Hewlett v. D. & S. Cock, 7 Wend. 371

Hewlett v. D. & S. Cock

7 Wend. 371 | N.Y. Sup. Ct. | 1831

By the Court,

Nelson, J.

In endeavoring to establish his right to.recover,the plaintiff offered in evidence the counterpart of a lease, bearing date the 24th October, 1722, purport? ing to be made by Nicholas Lang, to Wright Frost and William Frost, from whom it. was alleged the defendants derived title to the farm they occupied adjoining the plaintiff’s This lease expired on the death of Lang, which took place about 1731 The effect of it upon the rights of the parties, if in proof, is not now to be examined, as the evidence on the part of the plaintiff had not closed when it was rejected, and a nonsuit was ordered. It was 108 years old, and was offered in evidence as an ancient deed, and was excluded on the ground that no evidence of possession accompanying it was given. In this decision the judge erred.

There is some confusion and contradiction in the cases in England, and in those decided in this court, as to the preliminary proof necessary to authorize an ancient deed to be read in evidence. Possession accompanying the deed is always sufficient, without other proof, but it is not indispensable. In Jackson v. Laroway, 3 Johns. Cas. 283, the English authorities were examined on this subject and an ancient will was adjudged to have been properly admitted in evidence, although actual *374possession had not followed, or accompanied it, that being sufficiently explained by the nature of the property in question, and circumstances shewn to raise a presumption of the existence and genuineness of the instrument. The judge who delivered the opinion of the court considered the English cases as plain-* ly distinguishing between an ancient deed, supported by possession, and a deed supported by other circumstances, and that where possession had not gone along with the deed, the party ought to give some account of it, to entitle it to be read in evidence. This case was noticed in Jackson v. Laquere, 5 Cowen, 221, and the principle decided by it recognized and applied by this court. The same principle is admitted by Lord Eldon, in 6 Dow, 202, speaking of the will of Sir T. Parkyns; and in Doe v. Passingham, 12 Com. Law R. 209, before Justice Bur-rough, at nisi prius, a will of more than thirty years standing was admitted in evidence, though possession had not accompanied it, without proof of execution ; and though the case was moved at bar, this decision was not complained of. Chancellor Kent dissented from the opinion of the court, in Jackson v. Laroway, and reiterated his doctrine, in Jackson v. Blanshan, 3 Johns. R. 298. The former case, however, has never been overruled ; on the contrary, it has been expressly recognized as law in Jackson v. Laquere, and has undoubtedly in its favor the weight of English authority. 12 Yin. Abr. Ev. 84. 5 Ancient Deeds, pi. 7. 1 Gilb. Ev. 104. 7 East, 291. Phil. Ev. 348. Bull. N. P. 255. 6 Dow. 202. 12 Com. Law R. 209. 1 Esp. R. 275. 2 Bac. Abr. 648.

Was there, then, such an account given by the plaintiff of the lease in this case as might reasonably be expected under the circumstances, and as affords a presumption of its genuineness 1 It was found among the muniments of the title to the farm, of which the premises in question are a part, 50 years before the trial, by Townsend Hewl ett, who received them from the heirs and devisees of William Moyle, who derived his title in part directly from Lang, the lessor. Yin. Abr. tit. Evidence, 84. 7 East, 291. Ancient writings, which are proved to have been found among deeds of evidences of land, may be given in evidence, although the execution cannot be *375proved; for it is hard to prove ancient things, and finding them in such a place, is a presumption that they were honestly and fairly obtained, and preserved for use, and are free from suspicion of dishonesty. An original lease could not be produced, being an ancient lease, but the grand-son of the lessor produced a counterpart, found among the evidences of his grand-father. This was allowed for evidence. Lev. 25. Lord Kenyon admitted a bond to be read without proof of execution, it being more than 30 years old, and appearing to have been found among the papers of the company, and was in the hand writing of their secretary. The Governor & Company of Chelsea Water-works v. Cowper, 1 Esp. R. 275.

There are other circumstances in the case which I think tend to confirm the genuineness of the lease. The lease was given by Lang, who owned the land on the west side of the brook, to the Frosts, who were owners of the land and mill on the east side, to allow them to flow the premises in question, by means of their dam, for the benefit of the mill. Now, it appears from the evidence that as far back as the memory of man can go, (between 50 and 60 years in this case) Sarah Frost flowed the land on the west side by means of her dam, precisely according to the terms of this lease, and neither she, nor Smith, who succeeded her, ever set up any claim to the land on the west side thus overflowed. On the contrary, Smith, who succeeded to the possession of Sarah Frost nearly 50 years ago, and continued in the occupation of the mill and farm till about 1814, when he sold to the defendants, admitted he owned no land on the west side of the brook. In the absence of evidence of any other right originally to overflow the land, which did not belong to them, I think it would be more reasonable to presume that it was done in pursuance of this lease, which gave originally the right to them, than that it was done without such license, and in violation of right. When the act may have been authorised and lawful, we are bound to consider it so, until the party interested clearly establishes the contrary; this principle is not only sound in itself, but just to all parties.. I do not say that this view affords sufficient presumption of possession under the lease from *376the time of its date to justify its admission as evidence, on' the ground of its being an ancient deed, but that it may be fairly urged as a consideration in favor of the authenticity of the l®ase> under the other alternative of the rule of evidence. Again; the claim made by T. Hewlett to the land overflowed by virtue of this lease, and the subsequent negotiations, during all which time it does not appear that Smith denied the authenticity of the same, were circumstances in its favor. It is fairly to be presumed Smith had the title deeds to his mill property, and a knowledge of the right, if any, to overflow the premises in question, and that if he had not considered the lease genuine, he would have denied Hewlett’s right to the premises, or set up his own. The acts and declarations of Smith, the grantor of the defendants, while in the occupation of the mill, and before he parted with his title, are as binding upon the defendants as if made by themselves. 5 Cowen, 129, and cases there cited.

. A new trial must be granted, for the reason that the judge ought to have admitted the lease in evidence, without proof of the execution of the same, on the ground of its being an ancient deed. Its great antiquity, the account given of it, together with the evidence of a corresponding possession,'and the other circumstances, were sufficient to authorise its admission.

New trial granted.