In an action of ejectment where two of the plaintiff's lessors
were married women and the demise was laid in the declaration to
have been on 1 January, 1815, it was necessary to establish to the
satisfaction of the jury that the marriage took place before that
day, inasmuch as their husbands were stated to have joined in the
demise.
Two depositions, taken in 1818, were given in evidence, one of
which stated the death of the father of the women to have taken
place "upwards of twenty years ago," and the other "about
twenty-eight years ago." Both of the depositions, when enumerating
the children of the deceased, mentioned the fact of the marriage
without saying when such marriage took place.
In giving its instructions to the jury, the court remarked that
"the depositions should be favorably construed." After retiring,
the jury returned into court and inquired what was meant by the
instruction that the "depositions should be favorably construed,"
when the court informed them that
"Where a suit was brought by A. and B. as man and wife, and a
witness proved them man and wife shortly after the suit was
brought, without proving the time at which they were intermarried,
it might well be inferred that they were man and wife when the suit
was instituted, and if there was an ambiguity in the deposition of
William Rawle (the witness), it was in the power of the jury to
find that the two
femes covert had intermarried before 1
January, 1815."
The jury was further told that
"The depositions had been referred to the court, on a motion, on
the part of the defendant, for a nonsuit, for want of proof of
heirship and intermarriage of the daughters of Reynolds, at the
date of the demise, 1 January, 1815, and that it seemed to the
court that William Rawle (the witness) referred to the persons who
were the heirs of Reynolds at the time of his death, and not at the
time the deposition was taken, and refused the nonsuit, but the
jury was not bound by the construction given by the court, and
could give the deposition any construction they saw proper."
No exception having been taken to the opinion of the court
overruling the motion for a nonsuit, the question whether, as
matter of law, there was any evidence to be submitted to the jury
going to establish the intermarriage at or before the time of the
demise laid in the declaration was not before this Court.
And in the submission to the jury of the question of fact,
whether or not the evidence proved the marriage before that time,
there was no interference with the province of the jury or
violation of any rule of law, the question having been left open
for their finding.
There was therefore no error in the proceedings of the court
below.
The facts in this case are set forth in the opinion of the
Court.
MR. JUSTICE NELSON delivered the opinion of the Court.
This is a writ of error to the Circuit Court of the United
States for the District of Kentucky, bringing up for review certain
instructions given to the jury on the trial of an action of
ejectment, brought by the defendant in error against the plaintiff
in error, and in which the former obtained the verdict.
The action was brought to recover possession of a large tract of
land situate and lying in the State of Kentucky, to which the
lessors of the plaintiff claimed title as the heirs of James
Reynolds, the original patentee of the tract.
Page 45 U. S. 124
Two of them were daughters of the patentee and
femes
covert, with whom their husbands, Cutbush and Reese, had
joined in the action, and the demises in the several counts in the
declaration were laid jointly and not severally, and were of the
date of 1 January, 1815.
Several questions of law were raised by the counsel for the
defendant below, in the course of the trial, and were disposed of
by the court, and exceptions taken, but as they have not been
relied on here as grounds of error, it is unimportant to notice
them more particularly.
The suit was commenced in the latter part of December, 1815, and
continued from term to term, until the November term of the court
in 1842, when it was tried, and a verdict found for the
plaintiff.
Among other testimony introduced on the part of the lessors of
the plaintiff to establish their title to the tract, and right to
recover the possession, were the depositions of William Rawle and
Thomas Cumpston, both of the City of Philadelphia, duly taken
before a competent officer, in May, 1818, the material parts of
which are as follows.
William Rawle deposed,
"That he was well acquainted with James Reynolds, late of the
City of Philadelphia, carver and gilder, who lived many years in a
house belonging to the wife of this affiant, as a tenant, in the
City of Philadelphia; that, to the best of this affiant's
recollection and belief, the said
James Reynolds left five
children at the time of his death, which was upwards of twenty
years ago. The names of the children living at the time of his
death were James, Henry, Anne, and Elizabeth, one of whom married
Edward Cutbush, and the other James Reese, and Sarah, who, as
far as affiant's knowledge extends, was not married, and this
deponent believes the said James, Henry, Anne, Elizabeth, and Sarah
were the heirs at law of the said James Reynolds, deceased."
Thomas Cumpston deposed
"That he was acquainted with James Reynolds, late of the City of
Philadelphia; that he died about twenty-eight years ago; that he
left two sons, to-wit, James Reynolds and Henry Reynolds, and three
daughters, to-wit, Anne Reynolds, now married to Edward Cutbush,
Elizabeth, now married to James Reese, and Sarah Reynolds, whom
this deponent believes to be the heirs at law."
When the testimony closed, the following among other
instructions were prayed for by the counsel for the defendant,
namely
"That the plaintiff cannot recover on the demise of Cutbush,
unless the jury shall find from the evidence that he was married to
the daughter of the said patentee, Reynolds, on or before the date
of his demise, to-wit, 1 January, 1815; nor can the plaintiff
recover on the demise of Reese, unless they shall find he was
Page 45 U. S. 125
married to another daughter of the said patentee, at or before
the same day; nor can the plaintiff recover on any of the demises
in the declaration, unless the jury shall find from the evidence
that the lessor, James Reese, was married as aforesaid, on or
before 1 January, 1815 (he having joined in the demise as laid in
each of the several counts in the declaration)."
The record further states that the instructions thus prayed for
on the part of the defendant were given, "but the court remarked to
the jury that the depositions should be favorably construed."
After the cause was thus submitted upon this branch of it, the
jury returned into court, and inquired
"What was meant by the instruction, 'but the depositions should
be favorably construed,' when the court informed them, that where a
suit was brought by A. and B., as man and wife, and a witness
proved them man and wife shortly after the suit was brought,
without proving the time at which they were intermarried, it might
well be inferred that they were man and wife when the suit was
instituted, and if there was an ambiguity in the deposition of
William Rawle (the witness), it was in the power of the jury to
find that the two
femes covert had intermarried before 1
January, 1815."
The jury was further told
"That the depositions had been referred to the court, on a
motion on the part of the defendant for a nonsuit, for want of
proof of heirship and intermarriage of the daughters of Reynolds at
the date of the demise, 1 January, 1815; and that it seemed to the
court that William Rawle the witness, referred to the persons who
were the heirs of Reynolds at the time of his death, and not at the
time the deposition was taken, and refused the nonsuit, but that
the jury was not bound by the construction given by the court, and
could give the deposition any construction they saw proper."
This is the substance of the case, as presented on the record,
so far as the questions before us are involved, and upon which we
are called upon to decide.
The counsel for the plaintiff in error contends, that the
testimony of Rawle and Cumpston, as detailed in their depositions,
and which is alone relied on by the defendants in error as proving
the intermarriage of Anne and Elizabeth, two of the heirs of the
patentee, with Cutbush and Reese, refers, and upon a fair
construction should be limited, to the time when they were taken,
to-wit, 4 and 2 May, 1818, and cannot be properly regarded as
referring to the time of the demise laid in the declaration,
to-wit, 1 January, 1815; and that if so, then the testimony did not
lay a sufficient foundation to warrant the inference or presumption
by the jury of the fact of intermarriage at the latter date, which
fact is essential to maintain the action.
Whereas the counsel for the defendant in error insists that
one
Page 45 U. S. 126
or both the depositions are open to a construction that affords
direct proof of the intermarriage as far back as the time of the
death of the patentee, and, of course, before the date of the
demise, or, if not direct proof, that the testimony, at least, is
sufficiently full and comprehensive to authorize the jury in
finding the intermarriage as a conclusion of fact as early as that
date.
These are substantially the adverse positions held and
maintained by the respective counsel upon the point in question
between them.
This Court is not called upon to express an opinion whether, as
matter of law, there was any evidence to be submitted to the jury,
going to establish the intermarriage at or before the time
mentioned, because although this ground was taken by the counsel in
the course of the trial below, on a motion for a nonsuit, and was
overruled, no exception was taken to the decision. The point,
therefore, is not before us.
Both parties there assumed, that the inference or presumption of
intermarriage or not at the date of the demise was one of fact,
depending upon the weight of the evidence, such as it was, and
belonged properly to the province of the jury, and should be
submitted to them. And the only question, therefore, here is
whether the court, in its instruction on the submission of the case
to the jury, violated any rule of law, for which error will
lie.
We have accordingly examined the instructions given on this
aspect of the case with attention, and are satisfied that upon the
strictest analysis to which they may be properly subjected, there
is no well founded objection to them.
It is true, after advising the jury in accordance with the
prayer of the defendant below, that it was necessary for the
plaintiff to establish the intermarriage at the time of the demise
in order to entitle him to the verdict, the court added, that the
depositions given in evidence for this purpose should be favorably
construed. But if we were to concede anything exceptionable in this
mode of construing the depositions, the error was sufficiently
explained and corrected when the inquiry was made by the jury as to
the force and effect to be given to the observation of the court.
In effect, they were then told that the depositions, especially
Rawle's, left the question at issue open for their consideration,
depending upon the weight to be given to the facts therein
testified to, and upon which it was competent for them to find for
the plaintiff, which, in judgment of law, was nothing more than the
assertion of a right in the jury that had already been virtually
implied in the case from the concession of both parties, that the
question belonged to that tribunal to determine, according to their
view of the evidence.
Indeed, instead of improperly interfering with the province of
the jury, the court seems to have been particularly guarded
against
Page 45 U. S. 127
leaving any undue impression upon their minds as to the weight
and effect of the evidence from opinions that had fallen from it in
the course of the trial. For after referring to the view taken in
their hearing on the motion for a nonsuit, in which the court were
obliged to express an opinion as to the tendency of the evidence on
the depositions, the jury was expressly advised, that they were not
bound by the construction given by the court, but could give such
construction as, in their judgments, the facts would warrant.
Even if an opinion had been expressed, in the course of
submitting the case, more pointedly, as to the bearing and tendency
of the evidence, than is to be found in this case in the record,
after the jury was advised, that they were not intended as
instructions, or to be binding upon them -- that the question was
one of fact and construction, which they must consider and
determine for themselves -- we are not aware of any ground of
reason or authority upon which error could be predicated for an
interference with the rights of the jury, but the contrary.
The cases of
Evans v.
Eaton, 7 Wheat. 426, and
Carver v.
Jackson, 4 Pet. 80-81, need only be referred to in
confirmation of the position.
We are of opinion, therefore, that the judgment of the circuit
court should be
Affirmed.