UNITED STATES SUPREME COURT DECISIONS ON-LINE

Upon a deliberate review of the questions of law discussed and decided in the case of Carver v. Jackson ex dem. of Astor, 4 Pet. 1, the Court are entirely satisfied with the opinion and judgment pronounced on that occasion.

The circuit court has no authority whatsoever to order a peremptory nonsuit against the will of the plaintiff. This point has been repeatedly settled by this Court, and is not now open for controversy.

The circuit court cannot be called upon, when a case is before a jury, to decide on the nature and effect of the whole evidence introduced in support of the plaintiff's case, part of which is of a presumptive nature, and capable of being urged with more or less effect to the jury.

An ejectment for a tract of land was tried upwards of seventy years after the date of a lease, recited to have been executed in a deed of release of the premises in dispute, but which lease was not produced on the trial. Under these circumstances, the lapse of time would alone be sufficient to justify a presumption of the due execution and loss of, the lease, proper to be left to the jury.

The general rule of law is that a recital of one deed in another binds the parties and those who claim under them by matters subsequent. Technically speaking, such a recital operates as an estoppel, which works on the interest in the land, and binds parties and privies; privies in blood, privies in estate, and privies in law.

If the recital of a lease in a deed of release be admitted to be good evidence of the execution of the lease, it must be good evidence of the very lease stated in the recital, and of the contents, so far as they are stated therein, for they constitute its identity.

That a husband even before marriage, may, in virtue of the marriage contract, have inchoate rights in the estate of his wife which, if the marriage is consummated, will be protected by a court of equity against any antecedent contracts and conveyances secretly made by the wife in fraud of those marital rights may be admitted, but they are mere equities, and in no just sense constitute any legal or equitable estate in her lands or other property, antecedent to the marriage.

The solemn probate of a deed by a witness upon oath before a magistrate for the purpose of having it recorded, and the certificate of the magistrate of its due probate upon such testimony, are certainly entitled to more weight as evidence than the mere unexplained proof of the handwriting of a witness after his, death. The one affords only a presumption of the due execution of the deed, from the mere fact that the signature of the witness is to the attestation clause; the other is a deliberate affirmation by the witness, upon oath, before a competent tribunal of the material facts to prove the execution.

Whenever evidence is offered to the jury which is in its nature prima facie proof or presumptive proof, its character as such ought not to be disregarded, and no court has a right to direct the jury to disregard it or to view it under a different aspect from that in which it is actually presented to it. Whatever clubjuris

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just influence it may derive from that character, the jury has a right to give it, and in regard to the order in which it shall consider the evidence in a cause, and the manner in which it shall weigh it, the law has submitted it to it to decide for itself, and any interference with this right would be an invasion of its privilege to respond to matters of fact.

In that court, the defendants in error instituted an action of ejectment to recover from the defendant a tract of land situated in the Town of Carmel in the County of Putnam in the State of New York.

The title exhibited by the plaintiff on the trial in the circuit court was the same with that an abstract of which is given in the case of Carver v. Jackson ex dem. of Astor, 4 Pet. 1. It was founded on a patent from William III to Adolph Philipse, dated 17 June, 1697, for a large tract of land, including the premises, situated in the them province, now the State of New York. Frederick Philipse, the great nephew and heir at law of the patentee, Adolph Philipse, to whom the land granted by the patent had descended, devised his estate in fee tail to his four children in equal parts. One of the children of Frederick Philipse having died soon after her father, and the whole estate having, by a common recovery suffered in 1753 by the three surviving children, become vested jointly in them in fee simple, a partition of all the lands under the patent was made in 1754, by which certain portions of the same were allotted to the respective surviving devisees of Frederick Philipse, in severalty, Mary Philipse being one of the parties to the said partition. Mary Philipse, one of the said devisees, afterwards intermarried with Colonel Roger Morris.

The plaintiffs gave in evidence a deed dated 13 January, 1758, purporting to be a marriage settlement executed by Mary Philipse and Roger Morris, of the first and second part, and by Johanna Philipse and Beverley Robinson of the third and fourth parts. See 29 U. S. 4 Pet. 7.

The plaintiffs then proved a title in them by regular conveyances from the children and heirs of Roger Morris and Mary his wife, they being deceased, having also proved that the persons under whom the said title was held were such children clubjuris

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and heirs. Roger Morris and Mary his wife were attainted by an act of the Legislature of New York passed 22 October, 1779.

The plaintiffs gave in evidence by several witnesses, and by the production of receipts for rent, that Roger Morris, for several years before the War of the Revolution, was in possession of certain lots, part of the estate held by Mary his wife at the time of her marriage, and when the marriage settlement deed was executed, one of which lots, No. 5, was that for which this ejectment was instituted.

Joseph Crane proved that his father lived on the farm now occupied by the defendant, part of lot No. 5, under Roger Morris, from before the War of the Revolution, and continued in the occupation thereof until his death.

A deed from the commissioners of forfeited estates, executed according to the Act of Assembly of New York passed 22 October, 1779, produced by the defendant, on notice, was read in evidence, by which the said commissioners, on 1 June, 1780, conveyed the premises in question, being part of No. 5 in this suit, to John Crane, who, on 26 September, 1826, conveyed the same by deed, produced on the same notice to the defendant.

Upon these proofs the plaintiff rested his case. The counsel for the defendant thereupon objected, and insisted that unless the deed called a marriage settlement deed was accompanied or preceded by a lease, the plaintiff could not recover in this action, that without a lease, the said deed could only operate as a deed of bargain and sale, and the statute of uses would only execute the first use to the bargainees, Johanna Philipse and Beverley Robinson who took the legal estate in the land, and that the plaintiff could not recover without producing the lease or accounting for its nonproduction.

And because no lease had been produced and no evidence given to account for its nonproduction, the counsel for the defendant moved the circuit court to nonsuit the plaintiff; but the said circuit court, before the said justice and judge, then and there overruled the said objection and refused to grant the said motion for a nonsuit, and decided that the said plaintiff was entitled to recover without producing any lease, or accounting for its nonproduction, inasmuch as the recital in the release clubjuris

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was evidence of such a lease having been executed; to which said opinion and decision of the said circuit court the counsel for the said defendant, then and there on the said trial, excepted. And thereupon the counsel for the said defendant, to maintain and prove the said issue on his part, produced and read in evidence conveyances by way of lease and release severally, dated 26 September, 1765, and 18 September, 1771, which were given in evidence. The leases were executed by Roger Morris, and by Roger Morris and Mary his wife, formerly Mary Philipse, and the releases by Roger Morris and wife to William Hill, Joseph Merrit, and James Rhodes. These deeds did not mention or profess to be made under or in pursuance of any deed or deeds of marriage settlement, or that they were made in the execution of any power. And by the releases Roger Morris covenanted for himself and his heirs, that he was lawfully seized of the premises granted in fee simple, and that he had good right, full power, and lawful authority, to grant, bargain, and sell the same as aforesaid, and the said releases also contained the usual covenants for quiet enjoyment, against all former encumbrances, and grants of general warranty and for further assurance. The parties of the first part in the said releases were described as follows:

"Between the honorable Roger Morris, of the City of New York, Esquire, and Mary his wife, late Mary Philipse, one of the daughters and devisees of the honorable Frederick Philipse, Esquire, deceased, of the one part,"

and the description of the land granted, commenced as follows, to-wit:

"all that certain farm and plantation, situate, lying, and being in the County of Duchess aforesaid, and known and distinguished by farm number thirty-six of lot number five, of the lands formerly granted by letters patent to Adolph Philipse, Esquire, from whom the same descended to the said Frederick Philipse, Esquire, as his heir at law, the lands so granted by the same letters patent being usually called and known by the several names of Fredericksburgh, and Philipse upper patent, which said farm or plantation, number thirty-six, begins,"

&c.

The counsel for the defendant then read in evidence a deed of partition executed by the devisees of Frederick Philipse, before the intermarriage of Roger Morris and Mary Philipse, clubjuris

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and Henry Beekman and others, executed January 18, 1758, by which the boundary line between the patent to Adolph Philipse and colonel Henry Beekman was declared and established. Also, an exemplification of a deed dated 18 February, 1771, between Roger Morris and others relative to the lines of the patent to Adolph Philipse and those of other patents for adjoining lands.

The counsel for the defendant then produced and read in evidence, certain improving leases for life, executed by Roger Morris and Mary his wife, for parts of the land held by the said Mary under the patent to Adolph Philipse, and the deed of partition. These leases were severally dated on 23 October, 1765, on 21 June, 1773, 16 June, 1773.

The counsel for the defendant then produced and read in evidence the books of records from the Office of the Register of the City and County of New York, from which it appeared that deeds and conveyances of land (as well as various other instruments in writing) had been acknowledged by the grantors, or proved by the subscribing witness, and recorded from a period anterior to the year 1758 down to the close of the War of the Revolution, and that during the whole period of the war, except from March to September in the year 1783, deeds had been acknowledged or proved, and recorded; but from March 1, 1783, to March 17, 1784, no deeds had been recorded, some of which were acknowledged or proved before the members of his Majesty's council, others before aldermen of the said city, some before masters in chancery, and others before the judges of county courts in other counties, and it also appeared that deeds of lands, in other counties of the state, were recorded in the city and county of New York, and it also appeared, as to the deeds proved, before and after the close of the war (and of the last class a considerable number had been proved before Judge Hobart), that the certificates of proof stated the delivery, as well as the execution of the deed.

The particular character of the deeds and conveyances was not examined into or stated, but the records were produced for the purpose of showing the fact of the proving and recording of deeds and conveyances, and the form or manner in which it was done.

And thereupon the plaintiff read in evidence a part of the clubjuris

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deposition of Thomas Barclay, in which he testified that he knew Colonel Roger Morris, and his wife Mary, about the year 1759; they were then married, and lived in the City of New York.

And hereupon, the proofs having closed and the counsel for both parties having summed up the said cause to the jury, the counsel for the plaintiff submitted to the said circuit court the following points:

1. That the acts or declarations of the parties to the settlement, after the birth of the children, form no ground of presumption in this action against the delivery of the settlement deed.

2. That Roger Morris stood in the character of a grantee in that deed, and that a possession of the deed by him is evidence of its delivery, because the settlement gave him a larger interest in the lands than his mere marital rights.

3. That the actual signing and sealing of this deed by Beverley Robinson and Johanna Philipse, as well as by the other parties, and the attestation by the subscribing witnesses, that the deed was signed, sealed, and delivered in their presence, by all the parties, as proved on the part of the plaintiff, are in judgment of law complete evidence of such delivery, and of an acceptance of the estates therein granted and limited.

And thereupon the counsel for the defendant submitted to the said circuit court, the following points in writing, on the question of a delivery of the settlement deed of January 13, 1758, upon which points the said counsel prayed the said circuit court to charge and instruct the jury, as matters of law arising upon the proofs and allegations of the parties.

I. That it was necessary to the validity of the deed that it should have passed into the hands of the trustees, or one of them, or some person for them, with the intent that it should take effect as a conveyance.

(2) It is not enough that the trustees, as well as the other parties, signed and sealed, unless the deed was also delivered to and accepted by them, or some person on their behalf.

II. The evidence arising from the proof of the deed by William Livingston, in 1787, is no stronger than that arising from the proof of the handwriting and death of the subscribing witnesses. clubjuris

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(2) In either case it is only prima facie evidence, or evidence from which a delivery may be presumed, and may be rebutted by direct or circumstantial evidence, which raises a contrary presumption.

III. That in the absence of all proof, that the trustees, or any other person for them, ever had the deed, and there being no proof of a holding under it, the fact that the deed came out of the hands of Morris, in 1787, is sufficient of itself to rebut any presumption of a delivery arising from the proof of the deed by William Livingston, or the proof of the handwriting and death of the subscribing witnesses.

IV. If the jury, from the evidence, believes that the deed was signed and sealed on the day of its date, and that all William Livingston and Sarah Williams witnessed was what took place at that time, and that the deed was not delivered before the execution of the Beekman deed, on the 18th of January 1758, then there is no evidence of a delivery.

(2) It being conceded by the plaintiff's counsel, that the deed was not delivered at the time of the execution of the Beekman deed, on 18 January, 1758, then, if the jury believe the deed was signed, sealed and witnessed, on the day it bears date, there is no evidence of a delivery.

(3) If the jury believes the deed was not delivered on the day it was signed, sealed, and witnessed, then there is no evidence of a delivery.

V. The acts and omissions of Morris and wife, so far as they go to induce the belief that the deed was not perfected by a delivery, are of the same force and effect against the children and their grantee, as they would be against Morris and wife themselves.

VI. The jury, in judging of the acts said to be hostile to the settlement deeds, if they may determine with what intent those acts were done, must gather that intent from the acts themselves.

VII. Although the deeds to Hill Merritt, and Rhodes, would, in law, be a good execution of the power contained in the settlement deed, supposing that to have been duly delivered; yet upon the question whether that deed was or was not perfected by a delivery, those deeds contain evidence that the clubjuris

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parties were acting as the owners of the land in fee, and not as tenants for life executing a power.

VIII. The evidence upon the one side or the other should not be submitted to the jury as prima facie or presumptive evidence, either for or against a delivery; but the jury should consider and weigh the whole evidence together, and from the whole, determine whether or not the deed was delivered.

And thereupon the opinion of the said circuit court upon the points submitted on the part of the defendant was delivered in substance as follows:

To the first point, and the second branch of it, the said court gave the instructions as asked on part of the defendant.

Upon the second of the said points, the said circuit court overruled and refused to give the same to the jury, to which said opinion and decision of the said circuit court the counsel for the defendant then and there on the said trial also excepted.

Upon the second branch of the said second point, the said circuit court gave the instructions as follows; the proof by William Livingston, and the proof of the handwriting and death of the witnesses, are only prima facie evidence, from which a delivery may be presumed, and may be rebutted by direct or circumstantial evidence, which raises a contrary presumption.

Upon the said third point, the said circuit court overruled and refused to give the instructions therein prayed for to the jury, to which said decision and opinion of the said circuit court, the counsel for the defendant, then and there on the said trial, also excepted.

Upon the said fourth point, the said circuit court overruled and refused to give the instructions therein prayed for as matter of law, but that it was evidence for the consideration of the jury, to which said opinion and decision of the said circuit court, the counsel for the defendant then and there on the said trial also excepted.

Upon the second branch of the said fourth point, the said court overruled and refused to give the instruction therein prayed for to the jury, saying that such supposed concession was denied by the plaintiff's counsel, and they refused to give any instruction thereon, to which said opinion and decision of the clubjuris

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said circuit court, the counsel for the defendant, then and there on the said trial, also excepted.

Upon the third branch of the said fourth point, the said circuit court overruled and refused to give the instruction therein prayed for to the jury, to which said opinion and decision of the said circuit court the counsel for the defendant then and there on the said trial also excepted.

Upon the said fifth point, the said circuit court gave the instruction, as prayed for, to the jury.

Upon the said sixth point, the said circuit court overruled and refused to give the instruction therein prayed for to the jury, without adding to the said point the following words, to-wit, "connected with the other evidence in the cause," and with that addition, gave the said instruction to the jury, to which said opinion and decision of the said circuit court the counsel for the defendant then and there on the said trial also excepted.

Upon the said seventh point, the said circuit court overruled and refused to give the instruction as prayed, but gave the instruction following:

"although the deeds to Hill, Merritt, and Rhodes would in law be a good execution of the power contained in the settlement deed, supposing that to have been delivered; yet upon the question of whether that deed was or was not perfected by delivery, those deeds are competent evidence, from which the jury may judge whether Morris and his wife intended to act as if no marriage settlement had been executed, or under the power contained in the marriage settlement,"

to which said opinion and decision of the said circuit court the counsel for the defendant then and there on the said trial also excepted.

Upon the said eighth point, the said circuit court overruled and refused to give the instruction therein prayed for to the jury, to which said opinion and decision of the said circuit court the counsel for the defendant then and there on the said trial also excepted.

And the opinion of the said circuit court upon the points submitted by the counsel for the plaintiff was delivered in substance as follows, to-wit:

Upon the first of those points, that the acts of Morris and clubjuris

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wife were proper evidence to be considered by the jury in determining whether the settlement deed was delivered or not.

Upon the second of those points, that, strictly speaking, Morris could neither be considered as grantor or grantee in the settlement deed, and therefore the mere possession of the deed by him was no affirmative proof on either side as to the fact of delivery, to which said opinion and decision of the said circuit court, the counsel for the defendant, then and there on the said trial, also excepted.

Upon the third of those points, that if by "complete evidence," it was intended that the plaintiff's evidence was conclusive, or such as could not be controverted, the said instruction should not be given to the jury.

The jury found a verdict for the plaintiff in the ejectment, and judgment having been entered thereon, the defendant prosecuted this writ of error. clubjuris

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