Den on the Demise of Jacocks v. Gilliam
| Decision Date | 31 May 1819 |
| Court | North Carolina Supreme Court |
| Parties | Den on the demise of ELIZABETH JACOCKS v. MOSES GILLIAM. |
A parish register of marriages, births and death, kept pursuant to the act of 1715, is good evidence to prove pedigree, and that the several persons, whose pedigree is thus proved, are within the savings of statute of limitations.
Tenant in tail aliens, and in his conveyance, "he, for himself, his heirs, executors and administrators, doth covenant and agree, the premises to him the said A. B. his heirs and assigns, against the lawful claims or demands of any person or persons whatsoever, for ever hereafter to warrant, secure and defend." He then dies, and real assets descend to the issue in tail, of greater value than the lands aliened. A discontinuance of the estate tail is not worked; for the covenant is not a covenant real annexed to the lands, whereby the alienor and his heirs are bound either on a voucher or judgment in a warranted charter to yield other lands of equal value in case of eviction of the tenant by better title. But it is a personal covenant to defend the possession, a covenant for quiet enjoyment, the breach of which is to be repaired, not in land, but in damages, and these must be primarily paid out of the personal fund.
The disuse of real actions has, from necessity, given to the warrantee a right to bring an action of covenant, in which he recovers damages according to the value of the land at the time the warranty was entered into. If he could not bring this action, he would be without remedy: but the same remedy does not exist for rebutting the heir; for if the ancestor hath left real or personal assets, the purchaser may be recompensed.
This action of ejectment was tried in BERTIE Superior Court at October term, 1816, and a verdict was found, under the charge of the Court, for the Plaintiff. A rule to show cause why a new trial should not be granted was obtained, and
ordered to be sent to this Court for the opinion of the Judges upon the following case:
The land for which the action was brought, was granted to John Hardy in 1717; and by his will, dated in 1719, duly executed to pass lands, was devised to his daughter Elizabeth Hardy in tail. The lessor of the plaintiff, to prove that she was the issue in tail, called one Hardy as a witness, who produced a book in manuscript, which, he said, was the parish register; and he turned to the following entries made therein, to-wit:
"Nathaniel Hill and Elizabeth Hardy married by the Reverend Mr. Newmans." The date omitted.
The witness deposed, that the first and second entries were .made in a hand-writing unknown to him; the third he believed to be in the hand-writing of Edward Raynor, deceased, former clerk. The other entries were made by himself. He further deposed that Jonathan Jacocks died in 1810. The lessor of the Plaintiff relied on these entries to prove her pedigree, and that she was the issue in tail; and, also, that the several tenants were within the savings of the statute of limitations. The Defendant contended that this book was' not admissible in evidence, and, if admissible, that it was insufficient to prove the pedigree, or that the tenants were within the savings of the statute.
It appeared in evidence that Michael Hill, on 5 May, 1748, conveyed in fee the land in question to John Hill for a valuable consideration; and the Defendant deduced title regularly from John Hill to himself. It was admitted that real assets descended from Michael Hill to his issue in tail, Hardy Hill, father of the lessor of the Plaintiff, of greater value than the land in question. And it was contended that the warranty in the deed from Michael Hill to John Hill, and the real assets descended to the issue in tail of Michael Hill, worked a discontinuance of the estate tail. The deed contained a covenant of seisin, and the clause of warranty was in the following words: "Furthermore, I, the said Michael Hill, for myself, my heirs, executors and administrators, do covenant
and engage the above demised premises to him the said John Hill, his heirs and assigns, against the lawful claims or demands of any person or persons, whatsoever forever hereafter to warrant, secure and defend."
At this term, the Court gave judgment upon the points submitted in this case. They agreed upon the first point, that the parish register was properly admitted in evidence, and if the jury believed the evidence of Hardy, this register, with his testimony, proved the pedigree of the lessor of theplaintiff, and that she was the issue in tail; and also that the several tenants were within the savings of the statute of limitations. On the second point, the Court were divided in opinion; the Chief-Justice and Judge Hall being of opinion that the covenant in the deed from Michael Hill to John Hill was a covenant for quiet enjoyment only; and Judge Daniel, that the covenant was a covenant real, annexed to the land, and by reason of the real assets of greater value than the land in question, descended to the issue in tail, had worked a discontinuance of the estate tail.
TAYLOR, Chief-Justice: The two questions presented by the record are, as to the admissibility of the book in evidence; and, whether the deed from Michael to John Hill operated a discontinuance of the estate tail.
1. The registry of births, marriages and burials, is directed to be kept by the register of the precinct, where there is no clerk, by the act of 1715: and as the book produced was proved to be the original one which had been thus kept, it affords legal evidence of the marriages and births, at least on a question of pedigree. A book kept by public authority, is necessarily evidence of the facts recorded in it, for the convenience of the public. (1 Salk., 282.) And the law will guardthe purity of such a memorial by making it indictable to insert a false entry. (Sid., 71-2.) It is very possible to prove a marriage or pedigree by general reputation; but where precision is required in dates, it is extremely...
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State v. Joyner
...contained in the official record. See generally 1 Stansbury, N.C. Evidence § 153 (Brandis rev. 1973). In the early case of Jacocks v. Gilliam, 7 N.C. 47 (1819), the Court, in holding the official registry of marriages admissible to prove pedigree, said: ". . . A book kept by public authorit......