Wickes's Lessee v. Caulk

Attesting 'witnesses are not necessary to a deed, and where their names are erased, it is incumbent on the party, wishing-to avoid the'deed, to preve that the erasure was made after its execution and delivery. 'Hie erasure of the^ names of attesting* witnesses to a deed, "by a stranger, after its execution and delivery will not a- TVhcre a deed was recorded within time, and th « majority oí ibe commissioners only, are competent to bounds of lands td he tettíwi0* rf*eSS 1J,wmkcr* ?i0t les*s than three, is made by those interested in the the commissioner eh a selection be made by oilier persons than those interested, and quiescence in tlirird°efc)on.0 act UIlder u>. their acts are voui, and not aided by any length <.fac=

Appeal from Kent county court. Ejectment for a tract of land called Tulip Forest. The defendant in the court below, (the present appellee,) took defence on warrant, and plots were returned. 1. At the trial the plaintiff read in evidence a grant of the tract of land called Tulip Forest, made to Simon Wickes on the 6th of November 1790, and traced the title from Simon Wickes to the lessor of the plaintiff. The defendant then read in evidence a grant of the tract of land called Arcadia, made to Michael Miller- on the 5th of May 1682; and also the will qf Miller, the grantee, dated the 29th of December 1698, devising the land called Arcadia, which remained unsold at his death, to his son Arthur, and his issue lawfully to be begotten; and produced a witness, by whom he proved that the witness was acquainted with •William Moore, deceased, who was re-puled to be tlie eldest son of John Moore, deceased, and that William Moore died about 40 years ago, and was, at the time of his death, and had been for at least ten years before that time, residing in the house located on the plots as the house of the defendant, and was possessed of the same. He then offered in evidence the will of William Moore, dated the 29th of January 1779, devising all the remaining part of his estate, both real and personal, to his son John, and his heirs; and a commission and proceedings thereon, hereinafter mentioned; also a deed from Arthur Miller, and Sarah his wife, to John Moore, dated the 20th of November 1700, for part of the tract of land called Arcadia, which deed appeared to have been executed in the presence of two witnesses, (the justices who took the acknowledgment) and whose names were erased; and was acknowledged as follows, viz. '■'■Mar. (a) ye 14th 1706. Then came Arthur Miller, and his wife, Sarah Miller, before us Thomas Ringgold and John Wells, two of his majesty’s justices for Kent county, and did acknowledge the within conveyance unto John Moore, as ye law directs. As witness our hands the day above written. Tims. Ringgold, Jno. Wells.” '‘April 12th Anno Dom, 1707. Enrolled in the records of Kent county in Liber G. L. No. 2, page 24 and 25, pr. me. “G. Lunley, Cler. Cur. Com. Canti.” The deed was then objected to by the plaintiff as improper evidence in the cause, and as not being sufficient to pass a title to the land mentioned therein; because the witnesses’names appeared to have been erased, and the acknowledgment to have been made before its execution, and because the enrolment seemed to have been more than twelve months after the date of the said acknowledgment. But the court [Earle, Ch. J. and Worrell, A. J.] overruled the objection, being of opinion that the deed was competent evidence and sufficient to pass the title. The plaintiff excepted. 2. The defendant then offered in evidence a deed from Arthur Miller, and Sarah his wife, to Nicholas Poor, dated the 6th of October 1707, for part of the tract of land called Arcadia—which deed was certified to have been acknowledged on the 6th of October, (omitting the year,) and was recorded on the 8th of January 1707. It was objected to by the plaintiff as insufficient to pass the title, to the land mentioned in it, as the acknowledgment did show in what year it was taken, and as the enrolment, appeared to have been made before the date of the deed, and before the date of the acknowledgment. The original, deed, and the record of it, were both produced, and the dates of the deed and certificates appeared to be the same in both. But the court overruled this objection, and suffered the deed to go to the jury, as sufficient to pass the title. The plaintiff excepted. ' 3. The defendant then offered in evidence the record of a commission, and the proceedings thereon, to ascertain the bounds of John Moore's lands, under whom the defendant claimed title, for the recovery of which this suit was instituted. The commission bears date the 4th of August 1718, and was issued in pursuance of the act of 1718, eh. 18, by the governor, directed to nine persons, with a dedimus to five of theni, empowering any of them to administer the necessary oaths to the other,persons named as commissioners,; and the persons so sworn, or any of them,, were empowered to administer the said oaths to the other commissioners. These oaths appear to have been duly administered on the 2.0th of August 1718. The proceedings referred to state, that “pursuant to an act of assembly of this province now in force, entitled, A,n act for ascertaining the bounds, of land within this province, John Moore, late of Saint Paul’s-Parish in 'Kent county, &c. having twenty days before the preferring his petition to the commissioners appointed for ascertaining the bounds of land in the county and province aforesaid, met at the court house in the town of Chester, in said county, on the 19th of August. 1719, according to the directions of said act.'of assembly, thereby giving due notice to all pei'sons that were any way interested of concerned in the bounds of a certain tract of land called Arcadia, lying, situate and being, in the parish, epunty, and province aforesaid, of his design of his making his application to the said' commissioners for the ascertaining the bounds of a part or parcel of1 land, part of that tract of land called Arcadia, The said John Moorfi’s petition being read before the commissioners aforesaid, a certain Dominick Kenslaugh appears as guardian of a certain William Kelley, son of a certain Daniel Kelley, deceased, the said William Kelley having a tract of land adjoining to 'the said parcel or tract of land of the said John Moore's to defend the right and injury of the said William Kelley: John Moore, complainant, and Dominick Kenslaugh, as guardian, of the aforesaid William Kelley, tenant, proceed to choose commissioners to determine the matter ill controversy and dispute between file parties contending. The haiiies of the commissioners mutually chosen by the aforesaid parties are as follow, viz.5’ &C. Here follow the names ■of five of die commissioners before mentioned, who appointed the 29th of September 1719, and made public declaration thereof, and ordered notes to be set up at the court house'door, parish churches, mills, and most frequented towns in the county, of their resolution and design to meet ■on the said lands in dispute, viz. John Moore's dwelling house on the said land. That the clerk issue summonses •for evidences and witnesses to meet at the time and place . appointed. That D. M, he and appear at the time and. place appointed, to survey the lauds in dispute. On which flay the commissioners met at the place appointed, and administered the oaths to their clerk, and to the surveyor. They ordered-AAra Moore's petition to be read, and which Is set’out in the proceedings. And the commissioners, sheriff, surveyor, &c. and the parties contending, being all present, at the time and place appointed, for the better discovery of the true bounds of the land in dispute, the commissioners, other officers, and the parties contending, withdraw from the house of the said John Moore, to the place where the eastermost bounded tree of the tract of land called Arcadia was supposed to stand, when and where the commissioners aforesaid proceed to hear the -conveyances of the parties contending, and the patent of the tract of land called Arcadia read, and to swear such -evidence as the aforesaid commissioners and parties contending as aforesaid might think fit, in order to the better settling and ascertaining the bounds of the land in the said petition of the said John Moore mentioned. Dominick Kenslaugh, as guardian of William Kelley, produces several papers, amongst which were, &c. Other conveyances, &c. were produced and read, and sundry witnesses were sworn and examined, and their testimony reduced to writing, &c. Chain-carriers were summoned and sworn. And the commissioners aforesaid having duly and impartially considered, as well the proof and allegations of both parties, as all other circumstances nearest concerning witfi the true intent of the original surveys, did cause “the said D. M. surveyor, then to begin at a marked hickory tree, &c. which was accordingly done in the presence of the said commissioners, who ordered and adjudged the particular boundaries, &c. to the respective parties of their lands;' and they put Moore in peaceable possession of the bounds so determined. They ordered that the surveyor make out certificates and plots of the aforesaid tracts of land, &c. which were made and set forth in the proceedings.' After which the proceedings go on to state, that ‘‘the aforesaid commissioners, being informed that the aforesaid William ■Kelley was not a minor at the time of the aforesaid John Moore's preferring his petition for ascertaining the bounds-.of land adjoining to the said William Kelley's land, but that the said Dominick had of his own accord, and maliciously, wilfully and wittingly, without any regard to the interest of the said William Kelley, but on the contrary plotting and fraudulently intending to deceive and defraud the afore'said William Kelley, and the aforesaid John Moore, of their lawful and just rights and claims to the aforesaid parcels of land, settled and bounded as aforesaid; and the same appearing, on due examination,, to be' only a contrivance of the said Dominick, by his appearing as guardian to William Kelley aforesaid, thereby to cast the cost and charges on the' then supposed minor, William Kelley, in case that the commissioners aforesaid should have given-judgment against the said Dominick, as guardian to William Kelley aforesaid. Therefore it is considered by the aforesaid commissioners, that the aforesaid tracts of land for ever hereafter remain, be, and continue, as the bounds of the lands of the aforesaid John Moore and William Kelley, as by the aforesaid certificates and plots, hereunto annexed, appeareth; and that the- aforesaid John Moore and William Kelley be, continue and remain, in the peaceable possession of the said several parcels of land as above certified, and as by the plots hereunto annexed for ever; and that the said Dominick Kenslaugh pay all costs and damages, amounting to 2240lbs. of tobacco, and twenty shillings current money, the same to be paid by the said Dominick, and, not as guardian of the aforesaid William Kelley; and that Mr. S. W. high sheriff of Kent county, levy by way of execution the aforesaid sum of £24Qlbs. of tobacco, costs, and twenty shillings current money, of the body, goods and chattels, of the said Dominick Kenslaugh.” The defendant then prayed the court to direct the jury, that the said record of the Said commissioners was conclusive evidence of the true locations of the lands mentioned in the said record of proceedings of the commissioners. To which the plaintiff objected. But the court overruled the objection, and permitted the record to be read to the jury, as conclusive evidence of the true location of the lands mentioned in it. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.