Morris's Lessee v. Vanderen, 1 Dall. 64 (Pa. 1782)

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 shew 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.†

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 shewing 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 M'Kean C. J. 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 M'Kean, C. J. The plaintiff does not mean to shew 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 M'Kean C. J. 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.

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 hasty 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.

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. J. 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.

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.