Young v. Shulenberg

• Citation: 165 N.Y. 385,59 N.E. 135
• Parties: YOUNG v. SHULENBERG.
• Decision Date: 22 January 1901
• Court: New York Court of Appeals

165 N.Y. 385

59 N.E. 135

YOUNG

v.SHULENBERG.

Court of Appeals of New York.

Jan. 22, 1901.

Appeal from supreme court, appellate division, Third department.

Action by Everett Young against John C. Shulenberg. From a judgment of the appellate division (54 N. Y. Supp. 419) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Clark L. Jordan, for appellant.

Andrew J. Nellis, for respondent.

VANN, J.

The complaint charges the defendant with unlawfully entering upon lands of the plaintiff and cutting down and carrying away a large number of trees therefrom. Neither by his answer nor evidence did the defendant claim the right to enter upon the land in question or to cut trees thereon, but he put at issue the entry by himself, as well as the title of the plaintiff. The land upon which the alleged trespass was committed was virgin forest in the county of Fulton, that had never been so inclosed, cultivated, or used as to constitute an adverse possession. Code Civ. Proc. § 370. The plaintiff proved a record title thereto, commencing in 1794, when letters patent were granted by the state of New York, and extending through various mesne conveyances until 1872, when the apparent title vested in William Claflin, of whom, in September, 1893, the plaintiff purchased by a contract which imposed upon him the duty of paying the annual taxes, and gave him the privilege of cutting and carrying away timber upon certain conditions. He cut 8,000 or 10,000 logs every year on the tract, and had such possession only as may be implied from the foregoing facts. Machin v. Geortner, 14 Wend. 239; Hunter v. Starin, 26 Hun, 529. The attack made upon the title by the defendant is that there is no legal evidence to show that Anne Ellice and six others, all residents of England, who in July, 1817, conveyed 200,000 acres, including the locus in quo, in consideration of £20,000, were the widow and heirs at law of Alexander Ellice, also a resident of England, who took title from the patentees in 1795. It appeared, however, that the six deeds constituting the chain of title from the state had all been recorded, and that they were all in the possession of Mr. Claflin, the last grantee, who kept them together as muniments of his title. It further appeared that the deed of 1817, which was acknowledged in London before the minister of the United States to Great Britain, recited that Alexander Ellice, of London, died intestate and seised of said premises, leaving the grantors as his widow and heirs at law. Whether Anne Ellice was the widow and her co-grantors the heirs at law of Alexander Ellice was a question of pedigree, which, owing to the difficulty of producing living witnessesto prove remote events, is an exception to the rule excluding hearsay evidence. Pedigree is the history of family descent, which is transmitted from one generation to another by both oral and written declarations, and unless proved by hearsay evidence it cannot, in most instances, be proved at all. Hence declarations of deceased members of a family, made ante litem motam, are received to prove family relationship, including marriages, births, and deaths, and the facts necessarily resulting from those events. Eisenlord v. Clum, 126 N. Y. 552, 27 N. E. 1024,12 L. R. A. 836;Jackson v. Cooley, 8 Johns. 128; Same v. King, 5 Cow. 237; Same v. Russell, 4 Wend. 543, affirmed, sub nom. Russell v. Jackson, in 22 Wend. 277; Greenl. Ev. (14th Ed.) §§ 103, 104; Whart. Ev. (3d Ed.) § 201 et seq.; Rice, Ev. § 220. Recitals in an ancient deed, admissible in evidence without proof of contemporaneous possession, may be proved as against persons who are not parties to it, and who do not claim under it. Greenleaf v. Railroad Co., 132 N. Y. 408, 30 N. E. 762;Fulkerson v. Holmes, 117 U. S. 389, 6 Sup. Ct. 780, 29 L. Ed. 915;Deery v. Cray, 5 Wall. 795, 18 L. Ed. 653; Doe v. Davies, 10 Q. B. 314; 18 Am. & Eng. Enc. Law, 26, 266. Before the declarations can be received, however, as evidence of pedigree, it must appear that the person making them was a member of the family, and that he is dead, incompetent, or beyond the jurisdiction of the court. Therefore, before the declarations of Anne Ellice, as contained in the recital of her deed, could be received in evidence on the question of pedigree, it was necessary for the plaintiff to show that she was a member of the family of Alexander Ellice, and that she could not be produced or testify, owing to one of the contingencies named. While the law required that her relationship to the Ellice family should be shown by evidence independent of her own declarations, still, as was recently held in an important case, ‘but slight proof of the relationship will be required, since the relationship of the declarant with the family might be as difficult to prove as the very fact in controversy.’ Fulkerson v. Holmes, 117 U. S. 389, 397, 6 Sup. Ct. 784, 29 L. Ed. 918. The proof of such relationship rested upon the identity of the family name, the certificate of acknowledgment before the United States minister, and the custody by the proper party of the deeds showing title in Alexander Ellice by conveyances running back to and including the original patent. The acknowledgment of a deed from persons describing themselves as heirs, taken before the mayor of London, and the custody of letters patent, were regarded as circumstances of importance in two early cases in this state. Jackson v. Cooley, supra; Same v. King, supra. We think that the facts stated, together with the further fact that at the time of the trial 80 years had elapsed since the acknowledgment of the deed, were sufficient to establish, in the absence of rebutting evidence, that Anne Ellice and her co-grantors were members of the family, and hence in a position to speak on the subject of pedigree. While the evidence was not strong, the difficulty of producing better evidence, owing to the distance between...