Upon a deliberate review of the questions of law discussed and
decided in the case of
Carver v. Jackson ex dem. of
Astor, 4 Pet. 1, the Court are entirely satisfied
with the opinion and judgment pronounced on that occasion.
The circuit court has no authority whatsoever to order a
peremptory nonsuit against the will of the plaintiff. This point
has been repeatedly settled by this Court, and is not now open for
controversy.
The circuit court cannot be called upon, when a case is before a
jury, to decide on the nature and effect of the whole evidence
introduced in support of the plaintiff's case, part of which is of
a presumptive nature, and capable of being urged with more or less
effect to the jury.
An ejectment for a tract of land was tried upwards of seventy
years after the date of a lease, recited to have been executed in a
deed of release of the premises in dispute, but which lease was not
produced on the trial. Under these circumstances, the lapse of time
would alone be sufficient to justify a presumption of the due
execution and loss of, the lease, proper to be left to the
jury.
The general rule of law is that a recital of one deed in another
binds the parties and those who claim under them by matters
subsequent. Technically speaking, such a recital operates as an
estoppel, which works on the interest in the land, and binds
parties and privies; privies in blood, privies in estate, and
privies in law.
If the recital of a lease in a deed of release be admitted to be
good evidence of the execution of the lease, it must be good
evidence of the very lease stated in the recital, and of the
contents, so far as they are stated therein, for they constitute
its identity.
That a husband even before marriage, may, in virtue of the
marriage contract, have inchoate rights in the estate of his wife
which, if the marriage is consummated, will be protected by a court
of equity against any antecedent contracts and conveyances secretly
made by the wife in fraud of those marital rights may be admitted,
but they are mere equities, and in no just sense constitute any
legal or equitable estate in her lands or other property,
antecedent to the marriage.
The solemn probate of a deed by a witness upon oath before a
magistrate for the purpose of having it recorded, and the
certificate of the magistrate of its due probate upon such
testimony, are certainly entitled to more weight as evidence than
the mere unexplained proof of the handwriting of a witness after
his, death. The one affords only a presumption of the due execution
of the deed, from the mere fact that the signature of the witness
is to the attestation clause; the other is a deliberate affirmation
by the witness, upon oath, before a competent tribunal of the
material facts to prove the execution.
Whenever evidence is offered to the jury which is in its nature
prima facie proof or presumptive proof, its character as
such ought not to be disregarded, and no court has a right to
direct the jury to disregard it or to view it under a different
aspect from that in which it is actually presented to it.
Whatever
Page 31 U. S. 599
just influence it may derive from that character, the jury has a
right to give it, and in regard to the order in which it shall
consider the evidence in a cause, and the manner in which it shall
weigh it, the law has submitted it to it to decide for itself, and
any interference with this right would be an invasion of its
privilege to respond to matters of fact.
In that court, the defendants in error instituted an action of
ejectment to recover from the defendant a tract of land situated in
the Town of Carmel in the County of Putnam in the State of New
York.
The title exhibited by the plaintiff on the trial in the circuit
court was the same with that an abstract of which is given in the
case of
Carver v. Jackson ex dem. of
Astor, 4 Pet. 1. It was founded on a patent from
William III to Adolph Philipse, dated 17 June, 1697, for a large
tract of land, including the premises, situated in the them
province, now the State of New York. Frederick Philipse, the great
nephew and heir at law of the patentee, Adolph Philipse, to whom
the land granted by the patent had descended, devised his estate in
fee tail to his four children in equal parts. One of the children
of Frederick Philipse having died soon after her father, and the
whole estate having, by a common recovery suffered in 1753 by the
three surviving children, become vested jointly in them in fee
simple, a partition of all the lands under the patent was made in
1754, by which certain portions of the same were allotted to the
respective surviving devisees of Frederick Philipse, in severalty,
Mary Philipse being one of the parties to the said partition. Mary
Philipse, one of the said devisees, afterwards intermarried with
Colonel Roger Morris.
The plaintiffs gave in evidence a deed dated 13 January, 1758,
purporting to be a marriage settlement executed by Mary Philipse
and Roger Morris, of the first and second part, and by Johanna
Philipse and Beverley Robinson of the third and fourth parts.
See 29 U. S. 4 Pet.
7.
The plaintiffs then proved a title in them by regular
conveyances from the children and heirs of Roger Morris and Mary
his wife, they being deceased, having also proved that the persons
under whom the said title was held were such children
Page 31 U. S. 600
and heirs. Roger Morris and Mary his wife were attainted by an
act of the Legislature of New York passed 22 October, 1779.
The plaintiffs gave in evidence by several witnesses, and by the
production of receipts for rent, that Roger Morris, for several
years before the War of the Revolution, was in possession of
certain lots, part of the estate held by Mary his wife at the time
of her marriage, and when the marriage settlement deed was
executed, one of which lots, No. 5, was that for which this
ejectment was instituted.
Joseph Crane proved that his father lived on the farm now
occupied by the defendant, part of lot No. 5, under Roger Morris,
from before the War of the Revolution, and continued in the
occupation thereof until his death.
A deed from the commissioners of forfeited estates, executed
according to the Act of Assembly of New York passed 22 October,
1779, produced by the defendant, on notice, was read in evidence,
by which the said commissioners, on 1 June, 1780, conveyed the
premises in question, being part of No. 5 in this suit, to John
Crane, who, on 26 September, 1826, conveyed the same by deed,
produced on the same notice to the defendant.
Upon these proofs the plaintiff rested his case. The counsel for
the defendant thereupon objected, and insisted that unless the deed
called a marriage settlement deed was accompanied or preceded by a
lease, the plaintiff could not recover in this action, that without
a lease, the said deed could only operate as a deed of bargain and
sale, and the statute of uses would only execute the first use to
the bargainees, Johanna Philipse and Beverley Robinson who took the
legal estate in the land, and that the plaintiff could not recover
without producing the lease or accounting for its
nonproduction.
And because no lease had been produced and no evidence given to
account for its nonproduction, the counsel for the defendant moved
the circuit court to nonsuit the plaintiff; but the said circuit
court, before the said justice and judge, then and there overruled
the said objection and refused to grant the said motion for a
nonsuit, and decided that the said plaintiff was entitled to
recover without producing any lease, or accounting for its
nonproduction, inasmuch as the recital in the release
Page 31 U. S. 601
was evidence of such a lease having been executed; to which said
opinion and decision of the said circuit court the counsel for the
said defendant, then and there on the said trial, excepted. And
thereupon the counsel for the said defendant, to maintain and prove
the said issue on his part, produced and read in evidence
conveyances by way of lease and release severally, dated 26
September, 1765, and 18 September, 1771, which were given in
evidence. The leases were executed by Roger Morris, and by Roger
Morris and Mary his wife, formerly Mary Philipse, and the releases
by Roger Morris and wife to William Hill, Joseph Merrit, and James
Rhodes. These deeds did not mention or profess to be made under or
in pursuance of any deed or deeds of marriage settlement, or that
they were made in the execution of any power. And by the releases
Roger Morris covenanted for himself and his heirs, that he was
lawfully seized of the premises granted in fee simple, and that he
had good right, full power, and lawful authority, to grant,
bargain, and sell the same as aforesaid, and the said releases also
contained the usual covenants for quiet enjoyment, against all
former encumbrances, and grants of general warranty and for further
assurance. The parties of the first part in the said releases were
described as follows:
"Between the honorable Roger Morris, of the City of New York,
Esquire, and Mary his wife, late Mary Philipse, one of the
daughters and devisees of the honorable Frederick Philipse,
Esquire, deceased, of the one part,"
and the description of the land granted, commenced as follows,
to-wit:
"all that certain farm and plantation, situate, lying, and being
in the County of Duchess aforesaid, and known and distinguished by
farm number thirty-six of lot number five, of the lands formerly
granted by letters patent to Adolph Philipse, Esquire, from whom
the same descended to the said Frederick Philipse, Esquire, as his
heir at law, the lands so granted by the same letters patent being
usually called and known by the several names of Fredericksburgh,
and Philipse upper patent, which said farm or plantation, number
thirty-six, begins,"
&c.
The counsel for the defendant then read in evidence a deed of
partition executed by the devisees of Frederick Philipse, before
the intermarriage of Roger Morris and Mary Philipse,
Page 31 U. S. 602
and Henry Beekman and others, executed January 18, 1758, by
which the boundary line between the patent to Adolph Philipse and
colonel Henry Beekman was declared and established. Also, an
exemplification of a deed dated 18 February, 1771, between Roger
Morris and others relative to the lines of the patent to Adolph
Philipse and those of other patents for adjoining lands.
The counsel for the defendant then produced and read in
evidence, certain improving leases for life, executed by Roger
Morris and Mary his wife, for parts of the land held by the said
Mary under the patent to Adolph Philipse, and the deed of
partition. These leases were severally dated on 23 October, 1765,
on 21 June, 1773, 16 June, 1773.
The counsel for the defendant then produced and read in evidence
the books of records from the Office of the Register of the City
and County of New York, from which it appeared that deeds and
conveyances of land (as well as various other instruments in
writing) had been acknowledged by the grantors, or proved by the
subscribing witness, and recorded from a period anterior to the
year 1758 down to the close of the War of the Revolution, and that
during the whole period of the war, except from March to September
in the year 1783, deeds had been acknowledged or proved, and
recorded; but from March 1, 1783, to March 17, 1784, no deeds had
been recorded, some of which were acknowledged or proved before the
members of his Majesty's council, others before aldermen of the
said city, some before masters in chancery, and others before the
judges of county courts in other counties, and it also appeared
that deeds of lands, in other counties of the state, were recorded
in the city and county of New York, and it also appeared, as to the
deeds proved, before and after the close of the war (and of the
last class a considerable number had been proved before Judge
Hobart), that the certificates of proof stated the delivery, as
well as the execution of the deed.
The particular character of the deeds and conveyances was not
examined into or stated, but the records were produced for the
purpose of showing the fact of the proving and recording of deeds
and conveyances, and the form or manner in which it was done.
And thereupon the plaintiff read in evidence a part of the
Page 31 U. S. 603
deposition of Thomas Barclay, in which he testified that he knew
Colonel Roger Morris, and his wife Mary, about the year 1759; they
were then married, and lived in the City of New York.
And hereupon, the proofs having closed and the counsel for both
parties having summed up the said cause to the jury, the counsel
for the plaintiff submitted to the said circuit court the following
points:
1. That the acts or declarations of the parties to the
settlement, after the birth of the children, form no ground of
presumption in this action against the delivery of the settlement
deed.
2. That Roger Morris stood in the character of a grantee in that
deed, and that a possession of the deed by him is evidence of its
delivery, because the settlement gave him a larger interest in the
lands than his mere marital rights.
3. That the actual signing and sealing of this deed by Beverley
Robinson and Johanna Philipse, as well as by the other parties, and
the attestation by the subscribing witnesses, that the deed was
signed, sealed, and delivered in their presence, by all the
parties, as proved on the part of the plaintiff, are in judgment of
law complete evidence of such delivery, and of an acceptance of the
estates therein granted and limited.
And thereupon the counsel for the defendant submitted to the
said circuit court, the following points in writing, on the
question of a delivery of the settlement deed of January 13, 1758,
upon which points the said counsel prayed the said circuit court to
charge and instruct the jury, as matters of law arising upon the
proofs and allegations of the parties.
I. That it was necessary to the validity of the deed that it
should have passed into the hands of the trustees, or one of them,
or some person for them, with the intent that it should take effect
as a conveyance.
(2) It is not enough that the trustees, as well as the other
parties, signed and sealed, unless the deed was also delivered to
and accepted by them, or some person on their behalf.
II. The evidence arising from the proof of the deed by William
Livingston, in 1787, is no stronger than that arising from the
proof of the handwriting and death of the subscribing
witnesses.
Page 31 U. S. 604
(2) In either case it is only
prima facie evidence, or
evidence from which a delivery may be presumed, and may be rebutted
by direct or circumstantial evidence, which raises a contrary
presumption.
III. That in the absence of all proof, that the trustees, or any
other person for them, ever had the deed, and there being no proof
of a holding under it, the fact that the deed came out of the hands
of Morris, in 1787, is sufficient of itself to rebut any
presumption of a delivery arising from the proof of the deed by
William Livingston, or the proof of the handwriting and death of
the subscribing witnesses.
IV. If the jury, from the evidence, believes that the deed was
signed and sealed on the day of its date, and that all William
Livingston and Sarah Williams witnessed was what took place at that
time, and that the deed was not delivered before the execution of
the Beekman deed, on the 18th of January 1758, then there is no
evidence of a delivery.
(2) It being conceded by the plaintiff's counsel, that the deed
was not delivered at the time of the execution of the Beekman deed,
on 18 January, 1758, then, if the jury believe the deed was signed,
sealed and witnessed, on the day it bears date, there is no
evidence of a delivery.
(3) If the jury believes the deed was not delivered on the day
it was signed, sealed, and witnessed, then there is no evidence of
a delivery.
V. The acts and omissions of Morris and wife, so far as they go
to induce the belief that the deed was not perfected by a delivery,
are of the same force and effect against the children and their
grantee, as they would be against Morris and wife themselves.
VI. The jury, in judging of the acts said to be hostile to the
settlement deeds, if they may determine with what intent those acts
were done, must gather that intent from the acts themselves.
VII. Although the deeds to Hill Merritt, and Rhodes, would, in
law, be a good execution of the power contained in the settlement
deed, supposing that to have been duly delivered; yet upon the
question whether that deed was or was not perfected by a delivery,
those deeds contain evidence that the
Page 31 U. S. 605
parties were acting as the owners of the land in fee, and not as
tenants for life executing a power.
VIII. The evidence upon the one side or the other should not be
submitted to the jury as
prima facie or presumptive
evidence, either for or against a delivery; but the jury should
consider and weigh the whole evidence together, and from the whole,
determine whether or not the deed was delivered.
And thereupon the opinion of the said circuit court upon the
points submitted on the part of the defendant was delivered in
substance as follows:
To the first point, and the second branch of it, the said court
gave the instructions as asked on part of the defendant.
Upon the second of the said points, the said circuit court
overruled and refused to give the same to the jury, to which said
opinion and decision of the said circuit court the counsel for the
defendant then and there on the said trial also excepted.
Upon the second branch of the said second point, the said
circuit court gave the instructions as follows; the proof by
William Livingston, and the proof of the handwriting and death of
the witnesses, are only
prima facie evidence, from which a
delivery may be presumed, and may be rebutted by direct or
circumstantial evidence, which raises a contrary presumption.
Upon the said third point, the said circuit court overruled and
refused to give the instructions therein prayed for to the jury, to
which said decision and opinion of the said circuit court, the
counsel for the defendant, then and there on the said trial, also
excepted.
Upon the said fourth point, the said circuit court overruled and
refused to give the instructions therein prayed for as matter of
law, but that it was evidence for the consideration of the jury, to
which said opinion and decision of the said circuit court, the
counsel for the defendant then and there on the said trial also
excepted.
Upon the second branch of the said fourth point, the said court
overruled and refused to give the instruction therein prayed for to
the jury, saying that such supposed concession was denied by the
plaintiff's counsel, and they refused to give any instruction
thereon, to which said opinion and decision of the
Page 31 U. S. 606
said circuit court, the counsel for the defendant, then and
there on the said trial, also excepted.
Upon the third branch of the said fourth point, the said circuit
court overruled and refused to give the instruction therein prayed
for to the jury, to which said opinion and decision of the said
circuit court the counsel for the defendant then and there on the
said trial also excepted.
Upon the said fifth point, the said circuit court gave the
instruction, as prayed for, to the jury.
Upon the said sixth point, the said circuit court overruled and
refused to give the instruction therein prayed for to the jury,
without adding to the said point the following words, to-wit,
"connected with the other evidence in the cause," and with that
addition, gave the said instruction to the jury, to which said
opinion and decision of the said circuit court the counsel for the
defendant then and there on the said trial also excepted.
Upon the said seventh point, the said circuit court overruled
and refused to give the instruction as prayed, but gave the
instruction following:
"although the deeds to Hill, Merritt, and Rhodes would in law be
a good execution of the power contained in the settlement deed,
supposing that to have been delivered; yet upon the question of
whether that deed was or was not perfected by delivery, those deeds
are competent evidence, from which the jury may judge whether
Morris and his wife intended to act as if no marriage settlement
had been executed, or under the power contained in the marriage
settlement,"
to which said opinion and decision of the said circuit court the
counsel for the defendant then and there on the said trial also
excepted.
Upon the said eighth point, the said circuit court overruled and
refused to give the instruction therein prayed for to the jury, to
which said opinion and decision of the said circuit court the
counsel for the defendant then and there on the said trial also
excepted.
And the opinion of the said circuit court upon the points
submitted by the counsel for the plaintiff was delivered in
substance as follows, to-wit:
Upon the first of those points, that the acts of Morris and
Page 31 U. S. 607
wife were proper evidence to be considered by the jury in
determining whether the settlement deed was delivered or not.
Upon the second of those points, that, strictly speaking, Morris
could neither be considered as grantor or grantee in the settlement
deed, and therefore the mere possession of the deed by him was no
affirmative proof on either side as to the fact of delivery, to
which said opinion and decision of the said circuit court, the
counsel for the defendant, then and there on the said trial, also
excepted.
Upon the third of those points, that if by "complete evidence,"
it was intended that the plaintiff's evidence was conclusive, or
such as could not be controverted, the said instruction should not
be given to the jury.
The jury found a verdict for the plaintiff in the ejectment, and
judgment having been entered thereon, the defendant prosecuted this
writ of error.
Page 31 U. S. 608
MR. JUSTICE STORY delivered the opinion of the Court.
Many of the questions which have been discussed in this
Page 31 U. S. 609
case arose in the suit of
Carver v. Jackson, ex dem. of
Astor, 4 Pet. 1, which was founded upon the same
title, and substantially upon the same evidence as is presented in
the present record. As upon a deliberate review we are entirely
satisfied with the opinion and judgment pronounced on that occasion
(which was indeed most thoroughly and anxiously considered), we do
not propose to go at large into the reasoning now; but to confine
ourselves to the new grounds of argument, which have been so
earnestly pressed upon the court, and to the instructions prayed
and refused, or given by the circuit court to the prejudice of the
plaintiff in error.
In the progress of the cause, after the plaintiff had given the
evidence in support of his cause, the counsel for the defendant
insisted,
"that unless the deed, called the marriage settlement deed,
which was given in evidence, was accompanied or preceded by a
lease, the plaintiff could not recover in this action; that without
a lease, the said deed could only operate as a bargain and sale,
and the statute of uses could only execute the first use to the
bargainees, Johanna Philipse and Beverley Robinson who took the
legal estate in the land, and that the plaintiff could not recover
without producing the lease, or accounting for its nonproduction.
And because no lease had been produced, and no evidence given to
account for its nonproduction, the counsel for the defendant moved
the circuit court to nonsuit the plaintiff; but the circuit court
overruled the objection and refused to grant the motion for a
nonsuit, and decided that the plaintiff was entitled to recover
without producing any lease, or accounting for its nonproduction,
inasmuch as the recital in the release was evidence of such a lease
having been executed;"
to which opinion and decision the defendant excepted. This
constitutes the subject matter of the first ground, now assigned
for error on behalf of the defendant before this Court.
It might be a sufficient answer to the motion for a nonsuit to
declare that the circuit court had no authority whatsoever to order
a peremptory nonsuit against the will of the plaintiff. This point
has been repeatedly settled by this Court, and is not now open for
controversy.
Doe d. Elmore v.
Grymes, 1 Pet. 469;
D'Wolf
v. Rabaud, 5 Pet. 476. But independent of this
ground, which would be conclusive, there
Page 31 U. S. 610
is another which seems equally so, and that is that it called
upon the court to decide upon the nature and effect of the whole
evidence introduced in support of the plaintiff's case, part of
which was necessarily of a presumptive nature, and capable of being
urged with more or less effect to the jury. It is to be recollected
that the marriage settlement deed was dated and purported to be
executed in January, 1758, and was designed to operate as a
conveyance by way of lease and release, and the sole object of the
lease was to give effect to the release, as a common law
conveyance, and not as a mere bargain and sale. It stated
"That in consideration of a marriage intended to be had and
solemnized between the said Roger Morris and Mary Philipse (two of
the parties to the indenture), and the settlement hereafter made by
the said Roger Morris on the said Mary Philipse, and for and in
consideration of the sum of five shillings, &c., the said Mary
Philipse hath granted, &c., and by these presents doth grant,
&c., unto the said Johanna Philipse and Beverley Robinson (the
trustees under the settlement), in their actual possession, now
being by virtue of a bargain and sale to them thereof, made for one
whole year, by indenture bearing date the day next before the day
of the date of these presents, and by force of the statute for
transferring of uses into possession, and to their heirs, all those
several lots, &c."
The recital, therefore, explicitly admits the existence of the
lease and the possession under it, and bound the parties, as well
as those who as privies claim under them. It will be recollected
also that the trial of the present case was in June, 1830, upwards
of seventy years after the date of the lease, which was confessedly
an instrument of a fugitive and temporary nature, and intended to
serve merely as a means of giving full operation to the release.
Under such circumstances, if no other objection existed to the
title, the lapse of time would alone be sufficient to justify a
presumption of its due execution and loss, and nonproduction by the
plaintiff, proper to be left to the jury, and thus justify the
court in refusing a nonsuit. In the case of
Carver v.
Jackson, this Court observed that such a recital of a lease in
a release, may, under circumstances, be used as evidence even
against strangers. Thus,
"if the existence and loss of the lease be established by other
evidence, then the
Page 31 U. S. 611
recital is admissible as secondary proof in the absence of more
perfect evidence, to establish the contents of the lease. And if
the transaction be an ancient one, and the possession has been long
held under such release and is not otherwise to be accounted for,
them the recital will, of itself, under such circumstances,
materially fortify the presumption, from lapse of time and length
of possession, of the original existence of the lease."
In the present case there was
prima facie evidence of
the due execution of the release, and evidence also of a possession
by Morris and his wife of the premises in controversy for many
years afterwards, consistent with, if not necessarily flowing from
that instrument. Under such circumstances it would have been
unjustifiable on the part of the circuit court to have directed a
nonsuit, the effect of which would have been to have excluded the
jury from weighing the whole evidence, even if the case had been
against a party who was a stranger to the title.
But the defendant is in no just sense a stranger to the title.
He claims in privity of estate by a title derived from the State of
New York, whose sole title is founded upon that of Morris and his
wife, and is subsequent to the release. The general rule of law is
that a recital of one deed in another, binds the parties, and those
who claim under them by matters subsequent. Technically speaking,
such a recital operates as an estoppel, which works on the interest
of the land and binds parties and privies; privies in blood,
privies in estate and privies in law. Between such parties, the
original lease need not at any time be produced. The recital of it
in the release, is conclusive. It is not offered as secondary, but
as primary proof; not as presumptive evidence, but as evidence
operating by way of estoppel, which cannot be averred against, and
forms a muniment of the title. It is otherwise where the recital is
offered against strangers claiming by an adverse title, or by
persons claiming from the same parties by a title anterior and
paramount. In such cases the lease itself is the primary evidence;
and its loss or nonproduction must be accounted for before the
recital can be let in as secondary evidence of its execution or
contents. But even here (as has been already intimated), a long
lapse of time furnishes a reasonable presumption of the loss. The
argument of the bar is that the recital
Page 31 U. S. 612
may be conclusive of the existence of the lease in favor of the
lessees, but not for or against any other persons claiming under
them by distinct conveyances. If the recital be conclusive in favor
of the lessees, it must be equally conclusive in their favor as
releasees, since the latter works upon the possession acquired
under the lease. But in truth, the recital as an estoppel binds all
privies, where claiming by the same of by a distinct instrument. It
is the privity which constitutes the bar, and not the fact of
taking by the very deed which contains the recital. It is also said
that the recital of a lease in a release is competent evidence to
prove that the lease was originally executed, but not until its
nonproduction is accounted for, competent evidence of the contents
of the lease. If the recital of a lease be admitted to be good
evidence of the execution, it must be good evidence of the
execution of the very lease stated in the recital, and of the
contents, so far as they are stated therein, for they constitute
its identity. But the argument itself, can apply only where the
recital is offered as secondary evidence. In the present case it is
offered, not as secondary, but as primary and conclusive.
This whole subject underwent a more elaborate consideration of
this Court in the case of
Carver v. Jackson, and the
doctrine now asserted, was reasoned out, both upon principle and
authority. The language of the court upon that occasion was,
"We are of opinion not only that the recital of the lease in the
deed of marriage settlement was evidence between these parties (and
the present defendant is in a similar predicament), of the original
existence of the lease, but that it was conclusive evidence between
these parties, of that original existence, and superseded the
necessity of introducing any other evidence to establish it."
And after a review of the authorities, it was added,
"We think, then, that upon authority, the recital of the lease
in the deed of release, in the present case, was conclusive
evidence upon all persons claiming under the parties in privity of
estate, as the present defendant in ejectment does claim. And
independently of authority, we should have arrived at the same
result upon principle; for the recital constitutes a part of the
title, and establishes a possession under the lease necessary to
give the release its intended operation. It works upon the interest
in the land, and creates an
Page 31 U. S. 613
estoppel, which runs with the land against all persons in
privity under the releasees. It was as much a muniment of the
title, as any covenant therein running with the land."
And it was then added,
"This view of the matter dispenses with the necessity of
examining all the other exceptions as to the nature and sufficiency
of the proof of the original existence and loss of the lease, and
of the secondary evidence to supply its place."
In every view of the matter, then, the nonsuit was properly
denied.
The next error assigned grows out of an instruction to the jury
asked of the courts by the counsel for the plaintiff. The prayer
was,
"That Roger Morris stood in the character of a grantee in the
deed (the settlement), and that a possession of the deed by him is
evidence of its delivery, because the settlement gave him a larger
interest in the lands, than his mere marital rights."
The court refused to give this instruction, and declared
that
"Strictly speaking, Morris could neither be considered as
grantor or grantee in the settlement deed, and therefore the mere
possession of the deed by him was no affirmative proof on either
side, as to the fact of delivery;"
to which opinion and decision the counsel for the defendant
excepted. It is somewhat singular that the defendant should have
excepted to the refusal to grant the prayer asked by the plaintiff,
since the remarks made by the court seem to have been rather
reasons for the refusal, than an instruction to the jury; and if
those reasons were not well founded, it was no prejudice to the
defendant. But waving this consideration, let us see if the circuit
court was wrong in stating that, strictly speaking, Morris could
neither be considered as grantor or grantee in the settlement. The
plaintiff contended that he was exclusively grantee, and the
defendant's counsel now contend that he was exclusively grantor.
This is a point which must be decided by an examination of the
terms of the settlement deed. That a husband, even before marriage,
may, in virtue of the marriage contract have inchoate rights in the
estate of his wife, which, if the marriage is consummated, will be
protected by a court of equity against any antecedent contracts and
conveyances secretly made by the wife in fraud of those marital
rights, may be admitted; but they are mere
Page 31 U. S. 614
equities, and in no just sense constitute any legal or equitable
estate in her lands or other property antecedent to the
marriage.
In the present settlement deed, which is by indenture
tripartite, Mary Philipse purports to be the party of the first
part, Roger Morris of the second part, and Johanna Philipse and
Beverley Robinson (the trustees) of the third part. Mary Philipse
alone, without any co-operation on the part of Morris, purports to
grant and does grant to the trustees all the land mentioned in the
deed (including the premises in controversy) as her own property,
upon certain uses specified in the
habendum, and among
others after the marriage, to the use of herself and her husband
during their joint lives and the life of the survivor of them, with
certain subsequent uses and powers, not material to be mentioned.
If the settlement deed stopped here, the case would be too plain to
admit of doubt. Mary Philipse must in law be deemed the sole
grantor of the lands, and the trustees and Morris must be deemed
grantees, and to take in that character exclusively. In the close
of the indenture is the following clause:
"And the said Roger Morris, for and in consideration of the
premises, and the sum of five shillings, &c., doth hereby for
himself, his heirs, executors and administrators, covenant,
promise, grant and agree to and with the said Johanna Philipse and
Beverley Robinson, their and each of their heirs, &c., that in
case the said Mary Philipse shall survive him, the said Roger
Morris that then, and in such case, immediately after his death,
all and singular the moneys and personal estate whatsoever, whereof
he shall die possessed, shall be accounted the proper money and
estate of the said Mary Philipse during her natural life, and after
her decease, in case there be no issue begotten between the said
Roger Morris and Mary Philipse, that then the said moneys and
personal estate shall and may be had and taken by the executors and
administrators of the said Roger Morris, &c.; but if such child
or children shall survive the said Roger Morris and Mary Philipse,
then the said moneys and estate to be divided among them in such
shares and proportions as he, the said Roger Morris, shall think
fit at any time hereafter, by his last will and testament, or
otherwise, to order and direct."
It is obvious from the language of this clause, that it can
operate only by way of covenant. It conveys no present interest
in
Page 31 U. S. 615
any personal property whatsoever; and affects to dispose only of
the moneys and personal estate of which Morris shall die possessed,
at whatever time they may have been acquired. It leaves him at full
liberty to dispose of all the personalty that he shall at any time
possess during his lifetime,
toties quoties. As a grant,
it would be utterly void from its uncertainty. As a covenant, it
has a sensible and just operation in favor of the trustees. In
legal contemplation, then, this clause makes Morris, strictly
speaking, only a covenantor, and not a grantor. But as to the real
estate passed to the trustees by the indenture, to which alone the
instruction could properly apply, he was clearly a mere grantee.
If, therefore, there was any error in the circuit court on this
point, it was not an error prejudicial to the defendant, but to the
plaintiff, as to its bearing on the question of the possession and
delivery of the settlement deed. But looking to the whole
provisions of that deed, it might well be stated, that strictly
speaking, Morris could neither be considered as grantor or grantee.
He was not grantor in any sense, except as to the personalty, and
as to that, he was properly a covenantor. And, technically
speaking, at the time of the execution of the deed, the trustees
were the grantees in the deed, though by the operation of the
statute of uses, the use to Morris, carved out of their seizin,
drew to it the seizin and possession of the estate, as soon as that
use, by his subsequent marriage, had a legal existence. Under such
circumstances, the direction that the mere possession of the deed
by Morris was no affirmative proof, on either side, of the fact of
the delivery, was at least as favorable to the defendants as the
law would justify, and consequently he has nothing to complain
of.
We not come to the instructions asked of the court by the
counsel for the defendant. And in the first place it is argued that
the court erred in refusing to instruct the jury that
"the evidence arising from the proof of the deed of William
Livingston in 1787, is no stronger than that arising from the proof
of the handwriting and death of the subscribing witnesses."
But this instruction, so asked, is not upon any matter of law,
but upon the mere weight of evidence, which the court was not bound
to give, and which was matter for the proper consideration of the
jury. But if it had been
Page 31 U. S. 616
otherwise, we are not prepared to admit that the instruction
ought to have been given. The solemn probate of a deed by a witness
upon oath before a magistrate, for the purpose of having it
recorded, and the certificate of the magistrate of its due probate
upon such testimony, are certainly entitled to more weight as
evidence, than the mere unexplained proof of the handwriting of a
witness after his death. The one affords only a presumption of the
due execution of the deed from the mere fact, that the signature of
the witness is to the attestation clause; the other is a deliberate
affirmation by the witness, upon oath, before a competent tribunal,
of the material facts to prove the execution. And there were, in
the present case, circumstances which gave an enhanced value and
weight to this probate.
In the next place, it is argued that the court erred in refusing
to give the instruction,
"that in the absence of all proof that the trustees, or any
person for them, ever had the deed, and there being no proof of a
holding under it, the fact that the deed came out of the hands of
Morris in 1787, is sufficient of itself to rebut any presumption of
a delivery arising from the proof of the deed by William
Livingston, or the proof of the handwriting and death of the
subscribing witnesses."
This instruction plainly called upon the court to decide mere
natters of fact, which were in controversy before the jury, and
upon the assumption of such matters of fact to direct the jury that
they rebutted other matters of fact. It was no part of the duty of
the court to decide upon the relative weight and force of these
facts. They exclusively belonged to the jury, and the instruction
was properly refused.
The same answer may be given to the refusal to give the
instructions prayed for in all the various branches embraced in the
fourth instruction of the defendant. They are as, follows:
"1. If the jury, upon the evidence, believe that the deed was
signed and sealed on the day of its date, and that William
Livingston and Sarah Williams witnessed what took place at that
time, and that the deed was not delivered before the execution of
the Beekman deed, on 18 January, 1758, then there is no evidence of
a delivery."
"2. It being conceded by the plaintiff's counsel, that the deed
was not delivered at the time of the execution of the Beekman deed,
on
Page 31 U. S. 617
18 January, 1758, then if the jury believe the deed was signed,
sealed and witnessed on the day it bears date, there is no evidence
of a delivery."
"3. If the jury believe the deed was not delivered on the day it
was signed, sealed and witnessed, then there is no evidence of a
delivery."
The supposed concession by the plaintiff's counsel, was utterly
denied by them at the time, and of course was properly deemed by
the court as out of the case. The whole scope of all these
instructions was to call upon the court to decide as matter of law
upon the evidence before the jury what portion of it was or was not
proof of a delivery of the deed, and how far certain supposed facts
controlled or might control the effect of all the other evidence
upon the same point. There was positive evidence before the jury of
the delivery of the deed, from the probate of it by Governor
Livingston before Judge Hobart. How then could the court be called
upon to say, that there was no evidence? The circumstances alluded,
to, and hypothetically put in the instructions, were certainly
proper to be left to the jury, if found by them to be true, to
rebut this evidence. They were matter for comment and argument to
the jury, by counsel, upon this vital question in the cause. But
the court had no right to say, that they would, or ought to
overcome all other evidence in the case of the delivery of the
deed. The jury were not to be told as matter of law that if they
found or believed on fact, there was no evidence of another
independent fact, or because the deed was not delivered on a
particular day, therefore there was no evidence of a delivery at
all. They were to judge of the fact of delivery from all the
circumstances of the case. It was their exclusive province, and it
was no part of the duty of the court to instruct them, however it
might advise them, in respect to the weight of conflicting
evidence, or the inferences which they should deduce from one fact
to decide their belief of another. These instructions were
therefore properly refused, and indeed some of them are open to
even more serious objections, as logical deductions upon mere
matters of fact. The conclusions do not necessarily flow from the
premises.
The next objection is that the court refused to instruct the
jury that
"in judging of the acts said to be hostile to the settlement
deed, if they may determine with what intent these
Page 31 U. S. 618
acts were done, they must gather that intent from the acts
themselves."
The refusal was not unqualified, for the court gave the
instruction with the addition of the words "connected with the
other evidence in the cause."
In our opinion, the instruction, without the qualification, was
properly refused. In cases where the interests of third persons may
be affected by the acts of others -- where, as in the present case,
the rights of children are to be affected by the acts of parents,
it is most material to ascertain the intent with which these acts
were done. The intent may restrain, enlarge or explain the acts, so
as to change their whole effect in point of evidence. The acts done
with one intent may press strongly in point of presumption one way;
with another intent, they may afford an equally cogent presumption
the other way. How is this intent to be ascertained? It may indeed
accompany and qualify the acts; but it may, on the other hand,
arise and be exclusively provable by extrinsic circumstances. Are
these extrinsic circumstances to be shut out from the cause if they
are the sole means of demonstrating the intent? If not, upon what
ground are they to be excluded, when they may confirm or qualify or
repel any inferences of intent deducible, ordinarily, from the acts
standing alone? No rule of evidence exists, which, in our judgment,
could justify such a proceeding, and no authority has been cited,
at the bar, in favor of its adoption. One of the grounds of
argument at the bar is that the hostile acts relied on arose from
the execution of certain deeds of lease and release, the intent of
which might be gathered from the contents of the writings. But the
question was not what were the contents of these deeds, as matters
of legal construction, but what was the intent with which they were
made, or rather what was the estate out of which Morris and wife
(the grantors) intended to carve them. Were they designed to be an
execution of the powers and authority under the settlement deed?
Or, if an excess of these powers, were they intended not to be
hostile to the interests conferred by that deed? Or were they
solely and designedly an exercise of the general rights of husband
and wife over the estate of the latter, unfettered by any
settlement? Their direct operation was not in controversy. They
were introduced for a collateral purpose, as matters of presumption
against the validity of the
Page 31 U. S. 619
settlement deed as an executed conveyance. the intent, then, was
open to proof an matter
in pais, and all the evidence,
legally conducing to establish it, was to be considered by the jury
in connection. But the instruction does not allude to any deeds
whatsoever. It is in the most general terms and speaks of acts
which may as properly refer to any other thing done
in
pais, as to solemn conveyances. This subject was discussed
very much at large in
Carver v. Jackson, and the result to
which the court arrived, was precisely the same as is now
indicated.
The next objection is that the court refused to instruct the
jury that
"although the deeds to Hill Merrit, and Rhodes would in law be a
good execution of the power contained in the settlement deed,
supposing that to have been duly delivered, yet upon the question
whether that deed was or was not perfected by a delivery, these
deeds contain evidence that the parties were acting as owners of
the land in fee, and not as tenants for life executing a
power."
But the court gave the following instruction, that
"although the deeds to Hill Merrit and Rhodes would in law be a
good execution of the power contained in the settlement deed,
supposing that to have been delivered, yet upon the question
whether that deed was or was not perfected by delivery, those deeds
are competent evidence from which the jury may judge whether Morris
and his wife intended to act as if no marriage settlement had been
executed, or under the power contained in the marriage
settlement."
To this instruction, so given, the defendant also excepted. The
sole object of introducing the deeds to Hill Merrit and Rhodes here
referred to (which were introduced on the part of the defendant)
was to raise a presumption against the delivery of the settlement
deed. The argument seems to have been that although those deeds
might have been a fit and good execution of the power reserved to
Morris and his wife by the settlement deed, yet the omission to
make any reference to that power, or to state in those deeds that
they were acting under and in virtue of a power, was evidence that
they were acting not under any power, but as owners of the fee. If
they were acting as owners of the fee, then that circumstance
afforded,
pro tanto, presumption against the delivery of
the settlement deed, since parties acting under and entitled to
act
Page 31 U. S. 620
solely under the power in that deed, would naturally refer to it
as the foundation of their conveyances. Now so far as the
presumption would go, it was fairly and fully left to the jury as
evidence, by the very instruction given to the court.
But the instruction which was refused called upon the court to
go further, and to decide as matter of law that the parties were in
fact acting as owners of the land in fee, and not as tenants for
life executing a power. Surely, it will not be pretended that in
order to a due execution of a power, it is necessary that it should
be recited or referred to in the executing instrument of
conveyance. The form of the instruction prayed for admits this. It
is sufficient that the power exists and is intended to be executed,
and that intent is matter
in pais, to be collected from
all the circumstances of the case. The deeds of Hill, Merrit, and
Rhodes contain nothing on their face (as the instruction prayed for
concedes) which is inconsistent with or repugnant to the power in
the settlement deed, and it demands of the court, notwithstanding,
that in point of fact they were not executed under the power. This
was matter of fact and intent involved in the issue before the
jury, and as such exclusively for its decision. This very point
underwent the most deliberate consideration of this Court in the
case of
Carver v. Jackson, upon an exception taken to the
charge of the court. It was then treated solely as a matter of
fact, for the consideration of the jury, and from that view of it
we do not perceive the slightest reason to depart.
The next and last objection relied on is that the court refused
to instruct the jury that
"the evidence upon the one side or the other should not be
submitted to the jury as
prima facie or presumptive
evidence either for or against a delivery, but the jury should
consider and weigh the whole evidence together, and from the whole
determine whether or not the deed was delivered."
That the whole evidence was to be considered and weighed by the
jury upon the points in issue was indisputable and undisputed. The
only question was whether the defendant had a right to insist upon
shutting out from the consideration of the jury the nature of the
evidence, as
prima facie proof or otherwise, and to
prescribe the order and manner in which it should be examined and
weighed by them. We know of no principle of law upon which such a
claim can be maintained.
Page 31 U. S. 621
Whenever evidence is offered to the jury, which is in its nature
prima facie proof or presumptive proof, its character as
such ought not to be disregarded, and no court has a right to
direct the jury to disregard it or to view it under a different
aspect from that in which it is actually presented to them.
Whatever just influence it may derive from that character, the jury
has a right to give it, and in regard to the order in which it
shall consider the evidence in a cause, and the manner in which it
shall weigh it, the law has submitted it to it to decide for
itself, and any interference with this right would be an invasion
of its privilege to respond to matters of fact. The objection is
therefore overruled.
Upon the whole, the opinion of the court is that the judgment of
the circuit court ought to be
Affirmed with costs.
MR. JUSTICE BALDWIN dissented in writing.
The opinion of MR. JUSTICE Baldwin was not delivered to the
reporter.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of New York and was argued by counsel, on consideration
whereof it is ordered and adjudged by this Court that the judgment
of the said circuit court in this cause be and the same is hereby
affirmed with costs.
