Ellott v. The Lessee of Peirsol
WRIT of error to the Circuit Court of Kentucky.
William Peirsol, and Lydia Peirsol, his wife, Ann North, Jane North, Sophia North, Elizabeth F. P. North, and William North, citizens of Pennsylvania, heirs of Sarah G. Elliott, commenced their action of ejectment against James Elliott the younger, and others, the plaintiffs in error, in the Circuit Court for the district of Kentucky, to recover the possession of 1200 acres of land, part of 2000 acres patented to Griffin Peart.
The plaintiffs proved, that, upon the division of the whole body among the heirs of Griffin Peart, the 1200 acres in contest was allotted to Sarah G. Peart, one of the heirs, and that she was seised thereof in severalty. Sarah G. Elliott, formerly Peart, she having intermarried with James Elliott, died about 1822, without issue; Francis Peart, and Le Roy Peart, brothers of Sarah Elliott, died shortly before her, also without issue. The boundaries of the 1200 acres, and the possession by the defendants, was not controverted.
The plaintiffs below, claimed the premises, as the heirs of Sarah G. Elliott, formerly Sarah G. Peart; and they sought to establish their heirship by the deposition of Mrs. Braugh, widow of Robert Braugh; who swears, that the letter annexed to her deposition, addressed to William Peirsol, Philadelphia, is in the handwriting of her deceased husband. She also states, that she frequently heard him speak of his family connexions, and has always understood from him, that the late Mrs. Mary North, formerly Mary Peart, and the late Mrs. S. G. Elliott, were cousins, both on the side of the father and mother; and that the statements in the letter, correspond with the other statements she heard him make upon the subject of the pedigree of the two ladies; which letter, proves the present plaintiffs to be the only heirs of Mrs. Sarah G. Elliott, at the time of her death. Other depositions were read to the same effect.
On the 12th of June 1813, James Elliott, and Sarah G. Elliott, executed a deed, by which the premises in question were expressed to be conveyed to Benjamin Elliott, under whom the plaintiffs in error claimed to hold the same.
The defendants below, moved the Circuit Court to instruct the jury, that the evidence adduced by the plaintiffs to establish their heirship to Sarah G. Elliott, was insufficient, and that the same ought to be excluded. The Court refused so to do; but, on the contrary, instructed the jury, that the said evidence, if believed by the jury, was prima facie testimony, that the lessors of the plaintiffs were the legal heirs of the said Sarah Peart, alias, Sarah G. Elliott.
In relation to the deed of 12th June 1813, to Benjamin Elliott, it was contended below, that Sarah G. Elliott never did execute the same, in the manner described and required by law, and that the fee simple estate of Mrs. Elliott, did not pass thereby. The provisions of the law relative to the privy examination of a feme covert, by the officer, the clerk of the Court, or in open Court, and to the recording thereof, were alleged not to have been complied with; and consequently, the estate of Mrs. Elliott did not pass, by the conveyance, to Benjamin Elliott. It was also claimed, on the part of the plaintiffs in error, that if a privy examination and acknowledgment were made, it was not recorded; and unless recorded, no title passes to divest the title of the feme covert. The Circuit Court decided this point in favour of the defendants in error; and the case was brought up, upon a bill of exceptions.
Mr. Wirt, Attorney General, for the plaintiffs in error.
1. The letter of Mrs. Ann Braugh to William Peirsol, is not evidence. Although the declarations of members of families are evidence in questions of pedigree, yet this rule is not universal, and it does not apply, when higher evidence can be obtained. 3 Stark. Evid. 1099. 1011. 3 Marshall, 321.
The letter was written with a view to, or under the influence of, the approach of this suit, post litem motam, and such evidence is not admissible. 3 Starkie, 1102. 1104.
2. As to the admissibility of the deed to Benjamin Elliott, and the alleged defect of the acknowledgment of the feme covert, Sarah G. Elliott.
1. The Circuit Court of the United States was not competent to inquire into the acts of the Court of the state of Kentucky; before which the proceedings relative to the acknowledgment were entertained. This is not done by the Courts of King's Bench, of England, in reference to the proceedings of Ecclesiastical Courts, or Courts of Common Pleas. The Circuit Court could look at nothing but the record from the State Court, and could not inquire in what mode the certificate had been made. But, if this could be done, there were materials enough for the purpose.
The examination of the feme, was made according to the provisions of the law, but it was not at the time fully stated by the clerk so to have been made. He took the ackowledgment, and the Court, subsequently, did no more than fill up the record of what had been actually done, from the testimony of the facts before them. This was done by virtue of the powers which Courts have exercised, to correct their records at a subsequent period. 4 Mad. 371. 12 Mad. 384. 2 Stark. 1132. 1156. 1182. 3 Bulst. 114. 8 Coke, 162. Palmer, 509. Rolle's Rep. 272. 2 Saund. 289. Raymond, 39. 209. Sidf. 70. Salkeld, 50. P. L. 13.ibid. 50. Ld. Ray. 695. Cr. Fliz. 435. 459. 677. 2 Rolls Rep. 471. Hob. 327. Rolle's Abridg. 209, 210. 2 Jones, 212. Gwl. Bacon, 197, note. Pigot's Recov. 218. Douglass, 134. 1 H. Blk. 238. Barnes, 216. 2 N. York T. R. 139. 4 Hen. & Mum. 498. 3 Call. 221. 233. 3 Hen. & Mum. 449.
2. The clerk of the Court, who took the acknowledgment, acted as the ministerial agent of the Court, and he acts as if he was in Court. This act was, therefore, in the power of the Court. But if the clerk had the powers of a Court in reference to taking acknowledgments of deeds, the authorities cited, showing the rights of Courts to correct errors, apply to his acts; and if such were his powers, the interference of the Court, in this case, was surplusage.
Mr. Wickliffe, for the defendants in error.--
1. The assumption of the power to correct his errors by the clerk of the Court, was a nullity in Kentucky, according to the established laws and decisions there. Hard. Rep. 171, 172. The laws of Kentucky, relative to taking acknowledgments of deeds, have undergone many modifications; but the law and practice now is, for the clerks to take the acknowledgment and the privy examination of a feme covert; and in this they act independent of the Courts, and not under their authority; nor have the Judges of the Courts any power to interfere with their acts or proceedings, in relation to such acknowledgment. [*] The authorities cited to show the right and practice of Courts to correct errors or omissions, do not apply. As to the laws of Kentucky, relative to this subject, there was cited the Act of Assembly of 1795. 1 Littel, 595. The Circuit Court did not, in this case, inquire how the acts or proceedings of the Court of Kentucky had been performed, but whether the laws of the state, on the subject matter, had been complied with.
2. The facts of the case, as stated in the record, show that the testimony of Mrs. Ann Braugh was not liable to the objection that it was given post litem motam; as to the operation of evidence, post litem mortem, he cited, Cowper, 594. 14 East, 331. 3 Starkie, 1105.
Mr. Justice TRIMBLE delivered the opinion of the Court.--
^* By the kindness of Mr. Wickliffe, the Reporter has been furnished with the following abstract of the present laws of Kentucky, relative to the execution of conveyances by non-residents, and by husband and wife; Laws of Kentucky, chap. 278, 1796.
If the party who shall sign and seal any such writing, reside not in this commonwealth, the acknowledgment by such party, or the proof by the number of witnesses requisite , of the sealing and delivering of the writting before any Court of law, or the mayor, or other chief magistrate of any city, town, or corporation of the county in which the party shall dwell, certified by such Court, or mayor, or chief magistrate, in the manner such acts are usually authenticated by them, and offered to the proper Court, to be recorded within eight months after the sealing and delivering, shall be as effectual, as if it had been in the last mentioned Court.
Three witnesses-by a previous section of the law.
Conveyances by husband and wife, how to be executed, &c.
Sec. 4. When husband and wife shall have sealed and delivered a writing, purporting to be a conveyance of any estate or interest, if she appear in Court, and being examined privily, and apart from her husband, by one of the justices thereof, shall declare to him that she did freely and willingly seal and deliver the said writing, 'to be then shown and explained to her,' and wishes not to retract it, and shall, before the said Court, acknowledge the said writing, again shown to her, to be her act; or if before two justices of the peace of that county in which she dwelleth, if her dwelling be in the United States of America, who may be empowered by commission, to be issued by the clerk of the Court wherein the writing ought to be recorded, to examine her privily, and take her acknowledgment: the wife being examined privily, and apart from her husband, by those commissioners, shall declare that she willingly signed and sealed the said writing, 'to be then shown and explained to her by them,' and consenteth that it may be recorded; and the said commissioners shall return with the said commission, and thereunto annexed, a certificate under their hands and seals, of such privy examination by them,
and of such declaration made, and consent yielded by her; in either case, the said writing acknowledged, also, by the husband, or proved by witnesses, to be his act, and recorded, together with such privy examination and acknowledgment before the Court, or together with such commission and certificate, shall not only be sufficient to convey or release any right of dower, thereby intended to be conveyed or released, but be as effectual for every other purpose, as if she were an unmarried woman.
If out of the United States.
Sec. 5. If the dwelling of the wife be not in the United States of America, the commission to examine her privily, and take her acknowledgment, shall be directed to any two judges or justices of the peace of any Court of law, or to the mayor, or other chief magistrate of any city, town, or corporation, of the county in which the said wife shall dwell, and may be executed by them in the same manner as a commission directed to two justices in the United States of America; and the certificate of the judges or justices of such Court, or the certificate of such mayor, or chief magistrate, authenticated in the form, and with the solemnity by them used in other acts, shall be as effectual as the like certificate of the justices in the United States of America.