Jackson, ex dem. Parker and others, against Phillips

*Jackson, ex dem. Parker and others, against Phillips. NEW YORK May, 1828. The statutes ¿nTch.’u,' i B- L- 209> 211,) requiring certain deeds, &c. of land in the military tract to he deposited in the Albany clerk’s office, by May 1st, 1795, or that they should be void as against subsequent purchasers, &c. docs not extend to the grantor or his heirs. A deed not deposited, is good as against him and his heirs. A deed relating to these lands was found in the clerk’s office gf Cayuga, in December, 1826, dated June 4th, 1790, but not recorded there. It was acknowledged June 26th, 1790, and endorsed as recorded in the secretary’s office, April 18th, 1795 j and endorsed also generally, <( Registered April 29th, 1795.” Semble, that it shall be taken, pidma facie, to have been deposited in the clerk’s office at Albany, before the 1st of May, 1795. Ejectment for lot number 75, Granby, (formerly Hannibal,) tried on the 29th day of December, 1826, at the Oswego circuit, before Williams, Circuit Judge. 6 ’ b At the trial, the plaintiff gave in evidence the exemplifies tion of a patent-from the people, &c. to Abraham Barnes, of #the lot in question, bearing date July 9th, 1790, and which passed the secretary’s office on the same day. He then introduced as a witness Elizabeth Barber, who testified that she was the wife of Abraham Barnes, (the patentee,) who was a.soldier in the-revolutionary war ; that she became acquainted with him in 1784, was married to him the same year, and had by him five children, one of whom died without issue in 1811. The others, viz. David Barnes, Elizabeth Barnes, Joseph Barnes and Loisa Baker, the wife of Isaac Baker, (all lessors of the plaintiff,) are now living. That Abraham Barnes died on the lot in question in August, 1806. No attempt was made to show title in Parker, the other lessor. The form of a certificate of the proof to be endorsed on a deed, in order to make it evidence, and entitle it to be recorded, under the act of 1788. (Sess. 11, ch. 44. 2 Greenleaf, 99.) It need not state that the officer knew the witness, or that the witness knew the grantor. A deed of military land having been duly acknowledged and recorded in April, 1795, (not according to the act of 1813,) so as to make it evidence according to the existing laws in 1795, may be read in evidence now, though not acknowledged or recorded pursuant to the act of 1820, (sess. 43, ch. 245, § 3,) and though that act literally prohibits all deeds dated before 1797 from being evidence, unless acknowledged or proved according to the statute of 1813, (sess. 36, ch. 97, § 1.) Form of a certificate of acknowledgment to be endorsed on a deed under the statute of 1788, in order make it evidence, and entitle it to be read, where the grantor is unknown to the officer taking the acknowledgment. The name of the witness proving the identity of the grantor need not be given in the certificate.' Conceded by the counsel who first objected the want of such name. Note, the act does not, in terms, require any proof of identity. Form of a certificate of acknowledgment to be endorsed on a deed, in order to make it evidence, under the act of 1813, [sess. 36, ch. 97, § 1,) taken before a first judge of the degree of counsel in the supreme court. The certificate of acknowledgment taken before a county judge of the degree of counsel, &c. proves, per se. the deed out of his county, and entitles it to be recorded there, without the certificate being authenticated by the clerk of the county in which the judge resides. Proof hy comparison of hands, i. e. the juxtaposition of two writings, in order to ascertain whether both were written by the same person, is inadmissible. Witnesses cannot testify from such comparison alone, nor can the writings be submitted to the juiy. Form of a certificate of acknowledgment to be endorsed on a deed, in order to make it evidence under the act of 1813. It is not necessary, in such certificate, that the deed should be proved by the original subscribing witness. And where there was only subscribing one witness, and he did not prove the deed, but the party to the deed acknowledged the execution before another witness at a subsequent period, who then subscribed Ms name as a witness; held, that he might prove these circumstances before the judge, this being equivalent to an original execution in tho presence of the witness. These matters appearing in the certificate, held sufficient, and that the deed might be read. Semble, that adverse possession of land by an alleged grantee, in a deed, and those claiming under him, though not continued 20 years is entitled to some weight in showing the genuineness of the deed against proof to impeach it. Otherwise, it seems, where the question is simply one of adverse possession, set up to bar an entry under the statute of limitations, and there, it seems, where there is a succession ol tenants, the chain must be unbroken for 20 years. The plaintiff then proved the defendant, Asa Phillips, in possession of the lot at the commencement of the suit, which was at August term, 1825, and rested his cause. The defendant also claimed title under Abraham Barnes, (the patentee,) who was a gunner in the New York regiment of artillery in the service of the United States, during the revolutionary war. To support his claim, he offered in evidence a quit-claim deed from Abraham Barnes, described in the deed as a gunner in the late second or New York regiment of artillery in the service of the United States of America, to Theodosius Fowler, of the city of New York, conveying to Fowler, his heirs, &c., all the right, title, interest, claim and demand which the said Barnes then had, and all the right, title, interest, claim and demand which he, his heirs, executors or administrators at any time thereafter might have to all the land which he was entitled to, or his representatives might be entitled to, from the state of New York, for his services in the army of the United States of America, as a gunner, for and during the war with Great Britain'. There was also contained in the same instrument a power of attorney from Barnes to Fowler, to procure the land by such means as might be necessary, but to be for the sole benefit of Fowler. This deed bore date the 4th day of June, 1790, and purported to have been executed in the presence of Isaac Bronson and Jonathan Wells, as witnesses. On the back of deed was the following certificate of proof: *“ State of New York, ss. Be it remembered, that on the 26th day of June, 1790, before me, James M. Hughes, one. of the masters in chancery, personally came and appeared Isaac Bronson, one of the subscribing witnesses to the execution of the within deed, who, being duly sworn, deposeth and saith, that he was present and saw Abraham Barnes, the person whose name is subscribed, and seal to the Same, duly execute the same as his own voluntary act and deed, for the uses and purposes therein mentioned; and I having inspected the same, and finding no material erasure and interlineations therein, except an obliteration on the fourth line thereof, do allow the same to be recorded. James M. Hughes, master in Chancery.” On the back of the deed was also a minute in the words and figures following: “Recordedin the secretary’s office of the state bf New York, in book of deeds endorsed M. R. G., page 11, this 18th day of -April, 1795. Lewis A. Scott, Sec’ry.” The following words and figures also appeared on the back of the deed: “ Registered April 29th, 1795.” Daniel Kellogg, Esq., counsel for the defendant, testified that he was appointed a special agent by the clerk of Cayuga county, to take charge of the deed, and to produce it on the trial of this cause ; and that he received the deed from the clerk of Cayuga county the day before; and had seen it on file in the clerk’s office of that county two or three times. The defendant also read in evidence a stipulation in writing, entitled ifi this cause in the words and figures following, viz: “Whereas the clerk of Cayuga county has made Daniel Kellogg, Esq.; a special agent to take charge of a certain filed deed purporting to be executed by Abraham Barnes to Theodosius Fowler, for lot No. 75, formerly Hannibal; and whereas the said deputation has been accepted by said Kellogg, how it is.hereby stipulated and agreed, that said deed shall be produced on the trial of this cause at the present circuit; upon the request of the plain tiff’s counsel, by said Kellogg, and also that the same was found by the present clerk of Cayuga on the files of his office; intending that all the advantage may be given to the. plaintiff from the *production of said deed, which could arise to him if the clerk himself should produce it, and he sworn to its being filed. Dec. 29th 1826. Daniel Kellogg, deft’s counsel. D. B. Noxon, counsel for plff.” The reading of this deed in evidence was objected to by the plaintiff’s counsel, because it had not been sufficiently proved; that the certificate of proof was defective, it not stating that the officer knew the witness, or that the witness knew the grantor, and because there was no proof of its having been deposited in the clerk’s office at Albany, in pursuance of the statutes of 1794, and because the proof of its being a filed deed was defective. His honor, the judge overruled the objections, and suffered the deed to be read in evidence. The defendant also introduced an exemplification of the balloting book remaining in the secretary’s office, by which it appeared that the patent was granted to Abraham Barnes, was delivered to Capt. T. Fowler, July 9th, 1790, and that Abraham Barnes was a gunner in the New York regiment of artillery. The defendant next produced in evidence an exemplification of a deed from Theodosius Fowler and Mary his wife, to Nathaniel Olcott, dated 19th April, 1796, for the whole lot in question, acknowledged the same day before James Kent, master in chancery, and recorded in the Cayuga clerk’s office on the 12th November, 1796. Also, the exemplification of a deed from Nathaniel Olcott to Joseph Lay, for one equal undivided half of the lot, bearing date April 19th, 1796, acknowledged before James Kent, master in chancery, on the 20th of April, 1796, and recorded in the Onondaga clerk’s office on the 18th of April, 1811. The certificate of acknowledgment on the last deed was in the following words and 'figures : “ State of New York, ss. Be it remembered, that on the 20th day of April, 1796, before me, James Kent, one of the masters in chancery for the said state, personally appeared Nathaniel Olcott, named in the within indenture; and satisfactory proof being made to me, that he was the person within intended, the said Nathaniel acknowledged that he had sealed and delivered the same, as and fqr his voluntary act and deed, for the use therein mentioned;,#and I have inspected the same, and finding no material erasure or inter] in cations, do allow it to be recorded. James Kent,” The reading of this deed in evidence was objected to by the plaintiff’s counsel, on the ground that the certificate of acknowledgment was defective, in not stating who Ihe wit ness was who proved the identity of the grantor. This objection was overruled by the judge, and the deed was read |-0 j.^e jury.. The defendant next gave in evidence a deed from Joseph Lay to Thomas Ocman and John Yost, for the whole lot, dated May 2d, 1796, acknowledged the. 29th of April, 1797, before Henry Van Rensselaer, master in chancery, and recorded in the Onondaga clerk’s office, May 5th, 1797. The defendant then offered in evidence a deed from John Yost and wife to Isaac Jerome, for two undivided fifths of the lot, dated May 10th, 1825, and acknowledged, as appeared from a certificate thereon, before Luther F. Stevens, first judge of Seneca county, a counsellor, &c. and recorded in the county of Oswego, September 23d, 1826. This evidence was objected to by the counsel for the plaintiff, on the ground that there was no certificate of the clerk of the county of Seneca attached to the deed, showing Mr. Stevens to be the first judge of Seneca county, and authorized to take the acknowledgment in pursuance of the fifth section of the act, (sess. 41, ch. 55, 4 Laws 44, 45, c,) passed March 24th, 1818. This objection was overruled by his honor the judge, who decided, that as the certificate showed Judge Stevens to be a counsellor, &c. there was no necessity for any certificate from the county clerk. The defendant next produced in evidence a' quit-claim deed from Isaac Jerome and wife to him, the defendant, for two undivided fifths of the lot, dated June 2d, 1825, duly acknowledged and recorded July 15th, 1826, in Oswego county. For the purpose of showing an adverse possession for 20 years, and to impeach the plaintiff’s title, the defendant called a witness, who testified as to various acts of possession and ownership by Fowler, in respect to the lot, and by part of *those claiming under him in virtue of the above deeds. The possession under Fowler commenced 35 years before the trial; but it did not appear to have been continued and connected with the defendant; but was interrupted by Barnes’ entry. Nor did the possessions under claim of title appear to have been continued 20 years, by those under whom the defendant now claimed. The plaintiff called Elizabeth Barber again, with a view to establish circumstances inconsistent with a fact of the patentee having executed the deed to Fowler. Among other things, she testified, that her husband (the patentee) was a bad writer, but kept a book account, which, being shown to her, she recognized as his, although, on the book being presented to her, she could not read it. She was an aged woman, and had no spectacles. The book had not been in her possession for a year last past, but had been in possession of Giles Howland. The accounts purported to be dated at Stephentown, in 1797, where her husband then lived. She also testified that her husband wrote his surname with a small b, and that it was a subject of frequent conversation in the family, and that he spelled his name Abraham; that the name of Abraham Barnes had been cut out of the account book in one place, where he had signed it to a receipt of a settlement by one Cook. It appeared from the deed offered in evidence by the defendant from Barnes to Fowler, that Barnes’ given name was spelt Abrahem, and his surname written with a large capital B. The plaintiff then offered to prove that the said account book was in the genuine hand writing of said Barnes, and that his name appearing therein twice, was written by himself in 1797, and was spelt and written in the manner Elizabeth Barber declared he usually wrote and spelt his name; and that there was no similarity between the hand writing of Barnes in the account book and the signature to the deed. This evidence was objected to by the defendant’s counsel, and rejected by the judge, on the ground that it would be a comparison of hand writing, which he held inadmissible. *The plaintiff then offered to prove that the part of the account book which appeared to be in the hand writing of Barnes was the genuine hand writing of Barnes, with a view to submit the book and deed to the inspection of the jury, which was also objected to by the defendant’s counsel, and rejected by the court. After the plaintiff had called a witness, who had seen Barnes (the patentee) write, and who gave an opinion against the genuineness of the signature to Fowler’s deed, he (the plaintiff) offered to prove by the same witness, that the hand writing in the account book was the genuine hand writing of Barnes. This was objected to by the defendant’s counsel, and rejected by the judge. Here the plaintiff rested. The defendant then offered in evidence a lease from John Yost to Abraham Barnes, for a part of the lot in'question, how much did not appear, bearing date June 13, 1806, to which the signature purporting to be that of Barnes, was made by spelling his first name. Abrahem, and writing his surname with a capital B, The lease purported to be executed in the presence of two witnesses, Abraham Hugunin and Peter Hugunin, both living at the" time of the trial within the jurisdiction of the'court; but neither of them called to prove the execution. The defendant offered it as having been proved in pursuance of the first section of the act of 1813, concerning deeds, (sess, 36, ch. 97, § 1, 1 R. L. 369 ;) and the certificate of proof endorsed thereon, was in the words and figures following, viz, “ State of New York, Os-wego county, ss; on the 38th day of December, in the year of .our Lord, eighteen hundred and twenty-six, personally appeared before me Abraham Hugunin, to me personally known, who being duly sworn, deposeth and says, that he is personally acquainted with John Yost and Abraham Barnes, the grantors within named and described, and that the said John Yost and Abraham Barnes did acknowledge to him the said Abraham Hugunin, that they did sign, seal, and deliver the within instrument, as their voluntary act and deed, and for "the uses and purposes therein mentioned, and that this deponent, subscribed *his name thereto as a witness at the same time. All which is satisfactory evidence to me of the due execution of said instrument. Peter D. Hugunin, First judge of Oswego county courts.” The reading of this lease in evidence was objected to by ° , . . , . the plaintiff’s counsel, because the witness mentioned m the certificate did not see the lease executed; and, for aught that appears from the certificate, the acknowledgment made by Barnes and Yost to him, was long after the execution of the lease, which would not be competent proof, where there is a subscribing witness to the lease as here, viz. Peter Hugunin. This objection was overruled by the judge, and the lease was read to the jury for the purpose of showing an acknowledgment and acquiescence by Barnes in Yost’s title. The defendant then gave further evidence as to the possession and acts of ownership by those claiming under Fowler. But the possession was not continued for 20 years, nor connected with the defendant. Here the testimony closed, and the judge in charging the jury, among other things, stated that long possessions according to a title or claim, though they were interrupted and not continued for 20 years, were strong evidence in support of that title; which position of his honor was objected to by the plaintiff’s counsel. The jury found a verdict for the defendant. A motion was now made, in behalf of the plaintiff, for a new trial. B. D. Noxon, for the plaintiff. The deed from Barnes to Fowder was not proved to be a filed deed. By the ¡ * of January 8th, 1794, (sess. 17, ch. 1, § 1, 1 R. L. 209,) a*, deeds concerning the military lands, were, previous to the 1st of May, 1794, to be deposited with the clerk of Albany, who was by the 1st of June to deliver them to the clerk of Herkimer. If not deposited, they are to be deemed fraudulent and void against subsequent purchasers and mortgagees. This act was amended, and the time of depositing • enlarged to the 1st of May, 1795, by the act of March 27th, 1794. (1 R. L. 211, 12, § 1.) *This deed was not registered according to law. The first general registry act was that of February 26th, 1788; (2 Greenleaf’s Laws, 99;) the next registry law was the act of the 8th January, 1794, (1 R. L. 209,) already cited, and respects military lands only. By this, all deeds executed after the act passed must be recorded, in order to have effect against purchasers. Another general registry act passed in 1813, (sess. 36, ch. 97, 1 R. L. 369.) The 7th section of this act authorizes certain deeds, acknowledged previous to 1801, to be recorded; but it excepts deeds relating to the military tract, which were not deposited with the clerk of Albany previous to May, 1795. By these acts relating to military lands, the deeds, in order to be effectual, must be recorded in the clerk’s office of the county of Herkimer, and the identity of the grantor must be shown. (1 R. L. 219.) By the act of February 4th, 1814, (sess. 37, ch. 5, 3 Laws, 9, c,) deeds of military land, executed previous to May 1st, 1797, could not be recorded unless acknowledged according to the 1st section of the general registry act of 1813. And the statute of April 14th, 1820, (sess. 43, ch 245, § 3, 5 Laws, 248, c,) is peremptory that no deed con. cerning these bounty lands, executed previous to May, 1797, shall be read in evidence, unless it be acknowledged or proved according to the first section of the act of April 12th, 1813. There cannot be a pretence that this deed does not come within that act. The officer does not certify that he knew the witness, or that the witness knew the grantor. Recording in the secretary’s office did not remedy the defect. We are aware it may be said that a vested right to give this deed in evidence, was acquired under the act of 1788, according to which it was acknowledged; and that such right could not be divested by the act of 1820. But the same objection may be made against the act of 1794, and indeed all the provisions of the various acts to prevent frauds in respect to any deeds executed previous to their passage. Yet these statutes have always been acted upon. Jackson v. Howe, (19 John. 80,) was the case of a deed duly deposited and properly recorded before the act of 1820 passed. It was holden that such a deed was not affected by the subsequent statute. *That is not this case. Here the leed was never deposited and never properly recorded. The acknowledgment of the deed from Olcott to Lay m April, 1796, being under the act of 1788, is now admitted to be sufficient, although the witness who proved the identity of the grantor was not named. But it is insisted that there should have been a certificate that Mi Stevens was the first judge of Seneca county, to warrant the reading of the deed from Yost and wife to Jerome. This is virtually required by the act of March 24th, 1818, (sess. 41, ch. 55, § 5, 4 Laws, 44, 5, c.) By this act, no deed proved or acknowledged before a county judge can be recorded in any county of which he is not a judge, without the certificate of the clerk of his county authenticating his signature. True, by the act of the same session, of-April 20th, 1818, (ch. 195, § 1, 4 Laws, c,) judges of the common pleas of the degree of counsel, are authorised to perform all the chamber duties of a judge of the supreme court, of which the acknowledging or taking the proof of deeds is one; but this does not repeal the former act requiring a certificate. They are still local officers ; and the principle of the former act applies. The clerks were in danger of being imposed upon by forgeries. This was the evil; and the mischief is not removed by the circumstance that the judge is of the degree of counsel. It was competent for the plaintiff to prove Barnes’ hand writing in his account book, to show the character of his hand, as well as the manner in which he spelt his name, and how he wrote it. It was important to show the dissimilarity between his name and hand writing at the date of his book, and the signature to the deed. It was at any rate admissible as refreshing the recollection of witnesses on the question of hand writing. It was also proper for the jury to make the comparison. In Allesbrook v. Roach, (1 Esp. Rep. 351,) the jury were permitted to compare the signature to the instrument in question with specimens admitted to be the hand of the party who signed; and Lord Kenyon there pronounces distinctly in favor of a comparison of hands. The witness need not always *have seen the party write, or corresponded with him. It has been a long time the uniform practice at the oyer and terminer to prove the forgery of bank bills, without the witness either having seen the bank officers write, or corresponded with them. In State v. Bronson, (1 Root, 307,) the rule is laid down by the court generally, that comparison of the hand writing of the party-is admissible evidence even in a criminal prosecution ; and like all other evidence, to be left to the jury. In Titford v. Knott, (2 John. Cas. 211, 214,) this court held' that a witness was not confined to knowledge from seeing the party write, or corresponding with him; that he might be guided by his knowledge derived from authentic papers in the course of business, or, having in either of these ways acquired some knowledge of the hand, he might fortify his memory by a comparison of hands in court. (Burr v. Harper, 1 Holt’s N. P. Cas. 420, S. P.) In Revet v. Braham, (4 T. R. 497, 1 Phil. Ev. 373, S. C,) a witness was allowed to speak to hand writing merely from his skill in detecting forgeries. And ancient writings may be proved, and (by parity of reason) disproved by a mere comparison of hands. (1 Phil. Ev. 372, 3, and the cases there cited, Am. ed. of 1820. Roe v. Rawlings, 7 East, 282, and note (a) there. 14 East, 327.) In Jackson v. Vanduzen, (5 John. 144,) the mark of a witness to a will was proved by comparison; the witness proving it, having seen him make his mark but once. The lease purporting to have been made from Yost to Barnes, was not sufficiently proved. The certificate of proof was defective, it not appearing that the witness produced to prove the execution, saw the lease executed. He only stated that the parties acknowledged that they executed it; and there was a subscribing witness besides The statute, (1 R. L. 369, \ 1,) is that a deed must be proved by the subscribing witness. This must mean the witness who saw the original execution, or witnessed the deed at that time in fact. The proof here is no more than a«bare confession of the party that he gave the lease. This is insufficient where there is a subscribing witness. Fox v. Reil, 3 John. 477.) The charge of the judge was incorrect, in saying that long possessions according to a title or claim, though interrunted *and not continued for 20 years, Were strong evi- - r , c dence m support ot title. D. Kellogg, contra. The deed from Barnes to Fowler was proved according to the then existing law, and recorded in the secretary’s office according to the law then in force; "(2 Greenleaf’s Laws, 99;) and it was not competent for the legislature to declare that such a record should not be admitted in evidence. (Jackson v. How, 19 John. 80.) The first act in relation to the proof and recording of deeds given for military bounty lands, was passed on the 8th day of January, 1794, (1 R. L. 209,) which requires all deeds theretofore made, to be deposited with the clerk of Albany on or before the 1st day of May, 1794, or that they shall be adjudged “fraudulent and void against subsequent purchasers for valuable consideration, &c,; and that all deeds and conveyances hereafter to be made and executed of or concerning, or whereby any of the said lands may be any way affected in law or equity, shall be recorded by the said clerk of the said county of Herkimer, &c.; and that every deed and conveyance hereafter to be made and executed of or concerning, or whereby any of the said lands may be any way affected in law or equity, shall be adjudged fraudulent and void against any subsequent purchaser, &c. unless the same be recorded, &c. before the recording, &c. Provided always, that no such deed or conveyance shall be recorded, unless the same shall be first duly acknowledged by the party who shall execute the same before, &c-.” By a subsequent act, passed the 27th of March, 1794, (1 R. L. 212,) the time for depositing such deeds was prolonged until the 1st day of May, 1795. By the first act, two kinds of deeds are spoken of, viz. deeds then executed at the time of passing the act, and deeds to be thereafter executed. The first were required to be deposited, and the last to be recorded. The deeds, which were filed, were not required to be recorded, and subsequent deeds could not gain a preference although they might be first recorded. In speaking of the manner in which “such deeds” should be acknowledged, the legislature evidently had Reference to such deeds as were spoken of in the next preceding sentence, and which were deeds thereafter to be executed. The next act which-can have any bearing upon the deed in question, was passed the 14th of April, 1820, (sess. 43, ch. 245, 5 Laws, 248, b;) by the 3d section of which it is enacted “that no deed, conveyance or writing, relating to the title or property of any lands granted by this state as bounty lands to the officers and troops of this state who served in the army of the United States, executed on or before the first day of May, 1797,” (see act of 12th February, 1798. 1. R L. 216,) “ shall hereafter be read in evidence in any court of this state, unless the same be acknowledged or proved according to the provisions of the first section of the act entitled, ‘An act concerning deeds,’ passed „the 12th day'of April, 1813; any thing in the seventh section of said act, or any law to the contrary notwithstanding.” This section was evidently intended by the legislature to-extend no further than fully to repeal the 7th section therein referred to, which permitted all file deeds acknowledged or proved according to the then existing law, to be recorded and to be read in evidence; the former part pi which was repealed by the act of the 4th of February, 1814, (sess. 37, ch. 5, 3 Laws, 9, b,) leaving that part of the 7th section which authorized deeds so acknowledged to be read in evidence, in full force. And such are the constructions which have been virtually put upon the act of 1820, by the decision of this court in the cases of Jackson, ex dem. Yates, v. How, (19 John. 80,) and Jackson, ex dem. Hungerford and others, v. Eaton, (20 John. 478.) But few deeds for military lands were recorded before the 8th day of January, 1794. A vast many were recorded between that day and the 1st day of May, 1795, oeing the day limited for depositing them with the clerk of Albany, which recording was done for the purpose of preserving the evidence of the titles to the lands, as the deeds were to be placed beyond the control of the owners. Certificates from the clerk of Cayuga county and the secretary will show this to be true. The practice under that act ought to have great weight in giving it a construction. (Jackson v. Gumaer, 2 Cowen, 567) *If the deed was recorded in pursuance of a then existing statute, the legislature could not, by any subsequent statute, destroy the evidence of Fowler’s title. His right became vested and could not be taken away. ' The deed was proved to have come from the proper office, when it was brought to court by the clerk of Cayuga county ; it was on file in his office; and the endorsements upon the back of the deed were as much evidence of its having been deposited with the clerk of Albany county, and recorded in the secretary’s office, as the endorsement upon a judgment recorded or any other paper, would be of the time of filing or docketing such record or paper, which no person has thought proper to question. The clerk was required by the act of 1794, to register in a book the names of the grantor and grantee; and the date of the deed, and his endorsement of having done so has always been taken as evidence of its having been done, and of the time of depositing. But the lessors of the plaintiff were not bona fide purchasers, and they cannot object that the deed was not deposited. All the lessors of the plaintiff, excepting Parker, are heirs at law of the grantor in Fowler’s deed; and Parker, the other lessor, is not a purchaser. The certificate of acknowledgment of the deed from 01-cott to Lay was sufficient. If it was defective, it was of no consequence, as the deed to Fowler proved a subsisting title out of the lessors of the plaintiff. And the defendant being in possession under color of a bona fide title, may set up a subsisting outstanding title in a stranger, to defeat the plaintiff’s recovery, although the defendant has no title in himself. (Jackson, ex dem. Dunbar v. Todd, 6 John. 257. Jackson, ex dem. Seeley v. Morse, 16 John. 197. Buller’s N. P. 110. Runnington on Eject. 343. Jackson, ex dem. Ten Eyck v. Richards, 6 Cowen, 617.) The decision of the court in rejecting the account book and the evidence of comparison of hand writing between Barnes’ name to the deed and the hand writing in the account book, was correct. *Phillips says (1 Phl. on Ev. 371,) “It is an established rule of evidence, that hand writing cannot be proved by comparing the paper in dispute with any other papers, acknowledged to be genuine. The reason usually given is, that unless a jury can read, they would be unable to institute a comparison, of judge of the supposed resemblance. Another reason for rejecting' such a comparison seems to be, that the writings intended as specimens to be compared with the disputed paper, would be brought together by a party to the suit, who is interested to select such writings only as may best serve his purpose ; and they are not likely, therefore, to exhibit a fair specimen of the general character of hand writing.” The latter reason applies with peculiar force in this case; as it appears, the name of Barnes had been cut out of the account book, where he had signed it to a settlement; and the only two places in which his name now appears, are supposed to be those which will best serve the plaintiff’s purpose. The book is produced by the party in interest, and why cut out Barnes’ name in any place, if he wants to exhibit a fair specimen ? In Stranger v. Searle, (1 Esp. Rep. 14,) Lord Kenyon ruled, that a witness should not be allowed to decide on comparison of hands, although in Allesbrook v. Roach, (1 id. 351,)he permitted it, saying he had always been inclined to admit it. And in The King v. Cator, (4 Esp. Rep. 117,) Hotham, baron, rejected such evidence, after a Yery full argument, and much reflection. (See also the cases collected in a note at the end of this volume, Day’s edition; and also Macferson v. Thoytes, Peak. Cas. 20.) The case of Jackson ex dem. Van Dusen and others v. Van Dusen, (5 John. 144,) does not overrule the former decisions. This was the case of a will, where one of the .subscribing witnesses made his mark in a peculiar manner. The witness had seen the person make his mark at another timé, which thé witness then had in his possession, and it was accompanied by proof of the declaration of Ohe of the other witnesses in his lifetime, that he and S. W. had subscribed the will as witnesses. Mr. Justice Van Ness says, he does not mean to ^controvert the rule, that a comparison of hands is not competent testimony. The witness signed the initial letters of his name S. W.from the peculiar character and Structure of which, he believed them to have been made by Wheeler. In Morewood v. Wood, (14 East, 328;) evidence of comparison of hand writing was*admitted upon the ground that ho better evidence could be obtained, as the person whose hand writing was proved had been long since dead; but ho objection was made to the testimony. ín Titford v. KnOtt, (2 John. Cas. 211,) Kent, justice, says, “if the witness has no previous knowledge of the hand, he cannot then be permitted to debidé it in court from a comparison of hands.” Many of the cases reported, which at first would seem to be in favor of admitting such evidence, are in fact against it; such as proving ancient writings by witnesses who have become acquainted with the manner of a person’s sighing his name by*inspéctihg other ancient writings, which bear the same signature, and which have been treated and regularly preserved as authentic documents. (Norris’ Peake, 155.) Such proof is not a comparison of hand writing. But the person has gained a knowledge of the general character of the hand, by having frequently séen the hand writing which is genuine. The lease from Yost to Barnes was sufficiently proved. • The certificate states that Yost and Barnes acknowledged to the witness, “ that they did sign, seal and deliver the within instrument as their voluntary act and deed, &c., and that this deponent subscribed his name thereto a§ a witness, at the' same time; all which is satisfactory evidence to me of the due execution of said instrument.” It is a very common way of becoming a subscribing witness to a déed. The parties sign, and call upon a person within hearing to step ih and witness it. This was probábly done here. At any rate, if the officer was satisfied of the due execution, the court will not look any further. He is the person who interrogates the witness; and after hearing the particulars in ^relation to the execution, he reduces the testimony to form. (Jackson v. Livingston, 6 John. 157.) Hugenin subscribed his name as a witness, and the court will intend, that it was done at the time of the execution of the lease. As to the objection, that the certificate of judge Stevens on the deed from Yost to Jerome was not duly authenticated ; the judge was a counsellor at law, and took the acknowledgment under his power as a judge of the supreme court at chambers. In such case, a certificate of the clerk is not necessary; and this was held expressly in Jackson v. Chapin, (5 Cowen, 485.) As to the charge of the judge, the counsel referred to Smith v. Lorillard, (10 John. 355.) But see post 113, n. 1. Norman v. Wells, 37 Wen. 137 [MAJORITY — Curia, per Savage, Ch. J.] Curia, per Savage, Ch. J. (after stating the case.) The most important question arises upon the admissibility of the deed from Barnes to Fowler. The first objection to this deed is, that it was not proved to have been filed, nor deposited, nor registered according to the statute. One answer is, that a non-compliance with the act in this case, does not affect the rights of the grantee or his assigns. The statute relied upon, indeed, directs that all deeds theretofore executed, &c. should be deposited ; and if not, they should be adjudged fraudulent and void against subsequent purchasers or mortgagees for valuable consideration ; but not against the grantor and his heirs. The lessors of the plaintiff, in whom any title is pretended, are the children and heirs at law of the grantor. But another answer, perhaps, may be given, which is, that there is, prima facie evidence that the deed was deposited according to the acts of 1794. It was found in the office where it should be, if it was deposited. It was proved, before the time limited for depositing, and ^ marked, “ Registered April 29, 1795.” To this there is no signature, but being in the clerk’s office of Cayuga county, without explanation, and not being recorded, the presumption being in favor of a legal performance of duty by public officers, the deed must have come from the clerk of Albany, through Herkimer and Onondaga. *(See the acts concerning these deeds collected, 1 R. L. 209 to 218.) In neither of the latter offices could the registry have been made. ' None was required by law; but in Albany it was. I think, therefore, the memorandum on the back was prima facie evidence of the deposit having been made on the 29th of April, 1795, which was in time. The next objection to this deed is, that the proof was defective. The law in force when this deed was executed and proved, was the act of the 26th of February, 1788. By that act, no deed could be recorded without an acknowledgment or due proof by" one of the subscribing witnesses. That act does not prescribe the form nor the substance of the certificate of the officer taking the acknowledgment or proof; but merely says that a certificate of the acknowledgment or proof should be endorsed upon the deed. By the same act, a deed duly proved and recorded, or the record thereof, might be read in evidence. The act of 1813 required that the certificate of the officer taking the proof should contain the names of the witnesses and their testimony; and the act of 1820 prohibits the reading in evidence of any deed for lands in the military tract, unless acknowledged or proved according to the act of 1813. If the statute of 1820 were to receive a literal construction, this objection must be fatal. But in the case of Jackson v. How, (19 John. 80,) this court, after a critical examination of these several acts, decided that the only operation of the act of 1820, taken in connection with, the acf of 1814, is to prevent the reading in evidence of an unrecorded deed, although it may have been ackowledged in conformity with the existing laws ; but which the party has, neglected to have recorded in due season. This deed from; Barnes to Fowler, having been proved according to existing laws, and duly recorded, is not embraced in the meaning of the, act of 182Q, and was therefore properly read in evidence. The next objection is to the deed from Tost to Jerome. It is said there should have been a certificate of the county clerk, that L. F. Stephens was first judge of Seneca, county, although he was a counsellor, &c, This point has been decided. * Where the pro.of or acknowledgment is. taken before a judge of this court, or a commissioner to, perform certain duties of a judge of this court, no. certificate from the county clerk is necessary. The first judge of a court of common pleas being a counsellor of this court, is a commissioner ex officio; and therefore nP certificate is necessary. (5 Cowen, 485.) The deed from Barnes to Fowler b.eing properly in evidence, and showing a title out of fhe lessors, they had a right to show that the, deed was a forgery by proper testimony and they contended that Barnes’ account hook was proper for that service, by way of comparison of hand writ-, ing. The rule is settled in England, and I believe, in this state,, that comparison of hands by juxtaposition of two writings, in order to ascertain whether both were written by the same person, is inadmissible (1 Stark. Ev. 654, and 1 Phil. Ev. 438, and the cases there cited.) In some of our sister states the rule is otherwise. In Titford v. Knott, (2 John. Cas. 211,) Kent, justice, says it is usual forwitnesses to prove hand writing from previous knowledge of the hand, derived from having seen the person write, or from authentic papers received in the course of business. If the witness has no previous knowledge of the hand, he cannot then be permitted to decide it in court from a comparison of hands. The same rule is admitted in Jackson v. Van Duzen, (5 John. 155,) and where a different practice has obtained with us, I presume it will be found that the comparison, either by witnesses or by the jury, has been by consent. The reason given for this rule, that the jury may not be able to read, is not satisfactory, and at the present day not well founded in fact, A more satisfactory reason is that' the specimens produced may be selected for the purpose; and another, that if permitted, these specimens may be contested and examined by others, and thus collateral evidence might be introduced to an inconvenient length, and in the end might not be conducive to justice. The book, therefore, was properly excluded. There is one other point which it is proper to notice. The certificate of acknowledgment upon the lease from Yost to *Barnes is said to be defective, because the witness does not state that he saw the lease executed. The parties acknowledged it in his presence, and he subscribed it as a witness. The witness must prove the execution of the instrument. Is not that done by an acknowledgment from the parties, and an attestation by the witness ? A deed takes effect from the delivery; and if the parties choose to sign their names alone, and then call witnesses before whom they acknowledge the instrument, that is a good execution. And should some time intervene, (years, if you please,) I can see no difference. It is a re-delivery of the deed which then, at least becomes effectual. This evidence will be good and sufficient to prove the deed in a court of law, and therefore is sufficient before the judge or commissioner. The question of genuineness of the deed was before the jury, upon all the legal evidence on both sides, and they decided in favor of the defendant. The doctrine advanced by the judge in his charge, becomes altogether immaterial. Were the question one of adverse possession, then I apprehend the possession must be continued by an unbroken chain, where there has been a succession of tenants. That was not the question here ; and I am inclined to think the judge correct, that such a possession as was shown was entitled to some weight in fortifying the title of Fowler and those claiming under him. But whether that be so or not, his deed was legally proved, and there was no sufficient evidence to disprove it calculated to shake the finding of the jury. The motion for a new trial must be denied. New trial denied. END OF MAY TERM. Since January 1, 1830, the former laws of New York, relative to the proof, acknowledgment, and records of deeds &c. are entirely obsolete, as regards conveyances since that time, still they are often drawn in question, when conveyances acknowledged, proved and recorded under them, are sought to be given in evidence. A list of references to those laws and the adjudications under- them may be found in 2 Cowen & Hill’s Notes to Phil. Ev. 470. This, rule has been invariably followed by the English Courts: See 4 Esp. 273, a, Day’s, ed, 2 Cowen & Hill’s Notes, 478 et seq. Clermont v. Lullidge, 4 Carr. & P. 1. Mutchinson v. Allcock, 1 Dowl. & R. 165. Greaves v. Hunter, 2 Carr. & P. 447. And in the Supreme Court of the United States. Strother v. Lucas, 7 Pet. 763. The same rule prevails in New York. Wilson v. Kirland, 5 Hill, 182. In Hutchins’ case, 4 City Hall Rec. 119. A comparison of hand writing hy the jury, was not permitted, although both the prosecutor and prisoner consented. See also Haskins v. Stuyvesant, Anth. N. P. 97. Rut in Rodgers’ Adm’rs. v. Shaler, id. 109, Spencer J, held that after the hand writing of a party (an intestate) is in evidence, his hand writing to any other instrument may be proved by calling any witness, to compare the hand writing proved, with that to he proven, and to state his inference to the jury, the jury not being competent to make such comparison. In England the rule now is, that the court or jury may compare a document, with another already in evidence, and from the comparison form a judgment upon the genuineness of the hand writing. Griffiths v. Williams, 1 Grom. & Jerv. 47. Solita v. Yarrow, 1 M. & R. 113. Doe v. Newton, 1 Nev. & P. 4 S. C. 5 Adol. & E. 514. Doe v Luckermore, 1 Nev. & P. 32. S. C. 5 Adol. & E. 703. See also 2 Cowen & Hill’s Notes to Phil. Ev. 478, et seq. An exception to the rule, as to a comparison of hand writing, exists in relation to ancient writings. See post 150, N. 1. See 2 Cowen & Hill’s Notes to Phil. Ev. 481, 3. Munns v. Dupont, 3 Wash. C. C. Rap. 33,. 42. Kingvvood v. Bethlehem, 1 Green, 228. But see Hollenback v. Flemming, 6 Hill, 308. Henry v. Bishop, 2 Wen. 575. Both these cases assert the doctrine that no one can be an attesting witness who did not subscribe his name as such, at the time the instrument was executed. Norman v. Wells, 15 Wen.