Petition for Re-hearing,
By Mr. T. P. Wilson.The appellants in this case respectfully ask the Court to reconsider the opinion herein rendered, and to grant them a ie-hearing.
In the opinion asked to be reconsidered it is said, that “this action of ejectment was brought on the demise of Caroline Gregory’s heirs, to recover land which had been conveyed in fee, by her deceased husband, by deeds made during the coverture, which professed to pass her title, but from a defect in their execution and authentication, were invalid as to her.” And again, that “these deeds all show, upon their face, that the were made in right of the wife.” Is not they Court mistaken in these statements? The only deed made before Drane settled "upon the land, and before his purchase from Allen, &c. bears date 20th December, 1796, and is made by and between William Gregory alone, of the one part, and Jere. miah Crabb of the other; to which is added Caroline Gregory’s relinquishment of dower; and there is nothing on the face of the deed showing or tending to show% that it was the intention of William Gregory to convey in right of his wife, or that it was understood by any of the parties to the deed, that he, Gregory,15 held in right of his wife, or that she had any title whatever to the land. The relinquishment of her dower would indicate the contrary; see record page 8, for copy of deed. There is no defect in the execution of this deed. The grantee, Crabb, did not, could not, from any thing contained in it, discover that Caroline had any title other than a potential dower right to the land. Crabb held and claimed the land as *625bis own, adversely to the world ; and although a partition was afterwards attempted, it is admitted to have been wholly ihsufficient to pass title to the respective parties, consequently Crabb was in adversely to Gaty Shropshire, alias Caty Daws, who was a feme sole at the time, and has so continued. She and Caroline being joint tenants, if the statute of limitations constituted a bar to one it was a bar to both. This doctrine is not contradicted. But the Court says, in their opinion, that as the entry was in right of Caroline, the bar cannot operate against her or her heirs. The deed referred to does not show that the entry was in her right. Is not'the conclusion, therefore, drawn from the assumption that it was illegitimate? ■
The Court has, in another part of their opinion, said that there was evidence in the cause to justify the jury in finding “that the defendants and those under whom they claim first entered upon and possessed the land in controversy under the deeds of Gregory, in right of his wife.” What testimony is it from which such inference could be drawn? The deed from Allen to Drane is dated 4th day of March, 1811; from Eddy and wife to Drane, 23d day of March, 1812; from Barbee to Drane, 1st day of July, 1811. This latter deed covers, certainly, twenty-eight acres of the land in controversy.
The deed from Crabb to Drane is dated January, 1820. The only presumption, therefore, arising from these deeds is, that Drane entered claiming adversely to Crabb and to Muse. There is then not one particle of testimony tending to show that Drane entered and took possession of the land in controversy, or any part of it, under the deed from Crabb. The presumption, from the date of the deed, is to the contrary. The price given by Drane to Crabb foi the land, as specified in the deed, shows that it was a purchase, by Drane, of a claim conflicting with the one under which he held the possession. A dollar and a half per acre for land in 1820, that would have then brought from twenty to thirty dollars, cannot be supposed to have been given in any other way than as a compromise of a claim, supposed by the parties to be worthless, but to avoid the trouble and expense of a law suit, the party in possession agreed to pay the price specified in *626the deed. Corroborative of this, it is proved that Drane, from the time he first settled, has continued to reside within his present boundary, and that he always claimed the land ás his own.
It is stated by the Court, that there was no error in refusing to exclude entirely the paper containing the report of the division, because that paper, in connection with other evidence before the jury, tends to show that a division line was, in fact, run by the agency of Gregory, &c.
And is it the law of this land, that because a paper tends, with other evidence, to show a particular fact in a cause, that therefore it is competent evidence, without any proof that it is genuine, that it is what it purports to be? There was no proof of the genuineness or authenticity of the copy of division but that found in the certificate of the Clerk. His certificate, it is believed, to the paper in question, was of no higher dignity than would have been the certificate of any private individual. The paper certified was not a copy of one which the law authorized to be recorded. The order of the County Court appointing the Commissioners, was void, because the requisitions of the statute, from which the_Court derives its authority to make the appointment, were not complied with by the Court. The law requires the appointment of six; the Court appointed but five; the requisite number to authorize a part to act was wanting. The act of a part, therefore, was nugatory, and the certificate of the Clerk that such acts had been done and performed by them, to> a paper specifying those acts, was without effect. The certificate of a Clerk, to a copy from the record in his office, is only authentic when the original is, by law, authorized to be recorded.
The County Court order, appointing the Commissioners, stands so awkwardly on the record in this cause that it is feared the Court may have overlooked it. It is on the 43d and 44th pages, after the order granting the appeal. It is insisted that the County Court had jurisdiction to appoint six Commissioners, but not to appoint five: (See Stat. Law, 1066.) In the case of Nesbit vs Gregory, (7 J. J. Marshall,) the Court say, where the power of the County Court is derived from a statue, “it® *627acts will be void if they be not conformable to the requisitions of the statute : see also 2 A. K. Marshall, 559, &c. &c. and the case of Newby and wife vs Perkins, (1 Dana, 440.)
May 11.
A re-heaiing is respectfully asked.
Response,
By Judge Marshall.1. Upon the first point suggested in the petition, it is sufficient to say, that the deed of 1796, from Gregory to Crabb, being the first deed between those parties, is expressly stated in the bill of exceptions, not to include any part of the land in contest, or rather, is expressly excluded-from being among the deeds which do cover said land. That deed, therefore, does not come into the present contest, and is not referred to in the statement of the case by the Court, as quoted in the commencement of the petition.
2. Upon the second point, with regard to the possession being taken under the deeds from Gregory — the Court has not undertaken to discuss the weight of the evidence, or to state its own deductions from it, but has merely stated, that there was enough to authorize the verdict. For this purpose, the fact that Crabb had an early possession; that he cbnveyed to Brane, and that Drane is in possession is, prima facie, sufficient, and must uphold the verdict, unless there be clear and uncontradicted evidence of a possession by Drane, prior to the deed from Crabb. There is no such evidence. The bill of exceptions expressly states, that the 40 acres conveyed by Allen, and within which it may be presumed Drane first settled and continues to reside, were upon the opposite side of the division line from that claimed by Gregory, and that the evidence did not show on which side the land embraced in the second conveyance by Allen was situated. It is not shown that the deed of Barbee passed any title ; and although the consideration of the deed from Crabb to Drane furnishes ground for the argument used in the petition, yet there is no proof of the actual value *628*anc^ as siated by the counsel, and the argument was doubtless weighed by the jury.
3. With regard to the copy of the record of division from the County Court. The objection taken, that altho’ the County Court may have had authority to appoint six Commissioners, of whom, by the statute, any two might act, their appointment of five is void, and did not authorize two or more to act, is, in our opinion, wholly untenable. The only plausible ground for questioning the entire validity of the division is, that it does not clearly appear that Mrs. Gregory’s sister and co-devisee, having a joint interest in the land, was a non-resident at the time : but it does appear, by a deed from her, introduced by the defendants, that a few years after the division she was a resident of Virginia; and from this fact, connected with the great lapse of time during which the land assigned to Mrs. Gregory by the division was claimed and held by Gregory and his alienees, the Court was, and still is of opinion, that the non-residence of the co-devisee, at the time the Commissioners acted, might be presumed, so as to bring the case witin the act of 1792, and support the division as valid under that act. But it was not deemed material to decide this point against the opinion of the Circuit Judge, because, even conceding that he had not erred as to the invalidity of the division, the copyijcertified by the Clerk was, and still is held to be admissible, to show, in connection with other proof, that a division had in fact been made, and to show what that division was. The division having been made under the authority of the County Court, and having been returned into that Court, and admitted to record by its order, became regularly a part of its records, whether the Commissioners had authority to act in the particular case or not; and a copy from the record, certified by the Clerk, is just as good evidence, and is therefore just as admissible, to prove the fact that such division actually was made, or to show what it was, as the original would have been; and on these grounds the opinion of the Court, in letting it remain before the jury, although he instructed them that it was not effectual to sever the title, was and stillfis sustained.
Wherefore, the petition is overruled.