George Morris David Gwynne v. Josiah Harmer Heirs

• Decision Date: 01 January 1833
• Parties: GEORGE MORRIS and DAVID GWYNNE, Plaintiffs in error, v. The Lessee of JOSIAH HARMER'S HEIRS
• Court: U.S. Supreme Court

32 U.S. 554

7 Pet. 554

8 L.Ed. 781

GEORGE MORRIS and DAVID GWYNNE, Plaintiffs in error, v. The Lessee of JOSIAH HARMER'S HEIRS.

January Term, 1833

ERROR to the Circuit Court of Ohio. This was an action of ejectment, prosecuted by Eliza Harmer, Josiah Harmer and William Harmer, children and heirs-at-law of Josiah Harmer, deceased, against George Morris and David Gwynne, to recover possession of a part of a town lot in the city of Cincinnati.

On the trial of the cause, the defendants excepted to the admission of certain evidence, and to the instructions given by the court to the jury upon matters of law. To reverse the judgment in favor of the plaintiffs, they prosecuted this writ of error.

The case was argued by Ewing, for the plaintiffs in error; and by Caswell, for the defendants. The facts of the case, and the questions of law which were presented for decision, are fully stated in the opinion of the court.

STORY, Justice, delivered the opinion of the court.

This is a writ of error to revise the judgment of the circuit court for the district of Ohio, rendered against the plaintiffs in error, who were the original defendants in an action of ejectment, commenced in that court in 1828.

The original suit is for a lot of land, situate in Cincinnati. The original plaintiffs are the heirs of Gen. Josiah Harmer; and claim title to the premises under a deed executed by John Cleves Symmes, then proprietor of the lands including the whole city, on the 6th of May 1791, acknowledged on the 28th of November 1804, and recorded on the 30th of the same month. The boundaries stated in the deed are as follows: 'On the south, on the front or river street, lying directly in front of Fort Washington, being twelve rods wide on the street, including two lots, and extending northerly from the said front street, twenty rods, to the south side of the second street from the Ohio, and adjoining the said second street, twelve rods from east to west; and on the east, bounded by the lands of his excellency Governor St. Clair.' These lots were without the original bounds of the city. At the time when this deed was executed, Symmes had not procured a legal title thereto, under his contract with the United States for his purchase; but he subsequently obtained it, in 1794.

The defendants, at the trial, set up title to the premises derived under one Ethan Stone, who purchased the lands mentioned in the deed from Symmes to Harmer, at a sheriff's sale, on an execution by one Lamma against Symmes, and as his property, in March 1803.

At the trial, there was a good deal of evidence as to the location and boundaries of the lots conveyed by the deed of Symmes to Harmer, and comprehending the premises; and this constituted one of the points in controversy. The defendants, also, to rebut the plaintiffs' title, gave in evidence the record of the proceedings in a suit in chancery, prosecuted by Harmer against Stone, in the supreme court of Ohio, in 1811; the object of which was, to procure a decree against Stone, for a release and surrender of his title to these lots, under the sheriff's sale; upon the ground, expressly stated in the bill, that the deed of conveyance from Symmes to Harmer, in 1791 (the former having then acquired no legal title), conveyed only an equitable title to Harmer, and that Stone had full notice thereof, at the time of his purchase under the sheriff's sale. Pending the proceedings, Harmer died, and the suit was revived in behalf of the widow and heirs of Harmer; all of whom, except one, were then under age, and prosecuted their suit by their mother as their next friend. Afterwards, in 1817, a decree was made in favor of the plaintiffs, directing Stone to release all his title to the land, according to the boundaries contained in the deed from Symmes to Harmer; and to yield up the possession accordingly. The heirs of Harmer did not all arrive at age until 1825.

After the rendition of this decree, one George W. Jones was employed by Mrs. Harmer to procure a release from Stone, pursuant to the decree. He testified, that he came to Cincinnati, in 1821. That before leaving the city of Philadelphia, Mrs. Harmer requested him to take the agency of their claim in Cincinnati, then in the hands of Jesse Hunt, and to receive a conveyance from Stone of the lands decreed to the heirs of Harmer, and take possession of the same. That, at that time, all the heirs, except one, were minors, and with her who was of full age, he had no conversation respecting the matter; nor had he any written authority to act as agent for any of them. That after his arrival at Cincinnati, he applied to Stone for a conveyance; and after some difficulty and delay, he got him to go upon the ground, in company with Mr. Este, the attorney-at-law for Harmer's heirs, and Mr. Gest, a surveyor, and the land was set off by Stone, as he (Stone) claimed was correct. The surveyor handed him a plan of survey; and Stone executed a release of the same to Harmer's heirs. That the witness knew nothing of the situation of the town, or the true locality of the lots. He had no agency in, nor did he ever know of the additional description of the four town-lots, as mentioned in the deed of release made by Stone; nor did he know that it conveyed other or different ground than was described in the dead made by Symmes to Harmer.

It was also proved on the part of the plaintiffs, that in 1824, an execution was issued against Stone, and levied upon a triangular piece of ground, at the junction of Ludlow and Front streets (part of the premises included in the deed of release of Stone, and contended to be not included in the deed of Symmes to Harmer), as Stone's property, and bought at the sheriff's sale, in February 1825, by one Timothy Kirby, who afterwards, in June 1827, conveyed the same to Jones; and Stone afterwards, in August of the same year, upon a representation that it was bought by Jones for Harmer's heirs, to quiet their title, executed a release thereof to Kirby.

It was also proved, that Harmer's heirs had always been in the undisturbed possession of the land released by Stone to them, under the decree. That about the year 1821 or 1822, Josiah Harmer, one of the heirs, then a minor, but who came of age in 1823, came to Cincinnati; and wishing to erect a house on the corner of the triangular piece of ground above referred to, contracted for the building of the same, which was erected thereon, and had ever since been in the possession and occupancy of persons holding under Harmer's heirs, and paying rent to them.

This statement of facts is necessary to understand the instructions prayed of the court, which will hereafter come under consideration. Before proceeding to consider them, it will be proper to dispose of some minor exceptions taken to certain evidence, which was admitted at the trial.

It has been already stated, that one of the points of the controversy at the trial was, as to the true location and boundary of the lots conveyed by Symmes to Harmer. One Thomas Henderson, a witness, among other things, testified, that 'he had heard a number of the old citizens of Cincinnati, now dead, speak of the situation of the lots sold by Symmes to Harmer; and named particularly Joel Williams, one of the old proprietors of the other part of the town, and David Zeigler, who, he said, was the reputed agent of Gen. Harmer; and in the conversation spoken of, warmly censured Ethan Stone for attempting to take from Harmer his property.' The defendants objected to the admission of Zeigler's declaration, as to the location of said lots; which objection was overruled by the court, and the statement of said Zeigler, as testified by said witness, was admitted in evidence to the jury. The defendants excepted to the admission of this evidence. It is observable, that the exception is not general to the declarations of Zeigler, but only to that which respected the location of the lots. Nor does it appear, that any declaration of Zeigler was given in evidence, except what is above stated. Now, if Zeigler made no other declaration, or the plaintiffs waived giving any other declaration in evidence, notwithstanding the court ruled it to be admissible, it is difficult to perceive, how this exception can be maintained, or how the defendants have been prejudiced. So far as Zeigler's declaration is in evidence, it is merely introductory, that he spoke 'of the situation of the lots;' and it nowhere appears, that any further declaration, except in this general way, was in evidence. Such a statement, so utterly inconsequential, cannot form any proper matter of exception. It proves nothing; and can be considered in no other light than as the introductory language of the witness himself.

The plaintiffs then offered to read from Dr. Drake's work, called a Picture of Cincinnati, the date of the surveying and laying out lots in that part of Cincinnati which lies east of the garrison reservation. To the admission of this book in evidence, the defendants objected, the author being (as was agreed) alive, and his deposition, as to other matters, taken in the cause. The court overruled the objection, and admitted the evidence to go to the jury. To this decision, also, the defendants excepted. If this exception were to be considered solely upon the general principles of the law of evidence, we should think, that it was well taken. All evidence of this sort must be considered as mere hearsay; and certainly, as hearsay, it is of no very satisfactory character. Historical facts, of general and public notoriety, may, indeed, be proved by reputation; and that reputation may be established by historical works of known character and accuracy. But evidence of this sort is confined in a greater measure to ancient facts, which do not pre-suppose better evidence in existence; and where, from the nature of the transactions, or the remoteness of the period, or the public and general reception of the facts, a just...