Den on Demise Clarke v. Diggs, 28 N.C. 159

Den on Demise Clarke v. Diggs

28 N.C. 159 | N.C. | 1845

The plaintiff claimed the land in controversy under an alleged grant from the Royal Government to one John Slay, who conveyed the whole to one Auld. By mesne conveyances the land in dispute, consisting of 20 acres, came to a man by the name of Field, who conveyed it to Joseph Clarke. The latter conveyed to his three daughters, of whom the plaintiff was one, a tract containing 187 acres, the deed reciting that it was part of a tract granted to John Hamer. In order to make out her title, the plaintiff offered in evidence a paper-writing certified by the Secretary of State as being the copy of a grant for 300 acres of land to John Slay. This was rejected by the court as not being what it was (160) alleged to be, but merely a copy of boundaries. The plaintiff, failing by this decision to make out a title by a regular and connected chain, then offered in evidence, by deeds of conveyance, to show that the defendant was estopped by recitals in them to deny the title of the lessor of the plaintiff. It was shown that the land in controversy was a part of the Slay tract, and that the deed from Joseph Clarke to his daughters covered it, and that the defendant was in possession. But it does not appear that the plaintiff or any person under whom she claimed ever had been in possession.

The jury found a verdict for the plaintiff, and judgment being rendered thereon, the defendant appealed. We are spared the trouble of examining the doctrine of estoppel as applicable to this case, in the argument before us; that ground has been very properly abandoned. There certainly is no estoppel. But it has been argued that although there is no technical estoppel, yet the deed from Auld to Curtis, which conveyed to the latter 280 acres of the Slay tract, and recited the deed from Slay to Auld, and the deed from the latter to Field, for 20 acres, together with the deed from Curtis to Marshall Diggs of the same 280 acres, and the deed from the latter to the defendant, was good prima facie evidence of title against the defendant, who was a mere wrongdoer. We do not accede to the proposition, nor, indeed, is it in this State an open question. The rule here is a plain and simple one. The plaintiff in ejectment must recover on the strength of his own title, either as being in itself good against all the world or good against the defendant by estoppel. Duncan v. Duncan,25 N.C. 317. In this case it is admitted there is no estoppel, and (161) it is apparent the legal title, according to the evidence before the jury, was not in the plaintiff. The first link in her chain was wanting, to wit, the grant from the State. *124

In rejecting the paper certified by the Secretary of State, as a copy of the grant to John Slay, his Honor erred. It escaped his observation that this very question was decided by this Court in Candler v. Lunsford,20 N.C. 142. It is there ruled that grants or patents from the sovereign are enrolled in the office from which they emanate and are then records. Like all other records, copies of them, by the common law, may be used as evidence by all persons except those who would be entitled to the originals. The Legislature, by an act passed in 1748, recognizes this principle, and goes further, and makes the abstracts entered in the office of Lord Granville, or exemplifications of them duly proved, evidence as if the originals were produced. The paper offered in evidence is an abstract containing the courses and distances of the lines and the date, and is signed by the then Governor of the colony, and the Secretary of State has certified it as a true copy of the record of the grant. We believe the practice has been uniform to record abstracts, and though the act of '48 is not brought forward in the Revised Statutes, we are of the opinion that act merely recognized the rule of the common law, and by the latter the copy was evidence. The jury, however, gave the plaintiff a verdict, notwithstanding this error against him; yet, as this erroneous opinion may have prevented the defendant from relying upon other testimony in his power, we think it proper, upon the authority of Jones v. Younge,18 N.C. 354, that the case should be again submitted to a jury.

PER CURIAM. Venire de novo.

Cited: Taylor v. Gooch, 48 N.C. 468; McLenan v. Chisholm, 64 N.C. 324;Farmer v. Pickens, 83 N.C. 551; Tolson v. Mainor, 85 N.C. 238;Strickland v. Draughan, 88 N.C. 319; Aycock v. R. R., 89 N.C. 324; Rayv. Stewart, 105 N.C. 473; Cheatham v. Young, 113 N.C. 166; Alexander v.Gibbon, 118 N.C. 807; Marshall v. Corbett, 137 N.C. 557.

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