Opinion
October, 1794.
Bayard for defendant. The jury now can find nothing out of the evidence though they formerly could, but must give their knowledge in evidence in open court. Defendant confesses all the facts so that there is no fact left for the jury. That the court can decide always upon the operation of evidence, and cited 3 Term rnemoriter as to letters etc.
Miller for plaintiff. No case is shown to prove that plaintiff must join in demurrer to parol evidence. We think we have proved a twenty years possession.
PER CURIAM. READ, C. J. Buller in his Nisi Prius is to be considered as having collected the law upon the subject. I take up the law as he did then; I know of no alteration. Twenty years possession is a title. Here was evidence of possession which related to an early period. I wished to know if there was any objection to plaintiff's claim of the possession. We think there is a claim of the possession that neither party can claim, but the question is if the former possession can be tacked to the latter. I think not. And that therefore plaintiff has given no evidence of a twenty years' possession. There is nothing upon the parol evidence that the jury can find. Supposing the fact to be admitted, there remains nothing for the jury to exercise their special knowledge upon. Therefore I think notwithstanding the parol evidence the defendant may properly demur, for there is no such doubt upon the parol evidence as to prevent the defendant to demur.
Conditional verdict taken, and jury discharged.
Plaintiff offered in evidence a deed by an administrator duly acknowledged and recorded and also in support of the deed a copy of a conveyance bond taken out of the recorder's books and certified by him, but it had no certificate of a probate in and order from the Common Pleas to convey, for which reasons it was objected to by Bayard and Ridgely, who read 1 Morg.Ess. 160. A deed enrolled which requires no enrollment, the inspeximus is not evidence. 1 Body Laws 187 as to the recorder's powers, viz that he can only certify what is legal etc., idem 271. Bonds given etc. must be proved etc. the clerk to certify etc., and there must be an order on the administrator to convey. Contra, Miller and Peery examined the records of Common Pleas and swore that prothonotary who said no orders were made in those days, viz in 1762. They urged from Gilb.Evid. 69, that the deed being thirty years old need not be proved where there has been possession under it. That the recorder is an officer entrusted by the public, and his certificate must be good evidence.
The recorder's duty is prescribed by the Act. He is ministerial, and, if he does not record writings pursuant to the Act, he is as to that no recorder; the Act says "thus" etc., shall etc., and it must be followed.
Said by Bayard, and not denied by the Court, that the enroller's power in England of receiving evidence of the fairness of the deed is here given the Court of Common Pleas, and the deed proved with certificate thereof is delivered to the recorder as a ministerial officer to record.
After plaintiff had given in his evidence, defendant's counsel offered to demur to the whole evidence both written and parol and confessed the whole given in to be true.
Objected by Miller and Peery that there are presumptions arising from the testimony upon which the jury have a right to determine — that a direction of the court will have its due effect.
CHIEF JUSTICE READ. Defendant had a right to demur to the written evidence, and he could demand a joinder, but, if there is a doubt upon the parol evidence, plaintiff could not be compelled to join therein. That possession which depends upon parol evidence is good ground for a recovery in ejectment, and, although the evidence given not being complete be confessed, yet the jury may have sufficient knowledge of possession to support the defect. And he wished the bar to confine themselves to the parol evidence. Quaere. How could a new trial be moved for because verdict is contrary to or without evidence? And vide 1 Morg.Ess. 13, 14.