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At Law. On demurrer to complaint.
HANFORD, J. This is an action against the inspector and judges of election of a precinct to recover damages for depriving plaintiff of a right which she claims of voting at the general election held in the territory of Washington on the 1st day of October, 1889. The complaint does not charge the defendants with having insulted her, or with any rudeness or malicious conduct. The injury, if any, was committed by the mere refusal of the board to receive and count the plaintiff's ballot. tion as to the right of women to vote in Washington Territory, at the said election, depends upon the validity of an act of the territorial legislature, which the supreme court of the territory has held to be void, because in conflict with an act of congress, and this court has jurisdiction of the case only by reason of the fact that this question involves the construction of said act of congress.
The court cannot, however, pass upon that question in this case, for, even if plaintiff's right to vote at said election be conceded, she cannot maintain the present action. The decision of the supreme court of the territory in the case of Bloomer v. Todd, 3 Wash. T. 599, 19 Pac. Rep. 135, was rendered prior to the election at which the plaintiff was denied the right to vote, of which she complains. In that decision the court held that women were not lawiu.ly entitled to vote; and as the laws were not thereafter, and prior to the election of October, 1889, changed, and as that decision had not been reversed or overruled, it must have controlled the defendants in this case in giving their decision as to the plaintiff's right to vote at said election, and they cannot be held liable in an action for damages merely because they followed it. If the decision be erroneous, the supreme court is responsible for the error; and as the law shields the judges of that court from an attack of this nature, it follows, of course, and is a rule of common sense and natural justice, that the members of an inferior and humbler tribunal, which of necessity accepted their decision, and followed it, are protected by the same shield. The authorities, as well as reason, so declare. Mechem, Pub. Off. SS 638, 639, 695; Gordon v. Farrar, 2 Doug. (Mich.) 409; Wall v. Trumbull, 16 Mich. 228; Cooley, Torts, p. 413; Jenkins v. Waldron, 6 Amer. Dec. 359. The demurrer is sustained.
1. EJECTMENT-EVIDENCE-ANCIENT RECORD.
Where it is proved that land was conveyed to J. in 1768, and has been assessed to his heirs ever since 1805, the original tax-lists of the town for the intervening years are admissible in evidence to show that J. was assessed for said land during said years, where such lists show that J. was assessed for land in said town, though
they do not identify the land. 2. SAME-PRESUMPTION OF DEED.
Where the question is whether a deed is to be presumed from long possession and claim of title, evidence that the claim of the adverse claimant was notorious in the community, and that, more than 60 years after the deed, if there was a deed,
was given, such claimant was too poor to sue, is irrelevant. 3. SAME-DEFENSES.
The attempt by a defendant in ejectment to prove that the will under which the plaintiff claims is invalid does not prevent him, on a second trial of the cause, to set
up the defense of a presumption of a deed to his grantor. 4. ADVERSE POSSESSION-PRESUMPTION OF DEED.
There is no absolute bar against the presumption of a grant within a period short of the statute of limitations. 5. SAME-PosseSSION.
Occasion al interruptions of possession during the period necessary to create a title by adverse possession, which do not impair the use to which the occupant subjects the property, and for which it is chiefly valuable, will not necessarily defeat
the presumption of a grant. 6. SAME-EVIDENCE.
It is sufficient ground for the presumption of a grant to show that, by legal possibility, a grant might have issued, though the probability of its existence is not
established. 7. SAME.
The facts that defendants and those from whom they derive title have claimed the land for more than 100 years; that during that time they have paid taxes on it; that for a long period of time they exercised acts of ownership over it; and that for more than 20 years they have actually used the land,
-are sufficient to justify the presumption of a deed. 8. NEW TRIAL--MISCONDUCT OF JURY.
The fact that two of the jurors during the trial of a cause read the opinion of the supreme court, rendered on appeal from a former judgment of the cause, is not ground for a new trial, where it clearly appears that the opinion was not furnished by or at the instigation of the successful party, and that the opinion was not taken
into the jury-room or laid before the jury. 9. SAME-AFFIDAVITS OF JURORS.
Affidavits of jurors are admissible, on motion for new trial, to prove, in support of the verdict, that a certain paper was not laid before the jury or read by them.
At Law. On motion for new trial.
GRAY, Justice. This was an action of ejectment, brought by Nathan Fuller, in his own right and as trustee, to recover 27 ndivided 28 parts of a lot of land, containing about 14 acres, and situated in the town of Lincoln, formerly Smithfield, in the state of Rhode Island. The defendants pleaded the general issue and 20 years' possession under the statute of possessions of Rhode Island, and upon these pleas issues were joined. Both parties claimed title under Francis Richardson, who acquired a tract of land, including the lot in dispute, in 1750, died in
1756, and by a codicil to his will devised the land to his daughter, Abigail Fuller, wife of Ezekiel Fuller, of whom the plaintiff and his cestuis que trust were descendants, and in whose right they claim. In 1768 Jeremiah Richardson, a grandson of Francis Richardson, conveyed the land to Stephen Jencks, the ancestor of the defendants, and in whose right they claim. A principal question in the case was whether Jeremiah Richardson, at the time of that conveyance, was entitled to the land either by a lost grant or by inheritance. The case has been tried five times. Verdicts returned for the defendants at the first trial, and for the plaintiff at the second trial, were set aside by this court.
A verdict returned for the plaintiff at the third trial was set aside by the supreme court on writ of error. 120 U. S. 534.' The fourth trial resulted in a disagreement of the jury. At the fifth trial, at November term, 1887, a verdict was returned for the defendants, and a bill of exceptions was tendered by the plaintiff and allowed by the presiding judge. The plaintiff filed a motion to set aside this verdict, and to order a new trial, which, so far as concerns the proceedings at the trial, has been submitted and argued upon the case as stated in the bill of exceptions. The evidence at the last trial was mostly the same as that introduced at the third trial, the substance of which is stated in the judgment of the supreme court, reported in 120 U. S. 534. A recapitulation of much of the evidence is therefore unnecessary.
The court, against the plaintiff's objection, and for the purpose of showing that Stephen Jencks was assessed for and paid taxes on this land from 1770 to his death, in 1805, admitted in evidence original taxlists of the town (being all before 1805 that the legal custodian thereof, as he testified, was able to find) for the years 1770 and 1805, and 21 of the 34 intervening years, each of which contained the name of Stephen Jencks as a person taxed, with the amount of his tax, and generally the word "and,” opposite to it; as well as a list of the polls and estates, real and personal, of the proprietors and inhabitants of the town, called an estimate for taxation, for the year 1778, (being the only list found during the same period,) by which it appeared that he was listed for 32 acres designated as wood and waste land, and also for 2 acres of tillage and 10 acres of pasture land. It being in dispute whether Jencks had so much land in the town other than the land in question, the plaintiff contends that all these lists were erroneously admitted, because they did not identify this land. But the names of the Fullers did not appear upon the lists, and there was no evidence that they were taxed in the town during the period in question; and it was proved that this land had been conveyed to Jencks in 1768, and has been assessed to his heirs ever since 1805. These ancient records, therefore, were rightly submitted to the consideration of the jury. Fletcher v. Fuller, 120 U. S 552, 7 Sup. Ct. Rep. 667; Com. v. Heffron, 102 Mass. 148, 152, 153
Upon the question of presuming a deed to Jeremiah Richardson before 1768, the plaintiff offered evidence of the poverty of himself and his
17 Sup. Ct. Pucp. 667.
cestuis quie trust, and of those claiming under the same title, by way of showing their inability to sue. The court, after liberally admitting such evidence down to the death of Abigail Fuller, in 1834, rightly excluded like evidence since that time, as too remote and irrelevant to have any bearing upon the question of presuming a grant more than 60 years before. The testimony offered by the plaintiff to prove “the notoriety of the claim of the plaintiff, and of those under whom he claims, of the land in dispute, in and throughout the community where the land lay, extending over a period from 1822 to the present time,” was equally irrelevant, even if(which we do not intimate) it would, under any circumstances, be competent. The attempts of the defendants at the former trials to prove that the will of Francis Richardson was inoperative, for want of having been proved or recorded in Rhode Island, to pass title to his daughter, Abigail Fuller, and consequently that Jeremiah Richardson took by inheritance, had no tendency to defeat the independent defense of a presumption of a deed to Richardson.
No error is shown in the refusal to charge that
“If the jury find that Abigail Fuller, wife of Ezekiel Fuller, entered into possession under the devise in the will of Francis Richardson, then there is no sufficient evidence in the case to show an actual adverse and exclusive possession by any person under whom the defendants claim prior to the year 1800."
The bill of exceptions does not profess to state all the evidence introduced upon this point, or contain anything to restrict the application of the general rule that the sufficiency of evidence is a question for the jury.
Objection is taken to the refusal of the court to instruct the jury
"That if they should find that the defendants, or those under whom they claimed, had had twenty years' uninterrupted adverse and exclusive possession of the premises, during which time the plaintiff, or those under whom he claimed, had been free from legal disabilities, they were justified in presuming a grant; but otherwise they must decide according to whether the evidence did or did not lead to the reasonable belief in the rightful origin of the defendants' possession, or of those under whom they claim.”
But such an instruction would be entirely inconsistent with the opinion of the supreme court, in which it was distinctly aflirmed that, when the other circumstances are very cogent and full, there is no absolute bar against the presumption of a grant within a period short of the statute of limitations; and also that when a proprietary right has long been exercised, although the exclusive possession of the whole property to which the right is asserted may have been occasionally interrupted, yet if the actual possession has been accompanied by other open acts of ownership, and the interruptions did not impair the uses to which the possessor subjected the property, and for which it was chiefly valuable, they should not necessarily be held to defeat the presumption of the rightful origin of his claim, to which the facts would otherwise lead. 120 U. S. 550, 552, 7 Sup. Ct. Rep. 667.
The instruction requested, "that if the jury should find that Jeremiah Richardson made the deed to Stephen Jencks in 1768, claiming to own
the land, not under a conveyance from Abigail Fuller, but by inheritance from his grandfather, Francis Richardson, then no presumption of a grant could arise,” was rightly refused, if for no other reason, because it would have withdrawn from the consideration of the jury the evidence of the defendants' possession since 1768.
The instructions given upon the return of the jury into court for further instructions were as follows:
“With respect to the presumption of a grant or deed, it does not rest upon the fact of whether these defendants prove a lost deed as a matter of fact; for the law says to you that it is your duty, if you find that these defendants, the Fletchers and the Dexters, have claimed this property for more than a hundred years, if they have paid taxes on it for a long period of time, if they have exercised acts of ownership over it, and if they have been in possession of it for more than twenty years, then it is your duty to presume a grant: provided, the rebutting evidence on that does not overcome it. sumption of a grant does not arise from the proof of the fact that such a lost deed in fact existed, because then it would be a mere question of proof. A presumption rests upon the infirmity of human nature. It arises from the fact that evidence, owing to lapse of time, is lost; from the fact that the muniments or the deeds of title may be lost; from the fact that parties who are entitled to a valuable possession will claim it, provided others are enjoying it. Therefore the law says that you are warranted or justified in presuming a grant, whatever your belief may be of the fact of such grant, in order to quiet a long possession. So that this is the rule: It is not necessary, in order to presume a conveyance, to believe that the conveyance was in point of fact executed. It is sufficient if the evidence leads to the conclusion that a conveyance might have been executed, and that its existence would solution of the difficulties arising from its non-existence. It is not founded on a belief that a grant has actually been made in the particular case, but on the general presumption that a man will naturally enjoy what belongs to him, the difficulty of proof after lapse of time, and the policy of not disturbing longcontinued possessions. It is not indispensable, in order to lay a proper foundation for the legal presumption of a grant, to establish the probability of the fact that a grant ever issued. It would be sutlicient ground for a presumption to show that, by legal possibility, a grant might bave issued. Though the presumption of a grant or deed is one that may be rebutted by proof of facts inconsistent with its supposed existence, yet where no such facts are shown, and the things done and the things omitted with regard to the property in cuntroversy by the respective parties, for long periods of time after the execution of the supposed conveyance, can be explained satisfactorily only upon the hypothesis of its existence, it is the duty of the jury to presume a conveyance, and thus quiet the possession. If they find that the defendants or their ancestors in title have claimed the land for more than a century, that during that time they have paid taxes thereon, and for a long period of time exercised acts of ownership, suited to the condition of the property, and have actually used the property for twenty years or more, these things would justify you in presuming a deed from Abigail Fuller to Jeremiah Richardson, to quiet the possession of the defendants.”
These instructions were “duly excepted to, so far as they relate to the right or duty of the jury to presume a grant upon the facts as developed in this case;" but they were in exact accordance with the judgment of the supreme court in 120 U. S. 534, 7 Sup. Ct. Rep. 667.
The objections urged against the instructions originally given to the