# Kelly v. Jackson

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United States Supreme Court
31 U.S. 622
Kelly v. Jackson
ERROR to the Circuit Court for the southern district of New York.
The pleadings and the facts in this case, with the addition of those particularly noticed in the opinion of the court, were the same with those in the preceding case of Crane v. Jackson.
On the trial in the circuit court, after both parties had closed their proofs, the counsel for the defendant submitted to the circuit court the following points in writing, on the question of a delivery of the settlement deed; upon which points the said counsel prayed the circuit court to charge and instruct the jury as matters of law arising upon the proofs and allegations of the parties.
I. It was necessary to the validity of the deed that it should have passed into the hands of the trustees, or some person for them, with intent that it should take effect as a conveyance.
2. Roger Morris was a grantor, or stood in the character of a grantor in that deed.
3. The possession by Morris of one part of the deed does not in itself furnish any evidence of a delivery.
II. The fact the Morris and wife were in possession of the land before the revolution, taking the rents and profits, is not in itself any evidence either for or against the validity of the deed; because they were entitled to the possession whether the deed was delivered or not.
(2.) The holding from the marriage to the attainder, cannot be said to have been under the settlement deed, until it is first ascertained that the deed had been delivered.
III. The evidence arising from the proof of the deed by William Livingston, is no more conclusive upon the question of a delivery of the deed, than that arising from proof of the hand writing and death of the subscribing witnesses.
(2.) In either case it is only prima facie evidence, or evidence from which a delivery may be presumed, and may be rebutted by direct or circumstantial evidence, which raises a contrary presumption.
(3.) The evidence of a delivery, arising from the proof of the deed by William Livingston, and the proof of the handwriting and death of the subscribing witnesses, is only presumptive evidence, and may be rebutted by evidence of the same character.
IV. In the absence of any direct evidence that the trustees, or any other person for them, ever had the deed, and the possession being equivocal in its character, the fact that the deed came out of the hands of Morris in 1787, is sufficient of itself to rebut any presumption of a delivery arising from the proof of the deed by William Livingston, or the proof of the handwriting and death of the subscribing witnesses.
(2.) If not sufficient of itself to destroy any presumption of a delivery, it is, at the least, evidence against a delivery, to be considered and weighed by the jury.
V. If the jury, from the evidence, believe that the deed was signed and sealed on the day of its date, and that all William Livingston and Sarah Williams witnessed was what took place at that time, and that the deed was not delivered before the execution of the Beekman deed, on the 18th of January 1758, then there is no evidence of a delivery.
(2.) If the jury, from the evidence, believe that the deed was signed, sealed and witnessed on the day of its date, and that it was not delivered before the 18th of January 1758, then there is no evidence of a delivery.
VI. The acts and omissions of Morris and wife, so far as they go to induce the belief that the deed was not perfected by a delivery, are of the same force and effect against the children and their grantee, as they would be against Morris and wife themselves.
VII. Although the deeds to Hill, Merrit, and Rhodes, would, in law, be a good execution of the power contained in the settlement deed, supposing it to have been duly delivered; yet, upon the question whether that deed was or was not perfected by a delivery, those deeds are competent evidence from which the jury are to judge whether Morris and wife acted as tentants for life, or as the owners of the land in fee.
VIII. The evidence upon the one side or the other should not be submitted to the jury as prima facie or presumptive evidence either for or against a delivery, but the jury should consider and weigh the whole evidence together, and from the whole determine whether or not the deed was delivered. And thereupon, after the said cause had been summed up to the jury by the counsel for both parties, the opinion and decision of the said circuit court upon the said several points was delivered in substance as follows, to wit:
Upon the first point, the circuit court gave the instruction therein prayed for to the jury.
Upon the second branch of the first point, the circuit court refused to give the instruction as prayed, saying that, strictly speaking, Morris could neither be considered as grantor or grantee in the settlement deed, and, therefore, the mere possession of the deed by him was no affirmative proof on either side as to the fact of delivery; to which decision of the circuit court the counsel for the defendant, then and there, on the trial, also excepted.
Upon the second point, the circuit court gave the instruction therein prayed for to the jury.
Upon the second branch of the said second point, the circuit court overruled and refused to give the instruction therein prayed for to the jury; to which said decision and opinion of the circuit court, the counsel for the defendant, then and there, on the said trial, also excepted.
Upon the third point, and the second and third branches of the same, the circuit court gave the instruction therein prayed for to the jury.
Upon the fourth point, the circuit court overruled and refused to give the instruction therein prayed for to the jury; to which said opinion and decision of the said circuit court, the counsel for the defendant, then and there on the said trial, also excepted.
Upon the second branch of the said fourth point, the circuit court overruled and refused to give the instruction therein prayed for to the jury; the court considering Morris technically neither grantor nor grantee, and therefore the mere possession of the deed by Morris was no affirmative evidence either for or against the fact of delivery; to which said decision and opinion of the said circuit court, the counsel for the defendant, then and there, on the said trial, also excepted.
Upon the fifth point, the said circuit court overruled and refused to give the instruction therein prayed for to the jury; to which said decision and opinion of the said circuit court, the counsel for the defendant, then and there, on the said trial, also excepted.
Upon the second branch of the said fifth point, the said circuit court overruled and refused to give the instruction therein prayed for to the jury; to which said decision and opinion of the said circuit court, the counsel for the defendant, then and there, on the said trial, also excepted.
Upon the sixth point, the said circuit court gave the instruction therein prayed for to the jury.
Upon the seventh point, the said circuit court gave the instruction following: 'although the deeds to Hill, Merritt, and Rhodes, would in law be a good execution of the power contained in the settlement deed, supposing it to have been duly delivered; yet, upon the question whether that deed was or was not perfected by a delivery, those deeds are competent evidence, from which the jury are to judge whether Morris and his wife acted under the settlement deed, or as the owners of the land in fee, independent of the settlement deed; to which said decision and opinion of the said circuit court, the counsel for the defendant, then and there, on the said trial, also excepted.
Upon the eighth point, the said circuit court overruled and refused to give the instruction therein prayed for to the jury, and refused to submit the question of a delivery of the deed to the jury, in the manner or upon the principles stated in the eighth point, and said that the plaintiff had given prima facie evidence in support of his case, and such as was conclusive if uncontradicted; and that this must be contradicted or disproved by controlling evidence on the part of the defendant, or the plaintiff was entitled to recover; to which said opinion and decision of the said circuit court, the counsel for the defendant, then and there, on the said trial, also excepted.
The case was argued by Mr Beardsley and Mr Hoffman for the plaintiff in error; and by Mr Ogden and Mr Wirt for the defendant.
The counsel for the plaintiff in error presented in their argument the following points for the decision of the court.
The plaintiff below should have been non-suited.
Unless the marriage settlement release of 1758 was accompanied or preceded by a lease, it could only operate as a deed of bargain and sale, and the statute of uses could only execute the first use.
The recital of a lease in the release, was competent evidence to prove that a lease was originally executed, but was not, until the non-production of the lease was accounted for, competent evidence of the contents of such lease. The lease, therefore, should have been produced or its non-production accounted for.
The court erred in instructing the jury 'that strictly speaking Morris could neither be considered as grantor or grantee in the settlement deed;' the instruction should have been that Morris 'was a grantor or stood in the character of a grantor.
The court erred in instructing the jury that the mere possession of the deed by Morris was no affirmative proof on either side as to the fact of delivery.
The court erred in refusing to instruct the jury that in the absence of any direct proof, that the trustees, or any other person for them, ever had the settlement deed, and the possession being equivocal in its character, the fact that it came out of the hands of Morris in 1787, was sufficient of itself to rebut any presumption of a delivery arising from the proof of the deed by William Livingston, or the proof of the hand writing and death of the subscribing witnesses.
The court erred in refusing to instruct the jury that 'in the absence of any direct proof, that the trustees, or any other person for them, ever had the settlement deed, and the possession being equivocal in its character, the fact that it came out of the hands of Morris, in 1787,' 'if not sufficient of itself to destroy any presumption of a delivery, was, at the least, evidence against a delivery to be considered and weighed by the jury.'
The court erred in refusing to instruct the jury, that if they believed the deed was signed and sealed on the day of its date, and that all William Livingston and Sarah Williams witnessed, was what took place at that time, and that the deed was not delivered before the Beekman deed on the 18th January 1758; then there was no evidence of a delivery.
The court erred in refusing to instruct the jury, that if they believed the deed was signed, sealed and witnessed on the day of its date, and that it was not delivered before the 18th January 1758; then there was no evidence of a delivery.
The court erred in refusing to instruct the jury, that the holding of Morris and wife, from the marriage to the attainder, could not be said to have been under the settlement deed, until it was first ascertained that the deed had been delivered.
The court erred in admitting in evidence the extracts from the journal of the assembly of New York.
The court erred in refusing to instruct the jury, that they should not look at the evidence upon one side or the other, as prima facie, or presumptive evidence, either for or against a delivery, but that they should consider and weigh the whole evidence together, and from the whole, determine whether or not the deed was delivered: and in instructing the jury that the plaintiff (below) had given prima facie evidence in support of his case, and such as was conclusive if uncontradicted; and that this evidence must be contradicted or disproved by controlling evidence on the part of the defendant (below), or the plaintiff was entitled to recover.
Mr Justice STORY delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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