delivered the opinion of the Court. The present case comes before the Court upon a motion of the defendant to set aside the verdict and grant a new trial, on the grounds of misdirection, and mistake of law in the admission of evidence, and as a verdict against evidence.
The action was brought by the heirs of Lawson Valentine, to recover a tract of flats, over which the sea ebbs and flows, as appurtenant to, and parcel of a tract of land, bounded on salt water, and the plaintiffs began by showing a title to the upland, in respect to which this tract of flats was claimed. The land consisted of a wharf, lying-near the bottom of Summer street, bounding on Boston harbour, known at different periods, as Valentine’s wharf, Price’s wharf and Bull’s wharf. Valentine claimed under several persons of the name of Price.
The first exception is to an instrument, purporting to be a letter of attorney from Andrew Price to George Sullivan. Evidence was given, tending to show, that Andrew Price, at the time of making the instrument, and for many years previous, had resided in England, and the instrument purported to have been executed there. Under these circumstances, secondary evidence was offered to prove the execution of the instrument, which was objected to, without calling the attesting witnesses, or proving that they were not within the jurisdiction of the court, but the objection was overruled, and the secondary evidence admitted. And the Court are of opinion, that this was correct. If the instrument was apparently executed in a for
2. The second exception was to the nature of the proof offered as secondary evidence, which in the present instance was the testimony of one who had corresponded with the constituent in the letter of attorney, and testified to his belief of the genuineness of the handwriting.
Different rules have prevailed on this subject; in some instances, and this we believe is the more general rule, it has been held that where an instrument under seal, and commonly requiring attesting witnesses, is to be proved by secondary evidence, the handwriting of the subscribing witnesses, is to ba proved in the first instance. The Court are of opinion, that where the attesting witnesses are not within the jurisdiction of the court, proof of the handwriting of the party is a species of proof which has often been admitted in this Commonwealth and is more direct and satisfactory than that of the handwriting of the witnesses. The Court are therefore of opinion, that upon a cause shown for the admission of secondary evidence, it was competent in the first instance to offer proof of the handwriting of the party executing the instrument.
3. It was however further contended, that this letter of attorney being the instrument by force of which the deed was executed, under which the plaintiffs claim, could not be given in evidence in support of a title, without being duly acknowledged and recorded according to the statute in regard to deeds
The question depends upon a just construction of the statutes. St. 1783, c. 37, §4. The Court are of opinion, that the statute cannot be so construed as to extend to powers of attorney, authorizing conveyances of real estate. Some of the reasons applicable to the case of deeds, and rendering it convenient that they should be placed on the public registry, are applicable to powers, but not all of them. The object of registration, as has often been decided, is not so much to furnish or preserve evidence of title, as to give notice of the alienation and transmission of estates, and of incumbrances and liens upon them. The deed made by attorney and registered, gives this notice as effectually as if made personally by the grantor. It does not furnish proof of the execution of the power, it is true ; but the registry is not relied on to- furnish proof, and in fact it is not regarded as furnishing proof of the genuineness of the instruments recorded in it. Perhaps our system of registration, with some slight modification, might be made much more available to the public benefit than it is, if it were so organized and conducted as to furnish prima facie proof of titles ; but that is a question for the legislature, and not one of judicial consideration.
The statute does not in terms extend to powers of attorney, and we are of opinion that they do not come within the provisions of the statutes. The power of attorney therefore in the present case, was rightly admitted, without acknowledgment or statute proof, and without registration.
The next class of objections was of a different character. It became necessary in the course of the inquiry, in one aspect of the case, to show a conveyance from one Mary Sweet, in whom it appeared by the proof, that a part of the Price estate was formerly vested. From an examination of the records, it did not appear that Mary Sweet had ever made any conveyance of the land in question. The judge instructed the jury, that from a long continued and uninterrupted possession, on the part of the Price family, if proved, and no adverse claim by any person under Mary Sweet, they might presume a grant from Mary Sweet, notwithstanding none appeared of record. Evidence of this character was given ; whereupon the Court instructed the jury, that on the evidence, they might presumí a grant from the heirs of Mary Sweet, if the evidence should
Several exceptions were taken to this direction.
The main ground relied upon is, that by the statutes of this Commonwealth, no deed can be given in evidence, without its being registered, and if the deed is not produced, nor found of record, there can be no proof of registration.
This doctrine of presuming grants, was originally adopted for the purpose of quieting titles, and giving effect to long continued possessions.
Until a comparatively recent period, no deed could be pleaded without proferí; but when it came to be settled, that a grant could be presumed from long continued possession and enjoyment and other circumstances, it was also held, as a necessary consequence, that the profert might be dispensed with, on a suggestion that the deed has been lost by time and accident. The technical exception is made to yield to the substantial rule. Read v. Brookman, 3 T. R. 151. We consider the point now under consideration as having been fully settled in the case of Melvin v. Locks and Canals, &c. 17 Pick. 255, which I believe has been published since this case was argued. Where a great number of circumstances concur, such as peaceable possession of an estate, the presence of those, who upon any other hypothesis would have an adverse title, without claim, all tending to show an undisputed ownership on the part of those who set up such non-appearing grant, they have been considered as presenting so strong a presumption of fact, that a deed has been executed, that it is allowed to stand as proof of such deed. The same doctrine has long been applied to cases of easement ; and in England they have been long established, as sufficient to prove a grant. It has often been said by judges, that where there is a proper case for presumption, every thing will be presumed necessary to give it effect, even letters pa
But it was said, that the ground was not stated with sufficient distinctness, from whom and to whom the supposed grant was made. But we consider that this exception applies rather to the mode of pleading than to the nature and effect of the evidence. Where by the forms of proceeding it is necessary specially to plead a title, there it is necessary to set out the name of grantor and grantee, in proper form, and allege a deed or other proper instrument, now lost by time and accident. But the same kind of proof, as stated in this report, would be admitted under such plea, to support the averments contained in it. There is a recent case, Blewett v. Tregonning, 3 Adolph. & Ellis, where the subject is discussed and considered.
It was further objected, that such proof, being in effect proof of title by disseisin, could not extend to the flats, because the proof of actual possession, which might be given in regard to the upland, could not be so, in regard to the flats. But we think there is no force in this objection. The effect of the Colony ordinance, is to make the upland extend to low-water mark, where the land bounds on the salt water, where the tide ebbs and flows. It is true, that an owner may separate his upland from his flats, by alienating the one, without the other. But such a conveyance is to be proved, not presumed, and therefore ordinarily proof of title in the upland thus bounded, carries with it evidence of title in the flats. Now as the proof in question, if admissible and available at all, is proof of a grant of the land, bounding on salt water, by Mary Sweet to the ancestors of the demandants, it proves title in them, and by force of that title and the legal presumption which carries it to low-water mark, it proves title to the flats, without showing an actual possession of the flats.
There is no question which presents itself to a court of justice, which in its details is attended with greater difficulty than that of the course and direction of flats, as appurtenant to or incident to the land bounding upon salt water. The Colony ordinance has laid down no practical rule but only declared a general principle, which it is extremely difficult to apply to the great variety of locations to be affected by it. This difficulty is often a formible one, when it is an original question, and the whole line of flats is open to division amongst coterminous proprietors. But after possessions have been long taken, and locations originally made without regard to any fixed rule, have come to be settled and fixed by actual and continued possession, the question is much more complicated. Where enough has been done to raise a presumption, that lines have been settled by mutual agreement, considerable force ought to be attributed to actual possession. And as far as possession has been actually taken, by wharves and buildings, and that continued for a length of time sufficient to bar actions and entries, it necessarily becomes conclusive.
In the present case there was evidence tending to show, that some wharves had been erected in that vicinity, in the first century of the settlement of the town, in conformity to which the land and flats had been ever since held, and this tended to fix a location of the lines of the flats in controversy, by an early adjustment amongst the several coterminous proprietors. In reference to this evidence the jury were instructed, that if they should be satisfied from the evidence, that Summer street was laid out over the flats in conformity with the lines of the lots and of the wharves to the northward of that street, it would be evidence to show that the flats to the southward were to be divided by the same course, and if they should so find, the demandants would be entitled to the flats in front of their upland between Summer street and a parallel line to the south, so as to give them the same width throughout as their lot measured at high-water mark.
The Court are of opinion, that this instruction, under all the
The Court are therefore of opinion that the direction was right.
Seeing no sufficient ground, upon the evidence, to say that the verdict was against the weight of the evidence, the opinion of the Court is, that judgment be entered on the verdict for the demandants.