Bell v. Barron

The opinion of the court was delivered by Royce, J. In this case, the plaintiff undertook to show that the title, which once belonged to William Smith, had been acquired by Porter, his intestate, under the deed of certain persons professing to be the widow and heirs of said Smith. And the question to be determined is whether the evidence received by the county court, to prove that those persons were the widow and heirs of Smith, was legally admissible for that purpose. Those facts which go to make out a title by descent should be shown, like all others at issue in a court of law, by the best evidence of which the case, under its circumstances, will reasonably admit. It would, therefore, be required, where the facts were not ancient, that they should be proved by primary and direct evidence. But, in questions of this kind, the facts to be established are frequently of so remote a period that living witnesses cannot be called to testify directly to them. Under such circumstances, evidence of a less direct and positive character must of necessity be receiv-' ed, and any facts may be shown, to establish the heirship, which have a just and legitimate tendency to convince the mind. Hence it has long been settled, that, in tracing a distant pedigree, entries of births, marriages and deaths in the family bible, inscriptions on tomb-stones, declarations of deceased persons, who were members of the family, or in habits of peculiar intimacy with them, and even, as sometimes held, contemporaneous hearsay are competent evidence. The question at present is whether the recital in the deed to Porter, that the grantors were the heirs of Smith, should have been received as evidence properly tending to show that fact. In an ordinary case, such a recital in a deed poll would be treated as a mere declaration of the party executing the deed. As such it might operate as evidence against him, and those claiming under him, but not as evidence to affect other persons. Yet, in cases of pedigree, such recitals, as well as the act of executing and acknowledging a deed in the character of an heir, have sometimes been regarded as matters entitled to be weighed by a jury, like the other spe [310] cies of acts and declarations already mentioned. Notes to Stark. Ev., vol. 1, 169, and vol. 3, 1116. But, however it might be with such a recital uncorroborated, we have no doubt that it may, from subsequent events, acquire the force of testimony to affect third persons. And we think the present a strong case to illustrate the rule. It is the same, in effect, as if the grantors, in the deed- to Porter, had conveyed from time to time, in the professed character of heirs of Smith, to the several persons to whom Porter conveyed; or as if those grantors had entered upon the lands so conveyed, and held them in the character of heirs for thirty or forty years. The silence and acquiescence of all other persons, for so long a period, very strongly fortifies the conclusion that those grantors were in truth the heirs of Smith. We therefore consider that the recital in that ancient deed, in connection with the conveyances and possessions under it, was correctly admitted in evidence. Judgment affirmed.