Scharff v. Keener & Mull ( 1870 )

The opinion of the court was delivered,

by Agnew, J.

— The jearned'judge in the court below rejected the deed from Philip ilopp and wife to Peter Scholl on the ground that there was no proof that the grantors were the heirs of John Ilopp, Jr., and because there had been only fifteen years’ possession under the deed. We think this was an error. The deed was dated April 30th 1827 and was over forty-two years old at the time of trial. It recited that John Ilopp was the grandfather of Philip Ilopp, and that Philip was entitled to the estate under the will of his grandfather John, dated the 24th of March 1795, and proved the 4th of March 1799. This will has been given in evidence by which it appeared that John Ilopp had devised the land in controversy to his daughter Dorothea Schneider for life and after her death to the heirs of*his son John Ilopp, Jr. Dorothea lived far beyond the ordinary term of human life, and until the distinct evidence of pedigree must have ceased to exist, having died about the year 1850, at the great age of one hundred and five years. During all the time after her father’s death she continued to own and occupy the land by herself or tenants, and after her death, possession was taken by parties claiming under the deefl of 1827 referred to, and the plaintiff was in actual possession when this suit was brought against a trespasser, claiming by adverse title. Under these circumstances the deed was evidence, both of the execution of it, and the pedigree recited in it. It was over thirty years old and came from the proper custody; the life-tennancy possession was consistent with the estate in remainder, and in privity with it, the actual possession taken at the earliest moment after the expiration of the life estate, and held by the party entitled to the possession, while the defendants were strangers to the plaintiff’s line of title. It is therefore not easy to perceive why the usually accurate President Judge rejected the deed. His chief reason seems to be that he thought this was no evidence of pedigree. But in this the learned judge erred. That recitals in ancient deeds are evidence of pedigree is undoubtedly the law of this state. It was so held in Paxton v. Price, 1 Yeates 500, and Morris’s Lessee v. Vanderen, 1 Dallas 67. The question arose again in Murphy v. Lloyd, 3 Wharton 538, and the deed was excluded only on the ground that the grantor in it was not shown to have had any connection with the land, possession or otherwise, previous to ihe date of the deed. But Bowser v. Cravener, decided in 1867, 6 P. F. Smith 132, may be said to run on all fours with this case, and there the same doctrine was held. In citing Paxton v. Price, supra, it is not intended to assert the principles there decided, as applicable to every case, modern in its circumstances. In that case the deed was but nine years old when it was received in evidence and the recitals held to be evidence of pedigree. It may be that in matters of very recent occurrence, where the evidence of pedigeee is easily attainable, cases may arise where the recitals in such a recent deed would not be entitled to the weight given to them in Paxton v. Price. But the present case is one far removed from the border line of controversy. On the point of execution, Bowser v. Cravener may also be referred to, and to it we may add McReynolds v. Longenberger, 7 P. F. Smith 13, in which the admissibility of ancient documents in evidence, is discussed at length.

Judgment reversed, and a venire facias de novo awarded.