Kimball v. Brown , 1 Lock. Rev. Cas. 155 ( 1799 )

The Court of Errors held, that the proof of the handwriting of deceased subscribing witnesses to a deed, is not sufficient evidence of its execution to entitle it to be read to the jury, where the deed on its face excites suspicion of fraud. The party producing it must in such case, give evidence explaining the suspicious circumstances, or proving the identity .of the grantor; and reversed the judgment of the Supreme Court, by a vote of 11 to 9.

The suspicious circumstance in this case, was that in a printed deed describing the grantor as of the commonwealth of Massachusetts, and dated in January, 1770, (conveying the land in question,) in the word seventy, the last syllable, “ ty,” was like the words “ commonwealth of Massachusetts,” ,&c., printed, but the two first “ sev-enj were written on an erasure. A clerk of the register of deeds of the county of Essex, Massachusetts, in which courts Gloucester also was, testified that he had examined the records of the office at .Salem, in said county, from 1765 to 1780, and that the rvord v commonwealth,” did not occur in such records, until he found it in a deed dated May 10, 1780. That in all the rest it was called “ the province of Massachusetts Bay,” or the .“state of Massachusetts.” This the Court of Errors held sufficient to put the plaintiff upon the explanatory proof indicated by the decision, before the deed could be read to the jury,

iff In Northrop v. Wright, 7 Hill, 476, in error, Chancellor Walworth denies the foregoing case of Kimball v. Brown to fie law, except in cases precisely similar.