dеlivered the opinion of the court. He stated the case as above reported and continued :
It is first assigned for error that the Circuit Court “ allowed the deed from Samuel C. Young to John Holmes to be read in evidence without instructing the jury that the reсitals therein in respect to the death of Samuel Young and the heirship of Samuel C. Young were not evidence against the defendants, even if it were admissible at all, without proof of its execution or possessiоn accompanying and held under it.”
The deed of Samuel C. Young to John Holmes was rightfully admitted in evidence, as an ancient deed, without- proof by the subscribing witnesses, or of possession by the plaintiffs or those under whom they claimed. When offered it was more than sixty years old; it was produced from the custody of the heirs of John Holmes, the grantee, who claimed the lands described therein. It, as well as the patent for the same land from the Commonwealth of Yirginia to Samuel Young, was shown to have been found among the papers of John Holmes. The lands described therein were shown to'h'ave been listed for taxation to John Holmes, or to his heirs, for a period beginning with the year 1838 down to and including the year 1875, which was after the bringing of this suit; and it appeared that during that time they had paid the taxes assessed on said lands, or the same had been released to them by law. It was further shown, that the judge before whom the ácknowledgment of the deed had been made was dead; that his signature to the certificate of acknowledgment was genuine; that the deed had been recorded in the сounty where the lands lay for more than forty-two years before it was offered in evidence; and that before and after the deed was put upon record the lands described therein were reported to be the lands of John Holmes, the grantee, and his heirs, and were known and designated in the neighborhood where they lay as the “ Holmes plantation.
This state- of facts amply justified the admission of the deed
*397
in evidence, as an ancient document, without other proof.
Caruthers
v.
Eldridge,
The question is, therefore, fairly presented, whether the recitals made in the deed of Samuel C. Young to John Holmes, to the effect that Samuel Young, the patentee, had died intestate, leaving one child only, namely, the said Samuel C. Young, the grantor, were admissible in evidence against the defendants, who did not claim title under the' deed.
The fact to be established is one of pedigree. The proof to show pedigree forms a well settled exception to the rule which excludes hearsay evidence. This exception has been recognized on the ground of necessityfor, as in inquiries respecting relationship or descent, facts must often be proved which occurred .many years before the. trial, and were known to but few persons, it is obvious that the strict enforcement in such cases of the rules against hearsay evidence would frequently occasion а failure of justice. Taylor on Evidence, ed. 1872, § 571. Traditional evidence is, therefore, admissible.
Jackson
v.
Cooley,
*398 Applying these rulés, we are of opinion that the recital in the deed of Samuel C. Young to John Holmes, supported as it was by the circumstances of' the case shown by the evidence was admissiblе, as tending to prove the facts recited, namely that" Samuel Young, the patentee, was dead, and Samuel C. Young, the grantor, , was his only child and heir.
■ As the deed in which the recital was made was entitled to be admitted in еvidence, it stands upon the same footing as if its execution- had been proved in the ordinary way. The fact, therefore, that, on the twelfth-day of July, 1819, the date of the deed, in the city of Philadelphia, before Richаrd Peters, United States Judge, and two other persons as witnesses, Samuel 0. Young, the grantor' in the deed mentioned, made the declaw tions in question, may be taken as established.
• It is not disputed that when, upon the trial of the-case in the Circuit Court in October, 1880, the deed containing the recitals was offered in evidence, the declarant, Samuel C. Young, was. dead. It only remained, therefore, to offer some evidence that the declаrant, Samuel C. Young, was related to the family of Samuel Young. One circumstance relied on to show his relationship was the similarity of names. This, after the lapse of so great a time, was entitled to weight. Another fact wаs that the patent to Samuel Young for the land in controversy was found with the deed of Samuel C. Young to John Holmes - among the papers of the latter after his death. The well-known practices and habits of men in the transfer of title, make • it clear that the patent was delivered to Holmes by Satnuel C. Young, when the latter delivered his own deed to Holmes for the premises conveyed by the patent. There was, therefore, pеrsuasive proof that on January 12, 1819, Samuel C. Young had in his possession, claiming it a"s a muniment of his title, the patent issued by the Commonwealth of Yirginia to Samuel Young; and the presumption is that his possession of the patent was rightful. . The fact that Samuel C. Young, representing himsélf to be the son-and heir of Samuel Young, 'had,in his rightful possession the title papers of the latter to a valuable estate, .is a fact tending to prove the truth of his ’ asserted relationship.
*399 Anothér circumstance of weight is 'that Samuel C.-Young, having assumed, as the son and sole héir of Samuel Young, to convey the landed estate of the latter, and his grantees having for more than sixty years claimed title under his conveyance, the right of Samuel C. Young to make the conveyance has never, so far as appears, been questioned or challenged by any other person claiming under Samuel Young.
After a lapsе of sixty-one'years we think these circumstances were sufficient to prove that Samuel C.- Young was of the family of Samuel Young, and that the declaration of the former, deliberately made in an ancient writing, signed, sealed, witnessed, acknowledged, and recorded, to the effect that the declarant was the only child and heir of. Samuel Young, and .that the latter was,dead, was of right admitted in evidence, as tending to prove the fаcts so recited. .This conclusion is sustained by the case of
Deevy
v.
Cray,
The next and only other ground of error alleged by the defendants is, that the court refused to charge the jury on the question of forfeiture. "We think there was no error hére.
The forfeiture of thе lands ill controversy is alleged to have occurred by virtue of the'provisions óf the second section of the act of February 27, 1835. Two classes of lands were declared subject to forfeiture by this act. The first was lands which had never been entered upon the books of the commissioners of revenue for the county in which the lands lay.
, There is a failure to show that the lands in question had never been listed for taxation upon the bоoks of the commissioners of Lee County, within whose limits they were included. It is, true, the certificate of the Auditor of Public Accounts, introduced by the defendants, states that the records of Lee County prior to 1827 are missing. But it cаn hardly be maintained that when a party shows his inability to prove *400 an essential fact, the fact may be inferred from his inability to prove it.
But the same certificate shows that the lands of Samuel Young were placed оn the books of the commissioners of Lee County for six years, namely, from 1827 to 1832 inclusive, and that the taxes on the same lands had been paid up to and including the.year 1832. Upon the showing of the defendants themselves, it aрpears that the lands in question do not belong to the class which had never been entered upon the books of the commissioners of revenue.
Nor are the defendants any more successful in showing that the lands in сontroversy fell within the sqcond class liable to forfeiture, namely, those which for many years previous to-February 27, 1835, the date of the act declaring the forfeiture, had hot been entered upon the books of thе commissioners of revenue. For, referring to the second, section of the act of March 10; 1832 (Laws of Yirginia, 1832, ch. 73, p. 67), it appears that only those tracts of land on which the unpaid taxes exceeded $10 werе liable to forfeiture under the act of February 27, 1835. There is no proof that the taxes and damages on the lands in question exceeded that amount. On the contrary, if the table of lands showing the taxes thereon for the years 1827 to 1832 inclusive, certified by the Auditor of Public Accounts, includes the lands in controversy, as the defendants contend, the taxes thereon for all the years stated amounted to only 38' cents, and. the taxes were, therefore, released and relinquished by the second section of the act of March' 10,1832. And if this table did not-include the lands in controversy, then there is an entire failure to show what the taxes were. " The defendants, therefоre, have failed to prove that the lands inucontroversy were liable to forfeiture under the act of February 27, 1835.
But there, is affirmative proof that no forfeiture could have occurred, for the time for entering the lands on the commissioners’ books for taxation and for paying the taxes, and thereby preventing forfeiture, was extended, as has been stated, to the first day-of July, 1838, and it was shown by the certificate of Crabtree, the deputy sheriff, that as early as December 14,
*401
1837, the lands in controversy were placed upon the tas-books and the damages thereon taxed; and it was further shown that the State of Virginia never claimed the lands as forfeited, but from the year Í838 down to the beginning of this suit, a period of more than thirty-three years, had assessed and collected taxes therefor from the plaintiffs and those under whom they claim. It follows that the failure tо show a forfeiture of the lands under the act of February 27, 1835, was, complete. -It would, therefore, have been the duty of the court, if it gave any instruction upon this branch of the defence, to say to the jury that the defendants had failed to maintain it. It can hardly be urged by them, as a ground for the reversal of the judgment, that the court did not so charge.
Brobst
v. Brock,
Bidgment affirmed.