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the benefit of my said children, he is hereby empowered to do so; and I further will that the said Bernard Hagan, my husband, shall have full and entire control of said property hereby bequeathed, or any other property or securities into which he may by powers herein granted convert it.
“In testimony whereof, I, the said Mary C. Hagan, have to this my last will and testament subscribed my name and affixed my seal this 28th day of August, 1886.
"MARY C. HAGAN. (Seal.)" Later Mary C. Hagan departed this life, leaving surviving her six children and her husband, Bernard Hagan, seised of the equitable title to said lot of land, the legal title thereto still remaining in the Central Land Company. The will above copied was probated on the third day of July, 1889, and on the tenth day of May, 1893, C. P. Huntington, as special receiver of the Central Land Company, made a deed for said lot to the heirs of Mary C. Hagan, deceased, subject to the life estate of her husband, Bernard Hagan. Later Bernard Hagan, in his own right and as executor of the last will and testament of his wife, Mary C. Hagan, deceased, conveyed this lot to B. B. Harding, and Harding afterward reconveyed the same to Bernard Hagan. On the eleventh day of July, 1893, Bernard Hagan and wife conveyed the lot to Jas. K. Oney and Geo. E. McDonald, trustees, to secure the payment of the sum of twelve hundred dollars to the Huntington National Building and Loan Association, and default having been made in the payment of the loan, the property was sold under the deed of trust and conveyed to the Huntington Loan and Investment Company, which company later conveyed the same to the defendant.
100 The defendant assigns many reasons why the judgment of the circuit court should be reversed, but we need only consider the one relating to the action of the court in refusing to instruct the jury to find a verdict in her favor. There is no legal principle more firmly and better established than that the plaintiff, to maintain the action of ejectment, must have the legal title to the property sought to be recovered, and that he must recover upon the strength of his own title and not upon the weakness of the title of his adversary, and this being the established rule of law, to which there are no exceptions, we will look to see if the plaintiffs have shown title.
The defendant contends that the plaintiffs have not done so, first, because under the will of Mary C. Hagan, her husband, Bernard Hagan, was empowered to sell and dispose of
the property for the benefit and interest of the children and heirs, as to him seemed best, and that, acting under this authority, he did sell and convey the same to B. B. Harding, under whom the defendant holds; and second, if the will is not susceptible of this construction, that still from the properly admitted testimony it does not appear that the legal title to this property has ever vested in the heirs, but that the same remains in the Central Land Company, and the ground relied upon to support this contention is that the deed from C. P. Huntington, special receiver, to the heirs, was improperly admitted in evidence. It is true this deed recites the fact that it was made by Huntington as receiver in a certain cause, and that he had authority to make the same, but this is not sufficient. Bare recitals in a deed will not suffice to show authority for its execution: Mordecai v. Beal, 8 Port. (Ala.) 529; Soukup v. Union Inv. Co., 84 Iowa, 448, 35 Am. St. Rep. 317, 51 N. W. 167; Jones v. Sherman, 56 Miss. 559; Crump v. Thompson, 31 N. C. (9 Ired.) 491; Smith v. Webster, 2 Watts (Pa.), 478.
Where it is claimed that a deed is executed by a receiver or one appointed by the court to convey the title to another, there must be enough in the record vouched to show that the court did authorize the conveyance of the particular property, that it had jurisdiction of the person whose property was directed to be sold and conveyed, and that it also had jurisdiction of the subject matter. “Where a deed made under a 110 decree by a commissioner or other authority is offered in evidence as a connecting link of the party's chain of title to land, it is necessary to introduce with it so much of the record of the suit, in which such decree was made, as will satisfactorily show that the persons having the legal title to the land conveyed were parties to the suit, and as will identify the land": Waggoner v. Wolf, 28 W. Va. 820; Guinn v. Bowers, 44 W. Va. 507, 29 S. E. 1027.
It appears, however, from a certified copy of a decree of the circuit court of the United States for the district of West Virginia, entered in the chancery cause of C. P. Huntington et al. v. Central Land Company on the sixteenth day of December, 1690, that the court did appoint C. P. Huntington as special receiver, and authorized him to carry out and complete by proper deeds of conveyance all contracts of the Central Land Company for the sale of real estate. There certainly can be no question as to the receiver's powers in this respect, as the terms of the decree are broad, and unquestionably confer upon him such powers, and we think it abundantly appears from the record that the court had jurisdiction of the Central Land Company, the property of which was ordered to be conveyed, and also of the subject matter of the litigation. While, however, these facts unquestionably appear, yet the receiver was required, before proceeding to exercise the powers conferred upon him, to execute, acknowledge and have approved a bond as therein required for the faithful discharge of his duties. This requirement was à condition precedent to the right of the receiver to act in the premises. He had only such powers as were conferred upon him by the decree, and of course was subject to all the limitations thereby imposed upon him, and until he complied with its terms he was entirely without authority to execute any of its requirements. Therefore, we must look to see if he gave the bond as required. There appears at the foot of the decree introduced a certificate of the clerk that the receiver had given bond, and that the same had been approved and his appointment confirmed, but the defendant objected to the introduction of this certificate as evidence, and unless it can be considered as proof of the fact that the receiver did qualify by giving bond, there is no evidence to show that he did so. Can we consider it for the purpose of 111 establishing this fact? It is not more than the bare statement of the clerk that this is so—a statement by him that the record will show certain facts. This certificate amounts to no more than would the testimony of the clerk if he were called as a witness. We know of no provision allowing proof of a record of a court in this way. If the receiver qualified, the record would show it, and is the best evidence and must be produced. “Clerks of religious and other corporations, and other recording officers, may make and verify copies of their records, and in so doing act under the obligation of their oath of office. Of the verity of such copies the certificates are evidence. But it is no part of their duty to certify facts, nor can their certificates be received as evidence of such facts”': Oakes v. Hill, 14 Pick. 442; Greene v. Durfee, 6 Cush. 362; Wayland v. Ware, 109 Mass. 248; Wood v. Knapp, 10 N. Y. 109, 2 N. E. 632; Wigmore on Evidence, sec. 1678.
Without the establishment of this fact there was no foun. dation for the introduction of this deed, and when it is excluded, there is a missing link in the plaintiff's chain of title, which will defeat their recovering.
Then the other reason urged by the defendant is sufficient to defeat the plaintiffs in this action. The will authorized Bernard Hagan to sell and dispose of the property as to him seemed best for the interest of the heirs. This will unquestionably clothed him with the absolute power of disposal of this property. It is hardly necessary, in dealing with this question, to say that in construing a will we must do so by taking it by its four corners, and thereby ascertain the real intention of the testator, and when this intention is ascertained, to carry it into effect. The language of the will is plain and unambiguous, and it is easy to determine the intention of the testator, as it plainly and unmistakably authorizes Bernard Hagan, who was thereby appointed for the purpose, to sell or otherwise dispose of the property, and to invest or dispose of the proceeds thereof as to him seemed best for the interest of the heirs.
The sale and conveyance of this property by Bernard Hagan to B. B. Harding, and the reconveyance thereof by the latter to Bernard Hagan, and the conveyance by him to the trustees of the Huntington National Building and Loan 112 Association, the sale under this latter conveyance to the Huntington Loan and Investment Company, and the sale and conveyance by the last named company to the defendant, vested in her the fee simple title to the property in controversy.
Therefore, the instruction directing the jury to find for the defendant should have been given, there being no evidence upon which a verdict in favor of the plaintiffs could possibly be predicated, and as the record discloses that it would be entirely unnecessary to remand the case for a new trial, the judgment of the circuit court is reversed, the verdict of the jury set aside, and judgment entered for the defendant.
Recitals in a Deed as Evidence are discussed in the note to Jackson v. Shepard, 17 Am. Dec. 505. Ordinarily they are evidence only against the party executing the instrument: Morse v. Bellows, 7 N. H. 549, 28 Am. Dec. 372; Franklin v. Dorland, 28 Cal. 175, 87 Am. Dec. 111. It is said that recitals in a sheriff's deed as to his acts are prima facie evidence of the facts recited: Farrior v. Houston, 100 N. C. 369, 6 Am. St. Rep. 597. See, also, Owen v. Baker, 101 Mo. 407, 20 Am. St. Rep. 618. In some states, by statute, tax deeds are prima facie evidence of the regularity of the proceedings leading up to the sale: Powers v. Bank of Bottineau, 15 N. D. 466, 109 N. W. 361; Grand Forks v. Frederick, 16 N. D. 118, ante, p. 621.
A Deed in Which the Grantee Describes Hersclf as the widow and sole heir of B does not prove, nor tend to prove, that she is such widow or heir: Soukup v. Union Investment Co., 84 Iowa, 448, 35 Am. St. Rep, 317.
HENCH V. PRITT.
(62 W. Va. 270, 57 S. E. 808.] CONSTITUTIONAL LAW.—Private Property cannot be Taken for a Private Use, either with or without compensation. (p. 970.)
EMINENT DOMAIN_Public Use—Question of Law.—The question of what is a public use is always one of law, and though deference will be paid to the legislative judgment, as expressed in enactments providing for an appropriation of property, it will not be conclusive. (p. 972.)
CONSTITUTIONAL LAW_Taking Private Property for Private Use.-A statute, in so far as it attempts to confer the power and right of eminent domain upon the owners, or lessees of timber or tim. ber lands, to be exercised by them in the condemnation of lands for rights of way for their private benefit and not for the public use is unconstitutional, null and void. (p. 973.)
Dailey & Bowers and Harding & Harding, for the defendants in error.
W. B. Maxwell and Talbot & Hoover, for the plaintiffs in error.
271 McWHORTER. J. Hench, Dromgold and Shull, a partnership doing business under the firm name of Hench, Dromgold and Shull, claiming to be the owners of a large sawmill plant at the town of Mill Creek, in Randolph county, on the Valley river, a station on the line of the Huttonville Branch of the Western Maryland Railroad, filed their petition in the circuit court of Randolph county under section 2370, etc., Code of 1906 (section 69a and its subdivisions, chapter 54), setting forth that they were the owners of large bodies of timber and timber lands in said county in the vicinity of said railroad in and on the waters tributary to said Valley river, none of which timber was more than twelve miles distant from said Mill Creek station. That aside from the timber owned by the petitioners there were other parties owning large bodies of timber and timber lands along and upon the said waters, all of which timber would have to be hauled, by wagon at enormous cost, to the railroad and there manufactured or manufactured where it was situated, and the lumber produced therefrom transported at an equally great cost by wagons to said railroad in order to market the same; that petitioners proposed and desired to construct of steel rails and wooden ties, and maintain and operate by steam locomotives, a railroad from their sawmill at Mill Creek with an intersection at said town with the railroad and extending across the intervening lands to their said timber; that they had 272 employed a competent engineer and had caused him to