Urket v. Coryell

The opinion of the Court was delivered by Kennedy, J. These two causes were tried together in the court below by the same jury, in each of which the same questions were raised by the counsel of the respective parties, and decided by the court. The plaintiffs here were the defendants below, where their counsel took no less than eleven bills of exception to the opinion of the court on points of evidence, all of which are assigned for error here, beside other errors founded on exceptions to the charge — 76 — of the court to the jury, and to the answers of the court, given on points submitted by the counsel, for their instruction thereon, to the jury. A very brief notice of them will be sufficient, as we are clearly of opinion that there is not even any plausible ground upon which they can be sustained. The first exception to evidence was, to the admission of a paper purporting to be a receipt given by Francis Johnson, Receiver General of the Land Office, on the 25th of May 1792, to John Christ for £10 in Pennsylvania certificates, on account of 400 acres of land in the county of Northampton, granted to Christ by warrant dated the 3d of April 1792. Before it was offered to be read in evidence, proof was made showing that the receipt and name of Francis Johnson set to it as Receiver General were in the handwriting of his son, who did business in the office for his father, and occasionally signed the father’s name alone, without showfing that it was done by the son for the father. The objection to its being read in evidence was, that there was not sufficient proof made of its having been given and signed under the authority of the Receiver General, so as to entitle the plaintiff below to submit it as evidence to the jury. After so great a lapse of time, any slight evidence would have been sufficient to have justified the court in leaving it to the jury as a question of fact to be decided by them, whether it was a receipt given under the authority of the Receiver General of the Land Office or not. But the evidence given of its being so was strong, and, in the absence of all testimony tending to show the contrary, it became conclusive as it were. The ground of the objection to the admission of the evidence in the second and third bills of exception, is the same. They will therefore be considered together. The evidence mentioned in the second bill as objected to and admitted, is a certificate under the seal of the Land Office, signed by Jos. Henderson, Deputy Secretary, in the following words and figures: I do hereby certify that the within is a copy of old purchase voucher No. 9465, filed in the Land Office. Attest, Jos. Henderson, Dec. 6, 1838. Dy. Secretary. The evidence mentioned in the third bill of exception, is a certificate in the following words and figures: Pennsylvania, ss. I do hereby certify that the above is a true copy from an old purchase blotter, No. 4. Attest, Jos. Henderson, Dec. 6, 1838, Harrisburg, Pa. Dy. Secretary. These certificates were objected to, because, as the defendants alleged, they were not certified according to law, and also because there was no such office in Pennsylvania as the “ Land Office.” — 77 — That such an office, known too by that name, existed, first under the proprietary government, is not only shown by the first section of the Act of Assembly, passed by the Legislature of the Commonwealth on the 9th of April 1781, entitled “ An Act for establishing a Land Office, and for other purposes therein mentionedbut an office by that name, as indicated by the title of the Act, is established by the second section of it, to consist of three persons or officers, called or known by the names of the Secretary of the Land Office, Receiver General, and Surveyor General; and in every act of the Legislature relating to the disposition of lands by the commonwealth, it is designated and spoken of by that name. And by the eighth section of the Act of the 29th of March 1809, entitled “ An Act abolishing the offices of Receiver General and Master of the Rolls, and transferring the duties therein performed to other offices, and for other purposes,” it is made “ the duty of the Secretary of the Land Office to prepare a seal, to be styled the Seal of the Land Office of Pennsylvania, which, from and after the 10th day of May then next following, shall be applied to all patents, warrants, and other papers authenticated in said office.” Now, that there is such an office in the State as the “ Land Office,” and known by that name, and properly by no other, is thus incontrovertibly established. And to show that certified copies of all records, documents and papers, of the secretary of the Land Office, when duly certified, shall be received in evidence, I refer to the first section of the Act of the 31st of March 1823, entitled “ An Act making copies of certain documents, records and papers, evidence in courts of justice,” which enacts that “ copies of all records, documents and papers, in the offices of the Secretary of the Commonwealth, Secretary of the Land Office, &c., when duly certified by the officers of the said offices respectively, shall be received in evidence in the several courts of this Commonwealth, in all cases where the original records, documents and papers would be admitted in evidence.” The only colourable objection that existed against these copies being read in evidence, in this case, was, that they do not appear to be signed by the secretary of the Land Office. But they are certified under the seal belonging to his office, and attested by the deputy secretary, which we think is sufficient; for by the eighth section of the Act of 1809, already referred to, the secretary himself is required to sign all patents and warrants to be issued thereafter to which the seal shall be applied; but nothing is said about his signing other papers authenticated in said office, though it is required that the seal shall be affixed to them. This requisition, at most, does not seem to have been intended to be applied to copies, when given of original documents and papers remaining in the office; the affixion of the seal of the office, with the attestation of the deputy secretary, who is authorized to act for the secretary in most cases, must be considered a sufficient authen — 78 — tication of the copies to render them admissible evidence, where the originals would be so if produced. The fourth bill of exception was to the admission of a deed from John Christ to Jacob Eyerly, dated the 26th of November 1792, conveying all interest, &c. in a warrant obtained from the Land Office of the Commonwealth of Pennsylvania, dated April 3d 1792, for 400 acres of land on the east side of the Lehigh, in Northampton county, near or adjoining lands of Joachim Wigman, and all his interest in any part or parcel of the land which might be obtained, located or surveyed in pursuance of the said warrant, with a covenant for further assurance of said land. This deed was offered in evidence after the warrant therein mentioned, and a survey made in pursuance of the same, had been given in evidence by the plaintiff to support his claim to the land in controversy; and was objected to by the counsel of the defendants because the grantor, as they said, had no interest to sell and convey at the time; and again, because it was not for the land described in the warrant or survey, nor for the land in dispute. There does not appear to be the least force in any of these objections. The grantor being the warrantee, or person to whom the warrant was granted, though nominally only, had undoubtedly the right, as well as the capacity, to convey the warrant and the land surveyed under it to the grantee, so as to invest the latter with the legal title, and more especially so as he was the purchaser of the warrant from the State, and therefore the equitable owner of it, as also of the land that had been or might thereafter be surveyed by virtue of it. And whether the deed was for the same land mentioned in the warrant, or included in the survey made in pursuance of it, or was not for the land in dispute, was a question of fact to be left to the jury; but even a misdescription of the land in the deed conveying the warrant would not, I apprehend, make it invalid, so as to render it inadmissible as .evidence, or destroy its efficacy in passing the right of the warrantee to the land actually held under the warrant. The fifth bill of exception was to the admission of a deed from Betsy Rice to Jacob Eyerly, dated the 26th of November 1792, conveying all her interest and property in a warrant dated the 3d of April 1792, granted to her by the Commonwealth, for 400 acres “of land on the east side of the Lehigh, near or adjoining lands of Joachim Wigman, and also all her interest and property in and to any land to be obtained, located or held in pursuance of said warrant, with a covenant for further assurance of the same. Before this deed was offered in evidence, the warrant therein mentioned, and a survey of 402|- acres made in pursuance thereof, were given in evidence. The objections to this latter deed’s being given in evidence were the same with those made to the giving of the first deed in evidence, and therefore require no other or further answer than what has been given to the first. — 79 — The sixth bill of exception was to the reading in evidence a deed from Jacob Eyerly to Robert Morris, dated the 11th of February 1793, conveying the warrants granted to John Christ and Betsy Rice, and the lands surveyed or to be surveyed in pursuance thereof, to the said Robert Morris, his heirs and assigns. The execution of the deed appeared to be attested by George Lesher and Thomas Hartman as subscribing witnesses. Before it was offered to be read in evidence, proof was given that Lesher and Hartman were both dead many years before the trial, and that their signatures to the deed as witnesses were in their respective handwriting, and that the signature of Jacob Eyerly to the deed as grantor was also in his own proper handwriting. This proof was made by witnesses who testified that they had seen Lesher, Hartman and Eyerly respectively write while living, and thus became acquainted with their respective handwritings from having seen them write. The reading of the deed in evidence, however, notwithstanding all this proof, was objected to, because its execution was not sufficiently proved to entitle the plaintiffs below to put it in evidence before the jury. It is really difficult to perceive what further proof the plaintiff could possibly have made, after so great a lapse of time, and seeing the witnesses to the deed and the grantor were all dead. It is not right to make such groundless objections to the admission of evidence. It is seldom, if ever, that any advantage can be obtained thereby on the part of the party making them; but he, on the contrary, may frequently lose, by inducing a belief that they are made by him because he thinks his case a desperate one, and conceives that he has nothing better to rely on. The seventh bill of exception was to the rejection of a memorandum, which the defendant’s counsel offered to read in evidence, with the name of “G. Palmer” signed to it, and said to be all in his handwriting, except an entry in its margin. The two first witnesses, however, produced by the defendant for the purpose of proving it to be in the handwriting of G. Palmer, testified that they were acquainted with the handwriting of George Palmer, but they did not think it was his; but the third witness testified that he believed it was. It appeared that Palmer had been a deputy-surveyor, at one time, and the memorandum offered in evidence was alleged by the counsel of the defendants to have been made by him as such ; but it was not signed by him as sueh, nor did it appear whence it came, nor where it was made; so that there was no pretence for admitting it in evidence as an official paper; and upon no other ground could it possibly have been claimed to be admissible as evidence. The eighth bill of exception was to the rejection of a book from the commissioners’ office of the county, containing returns made by deputy-surveyors to the commissioners of unseated lands for taxation, in which Mathias Hollenbaeh was set down as the — 80 — owner of the lands surveyed under the warrants granted to John Christ and Betsy Rice. It would make sad.work, if such returns were to be received as evidence of title. Though deputy-surveyors are required, upon application of the commissioners of the several counties, by the 1st section of the Act of the 3d of April 1804, entitled “An Act directing the mode of selling unseated land for taxes,” to make out' a correct return to them of all the lands surveyed within their respective counties, whereof, as deputy-surveyors, they may have draughts, maps or plans, made by themselves or their predecessors in office; which returns shall include a list of the number of acres contained in each survey, and the names and surnames of the original warrantees, the waters on which the same is situate, &c.; but they are not required, nor are they authorized to say or determine to whom the lands belong. Indeed, it is very obvious, that not having the means of ascertaining anything of the sort, they would be very incompetent to perform such a task. The evidence offered was therefore very .properly rejected by the court. The ninth bill of exception was to the rejection of certain parts of the deposition of John Stoddart, taken under a rule of the court on behalf of the defendant. The parts rejected went to show that the land in dispute had been reputed and represented, for twenty or thirty years, to be the property of Thomas Dyer, from whom the defendants below derived their claim to it. That such was the representation of the neighbourhood, of which,' however, the witness had no knowledge himself. The witness .was never on the lands in dispute, never resided nearer to them than in Philadelphia ; nor was there a residence of any person nearer to them than from three to seven miles. It would be most extraordinary indeed, and lead to the most crying injustice, if the real owners of lands, whether seated or unseated, were permitted to be affected in their ownership of them by such evidence. It was therefore most rightly rejected. The tenth bill of exception was to the rejection of a small part of the deposition of Pearson A. Reading, taken and offered as evidence on behalf of the defendants below. The witness had bought the lands in dispute of Henry Nixon and his wife; but previously to his doing so he consulted Lewis S. Coryell, the plaintiff below, in respect to it, who advised him to make the purchase, and if he did not like it afterwards, he, Coryell, would take it off his hands. The witness accordingly made the purchase, and, in consummation of it, obtained a deed of conveyance from Nixon and wife for the lands; but afterwards, when he discovered that Abbot, who defended in the court below as the landlord of Urket and Wasser, the defendants, claimed to have a title to the land, he told Coryell of it, and proposed selling and conveying the land to him at the same price he was to pay for it, as he did not wish to be involved in a lawsuit about if. Upon which Coryell agreed — 81 — to take the land, and the witness accordingly conveyed it to him, as appeared by his deed given in evidence as part of the plaintiff’s title below. The witness, in his deposition, stated all this, in substance, and also in addition, that 44 between Nixon and him, the risk of the title was to be with himand that “ the bond for the purchase money was still outstanding.” These were the parts of the deposition objected to by the plaintiff’s counsel below, and rejected by the court as not being admissible in evidence. It is not easy to perceive their relevancy, nor why they were objected to more than some other parts of the deposition. I cannot conceive how the admission of them could have prejudiced the plaintiff, nor how, on the other hand, they could, had they been admitted, have advanced the interest of the defendants. Whether the witness had been a Iona fide purchaser of the land for a valuable consideration, actually paid by him, without notice of Abbot’s claim, was not a question that arose in the cause, so as to make the evidence rejected admissible under any view that could be taken of the case. Being therefore wholly immaterial, no error could arise from its rejection by the court. The eleventh bill of exception was the rejection of the memorandum with the name of “ G. Palmer” set to it, that was mentioned above, in the seventh bill of exception which was offered by the counsel of the defendants, afterwards, a second time, and rejected by the court. It has been shown already that it was properly rejected by the court, when it was first offered; and as no evidence was given subsequently, changing its character or presenting it in any new light, nothing further need be said in respect to it, to show that it was still inadmissible. The errors next in order are exceptions taken by the counsel for the defendants below, to answers given by the court, to six points submitted by them to the court for their direction thereon to the jury. The first point was, “ that if the lands in dispute were embraced in the articles of agreement of the 20th of February 1795, relative to the North American Land Company, the plaintiff could not recover.” On this point the court told the jury, 1st, £C that the only evidence that these lands were embraced in the articles of agreement is, that the parties to that agreement, in their schedule, state 4 72,000 acres of land in Northampton county,’ as belonging to 4 Morris, Nicholson and Greenleaf.’ This is a vague description, and cannot, without something more definite, be held to embrace the tracts which by the evidence were the separate property of Robert Morris.” 2d. 44 That there was no evidence of any subscription by any person to the articles of agreement of the North American Land Company; and as the titles were only held by the trustees for the benefit of the subscribers to the articles, and those who might thereafter become purchasers, owners or holders of shares in the company, and it not appearing that the object for which the trust was created ever existed, the title of — 82 — Robert Morris and of his heirs would not have been devested by the articles of agreement, for there were no persons to take under the trust, and until there were subscribers the trust would not take effect.” We consider the answers given by the court, on this first point, unexceptionably correct, and the reasoning of the court therein shows them to be so. The 2d point submitted was; “ if Robert Morris, or those under whom he claimed, did not procure the surveys to be made and returned, the surveys made and,re turned would not enure to their benefit.” To which the court answered; “there is no evidence that the surveys were not properly made for the person who held the warrants. By the order of the Board of Property the warrants went into the hands of William Gray, a deputy-surveyor, and were executed and returned by George Palmer, another deputy-surveyor. There is no evidence that these surveys were made for any one else than Robert Morris ; nor is there any evidence of claim under these warrants by Dyer, until the issuing of the patents to his heirs on the 9th of March 4824. When Thomas Dyer entered his caveat, on the 5th of August 1795, he claimed adversely to the warrant of Betsy Rice; and until the granting of the patent as above stated, does not appear to have set up any claim to the tract. Under the evidence, the court instruct the jury that there is nothing in the case from which it can be inferred that these surveys were not made for the benefit of Robert Morris, who was the owner of the warrants at the time the surveys were made.” Neither can we perceive any evidence given in the cause to the jury, tending in the slightest degree to show that the surveys were not procured to be made by Robert Morris, and it would therefore have been error in the court below to have submitted such a question of fact to the jury, without some evidence given going to show that the surveys were not made for Robert Morris. It was shown clearly that he was the owner of the warrants at the time; but even in the absence of all testimony tending to prove for whom the surveys were made, the jury were, in law, bound to presume that they were made for Robert Morris, he being the owner of the warrants. ' But suppose the surveys had been shown to have been made at the instance and for the use of another person, who had no right to the warrants, they being still the property of Robert Morris, the latter most unquestionably might have adopted and claimed the benefit of them; so that this point of the defendant might well have been answered in favour of the plaintiff below, even had there been evidence showing that the surveys were at the instance and for the use of another person. The third point was, “ That if those under whom the plaintiff claimed lay by from 1795 to 1838, without claiming or exercising any acts of ownership over the lands, and if Thomas Dyer and those who claimed under him during all that time claimed and — 83 — exercised acts of ownership upon the lands, and paid whatever taxes were assessed upon them, the jury may presume an abandonment by,' and an ouster of, those under whom the plaintiff claims, which will preclude a recovery in this case.” To this point the court answered, “ That as stated it is correct, but is the point sustained by the evidence?” And then say that “ the only acts of ownership exercised by any of the parties are testified of by John Stoddart, whose evidence is as follows: ‘I have known Dyer and Bradshaw being up frequently looking after these lands, and exercising acts of ownership over them. They claimed them, offered them for sale, and sold a good many of the adjoining tracts. I was never on the land.” Then comes the payment of taxes for the years 1829, ’30, ’32, ’33, ’34 and ’35. It does not appear that other taxes were assessed upon the lands. Next we have the taking out of the patents in 1824. It does not appear that Morris, or other persons for him, ever exercised acts of ownership over, or paid any attention to, these lands until 1838. Now, while the court affirm the proposition assumed on this point as correct,- they instruct the jury that the facts in the case, as contained in the evidence, do not show such acts of ownership, and such payment of taxes by the defendants and those under whom they claim, as from them the jury can presume an ouster of the plaintiff, and such an abandonment of the land by him as will defeat his title.” It is perfectly clear that the court answered this point as favourably for the defendants as they had any right to claim. An ouster of the plaintiff, or those under whom he claimed until shortly before the commencement of this action, was entirely out of the question; for there was not even a spark of evidence given, going to show that Dyer or Bradshaw ever were on the land in dispute, or ever directed any act as owners to be done on it. And although John Stoddart does testify that he knew of their exercising acts of ownership over it, yet it is manifest that he only meant that they claimed it and offered it for sale, for he swears he never was on the land, and of course never could have seen them do any act of any kind on it. It lay in the midst of a wilderness, only visible to those who actually went on it, a thing that the witness never did. Paying taxes merely for land, without more, by a stranger, can neither amount to an ouster, or devest the owner of his title to it. And as to abandonment, this can never be presumed from lapse of time, where the plaintiff, and those from whom he derives his title, claimed and held the land, as in this case, under warrants and surveys, upon which the whole of the purchase money had been paid to the Commonwealth. Nothing short of an actual ouster of the owner from the land, in such case, by taking possession of it, and continuing to keep the same, by exercising acts of ownership at least upon it, for twenty-one years or upwards, will defeat the owner of his right to the land. But if he lies by for twenty-one years under such circumstances, with — 84 — out making an entry upon the land, or bringing his action of equivalent for it, he will be barred by the statute of limitations. The fourth point of the defendants was ei That the patents given in evidence, under which the defendants claimed, were prim&faaie evidence of title, and would entitle the defendants to a verdict, unless the plaintiff had shown a better title.” To which the court answered “ that the point is correct, but then it remained to be ascertained, whether the plaintiff had not shown a better title. For if the person obtaining the patent be not entitled to it, he acquires no title thereby. He cannot recover the land unless entitled to the patent. Our inquiry therefore is, were the heirs of Thomas Dyer entitled to this patent ? If not, it cannot defeat the plaintiff’s right to recover. The plaintiff sets up a title prior to the patent, and is not to be affected by the recitals in it. It appears that Jacob Eyerly paid the purchase money to the State, and that Christ and Rice, the warrantees, conveyed to him. The deeds duly proved are a part of the plaintiff’s title. Nothing was done by Dyer or his heirs to authorize the issuing of the patents to them. One of the warrantees has testified before you that he gave no other deed than the one here given in evidence. The heirs of Thomas Dyer were then even the persons to whom the patents for these lands ought to have issued, and as against the elder title of the plaintiff, it cannot avail them to defeat his recovery.” We think the answer of the court to this fourth point of the defendants below perfectly correct, and that the facts given in evidence, and the reasoning of the court in regard to them, show conclusively that the heirs of Thomas Dyer, to whom the patents were issued, had no right whatever to claim them. The right now vested'in the plaintiff below, entitled whoever was invested with it at the time, to have had the patents; consequently, the plaintiff has the right to recover the land, in the same manner as if the patents had been issued to him, or any of those from or through whom he has derived his title. The fifth point of the defendants was “ That if the jury believed that Thomas Dyer procured the survey to be made by George Palmer, D. S., for himself, in pursuance of an arrangement between Robert Morris, or Eyerly, and himself; then this is a circumstance, taken in connexion with the neglect of Morris to perfect his title, or to look after the land, from which the jury may infer that Dyer had title to the lands.”- To this the court replied “ that there is nothing in the case upon which this point can be raised. There is no evidence to sustain it.” In this reply the court were no doubt correct, for there does not appear to have been a single tittle of evidence given, tending to show that Thomas Dyer procured the survey to be made for himself, or indeed for anybody else, either under the Christ or the Rice warrant; and without some evidence tending to prove that it was so, it would have been — 85 — error in the court to have submitted it as a fact to the jury which they might find or pass on. The sixth point was “ That the patents conveyed the legal title to these lands to the heirs of Thomas Dyer. That if William Abbot be a bona fide purchaser without notice, the plaintiff could not recover, even if otherwise entitled, without having tendered the costs of the patents with interest, and the amount of taxes paid by him with interest, before suit brought.” To this the court answered, “ If a man wrongfully obtain a patent, and, under claim of it, pay taxes, he cannot raise an equity in himself or his vendee, as against the real owner, to be reimbursed for the costs of patenting and taxes. If he have a right to the patent, he holds the land. The plaintiff was not bound to pay for a patent granted against his title in subversion of it, and even given in evidence to defeat it; nor for the taxes paid by the person claiming that patent. It was issued to his injury and in wrong; and neither the wrongdoer nor his vendee can recover from the person injured what they thus paid.” We perceive nothing incorrect in this answer of the court. The court in their answer speak of the patentee as a wrong-doer; that is, as having obtained the patents wrongfully, or without right; a fact which, according to the evidence, cannot be questioned. This being the case, it would be strange indeed if either he or his vendee could claim to be reimbursed money laid out in the performance of such a wrong, by the party against whom the wrong was committed; or, in other words, for attempting to defraud or cheat him out of his title to the land. Mr Abbot, the vendee, cannot be considered in the light of an innocent purchaser, for he was bound, at his peril, to know the imperfections of the title he purchased, and is entitled to no favour or protection that the patentees could not claim. The remaining errors assigned are to the charge of the court; the first of which is an exception to what the court “ said respecting the effect of the proceedings before the board of property.” We however are unable to discover any error in what the court said relative to these proceedings. On the 11th of June 1792, Jacob Eyerly entered a caveat against Thomas Dyer and Thomas Wright’s obtaining patents for the land in dispute. Eyerly claimed the lands by virtue of the warrants in the names of Christ and Rice respectively; but under what rights Dyer and Wright claimed does not appear until the 5th of August 1795, when Dyer entered a caveat against the Betsy Rice warrant, claiming the land under an older warrant of 1784 in the name of John Carlisle. During the pendency, however, of the caveat entered by Eyerly, he, on the 11th of February 1793, sold and conveyed the Christ and Rice warrants, with the lands claimed under them, to Robert Morris, who, by letter dated April 19th 1793, after stating therein that he had purchased of Jacob Eyerly, Jun. the lands in contest between said Eyerly and Thomas Wright, (not Dyer, observe), as — 86 — well as the right of the said Thomas (Wright), requested therefore that the caveat entered by the said Eyerly might be dismissed. The court below instructed the jury that “ there was nothing in these proceedings, in themselves or connected with any other part of the case, which could prevent the plaintiff from recovering;” and in doing so we think they were right. It was argued, however, that Morris, by withdrawing the caveat entered by Eyerly, gave up the contest with Thomas Dyer for the land. But Morris, by the terms of his letter, only withdraws the caveat as to the lands in contest between Eyerly and Thomas Wright, and not as to those in contest between Eyerly and Thomas Dyer, assigning also at the same time his reason for doing so, to wit, that he purchased the right of Eyerly and Wright thereto. So that it is perfectly clear that Morris, by withdrawing the caveat as to the lands which had been in dispute between Eyerly and Thomas Wright, intended to concede or give up nothing whatever to Thomas Dyer: and of this, the caveat entered upwards of two years afterwards, on the 5th of August 1795, by Thomas Dyer, against the owner of the Betsy Rice warrant obtaining a patent founded upon it, is complete confirmatory evidence. For it shows to demonstration that as late as August 1795, he had no claim to the land whatever by virtue of the Betsy Rice warrant, but claimed it under an older warrant, as he then alleged, dated in 1784, in the name of John Carlisle. Indeed, it does not appear from the evidence that Thomas Dyer ever, at any time, claimed the lands in dispute, or any part thereof, by virtue of the Christ or Rice warrants, or either of them, or that he ever pretended any claim to the warrants themselves; but it would seem rather that his heirs in 1824, after his death, fabricated deeds in the names of John Christ and Betsy Rice, the warrantees, for the purpose of enabling them to obtain the patents which the defendants gave in evidence, which, as has been shown, cannot avail or aid the defendants in the least. , The second error to the charge of the court is an exception to what the court “ said to the jury respecting the conveyance to the North American Land Company.” This part of the charge of the court has been referred to and shown to be correct in our notice of the defendants’ first point above; and therefore need not be considered again. The third and last ground of error to the charge of the court is, that they took the whole case from the jury, and left nothing for them to decide. The facts upon which the plaintiff below founded his claim, appear to have been clearly and incontrovertibly established by the evidence adduced in support of them : no evidence whatever appears to have been given by the defendants tending to disprove them in any degree whatever. This being the case, we think that the court were justified in saying, as they did, to the jury, in the conclusion of their charge, that “ there did not — 87 — appear any defect in his (the plaintiff’s) title, or anything to have been shown by the defendants which ought to prevent his recovering.” Judgment affirmed.