The opinion of the Court was delivered by
The defendant offered in evidence a deed, dated the Sth of October 1832, from Joseph B. Webster to Margaret Decamp, proved by a subscribing witness before one of the judges of the court of common pleas of Guernsey county, in the state of Ohio, on the 2Sth of January 1836: to which was annexed, a certificate under the hand of the clerk of that court and the seal of the court, that such person was a judge of that court. The objection is, that this is not a compliance with the act of the 23d of March 1319, which provides, that all deeds concerning lands, &c., within the state, that may hereafter be made out of this state, the execution whereof being duly acknowledged by the party or parties executing the same, or proved by the oath or affirmation of one or more of the subscribing witnesses thereto, before'one of the judges of the supreme court of the United States, or before a judge of the district court of the United States, or before any one of the judges or justices of the supreme or superior courts, or courts of common pleas of any state or territory within the United States, and so certified under the hand of the said judge and seal of the court, shall be as valid, &c.; and it is alleged that the seal of the court was not annexed to the probate, but only to the certificate of the clerk. But we think the objection without foundation; and that a probate before a judge, and a certificate annexed by the clerk, under the seal of' the court, is a certificate under the hand of the judge and seal of the court, within the meaning of the act. Any other construction would be attended with great inconvenience, because it is the clerk of the court who has the custody of the seal and not the judge, and, the clerk could not annex the seal to the actual probate without being present when the probate was made, along with the judge, and participating in the receipt of the probate. Whereas the efficacy of the probate consists in its being made before a judicial officer, and the clerk is but a ministerial officer. And such, it is believed, has been the constant usage.
The second and third errors assigned are to the charge of the court, and we think are not sustained. It was alleged by the defendant, that Webster was a soldier, to whom this donation tract of land was transferred by the commonwealth: that it could not be sold for taxes whilst he held it, and that the title remained in him until it was divested by his deed to the defendant, George Decamp, Mated the 8th of October 1832, which was after the assessment for taxes and treasurer’s sale to the plaintiff. The plaintiff endeavoured to repel this allegation by evidence, that before the treasurer’s sale, the defendant declared he had a good and sufficient title to the tract in question, without saying from whom, when or by what means derived; to one witness that he had been owner *544for eight or ten years, but did not mention from whom he derived title: and Benjamin Leland swore he told him he had bought it sixteen years ago, and had paid 500 dollars for it, and had a deed which he offered to show. Now the remark of the judge below seems unexceptionable, that loose declarations of this kind will not be relied on by a court, particularly where they have not induced another to purchase; for there is nothing from which it can be ascertained, whether the title alluded to was by deed, by article of agreement, by parol contract and payment of money and delivery of possession, by devise or descent, or whether it was a title under Webster, or adverse to him. Something more specific is necessary to furnish that solid and satisfactory ground on which a court is to decide the rights of property. Then the court below is complained of, in the third error, for instructing the jury in substance, that no title but a deed would be available to the plaintiff. Taking the whole charge together, the court seem to admit, that a title out of Webster, if the jury were satisfied that there was any such at the time of the assessment for taxes, would suffice. At the same time, as the only specific title mentioned with any particularity in the plaintiff’s evidence, was a deed, I do not think the court was to blame for confining the attention of the jury pretty much to that title alone.