Taylor v. Shemwell
| Decision Date | 11 June 1844 |
| Court | Kentucky Court of Appeals |
| Parties | Taylor & Tisdale <I>vs</I> Shemwell. |
APPEAL FROM THE SIMPSON CIRCUIT.
IN 1798 Thomas Watty obtained a settlement certificate for 200 acres of land, in the county of Logan, and had, in virtue thereof, an entry and survey made. In 1800, while residing upon the land, he died, leaving two daughters, Mariam and Jemima, his only children and heirs at law. The daughters married Joseph and Zechariah Shemwell, one in 1802 and the other in 1804. In 1808 a patent issued for the 200 acres, in the name of Thomas Watty. In 1809, the husbands sold and made a joint conveyance of the land to Samuel and James Shemwell, who, in 1812, conveyed the same to William Morrow, and Morrow, in 1813, sold and conveyed the same to William Mays. A year or two afterwards, Mays, while in possession of the land, died intestate, leaving a widow and several children, from whom the appellants, defendants below, mediately or immediately obtained the possession of the land and conveyances. Zechariah Shemwell died about 1826, and Joseph in 1838, and in 1841, their widows, Mariam and Jemima Shemwell, brought this action of ejectment for the land embraced in the patent, which issued in the name of their father, Thomas Watty. The land had continued in possession of Samuel and James Shemwell from their purchase, and in those claiming under them, up to the institution of this suit. The testimony, upon the trial in the Court below, conduced to establish the foregoing facts. Verdict and judgment for the plaintiffs, and the defendants have appealed to this Coart.
Various questions are presented by the assignment of errors. We will first notice those arising upon exceptions taken by the defendants upon the trial, to portions of the testimony.
The defendants excepted to the depositions of David Moore and others, because they did not appear to be taken at the place named in the notice; "the notice was to take at the office of Esquire Benjamin Frazier, in Stewart county, Tennessee." The depositions purport to have been taken at the house of Benjamin F. Frazier, Justice of the Peace in Stewart county, Tennessee. We think it sufficiently certain that the depositions were taken at the house of Esquire Benjamin Frazier, in Stewart county, Tennessee, and the question then is, whether we shall presume that a county Esquire or Justice of the Peace has an office at any other place than his house. We are very strongly inclined to the opinion that such a presumption ought not to be indulged, and that the exceptions were, therefore, properly overruled. But even if the presumption were otherwise, we are satisfied that the same facts, which the depositions conduced to prove, are satisfactorily established by other testimony in the case. The admission of the depositions as testimony furnishes, therefore, no ground for reversal.
The defendants also excepted to the testimony adduced by the plaintiffs upon the trial, proving the marriage of one of the lessors, by repute and cohabitation, and living together as man and wife for many years. The exceptions were overruled, and we have no doubt correctly. It is certainly well settled, that evidence of repute and cohabitation, &c. is competent to establish a marriage generally, in all civil cases. Actions of crim. con. which may be regarded as quasi criminal, form, we believe, the only exception. The law was so held by this Court in Crozier vs Gano and wife, (1 Bibb, 357,) in an action of detinue, and in Stover vs Boswell's heirs, (3 Dana, 232.)
The defendants further objected, on the trial, to the deed from Samuel and James Shemwell to Morrow, and also the deed from Morrow to William Mays, which were offered on the part of the plaintiffs, going as evidence to the jury, and especially in view of the time and circumstances under which they were offered. It appears that after all the testimony in the case had been given, except these deeds, the Court instructed the jury as to the law of the case, and that the cause was then adjourned over till the day following; when the cause came up on the following day, the deeds were offered and permitted to be read, upon the statement by the counsel for the plaintiffs, that before the commencement of the term of the Court, he had made, and caused to be made by the Clerk, diligent search in the office of the Logan County Court, for said deeds, but without being able to find them; but learning from the witnesses, during the progress of the trial, the dates when the deeds were probably made, he had sent to Russellville during the preceding night, and for the first time, obtained the copies. Under such circumstances, we are of opinion it was in the exercise of a sound discretion by the Court, to permit them to be read. No new issue was thereby presented, nor does it appear...
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