Jackson ex dem. Ross v. Cooley , 8 Johns. 128 ( 1811 )

Thompson, J.

delivered the opinion of the court. The lessors of the plaintiff claim title to the premises in question, as heirs at law of ’ William Wilson and John Goodrich, deceased. A regular title from the government having been shown in their ancestors, the only question upon the trial was, whether the evidence warranted the jury, in finding that the lessors were the heirs of Wilson and Goodrich. No objection was made t@ the competency of the evidence. It was, therefore, a question altogether for the jury. Cary Ludlow testified that he was well acquainted with William Wilson, when he resided in New-York; that he removed from this country to England prior to the year 1/83; that he was his agent here, and superintended his lands; that he died, as he has always understood, some time between' the years 1788 and 1795; leaving no children, or brother or sister, and that John Wilson was his only nephew and heir at law; that after the death of William Wilson, he acted as the agent of John Wilson, in relation to the lands in question, by virtue of a power of attorney from him, bearing date the 18th of November, 1795; wherein he is styled the heir at law of William Wilson; that he has corresponded with John Wilson, and has always understood, from the acquaintances of the family, and the people who claimed an interest in these lands under the patent to Ross, that John Wilson was both devisee and heir at law to William Wilson, who claimed an undivided moiety of the lands granted to Ross; and that John Goodrich claimed the other moiety. The testimony of Ludloxu, showing that the other lessors of the plaintiff were the heirs at law of John Goodrich, was substantially the same. In addition to which, a deed from them to Ezra Coats, another lessor, was produced, wherein they are described as such heirs. This deed was duly acknowledged, before the mayor of Loudon, agreeably to the statute of this state. Mr. Ludlow further stated, that his information was derived from the several powers of attorney he received, and correspondence with the parties, and conversations with Goldsborough Banyar, Samuel Corp, and other acquaintanees of the families of Wilson and Goodrich.

This testimony was sufficient, prima facie, to be submitted to the jury. Had there been any evidence, on the part of the defendant, casting any doubt or suspicion on the subject, the sufficiency of the evidence might be somewhat questionable. Testimony, as to pedigree, is not to be tested by the ordinary rules of evidence. The subject necessarily requires a relaxation of those rules; and it is, of course, always treated as an excepted case. Hearsay evidence, or any thing which shows a general reputation, is admissible to establish a pedigree. (Peak. Evid. 9.) The declarations of persons, who from their situation were likely to know, are competent evidence Lord Mansfield (Goodright v. Moss, Cowp. 591.) says, tradition is sufficient in point of pedigree. Circumstances may be proved; such as an entry in a family bible; an inscription on a tombstone; a pedigree hung up in a family mansion, which are all good evidence. In this case,, also, the recitals in deeds, the finding of a special verdict between other parties, stating a pedigree, (Buller, 233.) a bill in chancery, by an ancestor, (7 Term. Rep. 3. note,) though not admissible in other cases, are competent to prove a family pedigree. The declarations of the members of a family, and of others, living in habits of intimacy with them, are said, by Lord Kenyon, to be received as evidence of pedigree; (Term Rep. 723.) and he does not confine it to the declarations of deceased persons only. The acknowledgment of the deed to Coats., by the heirs of Goodrich, before the mayor of London, is a fact of some importance in proof of pedigree. Our statute requires that the officer taking the acknowledge ment should know, or have satisfactory evidence, that the grantors are the persons described therein, and who executed the deed. The grantors being described as such heirs, their identity must have been known to the mayor; or proof thereof given to him. And this, though ex parte, is entitled to as much, if not more weight than many circumstances we find in the books which have been received as evidence of pedigree. The books furnish us with no definite or precise rule on the. subject. Almost any circumstances, which are calculated to show a general reputation, and afford reasonable grounds of belief, are received as evidence of pedigree; and I cannot say that the testimony given to the jury, in this case, was not sufficient to warrant the verdict, in finding that, the lessors of the plaintiff were the heirs at law of Wilson and Goodrich, especially, as it was in proof, that the defendant does not pretend to claim the title to the premises, or any thing more than the mere naked possession.

The opinion of the court, accordingly, is, that the motion for a new trial must be denied.