Morrell v. Craefe , 2 Wash. C. C. 380 ( 1809 )

BY THE COURT.

The act of assembly, passed on the 26th of March 1785, which declares that no sheriff’s deed, made bona fide, and for a valuable consideration, where quiet and peaceable possession hath been had of the same for six years, shall be adjudged defective, for not producing in court any writ of fieri facias, &c., or any returns thereon, is a full answer to the objection. The issuing of the necessary writs in this case, is proved by the docket of the court, and the possession of Doyle was the possession of Ball, under whom he held.

The defendant offered a deed from Mrs. Stewart to a person under whom he claims, made during her husband’s life, whilst lie* was in Ireland, and which was given in order to raise money for her support. The court refused to let it be read, unless the death of her husband was proved, because, as the deed of a feme covert it was void.

The defendant then read a deed from Stewart, of his life estate, and contended that it was not clearly proved that Stewart was dead. The evidence was that he had not been heard of for many years. His wife married again, and two of the witnesses deposed, that they had heard some years ago that he was dead.

WASHINGTON, Circuit Justice (charging jury). The whole cause turns upon the fact, whether Stewart is dead; because, if alive, the plaintiff who is only entitled to an estate m fee after his death, cannot recover. But the evidence in the cause, raises so strong a presumption of his death, that unless the contrary had been shown, the jury ought to consider the fact as proved

Verdict for the plaintiff.