Ejectment for a lot of ground in the City of Cincinnati.
A question as to the admission of the evidence of the
declaration of a deceased person as to boundary.
Historical facts of general and public notoriety may be proved
by reputation, and that reputation may be established by historical
works of known character and accuracy. But evidence of this sort is
confined in a great measure to ancient facts which do not
presuppose better evidence in existence and where, from the nature
of the transaction or the remoteness of the period or the public
and general reception of the facts, a just foundation is laid for
general confidence.
The work of a living author who is within the reach of the
process of the court can hardly be deemed of this nature. He may be
called as a witness; he may be examined as to the sources and
accuracy of his information; and especially if the facts which he
relates are of a recent date, and may be fairly presumed to be
within the knowledge of many living persons from whom he has
derived his materials, there would seem to be cogent reasons to say
that his book was not, under such circumstances, the best evidence
within the reach of the parties.
Special circumstances which were considered as exempting the
evidence contained in a book called the "Picture of Cincinnati," of
the date of the survey of the city and laying out lots in part of
the same, from the common rule, which justified its admission.
The plat of the lots in the City of Cincinnati which had been
recorded, and on which the streets and alleys in the same were
designated, and which had been generally recognized and used in the
surveys of the lots laid down in the same, was properly admitted in
evidence.
The legal title to lands in Ohio can only be passed by a proper
conveyance by deed according to the laws of the state.
This was an action of ejectment prosecuted by Eliza Harmer,
Josiah Harmer, and William Harmer, children and heirs-at-law of
Josiah Harmer, deceased, against George Morris and David Gwynne, to
recover possession of a part of a town lot in the City of
Cincinnati.
On the trial of the cause, the defendants excepted to the
admission of certain evidence and to the instructions given by the
court to the jury upon matters of law.
Page 32 U. S. 555
To reverse the judgment in favor of the plaintiffs, they
prosecuted this writ of error.
MR. JUSTICE STORY delivered the opinion of the Court.
This is a writ of error to revise the judgment of the Circuit
Court for the District of Ohio rendered against the plaintiffs in
error, who were the original defendants in an action of ejectment
commenced in that court in 1828.
The original suit is for a lot of land situate in Cincinnati.
The original plaintiffs are the heirs of Gen. Josiah Harmer, and
claim title to the premises under a deed executed by John Cleves
Symmes, then proprietor of the lands including the whole city, on 6
May, 1791, acknowledged on 28 November, 1804, and recorded on the
30th of the same month. The boundaries stated in the deed are as
follows:
"On the south, on the front or River Street, lying directly in
front of Fort Washington, being twelve rods wide on the street,
including two lots, and extending northerly from the said Front
Street twenty rods to the south side of the second street from the
Ohio, and adjoining the said second street, twelve rods from east
to west, and on the east, bounded by the lands of his Excellency
Governor St. Clair."
These lots were without the original bounds of the city. At the
time when this deed was executed, Symmes had not procured a legal
title thereto under his contract with the United States for his
purchase, but he subsequently obtained it in 1794.
The defendants at the trial set up title to the premises derived
under one Ethan Stone, who purchased the lands mentioned in the
deed from Symmes to Harmer at a sheriff's sale on an execution by
one Lamma against Symmes, and as his property, in March, 1803.
At the trial there was a good deal of evidence as to the
location and boundaries of the lots conveyed by the deed of Symmes
to Harmer and comprehending the premises, and this
Page 32 U. S. 556
constituted one of the points in controversy. The defendants
also, to rebut the plaintiffs' title, gave in evidence the record
of the proceedings in a suit in chancery prosecuted by Harmer
against Stone in the Supreme Court of Ohio in 1811, the object of
which was to procure a decree against Stone for a release and
surrender of his title to these lots under the sheriff's sale, upon
the ground, expressly stated in the bill, that the deed of
conveyance from Symmes to Harmer in 1791 (the former having then
acquired no legal title) conveyed only an equitable title to
Harmer, and that Stone had full notice thereof at the time of his
purchase under the sheriff's sale. Pending the proceedings Harmer
died, and the suit was revived in behalf of the widow and heirs of
Harmer, all of whom except one were then under age, and prosecuted
their suit by their mother as their next friend. Afterwards, in
1817, a decree was made in favor of the plaintiffs directing Stone
to release all his title to the land according to the boundaries
contained in the deed from Symmes to Harmer and to yield up the
possession accordingly. The heirs of Harmer did not all arrive at
age until 1825.
After the rendition of this decree, one George W. Jones was
employed by Mrs. Harmer to procure a release from Stone pursuant to
the decree. He testified that he came to Cincinnati in 1821. That
before leaving the City of Philadelphia, Mrs. Harmer requested him
to take the agency of their claim in Cincinnati, then in the hands
of Jesse Hunt, and to receive a conveyance from Stone of the lands
decreed to the heirs of Harmer, and take possession of the same.
That at that time all the heirs except one, were minors, and with
her who was of full age he had no conversation respecting the
matter, nor had he any written authority to act as agent for any of
them. That after his arrival at Cincinnati, he applied to Stone for
a conveyance, and after some difficulty and delay he got him to go
upon the ground, in company with Mr. Este, the attorney-at-law for
Harmer's heirs, and Mr. Gest, a surveyor, and the land was set off
by Stone, as he (Stone) claimed was correct. The surveyor handed
him a plan of survey, and Stone executed a release of the same to
Harmer's heirs. That the witness knew nothing of the situation of
the town or the true locality of the lots. He had no agency in, nor
did he ever know of the additional description of the four town
lots, as
Page 32 U. S. 557
mentioned in the deed of release made by Stone, nor did he know
that it conveyed other or different ground than was described in
the deed made by Symmes to Harmer.
It was also proved on the part of the plaintiffs that in 1824,
an execution was issued against Stone and levied upon a triangular
piece of ground at the junction of Ludlow and Front Streets (part
of the premises included in the deed of release of Stone, and
contended to be not included in the deed of Symmes to Harmer), as
Stone's property, and bought at the sheriff's sale, in February,
1825, by one Timothy Kirby, who afterwards, in June 1827, conveyed
the same to Jones, and Stone afterwards, in August of the same
year, upon a representation that it was bought by Jones for
Harmer's heirs to quiet their title, executed a release thereof to
Kirby.
It was also proved, that Harmer's heirs had always been in the
undisturbed possession of the land released by Stone to them under
the decree. That about the year 1821 or 1822, Josiah Harmer, one of
the heirs, then a minor but who came of age in 1823, came to
Cincinnati, and wishing to erect a house on the corner of the
triangular piece of ground above referred to, contracted for the
building of the same, which was erected thereon and had ever since
been in the possession and occupancy of persons holding under
Harmer's heirs and paying rent to them.
This statement of facts is necessary to understand the
instructions prayed of the court, which will hereafter come under
consideration. Before proceeding to consider them, it will be
proper to dispose of some minor exceptions taken to certain
evidence which was admitted at the trial.
It has been already stated that one of the points of the
controversy at the trial was as to the true location and boundary
of the lots conveyed by Symmes to Harmer. One Thomas Henderson, a
witness, among other things testified that
"he had heard a number of the old citizens of Cincinnati, now
dead, speak of the situation of the lots sold by Symmes to Harmer,
and named particularly Joel Williams, one of the old proprietors of
the other part of the town, and David Zeigler, who, he said, was
the reputed agent of Gen. Harmer, and in the conversation spoken of
warmly censured Ethan Stone for attempting to take from Harmer his
property."
The defendants
Page 32 U. S. 558
objected to the admission of Zeigler's declaration as to the
location of said lots, which objection was overruled by the court,
and the statement of said Zeigler, as testified by said witness,
was admitted in evidence to the jury. The defendants excepted to
the admission of this evidence. It is observable that the exception
is not general to the declarations of Zeigler, but only to that
which respected the location of the lots. Nor does it appear that
any declaration of Zeigler was given in evidence, except what is
above stated. Now if Zeigler made no other declaration, or the
plaintiffs waived giving any other declaration in evidence,
notwithstanding the court ruled it to be admissible, it is
difficult to perceive how this exception can be maintained or how
the defendants have been prejudiced. So far as Zeigler's
declaration is in evidence, it is merely introductory, that he
spoke "of the situation of the lots," and it nowhere appears that
any further declaration, except in this general way, was in
evidence. Such a statement, so utterly inconsequential, cannot form
any proper matter of exception. It proves nothing, and can be
considered in no other light than as the introductory language of
the witness himself.
The plaintiffs then offered to read from Dr. Drake's work,
called "A Picture of Cincinnati," the date of the surveying and
laying out lots in that part of Cincinnati which lies east of the
garrison reservation. To the admission of this book in evidence the
defendants objected, the author being (as was agreed) alive and his
deposition as to other matters taken in the cause. The court
overruled the objection and admitted the evidence to go to the
jury. To this decision also the defendants excepted. If this
exception were to be considered solely upon the general principles
of the law of evidence, we should think that it was well taken. All
evidence of this sort must be considered as mere hearsay, and
certainly, as hearsay, it is of no very satisfactory character.
Historical facts of general and public notoriety may indeed, be
proved by reputation, and that reputation may be established by
historical works of known character and accuracy. But evidence of
this sort is confined in a greater measure to ancient facts, which
do not presuppose better evidence in existence, and where, from the
nature of the
Page 32 U. S. 559
transactions or the remoteness of the period or the public and
general reception of the facts a just foundation is laid for
general confidence.
See 1 Stark. Evid. pt. 1, § 40-44,
60-64;
id., pt. 2, § 55, 180-81. But the work of a living
author who is within the reach of process of the court can hardly
be deemed of this nature. He may be called as a witness. He may be
examined as to the sources and accuracy of his information, and
especially, if the facts which he relates are of a recent date and
may be fairly presumed to be within the knowledge of many living
persons from whom he has derived his materials, there would seem to
be cogent reasons to say that his book was not under such
circumstances the best evidence within the reach of the
parties.
But we think there are special circumstances in this case which
exempt the evidence from the common rule and justify its admission.
Doctor Drake had been already used by the defendants as a witness
in the cause on the point as to location and boundary of the lots.
He stated, among other things, that he was present when Joseph
Gest, the city surveyor, made a survey of the foundation of old
Fort Washington, a plat and description of which, by Gest, was then
before him, and was in the case, and after stating his belief of
its accuracy and his reasons for so believing, he added,
"Finally, in preparing a plat of the town for 'The Picture of
Cincinnati' in 1814, I took great pains to lay down the site of the
fort correctly, and I find that the plat made by Mr. Gest
corresponds almost exactly with it."
And in answer to a further question of the defendants what would
be the location of four lots, the calls for which were directly in
front of Fort Washington, he stated, "they must all lie between
Ludlow Street and Broadway -- that is, west of Ludlow Street." Now
these answers, which were brought out upon the defendants' own
inquiries of their own witness, seem to us to justify the admission
of the book of Doctor Drake for the purpose of explaining,
qualifying, or controlling his evidence. The remarks of Dr. Drake
in his book as to the date of the surveying and laying out lots in
that part of Cincinnati which lies east of the garrison reservation
(and which was comprehended in the scope of his testimony) might
have been important for this purpose, and at all events the
plaintiffs might properly refer to this book to show statements
which
Page 32 U. S. 560
might affect the results of his testimony. In this view, we
think the evidence was admissible, and its bearing in any other
view is not shown to have been in the slightest degree material to
the cause.
The defendants subsequently offered in evidence a map contained
in the same book, it being a plan of the Town of Cincinnati,
exhibiting the same plan of the town as that offered by the
plaintiffs, except that the first four lots were not numbered. The
plaintiffs then produced another plat, marked No. 3, and again
called Henderson, who testified that he saw the plat for the first
time in 1809, while the depositions
in perpetuam used in
this cause were taken. That the said plat was shown to him by John
C. Symmes in the presence of Daniel Symmes. That the writing
thereon, and the lines, but not the numbers, were then put upon it
in the handwriting of J. C. Symmes. That in 1811, the said plat was
again shown to him, at which time the figures numbering the lots
were upon it, and he recognized these figures as being in the
handwriting of Daniel Symmes. That he then, at the request of the
proprietors and several of the old citizens of the town, copied the
plat, protracting it on a larger scale, and placed his copy on the
records of the county, and that the same has since governed him and
all other surveyors, so far as he has known, in surveys made in
that part of the Town, now City, of Cincinnati. That this plan was
recorded for the purpose of preserving the original plan of that
part of the town which was laid out by J. C. Symmes, and the
inhabitants of Cincinnati have since recognized it as the true plan
of the said part of the town,
except Ethan Stone, then in
possession of the block in which the land in controversy is
situated, who denied its correctness. That this was the only plan
of that part of the city known and recognized by the citizens of
Cincinnati; that the size and number of the streets and alleys were
determined with reference to that plan; that all the surveys of the
lots, streets, and alleys in that part of the city were made with
reference to that plan, so far as he knows; that he never knew of
any other plan; and no other was ever adopted as the plan of the
upper part of the town. The plaintiffs thereupon offered the said
plat in evidence to the jury for the purpose of showing the
original plan of that part of the city. The defendants
Page 32 U. S. 561
objected to its admission. The court overruled the objection and
admitted the plat in evidence, directing the jury to disregard
anything written on it by J. C. Symmes. An exception was taken to
this decision of the court, and the question now is upon its
correctness.
We are of opinion that the plat, upon this evidence, was rightly
admitted. It is to be considered that J. C. Symmes was the
proprietor of the whole city when it was laid out, and that the
plat was in his possession, and held out by him as the original
plat. It was traced back to that possession more than twenty-two
years before the trial, and was the oldest and only original plat
known to be in existence. It was a publicly recognized plat by
which the corporate authorities and citizens ascertained and
regulated their surveys, lots, streets, and alleys. And having been
so long and so publicly recognized, it was the highest species of
evidence of reputation as to the location and boundaries of the
lots, streets, and alleys, and not the less so because it was
contested by a single individual whose interests might be affected
by it. It was not conclusive upon his rights, but it was admissive
as the best proof then known to the plaintiffs of the general
laying out and boundaries of the lots and streets of the city,
recognized by the original proprietor, and those who had succeeded
to his rights, as well as by the public. But if this were even
doubtful (which we do not admit), it would still be admissible,
since it is not even pretended that it differed in any material
circumstance from other plats then laid before the jury by both
parties except as to the figures numbering the lots, and these the
court directed to be disregarded. The question therefore made at
the bar as to the admission of hearsay
post litem motam
does not arise, and may well be left for decision until it
constitutes the very point for judgment. It has indeed been
suggested at the bar that Symmes produced the plat, after Stone had
obtained his title to the premises, and therefore had an interest
to maintain the title of Harmer in order to escape from his
warranty to the latter under his deed of 1791. But no such interest
could exist, for whatever was the true location of the lots
conveyed by that deed, Symmes undoubtedly had the title at the
time, and Stone, not being a second purchaser by deed from Symmes,
but a mere purchaser
Page 32 U. S. 562
at a sheriff's sale on execution, could only take such title as
Symmes than possessed in the premises. And the not recording of the
deed to Harmer until after Stone's purchase will not affect
Harmer's title (it being clearly good between the parties), as it
might have done if Stone had been a subsequent purchaser from
Symmes by deed, without notice. The plat, then, came from Symmes'
possession at a time when he had not even a semblance of interest
in the controversy.
We now come to that which constitutes the main hinge of the
present suit, and by which its ultimate merits are to be decided,
and that is the instructions given and refused by the court. The
first instruction was prayed for by the plaintiffs, and is as
follows:
"The counsel for the plaintiffs move the court to instruct the
jury that inasmuch as they claim title to the premises in dispute
under the deed from Symmes to Harmer, and not under the deed of
release made by Stone, they cannot be divested of their title to
the lots which that deed conveyed to Harmer, by the possession of
these premises, for the period of five or six years, which they
supposed to be a part of these lots, though embraced in the deed of
release, but not in the decree,"
which instruction the court accordingly gave. It does not appear
upon the record that this instruction so given was in express terms
excepted to by the defendants, the exception being stated in the
following terms after the instructions asked by the defendants:
"The court charged the jury as requested by the defendants upon
the first instruction asked
by them, but refused the
residue of the instructions in manner and form as the same were
prayed for,
to which several opinions of the court in
delivering their charge as aforesaid, the defendants
except,"
&c. But we think that the fair import of these last words
embraces the instruction asked by the plaintiffs, for that was an
opinion delivered by the court in its charge to the jury.
That the deed of Symmes to Harmer in 1791 passed a legal title
to Harmer which became consummated in the latter when Symmes
obtained his patent from the United States in 1794 is not
controverted. The question is whether the subsequent proceedings
under the bill in equity, in which that title is asserted to be
equitable, and the release given by Stone
Page 32 U. S. 563
under that decree, and the subsequent possession of the heirs of
Harmer of the lands so released, do, under the circumstances, estop
them from setting up their legal title against the defendants. We
are of opinion, that they do not.
It is very clear that Mrs. Harmer could not, as
prochein
ami, during the minority of the heirs, authorize any release
to be taken which did not conform to the decree so as to make it
binding upon them. In point of fact, if the evidence is to be
believed, the agent never intended to take any release which did
not conform to the decree, and he received it upon Stone's
representation that it did so conform. And it nowhere appears from
the evidence that the heirs had any knowledge of their rights and
of the mistake in the release until the present suit was brought.
Unless the heirs had full knowledge of their rights and of the
mistake in the release, and with that knowledge held possession of
the premises in the release after they arrived of age, they could
not be deemed to have confirmed the transaction or to have accepted
the release as full satisfaction and performance of the decree.
We give no opinion what, under such circumstances, would have
been the effect of such acquiescence or confirmation upon the
rights of the plaintiffs derived from the decree, or whether
afterwards they would be permitted to repudiate the whole
transaction and compel a new execution of the decree. Here the
title set up by the plaintiffs is not derived from or under the
decree or release, but is a legal title paramount to both. Are the
plaintiffs then estopped in law to set up that title? We think not.
The bill in equity does not estop them, for that bill stated the
derivation of title correctly, and the decree conforms to it.
Neither the title set up in the bill nor the decree, asserts any
claim repugnant to the present claim. The decree requires Stone to
convey the very land in controversy. The only difficulty is that
the bill avers the title of the plaintiffs to be an equitable,
instead of a legal, title. But as all the facts are stated truly in
the bill, it is nothing more than a mistake of law. If the
defendants could rely upon that bill and decree as an estoppel, it
must be because the facts therein stated are repugnant to the
present title asserted by them. But such is not the posture of the
case.
The plaintiffs, then, having a legal title to the premises
Page 32 U. S. 564
which they have never parted with by a proper conveyance, they
are entitled to the instruction prayed for unless their possession
of the land under the release, not included in the decree, amounts
in law to an extinguishment of their title. We know of no principle
of law on which this can be maintained. The legal title to land in
Ohio can be passed only by a proper conveyance by deed according to
the laws of that state. The present is an attempt to set up a parol
waiver of title, by acts
in pais, a parol acceptance of
other land, in lieu of that belonging to the plaintiffs. As an
extinguishment or an estoppel it is equally inadmissible. The
question is quite a different one, what would be the effect of such
an acceptance, and acquiescence under it, by the parties, for a
long time, as matter of evidence upon a point of disputed boundary.
The instruction given involves no such consideration. It presents
the more general question whether the possession of the released
premises precluded the plaintiffs from asserting their legal title
to the land sued for. We concur with the court below in thinking
that it did not.
The first instruction asked by the defendants, having been given
by the court, may be passed over without notice. The second, third,
fourth and fifth instructions are follows:
"2. If upon the whole evidence the jury believes that Mrs.
Harmer, the next friend of the minors, in prosecuting the bill in
chancery and obtaining the decree given in evidence, authorized
George W. Jones to obtain the deed of release under the decree and
to take possession of the lands, and that George W. Jones, under
this authority, as agent for the complainant obtaining the decree,
and in conjunction with the attorney for the complainants that
obtained the decree assented to the location of the ground, and
George W. Jones, as such agent, accepted a deed and took possession
of the land according to the boundaries described in the deed, the
lessors of the plaintiff are concluded by his acts, and the
plaintiffs cannot recover."
"3. If, upon the whole evidence the jury believe that Mrs.
Harmer, the next friend of the minors, in prosecuting the bill in
chancery and obtaining the decree given in evidence, authorized
George W. Jones to obtain the deed of release under the decree and
to take possession of the lands, and that George
Page 32 U. S. 565
W. Jones, under this authority, as agent for the complainants
obtaining the decree and in conjunction with the attorney for the
complainants in obtaining the decree, assented to the location of
the ground, and George W. Jones, as such agent, accepted a deed and
took possession of the land according to the boundaries described
in such deed and continued that possession, exercising acts of
ownership as agent after all the lessors of the plaintiff obtained
their full age, and the defendants purchased before the lessors of
the plaintiffs disavowed the acts of George W. Jones, and without
any notice or knowledge of an intention of the lessors of the
plaintiffs to disavow the acts of said Jones, public sale of the
adjacent lands being made, with the knowledge of said Jones, and no
notice given by him, that the lessors of the plaintiffs (he
continuing their agent) had disavowed or intended to disavow his
acts in locating the lands and taking a deed for and possession
thereof, the plaintiffs cannot recover."
"4. That the deed of release from E. Stone to T. Kirby and the
decree from the sheriff to T. Kirby, given in evidence in this
cause, for part of the lands previously released by E. Stone to the
lessors of the plaintiffs, under the decree, in execution of a
contract paramount to the original title of E. Stone and decreed to
be executed, did not in law divest the title of the lessors of the
plaintiffs previously acquired to the lands so released by E. Stone
to Kirby and conveyed by the sheriff to Kirby, and the continuance
of the lessors of the plaintiff in possession of all the land
released to them, under the decree, and taken possession of by
George W. Jones, and retaining the title thereto, is in law a
continued affirmance of the acts of George W. Jones as their agent
which cannot be disavowed without releasing to E. Stone and
restoring to him the possession of that fraction of the land
released under the decree which the location claimed in the first
does not cover."
"5. That the relation in which the defendants are proved to
stand to those under whom they claim title does not warrant the
jury to infer that the defendants had knowledge that the lessors of
the plaintiffs had disavowed or intended to disavow the location as
accepted by George W. Jones."
The second instruction proceeds upon the ground that authority
given by Mrs. Harmer to Jones, his assenting to
Page 32 U. S. 566
accept the release of Stone, and taking possession of the land
released concluded the plaintiffs from a right to recover, although
they were minors and never personally assented thereto. From what
has been already said, this instruction was properly refused. Mrs.
Harmer had no authority to bind the heirs by the acceptance of any
release not conforming to the decree.
The third instruction proceeds upon the ground that the
acceptance of the release by Jones under the authority of Mrs.
Harmer, and the possession of the land by Jones as agent, and
continuing that possession after the plaintiffs attained full age
and until after the defendants had made their purchases of the
land, without any disavowal or notice of disavowal by the
plaintiffs of the acts of Jones, would preclude the plaintiffs from
a right to recover. We think, for reasons already given, the law is
otherwise, and therefore the instruction was rightly refused.
The fourth instruction affirms that the release of Stone to
Kirby for part of the land included in the prior release of Stone
under the decree did not divest the legal title of the plaintiffs
to the lands so released to them. So far the instruction prayed was
undoubtedly correct, but it did not stop here, but proceeded to
declare that the continuance of the plaintiff in possession of the
land so released by Stone, under the decree, was a continued
affirmance of the acts of Jones as their agent which could not be
disavowed without releasing to Stone and restoring to him the
possession of that fraction of the land released which the decree
did not cover. To this instruction there are two objections. The
first is that if the release to Kirby by Stone and the conveyance
by Kirby to Jones were for the exclusive benefit of the heirs of
Harmer, and to quiet their title to that fraction of land (as the
evidence in the case asserts), no such release could be now
required, since the plaintiffs would be entitled to it by an
independent title. But the other is equally decisive. If the
plaintiffs possess a legal title to the land in controversy not
founded on that release, it can furnish no bar to their right to
recover that there exists an equitable claim against them to
surrender other land taken under that release to which,
ex
aequo et bono, they are not entitled. The instruction was
therefore properly refused.
The fifth and last instruction proceeds upon the ground that
Page 32 U. S. 567
knowledge on the part of the defendants that the plaintiffs had
disavowed or intended to disavow the location as accepted by Jones,
might vary the right of the plaintiffs to recover, and that the
relation in which the defendants are proved to stand to those under
whom they claim title did not warrant the jury to infer that the
defendants had that knowledge. This instruction is open to the
objection that it asks the court to decide upon a matter of fact as
to what the relation was in which the defendants were proved to
stand to those under whom they claim title. But the decisive answer
is that it asks an instruction upon a point of law not shown to
have any legal bearing upon the case. It could have no influence
upon the cause if given, and might have had a tendency to mislead
the jury. It was therefore properly refused by the court.
The judgment of the circuit court is affirmed with
costs.