1 U.S. 64 (1782)

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U.S. Supreme Court

MORRIS' LESSEE v. VANDEREN, 1 U.S. 64 (1782)

1 U.S. 64 (Dall.)

Morris Lessee

Supreme Court of Pennsylvania

April Term, 1782

Several points of evidence were determined in this cause; which was an Ejectment, brought for the recovery of a lot on the west side of Second street, in Philadelphia.

1st. The Plaintiff, in order to show that the persons under whom he claimed were original purchasers from William Penn, the proprietary, offered in evidence a paper from the proprietary's, (or rather surveyor general's) office, containing the list of names of such persons as were original purchasers; and therein were the names of those from whom the plaintiff derived his title. It was objected to, because the deeds themselves ought to be produced, as it did not appear that they had been destroyed. But it was answered, that the lot in question is appurtenant to a large tract of land, and that the deeds are in the possession of the owners of that large tract; for, on the settlement of the province of Pennsylvania, every one who bought 5000 acres of land in the country, was entitled to certain lots within the city, which became afterwards separated.

And By the Court: The objection is over-ruled and the paper allowed to be given in evidence. *

[ Morris' Lessee v. Vanderen 1 U.S. 64 (1782)

2nd. The plaintiff produced the Proprietary's warrants to make a survey of the lands in question, for a person under whom he now claimed, without showing any actual survey, but only a paper in the nature of a certificate from a former surveyor general, stating that such survey had been made. It was opposed, because the present surveyor general (Lukens) swore that there was no such survey in the office; that surveys of other lots were wanting, and that this paper was copied from a book in the office. The Court ruled, that the paper should not be given in evidence, being only the copy of a copy; but that the book from which it was taken might be read to the jury: And it was said by McKean C. F. that the court has a discretionary power to admit circumstantial evidence of the existence of a record. Aleyn. 18. 3rd. The plaintiff offered to prove that certain deeds, necessary to make out his title, were in the hands of, and detained by, the heirs of one Israel Pemberton, under whom the plaintiff insisted that the defendant was only a Lessee; and also to give in evidence sundry letters written by the said Pemberton. It was objected, that the defendant is not to be affected by the conduct of a third person. To which the plaintiff's council answered, that they undertook to prove, that the defendant is no more than a Lessee from the heirs of Pemberton; and the possession of the Lessee, is the possession of the person entitled to the reversion. But for the defendant it was still urged that his title is not to be made out by the plaintiff; that he rests upon his possession; and that till the plaintiff can make out a good title of his own, the defendant's possession is good against him; for the plaintiff must recover upon the strength of his own, and not upon the weakness of the defendant's title.

But by McKean, C. F. The plaintiff does not mean to show the defendant's title, but only his possession, which is admitted by the record; if Israel Pemberton was defendant, it would be good evidence against him, and, if the plaintiff proves that the defendant is in under Israel Pemberton, or his heirs, he may give the detention of the deeds in evidence, and also the letters, unless the defendant shows another title; 1 Ld. Raym. 311. A bill of exceptions to this opinion was tendered and allowed; but, I believe, it has never been prosecuted. 4th. The plaintiff proceeded to call a witness to prove that the defendant was only Lessee; and it was sworn, that since the commencement of the suit (to wit, two days before the trial) the defendant told the witness, that he held under the heirs of Pemberton. This testimony was objected to, because it is a general principle, not to receive evidence of any thing that happens after the suit. But it was answered, that this is only proof of an acknowledgment of a fact previous to the suit.

And by McKean C. F. I recollect one case in the books upon this point; and that is, That an acknowledgment of a debt after suit, takes it out of the statute of limitations. Let the witness proceed. [1 U.S. 64, 66]

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