5 Pa. 492 | Pa. | 1846
The only question presented by this record is, whether the plaintiff ought to have been permitted to prove the facts stated in his second offer of evidence, as introductory of the deed of 6th September, 1767, from John Mehaffy to John Ormsby, and which formed a link in the title under which he claimed. The court below rejected it, simply on the ground that the proof proposed was not of actual possession of the land in dispute, corresponding with, and accompanying the deed, for a period sufficiently long to raise a presumption of its authenticity, in the absence of legal proof of its execution and delivery. The case, as it comes into this court, does not call for an investigation of the somewhat vexed points, now in a degree embarrassed by contrariety of decision,
i In this case the offer of the plaintiff below was to show that the deed in question had been in the possession- of James Williams, sen., and those who claim under him, for upwards of thirty years, in connection with record proof of the judgment and execution against Ormsby, to whom the deed purported to have been made, and the sale and conveyance to Williams, the father, in 1773, followed by payment of taxes ever since the year 1805. Surely this ought to have been received as affording a foundation on which to rest the deed offered. In itself, and without more, it was at least proof of title by derivation in the plaintiff against a mere intruder without shadow of right, as is this defendant. A fortiori, it was competent as merely preliminary of the fairness of an instrument harmonizing with the facts. Such, it is presumed, would have been the decision of the court below had the case of Dougherty v. Taylor b’een brought to its notice. We are informed by counsel it was not cited on the trial.
But in this court another objection, not mooted in the Common Pleas, has been started against the admissibility of the Ormsby deed. This objection springs from the provision of the act of 26th March, 1841, Dunlop’s Dig. 829, Pamph. L. 106, directing all conveyances of land within this Commonwealth, dated previously to
Judgment reversed, and a venire de novo awarded.-