Den ex dem. Watson v. Kelty

A general partition of lands of a decedent, lying in two or more counties, cannot be made by commissioners appointed by the Orphans’ Courts of those counties, although they be the same persons. They most divide the land in each county among all the heirs. The Surrogate General, is the proper appointing power, if the partition is to be differently made, that is general, and by a single allotment to each heir. The disability that saves from the operation of the statute of limitations, is of a personal character, and can only he set up by the parties and those claiming under them. A defendant may show a title out of the plaintiff; but shewing that a third person might defeat the plaintiff’s title, if he chose to set up his minority or other disability, is a very different thing. Lands held in severalty peaceably twenty years, under a colorable partition, will amount to evidence of title, under the statute of limitations. When lands are held in severalty upwards of twenty years, in quiet possession, under a semblance of legal partition in severalty, an agreement of all parties, may be presumed to such partition, — although a parol partition might not be originally good under the statute of frauds.

In Ejectment for lands in Salem. STATE OF THE CASE. This case came on to be tried before the Chief Justice at the Salem Circuit, December term, 1837, when a verdict was rendered for the plaintiff under the direction of the court, subject to the decision of the Supreme Court, upon the following state of the case, viz: The premises in question consisting of a small dwelling house and about 5 acres of land, situate near Sandy Ridge, in the county of Salem, together with other lands situated in the county of Cumberland, formerly belonged to one Abel Cook, now deceased, and were in his possession at the time of his death, which took place prior to the year, 1799. Abel Cook died intestate, leaving a widow and six daughters, viz : Anna, the wife of George Davis. Deborah, who married David Harris, and Susannah who married a man named Smith. Christiana, who married David Speers. Ruth who married Daniel Gilman — and Sally who married a man named Sheets. Three of these daughters are living, and the rest of them are all dead, leaving children. In March term, 1779 of the Orphan’s Court, of the county of Salem, an application was made by or o-n behalf of some of the said heirs o.f Abel Cook, for a Partition among them of the lands which belonged to their father in the county of Salem — whereupon Jacob Elwell, Joshua Sims and Ephraim Bennett, were appointed Commissioners, by an order of the Orphans’ court to divide all the lands of Abel Cook, lying in the county of Salem, equally among the said several children, naming them, respectively. To prove the application and appointment aforesaid, the counsel for the plaintiff offered to read from a book, which he stated to be book A., of minutes of the Orphan’s Court of Salem County, but it was objected by the defendant’s counsel, that the minutes of that Court were not evidence per se, and if they were, that the Circuit Court could not take notice that the book produced was a book of minutes, or a record of the Orphans’ Court. To avoid this objection, however, the plaintiff’s counsel then produced a writing which was proved to be a compared copy from book A, page 278, of the minutes of the Orphans’ Court, of Salem county, and which was then read in evidence to the Jury (pro ut the same.) The commissioners above named, made their report to the Orphans’ Court in the term of June 1799, by which it appeared that they had divided all the lands whereof Abel Clark died seized in the county of Salem (being the premises now in question ;) between his two daughters Anna Cook and Christiana Speer, and by a memorandum at the foot of the report, they refer the reader or the parties concerned, to the records of the Orphans’ Court, of the county of Cumberland, for the shares of the other Children of Abel Cook, in his lands; which report was read in evidence to the jury, (pro ut the same) bearing date the 1st of June, 1799, and endorsed “ Filed confirmed June, 3d 1799, recorded lib. A, fol. 309,” and signed “Samuel Dick, Begister.” The plaintiff then gave in evidence, a deed dated 1st January, 1810 from George Davis who married Anna Cook, to William Davis, by which he conveyed to the said William Davis, life estate in that portion of the premises in question, which had been allotted by the said commissioners, to his wife Anna Cook (pro ut the said deed ) The plaintiff also gave in evidence, a deed dated 6th June 1810, from the said Geo. Davis, to the said Wm. Davis by which deed, the former conveyed to the latter, in fee simple, the residue of the premises in question, which had been allotted to Christiana Speers, another daughter of the said Abel Clark, as her part of his lands. This deed recites that the premises therein described, had been conveyed by Speers and Christiana his wife, formerly (Christiana Cook) to one Morrison, and by the said Morrison and his wife, to the said George Davis, (prro ut the said deed.) The plaintiff then called the said George Davis as a witness, and the lessors of the plaintiff having executed and delivered to him in open court a sufficient release, he was sworn and testified as follows: ‘Cl knew Abel Cook — he lived on property called Siddons’ property, near Sandy Ridge — he was in possession of the premises in question, the road separated them from the lot on which he lived — he died in possession, after his death I married his daughter Anna Cook — his land was divided before I married — when I married, my wife’s share was in possession of David Harris, her guardian — I took possession and lived upon it two or .three years — I rented it one year to a man named Long, and after that to one Myers — while Myers had it, my wife Anna died — I had two children by her, one of whom is still living, as I believe — she married a man named James Bowen— her name is Mary Ann. After I sold my life estate in my wife’s share, to my brother William Davis; he took possession and rented it out — when I moved on my wife’s lot, one Isaac Morrison was in possession of her sister Christiana Speers’ lot. I bought it of him, the same spring that I took possession of my wife’s lot. He and his wife made me a deed for it, on parchment. When he gave me that deed, he also delivered to me, a deed from Christiana Speers and her husband, to him for the same lot — that deed was also on parchment. (Three separate pieces of parchment written on, and appearing to have been once an entire piece, and purporting to have been a deed, being shewn to the witness, he said) I believe them to be parts of the deed from Speers and Christiana his wife to Morrison, which was delivered by him to me, as before stated. When I sold to my brother William Davis, I gave him up the parchment deeds before mentioned, which I got from Morrison when I bought of him. These pieces of parchment now shown to me, I got lately from Mrs. Phoebe Goller. Mrs. Ruth Watson and Deborah Davis, two of the lessors of the plaintiff, are daughters of my brother William Davis; Deborah is the oldest, she is twenty-five or twenty-six years old. My brother William Davis, never had any other children, to my knowledge and belief. He and his wife are both dead — it is twelve or fifteen years since I heard of their death.— I went out of the State about eighteen years ago. William Davis was then in possession of both lots, my wife Anna’s and Christiana’s. The plaintiff then called John Kates, who, being affirmed, testified that he knew Abel Cook and the premises in question, more than thirty years ago. He lived on the Siddons property and rented out the premises in question. He knew his two daughters,' Anna Cook and Christiana Speers. At one time, Geo. Davis, the last witness, lived on one of the lots, and Morrison on the other. Afterwards William Davis had the two lots, now in possession of Owen Kelty, one of the defendants. I farmed the premises one year under William Davis, and one year under his widow. He died I think while I farmed under him, twenty or twenty-five years ago. William Bradway, another witness for the plaintiff, testified that he occupied the premises in question, under William Davis for two years, and that he and his wife are now both dead. Phoebe Gollar testified — she knew William Davis and his wife. He died in 1814, and his wife about ten years after that period. That Mrs. Davis was the witness’ aunt, being the witness’s mother’s sister. That Mrs. Davis, three or four years after William Davis’s death, married one Smith. That Smith undertook to repair or rebuild the house on the premises, but never completed it, and did not move into it. That Mrs. Davis had papers in her possession, relating to the premises now in dispute. They were two parchment deeds and some other papers. After Mrs. Davis’s death, witness’ mother took possession of them.— Mrs. Davis told her to do so and to take care of them till her daughters Ruth and Deborah (who are the lessors of the plaintiff) should grow up. The witness further testified that after her mother’s death, she took the deed, and papers. They were placed on a board or shelf between the beams of the house where Airs. Davis lived. When the witness left the house, she left them there. She had shown them to the girls Ruth and Deborah, and they said they knew nothing about them, and considered them of no use. After that, she cut the parchment deed as it now appears. She cut it for patterns. The deed cut, was one of the deeds her mother got of Airs. Davis. It was a deed from Speers and Christiana his wife, to Morrison. The pieces now shewn here in court, were delivered by witness to George Davis, the other deed was from Morrison and wife to George Davis, was left in the house. Ruth and Deborah the lessors of the plaintiff, were the only children of William Davis. James Holliday another witness, testified as follows. I found in the house in which Mrs. Davis died, when I moved into it, a parchment deed, between the beams and some papers rolled up in it. They were thrown out and played with by the children, and were lost or destroyed by them. The several pieces of parchment before spoken of, were then read in evidence — (pro ut the same) and the plaintiff rested. The defendants did not set up any adverse title, but objected to the sufficiency of proof on the part of the plaintiff, and insisted, 1st. That admitting the title of Abel Cook, yet there had been no such lawful partition amongst the heirs as to’entitle his daughters Anna and Christiana to the premises in question, in exclusion of the other heirs. 2d. That the proceedings in the Orphans’ Court, were unauthorized, unlawful and void. 3d. That if the plaintiff was entitled to recover at all, he could only recover for the aliquot parts of Anna and Christiana, viz: for two equal undivided sixths of the premises in question. 4th. That George Davis, although released, was not a competent witness, and if he was, yet that the loss of the deed from Morrison and wife, to George Davis was not sufficiently proved to admit of parol evidence of its existence and contents. Whereupon the Chief Justice, with the consent of the counsel on both sides, directed the jury to find a verdict for the plaintiff, which they did, subject to the opinion of the Supreme Court upon the case stated. If the court shall be of opinion that the plaintiff is entitled to recover the whole premises, then Judgment shall be entered generally for the plaintiff. If the court shall be of opinion that the plaintiff is entitled to recover only an undivided portion of the premises, then judgment shall be entered for the plaintiff accordingly. But if the court shall be of opinion that the plaintiff is not entitled to recover upon the case as stated, then the verdict shall be set aside and a new trial granted.