1. The United States agreed to grant to the chief of an Indian
tribe two sections of land to be thereafter selected, and to convey
them by patent. After they had been selected, he aliened them by
deed in fee, with covenants of warranty. The patent was issued
after his death.
Held that the title to the sections
inured to and was vested in his alienee.
2. The courts of the United States take judicial notice of the
public statutes of the several States.
3. On proof of the loss of a deed executed and acknowledged in
Michigan, in conformity to the laws of that state, and recorded in
the county in Illinois, where the granted lands are situate, a duly
certified copy of the record, with the requisite certificate of
such conformity thereto annexed, is by the statute of Illinois
admissible in evidence.
4. The certificate of acknowledgment (
infra, p.
104 U. S. 564)
conforms to the laws of Michigan in force on the day of its
date.
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This was an action of ejectment to recover the possession of
Page 104 U. S. 563
fractional section 7, T. 37 N., R. 15 E., in Cook County,
Illinois. By the third article of the Treaty with the Potowatomies
of the State of Indiana and Michigan Territory, made on the 27th of
October, 1832, 7 Stat. 399, the United States agreed to grant and
to convey by patent to Ash-kum, one of the chiefs, and a reservee
under the treaty, two sections of land to "be selected, under the
direction of the President of the United States, after the lands
shall have been surveyed." Under this provision the lands now in
dispute were selected. The selection was approved by the President
on the 29th of March, 1837. Ash-kum died intestate in 1846. On the
3d of November, 1864, after his death, a patent was issued,
conveying the lands "unto . . . Ash-kum, and to his heirs and
assigns forever." Both parties claim under this patent: the
plaintiff in error, who was also plaintiff below, by deed from the
heirs of Ash-kum; and the defendant by deed with covenants of
warranty from Ash-kum himself, while in life, "to Louis De Salle,
of the Township of Niles, in Berrien County, Michigan Territory,"
bearing date Oct. 24, 1835.
All the objections to the defendant's title, insisted on in the
argument, except those relating to the proof of the deed of
Ash-kum, and to the refusal of the court to charge as requested by
the plaintiff upon the assumption of fraud in its procurement, are,
as we think, disposed of by
Doe v. Wilson,
23 How. 457, and
Crews v.
Burcham, 1 Black 352. Similar reservations and
grants under the same treaty were there involved, and it was held
that, when such a patent issued, the title to the lands vested in
those holding under any deed the patentee might have previously
made.
The principal controversy is as to the evidence admitted to
prove the deed. After proof of the loss of the original, a
certified copy from the records of Cook County was offered in
evidence. The record was made on the 31st of May, 1836, and the
copy showed a deed purporting to convey the land, signed by Ash-kum
with his mark, sealed, and attested by two witnesses. The
certificate of acknowledgment is as follows:
Page 104 U. S. 564
"TERRITORY OF MICHIGAN"
"
ss."
"BERRIEN COUNTY"
"Be it remembered, that on the twenty-fourth day of October,
anno Domini 1835, before me, Titus B. Williard, Esquire, one of the
justices of the peace for said county of Berrien, came the
above-named Ash-kum, an Indian chief, and acknowledged the
above-written indenture by him subscribed to be his free act and
deed, and desired that the same might be recorded as such according
to law."
"In testimony whereof, I have hereunto set my hand and seal the
day and year above written."
"TITUS B. WILLARD [L.S.]"
"
Justice of the Peace"
No certificate of any kind as to the official character of
Willard was added to the deed before it was recorded. Neither was
there before the record any certificate of any clerk of a court of
record of Michigan, under the seal of his court, to the effect that
the deed had been executed and acknowledged in conformity with the
laws of that State. There was, however, annexed to the copy of the
deed from the record the following certificate:
"OFFICE OF COUNTY CLERK, BERRIEN CO., MICH."
"BERRIEN SPRINGS, ___ 187_"
"EDWIN D. COOKE,
Clerk"
"STATE OF MICHIGAN"
"
ss."
"BERRIEN COUNTY"
"I, Edwin D. Cooke, clerk of said county and of the circuit
court therein, the same being a court of record and having a seal,
do hereby certify that the certificate of acknowledgment by
Ash-kum, an Indian chief, taken before Titus B. Willard, a justice
of the peace in and for said County of Berrien, on the
twenty-fourth day of October, A. D. 1835, as appears on the
certified copy of the deed hereto annexed, was executed according
to and in conformity with the laws of the Territory of Michigan, as
they existed at the time of taking such acknowledgment, and I
further certify that, as appears by the records of and in the
office of the register of deeds of said county of Berrien, that the
said Titus B. Willard was, at the time of taking such
acknowledgment, an acting justice of the peace in and for said
county of Berrien."
"In testimony whereof, I have hereunto set my hand and
affixed
Page 104 U. S. 565
the seal of said circuit court, at Berrien Springs, this second
day of January, A.D. 1878."
"EDWIN D. COOKE,
Clerk"
"SEAL OF THE CIRCUIT COURT OF BERRIEN COUNTY, MICH."
In this connection, the defendant proved by parol that Willard
was an acting justice of the peace of Berrien County at the date of
the certificate of acknowledgment, and they also put in evidence a
certificate of the Secretary of State of Michigan, of which the
following is a copy:
"STATE OF MICHIGAN"
"OFFICE OF THE SECRETARY OF STATE,
ss."
"I, E. G. D. Holden, Secretary of State of the State of
Michigan, do hereby certify that Titus B. Willard was, on the
seventh day of March, one thousand eight hundred and thirty-four,
duly appointed justice of the peace for the County of Berrien, as
appears from the records in this office, and that the term of
office fixed by law at the time of his appointment was three
years."
"In testimony whereof, I have hereunto set my hand and affixed
the great seal of the State of Michigan, at Lansing, this
twenty-fourth day of December, in the year of our Lord one thousand
eight hundred and seventy-seven."
"THE GREAT SEAL OF THE STATE OF MICHIGAN"
"E. G. D. HOLDEN,"
"
Secretary of State"
"By WM. CROSBY"
"
Deputy"
The defendant also put in evidence a statute of Michigan
"concerning deeds and conveyances," in force at the date of the
deed. Laws of Mich. 1833, p. 279. It provided that deeds of lands
in that territory, signed and sealed by the parties granting the
same, and signed by two or more witnesses, and acknowledged by the
parties, should be good and valid to pass title. The acknowledgment
required might be made before, among other officers, a justice of
the peace in any county in the territory, and a certificate of the
acknowledgment being indorsed on the deed, "and signed by the
person before whom the same was taken," the deed was entitled to be
recorded.
To the admission of this evidence the plaintiff in due time
objected, and his objections having been overruled, exceptions
Page 104 U. S. 566
were taken and made part of the record. The assignments of error
relate principally to these exceptions.
By the statutes of Illinois in force when the deed in question
was executed, a deed signed and sealed by the party making the same
was sufficient for the conveyance of any lands in that state.
Rev.Laws 1833, p. 129, sec. 1. To entitle such a deed to record,
however, an acknowledgment was required before one of certain
designated officers, among which were justices of the peace. If the
justice resided out of the state, it was required that there be
added to the deed a certificate of the proper clerk, "setting forth
that the person before whom such . . . acknowledgment was made was
a justice of the peace at the time of making the same."
Id., p. 138, sec. 1. Further statutes provide that
whenever a deed entitled to be recorded is lost, a certified copy
from the record may be used in evidence with the same effect as the
original. Rev.Stat. 1845, p. 103, sec. 25;
id., 1874, p.
279, sec. 36.
By the Revised Statutes of Illinois adopted in 1845 (Rev. Stat.
1845, p. 105, c. 24, sec. 16), it was enacted that a deed made out
of the state and within the United States should be entitled to
record when executed and acknowledged or proved in conformity with
the laws of the state, territory, or district where made,
"provided, that any clerk of a court of record, within such
state, territory, or district, shall, under his hand and the seal
of such court, certify that such deed or instrument is executed and
acknowledged or proved in conformity with the laws of such state,
territory, or district."
Then, in 1851, it was further enacted (Scate's Stat. 972, sec.
5; Sess.Laws, Feb. 15, 1871, p. 122)
"that a certified copy of any deed, . . . affecting any real
estate situate within this state which has been acknowledged
without this state, in conformity with the laws of the state where
such deed . . . was acknowledged, and which has been recorded in
the proper county in this state, shall be evidence in all courts
and places,
provided the party offering such certified
copy in evidence will exhibit with the same a certificate of
conformity, as provided for in the sixteenth section of chapter 24
of the Revised Statutes, notwithstanding said certificate of
conformity has never been recorded."
And again, in 1874, Rev.Stat. 1874, p. 276, c. 30, sec. 20,
"An
Page 104 U. S. 567
acknowledgment or proof may be made in conformity with the laws
of the state, territory, or district where it is made,
provided that if any clerk of a court of record, within
such state, territory, or district, shall, under his hand and the
seal of such court, certify that such deed or instrument is
executed and acknowledged or proved in conformity with the law of
such state, territory, or district, or it shall so appear by the
laws of such state, territory, or district, duly proved and
certified copies of the record of such deed, mortgage, or other
instrument relating to real estate, heretofore or hereafter made
and recorded in the proper county, may be read in evidence, as in
other cases of certified copies, upon such a certificate of
conformity to the laws of the state, territory, or district where
such deeds, mortgages, or other instruments were made and
acknowledged, being exhibited therewith or annexed thereto."
Such being the laws of the two states applicable to the facts of
this case, we proceed to the consideration of the specific
objections to the evidence. These may be stated generally, as
follows: 1. that the deed was not entitled to record in Illinois
because it was not accompanied by a certificate of the proper clerk
that the person before whom the acknowledgment was made was a
justice of the peace; and 2. that the deed was not executed in
conformity with the laws of Michigan.
It is conceded that the deed was not acknowledged in conformity
with the laws of Illinois, and it is no doubt true that when
recorded there was no law of that state which allowed a certified
copy to be used in evidence. It was, however, recorded in fact.
Consequently, under the later statutes, if actually executed in
conformity with the laws of Michigan, and that fact was properly
certified, the copy was admissible. There is no question but that
the deed, if executed, was in form sufficient to convey the land.
It was signed and sealed by the grantor, and was otherwise
sufficient as a conveyance between the parties under the laws of
Illinois. The whole controversy here is as to the proof of its
execution in conformity with the laws of Michigan, so as to make
the copy from the record competent evidence in place of the
original. The
Page 104 U. S. 568
laws of Illinois, therefore, requiring the certificate of a
clerk in certain cases as to the official character of a justice of
the peace, are unimportant. If in Michigan such a certificate was
not necessary to complete the execution of the deed, none was
required in Illinois. Certainly a deed may be said to be fully
executed when all has been done that is necessary to entitle it to
record, and for that purpose in Michigan the evidence of an
acknowledgment was complete when the officer before whom it was
taken signed a certificate to that effect indorsed on the deed. No
provision was made for any authentication of his official
character. His certificate, made, as it must necessarily be, under
the obligations of his official oath, was deemed sufficient.
Was, then, the deed executed in conformity with the laws of
Michigan? Under the laws of Illinois, that fact may be proven by
the laws of Michigan themselves, or by the certificate of the
proper clerk. There was probably no necessity for the proof of the
laws of Michigan which was made, as the courts of the United States
take judicial notice of all the public laws of the several states.
Owings v.
Hull, 9 Pet. 607;
Covington
Drawbridge Company v. Shepherd, 20 How. 227.
The deed was signed and sealed by the grantor, and it was
attested by two witnesses. Of that there can be no dispute. It had
indorsed upon it a certificate of acknowledgment signed by Titus B.
Willard, which set forth that he was one of the justices of the
peace of Berrien County, and that Ash-kum, who was named in the
deed as grantor, came before him and acknowledged its execution. It
is true the certificate does not state that the officer was one who
by law could take the acknowledgment of deeds, but it does state
what the office was, and as the statute makes it the official duty
of one holding such an office to take the acknowledgment of deeds,
the statement of his official character necessarily included a
statement of his official authority.
It is next objected that the certificate does not state that
Ash-kum was personally known to the officer. There is nothing in
the Michigan statute which requires any such statement, though
there is in Illinois. It is enough in Michigan if
Page 104 U. S. 569
the officer certifies to the fact of an acknowledgment by the
proper party. That has been done in this case. The statement is
that Ash-kum, an Indian chief, came before the officer and made the
necessary acknowledgment. This implies that the grantor was in some
way known to the officer, and that the acknowledgment was in fact
made. The making of the certificate was an official act, done under
the sanction of an official oath, and is presumptively true. The
laws of Michigan did not require the officer to state in his
certificate the evidence by which the identity of the person was
established in his mind. It was enough that he certified to the
fact.
The fact that the grantor was in this case an Indian is
unimportant. The duty of the officer was precisely the same in
respect to him as it was to other men. The officer must, in his
case as in others, be satisfied of the identity of the person, as
well as of the fact of an acknowledgment. That being done, it was
his duty to make the certificate. There is nothing in
Dewey v.
Campau, 4 Mich. 565, to the contrary of this. There the deed
was rejected because the officer in effect only certified that he
was told by an interpreter that an Indian woman made the
acknowledgment, no power having been given him to swear an
interpreter for such a purpose. Here the certificate is that an
acknowledgment was in fact made. That is enough until
impeached.
It is next objected that there was no proof that Willard was at
the time in fact a justice of the peace. The laws of Michigan
required no other evidence of that fact to entitle a deed to record
than the certificate of the officer himself. That was given in this
case, and in addition it was shown that he was acting as a justice
of the peace at the time. This makes it unnecessary to consider
whether the certificate of the secretary of state, of the fact of
his appointment, was competent evidence. The law did not require a
copy of his commission, or proof of his having taken the official
oath. It was sufficient that he was acting under color of right.
That fact was clearly shown. This disposes of the case, so far as
the proof of the deed was concerned. Having been executed in
conformity with the laws of Michigan, and recorded, a certified
copy, with the requisite certificate of conformity annexed, was
admissible
Page 104 U. S. 570
in evidence, according to the laws of Illinois, after proof of
the loss of the original.
In respect to the request which was made of the court to charge
the jury as to the effect of fraud in the procurement of the deed,
it is sufficient to say there is not a particle of evidence in the
record to sustain such a claim. If the jury had found for the
plaintiff on any such theory, it would have been the duty of the
court to set the verdict aside and grant a new trial. Consequently
there was no error in refusing the charge requested.
Judgment affirmed.