or chief magistrate, in the manner such acts are usually authenticated by them, and offered to the proper court to be recorded within eighteen months after the sealing and delivering, shall be as effectual as it it had been in the last-mentioned court." 12 Hen. St. p. 154. "If the party who shall sign and seal any such writing reside not in Virginia, the acknowledgment by such party, or the proof by the number of wit-
This act, by its terms, did not take effect until January 1, 1787, so that the aeknowledgment before Judges Fleeson and Shippen was under the act of 1776, and the acknowledgment before Judges Gill and Pollard was under the act of 1785. The latter act repealed the former so far as it related to conveyances of real e9tate. Hynes v. Campbell, 6 T. B. Mon. 286. This deed was not offered before the county oourt of· Bouribon county for record within the required two years, and hence the first acknowledgment need not be considered, as we assume that the county court of Bourbon did not act judicially in admitting this deed to record. The questions to be determined in this view are, did Judges Gill and Pollard constitute a cO'Urt of law, within the meaning of the act of 1785, an,d is the certificate of Prothonotary Smith in the form and manner such acts are usually authentiooted? This certificrute of Jonathan Bayard Smith, prothonotary of the court of
164
common pileas for the county of Philadelphia, is suffieient as to the faot that Judges Gilland Pollard were justices of said conrt, and that. all acts done by them as justices were entitled 1;0 full credit; and'this certiftcate,being .under seal of Smith as prothonotJary, must, we think, raise ,the presumption that the authentication is in the usual manner of such authentication. Ewing's Heirs v. Savary, 3 Bibb, 237. But he did'not certify that these two justices e<mstithis corurt.of COmlD.(}n pleas, or that they would be a quorum to hold such .a court. We do not think it necessary that these justiOO!! should have taken this acknowledgment in open court, or aea court at all, but it is, sufficient that they should have constituted a wurt of law. It oannot be assumed that Virginiain1;ended the courta of the several states of the Confederation who might take acknowledgments of deeds to lands in Virginia, or hear proof thereof, would enter proceedings in the records of these courts, and have them authenticated as judgments or other like proceedings would have been authentieated. Bank v. Portman, 9 Dana, 112. These ack;nowledgments,;were ministerial. acts, rather than judicial ones, and, being done 'under the statute of another Sltate, could not properly be entered upon the records of the common pleas court ofPlii,ladelphia. In of the provisions of the oot of 1776 which authorized, in certa:incases, these acknowledgments, or the proof thereof, to be taken' before two justices' or magistrates of the county, and the proVigj,on of this,act (1785) authorized the mayor and other like 0$001'8 to take such, acknowledgments and proof, we conclude "any coort of law" in this act means any person or persons who at the time constituted a. court of law in the state where the grantor l' lSided. .This was iilt¢p.ded. to designate the person or persons whooollstitruted a court.of law, and authorize him or them to take such acknowledgments or proof, but not to require a OOllrt of law, as aCQlllrt·· to take such acknowJedgments and proof. As there ia no evidence offered by the defendants other than the copy of thia deed and the certificates thereon, the trial court must have taken judicial. notice of the lawa of Pennsylvania, and decided thoae 13JWS made this court of oommon pleas a court of law, and cOn:sP;tuted two justices a court. The. states of Virgini.a and Pennsylvania were then part of the United States of the Oonfederation. Our present Union was not perfected until July 21, 1788, by the ratification of. the requisite nine states. llennaylvania was one of the nine, having ratified the constitution December 12, 1787, but Virginia did not ratify it until July 25, 1788. Although this government and the courts thereunder were first established under the present constitution, which was ratified and became effectual in July, 1788, we think the cO'\ll'!l; was 'correct in taking judicial knowledge of the lruws of Pennsylvania in May, 1788. The federal courts take judicial knowledge of the laws of the several states of the Union, (Ohurch v. Hubbart, 2 Oranch, 187; Hanley v. Donoghue, 116 U. S. 1, 6 Sup. Ot. Rep. 242,) and have taken judiciJal notice of, the laws of Mexico in force in
ARROWsMI'1'H V. NASHVILLE & D. R. CO.
165
territory acquired afterwards by the republic of Tems,and then by the United States, (U. S. v. Perot, 98 U. S. 430,) and also of the laws of Oalifornia existing before fuat territory was acquired by the 'United States, (Fremont v. U. S., 17 How. 557.) We find that there was a court styled the "Oounty Oourt of Oom.. mon Pleas" established by the colony of Pennsylvania in and for the county of Philadelphia as early as May 22, 1722, and that it was given common·law jurisdiction, but that law required three or more of the justices to constitute the court. See 1 Laws Pa. 1810, p. 142. There was no change in the number of justices necessary to constitute this court of common pleas until after the adoptiOiIl of the constitution of 1790 by Pennsylvania. That constitution provided for the appointment of not fewer than three, nor more than four, justices, including a presiding justice, who should com· poseoou.r1:s of common pleas, and in some imUu1ces two of said justices were allowed to constitute a court; but, as this was after the ,acknowledgment of this deed by Young, it cannot aid ros ac· knowledgment. It is likely the mistake in thus taking the acknowledgment before two justices was because the parties were not aware of the repeal of the act of 1776 by the act of 1785. As this deed had not been acknowledged by Samuel Young be· fore those authorized by the act of 1785 to receive 8l1ch acknowledgment, it was not legally recordabile by the county court of Bourbon; hence a copy thereof was ineompetent evidence, and it was error to allow it to be r.ead. For this error the case must be reversed, and a new trial granted, and proceedings had in conformity with this opinion; and it is S'O ordered ARROWSMITH v. NASHVILLE & D. R. CO. et aL
(Circuit Court, N. D. Tennessee. July 27, 1893.) No. 2,929.
1.
CARRIERS-WHO IS PASSENGER FOR HIRE-RAILWAY MAIL CLERK.
A railway mail clerk, traveling upon a railway in tihe of 1!he United States. is a passenger for hire in so far as the railway conipany's liability for his injury is concerned.
2. REMOVAl, OF CAUSES-t:lEPARABLE CON'fROVERSy-PLEADINGS TAKEN AS TRl'E.
For the purpose of determining whether a controversy is separable so as to give one of sevel'lll joint defendants the right of removal to a federal court, the allegations of the plaintiff's pleadings must be taken as true, and such defendants, on a joint cause of action in tort, cannot, by filing separate defenses, tendering distinct issues, render the suit separahle for the purpose of removal. In a petition for removal of a cause to a federal court a prima facie case rpquiring the sttlte court to order the removal is made out by an averment that plaintiff originally sued the petitioning defendant alone, and on removal of that suit to a federal court voluntarily dismissed it, and at once brought this action in a state court upon 1ihe samp. cause of action, joining as a defendant a citizen of h1s own state, against who'lli
SAME-PRIMA FACIE RIGHT OF REMOVAL -JOINDER OF FICTITIOUS DEFENDANT TO DEFEAT REMOVAL.