It is to be understood as a general rule that where there are
various bills of exceptions filed according to the local practice,
if in the progress of the cause the matters of any of these
exceptions become wholly immaterial to the merits as they are
finally made out on the trial, they are no longer assignable as
error, however they have been ruled in the court below.
It may be gathered from the decisions of the courts of Maryland
that on the trial of a question of title to land, no evidence can
be admitted of the location of any line, boundary, or object laid
down on the plots or resurvey, and that a witness, who was not
present at the resurvey, is not competent to give evidence as to
the lines, objects, and boundaries laid down in such plots. These
rules appear to rest on artificial reasoning, and a course of
practice peculiar to Maryland.
The Court does not find it to have been decided by the courts of
Maryland that no testimony is admissible to prove a possession of
the land within the lines of the party's claim laid down in the
plot except the testimony of some witness who was present on the
resurvey. Upon the general principles of the law of evidence, such
testimony is clearly admissible. A party has a right to prove his
possession by any competent witness, whether he was present at the
resurvey or not.
In the ordinary course of things, the party offering evidence is
understood to waive any objection to its competency as proof. It is
not competent for a party to insist upon the effect of one part of
the papers constituting his own evidence without giving the other
party the benefit of the other facts contained in the same
paper.
A power of attorney was given by C. to A. and B. to make in his
name an acknowledgement of a deed for land in the City of
Washington before some proper officer, with a view to its
registration, constituting them "the lawful attorney or attorneys"
of the constituent. A. and B. severally appeared before different
duly authorized magistrates in Washington at several times, and
made a several acknowledgement in the name of their principal.
Held that the true construction of the power is that it
vests a several as well as a joint authority in the attorneys. They
are appointed "the attorney or attorneys," and if the intention had
been to give a joint authority only, the words "attorney" and "or"
would have been wholly useless. To give effect, then, to all the
words, it is necessary to construe them distributively, and this is
done by the interpretation before stated. They are appointed his
attorneys, and each of them is appointed his attorney, for the
purpose of acknowledging the deed.
The lessee of James Greenleaf instituted an action of
ejectment
Page 30 U. S. 133
in the Supreme Court for the County of Washington for the
recovery of lot No. 16 in Square No. 75, in the City of Washington,
which suit was afterwards removed to the County of Alexandria and
was there tried in the circuit court.
Upon the trial, the plaintiff gave in evidence certain duly
authenticated copies of deeds, commencing in date 18 June, 1791,
and of the allotment of the lot in question to James Greenleaf by
the commissioners of the United States under the authority of the
Act of Congress of 16 July, 1790, establishing "a temporary and
permanent seat of the government of the United States." Upon this
evidence, the plaintiff prayed the court to give certain
instructions to the jury in favor of the title and possession of
the lessor of the plaintiff, which were refused, and which refusal
was made the ground of separate bills of exceptions. Subsequently
the plaintiff gave in evidence a regular chain of title from the
Lord proprietor of the province of Maryland, and a good title in
the lessor of the plaintiff, in the month of October, 1794. The
case on the part of the plaintiff was by this evidence relieved
from the difficulties presented by the evidence which was offered
in the first instance, and out of which arose the exceptions taken
to the refusal of the court to give instructions upon that
evidence.
The plaintiff also offered in evidence the survey, certificates,
plots, and explanations returned in this cause, and offered to
prove that nineteen and a quarter acres were truly located on the
plot by the lines designated by the letters E.S.G.; that the deed
from Benjamin Stoddart to Gant and Beall, and the deed from
Benjamin Stoddart and Uriah Forrest to James Greenleaf the lessor
of the plaintiff, comprised the land designated as aforesaid; and
that the said lot No 16, in square No. 75, allotted to the lessor
of the plaintiff by the said commissioners, in the said division of
the said square, was also part of the land so designated, and
offered parol evidence, by a competent witness, who was not present
at the survey, that the lessor of the plaintiff was, in the month
of October, 1794, in possession of the land designated by the lines
and letters E.S.G. which is now demanded, and designated on the
said plot, by lot 16 in square 75, under the claim of title.
Page 30 U. S. 134
But the court refused to permit the said parol evidence to be
given to the jury, the same having been objected to on the ground
of the witness not having been on the survey.
The plaintiff having established a good title in his lessor in
October, 1794, the defendant offered to read in evidence to the
jury, for the purpose of showing that the title to the lot in
question was out of the lessor of the plaintiff after the year
1794, a paper purporting to be a copy of certain proceedings under
the bankrupt law of the United States, admitted to be duly
authenticated, and a deed from the persons therein named as
commissioners of bankruptcy to Edward S. Burd, and a deed from the
said commissioners and Burd to John Miller, Jr. To the admission of
which in evidence the counsel for the plaintiff objected, and the
court sustained the objection as to the said two deeds.
And thereupon the defendant prayed the court to instruct and the
court did instruct the jury that by the proceedings of bankruptcy,
the said James Greenleaf the lessor of the plaintiff was divested
of the legal title in and to the said lot No. 16 in the said square
No. 75, in the declaration mentioned, and that the said legal
estate was thereby vested in the said commissioners of bankruptcy,
and rejected the said deeds as any evidence in said cause.
Whereupon the plaintiff, in addition to the evidence aforesaid,
offered to read in evidence to the jury, the said deeds in the said
proceedings mentioned from the said commissioners of bankruptcy to
the said Edward S. Burd, and the said deed from the said
commissioners and the said Edward S. Burd to the said John Miller,
and also a copy of a deed, duly authenticated, from the said Miller
to Samuel Eliot, Jr., and a copy, duly authenticated, of a deed
from the said S. Eliot, Jr., to James Greenleaf the lessor of the
plaintiff, which the court refused to admit to be read in
evidence.
The plaintiff excepted to those several opinions of the court,
and prosecuted this writ of error, to reverse the judgment of the
circuit court in favor of the defendant.
Page 30 U. S. 135
MR. JUSTICE STORY delivered the opinion of the Court.
The plaintiff in error brought an action of ejectment in the
Circuit Court for the County of Washington, in the District of
Columbia, to recover a certain lot of land in the City of
Washington. The general issue was pleaded, and upon the trial, the
jury found a verdict for the defendant, upon which judgment was
rendered in his favor. Upon that judgment the present writ of error
has been brought.
At the trial, several exceptions were taken by the plaintiff to
the opinions expressed or refused by the court. As to some of these
exceptions which are thus brought before us, it is unnecessary to
decide whether they are well or ill founded, because, in the
progress of the cause, it is apparent that they worked no ultimate
injury to the plaintiff, since, independently of the matters
therein stated, it is admitted upon the record that the plaintiff
made out a good title in his lessor, which was all which the
plaintiff proposed to establish by them. And we wish it to be
understood as a general rule that where there are various bills of
exceptions filed according to the local practice, if in the
progress of the cause the matters of any of those exceptions become
wholly immaterial to the merits as they are finally made out at the
trials, they are no longer assignable as error, however they may
have been ruled in the court below. There must be some injury to
the party to make the matter generally assignable as error. Upon
this ground, we shall pass over the exceptions taken to the ruling
of the court in the preliminary stages of the cause as to the title
of the lessor of the plaintiff.
Another exception is founded upon the refusal of the court to
admit the parol evidence of a witness who was not present at the
survey returned in the cause to establish the fact that the lessor
of the plaintiff was, in the month of October, 1794, in possession
of the land designated by certain lines and letters on the plot and
demanded in the action under the claim of title.
The ground of the decision of the court was that such evidence
was not competent except from a witness who had been on the survey,
and this decision is attempted to be sustained by the local
practice of Maryland in like cases. We have examined the cases
which were referred to at the bar. They
Page 30 U. S. 136
do not appear to us to be all easily reconcilable with each
other. It may perhaps be gathered from them that no evidence can be
admitted of the location of any line, boundary, or object not laid
down on the plots of resurvey, and that a witness who was not
present at the resurvey is not competent to give evidence as to the
lines, objects, and boundaries laid down on such plots.
See McHenry on Ejectment, ch. 3, 208 to 216, and cases
there cited. These rules appear to rest on artificial reasoning,
and a course of practice peculiar to Maryland. But we do not find
it anywhere decided that no testimony is admissible to prove a
possession of the land within the lines of the party's claim laid
down in the plot, except the testimony of some witness, who was
present at the resurvey, and some of the cases certainly show that
possession may be proved within the lines of the plot, although the
particular marks or places of possession are not designated
thereon.
See Carroll v. Norwood, 1 Har. & Johns. 167.
Hawkins v. Middleton, 2 Har. & McHen. 119. It is
unnecessary to consider whether, upon a general question of the
competency of evidence in respect to lands in this district, this
Court would follow all the decisions of Maryland, introduced as a
part of their local practice in ejectment. We are not satisfied
that any such rule exists as that contended for by the defendant in
error, and upon the general principles of the law of evidence, the
testimony of the witness which was objected to was clearly
admissible. The plaintiff had a right to prove his possession by
any competent witness, whether he was present at the resurvey or
not. His testimony might not on that account be so satisfactory or
decisive, but it was nevertheless proper for the consideration of
the jury. The court erred therefore in rejecting it.
The subsequent exceptions may be considered together. The
language of the bill is that
"The plaintiff then gave in evidence, without objection, a copy
of the original patent or grant from the Lord Proprietor of the
Province of Maryland, dated 5 July, 1686, and by sundry mesne
conveyances, devises, and descents gave evidence of a good title in
the lessor of the plaintiff in the month of October in the year
1794. Whereupon the defendant offered to read in evidence to the
jury for the purpose of showing that the title to the
Page 30 U. S. 137
lot in question was out of the lessor of the plaintiff after the
year 1794, a paper purporting to be a copy of certain proceedings
under the bankrupt law of the United States, admitted to be only
authenticated (annexing the copy), and a deed from the persons
therein named, as commissioners of bankruptcy, to Edward S. Burd,
and a deed from the said commissioners to John Miller, Jr., to the
admission of which in evidence the counsel for the plaintiff
objected, and the court sustained the objection as to the two
deeds. And thereupon the defendant prayed the court to instruct and
the court did instruct the jury that by the proceedings in
bankruptcy, Greenleaf, the lessor of the plaintiff, was divested of
the legal title in and to the lot in controversy, and that the said
legal estate was thereby vested in the commissioners of bankruptcy,
and rejected the said deeds as any evidence in the said cause."
Whereupon the plaintiff, in addition to the evidence aforesaid,
offered to read in evidence to the jury, the said two deeds in the
said proceedings mentioned, from the said commissioners of
bankruptcy to the said Edward S. Burd, and the said deed from the
said commissioners and the said Edward Burd to the said John
Miller; and also a copy of a deed duly authenticated from Miller to
Samuel Eliot, and a copy of a deed duly authenticated from Eliot to
Greenleaf (the lessor of the plaintiff), all which copies were
objected to, and the court refused to permit the plaintiff to read
them in evidence to the jury.
It is not one of the least curious circumstances of this cause,
that copies of the same deeds were alternately offered as evidence,
for the same purpose, by each of the parties, and successively
objected to by the other, and rejected by the court. In the
ordinary course of things, the party offering such evidence is
understood to wave any objection to its competency as proof. But,
without insisting upon this consideration, it is manifest that if
the proceedings in bankruptcy admitted by the court were competent
evidence at all, they established the fact not only of the
bankruptcy of Greenleaf and the issuing of a commission against
him, and the appointment of commissioners, but also of an
assignment of his estate by them, first to Burd, and afterwards to
Miller. The proceedings are not given at large, but among them is a
transcript of the doings of
Page 30 U. S. 138
the commissioners at a meeting held on 11 January, 1803, at
which the commissioners certify that a majority of the creditors
had removed Burd, at his own request, and appointed Miller assignee
of the bankrupt's effects in his stead, and also at a meeting on 17
March, 1804, at which the commissioners certify that they executed
an assignment of all the estate and effects of the bankrupt to
Miller, calling him "John Miller, Jr., of the City of Philadelphia,
merchant." We must take these proceedings, if at all, together, and
if in virtue of the bankruptcy of Greenleaf his estate became
ipso facto vested in the commissioners (on which, in our
view of the case, it is unnecessary to decide), the same
proceedings prove an assignment from them to Miller of the same
estate. It is not competent for a party to insist upon the effect
of one part of the papers constituting his own evidence without
giving the other party the benefit of the other facts contained in
the same papers. We think then, that the assignment to Burd and
Miller were sufficiently in evidence upon the defendant's own
proofs to entitle the plaintiff to deduce his title to the lot in
controversy without the introduction of the copies of the deeds of
assignment which were offered and rejected. The question then is
reduced to this whether the deed from Miller to Eliot was entitled
to be read in evidence, for no specific objection is taken to that
from Eliot to Greenleaf.
Two objections have been taken to the deed from Miller to Eliot.
The first is that it does not appear that Miller is a nonresident,
so as to entitle the deed to registration, upon an acknowledgment
to be made by a letter of attorney, in the manner pointed out by
the registration act of Maryland of 1766, chap. 14, sec. 4. But we
are of opinion that the nonresidence is sufficiently apparent from
the form of the papers. Miller is stated in the bankrupt
proceedings to be a merchant of Philadelphia, and in his deed to
Eliot he describes himself to be "of the City of Philadelphia," and
there is not the slightest evidence in the case to overcome the
natural presumption of nonresidency arising from these facts.
The next objection is that the power of attorney given by Miller
to William Brent and John G. McDonald to make an acknowledgement of
the deed before some proper magistrate, with a view to its
registration, did not authorize the
Page 30 U. S. 139
acknowledgement as it was in fact made. The power of attorney
constitutes them "to be the lawful attorney or attorneys" for
Miller, and in his name to make the acknowledgement. They severally
appeared before different magistrates (who were duly authorized) at
several times and made a several acknowledgement in the name of
their principal. The argument is that the power was joint and not
several, and that therefore the execution should have been by a
joint acknowledgement before the same magistrate. In our opinion,
the true construction of the power is that it vests a several as
well as a joint authority in the attorneys. They are appointed the
"attorney or attorneys," and if the intention had been to give a
joint authority only, the words "attorney" and "or" would have been
wholly useless. To give effect, then, to all the words, it is
necessary to construe them distributively, and this is done by the
interpretation before stated. They are appointed his attorneys, and
each of them is appointed his attorney for the purpose of
acknowledging the deed.
Upon these grounds, we are of opinion that the judgment of the
court below ought to be
Reversed, and that the cause be remanded, with directions to
award a venire facias de novo.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Alexandria, and was argued
by counsel, on consideration whereof it is considered, ordered, and
adjudged by this Court that there was error in the circuit court in
the refusal by the court of the parol evidence offered by a
competent witness who was not present at the survey, that the
lessor of the plaintiff was in the month of October, 1794, in the
possession of the land designated by the lines E.S.G. which was
demanded in the action, and designated on the plot in the case by
lot number 16 in square number 75, under the claim of title as set
forth in the bill of exception, and also in refusing to admit the
copy of the deed of John Miller, Jr., to Samuel Eliot, Jr., and
from said Eliot to James Greenleaf, the lessor of the plaintiff, in
evidence, as is set forth in the bill of exceptions, after the said
circuit court
Page 30 U. S. 140
had admitted in evidence the proceedings in bankruptcy in the
same bill of exceptions set forth. It is therefore considered,
ordered, and adjudged by this Court, that the judgment of the said
circuit court in this cause be, and the same is hereby reversed,
and that this cause be and the same is hereby remanded with
directions to the said circuit court to award a
venire facias
de novo.
