Citations
- 35 Fla. 587
Full opinion text
Liddon, J.:
The case below was an action of ejectment brought by appellants against appellees. The verdict and judgment were for the defendants. The property in dispute were certain lots in the town of Ocala.
Among other assignments of ei’ror is one based upon the exclusion from the jury of a certified copy, from the records of deeds, of a deed conveying the premises-in dispute, made by one James Child to Horace Merry. Before offering the copy from the record the plaintiffs made proof that the original was not in their possession, and that search had been made for the same-where it was most likely to be found, but that sucha search was ineffectual. As the objection upon which the paper was excluded relates entirely to the proof' of its execution before the recording officer, it is¡ only necessary to set out in this opinion the in testimonium clause, the attestation and the affidavit, which were as follows: “In witness thereof the said party of the first part hath hereunto set his hand and seal the day and date above written.
J. Child. (Seal.)
Signed, sealed and delivered in presence of W. S. Olmstead,
John I. Livingston.
County op Marion, )
State op Florida. )
Before me, John L. Branch, Clerk of the Circuit-Court of Marion county, personally appeared Wood-bridge S. Olmstead, who on his- oath says that he saw James Child sign the above deed, and that he acknowledged that he did so for the purpose therein mentioned; and he, the said W. S. Olmstead, and John Livingston, signed the same as witnesses.
W. S. Olmstead.
Sworn to before me this the 4th day of January, 184S
John L. Branch, Clerk.”
The same John L. Branch who took the proof wasi the clerk who recorded the deed, and the copy offered! in evidence was duly certified from the official record: of deeds. The objection urged is, that the affidavit was-, insufficient to authorize the recording of the deed, because it proved only a signing, and not the sealing and delivery, or the full execution thereof. By reference-to the foregoing portion of the deed, it appears by the attestation clause thereof that the same was ‘ ‘ signed v sealed and delivered” in the presence of two witnesses, although the witness making affidavit for the purpose