On the trial of the cause, the plaintiff offered in evidence a copy of a deed from one Carson to William Thornton, dated in 1811, as part of his title, with the following endorsement by the register of Montgomery county, viz:
"Montgomery County, No. Ca.
"I, James M. Lilly, Register of the county aforesaid, do hereby certify, that the within is a true copy of a deed from *Page 116 J. K. Carson to William Thornton, and that the original has been duly registered in said county. JAMES M. LILLY, Register."
The plaintiff then offered in evidence the affidavit of Anna Maria Thornton, one of the lessors of the plaintiff, as to the loss of the original deed. Several witnesses testified that the court-house, in Montgomery, was burned in March, 1843, with all the books and papers belonging to the clerk's office, also those belonging to the register's office.
The above mentioned James M. Lilly testified that he was register at the date of the deed, and had been ever since, and that he never registered a deed unless it had been proved.
The plaintiff offered in evidence, also, as a part of his title, a copy of the last will and testament of Dr. William Thornton, in the first clause of which are these words: "I give and bequeath to my beloved wife Anna Maria Thornton, and her beloved mother Anne Brandeau, during their joint and separate lives, all that I possess of real, personal, and mixed estate, or property whatsoever, a schedule of which is hereunto annexed, and to which reference is now made." In the same will, after making various provisions for emancipating his slaves and their increase during the lives of his wife and mother-in-law, the will further provides as follows: "I hereby appoint my beloved wife, Anna Maria Thornton, sole executrix of this my last will and testament, hereby giving her full power and authority to sell and dispose of all my estate, real and personal, so as to enable her to carry into effect all the dispositions of this my last will and testament." "And I hereby authorise and empower my executrix to make and execute any deed or assurance which may be necessary, c."
The defendant objected to the admission of the copy of the deed, because it did not appear that the original had been duly proved, and because such probate ought to have been registered and constituted a part of the register's certificate, so that the Court, and not the register, should judge that the same had been properly proved.
The defendant further objected to the copy of Dr. Thornton's *Page 117 will, because it had not been fully copied, for that the schedule, which was a part of it, was not embraced therein.
These questions were reserved by the Court with the consent of counsel.
The cause was submitted to the jury with instructions, (not excepted to by either party,) and a verdict was found in favor of the plaintiff.
Afterwards, on consideration of the questions reserved, his Honor, being of opinion with the defendant, set aside the verdict and ordered a non-suit; from which judgment, the plaintiff appealed. We do not concur with his Honor in his opinion, either in respect to the deed, or the will. As to the deed, the objection is the want of proof that it had been duly proven and ordered to be registered.
The proof is: the original deed is lost. In 1843, the courthouse of Montgomery was burnt, together with all the books and papers belonging to the clerk's office, and also those of the register's office. A paper certified to by James M. Lilly, register of the county of Montgomery, which purports to be the copy of a deed that had been duly registered by him from J. K. Carson to William Thornton. This copy and certificate were made many years before the court-house was burnt, and James M. Lilly swears that at the date of the deed (Viz., in 1811) he was the register of that county, and has been so ever since, and that no deed was ever registered unless the same had been properly proven, during the time that he has been register.
It is said for the defendant, "that there is no evidence that the original deed had been duly proven and the probate ought to have been registered and constituted a part of the register's certificate, so that the Court, and not the register, should judge that the same had been duly proven."
In reply to the second position taken in this exception, it is *Page 118 enough to say, there is no Statute which requires the register to put on his books or which authorises him to give a certificate in regard to the probate of deeds executed by a party resident in this State. When the party resides abroad, or when a commission issues to take the examination of the subscribing witness who resides out of the State, there is a provision in these words: "whereon such dedimus and certificate of probate andacknowledgment, and the deed itself, shall be admitted to registration,c.;" but the general provision is, "that no conveyance of land shall be valid, unless it be acknowledged by the grantor or proved upon oath, either before one of the Judges of the Supreme Court, or of the Superior Court, or in the Court of the county where the land lieth, and registered by the public register of the county," c.
The main purpose for which registration is required, is to givenotoriety to the transfer, in lieu of that given at common law by a feofment and livery of seizin. A secondary purpose seems to have been, to aid the party in case the original deed, after being registered, should happen to be lost; but whether it may be deemed a casus omissus, or from whatever other cause, so it is, that the Statute does not require the fact of probate to be registered.
The regular course is, when a deed is proven or acknowledged in the County Court, to make an entry of the fact in the minutes, and for the clerk, by the way of identifying the deed, to endorse on it "proved and ordered to be registered;" but there is no Statute which requires the register to put this endorsement on his books; and if the original be lost, we suppose the most plenary proof would be a certified copy from the register, and also a certificate of the clerk of the County Court, that the deed had been proved and ordered to be registered. When the deed has been proved before a Judge of the Supreme or Superior Court, he enters his certificate of probate and fiat for registration on the deed, but there is no Statute requiring the register to put this certificate of probate and fiat for registration upon his books; and there is no provision by which, in the event of the loss or destruction of the *Page 119 original deed, upon which this certificate of probate and fiat for registration are entered by the Judge, secondary evidence can be offered, except upon the principles of the common law, the most prominent of which in regard to this subject is, omnia praesumuntur rite acta.
The first position taken in the exception was not so easily disposed of, but, after much consideration, we have come to the conclusion that the proof set out above, with the aid of the maxim omnia praesumuntur, c., is sufficient to show that the original deed had been "duly proven and ordered to be registered." From the fact of its having been registered, and the oath of James M. Lilly, who, fortunately for the plaintiff, has been register during the whole time, we think there is a clear presumption (the loss of the original deed being satisfactorily established) that it was proved and ordered to be registered.
If this probate and fiat was done in the County Court, the absence of proof as to it, is fully accounted for by the fact of the burning of the court-house in 1843. If the probate and fiat was done before the Judge, the absence of proof as to it is fully accounted for by proof of the loss, or destruction, of the original deed; so, taking it either way, we are at liberty to presume that the County Court, or the Judge before whom the deed was proven, and by whom it was ordered to be registered, did the thingrightly; on the same principle that when a subscribing witness is deed, proof of his hand writing authorises a presumption that the deed was duly signed, sealed and delivered in his presence, otherwise he would not have signed his name as a witness; and by the way of analogy, we refer to Joiner v. Falconer, 2 Ire. Eq. 386; Etheridge v. Ferribee, 9 Ire. 312; Beckwith v.Lamb, 13 Ire. 400, by which it will appear that the maxim has been acted on more liberally of late years, than in some of the old cases, and the rule now is to uphold the maxim "ut res magis valeat quam pereat" by the aid of the maxim omnia praesumuntur, c.
As to the will: the schedule of property therein alluded to, is not annexed or referred to, so as to form a part of the instrument. *Page 120 The testator gives to his wife, who is one of the lessors, and to his mother-in-law, the whole of his estate, real, personal and mixed, so that there can be no question, if he owned the land now sued for, that it was included in the devise, and the schedule is mentioned, not as restricting his gift, but simply by way of reference or information for the benefit of the devisees.
PER CURIAM. Judgment reversed and a venire de novo awarded.