Pease v. Lawson

Dryden, Judge,

delivered the opinion of the court.

The counsel for the appellants presents four grounds of error for the reversal of the judgment of the Circuit Court in this case:

First — That certain documents, purporting to be deeds for the conveyance of the land in controversy, under which the plaintiff claimed, were not sealed instruments, and, therefore, inoperative to pass the title, and should have been rejected.

Second — That the certificate of proof of the letter of attorney from Halsey to Eager being based on the testimony of the plaintiff, as subscribing witness, was incompetent evidence for the plaintiff, and should have been rejected.

Third — The admission of the tax deed to Polk in evidence,' under whom the defendants claim, at the instance of the plaintiff. And,

Fourth — The misdirection of the jury on the question of the defence of the statute of limitations.

We will consider the several grounds in the order in which they are presented.

1. As to whether the documents objected to were sealed instruments: The originals not being before us, we are left to decide the question upon such descriptions of them as are furnished in the bill of exceptions. The decision of the question as to one will dispose of the objection to the otliei-s. We will examine the letter of attorney from Halsey to Eager. It concludes thus: “ In witness whereof, I have hereunto set my hand and seal,” &o. The bill of exceptions thus describes what is claimed to be the seal: “ It appeared on inspection that there was no scrawl by way of seal made with pen or pencil, but there was a small, round piece of paper, cut into scallops on the edges, attached to the end of the name, the usual place for a seal, with a wafer, but no impression made thereon.”

The common law seal, which was “ an impi-ession upon wax or wafer, or some other tenacious substance capable of being impressed,” has become well nigh obsolete in this and *40 many other States of the Union, the statutory “scrawl, by way of seal,” having almost entirely superseded it. Yet a seal of the one or the other sort is still requisite (and either is sufficient) to constitute a document a sealed instrument. In this case it is not pretended the statutory mode was adopted ; so that, unless what was done comes up to the common law standard, the letter 'of attorney is not a sealed instrument in the sense of the law. Does it, then, reach this standard ? The point of the objection is that no impression was made on the wafer, and so, although everything else had happened necessary to a valid sealing, yet the want of this crowning requisite was fatal. Now, as in the days of the greatest strictness, the common law prescribed no particular instrument with which to make the impression, nor fixed the breadth or length or depth it shotild be made, and as the execution of this paper was attended with the usual circumstances of deliberation, and as it was manifestly intended as a sealed instrument, and as the scalloped paper, when applied to the wafer and caused to adhere, must from a physical necessity have made an impression, we fell warranted, for the effectuation of the clear intentions of the parties, in regarding the scalloped paper a sufficient instrument, and the impression made by it to cause cohesion, a sufficient impression to comply with the requirement of the law.

2. The plaintiff derived title through a deed to him of date 27th November, 1857, made by John M. Eager, as attorney of Halsey, under a letter of attorney of the latter of date 24th September, 1855. Pease, the plaintiff, was the subscribing witness to the last named paper, and on the day of its date he appeared before a clerk of a court of record in the State of New York and proved the execution by Halsey, and thereupon the clerk endorsed thereon a certificate of the proof in due form. On the trial of the case the plaintiff was permitted to read the certificate as evidence of the execution of the letter of attorney, and the permission to read it is assigned for error, because, as is objected to by *41 the defendants, to permit the plaintiff to read the certificate based upon his own previous testimony, is to allow him to give evidence in his own behalf. We think the objection is not well taken. Our act regulating conveyances has provided that proof of the execution of instruments affecting real estate may be made by the subscribing witness before a proper officer, and when made and certified in accordance with the act it makes it efficacious in favor of all persons, without limit, having an interest for the purposes of evidence in the deed proved. If the proof had been made after the plaintiff had acquired his title, the question would present a widely different aspect; but as the reverse is true, we think the plaintiff as much entitled to the benefit of the certificate as if it had been based on the testimony of a stranger.

8. The defendants relied upon a continuous adverse possession of the premises in controversy for a period of-ten years before the commencement of the suit, to defeat the plaintiff’s title, and gave evidence tending to show such possession ; and by way of showing color of title, put in evidence the quitclaim deed of one John Polk to the defendants, the Iron Company, for the land in controversy, bearing date the 12th of November, 1847, under which the defendants took possession. The suit was commenced the 14th of December, 1857, ten years and a month after the defendants had accepted the deed from Polk, and the material inquiry on the trial of this issue was whether, although the defendants had had possession for ten years, their possession was during all that time adverse to the plaintiff; if not, the defence failed. As a fact from which the jury might infer the possession had not been adverse, after the close of the defendants’ evidence, the plaintiff, against the objections of the defendants, read a tax deed of the register of lands to John Polk for the same land, of date March 7,1849, reciting the sale of the land to Polk by the sheriff of Madison county, on the first day of October, 1846, for the taxes, interest and costs thereon. I think the deed was competent upon the question of the character of the possession.

*42 4. The law in force at the time of the tax sale to Polk secured to the owner of the land the right to redeem at anytime within two years after the sale by repaying to the vendee his purchase money, with interest; but if he neglected to redeem during the appointed interval, at the expiration of the time the vendee was entitled to a conveyance from the register of lands in pursuance to the previous sale by the sheriff. If, prior to the expiration of the period of redemption the defendants entered and held the premises in controversy in this case, claiming under said sale to Polk, their possession during the interval for redemption was not adverse to, but was consistent with, the plaintiff’s title. In such case, the defendants tacitly confess that their title is for a limited time defeasible by the act of the plaintiff — an admission inconsistent with an adverse possession.

A possession, of however long continuance, to be of any avail under the statute of limitations, must be adverse to the rightful owner; to be adverse it must be under a claim of title hostile to the right of the true owner. (Ang. on Lim. 400-401; Kirk v. Smith, 9 Wheat. 288 ; Jackson v. Porter, 1 Paine, C. C. R., 457.)

The law applicable to the defence of the statute of limitations was given to the jury by the court as favorably for the defendants as the evidence in the case would justify, and finding no error in the record of the Circuit Court, its judgment is affirmed.

Judge Bay concurs.