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Willson v. McEvoy et al.

sustained by the current of the authorities. (Sedgwick on Dam. 307.) In Aberdeen v. Blackmar, 6 Hill, 324, which was an action upon an agreement to indemnify and save harmless the plaintiffs from any claim or demand, etc., Mr. Justice Bronson, in delivering the opinion of the Court, held that the declaration, which alleged the recovery of a judgment against the plaintiff on a demand covered by the agreement, was fatally defective, because it did not allege the payment of the judg

ment.

We think Gilbert v. Wiman, 1 N. Y. 550, also a case precisely in point. The suit was brought by the Sheriff on the bond given to him by his deputy, conditioned among other things that "the said Sheriff shall not sustain any damage or molestation whatsoever by reason of any act from this date done, or any liability incurred by and through said deputy." It was alleged in the declaration that judgments had been recovered against him on account of the neglect of the deputy, but it was not alleged that the Sheriff had paid any part of the judgments, and it was held that no recovery could be had on the bond in respect to the judgments, unless they had been. paid. (See Edwards v. Bodine, 11 Paige, 224.) A liability is not a damage, according to the signification of that term, as employed in contracts, and Courts have no authority to insert the term "liability " in a contract, and then proceed to enforce the contract as they but not the parties have made it.

The only remaining point necessary to be noticed is, that the Court, upon the findings, should have rendered judgment for him for at least nominal damages.

The only benefit that would have accrued to him by having the judgment entered for him for that sum was, that he would have been relieved of the payment of costs, taxed in the judg ment at four dollars and a half. We think we are justified, in this respect, in invoking the maxim de minimis non curat lex. (McConihe v. New York and Erie Railroad, 20 N. Y. 495; Jenning v. Loring, 5 Ind. 250.)

Judgment affirmed.

Muller v. Boggs et al.

HERMAN MULLER v. ANGUS L. BOGGS AND CHARLES

CLARK.

FINDINGS OF FACT BY A REFEREE.- Where a cause is tried by a referee, and the testimony is conflicting, the Supreme Court will not disturb his findings of fact.

CONSTRUCTION OF A DEED.-Where a deed conveys a tract of land by name and description, and then excepts from its operation certain parcels of the tract, and the language of the exception leaves it doubtful whether it was the intention of the grantor to except a particular parcel, the deed must be construed most favorable to the grantee, and the doubt resolved in his favor. DEPUTY POWER OF.-Where the statute confers on an officer power to appoint a deputy, but does not prescribe the duties of the deputy, the deputy has full power to do any and all acts which his principal may perform by virtue of his office.

COUNTY RECORDER DEPUTY OF.-A Deputy County Recorder, appointed under the provisions of the Act concerning County Recorders, of the 26th of March, 1851, had power in the name of his principal to take and certify acknowledgments of deeds.

SAME. The ninth section of said Act, enabling the deputy to perform the duties of Recorder in case of a vacancy in the office, or the absence or inability of the Recorder to perform his duties, is an enlargement of and not an abridgment of the powers of the deputy.

COUNTY RECORDERS.-The powers conferred upon County Recorders by the Act of March 26th, 1851, to take and certify acknowledgments of deeds, is an incident of the office, and not personal to the incumbent.

DEED.-The words "grant, bargain, sell, and convey," in a deed operate not merely to release but to transfer any interest which the grantor had in the land at the date of the deed.

FRXANTS IN COMMON

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RENTS AND PROFITS.-Where one tenant in common obtains judgment against a stranger for the possession of the entire premises, he cannot recover all the rents and profits, but only a proportion thereof corresponding to his interest in the land.

SAME.- If, in such case, judgment is rendered for all the rents and profits, the Supreme Court will not reverse the judgment, provided the plaintiff offer to remit the excess; but, thus modified, it will be allowed to stand.

APPEAL from the District Court, Twelfth Judicial District, City and County of San Francisco.

The following is the certificate of acknowledgment of the deed from Vallejo to Wohler, dated December 20th, 1851:

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"On this, the twentieth day of December, A. D. one thousand eight hundred and fifty-one, personally appeared before

Muller v. Boggs et al.

me, the undersigned, Recorder in and for the county aforesaid, Salvador Vallejo, known to me to be the person described in and who executed the foregoing instrument, who acknowledged to me that he executed the same freely and voluntarily, for the uses and purposes therein mentioned.

"In witness whereof, I have herewith set my hand and seal of office, this the day and year in this certificate above written. [L. S.] "R. H. LAWRENCE, Recorder.

"By L. N. EDMONSTON, Dep. Rec."

Salvador Vallejo, in January or February, 1850, caused a portion of the Rancho de Napa, containing about one thousand nine hundred acres, to be surveyed into lots and streets, and numbered the lots up to fifty. This plat was called the "Pueblo de Salvador," and was recorded.

This action was brought to recover the possession of lots numbered 25, 26, 31, 32, and fractional lots numbered 27 and 30, situated in said Town or Pueblo de Salvador, in the County of Napa.

The other facts are stated in the opinion of the Court.

Hoge & Wilson, for Appellants.

The deed of the 20th of December, 1851, did not, and was not intended by the parties, to include any of the lots of the Pueblo or Town of Salvador, and particularly any of the lots in controversy in this suit.

The case of Doe ex dem. Hampton v. Cowles, reported in 4th Dev. & Batt. N. C. Rep. p. 16, is remarkably similar in its details to the case before the Court. In that case the plaintiffs claimed title to the lots in question under the will of Hampton, devising to them his home plantation; previously, the Town of Hamptonville had been laid out, by the consent of Hampton, on a portion of his home plantation, and the lots sold. The heirs claimed two of these lots as part of the home plantation, and as passing under the clause of the will devising to them that plantation. The Court were very clearly of opinion that the land so laid off for a town was thereby

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Muller v. Boggs et el,

severed from the whole tract, or 'home plantation,' so as not to pass under that description in the devise."

In the case of Aldrich et al. v. Gaskill, 10 Cushing, 155, the devise was of " the farm on which I now live, consisting of about one hundred and fifty acres, and all the buildings thereon," and the question was whether this description included a portion which had been separated from the main portion of the farm by two small lots which had been sold for house lots; it, however, having been used and let with the other portions of the farm. On page 158, Mr. Chief Justice Shaw says: "Having been once a part of the farm, we think that there is no decisive act showing the intention either of the father or son to sever it from the farm. The word 'farm' is of large import," etc., * "but, as to the term, it is said to be a collective word, consisting of divers things gathered into one, as a messuage, land, meadow, pasture, wood, common," etc. "In this country it is a parcel of land, used, occupied, managed, and controlled by one proprietor The letting of small portions of it for the season or for short terms did not sever it, nor did the intention to sell it for house lots, not executed."

*

*

*

In our case, unlike the Massachusetts case, the intention was actually executed in the most solemn form, and placed upon the records of the county. It would be easy to imagine what would have been the opinion of the learned Chief Justice, who delivered the judgment of the Court in that case, upon similar facts to those existing in the case at bar.

In further support of our position, we also refer to the following cases, the limits of a brief not permitting us to specially quote from the facts and opinions of each case: Bell v. Sawyer, 32 N. H. 72; Brendlinger v. Brendlinger, 26 Penn. 132; Allen v. Allen, 2 Jones' Equity, N. C. 235; Venable v. McDonald, 4 Dana, 337, 338; Stone v. Clark, 1 Metcalf, 378; Gerrish v. Towne, 3 Gray, 82; Sargent v. Adams, Ib. 72.

But the important question is now presented: Was the Wohler deed properly acknowledged, so as to entitle it to go upon record, and thus become legal notice to any one?

VOL. XXV.- 12

Muller v. Boggs et al.

We confidently contend that it was not. A Deputy Recorder, under the law, had no power to take an acknowledg ment of a deed. The law casts that duty and power upon the Recorder as one personal to himself, and having no connection with his official duties as Recorder. There is no analogy between the case of a Deputy Recorder and a Deputy Clerk or Sheriff. The statutes regulating their duties are essentially different. The provisions of the statutes in relation to Clerks, Sheriffs, County Surveyors, and Recorders, will be found in Compiled Laws, page 193, sections 3 and 5; page 713, sections 13, 14, 15, and 16; page 839, sections 8, 9, and 26; pages 367, 368, and 130.

A Deputy Clerk, by express provision of law, has the same power, in all respects, as his principal. The Act of 1850, establishing Recorder's offices and defining the duties of the Recorder, gave him no power to take an acknowledgment of a deed. It was not until the Act of 26th March, 1851, that any such power was given to the County Recorder. The twenty-sixth section of that Act first authorized and empowered the County Recorder to take an acknowledgment of a deed. In both Acts, the whole official duties of the Recorder as such are prescribed and regulated. The sections in relation to deputies and their duties are the same in both Acts. Section seven of the Act of 1850, and section nine of that of 1851, provide that: "In case of a vacancy in the office of Recorder, or his absence or inability to perform the duties of his office, the deputy shall perform the duties of Recorder during the continuance of such vacancy, absence, or inability." It will be perceived that the deputy, under the provisions cited, has no power even to perform the ordinary duties of the Recorder as such, except in the contingencies named. (McRaun v. McGuire, 9 S. & M. 49, 50.)

J. McM. Shafter, for Respondents.

The question as to the acknowledgment of the deed from Vallejo to Wohler must be decided for us.

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