The Same Case.*
ON PETITION for a Rehearing.
Perkins, J.An earnest petition for a rehearing has been filed in this case. We have, in considering it, carefully reexamined the record of the cause to see if we could discover a doubt of the correctness of the decision already rendered, upon which we might, consistently with the rules of practice, grant the petition.
The suit is by the trustee upon a trust mortgage. It is against the party appearing to have executed the mortgage, and two others, viz., John W. Wright and Jared B. Curtis. The party to the mortgage made default, thus admitting its execution. Wright and Curtis answered. The first paragraph of their answer was the general denial — a denial of each and every allegation in the complaint.
*410Two other paragraphs denied the execution of the mortgage, and its acknowledgment, specially. One of these paragraphs was verified by the oath of Curtis.
To these special paragraphs a demurrer was sustained. There was no error in this, because these paragraphs amounted to *no more than the general denial. They might have been stricken out on motion. This will not be denied as to the paragraph not verified by oath. That paragraph imposed no burden of proof upon the plaintiff beyond that imposed by the general denial. A moment’s examination will show that the paragraph verified amounted to no more than the one not verified.
Our code provides that, “where a writing, purporting to have been executed by one of the parties, is the foundation of, or referred to in any pleading, it may be read in evidence on the trial of the cause against such party, without proving its execution, unless its execution be denied by affidavit before the commencement of the trial, or unless denied by a pleading under oath. The latter party shall, in all cases, have inspection of the instrument of writing before pleading.”
Here, Wright and Curtis were not parties to the mortgage, and it could not have been read in evidence against them under the general denial without proof of its execution. This point was settled by the unanimous decision of the Supreme Court in Riser v. Snoddy, 7 Ind. R. 442; hence, in the original opinion, it was not deemed necessary to restate it. These defendants, under that issue, had a right to prove its invalidity. Earnhart v. Robertson, 10 Ind. R. 8.—Noble v. Epperly, 6 id. 468.
What has been said in relation to the denial by Curtis of the execution of the mortgage, applies with still greater force to his denial of the acknowledgment. The suit is not against the party who executed that.
The whole question, then, upon the validity of the mortgage, came up on the trial under the general denial. The record recites — “ And thereupon, the issues being joined in this cause, it is, by agreement of parties, submitted to the Court for trial, without the intervention of a jury, upon *411the default heretofore taken as to the railroad company, and the proof submitted.” It was necessary that that proof, on the part of the plaintiff, should, as to Wright and Curtis, show, prima facie, the execution of the mortgage. The acknowledgment appended to the mortgage did that; and the acknowledgment, prima facie, proved itself. 1 R. S. p. 235.—2 id. p. 91, § 281. The affidavit of Curtis as to it, amounted to nothing; 2 R. S. p. 41, § 75; certainly not more than the admission, at the same time, by the mortgagor, that it was acknowledged. It devolved upon the defendants, Wright and Curtis, to disprove the acknowledgment. The evidence for that purpose was such as we have stated it in the original opinion. But the certificate of the secretary of state of Ohio was offered in evidence under the following agreement:
“ We agree that the within certificates may be used as evidence in this case without any other proof; and it is further agreed that the copy of the agreement between Bundy and the company in regard to the possession of the property, made part of the complaint, may be used in evidence the same as the original. [Signed] Bundy, Smith, Newman and Siddall, Stuart, Corwine, Bickle and Morton.”
And it is contended that this agreement went to the legal effect of the certificate when in evidence, and not to mere preliminary questions arising in the minds of counsel, touching its admissibility, as to sufficiency of authentication, or whether the signer of the certificate was the secretary, &c.; but we think it clearly went alone to the latter, as did the stipulation to admit the copy of the agreement named instead of the original. What it proved when admitted was a question to be determined by the Court. It was but a link in the chain. It required another link, viz., an Ohio statute,, authorizing it. On this point, we have seen nothing to induce us to change the opinion heretofore expressed. As to the appointments of notaries, in the language of Judge Dewey, in Harris v. Doe, 4 Blackf. 376, touching papers in that cause, “we do not know that they were registered, or required by law to be registered in .any *412public office.” It is only copies of papers authorized to be thus registered, that public officers can make evidence by their certificates. Here, the certificate in question is. not even to a copy, but to the negation of a fact, which, if it existed, so far as the record shows, would not necessarily fall within his knowledge.
The Court found for the plaintiff on the general issue, which covered, .as to these questions, the whole merits, and rendered final judgment for the plaintiff. If that judgment is not wrong, tins Court cannot reverse it. It is manifestly right. And .if the evidence is not all in the record, the presumption must be that it sustained the final judgment as rendered by the Court. This remark disposes of. the question of the claim of Wiggins & Co. to a portion of the cars.
The mortgage involved was duly recorded in the counties of Wayne and Henry. It is inferable from the record that the principal office of the company in this state was in Newcastle, Henry county. It appears that the portion of the road operated — that on which the rolling stock mortgaged was used — lay mostly in the two counties above-named, as by the lease to Wright & Co., executed subsequently to the mortgage, it is provided that the road shall be extended from Anderson, a point near the line of Henry county, north-westerly, in the direction of Logansport. It appears that the president and principal directors of the company in Indiana merged at the consolidation with the Ohio company in the new organization, resided at Newcastle, that the shops of the road were there,-and the press for affixing the seal of the company, &c.
Counsel reply, in part, to this, by asking, very disingenuously, how can it be inferred that the principal office of the company was at Newcastle, when it positively appears that that office was in Cincinnati, Ohio ? The Court said nothing about the principal office of the company. The Court asserted that it was inferable that the principal office of the company in this state was at Newcastle. The company may have several offices— one, in Ohio, may be the principal office of the company for the whole road, and *413one of those in this state may be the principal office for business within this state. But the mortgage was recorded in the two counties- in which the road appears to have been then operated. The mortgage having been duly recorded, was notice to all persons, and no estoppel arises.
Equally disingenuous with the above-noticed- remark, is the following:
“ It is suggested by the Court, as a circumstance weakening the force of our testimony, that Cincinnati contains a "population of two hundred and fifty thousand inhabitants. How the Court can take judicial notice of that fact, in view of the technical rule which it applies at the same time in regard to the Ohio statute, and the source of notarial commissions, we cannot very clearly see; and especially in view of the case of Shaw v. Wood, 8 Ind. R. 518, in which this Court held that they did not know what Cincinnati was.”
It will be seen by quoting what was said in the case cited, that the Court held no such thing. This is the language and holding of the Court:
“ The only evidence that the note was made in Ohio, is the fact that it is dated at Cincinnati. That is not sufficient. We do not know what Cincinnati that is. Hutchins v. Hanna and another, at this term.”
In the case of Hutchins v. Hanna, the Court held, Judge Stuart delivering the opinion, that where a- note sued on, was dated at New York, the state not being named, the Court could not judicially know that the city of New York, in the state of New York, was the place of date: He says, “there is a New York and a Philadelphia in this state.” Shaw and Wood followed this case. But if the record had shown, in Hutchins and Hanna, which New York was designated, as in this case it does which Cincinnati, the Court might have presumed to apply, if necessary, some geographical knowledge in the decision of the cause. Courts do not. take judicial notice of the laws, but they may of the general geography and history of other states. Ind. Dig. pp. 343, 595.
The form of the judgment is objected to. It was not *414excepted to below, nor objected to in the argument of the cause here. We see no objection to it. The money that may be derived from the sale of the property is to be paid into Court, to be subsequently applied under its direction. The sale may be of separate parcels under the judgment, and may cease when a sufficiency is sold to discharge the trusts. This direction may be yet obtained from the Court below, on motion, if desired.
Per Curiam. — The petition is overruled.
Counsel were the same as in the first hearing of the appeal.
The opinion on the petition for a rehearing of this cause was delivered on the 12th of March; hut for convenience, it is inserted here.