Several points of evidence were determined in this cause; which
was an Ejectment, brought for the recovery of a lot on the west
side of Second street, in Philadelphia.
1st. The Plaintiff, in order to show that the persons under whom
he claimed were original purchasers from William Penn, the
proprietary, offered in evidence a paper from the proprietary's,
(or rather surveyor general's) office, containing the list of names
of such persons as were original purchasers; and therein were the
names of those from whom the plaintiff derived his title. It was
objected to, because the deeds themselves ought to be produced, as
it did not appear that they had been destroyed. But it was
answered, that the lot in question is appurtenant to a large tract
of land, and that the deeds are in the possession of the owners of
that large tract; for, on the settlement of the province of
Pennsylvania, every one who bought 5000 acres of land in the
country, was entitled to certain lots within the city, which became
afterwards separated.
And By the Court: The objection is over-ruled and the paper
allowed to be given in evidence.
*
[ Morris' Lessee v. Vanderen
1 U.S.
64 (1782)
2nd. The plaintiff produced the Proprietary's warrants to make a
survey of the lands in question, for a person under whom he now
claimed, without showing any actual survey, but only a paper in the
nature of a certificate from a former surveyor general, stating
that such survey had been made. It was opposed, because the present
surveyor general (Lukens) swore that there was no such survey in
the office; that surveys of other lots were wanting, and that this
paper was copied from a book in the office. The Court ruled, that
the paper should not be given in evidence, being only the copy of a
copy; but that the book from which it was taken might be read to
the jury: And it was said by McKean C. F. that the court has a
discretionary power to admit circumstantial evidence of the
existence of a record. Aleyn. 18. 3rd. The plaintiff offered to
prove that certain deeds, necessary to make out his title, were in
the hands of, and detained by, the heirs of one Israel Pemberton,
under whom the plaintiff insisted that the defendant was only a
Lessee; and also to give in evidence sundry letters written by the
said Pemberton. It was objected, that the defendant is not to be
affected by the conduct of a third person. To which the plaintiff's
council answered, that they undertook to prove, that the defendant
is no more than a Lessee from the heirs of Pemberton; and the
possession of the Lessee, is the possession of the person entitled
to the reversion. But for the defendant it was still urged that his
title is not to be made out by the plaintiff; that he rests upon
his possession; and that till the plaintiff can make out a good
title of his own, the defendant's possession is good against him;
for the plaintiff must recover upon the strength of his own, and
not upon the weakness of the defendant's title.
But by McKean, C. F. The plaintiff does not mean to show the
defendant's title, but only his possession, which is admitted by
the record; if Israel Pemberton was defendant, it would be good
evidence against him, and, if the plaintiff proves that the
defendant is in under Israel Pemberton, or his heirs, he may give
the detention of the deeds in evidence, and also the letters,
unless the defendant shows another title; 1 Ld. Raym. 311. A bill
of exceptions to this opinion was tendered and allowed; but, I
believe, it has never been prosecuted. 4th. The plaintiff proceeded
to call a witness to prove that the defendant was only Lessee; and
it was sworn, that since the commencement of the suit (to wit, two
days before the trial) the defendant told the witness, that he held
under the heirs of Pemberton. This testimony was objected to,
because it is a general principle, not to receive evidence of any
thing that happens after the suit. But it was answered, that this
is only proof of an acknowledgment of a fact previous to the
suit.
And by McKean C. F. I recollect one case in the books upon this
point; and that is, That an acknowledgment of a debt after suit,
takes it out of the statute of limitations. Let the witness
proceed.
Page 1 U.S. 64,
66
5th. The plaintiff produced the probate of a will, under the
seal of the Prerogative Court of Canterbury in England, to prove
title to the lots in question in those under whom he claimed; which
probate was not recorded in the office here. It was objected, that
the probate of a will is no evidence as to lands; but it was
answered, that by an Act of Assembly passed in 1705, it is made
evidence here; and the Court allowed the probate to be read; though
excepted to, and admitted in the bill of exceptions. 6th. The
plaintiff produced a deed executed in England, and recorded here;
which was read in evidence. 7th. In order to prove some facts
relative to the title of Israel Pemberton, the plaintiff called one
Wilson, who objected to being examined, alledging that what he knew
of the matter, came to him in confidence. It appeared that Israel
Pemberton was a merchant; that he took Wilson into his house when
he was declining in business; that he did very little in trade
afterwards; that Wilson used to copy deeds for Pemberton, and after
some time (having gained experience) to draw such deeds and
writings as were necessary touching his estates; that Wilson lived
in the house with Pemberton, but that he had leave to draw, and did
draw deeds for other people. Under these circumstances, his
examination was objected to, because, it was said, that he was as
much Pemberton's council, as any man could be. And Skin. 404. 3
Black. 370. Bull. Nisi Prius 284 Giib. L. E. 138. 139. were cited.
It was answered, that Wilson was neither attorney, solicitor, or
scrivener, but only in the capacity of a clerk to Pemberton; that
the reason why the law will not allow a council, or attorney, to
reveal his client's secrets, is, because a man is obliged to have
recourse to professional characters in matters of law; and,
therefore, the law protects the client against the danger, and the
council or attorney against the indelicacy, of a disclosure.
Wilson's evidence, however, was dispensed with, on the plaintiff's
part; not from an apprehension, that the point could not be
supported; but, as it was said by the council, under an impression
of its great importance, and a wish to avoid drawing the court into
a hatty decision; particularly as it was found the evidence could
be waved without prejudice to the cause. 8th. In order to prove
possession in one under whom the defendant claimed, the defendant
offered to read a letter from Thomas Story dated in 1735, although
Story himself was no way concerned in the title, to prove that he
had the possession for Ratcliff Meeting in London. But this was
objected to, and disallowed by the court, it being a particular
fact, which ought to be proved by witnesses on oath, records,
&c. The defendant's council cited Omichund versus Barker. 1
Atk. 21. Ld. Raym. 311. Bull. Nifi Prius 229. 290. 3 Blackst. 368 2
Wils. 273 3 Burr. 1255. Gilb. L. E. 102. and excepted to the
opinion of the Court, which was allowed in the bill of exceptions.
9th. A deed executed in England, and acknowledged here, though not
recorded, was read in evidence.
Page 1 U.S. 64,
67
It was said in the course of this cause, that no act of
parliament made in England, previous to the settlement of the
Province of Pennsylvania, shall extend to the province, unless
directed to be so extended either by acts of assembly,
adjudications of courts, or established usage; and, therefore, the
statute 32. H. 8. c. 9. against embracery, does not extend here;
but the statute of limitations 32. H. 8. c. 2. does. An act of
assembly 1 St: Laws, 88. proves this doctrine.
McKean, C. S.
In his charge to the jury, laid down the following
positions:
The recital of one deed in another deed, is no evidence but
against the party claiming under it. Vaugh. 74. Gilb. L. E. 99.
The statute of 32 H. 8. c. 9. against embracery, does not make
void the contract; notwithstanding the cases in 1 Hawk. 249. Carth.
251. 2 Blac. 290; for those cases extend only to contracts where no
penalties are inflicted.
The statute of 32 H. 8. c. 9. is not in force in Pennsylvania;
nor is the 21 Fac. 1 c. 16; but the statute of limitations of 32 H.
8.c 2. is in force here.* This state has had her government above a
hundred years; and the statute of embracery has never been extended
either by law, or practice, during that period. It is the opinion
of the court, however, that the common law of England has always
been in force in Pennsylvania; that all statutes made in
Great-Britain before the settlement of Pennsylvania, have no force
here, unless they are convenient and adapted to the circumstances
of the country; and that all statutes made since the settlement of
Pennsylvania, have no force here, unless the colonies are
particularly named. The spirit of the act of assembly passed in
1718 supports the opinion of the court. [67-Continued.]
The statute of limitations, 32 H. 8. c 2. has always been
received in Pennsylvania. Fifty years possession has not been the
rule; but it is agreeable to the practice that sixty years
possession should be a bar.
An ejectment is almost the only action for trying the title to
lands in this state.
The recitals, of, or, in deeds, with respect to a pedigree are
evidence.
A bare perception of profits will not oust a tenant in common;
and for the statute of limitations to operate as a bar, the
possession must be adverse.
An interlineation, if made after the execution of a deed, will
avoid it, though in an immaterial point; nor is it to be presumed
to have been made before; the presumption is the contrary, unless
otherwise proved.
Verdict for the plaintiff, as to one third of the lot in
question, and for the defendant, as to the other two thirds.
Footnotes
[
Footnote *] See ant. 20. Hurst
versus Dippo.
[
Footnote *] See ant p. 15. Bham et
al. versus Engle.
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