Jackson ex dem. Bogert v. King

Curia, per Woodworth, J. On the 10th day of September, 1708, a patent was granted to William Appel including the premises in question. The lessors of the plaintiff claim to be his heirs at law. At the trial, a sworn copy of certain entries of baptisms and marriages, in the records of the Reformed Protestant Dutch Church in the City of New-York, was given in evi deuce, to prove the pedigree of the lessors of the plaintiff; by Avhich it appeared, that on the 26th of May, 1695, one William Appel and his wife had a son baptized by the name of Simon; that in 1719, Magdalena, and on the 24th of September, 1721, Gertruig, daughters of Simon Appel, were also baptized; and that on the 25th of August, 1743, Magdalena Appel was married to Abraham Pelts. In almost all the books, which treat on the subject of evidence, it is laid down, that the register of births, marriages, and burials is competent evidence; and wherever an original is of a public nature, and admissible in evidence, an examined copy will equally be admitted. (Phil. 320, 306. Peak. 86. Bull. N. P. 247.) This rule is necessary, as well for the security of the instrument, as for the convenience of the public. In addition to this, the hearsay evidence of pedigree was competent, and, of itself, sufficient. Baron Gilbert, in his treatise on evidence, 112, lays down the rule, that hearsay is good evidence, to prove who is the grand father, when he married, what children he had; of — 239 — which it is not reasonable to suppose the party has better evidence. Bogert testified, that, from conversation in his family, and among his relations, from his infancy, he always understood and had been informed, that Magdalena Pelts was ¿he daughter of one Simon Appel; and that Simon was the oldest son of one William Appel. Testimony, as to pedigree, is not to be tested by the ordinary rules of evidence. It forms an exception to the general rule. Hence it is, that any thing which shows a general reputation, is admissible to establish it. (Peak. 9.) In Cowp. 591, (Goodright v. Moss,) Ld. Mansfield held, that tradition is sufficient in point of pedigree. Ld. Kenyon observed, in the case of The King v. The Inhabitants of Eriswell, (3 T. R 723,) “ I admit that declarations of the members of a family, and perhaps of others living in habits of intimacy with them, are received in evidence as to pedigrees; but evidence of what a mere stranger has said, has ever been rejected in such cases.” This doctrine was also sanctioned by this court, in Jackson v. Cooley,( 8 John. 128.) In Jackson v. Boneham, (15 John. 226,) a sworn copy of the records of the town of Stonington, which contained the date of the marriage of the parents of the lessors, and the time of the birth of their children was admitted. In the opinion delivered, Thompson, Ch. J. says “ we do not perceive any objection to the admission of a sworn copy of the records, as evidence of the family.” If, then, the evidence was properly received, the question to be decided is, whether William Appel, mentioned in the records of the church, is to be considered the person to whom the patent issued. In order to test this point, let us suppose that, an ejectment had been commenced by William Appel in his life time, to recover the possession, and that he Avas the only lessor; Avould not the production of the patent be all that Avas necessary, in the first instance, to make out a title 7 I apprehend this question has been decided by our courts. In Jackson ex dem. Shultz v. Goes, (13 John. 518,) letters patent to Peter Shultz, one of the lessors, Avere produced. The defendant proved, that there Avas another person of the same name, Avho Avas too young, during the rev — 240 — olutionary Avar, to be a soldier; and that the lessor himself had not'been a soldier. Upon that evidence it Avas held, that the defendant Avas entitled to judgment. By tnis statement it Avill be seen, that no question Avas raised, Avhether the plaintiff Avas bound in the first place, to prove his identity, as Avell as produce his patent. On the contrary, the right of the defendant to go into this evidence, Avas alone contested. The counsel for the defendant admitted, on the argument, that the lessor, on producing the patent, Avas, prima facie, entitled to recover. Spencer, Justice, observes, “ In this action, Avhenever the plaintiff introduces a deed conveying the premises to a person, of the name of his lessor, it is, prima facie, evidence, that the lessor is the real grantee; the burthen of disproving this, and repelling the presumption, is throAvn on the defendant; and he may proAre that the deed Avas granted to a different person of the same name.” Thompson, Ch. J. observed that it Avas ahvays open to a defendant in ejectment, tc shoAv that the lessor Avas not the person intended by the patent, though he may bear the same name. The cases cited by the defendant’s counsel from 1 Campbell, 196, and 4 Campbell, 34, seem to contravene this rule. In the first case, the action Avas to recover copyhold premises. It appeared that certain persons of the same name Avith the lessors, had been admitted as tenants in fee. It Avas contended that evidence of the identity of the persons admitted ought to be given. Ld. Ellenborough Avas of that opinion, holding that there Avas not sufficient evidence of the admission of the lessors. In the latter case, the issue Avas non estfactum ; the Avitness produced was unacquainted Avith he defendant; and testified merely that a person executed the bond, in the name of the defendant. This case. does not apply: for the proof was manifestly defective; the Avitness not knowing that the person Avho -signed the bond, was of the same name Avith the defendant. Dampier, Justice, observed, “that some evidence of identity Avas indispensably necessary; and that even presuming that the person Avho executed, Avas of the same name, he asked, how did it appear that it was the defendant sued in the action 1 These were nisi prius cases; and, hoAvever respectable, — 241 — cannot be regarded as a rule of decision here, in opposition to the practice recognized and acted upon in our own courts. The rule we have adopted is, that proof of identity may always be admitted, >vhen the fact is questioned; leaving to the defendant the right of showing that the plaintiff is not the person intended. As far as I am acquainted, the course of practice in this state has corresponded with this rule. I have never known a case where a plaintiff, having the name of a patentee or grantee, was required to go farther than the production of his deed or patent; unless the presumption of identity was first repelled by the defendant; nor where the production of a bond or note on trial, was not holdeu, prima facie, sufficient against a defendant of the same name with the obligor or maker. If, then, William Appel, described in the records, had been the lessor, his identity would be presumed, until disproved by the defendant; because there is no proof that there ever was another person of that name. The presumption cannot be affected, whether he stands before the court, as a lessor, or the ancestor, under whom the lessors of the plaintiff claim. The presumption is not founded on the circumstance, that an action happened to have been commenced; but on this the patent is to William Appel; there was a person of that name, and no other or different person is proved to have existed. On the principles laid down, the conclusion is, that William Appel, described in the records was the patentee. The next question is, whether the evidence of pedigree, derived from the records of baptisms, was sufficient ? They prove that William Appel had a son named Simon: that one Simon Appel had a daughter, Magdalena, baptized in 1719; and another daughter, Gertruig, baptized in 1721. That Si mon Appel, mentioned in the extract of baptism in 1719, was the son of William, is, I think, to be presumed. The presumption is considerably fortified by the fact, that William appears to have been one of the sponsors. But it may be asked, what is the use of allowing the registers of births, marriages, and baptisms 'I If A claims that B is his ancestor, as grandfather; that such ancestor has been dead a — 242 — century; and his son C half a century; it cannot he expect ed that living witnesses can be produced, to prove the relationship of past generations. He may, then, resort to the register. What fact does that establish 1 It may appear that B was married ; that he had a son C afterwards baptized; that C afterwards had a son A baptized; on the face of the register, it does not appear that A was the son of C or that C was the son of B ; but it is the best evidence the nature of the case admits ; and, because greater evils are apprehended from the rejection of such evidence, than its admission, the law has relaxed the general rules, and allowed the exception. But after all, the evidence would be unavailing, unless the law presumed that the persons named in the register, were the ancestors of the claimant; they all bearing the same names; and no evidence being adduced that there had ever been other persons of that name. From the search made by Bogert, the witness, in the book of records, for a great number of years, and nothing appearing to show that there was ever any other William or Simon Appel; from the fact that Simon had a daughter, Magdalena; and that a person, of her name, was married in 1743 to Abram Pelts; from the dates of the several baptisms and marriages being at such distance of time from each other as to be consistent with the claim, I think it may be presumed, that these persons are descended of William Appel in a direct line. The testimony of Mrs. Tan Deusen proves that Magdalena Pelts, the grandmother of one of the lessors, was the widow of Abram Pelts. She died in 1795. Her age is not stated. It is evident, however, she was far advanced in years, as her grand daughter was born in 1771. It is a reasonable presumption that she is the person whose marriage is certified to have taken place in 1743. From the preceding view, it follows that the Judge erred in directing the nonsuit. The evidence produced by the plaintiff was, prima facie, sufficient to entitle him to recover. Whether the presumption that William Appel, named in the certificate as the patentee, has been repelled by the evidence, on the part of the defendant, is a question of fact, proper for the consideration of the jury, under the direction — 243 — of Ibc court. The declarations of Mrs. Pelts, and the long acquiescence, were circumstances hearing on this question. It would be premature, in this court, to express an opinion now, as to the weight of testimony on this point, until a jury have passed on it. With respect to the possession it was not adverse at its commencement, nor at any subsequent period. Schauber, the first possessor, declared he had no title. He sold to William King, from whom the defendant received the possession. There is evidence that valuable improvements have been made; but none that the possessors claimed title. I am of opinion that the nonsuit he set aside, and a new trial granted, with costs to abide the event. Motion granted.