A letter from a deceased member of a family stating the pedigree
of the family and sworn by the wife to have been written by her
husband, who also swore in her deposition that the facts stated in
the letter had been frequently mentioned by her husband in his
lifetime is legal evidence, as is also the deposition of the
witness in a question of pedigree.
The rule of evidence that in questions of pedigree, the
declarations of aged and deceased members of the family may be
proved and given in evidence has not been controverted.
In a case where a controversy had arisen or was expected to
arise between parties concerning the validity of a deed against
which one of the parties claimed but no controversy was then
expected to arise about the heirship, a letter written stating the
pedigree of the claimants was not considered as excluded by the
rule of law which declares that declarations relating to pedigree,
made
post litem motam cannot be given in evidence.
Where the defendant had reserved a right to move the court to
exclude any part of the plaintiff's evidence which be might choose
to designate as incompetent, and it did not appear from the bill of
exceptions that he designated any particular piece or part of the
evidence as objectionable and moved the court to exclude the whole
or to instruct the jury that it was insufficient to prove title in
the lessors of the plaintiff, this could not be done on the ground
of incompetency unless the whole was incompetent. The court is not
bound to do more than respond to the motion in the terms in which
it is made. Courts of justice are not obliged to modify the
propositions submitted by counsel so as to make them fit the case.
If they do not fit, that is enough to authorize their
rejection.
The privy examination and acknowledgment of a deed by a
feme
covert so as to pass her estate cannot be legally proved by
parol testimony.
In Virginia and Kentucky, the modes of conveyance by fine and
common recovery have never been in common use, and in these states
the capacity of a
feme covert to convey her estate by deed
is the creature of the statute law, and to make her deed effectual,
the forms and solemnities prescribed by the statutes must be
pursued.
By the Virginia statute of 1748, "when any deed has been
acknowledged by a
feme covert, and no record made of her
privy examination, such deed is not binding upon the
feme
and her heirs." This law was adopted by Kentucky at her separation
from Virginia, and is understood never to have been repealed.
The provisions of the laws of Kentucky relative to the privy
examination of a
feme covert in order to make a conveyance
of her estate valid.
It is the construction of the act of 1810, that the clerks of
the county
Page 26 U. S. 329
court of Kentucky have authority to take acknowledgments and
privy examinations of
femes coverts in all cases of deeds
made by them and their husbands.
What the law requires to be done and appear of record can only
be done and made to appear by the record itself or an
exemplification of it. It is perfectly immaterial whether there be
an acknowledgment or privy examination in form or not if there be
no record made of the privy examination, for by the express
provisions of the law, it is not the fact of privy examination
only, but the recording of the fact which makes the deed effectual
to pass the estate of a
feme covert.
A deed from
Baron and
feme of lands in the
State of Kentucky, executed to a third person, by which the land of
the
feme was intended to be conveyed for the purpose of a
reconveyance to the husband, and thus to vest in him the estate of
the wife, was endorsed by the clerk of Woodford County Court,
"acknowledged by James Elliott, and Sarah G. Elliott, September 11,
1816," and was certified as follows:
"Attest, J. McKinney, Jr. Clerk, Woodford County, ss., September
11. 1813. This deed from James Elliott and Sarah G. Elliott his
wife to Benjamin Elliott, was this day produced before me and
acknowledged by said James and Sarah to be their act and deed, and
the same is duly recorded. John McKenney, Jr., C.C.C."
Held that subsequent proceedings of the Court of
Woodford County, by which the defects of the certificate of the
clerk to state the privy examination of the
feme (which,
by the laws of Kentucky, is necessary to make a conveyance of the
estate of a
feme covert legal) were intended to be cured
upon evidence that the privy examination was made by the clerk,
will not supply the defect or give validity to the deed.
If the court of a state had jurisdiction of a matter, its
decision would be conclusive, but this Court cannot yield assent to
the proposition that the jurisdiction of a state court cannot be
questioned where its proceedings were brought collaterally before
the circuit court of the United States.
Where a court has jurisdiction, it has a right to decide any
question which occurs in the cause, and whether its decision be
correct or otherwise, its judgments, until reversed, are regarded
as binding in every other court. But if it act without authority,
its judgments and orders are regarded as nullities. They are not
voidable, but simply void, and form no bar to a remedy sought in
opposition to them, even prior to a reversal. They constitute no
justification, and all persons concerned in executing such
judgments or sentences are considered in law as trespassers.
The jurisdiction of any court exercising authority over a
subject may be inquired into in every other court when the
proceedings of the former are relied on and brought before the
latter by a party claiming the benefit of such proceedings.
The jurisdiction and authority of the courts of Kentucky, are
derived wholly from the statute law of the state.
The Clerk of Woodford County Court has no authority to alter the
record of the acknowledgment of a deed at any time after the record
is made.
William Peirsol, and Lydia Peirsol, his wife, Ann North, Jane
North, Sophia North, Elizabeth F. P. North, and William
Page 26 U. S. 330
North, citizens of Pennsylvania, heirs of Sarah G. Elliott,
commenced their action of ejectment against James Elliott the
younger and others, the plaintiffs in error, in the Circuit Court
for the District of Kentucky to recover the possession of 1,200
acres of land, part of 2,000 acres patented to Griffin Peart.
The plaintiffs proved that upon the division of the whole body
among the heirs of Griffin Peart, the 1,200 acres in contest was
allotted to Sarah G. Peart, one of the heirs, and that she was
seized thereof in severalty. Sarah G. Elliott, formerly Peart, she
having intermarried with James Elliott, died about 1822, without
issue; Francis Peart, and Le Roy Peart, brothers of Sarah Elliott,
died shortly before her, also without issue. The boundaries of the
1,200 acres and the possession by the defendants were not
controverted.
The plaintiffs below claimed the premises as the heirs of Sarah
G. Elliott, formerly Sarah G. Peart, and they sought to establish
their heirship by the deposition of Mrs. Braugh, widow of Robert
Braugh, who swears that the letter annexed to her deposition,
addressed to William Peirsol, Philadelphia, is in the handwriting
of her deceased husband. She also states that she frequently heard
him speak of his family connections, and has always understood from
him, that the late Mrs. Mary North, formerly Mary Peart, and the
late Mrs. S. G. Elliott were cousins, both on the side of the
father and mother; and that the statements in the letter correspond
with the other statements she heard him make upon the subject of
the pedigree of the two ladies, which letter proves the present
plaintiffs to be the only heirs of Mrs. Sarah G. Elliott at the
time of her death. Other depositions were read to the same
effect.
On 12 June, 1813, James Elliott and Sarah G. Elliott executed a
deed by which the premises in question were expressed to be
conveyed to Benjamin Elliott, under whom the plaintiffs in error
claimed to hold the same.
The defendants below moved the circuit court to instruct the
jury that the evidence adduced by the plaintiffs to establish their
heirship to Sarah G. Elliott was insufficient and that the same
ought to be excluded. The court refused so to do, but on the
contrary instructed the jury that the said evidence, if believed by
the jury, was
prima facie testimony that the lessors of
the plaintiffs were the legal heirs of the said Sarah Peart, alias
Sarah G. Elliott.
In relation to the deed of 12 June, 1813, to Benjamin Elliott,
it was contended below that Sarah G. Elliott never did execute the
same in the manner described and required by law, and that the fee
simple estate of Mrs. Elliott, did not pass thereby. The provisions
of the law relative to the privy examination
Page 26 U. S. 331
of a
feme covert by the officer, the clerk of the
court, or in open court, and to the recording thereof were alleged
not to have been complied with, and consequently the estate of Mrs.
Elliott did not pass by the conveyance to Benjamin Elliott. It was
also claimed on the part of the plaintiffs in error that if a privy
examination and acknowledgment were made, it was not recorded, and
unless recorded, no title passes to divest the title of the
feme covert. The circuit court decided this point in favor
of the defendants in error, and the case was brought up upon a bill
of exceptions.
Page 26 U. S. 333
MR. JUSTICE TRIMBLE delivered the opinion of the Court.
This is an action of ejectment, brought in the Circuit Court for
the District of Kentucky by the lessors of the defendant in error
and against the plaintiffs in error, who were defendants in the
court below.
The lessors of the plaintiff, in that court, claimed the land in
controversy as heirs at law of Sarah G. Elliott, formerly Sarah G.
Peart, deceased, who in her lifetime had intermarried with the
defendant, James Elliott. The defendants claimed by virtue of a
deed of conveyance, made by James Elliott and Sarah G. Elliott his
wife in her lifetime to Benjamin Elliott and a deed reconveying the
land from Benjamin Elliott to James Elliott.
On the trial of the general issue between the parties, the
defendants took a bill of exceptions to certain opinions of the
court in overruling motions made by the defendants for
instructions, &c., and in granting instructions to the jury,
moved by the
Page 26 U. S. 334
plaintiff in the progress of the trial, and, a verdict and
judgment having been rendered against the defendants, they have
brought the case before this Court by writ of error.
The bill of exceptions states
"That upon the trial of this case, the plaintiffs read as
evidence a patent from the commonwealth to Griffin Peart, dated 1
May, 1781, covering the land in controversy, (which patent is made
part of the bill of exceptions) and sundry depositions taken and
filed in the cause (also made part of the bill of exceptions) and
proved that upon a division of the land granted to Griffin Peart by
said patent, the part in contest was allotted to the late Sarah G.
Elliott, formerly Sarah G. Peart, and that she was seized thereof
in severalty; that the said Sarah G. Elliott died before the
institution of this suit, about the year 1822, without issue, and
that the defendants were in possession of the land allotted to her
as aforesaid. And after the plaintiffs had closed their evidence,
touching their derivation of title, the defendants, as they had
reserved the right to do, moved the court to instruct the jury that
the evidence adduced on the part of the plaintiffs was insufficient
to prove title in the lessors of the plaintiffs, and that the same
ought to be rejected, but the court refused so to instruct or to
exclude the evidence, and on the contrary instructed the jury that
the said evidence, if believed by them, was
Prima facie
evidence that the lessors were the legal heirs of the patentee,
Griffin Peart, &c. To which opinion of the court in all its
parts the defendants except."
"The defendants then gave in evidence the deed of conveyance
from Sarah G. Elliott and her husband to Benjamin Elliott, dated 12
June, 1813, for the land in contest and the deed from Benjamin
Elliott to the said James, together with all the endorsements upon
and authentications annexed to the first mentioned deed, which
endorsements and authentications are in the following words and
figures, to-wit:"
" Acknowledged by James Elliott & Sarah G. Elliott.
September 11, 1813."
"Attest -- J. McKINNEY, JR., Clerk"
"Woodford County, sct. September 11, 1813"
" This deed from James Elliott and Sarah G. Elliott his wife to
Benjamin Elliott was this day produced before me and acknowledged
by said James and Sarah to be their act and deed, and the same is
duly recorded."
"JOHN McKINNEY, JR. C.W.C.C."
" Woodford County, sct. November County Court, 1823"
" On motion of Benjamin Elliott, by his attorney, and it
appearing to the satisfaction of the court by the endorsement on
the deed from James Elliott and wife, to him under date of 12 June,
1813, and by parol proof that said deed was
Page 26 U. S. 335
acknowledged in due form of law by Sarah G. Elliott, before the
clerk of this court, on 11 September, 1813, but that the
certificate thereof was defectively made out, it is ordered that
the said certificate be amended to conform to the provisions of the
law in such cases, and that said deed and certificate, as amended,
be again recorded. Whereupon said certificate was directed to be
amended, so as to read as follows, to-wit:"
" Woodford County, sct. September 11, 1813"
" This day the within named James Elliott and Sarah G. Elliott,
his wife, appeared before me, the clerk of the court of the county
aforesaid, and acknowledged the within indenture to be their act
and deed, and the said Sarah, being first examined privily and
apart from her husband, did declare that she freely and willingly
sealed the said writing, which was then shown and explained to her
by me, and wished not to retract it, but consented that it should
be recorded. The said deed, order of court, and certificate, as
directed to be amended, are all duly recorded in my office."
"Attest -- JOHN McKINNEY, JR., C.W.C.C."
" It was proved by John McKinney, a witness examined on the part
of the defendants, that the endorsement made on the back of the
deed, from Elliott and wife, to Benjamin Elliott, in these words,
to-wit: 'Acknowledged by James Elliott and Sarah G. Elliott.
September 11, 1813.'"
"Attest -- J. McKINNEY, Clerk"
" Was in the handwriting of the said clerk of the Woodford
County Court, and was the minute made by him at the time said deed
was acknowledged, and it was also proved that the certificate of
the acknowledgment and recording of the said deed, endorsed on said
deed, was at some subsequent time written and drawn out by a deputy
of said clerk from the said minute. And the clerk deposed that
although he had not a particular recollection of all the facts,
that he remembered the circumstance of James Elliott and his wife
coming to his office to acknowledge said deed; that he knew what
his duty required in such cases, and that the acknowledgment and
privy examination and an explanation of the instrument to her, was
requisite in order to its being recorded as to her. And that he did
not doubt he had done his duty in this instance, and that said deed
had been acknowledged by Mrs. Elliott in all respects. Other parol
evidence was given conducing to prove that in point of fact the
said deed from Elliott and his wife was regularly acknowledged by
the wife before the clerk, upon his privy examination of her."
"The said McKinney, upon cross-examination, further proved that
after the said deed and certificate of the acknowledgment
Page 26 U. S. 336
thereof had been recorded, and in the lifetime of Mrs. Elliott,
he had, at the instance of her counsel, made out a true copy of the
record of said deed and certificate of the acknowledgment thereof
by Elliott and wife as they were then upon the record, which copy
the plaintiff gave in evidence; that after the death of Mrs.
Elliott, application was made to him by the counsel of the
defendants to alter the certificate of the acknowledgment of the
deed from Elliott and wife to Benjamin Elliott so as to state her
privy examination, but which he declined. It was also proved that
the deed had remained in the possession of the clerk from the time
of its first acknowledgment till after the certificate ordered by
the county court was made upon it."
"After the defendants had closed the evidence on their side,
which was as above stated, the court, upon the motion of the
plaintiffs' counsel, instructed the jury that the parol evidence
which had been given on the part of the defendants conducing to
show a privy examination of Mrs. Elliott was incompetent for that
purpose; that a privy examination and acknowledgment of a
feme
covert, so as to pass or convey her estate could not legally
be proved by parol testimony, but by record, and that although they
might believe from the parol evidence that said deed had been
acknowledged by Mrs. Elliott in all due form of law upon her privy
examination and all proper explanations given to her, yet it
constituted no defense to the action unless such privy examination
had been duly certified and recorded."
"The court further instructed the jury that the certificate of
the acknowledgment of said deed by Elliott and wife and the after
certificate, by order of the county court, of her privy examination
were not sufficient in law, to pass her estate because the first
shows no privy examination, and the county court had no
jurisdiction to order the second to be made. To all which opinions
and decision of the court the defendants except, &c."
It is argued by the learned counsel in this Court that the
motion of the defendants to exclude the evidence adduced on the
part of the plaintiffs or to instruct the jury that it was
insufficient to prove title in the lessors of the plaintiff ought
to have been granted. The argument in this Court has not put the
question on the ground that, taking the whole of the plaintiff's
evidence together touching the derivation of the title of the
lessors of the plaintiff, it is insufficient to deduce the title to
them down from the patentee, though Sarah S. Elliott, who was
seized thereof in severalty.
We have, however, reviewed the evidence with a view to that
question, and are satisfied it is sufficient for that purpose.
The ground of argument relied on here is that a part of the
Page 26 U. S. 337
evidence was incompetent and inadmissible. It is said that so
much of the depositions as detail Mrs. Elliott's conversations
concerning the manner of her acknowledgment of the deed and so much
of Mrs. Braugh's deposition as speaks of the letter of her deceased
husband, and the letter itself, made part of her deposition were
incompetent and ought to have been rejected, and that the
reservation of the right to move to reject the evidence, admitted
in the bill of exceptions, shows that the defendants' counsel had
the right to insist upon the rejection of any part of the evidence
as incompetent. The argument admits of several answers deemed
satisfactory. Mrs. Elliott's conversation, detailed in some of the
depositions, in relation to the defendant's deed can by no fair
construction be brought within the motion. It related not to the
title of the lessors of the plaintiff, but to supposed defects in
the title of the defendants, and to use the language of the bill of
exceptions, it was the plaintiff's evidence "touching the
derivation of the title of the lessors of the plaintiff" which the
defendants moved to exclude. Besides, at that stage of the case,
the defendants had not introduced the deed, and when we come to
consider the defendants' title after the deed was introduced, it
will appear that Mrs. Elliott's declarations could in no manner
have influenced the verdict, and were therefore harmless. We are
not prepared to admit that Mrs. Braugh's letter on the subject of
the family pedigree, proved by her evidence and made part of her
deposition, was not competent evidence to be left to the jury upon
a question of pedigree or heirship. She was an aged member of the
family, and traces back the pedigree, and several branches of the
family, for about seventy years.
The rule of evidence that in questions of pedigree the
declarations of aged and deceased members of the family may be
proved and given in evidence has not been controverted. But it is
argued that this rule is qualified by this exception -- that
declarations made
post litem motam cannot be given in
evidence, and it is insisted this case comes within the exception,
for although no suit had been commenced, yet a controversy had
arisen or was expected to arise.
We doubt the application of the exception to this case. A
controversy had arisen or was expected to arise between the heirs
of Mrs. Elliott and the defendants concerning the validity of the
deed of Mrs. Elliott, made while she was a
feme covert.
But it does not appear that any controversy had arisen or was
expected to arise about who were her heirs. The
lis mota,
if it existed, was not who were heirs, but whether Mrs. Elliott's
deed made a good title against the heirs, whoever they might be. It
is not necessary, however, to give any
Page 26 U. S. 338
positive opinion on this point, as other grounds exist upon
which the motion was rightfully overruled.
It is conceded that the defendants' counsel had a right to move
the court below to exclude any part of the plaintiff's evidence
which he might choose to designate as incompetent, but it is not
admitted that he exercised that right. It does not appear from the
bill of exceptions that he designated any particular piece or part
of the evidence as objectionable and moved the court to exclude it.
But on the contrary, resting his case upon the assumption that the
whole evidence of the plaintiffs, taken together, was either
incompetent or insufficient, he moved the court either to exclude
the whole or to instruct the jury that the whole was insufficient
to prove title in the lessors of the plaintiff. This could not be
done on the ground of incompetency unless the whole was
incompetent, which is not pretended; the court was not bound to do
more than respond to the motion in the terms in which it was made.
Courts of justice are not obliged to modify the propositions
submitted by counsel so as to make them fit the case. If they do
not fit, that is enough to authorize their rejection. We have
already said the evidence, taken all together, was sufficient to
prove title in the lessors of the plaintiff. If any part of it was
incomplete, the court might, on a general motion to exclude the
whole, have excluded such parts, but the court was not obliged to
do so. There is therefore no error in the decision of the circuit
court overruling the motion of the defendants nor in the
instructions given to the jury upon that motion.
We now proceed to an examination of the questions arising out of
the instructions given to the jury on the motion of the plaintiffs
in relation to the deed of James Elliott and Sarah G. Elliott his
wife to Benjamin Elliott, set up by the defendants in their
defense.
The general question involved in the first instruction is can
the privy examination and acknowledgment of a deed by a
feme
covert so as to pass or convey her estate be legally proved by
parol testimony? We hold that they cannot.
By the principles of the common law, a married woman can, in
general, do no act to bind her; she is said to be
sub potestate
viri, and subject to his will and control. Her acts are not
like those of infants and some other disabled persons, voidable
only, but are in general absolutely void
ab initio.
In Virginia and Kentucky, the solemn modes of conveyance by fine
and common recovery have never been in common use, and in those
states the capacity of a
feme covert to convey her estate
by deed is the creature of statute law, and to make her deed
effectual, the forms and solemnities prescribed by the statutes
must be pursued.
Page 26 U. S. 339
The Virginia statute of 1748, ch. 1st, after making provisions
to enable
femes coverts to convey their estates by deed,
upon acknowledgment and privy examination, according to prescribed
forms, in the 7th section, U.S. has these words:
"Whereas it has always been adjudged that where any deed has
been acknowledged by a
feme covert and no record made of
her privy examination, such deed is not binding upon the
feme and her heirs."
The 8th section enacts and declares "That the law herein shall
always be held according to the said judgments, and shall never
hereafter be questioned," &c.
This law was adopted by Kentucky at her separation from
Virginia, and is understood never to have been repealed.
The 4th section of the Kentucky statute of 1796,
see 1
Litt.Laws 569, provides for the privy examination and
acknowledgment of
femes covert in open court, and where
they cannot conveniently attend authorizes a commission to issue to
two justices to take and certify the acknowledgment and privy
examination, and declares that
"In either case, the said writing acknowledged by the husband,
and proved by witnesses to be his act, and recorded, together with
such privy examination and acknowledgment, &c., shall not only
be sufficient to convey or release any right of dower, &c., but
be as effectual for every other purpose as if she were an unmarried
woman."
The 1st section of this act authorizes clerks of the county
courts, general court, and court of appeals to take, in their
offices, the acknowledgment or proof of the execution of deeds and
to record them upon acknowledgments or proofs so taken by
themselves, but did not authorize them to take the acknowledgment
and privy examination of
femes coverts.
But by a subsequent statute, clerks are authorized to take in
their offices the "acknowledgment of all deeds, according to law."
And the act of 1810, 4 Litt.Ky.Laws, 165, which authorizes the
clerk of one county to take and certify the acknowledgment of a
deed to be recorded by the clerk of another county where the land
lies, &c., declares that
"if the due acknowledgment, or privy examination of the wife,
&c., shall have been taken, &c., by the clerk receiving the
acknowledgment of the deed, &c., and that being duly certified
with the deed, and recorded, shall transfer such wife's estate,
&c."
as fully, as if the examination had been made by the court, or
the clerk in whose office the deed shall be recorded.
It is by construction of these last recited laws that the clerks
are held in Kentucky to be authorized to take the acknowledgments
and privy examinations of
femes coverts in all cases of
deeds made by them and their husbands.
The Kentucky statutes above recited show clearly that the
legislature of that state has never lost sight of the principle
Page 26 U. S. 340
declared by the Virginia statute of 1748: "That when any deed
has been acknowledged, by a
feme covert, and no record
made of her privy examination, such deed is not binding upon the
feme and her heirs."
What the law requires to be done and appear of record can only
be done and made to appear by the record itself, or an
exemplification of the record. It is perfectly immaterial whether
there be an acknowledgment or privy examination in fact or not if
there be no record made of the privy examination, for by the
express provisions of the law, it is not the fact of privy
examination merely, but the recording of the fact which makes the
deed effectual to pass the estate of a
feme covert.
It is now only necessary to state the second instruction given
to the jury on the plaintiffs' motion to manifest its entire
correctness. It was
"that the first certificate of the acknowledgment and recording
of the deed of Elliott and wife was not sufficient in law to pass
her estate, because it showed no privy examination of the
feme."
The last instruction given by the court to the jury presents a
question of more difficulty. It is
"That the after certificate made by order of the county court of
her privy examination is insufficient in law to pass her estate,
because the county court had no jurisdiction or authority to order
the said second certificate to be made."
It is argued that the circuit court of the United States had no
authority to question the jurisdiction of the County Court of
Woodford County, and that its proceedings were conclusive upon the
matter, whether erroneous or not.
We agree that if the county court had jurisdiction, its decision
would be conclusive. But we cannot yield an assent to the
proposition that the jurisdiction of the county court could not be
questioned when its proceedings were brought collaterally before
the circuit court. We know nothing in the organization of the
circuit courts of the Union which can contradistinguish them from
other courts in this respect.
Where a court has jurisdiction, it has a right to decide every
question which occurs in the cause, and whether its decision be
correct or otherwise, its judgment, until reversed, is regarded as
binding in every other court. But if it act without authority, its
judgments and orders are regarded as nullities. They are not
voidable, but simply void, and form no bar to a recovery sought,
even prior to a reversal, in opposition to them. They constitute no
justification, and all persons concerned in executing such
judgments or sentences are considered in law as trespassers.
This distinction runs through all the cases on the subject, and
it proves that the jurisdiction of any court exercising
Page 26 U. S. 341
authority over a subject may be inquired into in every court
when the proceedings of the former are relied on and brought before
the latter by the party claiming the benefit of such
proceedings.
It is well known that the jurisdiction and authority of the
county courts of Kentucky are derived wholly from the statute law
of the state. In argument, we were referred to no statute which was
supposed, either in terms or by fair construction, to confer upon
the County court any supervising or controlling power over the acts
of the clerk in taking, in his office, the acknowledgment of a deed
or in recording it upon an acknowledgment there taken by him. We
have sought in vain for such a provision, and it is believed none
such exists. No such supervising and controlling power can result
to the court, from the general relations which exist between a
court and its clerk, for in this case the statutes confer upon the
clerk in his office a distinct, independent, personal authority to
be exercised by him upon his own judgment and responsibility. We
think, therefore, with the circuit court that the county court had
no jurisdiction or authority to order the after certificate of Mrs.
Elliott's privy examination to be made and recorded.
But the argument, which seemed to be relied on most confidently
by the learned counsel is that the order of the county court may be
disregarded, and the amendment considered as an amendment made by
the clerk, of his own authority, and that the clerk was authorized
to amend his own certificate and record at any time.
It would be difficult to maintain that the second certificate,
or amendment as it is called, could rightfully be regarded as the
clerk's own act, independent of the order of the county court, it
appearing that he refused to do the act until the order was made.
But be it so.
Had the clerk authority to alter the record of his certificate
of the acknowledgment of the deed at any time after the record was
made? We are of opinion he had not.
We are of opinion he acted ministerially, and not judicially, in
the matter. Until his certificate of the acknowledgment of Elliott
and wife was recorded, it was in its nature but an act
in
pais, and alterable at the pleasure of the officer. But the
authority of the clerk to make and record a certificate of the
acknowledgment of the deed was
functus officio as soon as
the record was made. By the exertion of his authority, the
authority itself became exhausted. The act had become matter of
record, fixed, permanent, and unalterable, and the remaining powers
and duty of the clerk were only to keep and preserve the record
safely.
If a clerk may, after a deed together with the
acknowledgment
Page 26 U. S. 342
or probate thereof have been committed to record, under color of
amendment, add anything to the record of the acknowledgment, we can
see no just reason why he may not also subtract from it.
The doctrine that a clerk may at any time, without limitation,
alter the record of the acknowledgment of a deed made in his office
would be, in practice, of very dangerous consequence to the land
titles of the county, and cannot receive the sanction of this
Court.
It is the opinion of this Court that there is no error in the
judgment and proceedings of the circuit court, and the same are
Affirmed with costs.
