Opinion
(December Term, 1833.)
1. The recital of a former in a subsequent deed is evidence of the existence of the former deed against a party to the latter and all claiming under him, but not against a stranger.
2. But when the admission contained in the recital is relied on by a stranger, for a fact operating in his favor, and there are also other facts disclosed which operate against him, the recital must be taken altogether.
TRESPASS QUARE CLAUSUM FREGIT. Plea — general issue. On the trial before Norwood, J., at Fall Term, 1833, of MECKLENBURG, the plaintiff proved that the defendant entered on the locus in quo, and committed the trespass. There being no actual possession, the plaintiffs, for the purpose of showing that they had a constructive possession, deduced their title to the land, in the following manner: — a grant from the State to William Polk, dated on 27 February, 1796; then a deed from Polk, dated on 8 February, 1820, to Duponceau and Kentzing; they then deduced title through sundry mesne conveyances, from Duponceau and Kentzing to themselves. The defendant's counsel moved the Court, that the plaintiffs be nonsuited because they had not produced in evidence, the deed from William Polk to Tench Cox, mentioned in the recital of his deed to Duponceau and Kentzing. The deed from Polk to Duponceau and Kentzing, of 8 February, 1820, recites the grants from the State to him of seventeen tracts of land, including the one in question, and also recites that "by an instrument in writing under his hand and seal, on or about the twenty-third day of January, Anno Domini, one thousand seven hundred and ninety-seven, the said William Polk did bargain, and sell, and convey unto Tench Cox, Esq., his heirs and assigns, all the said seventeen tracts of land with their appurtenances, for and in consideration of the sum of nine cents, money of the United States. per acre," and then conveys the same as follows: "The said William Polk, for and in consideration of the premises, and of the sum of one dollar, money of the United States, to him in hand paid, (274) by the said Peter S. Duponceau and Abraham Kentzing assignees of said Tench Cox, who became such since 20 October, 1798, the receipt whereof is hereby acknowledged, hath granted, bargained and sold, released and confirmed, etc., the said land to Peter S. Duponceau and Abraham Kentzing in fee." The Court reserved the point of law, and the case was put to the jury, who returned a verdict for the plaintiff, subject to the opinion of the Court upon the question reserved. Upon argument the Court decided, that it was necessary for the plaintiff in order to make out a complete title, to produce the said recited deed from William Polk to Tench Cox on the trial, as well as a deed from Cox to Duponceau and Kentzing, and thereupon, ordered the verdict to be set aside and a nonsuit to be entered. From which judgment, the plaintiffs appealed to this Court.
Iredell and Devereux for the plaintiff.
No counsel appeared for the defendant.
It has been held that the recital of a deed in a subsequent deed, is evidence of the former, against a party to the latter, and those who claim under him, and therefore it operates by way of admission; but such a recital is not evidence against a stranger to the second deed. (1 Starkie, 369; Ford v. Lord Gray, Salk., 285; 4 Binney, 231.) But when the defendant relies on the admission contained in the recital, as evidence of a fact in his favor; he must recollect that the admission must be taken altogether, and that if there are other facts disclosed in the admission, which operate against the defendant, the plaintiffs will be entitled to the benefit of them. The whole of a recital is to be taken, and therefore, if a patent be recited to be surrendered, and one relies upon the recital as proof of the existence of the patent, it will also be proof of a surrender. (3 Star., 311; 2 Ventris, 171; Com. Digest Evidence, B 5.)
The recital states, that Polk conveyed the land by deed of bargain and sale to Cox in the year 1797; by (275) another recital in the same deed, it appears that Duponceau and Kentzing, became the assignees of Cox since the 20 October, 1798. Assignees of what? — the recital is speaking of the land; and we must take it to mean that they are the assignees of the land. The plaintiffs, therefore, having made out their title to the land without the assistance of the tripartite deed and mortgage of 12 August, 1819, it now becomes unnecessary for us to determine whether those deeds had been properly proven or not. We think the nonsuit should be set aside, and judgment rendered for the plaintiffs, on the verdict given by the jury.
PER CURIAM. Judgment reversed.