Winn v. Patterson
34 U.S. 663 (1835)

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U.S. Supreme Court

Winn v. Patterson, 34 U.S. 9 Pet. 663 663 (1835)

Winn v. Patterson

34 U.S. (9 Pet.) 663

Syllabus

Georgia. Ejectment for a tract of land in Franklin County, Georgia, held under a grant to Basil Jones, and conveyed by the attorney of Basil Jones to the defendant in error. See24 U. S. 11 Wheat. 380, 30 U. S. 5 Pet. 233. A copy of the grant was produced in evidence, and a copy of a power of attorney, dated 6 August, 1793, to Thomas Smith, authorizing him to sell the land, executed in the presence of Abram Jones, J.P., and Thomas Harwood. This copy was certified from the records of Richmond County, Georgia, and recorded 11 July, 1795. The original power of attorney was lost, and evidence of the loss, to introduce the copy, was given.

What evidence is sufficient to introduce secondary proof.

The Deputy Clerk of the Richmond County Court, who as such had recorded the original power of attorney, swore that he was well acquainted with Abram Jones, esquire, and his handwriting, during the year 1793, &c. That the record of the power of attorney from B. Jones to T. Smith, made by himself, while clerk of the court, is a copy of an original power of attorney, which he believes to have been genuine, for that the official signature of Abram Jones, must have induced him to commit the same to record, and that the copy of that said power of attorney, the one offered in evidence, had been compared with the record of the original made by himself, and is a true copy. Upon this evidence the

plaintiff offered the copy in evidence, and it was admitted by the circuit court. Held that there was no error in admitting this evidence.

At the time of the admission of this evidence, it was forty years old. Abram Jones, the subscribing witness to the original, was long since dead, and it did not appear that the other witness was alive. The original power did not exist, so that no evidence of the handwriting of the other witness could be given. After the lapse of thirty years from the execution of a deed, the witnesses are presumed to be dead, and this is the common ground for dispensing with the production of them, without any search for them, or proof of their death when the original deed is before the court for proof. This rule applies not only to grants of land, but to all other deeds where the instrument comes from the custody of the proper party claiming under it, or entitled to its custody.

The case of Patterson v. Winn, 5 Pet. 233, 30 U. S. 244, cited.

The rule is admitted, that a copy of a copy is not evidence. This rule properly applies to cases where the copy is taken from a copy, the original being still in existence, and, capable of being compared with it, for then it is a second remove from the original, or when it is a copy of a copy of a record, the record being in existence, and deemed by law as high evidence as the original, for then it is also a second remove from the original. But it is a quite different question whether it applies to cases of secondary evidence where the original is lost, and the record of it is not deemed in law as high as the original, or when the copy of a copy is the highest proof in existence. (In this case, the power of attorney was recorded in Richmond

Page 34 U. S. 664

County, and the land in controversy was in Franklin County.) Held that this is not the case of a mere copy of a copy verified as such, but it is the case of a second copy verified as a true copy of the original.

If a certified copy of a duly recorded deed is evidence, it is not necessary to produce the original book in which the same was recorded.

There are cases when grants and securities made contrary to the prohibitions of a statute, in part, are, upon the true construction of the intent of the statute, void in toto. But it is very different in cases standing merely on the common law. And therefore, at the common law, in order to make a grant void in toto for fraud or covin, the fraud or covin must infect the whole transaction or be so mixed up in it as not to be capable of a distinct and separate consideration.

A grant may be good for part of the land granted and bad as to other parts of the same. The case of Patterson v. Jenks, 2 Pet. 216, 27 U. S. 235, cited.

In February, 1820, an action of ejectment was instituted in the circuit court by the lessee of William Patterson against Elisha Winn and others, to recover a tract of land in the County of Franklin, in the State of Georgia. The case has been twice before this Court on a writ of error. 24 U. S. 11 Wheat 380, 6 Cond. 355, and 8 Pet. 233. Many of the material facts in the case will be found in the reports referred to.

At November term, 1833, of the circuit court, in pursuance of the mandate of this Court, a new trial of the case took place, and the plaintiff gave in evidence a grant from the State of Georgia to Basil Jones for 7,800 acres of land, including the lands in controversy in this suit, dated 24 May, 1787, with a plot of the survey of the said land annexed; a copy of a power of attorney from Basil Jones to Thomas Smith, Jr., purporting to be dated 6 August, 1793, authorizing Smith, inter alia, to sell and convey the tract of 7,800 acres, which power purported to be signed and sealed in the presence of Abraham Jones, J.P. and Thomas Harwood, Jr., and the copy was certified to be a true copy from the records of Richmond County, Georgia, and recorded there on 11 July, 1795, and to account for the loss of the original power of attorney of which they copy was offered and of the use of due diligence and search for the same, the plaintiff read the depositions of William Patterson and others, the particulars of which, and all the evidence in the case, are stated in the bill of exceptions. The defendant objected to the evidence, and

Page 34 U. S. 665

the court overruled the objection and allowed the paper to be read to the jury. To this decision of the court the defendant excepted, and the court sealed a bill of exceptions. In the further progress of the case, further evidence was offered, and certain instructions thereon asked of the court, which were refused, and the refusal of the court to give such instructions was the subject of another exception.

The jury, under the charge of the court, found a verdict for the plaintiff upon which judgment was entered, and the defendants prosecuted this writ of error.

The bills of exceptions were as follow.

The plaintiff, to maintain the issue on his part, gave in evidence a copy of a grant from the State of Georgia to Basil Jones, for seven thousand three hundred acres, bearing date on 24 May, 1787, together with a plat of survey of the said land thereto annexed (a copy of which plat and grant was in the record), and further offered to give in evidence to the jury a paper writing purporting to be a copy of a power of attorney from Basil Jones to Thomas Smyth, Jr., executed on 6 August, 1793, by Basil Jones, in the presence of Abram Jones, J.P., and Thomas Harwood, on which copy there was a certificate under the official seal of John H. Mann, Clerk of the Superior Court of Richmond County, stating that it was a true copy from the record in his office, entered on book, &c., on t11 July, 1795. A certificate from John H. Montgomery, one of the judges of the superior court, was annexed, stating that the officer who certified the copy was the clerk of the superior court, that his signature was entitled to full faith and credit, and that the attestation was in due form. The power of attorney authorized Thomas Smyth, Jr., to sell and dispose of seven thousand three hundred acres of land granted to Basil Jones, part of which is the land for which this ejectment was brought.

To account for the loss of the original power of attorney, the plaintiff below produced his affidavit stating his belief that the said original grant to Basil Jones had been lost or destroyed, This affidavit was made on 23 July, 1833; also the deposition of Andrew Fleming stating numerous and particular acts which he had performed to discover the said

Page 34 U. S. 666

originals. This deposition set forth diligent examinations for the lost papers in various places, and by inquiries of all such persons where and with whom the said papers might probably have been found, if they had not been altogether lost or destroyed.

Also the answers to interrogatories of Anna Maria Smyth, the widow of Thomas Smyth, relative to the lost papers, and stating that she had not been able to find them among the papers of her deceased husband, nor had she ever seen them, although she had the custody of all the papers left by her deceased husband.

And further to account for the loss of the said original power, Richard H. Wilde, Esq., was examined on interrogatories propounded to him, who stated that he had made diligent search for the said power of attorney with the assistance of the clerk in the clerk's office of the Superior Court of Richmond County, without success. That he had applied to the widow of Basil Jones for the paper and for the original grant, who was unable to find the same, and had advertised for the same for some months in two newspapers in Georgia; he had inquired for the same at the office of the Secretary of State at Milledgeville, and had searched the clerk's office at Columbia, where Basil Jones formerly resided, and also had made numerous other searches and inquiries. A copy of the advertisement for the lost papers was inserted in the examination.

The testimony of John H. Wilde, Esq., was also introduced, who proved, that by reputation Abram Jones was dead long since; that he compared the copy of the power of attorney offered in evidence with the record in the clerk's office of Richmond Superior Court, and it is a true copy. William Patterson, the plaintiff in the circuit court, he believed had never been in Georgia.

William Robertson deposed that he was deputy clerk and acted as such, of Richmond County in the year 1794, and clerk of the said court in 1795, and continued in that office till 1808 or 1809; that he was well acquainted with Abram Jones, Esq., and his handwriting, during the years 1793, 1794 and 1795, and before and afterwards. The deponent further states that the record of a power of attorney from B. Jones to Thomas Smyth, Jr., made by himself while clerk

Page 34 U. S. 667

of that court, is a copy of an original power of attorney which he believes to have been genuine, for that the official signature of Abram Jones must have induced him to commit the same to record, and that the copy of said power of attorney transmitted with deponent's depositions has been compared by himself with the record of the original made by himself in Richmond County and is a true copy.

The plaintiff then offered the paper purporting to be a copy of the power of attorney in evidence, which was opposed by the counsel for the defendants as not admissible evidence.

The counsel for the lessor of the plaintiff, further to prove the original power of attorney was made and executed, gave in evidence a deed executed by Thomas Smyth, Jr., alleging himself to be the attorney in fact of Basil Jones, dated 18 November, 1793, which conveyed to William Patterson, the lessor of the plaintiff, seven thousand three hundred acres of land in Franklin County, originally granted to Basil Jones, May 24th 1787; which deed also conveyed, or purported to convey, four other tracts of land situate in Franklin County, and contained the following recital:

"Whereas, the said Basil Jones, by a certain writing or letter of attorney, dated 6 August last past, did empower and authorize the said attorney (Thomas Smyth, Jr.) in his, the said Basil Jones', name, to sell and dispose of five certain tracts or parcels of land hereinafter mentioned, situate in Franklin County and State of Georgia aforesaid."

And the plaintiff offered in evidence proof that Abram Jones, who signed the original power of attorney, was, at the time he signed the same, a justice of the peace, of the County of Richmond, which was admitted by the defendants' counsel.

The plaintiff's counsel then insisted that the copy of the power of attorney was admissible in evidence, and should go to the jury, which was opposed by the defendants' counsel, but the court admitted the same, and the counsel for the defendants excepted to the said admission.

The plaintiff also offered three witnesses before the jury to prove the identity of the land in dispute, with a plat of the same given in evidence, and that the defendants were in possession of the part for which this suit was brought, and also the location of the land, which witnesses also proved that part of

Page 34 U. S. 668

the said land, which lay on the south and west of the said Appalachee River, was not, at the time of issuing the said grant, situate in the County of Franklin, as the grant purported it to be, but was without the then County of Franklin, and beyond the then temporary boundary line of the State of Georgia. Whereupon the attorney for the said defendants prayed the said justices to instruct the said jury that if the jury believed that Basil Jones, the deputy surveyor and grantee under whom the lessor of the plaintiff claims, by designating the stream marked in the original plat as

"the branch of the south fork of the Oconee River, instead of the south fork of the Oconee River, and by stating that the land was situate in the County of Franklin, when a large part of it lay without the County of Franklin and without the temporary boundary line of the State of Georgia, practiced a deception upon the governor of the state, and thereby induced him to issue the grant; that such grant is fraudulent and void, and cannot entitle the plaintiff to recover,"

which instruction the said justices refused to give to the said jurors. And the said attorney further prayed the said court to instruct the said jurors that a grant of land is an entirety, and that a grant void in part is void for the whole, which instruction the said justices also refused to give to the said jurors. And they further prayed the said court to instruct the said jurors that a concealment or misrepresentation of material facts, calculated to deceive the governor issuing the grant, renders the grant null and void in law, which instruction the said justices also refused to give to the said jurors, and the jurors gave their verdict against the said defendants upon the issue aforesaid.

Page 34 U. S. 672

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