Upon a Rehearing, June 28, 1906.
Absent, Keith, P.
By the Court:This case is before us upon the award of a rehearing to a former decision rendered Kovember 23, 1905.
The principal assignment of error to which our attention has been directed in the petition for a rehearing grows out of a conclusion of the court, founded upon an incorrect copy of the certificate of acknowledgment to an agreement between Jasper Sutherland and others, of the one part, and P. A. Stratton, of the other part, dated October 7, 1887. It appeared that Jasper *596Sutherland’s name and cross-mark, unattested, was attached to-the agreement, hut his name did not appear in the certificate of acknowledgment. Upon that record the court, therefore, held that notice of the contents of the agreement could not he imputed to Jasper Sutherland, and that the paper was rightly excluded from the evidence. Thereupon, the plaintiff in error presented', its petition for a rehearing, calling our attention to the fact that Jasper Sutherland’s name did appear in the original certifícale,, and was by mistake transcribed as "Joseph Sutherland” in the-former record; and assigned that and other reasons as grounds for rehearing the decision.
In considering the ruling of the court with respect to the-exclusion of the Stratton agreement, to appreciate the significance of that decision it is proper to remark that the trial court had already excluded the record of the suit in equity instituted' by Joseph Kelly and others against the heirs of Dale Carter and Mary Campbell for the purpose of setting aside the Imbbden compromise, which compromise agreement was filed as an' exhibit with the rejected record. Kor reasons satisfactory tO' the court the action of the Circuit Court in ruling out that record' was affirmed. It is clear, therefore, that the rejection of theStratton agreement and power of attorney was corollary to the previous ruling.
The sole purpose for introducing the Stratton agreement and' power of attorney was to affect Jasper Sutherland with notice-of the Imboden compromise; but the court had already held that the Imboden compromise and the suit brought to annul it had no place in this record; and a fortiori, subordinate papers-in relation to the same subject matter were likewise immaterial and inadmissible in an action of ejectment.
The objection to the introduction of these documents was general, and, if for any reason they were inadmissible, the*597mling of the trial court in excluding them must he sustained. While basing the rejection of the Stratton agreement upon a different ground from that upon which it was rested in the former decision, we are, nevertheless, of opinion that it was rightly excluded.
It may also be observed, as affecting the probative value of the Stratton agreement, that it bears date October 5, 1887, whereas the deed from William Sutherland to Jasper Sutherland was executed January 15, 1887, about nine months previously. In this connection the court, in its former opinion, observes: “The evidence is clear and conclusive that from January, 1887, until the institution of this suit on the 13th day of October, 1902, a period of more than fifteen years (the limitation being only ten years west of the Alleghany mountains), Jasper Sutherland and his vendee had been in the open, notorious, exclusive and hostile possession of the land in dispute.”
Tor the purpose merely of excluding a conclusion we desire to say that nothing in the discussion of the factum and the acknowledgment of the Stratton agreement in the former opinion of the court was intended to alter or modify the rule enunciated in Board of Supervisors, etc., v. Dunn, 27 Gratt. 608, and that line of authorities, to the effect that “A person who signs, seals and delivers an instrument as his deed will never be heard to question its validity upon the ground that it was not acknowledged by him nor proved at the time of delivery. It is the sealing and delivery that gives efficacy to the deed, not proof of its execution. And this principle applies to all bonds, whether executed by public officers or private persons, unless there is a statute making the acknowledgment or proof in court essential to the validity of the instrument.”
The remaining grounds alleged in the petition to rehear have been sufficiently discussed and disposed of in the opinion of the *598court ou the former hearing, and do not demand further notice.
Por obvious reasons we cannot comply with the request of counsel to declare, if we should be of that opinion, that plaintiffs in error háve an equitable title to the minerals underlying the land in controversy. The functions of this court are exhausted when it has ruled upon the specific assignments of error submitted, and a mere advisory opinion, touching extraneous questions, expressed for the purpose of influencing future litigation, would be gratuitous and unwarranted.
Upon the whole case, we are of opinion to adhere to the previous decision, and to affirm the judgment of the Circuit Court.
Affirmed.