Deery v. Cray

• Decision Date: 01 December 1866
• Citation: 18 L.Ed. 653,5 Wall. 795,72 U.S. 795
• Parties: DEERY v. CRAY
• Court: U.S. Supreme Court

72 U.S. 795

18 L.Ed. 653

5 Wall. 795

DEERY v. CRAY.

December Term, 1866

THIS was an action of ejectment brought in the Circuit Court for the District of Maryland, by Eliza C. Deery, to recover an undivided third part of a tract of land, called Kent Fort Manor, on Kent Island, in Queen Anne's County, Maryland. The defendants were Cray, Bright, and others, occupying different parts of the tract.

Miss Deery, the plaintiff, was the danghter of Elizabeth Chew, who married William Deery, and afterwards, in second marriage, Eli Beatty. The Elizabeth Chew thus married was the daughter of Samuel Lloyd Chew the younger, who died about the year 1796, intestate, leaving the said Elizabeth Chew, and also three others, his children and heirs-at-law. The effort of the plaintiff was to trace title, from the original patentee of Kent Fort Manor to her grandfather, Samuel Lloyd Chew, from whom she claimed through her mother, who died the wife of Eli Beatty in 1838. Title was shown regularly enough down to a certain William Brent, of Virginia.

In the progress of the trial she took six bills of exception to rulings of the court on the admissibility of evidence.

It is only necessary to refer to the fourth and sixth exceptions, those being the only ones considered by this court, because, as the court said, the fourth referred to and embodied all that was contained in the three previous bills of exception on the same subject; and because the conclusions of the court on the question raised by that bill of exceptions rendered the matter involved in the fifth unimportant.

As regarded this fourth and this sixth exception the case was thus:

1. As to the fourth. Having read to the jury without objection evidence tending to show title and possession of the land in the above-mentioned William Brent, from the year 1767, the plaintiff offered to read a copy of a deed, certified from the proper recording office, purporting to be made by Elinor Brent, executrix, and Daniel Carroll Brent and William Brent, acting executors,¹ of the last will and testament of the William Brent first mentioned, conveying the manor to Samuel Chew. This deed recited that William Brent, Sr., deceased, by his last will and testament, bearing date January 7, 1782, constituted the persons aforesaid executors of the said will, and authorized them to sell and convey in fee-simple the land and premises described in the said deed, and that William Brent, who united in the conveyance as executor, was also heir-at-law of the said William Brent, senior. The deed then undertook by apt language, to convey by virtue of the will, and William Brent also conveyed as heir-at-law, and they jointly and severally covenanted to warrant the title. The plaintiff offered no evidence of the existence of the will under which the executors professed to act, nor of the heirship of William Brent, one of the grantors, other than what was contained in the recitals of the deed; and for want of such proof the court rejected the deed. Proof had been made of fruitless search among title-papers and records for the will recited.

The plaintiff then offered a mass of testimony designed to show that the possession of the land had passed with the said deed, and had been held under it, and in consistency with it, for such a length of time as to raise a presumption of the truth of one or both of the recitals above mentioned.

To understand this testimony the better, it may be stated that the whole tract is divided first into two parts by a line, below which lies a part called 'the lowermost half part,' now claimed by the defendant Cray. The upper half is divided into three parts, one to the east called Long Point farm, another next westwardly called the Indian Point (or Green's Creek) farm, and a third, more westerly yet, about which there was no dispute. The three together make up the northern half.

The evidence thus offered in support of the deed was partly documentary and partly parol. Taking the former chronologically it presented:

1. The will of Samuel Chew, the grantee, in the deed dated November 24th, 1785, about six months after the date of that conveyance to him. He died the succeeding year. By this will he devised Kent Fort Manor to his wife, Elizabeth Chew, for life, and after her death to his son, Samuel Lloyd Chew.

2. A mortgage of Kent Fort Manor by Samuel Lloyd Chew to Charles Carroll of Carrollton, dated February 20th, 1789, shortly after the death of his father.

3. A deed from Philip Barton Key to Arthur Bryan, dated May 7th, 1798, conveying 'all that moiety or half-part of Kent Fort Manor, on Kent Island, in Queen Anne's County, being the lowermost half-part of said tract of land called Kent Fort Manor, and is the same land and half-part of which Mrs. Chew was heretofore seized.' This deed had a full covenant of warranty.

4. An agreement of counsel that the land thus conveyed to Arthur Bryan was partitioned among his heirs in 1802, by the Chancery Court of Maryland, and allotted to Susanna Tait, sister of said Arthur.

5. A deed from Samuel A. Chew, son of Samuel Lloyd Chew, dated March 6th, 1838, conveying to Thomas Murphy Long Point farm, a part of Kent Fort Manor.

6. A deed from said Samuel A. Chew to James Bright, Jr., dated January 4th, 1840, conveying Indian Point farm, another part of said manor.

These two farms, as already said, were on the north half of the manor, and form no part of the land conveyed by Key to Bryan.

All these documents were copies, properly certified to come from the recording offices where such deeds should rightfully be recorded.

The parol evidence showed that Samuel Chew, first of the name and grantee in the deed, died in 1786; that his son, Samuel Lloyd Chew, second of the name, died in 1796, leaving as his heirs Samuel A. Chew, third of the name, Bennett Chew, Henrietta Chew, and Elizabeth Chew. The plaintiff, as already said, was daughter of the last-named person, and in that right claimed the property in controversy. Elizabeth Chew, widow of the first Samuel Chew and his devisee for life of the property, died in 1807. It was further shown that one William Bryan, who in 1802 resided on Long Point farm and Indian Point farm, and who had resided there for several years previous, stated repeatedly that he held his possession under the Chews; that in 1825 Samuel A. Chew, third of the name and uncle to plaintiff, took possession of about five hundred acres of the north part of said manor, west of Long Point and Indian Point farms, which he held until his death, in 1843, and that the same was not held under that title; that Robert Tait, son and heir of Susanna Tait, was in 1825 in possession of the southern half of the manor, and sold it to Richard Cray, his son-in-law, and that possession was now held under that title.

All this being finally offered with the deed, they were rejected by the court, to which rejection an exception—the fourth one in the case—was taken.

2. As to the sixth exception. In the further progress of the trial some of the defendants offered in evidence a deed from the plaintiff's mother, then married to Beatty, to Samuel A Chew, her uncle, purporting to convey all her interest in Kent Fort Manor. As the plaintiff claimed as heir-at-law of her mother, this deed, if admitted, was apparently destructive of her claim. Her counsel objected to the admission of the deed on the ground that it was defectively acknowledged.

By statutes in Maryland, femes covert can convey their lands by deed acknowledged before two justices of the county court, such acknowledgment being made by the woman 'out of the presence and hearing of her husband;' the clerk of the court certifying that they were the 'justices of the said court.' In the case of the deed from the plaintiff's mother, now offered, the acknowledgment in that part relating to the presence of the husband, ran thus:

'STATE OF MARYLAND, to wit:

'Be it remembered, that on this 26th of October, 1821, personally appeared before us, two justices of the peace of the State of Maryland for Washington County, the above-named Eli Beatty and Elizabeth his wife, and Henry C. Schnebly and Henrietta Maria his wife, party grantors in the foregoing instrument of writing, and severally acknowledged the same to be their and each of their act and deed, &c., and the said Elizabeth C. Beatty, wife of Eli Beatty, &c., being by us, two justices of the peace as aforesaid, respectively, privately examined apart from and out of the hearing of their and each of their husbands, whether they and each of them doth make their acknowledgment of the said instrument of writing willingly and freely, &c.'

The certificate of the clerk under the court's seal was:

'STATE OF MARYLAND, WASHINGTON COUNTY, ss:

'I hereby certify that, &c., whose names are signed to the above acknowledgment, were, at the time of signing thereof, and still are, justices of the peace for the county aforesaid, duly commissioned and qualified, and to all their acts as such full faith and credit is, and ought to be, given, as well in courts of justice as thereout.'

The objections made by the plaintiff to this certificate of acknowledgment were:-

1. That it did not show that the justices who took the acknowledgment had been sworn into office; nor

2. That they were justices of the county for which they took the acknowledgment; nor

3. That Mrs. Beatty had been examined 'out of the presence of her husband.'

But the court overruled the objections, and an exception,—the sixth in number on the record,—was taken.

The case was now here on the exceptions.

Mr. Brent, for the plaintiff in error, contended, 1. That the recitals in the deed from the executors of W. Brent being ancient recitals, were presumably true, and that the court had erred in rejecting the deed upon the mass of proof, documentary and parol, showing that it had been followed by long and harmonious possession on the part of the grantee, and those claiming under him, down to...