McKineron v. Bliss

By the Court, W. F. Allen; J. Hearsay or reputation is never evidence, except in particular cases, and when from the nature of things no better or higher evidence can be obtained. (Gould v. Smith, 35 Maine Rep. 513.) But in this case the plaintiffs had not exhausted the sources of other and better evidence. Had possession accompanied the devise of Sir William Johnson, it would have been different, and the court might have been authorized to presume a grant from the crown. The plaintiffs count and found their claim of title upon the prerogative of the king as the universal occupant of all derelict lands, and the original owner of all the lands within his domains. The title of the king was in right of his crown, and could only be granted by him in pursuance of law. Patents of land, granted by him without law or contrary to law, are void. The general laws affecting the subject, enacted by parliament, I am aware, do not extend to the colonies of Great Britain, unless they are specially named; but I do not understand that this is the rule in regard to those general [182] statutes which relate to the king’s prerogative and his diposal of the crown lands or revendes; Those laws are to operate upon the sovereign and his acts, and are riot to affect the subject ; and hence the reason of the rrile which exempts colonies from the effect tif the ordinary legislation of parliament—to wit, that they aré not representfed ^ does not apply, and the rule itself should not exist. The king’s grants are matters of public record, and no freehold can be granted by him but by matter of record j and they must pass through the prescribed offices and be transcribed and enrolled. (2 Bl. Com. 346. Com. Dig., Patent, A. E. 2 Thomas' Coke, 489, n. a.) This record, like every other record of a foreign court or a foreign government, was susceptible of proof; A patent can always be proved by a constat or an exemplification of the record, as well as by producing the patent itself. (1 Phil. Ev., Cowen & Hill’s ed. 463, (3). Thomas’ Coke, 297. Page’s case, 5 Rep. 105.) A grant, or charter from the crown, which ought to be by matter of record, may, under circumstances, be presumed, though within the time of legal memory. And a grant was presumed where there had been a possession in accordance with the alleged grant for 350 years. (Mayor of Kingston v. Harris, Cowper, 102.) I am unable to see why the proper evidence was not an exemplification from the proper offices in England, or at least some evidence that upon application to those offices no record was to be found. The places in which search was made would not be likely to repay the labor by bringing to light the desired instrument. It is not unlikely that if any patent was ever granted for the tract in question, it was taken to Canada on the. flight of the individual who succeeded to the possession of the instruments of title of Sir William Johnson, and remained there. The evidence afforded by the statutes relied upon by the plaintiff was very slight as to the existence of any grant from the crown to Sir William Johnson, even if they, or the recitals, would be evidence against a stranger, which may be doubtful. They furnished no means of ascertaining the extent or boundaries of the tract, or the [183] estate granted, or the conditions of the grant, or wnether it was without condition and absolute. It would be quite too slight evidence to authorize a judgment of ouster against a party in possession. But it is enough to say that the secondary evidence was not competent, for the reason that the higher evidence, if an}' existed, was within the reach of the party. [Oneida General Term, January 5, 1857. The judgment must be affirmed; Hubbard, Pratt, Bacon and W. F. Allen, Justices.]