Nixon v. Porter

| Miss. | Apr 15, 1858

Fisher, J.,

delivered the opinion of the court.

This was an action brought by the plaintiffs below, under the Pleading Act of 1850, in the Circuit Court of Hancock county, to recover a tract of land, alleged to be in the possession of the defendants.

The plaintiffs claim as heirs-at-law of John Porter, deceased, to whom the land in controversy was conveyed in 1816, by one Charles Nicaise; and the first error assigned relates to the admission of this deed, as evidence. The circumstance of Porter’s possession, in 1816 or 1818, of land, believed to be the same land conveyed by the deed, coupled with the acknowledgment of Nicaise, in 1838, that he had executed the deed at the time it bears date, was sufficient to characterize it as an ancient document, of more than thirty years’ standing, and therefore to dispense with the strict rules ' of proof in the case. The antiquity of the deed being established, the law presumes that the subscribing witnesses are either beyond the jurisdiction of the court or dead, or, if living, that their memories have failed them as to the particular transaction; and hence, the deed may be established by other and inferior testimony. We therefore do not think that the court erred on this point.

Again, it is said that the deed is void, for uncertainty as to the description of the land. That is certain, which may be rendered certain. It was only necessary to ascertain the southeast corner of Rapp’s land, to fix the boundaries, by survey, of the whole tract. His corner was a fact (if. true) which might be ascertained in the usual mode of ascertaining boundaries, either by direct proof, or by common reputation. Of course, as the certainty in the description of the land depends upon ascertaining the place of departure, it must follow that if this.cannot be done with reasonable certainty, the land cannot now be ascertained; though it may have been capable of identity at the time the deed was executed. The deed is not void for uncertainty, though it may be impossible at this late date to identify the lands embraced in it.

It is next said, that the court erred in admitting the deed from Pray to White, for the purpose of showing that, as he claims under Porter, he admits his title. This deed was executed under a decree of the Superior Court of Chancery, a'nd it was objected that the record should have been produced before reading the deed. As a general rule, when a deed is executed in.virtue of a decree, or other power, the authority should be produced; but this is not necessary in this case. The plaintiffs did not claim under the deed; but the object was to show that White claimed under it, and having thus admitted the title of the plaintiff’s ancestor, they were not bound to go beyond the deed of Nicaise, for the purpose of proving title. The deed was therefore competent; but it may have been insufficient for the purpose for which it was introduced. It may or may not be true that White claims under the deed, but this is a question of fact for the jury.

Again, it is said that the court erred in rejecting evidence offered by the defendants. The defendants offered the third volume of the American State Papers; entitled Public Lands, for the purpose of showing the extent of the interest' of Charles Nicaise in the land in controversy, and the court rejected this evidence, on the ground that White was estopped by his deed from Pray. It is admitted, in argument, that this is an insufficient reason; that White was not estopped by the deed from Pray. But it is said that the evidence was, on other grounds, clearly incompetent, as it was, at most, of a secondary character. This point has been directly decided by the Supreme Court of the United States, holding the evidence competent ; and we will, therefore, without attempting to add anything to what has been said by that court, follow the rule there laid down. Watkins v. Holman et al., 16 Peters, 55. The court below therefore erred in rejecting this evidence.

We may remark, upon the motion for a new trial, that, in our opinion, the evidence was insufficient to'uphold the verdict. We are satisfied that boundary may be proved by reputation, or, in other words, by hearsay evidence; but this evidence must be as certain as to the subject-matter, as direct evidence would be if introduced. There is an utter want of certainty in the evidence to identify the land with the deed, under which the plaintiffs claim. The heirship of the plaintiffs is sufficiently proved.

Judgment reversed, and new trial granted. *