THIS case came before the court on a writ of error to the circuit court of the United States for the soughern district of New York.
In that court, the defendants in error instituted an action of ejectment to recover from the defendant a tract of land situated in the town of Carmel, in the county of Putnam, in the state of New York.
The title exhibited by the plaintiff on the trial in the circuit court, was the same with that, an abstract of which is given in the case of Carver v. Jacksomex dem. of Astor et al. 4 Peters, 1. It was founded on a patent from William the third to Adolph Philipse, dated 17th June 1697, for a large tract of land, including the premises, situated in the them province, now the state of New York. Frederick Philipse, the great nephew and heir at law of the patentee, Adolph Philipse, to whom the land granted by the patent had descended, devised his estate in fee tail to his four children, in equal parts. One of the children of Frederick Philipse having died soon after her father, and the whole estate having, by a common recovery suffered in 1753 by the three surviving children, become vested jointly in them in fee simple, a partition of all the lands under the patent was made in 1754, by which certain portions of the same were allotted to the respective surviving devisees of Frederick Philipse, in severalty, Mary Philipse being one of the parties to the said partition. Mary Philipse, one of the said devisees, afterwards intermarried with Colonel Roger Morris.
The plaintiffs gave in evidence a deed dated on the 13th January 1758, purporting to be a marriage settlement executed by Mary Philipse and Roger Morris, of the first and second part, and by Johanna Philipse and Beverley Robinson of the third and fourth parts. See 4 Peters, 7.
The plaintiffs then proved a title in them, by regular conveyances, from the children and heirs of Roger Morris and Mary his wife, they being deceased; having also proved that the persons under whom the said title was held, were such children and heirs. Roger Morris and Mary his wife were attainted by an act of the legislature of New York, passed 22d October 1779.
The plaintiffs gave in evidence by several witnesses, and by the production of receipts for rent, that Roger Morris, for several years before the war of the revolution, was in possession of certain lots, part of the estate held by Mary his wife at the time of her marriage, and when the marriage settlement deed was executed; one of which lots, No. 5, was that for which this ejectment was instituted.
Joseph Crane proved that his father lived on the farm now occupied by the defendant, part of lot No. 5, under Roger Morris, from before the war of the revolution; and continued in the occupation thereof until his death.
A deed from the commissioners of forfeited estates, executed according to the act of assembly of New York, passed 22d October 1779, produced by the defendant, on notice, was read in evidence; by which the said commissioners, on the 1st day of June 1780, conveyed the premises in question, being part of No. 5 in this suit, to John Crane; who, on the 26th day of September 1826, conveyed the same by deed, produced on the same notice, to the defendant.
Upon these proofs the plaintiff rested his case. The counsel for the defendant thereupon objected, and insisted that unless the deed called a marriage settlement deed was accompanied or preceded by a lease, the plaintiff could not recover in this action; that without a lease, the said deed could only operate as a deed of bargain and sale; and the statute of uses would only execute the first use to the bargainees, Johanna Philipse and Beverley Robinson, who took the legal estate in the land; and that the plaintiff could not recover without producing the lease or accounting for its non-production.
And because no lease had been produced, and no evidence given to account for its non-production, the counsel for the defendant moved the circuit court to non-suit the plaintiff; but the said circuit court, before the said justice and judge, then and there overruled the said objection, and refused to grant the said motion for a non-suit, and decided that the said plaintiff was entitled to recover without producing any lease, or accounting for its non-production, inasmuch as the recital in the release was evidence of such a lease having been executed; to which said opinion and decision of the said circuit court the counsel for the said defendant, then and there on the said trial, excepted. And thereupon the counsel for the said defendant, to maintain and prove the said issue on his part, produced and read in evidence conveyances by way of lease and release severally, dated 26th September 1765, and 18th September 1771; which were given in evidence. The leases were executed by Roger Morris, and by Roger Morris and Mary his wife, formerly Mary Philipse; and the releases by Roger Morris and wife, to William Hill, Joseph Merrit, and James Rhodes. These deeds did not mention or profess to be made under or in pursuance of any deed or deeds of marriage settlement, or that they were made in the execution of any power. And by the releases Roger Morris covenanted for himself and his heirs, that he was lawfully seised of the premises granted in fee simple, and that he had good right, full power, and lawful authority, to grant, bargain, and sell the same as aforesaid; and the said releases also contained the usual covenants for quiet enjoyment, against all former incumbrances; and grants of general warranty and for further assurance. The parties of the first part in the said releases were described as follows:
'Between the honourable Roger Morris, of the city of New York, Esquire, and Mary his wife, late Mary Philipse, one of the daughters and devisees of the honourable Frederick Philipse, Esquire, deceased, of the one part:' and the description of the land granted, commenced as follows, to wit: 'all that certain farm and plantation, situate, lying, and being in the county of Duchess aforesaid, and known and distinguished by farm number thirty-six of lot number five, of the lands formerly granted by letters patent to Adolph Philipse, Esquire; from whom the same descended to the said Frederick Philipse, Esquire, as his heir at law; the lands so granted by the same letters patent, being usually called and known by the several names of Fredericksburgh, and Philipse upper patent, which said farm or plantation, number thirty-six, begins,' &c.
The counsel for the defendant then read in evidence a deed of partition executed by the devisees of Frederick Philipse, before the intermarriage of Roger Morris and Mary Philipse, and Henry Beekman and others, executed January 18, 1758, by which the boundary line between the patent to Adolph Philipse and colonel Henry Beekman was declared and established. Also, an exemplification of a deed dated 18th February 1771, between Roger Morris and others, relative to the lines of the patent to Adolph Philipse, and those of other patents for adjoining lands.
The counsel for the defendant then produced and read in evidence, certain improving leases for life, executed by Roger Morris and Mary his wife, for parts of the land held by the said Mary under the patent to Adolph Philipse, and the deed of partition. These leases were severally dated on the 23d October 1765, on the 21st day of June 1773, 16th June 1773.
The counsel for the defendant then produced and read in evidence, the books of records from the office of the register of the city and county of New York; from which it appeared that deeds and conveyances of land (as well as various other instruments in writing) had been acknowledged by the grantors, or proved by the subscribing witness, and recorded from a period anterior to the year 1758 down to the close of the war of the revolution; and that during the whole period of the war, except from March to September, in the year 1783, deeds had been acknowledged or proved, and recorded; but from March 1, 1783, to March 17, 1784, no deeds had been recorded; some of which were acknowledged or proved before the members of his majesty's council, others before aldermen of the said city; some before masters in chancery, and others before the judges of county courts in other counties: and it also appeared that deeds of lands, in other counties of the state, were recorded in the city and county of New York; and it also appeared, as to the deeds proved, before and after the close of the war (and of the last class a considerable number had been proved before Judge Hobart), that the certificates of proof stated the delivery, as well as the execution of the deed.
The particular character of the deeds and conveyances was not examined into or stated; but the records were produced for the purpose of showing the fact of the proving and recording of deeds and conveyances, and the form or manner in which it was done.
And thereupon the plaintiff read in evidence a part of the deposition of Thomas Barclay, in which he testified that he knew Colonel Roger Morris, and his wife Mary, about the year 1759; they were then married, and lived in the city of New York.
And hereupon, the proofs having closed, and the counsel for both parties having summed up the said cause to the jury, the counsel for the plaintiff submitted to the said circuit court the following points:
1. That the acts or declartions of the parties to the settlement, after the birth of the children, form no ground of presumption in this action against the delivery of the settlement deed.
2. That Roger Morris stood in the character of a grantee in that deed, and that a possession of the deed by him is evidence of its delivery, because the settlement gave him a larger interest in the lands than his mere marital rights.
3. That the actual signing and sealing of this deed by Beverley Robinson and Johanna Philipse, as well as by the other parties, and the attestation by the subscribing witnesses, that the deed was signed, sealed, and delivered in their presence, by all the parties, as proved on the part of the plaintiff, are in judgment of law complete evidence of such delivery, and of an acceptance of the estates therein granted and limited.
And thereupon the counsel for the defendant submitted to the said circuit court, the following points in writing, on the question of a delivery of the settlement deed of January 13, 1758; upon which points the said counsel prayed the said circuit court to charge and instruct the jury, as matters of law arising upon the proofs and allegations of the parties.
I. That it was necessary to the validity of the deed that it should have passed into the hands of the trustees, or one of them, or some person for them, with the intent that it should take effect as a conveyance.
(2.) It is not enough that the trustees, as well as the other parties, signed and sealed, unless the deed was also delivered to and accepted by them, or some person on their behalf.
II. The evidence arising from the proof of the deed by William Livingston, in 1787, is no stronger than that arising from the proof of the hand-writing and death of the subscribing witnesses.
(2.) In either case it is only prima facie evidence, or evidence from which a delivery may be presumed, and may be rebutted by direct or circumstantial evidence, which raises a contrary presumption.
III. That in the absence of all proof, that the trustees, or any other person for them, ever had the deed, and there being no proof of a holding under it, the fact that the deed came out of the hands of Morris, in 1787, is sufficient of itself to rebut any presumption of a delivery arising from the proof of the deed by William ...