5 Cow. 237 | N.Y. Sup. Ct. | 1825
On the 10th day of September, 1708, a patent was granted to William Appel including the premises in question. The lessors of the plaintiff claim to be his heirs at law.
At the trial, a sworn copy of certain entries of baptisms and marriages, in the records of the Reformed Protestant Dutch Church in the City of New-York, was given in evi deuce, to prove the pedigree of the lessors of the plaintiff; by Avhich it appeared, that on the 26th of May, 1695, one William Appel and his wife had a son baptized by the name of Simon; that in 1719, Magdalena, and on the 24th of September, 1721, Gertruig, daughters of Simon Appel, were also baptized; and that on the 25th of August, 1743, Magdalena Appel was married to Abraham Pelts.
In almost all the books, which treat on the subject of evidence, it is laid down, that the register of births, marriages, and burials is competent evidence; and wherever an original is of a public nature, and admissible in evidence, an examined copy will equally be admitted. (Phil. 320, 306. Peak. 86. Bull. N. P. 247.) This rule is necessary, as well for the security of the instrument, as for the convenience of the public. In addition to this, the hearsay evidence of pedigree was competent, and, of itself, sufficient.
Baron Gilbert, in his treatise on evidence, 112, lays down the rule, that hearsay is good evidence, to prove who is the grand father, when he married, what children he had; of
Bogert testified, that, from conversation in his family, and among his relations, from his infancy, he always understood and had been informed, that Magdalena Pelts was ¿he daughter of one Simon Appel; and that Simon was the oldest son of one William Appel. Testimony, as to pedigree, is not to be tested by the ordinary rules of evidence. It forms an exception to the general rule. Hence it is, that any thing which shows a general reputation, is admissible to establish it. (Peak. 9.) In Cowp. 591, (Goodright v. Moss,) Ld. Mansfield held, that tradition is sufficient in point of pedigree. Ld. Kenyon observed, in the case of The King v. The Inhabitants of Eriswell, (3 T. R 723,) “ I admit that declarations of the members of a family, and perhaps of others living in habits of intimacy with them, are received in evidence as to pedigrees; but evidence of what a mere stranger has said, has ever been rejected in such cases.” This doctrine was also sanctioned by this court, in Jackson v. Cooley,( 8 John. 128.) In Jackson v. Boneham, (15 John. 226,) a sworn copy of the records of the town of Stonington, which contained the date of the marriage of the parents of the lessors, and the time of the birth of their children was admitted. In the opinion delivered, Thompson, Ch. J. says “ we do not perceive any objection to the admission of a sworn copy of the records, as evidence of the family.”
If, then, the evidence was properly received, the question to be decided is, whether William Appel, mentioned in the records of the church, is to be considered the person to whom the patent issued. In order to test this point, let us suppose that, an ejectment had been commenced by William Appel in his life time, to recover the possession, and that he Avas the only lessor; Avould not the production of the patent be all that Avas necessary, in the first instance, to make out a title 7 I apprehend this question has been decided by our courts. In Jackson ex dem. Shultz v. Goes, (13 John. 518,) letters patent to Peter Shultz, one of the lessors, Avere produced. The defendant proved, that there Avas another person of the same name, Avho Avas too young, during the rev
If, then, William Appel, described in the records, had been the lessor, his identity would be presumed, until disproved by the defendant; because there is no proof that there ever was another person of that name. The presumption cannot be affected, whether he stands before the court, as a lessor, or the ancestor, under whom the lessors of the plaintiff claim. The presumption is not founded on the circumstance, that an action happened to have been commenced; but on this the patent is to William Appel; there was a person of that name, and no other or different person is proved to have existed. On the principles laid down, the conclusion is, that William Appel, described in the records was the patentee.
The next question is, whether the evidence of pedigree, derived from the records of baptisms, was sufficient ? They prove that William Appel had a son named Simon: that one Simon Appel had a daughter, Magdalena, baptized in 1719; and another daughter, Gertruig, baptized in 1721. That Si mon Appel, mentioned in the extract of baptism in 1719, was the son of William, is, I think, to be presumed. The presumption is considerably fortified by the fact, that William appears to have been one of the sponsors. But it may be asked, what is the use of allowing the registers of births, marriages, and baptisms 'I If A claims that B is his ancestor, as grandfather; that such ancestor has been dead a
From the preceding view, it follows that the Judge erred in directing the nonsuit. The evidence produced by the plaintiff was, prima facie, sufficient to entitle him to recover.
Whether the presumption that William Appel, named in the certificate as the patentee, has been repelled by the evidence, on the part of the defendant, is a question of fact, proper for the consideration of the jury, under the direction
With respect to the possession it was not adverse at its commencement, nor at any subsequent period. Schauber, the first possessor, declared he had no title. He sold to William King, from whom the defendant received the possession. There is evidence that valuable improvements have been made; but none that the possessors claimed title.
I am of opinion that the nonsuit he set aside, and a new trial granted, with costs to abide the event.
Motion granted.