62 S.W. 854 (Ky.App. 1901), Mann v. Cavanaugh

Citation:62 S.W. 854, 110 Ky. 776
Opinion Judge:O'REAR, J.
Party Name:MANN et al. v. CAVANAUGH. [1]
Attorney:Rardin & Rardin and Fryer & Barton, for appellants. Leslie T. Applegate, for appellee.
Case Date:May 07, 1901
Court:Court of Appeals of Kentucky
 
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Page 854

62 S.W. 854 (Ky.App. 1901)

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

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declarations of the parties are admissible. *** Recitals in deeds other than family deeds are also admitted, when corroborated by a long and peaceable...

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