Opinion
October, 1794.
Peery and Miller for plaintiff. Ridgely and Bayard for defendant.
The plaintiff deduced a title to Joseph Warrington to the lands in question, and showed that upon his death letters of administration were granted to his widow, Sarah, who intermarried with one Elias West. They then showed a conveyance of Elias West and Sarah, his wife, administrators of Joseph Warrington, to Peter Robinson, which recited an alienation bond of J. Warrington to Peter Robinson; and that the conveyance was in pursuance of it. Also a petition of West and wife for leave to convey etc. They then offered in evidence a writing purporting to be a copy of an alienation bond of the said J. Warrington to the said P. Robinson, certified by the recorder of deeds of the county in common form to be a copy of the record of a bond recorded in his office.
The copy was objected to by the counsel for the defendant as inadmissible evidence. They stated that it did not appear by the certificate of the Recorder, or otherwise, that the bond was ever proved in the Court of Common Pleas in the manner directed by the Act of Assembly [ 2 Del. Laws 1160] previously to its being recorded, that the certificate from the prothonotary of such probate was the warrant necessary to the Recorder to authorize his recording the bond. Without such probate being made, the act of the Recorder was wholly unofficial and was nothing more than the act of any private person. And upon such principle the certificate was but a copy of a copy and inadmissible upon the plain and common rules of evidence.
Upon the other side, it was insisted that by the Act for recording of deeds the Recorder was bound to receive and record all deeds which were brought to him. That as an officer appointed for the special purpose of recording deeds there was certainly more faith to be given to his act than to that of a private person, though every ceremony of the law had not been observed. That if the bond had been proved, the present certified copy would unquestionably be evidence. And as it was recorded and could not be so regularly without having been proved, the court would presume that it had been proved, because that must have happened before it could have been recorded et omnia presumuntur solemniter acta etc.
The copy offered is no evidence. The Recorder has no authority to record any instrument but in pursuance of the directions of the Act of Assembly. Such a bond as the present he had no right to record before it was proved. What he does without authority, can derive no credit from his character as an officer. A copy certified by the Recorder is no evidence unless he is directed by law to record the instrument and records it according to the direction.
Copy rejected.
When the plaintiff had gone through his evidence, defendant offered to demur, but it was objected by the counsel for the plaintiff that as there was parol evidence the defendant had no right to demur, or, if he did demur, the plaintiff was not obliged to join in the demurrer.
SED, PER CURIAM.
Notwithstanding there is parol evidence, a party may demur, and the opposite party must join in the demurrer. By the demurrer the whole evidence is admitted to be true, and, of consequence, the party cannot complain as he has the full benefit of it.