Applegate v. Lexington Carter Co Min Co

• Decision Date: 15 March 1886
• Citation: 117 U.S. 255,29 L.Ed. 892,6 S.Ct. 742
• Parties: APPLEGATE and others v. LEXINGTON & CARTER CO. MIN. CO. and others. Filed
• Court: U.S. Supreme Court

6 S.Ct. 742

117 U.S. 255

29 L.Ed. 892

APPLEGATE and others v. LEXINGTON & CARTER CO. MIN. CO. and others.

Filed March 15, 1886.

The suit was in the nature of an action of ejectment to recover possession of a tract of land formerly in Mason county, but now in Greenup, Carter, and Boyd counties, in Kentucky. The plaintiffs in error were the plaintiffs in the circuit court. They alleged in their petition that they were the lineal heirs of Carey L. Clark, who died seized of a tract of 8,334 acres, part of a tract of 18,000 acres granted by patent from the commonwealth of Virginia, dated April 21, 1792, to Charles Fleming, from whom their ancestor, Carey L. Clark, derived title by a regular chain of conveyances; that the plaintiffs were the owners and entitled to the possession of the land sued for; and that the defendants had unlawfully entered upon and unlawfully withheld possession of the same. The defendants, by their answers, denied these allegations, and averred that they were seized of the premises by paramount title. The answers were traversed by the plaintiffs' reply.

There was a jury trial. The plaintiffs, to sustain the issue on their part, offered in evidence the following documents as links in their chain of title (1) A copy, duly certified, from the land-office of the state of Kentucky, of the patent from the state of Virginiato Charles Fleming, for the tract of land of which the land in controversy was originally a part. (2) A copy of the will of Charles Fleming, devising a moiety of said tract of land to William Fleming, John Bernard, Jr., and Richard Bernard, as trustees. (3) A copy of a deed from Samuel Sackett and wife to Joseph Conkling and others, dated August 29, 1795, for the particular land in controversy in this case, together with certain other tracts that had been patented by the state of Virginia to Charles Fleming. (4) A copy of a mortgage from Joseph Conkling and others, the grantees above named, to Samuel Sackett, the grantor above named, conveying the same lands as above, and dated August 29, 1795. (5) A copy of a deed from William Fleming and the Bernards, trustees as above under the will of Charles Fleming, to John Bryan, conveying to Bryan the lands devised to them by the will of Fleming, and dated December 31, 1796. (6) The original of the deed last named. (7) A copy of a deed from John Bryan and wife to Samuel Sackett, dated January 28, 1797, conveying the same land conveyed to Bryan by deed last above named. (8) The original of the deed last above named. (9) The original of a deed from Charles Fleming, dated August 8, 1784, to John and William Bryan, conveying to them 13,300 acres of the land that had been patented to said Charles Fleming, and being part of the 18,000 acre tract, of which tract the land in controversy is also a part. (10) A certified copy from the Mason county circuit court of the record in the case of Carey L. Clark v. Joseph Conkling and others, in which Clark, as the assignee of the above-mentioned mortgage of Joseph Conkling and others to Samuel Sackett, brought suit to foreclose the same.

The court admitted in evidence the first four of the documents above mentioned. All the others were rejected, namely, the original and a copy of the deed from William Fleming and the Bernards to John Bryan, the original and the copy of the deed from Bryan to Sackett, the original of the deed from Charles Fleming to John and William Bryan, and the copy of the record from the Mason county circuit court in the case of Clark v. Conkling and others.

The court having excluded these documents, the plaintiffs were unable to trace title to themselves for the premises in controversy. Thereupon the jury, under the instruction of the court, returned a verdict for the defendants. upon which the court rendered judgment, and the plaintiffs sued out this writ of error.

Mr. David W. Armstrong for plaintiffs in error.

[Argument of Counsel from pages 258-260 intentionally omitted]

WOODS, J.

We shall first consider the exclusion of the original deed from Fleming and the Bernards to John Bryan, and the original deed from John Bryan to Samuel Sackett. We are of opinion that they should have been admitted in evidence. They have been certified to and inspected by this court. Their appearance affords strong evidence of their genuineness and antiquity, and they are free from any badge that would excite suspicion of fraud or forgery. In support of their genuineness it was shown that a short time before the trial in the circuit court they were discovered by one of the plaintiffs' attorneys in the office of the clerk of the circuit court of Greenup county, Kentucky among the original papers of a suit in that court brought by one James Hughes v. Heirs of Thomas Shore, on July 15, 1816, to quiet his title to 16,000 acres of land in Greenup county, part of the lands conveyed by the deed of William Fleming and the Bernards to John Bryan. The deeds and the original papers in that suit were produced by a clerk of the Greenup circuit court in obedience to a subpoena duces tecum. The record of this case was admissible against persons, not parties or privies, to prove the collateral fact of the antiquity of the original deeds offered in evidence and to account for their custody. Barr v. Gratz, 4 Wheat. 220.

The bill of Hughes averred that he derived title under the patent to Charles Fleming, and by virtue of the devise in his will to William Fleming and the Bernards, and the deeds of William Fleming and the Bernards to John Bryan and of John Bryan to Samuel Sackett. The complainant Hughes offered by his bill 'to produce said patent and deeds showing the deduction of title in proper time, or whenever the court should require it.' The two deeds mentioned in the bill of complaint filed by Hughes correspond with and appear to be the two original deeds, namely, the deed from William Fleming and the Bernards to John Bryan, and the deed from John Bryan to Samuel Sackett, offered in evidence by the plaintiffs in this case, which were found among the other papers in the case of Hughes v. Heirs of Shore. These deeds were necessary exhibits and evidence in the case to entitle Hughes to the relief prayed for. They were produced from the files of the highest court of the county where the lands were situate, from the custody of an officer charged by law with their care and safe-keeping, where they had been placed for a necessary and proper use, and from which they could not be withdrawn without the order and consent of the court. Their custody was therefore accounted for, and was shown to be proper and beyond suspicion.

It further appeared that upon the trial of the case of Hughes v. Shore's Heirs, on July 8, 1825, the patent to Charles Fleming from the commonwealth of Virginia for 16,191 acres of land, the will of Charles Fleming, and the said deed of William Fleming and the Bernards, trustees, to John Bryan, were offered in evidence. The latter was rejected, 'because,' as the bill of exceptions states, 'the certificate and seal of the mayor of Philadelphia' was 'not sufficient to authorize it to be read, and because the same could not be read as a recorded deed, not having been recorded within the time prescribed by law;' and 'because, by rejecting this deed, complainants' chain of title was broken, and they could not further progress with their evidence, the court rendered a decree dismissing their bill.' It is therefore made clear by the evidence offered that at least as early as the year 1825 the deed of William Fleming and the Bernards to John Bryan was on file in the circuit court of Greenup county, and it may be safely inferred that the other documents mentioned by Hughes as his muniments of title were also on file in the same court at the same time, and that all the deeds remained in the custody of the court down to the time when they were produced by the clerk under the subpoena duces tecum issued in this case, a period of 55 years.

Another circumstance relied on to show the genuineness of the original deeds was that each bore, indorsed thereon, a certificate apparently ancient and genuine, one with the signature of the recording officer, and the other without signature, to the effect that the deeds had been recorded in the year 1816. In the case of Stebbins v. Duncan, 108 U. S. 50, S. C. 2 Sup. Ct. Rep. 313, it was held that a certified copy of a memorandum made at the foot of the record of a deed 'recorded June 23, 1818,' and without signature, was competent and conclusive evidence that the deed had been recorded at the date mentioned. In view, therefore, of the habit or recorders of deeds, which is universal, and matter of common knowledge, to indorse upon the deeds themselves the fact and date of their registration, the certificates appearing on the deeds in question were competent and sufficient evidence of the fact that the deeds had been put upon record during the year mentioned in the certificates. We think this evidence, supported by an inspection of the deeds, was sufficient to justify their admission as ancient deeds, without direct proof of their execution. The rule is that an ancient deed may be admitted in evidence, without direct proof of its execution, if it appears to be of the age of at least 30 years, when it is found in proper custody, and either possession under it is shown, or some other corroborative evidence of its authenticity freeing it from all just grounds of suspicion.

Thus, in Barr v. Gratz, 4 Wheat. 220, a deed from Craig to Michael Gratz, dated July 16, 1784, was offered in evidence, but was not proved by the subscribing witnesses, nor their absence accounted for. Its admission was alleged as error; but this court said that, as the deed was more than 30 years old, and was proved to have been in the possession of the lessors of the plaintiff, and actually asserted by them as the ground of their title in a prior chancery suit, it was, in the language of the...