Mullis v. Cavins

Blackford, J.

The board of commissioners of Washington county granted a ferry, on the east fork of White river, to Cavins. Mullís, as a party aggrieved by the grant, appealed to the Circuit Court, and the grant was confirmed.

On the • trial in the Circuit Court, Cavins offered in evidence a deed of conveyance to. him from one Cox for the *78 land on which he wished to have the ferry established. The deed was objected to, but was admitted.

H. P. Thornton and R. W. Thompson, for the plaintiff. J. W. Payne, for the defendant.

The objection to the admission of the deed was, that its execution was not proved. It was admitted in evidence, on the ground that there was attached to it the certificate of a justice of the peace, of its having been acknowledged before him by the grantor. The question, whether a deed to the party offering it, which appears to have been acknowledged and recorded, is admissible without proof of its' execution? was decided in the negative a few years ago in the case of White v. McDowell, Ind. Dist. Court, U. S., May term, 1833. We consider that decision to be correct. The same opinion, indeed, has been recently expressed by this Court. Bowser v. Warren, 4 Blackf. 522 . The Court erred, therefore, in admitting the deed in evidence.

It is contended, that it was not necessary for Gavins to show that he had a conveyance for the land, but that possession was, of itself, prima facie sufficient evidence of his title. It may be answered to this, that the record contains all the evidence given at the trial, and it does not appear that Gavins’ possession of the land was proved. But, independently of that circumstance, we do not think that the mere fact of possession, is prima facie sufficient evidence of title to the land, under the statute, to authorise the grant of a ferry to the possessor. Rev. Code, 1831, p. 259.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.