Mann v. Cavanaugh

• Decision Date: 07 May 1901
• Citation: 110 Ky. 776,62 S.W. 854
• Parties: MANN et al. v. CAVANAUGH. [1]
• Court: Kentucky Court of Appeals

62 S.W. 854

110 Ky. 776

MANN et al. v. CAVANAUGH. ^[1]

Court of Appeals of Kentucky.

May 7, 1901

Appeal from circuit court, Pendleton county.

"To be officially reported."

Action by E. M. Mann and others against Patrick Cavanaugh to recover land. Judgment for defendant, and plaintiffs appeal. Reversed.

Rardin & Rardin and Fryer & Barton, for appellants.

Leslie T. Applegate, for appellee.

O'REAR J.

This was an action in ejectment, the appellants, heirs at law of Richard Mann, Jr., deceased, having sued to recover of the appellee the possession of a strip of land in Pendleton county. Appellants claim title under a patent from the commonwealth of Virginia to John Crittenden, bearing date the 15th day of April, 1786. Appellants are admitted to be the sole heirs of Richard Mann, Jr., deceased, who is shown to have taken the land as a devisee under the will of Richard Mann, Sr., deceased, which was probated about 1846. Richard Mann, Sr., acquired his title under a deed executed by Randolph Raily, Jr., attorney in fact for John J. Crittenden and others, named as heirs at law of John Crittenden, the patentee. This power of attorney appears to have been executed on the 26th of June, 1822, and it recites the death of John Crittenden, and the fact that the parties executing the power of attorney are the heirs and representatives of the said decedent. It was objected on the trial that the admission of the patent, of the power of attorney to Raily and the deed from Raily, attorney in fact, to Mann, were all inadmissible because of lack of identification of heirs of John Crittenden, and consequently because of lack of connection between appellants and Crittenden. It is argued for appellee that the fact of relationship of those executing the power of attorney should have been shown by other and satisfactory evidence, and that their own statement of that fact is not sufficient, and is inadmissible. We dispose of this question first, because it is essential that it be done to enable us to determine whether the substantial rights of the appellants have been prejudiced by the rulings of the court, and to which they are objecting on this appeal; for it must be manifest that, if the appellants had no title legally proven in the circuit court, it is immaterial what error that court may have permitted in the course of the trial in other respects. It was not proven in the circuit court whether the patentee, John Crittenden, was dead, or whether those executing the power of attorney were dead at the time of the trial, but we may fairly presume that after this great lapse of time-- now nearly 80 years since the execution of the power of attorney, and more than a century since the patent was granted and issued --all of them are dead. The fact as to who were the heirs at law of John Crittenden, the patentee and the fact of his death, are matters of pedigree. 1 Greenl Ev. § 104. From the necessities of the case, matters of this character have always been allowed to be proved by hearsay or reputation. Declarations of those shown to be related to the family in question are admissible to prove the facts stated above as constituting the pedigree. Prof. Greenleaf states the rule with respect to this subject as follows (Greenl Ev.§ 104): "The correspondence of deceased members of the family, recitals in family deeds, such as marriage settlements, description in wills, and other solemn acts, are original evidence in all cases where the oral declarations of the parties are admissible. *** Recitals in deeds other than family deeds are also admitted, when corroborated by a long and peaceable possession according to the deed." In Fort v. Clarke, 1 Russ. 601, the grantors recite the death of the sons of John Cormick, tenants in tail male, and declared themselves heirs of the bodies of his daughters, who were devisees in remainder. In Fulkerson v. Holmes, 117 U.S. 396, 6 S.Ct. 784, 29 L.Ed. 918, which was an action in ejectment, it appears that the plaintiffs in the circuit court claimed under a patent issued from the commonwealth of Virginia to Samuel Young, and undertook to show title derived from Young by exhibiting a deed from Samuel C. Young to plaintiff's ancestor, dated July, 1819. This deed recited that Samuel Young, the patentee, had died intestate, and that Samuel C. Young, the grantor, was his only child and heir, and that the title to said lands had vested in him. The original deed was admitted in evidence under the doctrine applicable to the admission of ancient documents, it being shown to have been more than 30 years old, and having been produced from a custody satisfactory to the trial court. Said the court: "The question is, therefore, fairly presented, whether the recitals in the deed of Samuel C. Young to John Holmes, to the effect that Samuel Young, the patentee, had died intestate, leaving one child only, namely, the said Samuel C. Young, the grantor, were admissible in evidence against the defendants who did not claim title under the deed." "The fact to be established is one of pedigree. The proof to show pedigree forms a well-settled exception to the rule which excludes hearsay evidence. This exception has been recognized on the ground of necessity; for, as in inquiries respecting relationship or descent, facts must often be proved which occurred many years before the trial, and were known to but few persons, it is obvious that the strict enforcement in such cases of the rules against hearsay evidence would frequently occasion a failure of justice. Tayl. Ev. (Ed. 1872) § 571. Traditional evidence is, therefore, admissible. *** The rule is that declarations of deceased persons who were de jure related by blood or marriage to the family in question may be given in evidence in matters of pedigree. Jewell v. Jewell, 1 How. 219, 11 L.Ed. 108, and other cases cited. A qualification of the rule is that, before a declaration can be admitted in evidence, the relationship of the declarant with the family must be established by some proof independent of the declaration itself. Citing cases. But it is evident that 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. *** As the deed in which the recital was made was entitled to be admitted in evidence, it stands upon the same footing as if its execution had been proved in the ordinary way." The court then proceeded to hold that the declaration in the deed was the declaration of Samuel C. Young, the grantor, as much so as if the said Samuel C. Young had appeared in court and made it. The court further found that such similarity in the name of Samuel C. Young to his alleged...