#### Den on demise of Henry Hunter, *v.*Frederick Bryan

From Martin.

A deed made by husband and wife, had a certificate endorsed on it by the Clerk of the County Court, *“*that the wife appeared in open Court, and acknowledged the deed, before the Court was privately examined, and said it was done freely and without compulsion and on the minute docket of the Court, there was an entry that “ a deed from A. B. and C. B. to D. E. was acknowledged.” The deed was registered. Held, that *upon*the trial of an *ejectment, the*deed shall be given in evidence to the Jury. For although the record does not expressly state A. B. the husband, acknowledged the deed, yet it states that a deed from him to 1). E. *was*acknowledged; and the necessary inference is, that the acknowledgment was made by him and not by another.

On the trial of this case, the Plaintiff deduced title *to the*lands in question, to Autcrson Kelly and Nancy his wife; and then offered in evidence a deed, purporting to have been executed by Autcrson Kelly and Nancy his *179wife, to the lessor of the Plaintiff, which had been duly registered. On this deed, there was the following certificate of acknowledgment endorsed by the Clerk of Martin County Court, to-wit:

*“*Nancy Kelly appeared in open Court and acknowledged the within deed, before the Court was privately examined, and said it was done freely and without compulsion.

“ THOMAS HUNTER, Clerk.”

The Plaintiff also offered in evidence, the minute docket of Martin County Court, in which there was the following entry, to-wit:

*“*17th March, 1794. The Court met according to adjournment. A deed from Auterson Kelly and Nancy Kelly to Henry Hunter, was ac knowledged.” ■

The reading of this deed in evidence was objected to by the Defendant’s *counsel;*1. Because it did not sufficiently appear that the Feme Covert was privately examined. 2. Because the execution of the deed by both or either of the grantors, was not sufficiently proven either by the minutes of the County Court or by the certificate of the Clerk endorsed on the deed 3. Because it did not sufficiently appear from the endorsement on the deed, in what Cóunty Court, or at what term, the acknowledgment and private examination of the Feme Covert were taken. And on argument, the Court refused the Plaintiff the liberty of reading the deed in evidence, on the ground that the execution of it by Auterson Kelly was not legally proven.

The Plaintiff’s counsel then offered parol evidence to shew, that the deed had been acknowledged by both the grantors, and that the Feme Covert had been privately examined in a proper and legal manner, and that there was no unfairness or fraud in the record. This evidence was rejected by the Court.

The Plaintiff’s counsel then contended that as the Court were of opinion, the execution of the deed by Nan*180cy Kelly, one of the grantors, was sufficiently proven, the deed should be submitted to the Jury as colour of title; an(j j-]iey ()len offered to prove actual possession under for more than seven years. This evidence was rejected by the Court, and the Plaintiff was nonsuited. A rule for a new trial was obtained, and being discharged by the Court, the Plaintiff appealed.

Hah, Judge,

delivered the opinion of the Court:— The deed ought to have been received in evidence, on the ground of the acknowledgment in the County Court. The certificate of the Clerk appointed and trusted for that purpose, states *that the deed was acknowledged. A,*■deed cannot be acknowledged except by him or them who have executed it. It is not indispensably necessary, that the names of the. persons by whom the acknowledgment was made, should be set forth. When an officer sets forth that any thing has been done in his office, officially by him, we must presume that it was done legally, unless the contrary legally appears. Here wo must presume that the acknowledgment was made either by the husband and wife or by the husband alone; in either of which cases it ought to bo read. It is a farfetched presumption, that it was made by the wife alone, without the consent or participation of the husband. If then, it was made by the husband, it ought to be read as to him. It is a matter of little moment, whether it was acknowledged by the wife or not, unless her privy examination w'as also produced. However, it is not the province of this Court to look into the deed, and say what interest passed by it; that belongs to the Court and Jury, who shall try the cause belowr. Let the rule for a new trial be made absolute.