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Jackson v. Laroway.

[*283)

*JACKSON, er dem. Lewis and others, against

L AROWAS.

A will executod in 1723, and which had been proved by the witnesses in 1733

und 1744, and recorded, but not in a manner authorized by law, was al. lowed to be read in evidence, on the trial of an action of ejectment, in 1801, as an ancient deed ; though actual possession did not follow and accompany the will, that being explained by the peculiar situation of the property in question ; and other circumstances shown, 10 raise a prosump

tion of the existence and genuineness of the will. The general rule in reference to proof of ancient deeds is that a deed appear.

ing to be of the age of thirty years, may be given in evidence, without proof of its execution, if the possession be shown to have accompanied it, or where no possession has accompanied it, if such account be given of the deed, as may be reasonably expected under all the circumstances of the case, and will afford the presumption that it is genuine. Per Radcliff, J. Liringston and Thompson, J., concurring. Kent, J., diss.

This was an action of ejectment, for lands in the town of Windham, in the county of Greene, late part of the county of Ulster.

The plaintiff claimed title under a patent granted to Johannis Hardenbergh, Leonard Lewis and others, dated the 230 April, 1708. After producing the patent, he proved that Leonard Lewis, the patentee, under whom he claimed, died upwards of sixty years before the trial. He then offered in evidence a writing purporting to be the original will of Leonard Lewis, and to have been duly executed in the presence of three witnesses, bearing date the 20th February, 1723, upon which there appeared several endorsements, as follows: 1. A certificate of Johannis Van Kleeck, a justice of the peace, of the former colony of New York, dated the 23d Angust, 1733, stating that one of the witnesses to the will had appeared before him, and deposed to the execution of the will, by the testator, as his voluntary act and deed ; 2. A certificate of Jacobus Ter Bos, one of the judges of the court of common pleas of Dutchess county, dated the lih

Jackson v. Laroway.

October 1733, stating the like proof before him, by another of the subscribing witnesses ; 3. A certificate of the clerk of Dutchess county, dated the 21st July, 1735, that the will was recorded in his office; 4. A certificate, dated the 16th May, 1744, signed by a judge and two assistant justices of the çourt of common pleas of Dutchess county, and also by the clerk of the same court, stating, that the will had been proved before them, in open court, by the two witnesses above mentioned, who deposed, that they saw the testator sign, seal publish, and declare the same, as his last will; that he was of sound mind; that they subscribed their names thereto, *as witnesses, and that they also saw the [*284] other witness subscribe his name thereto as such.

The plaintiff also offered to prove the hand-writing of the clerks to the endorsements above mentioned, and of the judge who signed the endorseinent certifying the proof of the will in open court, and contended that under those circumstances, the will ought to be received as an ancient deed. It was objected to by the defendant, and overruled by the judge.

The plaintiif then deduced a title derived from the heir at law of Leonard Lewis, and proved, that the premises were occupied, about twenty years before the trial, by one Jan Laroway, who died in possession, abonit nine or ten years ago, and that the defendant held the same possession ; and, in order to prove that the premises were comprehended within the patent above mentioned, he offered in evidence an indenture, bearing date the 1st June, 1787, executed by William Cockburn, as attorney for the then principal proprietors, under the patentees mentioned in the patent, (except the representatives of Leonard Lewis,)on the one part, and by Jan Laroway and others, on the other part, by which indenture, Jan Laroway acknowledged that the premises lay within the patent, and accepled a confirmation or conveyance froin the patentees, who thereby granted the same to hiin and his heirs, reserving certain mines and minerals, and the rent of three bushels of wheat, to be paid by Jan Laroway and the

Jackson v. Laroway.

other parties of the second part, to the representatives of the patentees, and the heirs of Leonard Lewis. This indenture appeared to have been made for the purpose of settling and extinguishing the claim of all the patentees, under the patent, to the premises in question ; but the indenture was also objected to, and overruled by the judge. The plaintiff then proved, by parol testimony, that the

premises lay within the patent. [*285] *The defendant proved, that Jan Laroway possess

ed the premises, in the year 1753; that he died in possession, about ten or twelve years before the trial, and that the defendant, who was a younger son of seven children, had been in possession ever since his father's death. The defendant also offered in evidence a deed for a tract of land, including the premises, from G. V. Bergen and others to Isaac Van Alstine, Martimus Van Alstine, and Jan Laroway, dated the 2d October, 1753, without proof of its due execution by the parties, as an ancient deed, and as evidence that Jan Laroway entered and held the premises adversely, which was objected to by the plaintiff's counsel and admitted by the judge.

The defendant then insisted that it having been proved that Jan Laroway was in possession of the premises above five years previous to his death, and having died seised, and the defendant being one of his heirs, the plaintiff's right of entry was tolled by the descent cast. The plaintiff contended that as the defendant appeared to be only one of seven children who, by our statute, were equally entitled to the inheritance, it was to be inferred that he did not take as heir but as a purchaser, and that, therefore, it was not to be considered as a case of a descent cast. The judge decided that the possession of the defendant was to be deemed the possession of all the heirs, and that the adverse possession of the deceased constituted a disseisin, which, with the descent cast, barred the plaintiff's right to recover.

The plaintiff submitted to a nonsuit, with leave to move the court to set it aside and grant a new trial.

Colden and Jones, for the plaintiff.

Jackson v. Laroway.

Hoffman and Riggs, contra.

RADCLIFF, J. The questions which have been made on this case are :

*1. Whether the will of Leonard Lewis ought not [*286] to have been admitted in evidence ?

2. Whether the indenture, dated the 1st June, 1787, ought not to have been admitted ?

3. Whether there was a disseisin and descent cast, so as to bar the plaintiff's right of entry ?

As to the first question; I think there can be no doubt, as to the general position, that a will concerning real property may, under certain circumstances, be given in evidence, as an ancient deed. It is generally within the same reason, and is supported by the additional consideration, that until lately, no mode was provided to perpetuate the proof of wills respecting real estates, similar to that in the case of deeds. It has also been expressly applied to the case of an ancient writing, (not a deed,) proved to have been found among the deeds and muniments of an estate, on the ground, that its being found there created a presumption that it was fairly obtained, and preserved for use. (Trials per pais, 370.) The particular ground on which the will in question was refused I understand to be, that it did not appear that the actual possession of the premises accompanied it. Here it is necessary to state, that the premises are part of the great Hardenbergh Patent; that, until the year 1753, the premises were in a wild and uncultivated state, and actually in the possession of no one; at least, it does not appear that they were so possessed, before that period, and the contrary is to be presumed not only from the general state of the country, but from the facts in the case itself; and it may be added, that although possession was taken by the defendant's ancestors, in the year 1753, yet it does not appear that the heirs or representatives of L. Lewis had any notice of that possession till a long time after.

The general rule on this subject, I take to be, that a deed appearing to be of the age of thirty years may be given in

Jackson v. Laroway.

evidence, without proof of its execution, if the possession

be shown to have accompanied it, or where no (*287] *possession has accompanied it, if such account be

given of the deed, as may be reasonably expected under all the circumstances of the case, and will afford the presumption that it is genuine. This rule is founded on the necessity of admitting other proof, as a substitute for the production of witnesses who cannot be supposed any longer to exist. A correspondent possession is always high evidence in support of such a deed; but where no such possession appears, other circumstances are admitted to account for it, and raise a legal presumption in its favor.

The English authorities, (Loft's Law of Ev. p. 104; Bull. 255; 2 Bac. new ed. tit. Ev. p. 647; Trials per pais, 220; 12 Vin. 84. tit. Ev. 3 Salk. 154; 1 Keb. 377, pl. 27 ; 2 Keb. 126, pl. 79,) on this subject, plainly distinguish between the case of an ancient deed, supported by possession, and by other circumstances. They expressly state that, where possession has not gone along with the deed, the party ought to give some account of it, to entitle it to be read in evidence ; and I think this extent of the rule is founded on reason, and is essential to the ends of justice. In the present case, we have these facts: the will is dated in 1723; the prenises remained in their natural state, unoccupied, till 1753, when the defendant's ancestor took the possession; the precise line of the testator's death is not ascertained, but for a period of thirty years subsequent to the date of the will, the premises were not actually possessed by any one.

The possession of lands in that situation has been construed by our courts, to be vested in the party who shows a paper titie. The want of an actual possession under such circumstances, ought not to operate to the prejudice of any one, and is sufficiently accounted for to remove any objection, on that ground, against the introduction of the will, if it does not afford an argument in its favor. I think, also, that

this observation applies with equal force to all the [*298) period during which the representatives of L. *Lewis

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