No. 2.

#### Samuel M. Walls *et al.*plaintiffs in error, *vs.*Benjamin M. Smith *et al.*defendants.

[1.] A deed was witnessed by two persons, one being á Justice of the-Peace. In the clause of attestation, there was no certificate of delivery: *Held,*that inasmuch as the official signature of the Justice was received in lieu of an affidavit by a witness, that the deed was signed, sealed and delivered before admitted to record ¡ and the same being found on record; by virtue of the maxim, “ that things are held to be legally and properly in their existing state until the contrary is shown,” the deed should be held to be legally and properly on the record, by duo proof of signing, sealing and delivery, until the contrary is shown.

[2.] A simple indorsement of *“alias fi. fa.”*upon an execution which, in all other respects, purports to be an original, does not make the process an *alias fi. fa.-,*but the indorsement will be controlled by the body of the instrument.

[3.] A *fi. fa.*with entries of levies thereon, in which a tract of land is described: and which is by one of said entries returned as sold by the-Sheriff, and purchased by one under whom defendants claim, may be admitted as *color of title. Color of title*is anything in writing connected with title to land, which serves to define the limits of the claim.

[4.] A deed which is commenced by one Sheriff and left unfinished, and afterwards completed by his successor, can operate as *color of title*only from the date of its completion.

[5.] *Color of title*can be of service only in aid of possession; and possession thus aided, can be matured into title to the extent to which it is intended to gain possession.

Ejectment, in Whitfield Superior Court. Tried before-Judge Trippe, April Term, 1855.

This action was brought in February, 1852, to recover lot *9No. 283, 9th district, 3d section. The defendant relied on the Statute of Limitations.

The following points arose on the trial: A deed being tendered by the plaintiff from David B. Tarvin to himself, it was objected to on the ground that it no where purported to have been delivered. The Court over-ruled the objection, holding that the possession of the deed by plaintiff presumed a delivery; and on this- decision error is assigned.

The defendant proved that John Bishop was in possession of the land in 1844, and continued therein until the defendant came into possession, who kept it until this suit was brought. A lease was produced from James Morris to Bishop, dated 14th Nov. 1844, letting 25 acres of the land.

Defendant then introduced a *fi. fa.*in favor of Chastain & Luck against David B. Tarvin, upon which was entered a levy upon the land in dispute, dated 25th of April, 1843; and then the following entries : “ Disposed of the above levy by selling the lot of land on the 6th of June, for thirty-one dollars, June the and on the paper attached was the following: “Disposed of the levy on lot No. 283, 9th district, 3d section, by selling to James Morris, on the first Tuesday in March, 1844, for thirteen dollars and twenty-five cents. This 5th day of March, 1844.

“ C. W. BOND, Sheriff.”

This paper was offered as color of title. Plaintiff objected to it, on the ground that it appeared to be an *alias fi. fa.;*and no order of Court was shown authorizing an *alias*to issue. The Court sustained the objection and defendant excepted.

Defendant then introduced Charles W. Bond, the former Sheriff, who testified that he had sold the land to Morris, in March, 1844, and had received the money; that he had begun to write a deed, but being interrupted, he left it unfinished, and never finished it.

Defendant then introduced a deed to the land from R. Si Hancock, Sheriff, dated 2d Sept. 1846, reciting that Bond *10had offered the land for sale, as Sheriff, and that Morris became the purchaser. Bond testified that this was the same ■ paper which he had left unfinished, now finished and signed by his successor.

Defendant showed that he had purchased Bishop’s lease, by which he held under Morris.

The Court held, and so charged the Jury, that the Sheriff’s deed, made by Hancock, could not operate as color of title, except from its date ; that, therefore, there was no color of' title earlier than 184-6, except the lease, which could only support a claim to the 25 acres embraced in it; and that the purchase by Morris, and payment of the money, in 1844, could not support the Statute of Limitations. The Jury-found for plaintiffs.

To this charge and the other decisions of the Court, the-defendants excepted, and assigned sundry grounds of error-thereon.

Hull ; Akin, for plaintiffs in error.

Weight ; Hutchins, for defendants in error.

*By the Court.*

Staenes, J.

delivering the opinion.

[1.] An objection was made to the deed from Tarvin to-Smith, because there was no evidence of delivery in the certificate of attestation.

This deed is attested by two witnesses, one of whom was a Justice of the Peace. The attestation by a Justice is received in lieu of the affidavit of a subscribing -witness. Being on the record thus, in the “official attestation,” (to use the language of the Act of 1827,) of an officer appointed by law, to attest the due'and proper execution of such an instrument, and to make such certificate thereof as would admit the paper to record after the same was executed before him, one of the leading maxims of presumptive evidence applies, viz: that “ things are held to be legally and properly in their *11•existing state, until the contrary is shown.” That is to to say, under such circumstances, the deed will be held to be legally and properly on the record by due proof of signing, sealing and delivery, until the contrary is shown. This presumption is strengthened in this case by the fact, that the deed comes from the custody of the grantee.

[2.] The next point made was, that a *fi. fa.*tendered in evidence was an *alias fi. fa.-,*and that before it should have been admitted, an order of the Court, authorizing its issue, should have been shown.

This is not an *alias f,. fa.*in any proper, legal and technical sense of the term, whether such a *fi. fa.*be considered as a process issuing into different counties, or a second *fi. fa.*Issuing after the first has been returned. According to our .practice, we do not issue such *fi. fas.*And it is not pretended that this is any thing more than an established copy of a lost original. The entry indorsed of “ *alias fi. fa.”*could not, then, have been intended to mean more than this. But have we the right to attribute this to it as its legal signification ? The record does not authorize it. As this paper comes to us, it is in the form of an original ji. *fa.*It is signed by the Clerk, as such instruments are; and so far, it is regular and valid. But we know not by whom the indorsement is made. That entry is in no wise authenticated by the 'Clerk or other officer. Shall it be allowed to control the undoubted official act of the Clerk ? As a reason why it should not, take this illustration: Suppose, that in the face of the *fi. fa.*the amount recovered was stated to be one hundred and twenty-seven dollars and thirty-three cents, instead of one hundred and thirty-seven dollars and thirty-three cents, the amount indorsed upon the process. The writing in the body of the instrument, would of course, control as to the amount.

It will be remembered that the objection here was to the *fi.fa.*as it was presented. We will not say, but that if it had been made to appear, by some undoubted and authentic feature of evidence, that the same was a copy, but that an order of the Court should have been required. As it *12stands, however, the indorsement, *alias fi. fa.*is simply surplusage, so far as legal effect is concerned.

[3.]- After the *fi. fa.*was rejected, the defendants offered an entry, signed by the Sheriff, and attached to the *fi. fa.*which purported to be a levy on lot 283, in 9th district, 3d section of Cherokee Lottery, and a return and disposition of the subject of levy, by selling the same on the 5th day of March, 1844, to James Morris, for thirteen dollars and twenty-five cents. We think that these entries should have been admitted as color of title, together with the *fi. fa.*Together they would have served to define the claim. And color of title is any thing in writing, connected with the title, which thus serves to define the extent of the claim. *(Banvs.*Smyres, 2 *Strob.*29. *Beverly and another vs. Burke,*14 *Geo.*72.)

Failing in getting these entries before the Jury, the Counsel for defendants asked the Court to charge that the purchase of said lot, by Morris, and the payment of the purchase .money, taken in connection with the possession of Bishop and' Walls, would constitute color of title. This the Court refused.

It cannot be doubted, that the purchase of the lot and payment of the purchase money, in the absence of a better title, would constitute a title to the land, which could be enforced 'in a Court of Justice. But it was offered here as color of title in aid of possession.

If such color of title is not evinced by the unwritten facts •of purchase and payment, we think that it may be by written entries which show these things in connection with a given or specified lot of land. And we have said that such .entries, in this case, might have been used, together with the *Ji. fa.*in aid of possession. The character of this possession we will presently consider.'

[4.] We think the Court was right in charging that the deed of Hancock, as Sheriff, took effect, certainly, as to .third persons, when used as color of title only, from its date. Of course, whilst the deed was in an unfinished state, it could *13not properly be said to be legal notice of anything. And it was so unfinished, though it had been partially written by the former Sheriff, until the day of its date.

• But the Court charged that there was an entire absence of ■paper title until the execution of the deed by Hancock, set .up as color of title, except the instrument which was called a lease; and that that operated as color of title only to the extent of the amount of land therein described.

[5.] While we differ from His Honor, Judge Trippe, in the opinion that the entries on the *fi. fa.*may not be used to show color of title, and whilst we doubt that what is called the lease can be so regarded, not being signed by Morris; yet, we so far agree with him, as to hold' that such evidence .as there is, of color of title, is only supported by evidence of a possession of the twenty-five acres referred to in the lease.

It is true, that a landlord settling a tenant on his patent •with an intent to gain possession, (giving his tenant no bounds,) is, *ipso factor*in possession to the limits of his patent. *(Lee vs.*McDaniel, 1 *A. K.*Marsh, 234.) And if one be living on land, his possession is not restricted to the house in which he resides, but extends over all that he claims with color of .title. And the rule applies where the’ possession’ is by a ...tenant. *(Johnson vs. McMillan,*1 *Strob.*143.) ■ But in .this case, the claim which is supported -by’color of title, was ■ only an intention to possess to the limits of the twenty-five acres; ami the possession, therefore, can be carried no further, .according to the case before us.

Let the judgment be reversed.