TMs is an action of ejectment, 'brought in the Chancery Court of Sequatchie County, by G-eorge Bruce and the heirs of William Wyatt, deceased. They deraign title (Bruce to one-fifth and the other complainants to four-fifths undivided interest) through several mesne conveyances back to grant Ro. 3379, issued to Lewis Scarlett in 1834 for 5,000 acres. The defendants claim under certain deeds and adverse possession connecting them with junior grants Ros. 7914, 7915, and 10215, aggregating 5,000 acres in one body — the first two issued to Thomas Montgomery in 1840, and the last to Jacob Woodlee in 1849.
In the two bodies of 5,000 acres each there is an inteflap of 1,759J acres. To recover possession of this interlap, complainants filed this bill. In the progress of the cause in the Court below they admitted the superior title of the defendants to 332J acres of the interlap, and decree was entered accordingly; but on final hearing complainants recovered the other 1,427 acres of the interlap— Bruce one-fifth and Wyatt’s heirs four-fifths undivided interest.
Both complainants-and defendants have appealed, the former from so much of decree as adjudged costs against them and as overruled certain exceptions to the deposition of Charles E. Maurice, and
The last deed in the chain of title produced by Wyatt’s heirs was executed by John E. Nar-cross to William Wyatt, October 25, 1839. It recognized no interest in George Bruce, the other complainant, but purported to convey substantially the whole of the 5,000 acres covered by the grant to Lewis Scarlett.
The defendants sought to establish an outstand-' ing title to all this land in Charles E. Maurice, by proving that William Wyatt sold and conveyed it to him on Januaiy 11, 1856. To make this proof, the deposition of said Maurice, with a copy of the deed attached as an exhibit, was offered as evidence on the hearing. Complainants filed ten exceptions to the deposition; five of them were overruled, five sustained, and the deposition and exhibit excluded.
All questions were saved by proper bill of exceptions, and the defendants assign error on the action of the Chancellor in excluding. the deposition. The exceptions sustained present three grounds of objection to the evidence: (1) That there was no proof that Maurice had not abandoned his title; (2) that defendants had not pleaded an outstanding title; (3) that the' evidence was inadmissible for reasons stated. None of these exceptions were well taken.
First. — As to abandoned title, it is sufficient to say that the law presumes a vendee of land to.
Second. — It is true that defendants did not set up defense of outstanding title in their answer or by plea; but it is not necessary that outstanding title should be pleaded. Walker v. Fox, 1 Pickle, 154; Bleidorn v. Pilot Mountain C. § M. Company,
In their answer the defendants denied that complainants were the owners of the legal title, averred their own title, and pleaded the statute of limitations. The controlling question was one of title. Complainants affirmed, defendants denied. The proof offered was responsive to the issue. We recognize the fact that the defense of outstanding title is not favored, as stated in Howard v. Massengale, 13 Lea, 585; yet it is a good defense when made out, and it need not be specially pleaded.
Third. — Three exceptions to the admissibility of the deed from William Wyatt to Maurice were sustained as follows: That its execution was not properly acknowledged by the vendor; that it was not proven by subscribing witnesses; and that the deed had not been registered in such a manner as to cure the defective probate. The deed seems to have been acknowledged by the maker before a Justice of the Peace of Pennsylvania, without more. Xo other certificate than that of the Justice is attached, and the execution is not proven
But those objections go .only to the matter of proper preparation of the instrument for registration, and do not touch the question of its sufficiency to pass title from vendor to vendee as between themselves. It is well settled that a deed is effective, as between the parties and their heirs, without registration, or proof for registration, either by subscribing witnesses or by acknowledgment of the maker. Divestiture and revestiture of title, as between thtem, may be perfected by a proper deed merely signed and delivered. Code, § 2887; 10 Yer., 1; 6 Yer., 320; 2 Lea, 702; 3 Tenn. C Oh., 523; 4 Pickle, 595.
The registration of this deed for more than twenty years did not eure the defective probate, because the registration was made in Grundy County, and not in Sequatchie County, where the land lies. The statute perfects the defective pro-' bate only when the instrument is registered in the county where the land is situated. Code, §§ 2843 and 2898.
Therefore, the present deed is no better and no worse for having been registered so long a time. Yet, as has just been seen, the question of registration, or probate for registration, is entirely immaterial in this case.
The heirs of William Wyatt claim four-fifths of
Thus it is made manifest that none of the five exceptions sustained by the Chancellor were well taken, and that all of them should have been overruled.
A question of more difficulty is' whether he should not have sustained the other five exceptions which were overruled. From his action in this behalf, complainants appealed. The point and substance of those exceptions is that the deposition of Maurice, and exhibit thereto, should be rejected, because only a copy, and not the original deed, is produced.
Under the facts already recited, and in the absence of formal authentication of this deed, defendants contend that it may be proven as an ancient paper, and so used as evidence in this ease. Complainants say that this cannot be done, because the original deed is not presented in Court. The general rule is that a private deed over thirty years oldj as is the one before us, may be admitted in evidence without proof of its execution; that, being an ancient document, its due execution is presumed, and the subscribing witnesses, though in fact living and present, need not be called to establish the fact — provided the instrument be found in the proper custody, and is free from suspicion as to its genuineness. 1 Gfreenleaf
Learned counsel for complainants insist, and it has frequently been held, that accompanying possession under the deed must also be shown before it can be admitted in evidence as an ancient instrument without proof of its execution; but this view is contrary to the weight of authority, and cannot be sustained on principle. 1 Wharton on Evi., Secs. 199 and 733; 1 G-reenleaf on Evi., Secs. 21 and 144, note 1.
In the discussion of the admissibility of ancient documents as evidence without proof of execution, the text-writers and Courts have generally, if not universally, referred to cases in which the original instrument itself, and not a copy, has been produced. Here only a copy .is offered, and the questioli is whether or not it may be used as evidence of the facts recited.
Maurice was a non-resident, and gave his deposition in Arkansas. He testified that he bought this land from William .Wyatt, paid him for it, and took his deed of conveyance on January 11, 1856; that he had the deed registered in Grundy County, February 5, 1856; received it back from the Register, and has ever since held and owned the deed, and has never parted with his title to the land. It is admitted that this deed covers the land sued for by the complainants in this cause. When his deposition was taken, Maurice had the
The defendants seem to have done all in their power to procure the original deed, and, failing
Though embracing all the land claimed by those heirs, and that claimed by Bruce as well, the deed from Wyatt to Maurice does not defeat Bruce, who claims under an older and different deed. Gilbert conveyed an undivided one-fifth interest in the 5,000 acres to Bruce, April 4, 1889; and afterward, on September 11, 1839, Gilbert conveyed the whole of it to Uarcross, not noticing his previous deed to .Bruce. On October 25, 1839, Uarcross conveyed the same land to Wyatt, who conveyed it to Maurice, January 11, 1856. Rone of these conveyances divested Bruce of his title to an undivided one-fifth interest in the land. Hence, tfie deed from Wyatt to Maurice does not establish an outstanding title as against Bruce.
Prom an inspection of these and other .conveyances it is discovered that Gilbert, Bruce’s vendor, did not himself acquire title to- any part of the land until September 6, 1839, five months after his deed to Bruce; but the- fact .that Bruce did not acquire title when he received his deed is immaterial. Having made Bruce a deed with general covenants of warranty, Gilbert’s title, when acquired, inured to Bruce’s benefit, and his title was thereby perfected under his deed by relation.
The defendants excepted to the evidence of Bruce’s title in the Court below, on the ground (as stated in the exception) that a copy of his deed was produced without accounting for the absence of the original. The overruling of that exception and the admission of the evidence tendered are here assigned as error. The assignment is not well made. It does not appear from the record that a copy was in fact used. On the contrary, the instrument copied into the transcript seems to have been the original deed itself.
Let the decree be affirmed as to Bruce, and reversed and the bill dismissed as to William Wyatt’s heirs, the other complainants.
Wyatt’s heirs will pay two-thirds and the defendants one-third of all costs.