Syllabus.

diction of this court in the present case is undoubted, but, as the previous remarks in this opinion show, the Circuit Court never had jurisdiction of it; and while we may be authorized to reverse the decree so rendered we have no power to amend the record so as to give jurisdiction to that court by proceedings here. The case in this court must be tried upon the record made in the Circuit Court. In this instance there has been a removal from a tribunal of a state into a Circuit Court of the United States, and there is no precedent known to us which authorizes an amendment to be made, even in the Circuit Court, by which grounds of jurisdiction may be made to appear which were not presented to the state court on the motion for removal. In fact, under the fifth section of the act of March 3, 1875, it being manifest upon the face of the affidavit or petition for removal in the present suit that the case had been improperly removed into the Circuit Court, it was the duty of that court at all times and at any time during its pendency before it to have remanded the case to the tribunal of the State where it originated. We can do no more, however, than to reverse the action of the court below from which this appeal was taken, because it had no jurisdiction of the case.

The decree in this case is reversed for want of jurisdiction in the Circuit Court, and the case remanded for further proceedings.

CULBERTSON v. THE H. WITBECK COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN.

No. 217. Argued April 11, 1888. Decided April 30, 1888.

The statutes of Michigan require the attestation of two witnesses to the grantor's signature. A deed of husband and wife was offered in evidence, the attestation to which was: Signed, sealed, and delivered in presence of S. W. for" the husband; " W. H. R., G. H. for" the wife; and there was a certificate that the word half' in the twelfth line was

Counsel for Plaintiff in Error.

interlined before signing S. W., E. W." E. W. signing this certificate with S. W. was the justice of the peace who took the acknowledgment, and his certificate of acknowledgment stated that he knew the person who made the acknowledgment to be the person who executed the instrument. Held, that the execution of the deed was proved, and it was properly admitted in evidence.

A certificate by a master in chancery and notary public in New Jersey, taking an acknowledgment there of a deed of land in Michigan that he is satisfied that the parties making the acknowledgment are the grantors in the within deed of conveyance." is a sufficient certificate that they were the same persons as those named as grantors in the deed; but if defective in this respect, the defect is cured under the laws of Michigan by a certificate from the proper official that the person taking the acknowledgment was a master in chancery and notary public,” and that “the annexed instrument is executed and the proof of acknowledgment thereto taken in accordance with the laws of the State of New Jersey." The will of a citizen of New York, dying in the city of New York, was admitted to probate there. A duly authenticated copy being presented for probate in Michigan, notice to all parties interested by publication was ordered, and on proof of such publication, and after hearing and proof, the instrument was admitted to probate in Michigan, and ancillary letters were issued. Held, that the parties were properly brought before the court by publication, and that the will was properly admitted to probate.

An objection as to the sufficiency of a certificate of a register of deeds to an instrument offered in evidence which was not made at the trial cannot be taken here.

In Michigan a declaration of trust which declares that the parties executing it hold the property in trust for themselves and two other persons is an express trust, and under the laws of that State the whole estate in law and in equity is vested in the trustees.

When a party to an action of ejectment in Michigan sets up a tax title, several years old, it is competent for the other party, after showing by the official records that an illegal expenditure of public money was ordered, sufficient under the laws of the State to vitiate the whole tax if paid from it, to prove by parol evidence that the sum so ordered to be paid was paid out of the moneys raised by the tax in question.

De

EJECTMENT. Verdict and judgment for the plaintiff. fendant sued out this writ of error. The case is stated in the opinion.

Mr. D. H. Ball and Mr. Walter H. Smith for plaintiff in error. Mr. A. T. Britton and Mr. A. B. Browne were with them on the brief.

Opinion of the Court.

Mr. Edward Cahill for defendant in error. Mr. B. J. Brown was with him on the brief.

MR. JUSTICE MILLER delivered the opinion of the court.

This is an action of ejectment, originally brought in the Circuit Court for the County of Marquette, in the State of Michigan, by The H. Witbeck Company, plaintiff, against William C. Culbertson, defendant.

The object of the suit was to recover certain lands situated in the county of Marquette, to which the plaintiff claimed title in fee. The case was removed to the Circuit Court of the United States, where a trial was had which resulted in a verdict in favor of the plaintiff. This, as a matter of right, was set aside, upon motion, under the law of Michigan, and a new trial granted, which also resulted in a verdict and judgment in favor of the plaintiff. It is this which the present writ of error brings up for review.

During the progress of the trial the plaintiff established title by various conveyances, beginning with patents from the United States, in William A. Pratt. As a link in the chain of title from Pratt, the plaintiff offered in evidence the record of a deed from Pratt and wife to Still Manning and William Wright, which was executed and acknowledged in the State of Michigan. This was objected to by the defendant upon the ground that it was attested by only one witness as to the signature of William A. Pratt. The instrument was, however, admitted in evidence notwithstanding the objection, to which the defendant excepted. This ruling is made the ground of the first assignment of error.

The deed offered in evidence was signed, acknowledged and recorded according to the laws of the State of Michigan. It is admitted that there was one witness to the signature of Mr. Pratt and two witnesses to the signature of Mrs. Pratt, but it is denied that there was a second witness to the signature of the former. The part of the record containing the testimonium is as follows:

Opinion of the Court.

"In witness whereof the said party of the first part have hereunto set their hands and seals the day and year first above

"The word 'half' in the twelfth line was interlined before signing [on the second page].

"STEPHEN Walsh.

"EBENEZER WARNER."

Ebenezer Warner was the justice of the peace who took the acknowledgment of Pratt on the 29th day of October, 1855, which is also the date of the deed, and in his certificate of such acknowledgment he says: "I certify that I know the person who made the said acknowledgment to be the individual described in and who executed the within instrument." It will also be noted that he signs with Walsh as a witness, and that their signatures immediately follow the statement as to the word "half" having been interlined before signing.

These circumstances are sufficient to show that Walsh and Warner were witnesses to the signature of Mr. Pratt, and the matter may be easily explained by supposing that Rockwell and Howe, the two witnesses for Harriet W. Pratt, inserted their names above those of Walsh and Warner as witnesses for William A. Pratt. Under all the circumstances we think the court was correct in admitting the deed in evidence. Carpenter v. Dexter, 8 Wall. 513.

The second assignment of error also rests upon an alleged insufficiency in the acknowledgment of another deed, which was offered in evidence by the plaintiff, from Still Manning and wife and William Wright and wife to Edward C. Wilder,

Opinion of the Court.

conveying all the lands in controversy. To the admission of this deed defendant's counsel objected "for the reason that it does not appear on said certificate that the persons acknowledging were the same persons as those named as grantors in said deed." The acknowledgment in this case was taken in the State of New Jersey, before William A. Richter, a master in chancery and notary public, who says in his certificate that the parties, naming them, personally appeared before him, "who, I am satisfied, are the grantors in the within deed of conveyance." This language is the defect complained of by defendant.

We are inclined to the opinion that this is sufficient evidence that the parties who appeared before him were the grantors in the deed. If he was satisfied of that fact the court cannot now inquire into the evidence by which he reached that conclusion. But any difficulty on this subject is removed by the certificate of the clerk of the county of Essex in that State, that said Richter was a master in chancery and a notary public in and for said county, and "that the annexed instrument [meaning the deed] is executed and the proof of acknowledgment thereto taken in accordance with the laws of said State of New Jersey." This official statement that the acknowledgment was made according to the laws of the State is, we think, sufficient to make it valid, because the law of Michigan provides, (Howell's Statutes, § 5660,) where such acknowledgments are taken out of the State, that the clerk certifying to the official character of the officer shall also state "that the deed is executed and acknowledged according to the laws of such State."

The third assignment of error is based upon the fact that the court allowed the plaintiff to put in evidence a record from the office of the register of deeds of Marquette County of the will of Edward C. Wilder. The objection of defendant's counsel to the admission of this certified copy of the will, as stated in the bill of exceptions, is "that said record contained no proof that the probate court of the county of Marquette obtained jurisdiction to make the order admitting said will to probate in this State, and that it contains no