Barbour v. Watts

• Decision Date: 31 May 1820
• Citation: Barbour v. Watts, 9 Ky. 290 (Ky. Ct. App. 1820)
• Parties: P. C. Barbour et al. v. Thomas Watts.
• Court: Kentucky Court of Appeals

9 Ky. 290

P. C. Barbour et al. v. Thomas Watts.

Court of Appeals of Kentucky.

May 31, 1820

ON AN APPEAL FROM A JUDGMENT OF THE BRECKENRIDGE CIRCUIT COURT.

Hardin for appellants

B Hardin for appellee.

OPINION

MILLS JUDGE:

This was an action of ejectment, in which the lessee or nominal plaintiff declared on the separate demises of seven different persons, to-wit: Philip C. S. Barbour, John D. Seins, Richard Harrison, Richard Stevens, James Cox, Thomas Holt and Joseph H. Holt. On the trial, the plaintiff produced a patent from the commonwealth to Philip Barbour, proved its boundaries and that the defendant resided within them at the commencement of suit, and that Philip C. S. Barbour, one of the lessors, was son and sole heir of Philip the patentee who had died many years since, and here the plaintiff rested his proof. The defendant then produced, and offered in evidence, a deed from the said Philip C. S. Barbour, the heir, to four of the other lessors, to-wit: Richard Stevens James Cox, Thomas Holt, and Joseph H. Holt for the same land, which deed contained a recital, in substance, that Philip Barbour the patentee, had in 1792, conveyed the same tract of land to Richard Townsend Hoe, who had afterwards brought suit in the high court of chancery for the district of Fredericksburgh, Virginia, to rescind the contract; which court, after the death of Hoe, and a revivor in the name of his heirs, had decreed the contract to be rescinded, and the land to be recognized by Hoe's heirs or devisees to said Philip C. S. Barbour, the heir of the patentee, that they had done so and made said conveyance, whereupon the said Philip C. S. Barbour proceeded after their recitals, to convey the same tract to the four lessors aforesaid in the same deed. Here the defendant closed his proof, and moved the court to instruct the jury, that the recital contained in said deed, was evidence against the plaintiff, so far as it went to prove title out of Philip C. S. Barbour by shewing that the patentee had conveyed it away; but that the recital, which stated the land to be reconveyed to Philip C. S. Barbour, before the execution of the deed offered in evidence, was not evidence against the defendant, he being an entire stranger to the transaction, and that it was incumbent on the plaintiff to produce the deed so reconveying the land--which instruction the court accordingly gave; and thereto the plaintiff excepted, and also objected to the admission of the deed in evidence, which was overruled, and to this he excepted likewise.

After this decision, the plaintiff by one of the defendant's witnesses gave evidence conducing to show that Richard Harrison, one of the lessors of the plaintiff was one of the heirs of Robert T. Hoe, and that Robert T. Hoe was dead, and then read a deed from said Richard Harrison, A. L. Harrison and John D. Sims, to said Philip C. S. Barbour; whereupon the defendant moved the court to instruct the jury that if they believed the whole of the evidence, they must find for the defendant. This instruction, the court also gave.

The plaintiff then offered in evidence, a paper, purporting to be a decree of the superior court of chancery of Fredericksburg. This decree was certified by the court, with the seal of the clerk annexed. With it, the plaintiff introduced a witness, who deposed that the clerk who attested it, was clerk of that court, at the date of its attestation--that he, the witness, had seen and read the original decree and he verily believed the one presented to be a copy; but that it had been upwards of a year since he had seen and read the original--that he could not repeat its contents, and had not compared this copy with the original; but that having seen the original, and frequently examined the copy since, he had no doubt this was a true copy. The court on the motion of the defendant rejected the decree as evidence, and the plaintiff excepted.

The plaintiff then moved the court to instruct the jury that if the plaintiff had proved to their satisfaction, that Richard Harrison and John H. Hoe, were the heirs of Robert T. Hoe, they should find for the plaintiff to the extent of Harrison's interest. This instruction was refused, and the plaintiff excepted.

After all this evidence and different opinions the plaintiff moved the court to...