8 Johns. 128 | N.Y. Sup. Ct. | 1811
Lead Opinion
delivered the opinion of the court. The lessors of the plaintiff claim title to the premises in
This testimony was sufficient, prima facie, to be submitted to the jury. Had there been any evidence, on the part of the defendant, casting any doubt or suspicion on the subject, the sufficiency of the evidence might be somewhat questionable. Testimony, as to pedigree, is not to be tested by the ordinary rules of evidence. The subject necessarily requires a relaxation of those rules; and it is, of course, always treated as an excepted case. Hearsay evidence, or any thing which shows a general reputation, is admissible to establish a pedigree. (Peak. Evid. 9.) The declarations of persons, who from their situation were likely to know, are competent evidence Lord Mansfield (Goodright v. Moss, Cowp. 591.) says, tradition is sufficient in point of pedigree. Circumstances may be proved; such as an entry in a family bible; an inscription on a tombstone; a pedigree hung up in a family mansion, which are all good evidence. In this case,, also, the recitals in deeds, the finding of a special verdict between other parties, stating a pedigree, (Buller, 233.) a bill in chancery, by an ancestor, (7 Term. Rep. 3. note,) though not admissible in other cases, are competent to prove a family pedigree. The declarations of the members of a family, and of others, living in habits of intimacy with them, are said, by Lord Kenyon, to be received as evidence of pedigree; (Term Rep. 723.) and he does not confine it to the declarations of deceased persons only. The acknowledgment of the deed to Coats., by the heirs of Goodrich, before the mayor of London, is a fact of some importance in proof of pedigree. Our statute requires that the officer taking the acknowledge ment should know, or have satisfactory evidence, that the grantors are the persons described therein, and who executed the deed. The grantors being described as such heirs, their identity must have been known to the
The opinion of the court, accordingly, is, that the motion for a new trial must be denied.
Dissenting Opinion
(dissenting.) On the trial of this cause, a title to the premises in question was shown in William Wilson and John Goodrich, each a moiety, both of whom are dead; and it became necessary to prove that John Wilson was the heir at law of William Wilson, and that Margarét Goodrich and others were coheiresses of John Goodrich.
The only proof of the pedigrees of those claiming to, be the heirs of William Wilson and John Goodrich, was the deposition of Cary Ludlow. He states, that William Wilson died in England, as he has always understood, between the years 1788 and 1795, leaving John Wilson, .his nephew, heir at law; that he (Ludlow) was the agent of William Wilson, during his life, and superintended his lands, particularly those in question; that he corresponded with William Wilson^ and after his decease John Wilson empowered him to act as his agent on the premise^. The power is dated 18th November, 1795, and in it John Wilson is styled the heir at law and1 devisee of William
Ihe defendant’s counsel raised several other objections, all of which I consider so clearly untenable, as not to require an opinion on them; the only objection I shall examine, is this, whether the evidence of Mr. Ludlow made out, legally, the facts, that John Wilson was the heir of William Wilson, and that Margaret Goodrich and the other grantors in the deed to Goats, were the heirs of John Goodrich.
I had, at first, supposed that there was fuller proof in favour of John Wilson’s claim to be heir of William Wilson, than with respect to those alleging themselves to be heirs of John Goodrich, but I am satisfied they stand on the same footing.
As a general rule of law, all material facts are to be proved by persons having personal knowledge of the
The testimony of Mr. Ludlow goes to show, first, that he was the agent of William Wilson and John Goodrich, in their life-times; second, their deaths.; third, powers of attorney from John Wilson, the supposed nephew of William Wilson, and from the children and coheiresses . of John Goodrich; fourth, that he paid taxes on the improved lauds in behalf of his constituents; and fifth, information derived as well from the powers of attorney, and correspondence with the parties, as from conversation with Messsrs. Banyar and Corp, and other acquaintances of the families of Wilson and Goodrich, that they are respectively heirs of Wilson and Goodrich.
To the two first facts there can be no objection. Mr. Ludlow’s testimony was competent to prove them. The other facts do not establish, even prima facie, the fact of heirship.
The powers of attorney and correspondence, were acts done by the persons asserting themselves to be heirs; and upon.no principle can such acts be evidence in their favour, to establish the facts they set up. A correspondence with a person abroad may enable his correspondent here to testify to his hand-writing; and the writing thus proved may be used against the foreign correspondent; but he cannot create evidence for- himself.
The payment of taxes is thrown in as a makeweight. It cannot be considered as any evidence whatever of ownership. Taxes are frequently imposed without any designation of the owner; and if payment of them was to be regarded as evidence of title, no man would be secure.
It comes then to this; is the information of Messrs. Banyar and Corp, and other acquaintances of the families, that kind of hearsay, in the case of pedigree, which the law requires? I think it clearly is not.
It is not shown in the case, where Messrs. Banyar and Corp, and the other acquaintances of the families reside, or whether they are living or dead. If they reside within the jurisdiction of the court, then it follows, that instead of our having their knowledge of the families, we have the intelligence at second hand. Peake, (in his Treatise on Evidence, p. 11.) after speaking of hearsay evidence, in cases of pedigree, prescription and. custom, says, “ In these cases, therefore, the law departs from its general rule, and receives evidence of the declarations of deceased persons, who, from their situation, were likely to know the facts, and also the general reputation of the place, or family most interested to preserve in memory the circumstances attending it; any thing which shows such reputation is, on a question of this sort, received in evidence, though oftentimes wholly inadmissible in other cases.” Again, (p. 12.) “ So to prove the state of a family, as who a man married, what: children he had, that A. died abroad, &c. declarations of
Had Mr. Ludlow been acquainted in the families of Wilson and Goodrich, and from that been likely to know the relation which these persons bore to Wilson and Goodrich, his testimony would have been competent; but it is derived from others, none of whom appear to be dead, and all of whom, for aught that appears, may be amenable to our process. Such testimony never was admitted to be sufficient; and though to admit it in this case might probably relieve the party from expense and trouble, and promote justice, I confess I am unwilling to break in upon the established rules of evidence, and put every thing afloat.
It appears to me, therefore, that there ought to be a new trial, with costs, to abide the event of the suit.
Motion denied.