Jackson, ex dem. Kellogg v. Vickory , 1 Wend. 406 ( 1828 )

By the Court,

Sutherland, J.

The deed of the 26th of Dec. 1792, from L’Hommedieu to Phillips and Roe, was sufficiently proved to entitle it to be read in evidence. The objection was, that the commissioner before whom the proof of the deed was taken, did not state in his certificate, that he knew the witness, King, who proved the identity of De Peyster, the witness to the deed, who proved its due execution. (1 R. L. 369.) A deed may either be acknowledged by the party or parties executing the same, or proved by one or more of the subscribing witnesses. When acknowledged, the statute requires that the officer taking the same, shall know or have satisfactory evidence that the person making such acknowledgement, is the person described in, and who executed the deed ; when proved by the subscribing witness, the officer must know the person making such proof, or have satisfactory evidence that he is a subscribing witness to such deed. But the statute does not prescribe the evidence which alone shall be satisfactory; it leaves that 'to the discretion of the officer, only requiring that he shall set forth in his certificate that witnesses were examined, and the substance of their evidence. In Jackson, ex dem. Wood v. Harrow, (11 Johns. R. 434,) it is taken for granted, that a certificate in this form would be sufficient.

The next inquiry is, whether the will of Timothy Tredwell Smith was sufficiently proved. It is sufficient to produce one of the subscribing witnesses to a will, if he can prove its perfect execution ; that is, that the testator signed it in the presence of himself and two other witnesses, or that he acknowledged his signing to each of them, and that each of the witnesses subscribed in his presence. But if the witness who is produced, can only testify to his own share in the transaction, the other witnesses, if living, and within the jurisdiction of the court, ought to be called. If they are dead, or beyond the jurisdiction of the court, then their hand writing, and the hand writing of the testator, should also be proved. The jury will, from such evidence, be authorized in inferring that all the requirements of the statute have been complied with. (1 Phil. Ev. 439, 40. 2 Com. R. 530. 2 Str. 1109. Willis’ R. 1. Jackson v. La Grange, 19 Johns. R. 386. Dan v. Brown, 4 Cowen, 483. Jackson v. Luquere, 5 Cowen’s R. 221.)

In Jackson v. La Grange, the witness produced, recollected none of the circumstances attending the execution of the will; he had no recollection of the testator, or of seeing the will executed; but he testified that his name subscribed to the will as a witness, was his proper hand writing, and that he knew the hand writing of Jeremiah Lansing, another witness, who was dead. The third witness was proved to have been, at the time of the trial, living within the state. It was held that Wendell, the third witness, ought to have been called, inasmuch as the witness who was examined, did not prove the facts essentially necessary to the valid execution of the will; and it is said, that if Wendell had been produced, he might either have proved or disproved these facts. But if his recollection should also have failed him, as well as the other witness, still, if he could have proved his signature, that, together with the proof of the signature of the testator, would have been sufficient.

In Dan v. Brown, the will was lost and could not be produced. Two of the witnesses to the will were called, and Mr. Marcy, one of the witnesses, testified that he drew the will, and that the testator executed it in the presence of three witnesses, and those three witnesses signed their names to the will, in the presence of the testator and of each other; that he and Mr. Mallory were two of the witnesses, but who the third witness was, he could not recollect; but he had no doubt, from the circumstance of the testator depending upon him to see that the will was properly executed, that the third witness was a credible one. Here the perfect execution of the will was proved; a strict compliance with all the formalities required by the statute, was positively sworn to by Mr. Marcy ; and if the third witness had been living and within the jurisdiction of the court, it would not have been necessary to have produced him. But at all events, it was the very best evidence, which the nature and circumstances of the case admitted of.

In the case at bar, the evidence is certainly not so strong. The witness produced, could not remember whether the other witnesses subscribed their names in the presence of the testator or not. Here, then, is a fact essential to the valid execution of the will, which is not proved. The witness, it is true, observes, that he presumes all the witnesses signed their names in the presence of the testator, as he would not have subscribed his name, unless the requisites of the law had been complied with. lie does not even swear that he signed in the presence of the testator. But he presumes they all, himself as well as the others, so signed, because he would not have signed, unless the requisites of the law had been complied with. It will be perceived, that this amounts to nothing more than the proof of his own signature, and of the signature of. the other witnesses and of the testator, by one of the witnesses; and from the fact of his own signature, he presumes or infers every thing else that he states. This undoubtedly would be sufficient, if the other witnesses were dead, to authorize a jury to believe that all the formalities of the statute had been complied with. The law, as Judge Spencer remarks, in Jackson v. La Grange, does not require impossibilities; and therefore, where the will has been executed for a long time, it is not ordinarily to be expected that. the witnesses will be able to remember all the raaterialjacts. But here, only one of the witnesses has been produced; and although he does not recollect all the material facts, it does not follow that the others would not; and we have no right to indulge in presumptions as to them, when they are within the reach of the court, and can be called upon to testify. It is resorting to secondary evidence, when that of a higher order is within the reach of the party. If one of the witnesses will' swear that he and the other two subscribed the will in the presence of the testator, that is evidence of as high a grade as though the other witnesses had been produced and testified to the same fact; find the law has properly determined that it is sufficient. But unless the witness produced can prove a valid execution of the will, the other witnesses, if living, and within the jurisdiction of the court, ought to be called. I am of opinion, therefore, that the will in this case was improperly admitted in evidence.

The question of adverse possession does not strictly arise in this case. Timothy Tredwell Smith is the common source of title to both parties. The plaintiff claims.under a deed from Elias Smith, (the devisee of T. Tredwell Smith,) bearing date the 22d day of August, 1825. The defendant claims under a deed from Timothy Tredwell Smith to Oliver Stevens, dated Dec. 19, 1800, for 200 acres of land. The conveyance to the plaintiff covers the whole of what is called the 1/Hommedieu patent, containing 2200 acres, with the exception and reservation of 200 acres, to be taken from the south west corner of the said tract, agreeably to the terms of the deed granted to Oliver Stevens, 66 the same being hereby expressly excepted and reserved by the said parties of the first part, and in no wise intended to be conveyed, or in any manner affected by this conveyance.” The grant to Stevens is first to be satisfied, and the residue of the patent belongs to the lessor. The first question then is, as to the true location of the 200 acres conveyed to Stevens. By the terms of the deed, c< they are to be taken off in a convenient compact form from the south west corner of the patent ” &c. There can be no question that the south and west lines of the patent are to be the south and west boundaries of the two hundred acres; and I should be inclined to think, that they ought to be located in a square, unless the situation of the land would render such location peculiarly inconvenient. It is conceded that the 200 acres in this Case are not in a square; and it is contended by the plaintiff, that they do not extend to the west line of the patent by about ten rods.

Ebenezer Rice, a witness for the plaintiff, testified, that he surveyed the L’Hommedien tract in 1825, according to the courses and distances given in the patent, and that he made the west line of the patent about ten rods west of the west line of Stevens’ 300 acres. He had been a practical surveyor 1 about thirty years, and took great pams to survey accurately. Tje founcj no ijne 0f marked trees on the west line run by him, nor any marked object in the north west corner. The contents of the tract according to this survey was 2119 acres, about 80 acres less than the patent given.

Benjamin Winch and Elnathan Botsford testified to the line according to the location of the defendant. The testimony of Winch amounts to nothing. He found a line of marked trees, and supposed that was the west line of the patent; he had also been at the south east corner, and had traced the lines, and found marked trees, but by whom these lines were marked, or whether they corresponded with the description in the patent, he did not pretend to know. Judge Wright gave him the courses and distances.

Botsford’s testimony is equally vague. He assisted one Blanchard in running round the patent in 1805. They were employed by Stevens. They found marked trees and corners all around, but who had marked them he did not know. He never saw or knew either of the Smiths. Blanchard and He ran out the 200 acres for Steveus.

Upon this testimony it may be remarked, that Rice, the plaintiff’s witness, swears positively, that his survey is according to the courses and distances in the patent; no monument or fixed object being mentioned in it. The defendant’s witnesses merely followed certain lines of marked trees which they found, and which they believed to be the lines of the patent. But there is no evidence that the west line thus marked, was run or marked by the direction of the patentee, or any one claiming under him, or had ever, in any manner, been recognized by them. I should therefore be inclined to the opinion, that upon the evidence as' it now stands, Rice’s line must be considered the true one. It is not my intention, however, to express a decided opinion upon this point, as the cause is to be sent down for another trial, when the question w.ill be open for further evidence. As to the actual occupancy of the 40 acres in question, the weight of evidence, in my judgment, is, that there was no clearing or other improvement made on it until 1807. Leonard Fuller testifies, that in 1808, there was a piece of wheat on a part of the 40 acres, and the land on which it grew appeared to have been cleared the year before. This suit was commenced in February term, 1826, less than 20 years from the first actual occupancy. There are witnesses, it is true, who speak in general terms of its having been improved in part for 23 or 24 years ; but this testimony wants the precision and accuracy which characterizes the testimony of Fuller. Fuller also testified, that in 1810, Smith, the former owner of the lot, came there and told Stevens in express terms, that he did not admit or consider that the 200 acres had been located or surveyed in conformity to the deed; and they had a severe altercation respecting it. This disposes of the argument founded on the long acquiescence in the location, admitting it to have been erroneous. The questions will, probably, all of them receive further elucidation upon the new trial, which must be granted, on account of the improper admission of (he will of Timothy Tredwell Smith, in evidence.

New trial granted.