#### *Smith vs. Morrow.*

*Forcible*Entry and Detainer.

Case 42.

Appeal from the Fleming Circuit; Wir. P. Roper, Judge:

*Practice. Notice to produce. Writings and proof of their contents. Evidence. Boundaries. Surveys Possession. Peases.*

Case formerly here.

Trial after the return of the pause.

It seems that where a writing is produced by one party, on notice from the Other, and after being -read is filed with the clerlt, and a new trial being awarded, the paper is afterwards improperly taken from the custody *235of clerk, ^ay compel ítspro.duption-

*234April 10.

Judge Owsdey

delivered the Opinion of the Court.

Morrow sued out from a *justice*of the peace a warrant against Hardage Smith, for a forcible entry and detainer, and such proceedings were thereon had as that Smith was found guilty by the inquest of the jury. The finding of the jury was traversed by Smith, and the cause brought to the circuit court. Issue was taken to the traverse by Morrow, and on trial in the circuit court, verdict and judgment *rendered against*Smith.

The case was then brought by Smith to this court, and the judgement was reversed and the cause remanded for further proceedings. The report of the case in this court is contained in 5th Lit. Rep-*210.*

Upon the return of the case to the circuit court, another trial was there had, and verdict and judgment again recovered by Morrow. From that judgment Smith has appealed.

The questions made by the assignment of error grow out of exceptions taken to the^opinion of the court at the last trial.

It appears that at the first trial a written agreement between Weathers Smith, (under whom Hardage Smith claims the land in contest,) and Morrow was, upon notice given to him by Smith for that purpose, produced as evidence by Morrow, and after being used before the jury, was again *handed to*Morrow, and that some days before the last trial, notice was again given by Smith to Morrow, for the latter again to produce the writing at the trial,'but on the trial when called on to produce the writing, Morrow refused to do so, at the same time neither admitting or denying the writing to be in his possession; whereupon the counsel of Smith moved the. court for a rule to compel Morrow to produce the writing, but the court refused *to make any*rule up*235on tbe subject, and informed the counsel of Smith that he was at liberty to prove the contents of the writing by parol evidence, which was done accordingiy.

where after the pa-par had been ty who produced it ^¡thoitits being committed to the th^olerk^fte cannot ^ ’ compelled to reproduce it.

The propriety of the refusal of the court to make the rule upon Morrow to produce.the writing, is the first point to which the attention of this court will be directed. If, after the writing had been produced on the first trial, it had been filed with the clerk among the papers of the cause, and not withdrawn by Morrow until the last trial, there would" certainly be much stronger reason for the rule which was applied for by the counsel of Smith. The obtaining the possession of the writing under such circumstances, and refusing to produce it for the inspection of the jury, might, with at least great plausibility, be contended to be a fraud upon the law and justice of the court, and would demand of the court an exertion of all legitimate authority to elude the-effects of such a fraudulent attempt.

But instead of being lodged with the clerk, the writing, after being used on the first trial, was retained by Morrow; and instead of its being proved that he had the writing with him, there is no evidence conducing to shew that Morrow ever had such a paper, except what relates to his possession at the previous trial; so that there is nothing in the cause going to fix fraud on Morrow in refusing to prodace the writing, *nor any thing to*distinguish this case *from the*common case of a party having the possession of a paper which his adversary coneeives would be useful to, him as evidence. In such a case it is no doubt proper that notice should be given to the party in possession of the paper to produce it; not however, as seems to have been sup-. posed by the counsel of Smith in the court below, to enable the party desiring th,e paper, through the instrumentality of the court, to compel tbe other party to produce it, but to enable him, in case the paper is not produced, to use secondary or inferior evidence as to the contents of tbe writing. The. best evidence in the power of tbe party must always be produced, and as written evidence in legal contemplation is superior to that of papal- testimony, it *236is incumbent on the party, before he can use parol testimony to prove the contents of a writing, to use all legal means to obtain the writing, and if it be in the possession of his adversary to notify him to produce it. But it is incompatible with the. most firmly settled principle of the common law, to compel a'party at law to give evidence against himself, which would undoubtedly be the case were the court to compel either party, at the instance of the other, to produce a paper which he might think would go to his prejudice.

No party to the action can be compelled by a coart of law to produce his papers *to*be given in evidence against himself.

But if he decline aftep due notice, the contents may be proved.

Declaration of the occupant made at the time of his settlement, of under whom and how he took the possession, arc . part of the *res*gesta, and competent to prove the manner and extent of the possession.

It was not therefore incorrect in the court to refuse the rule moved by the counsel of Smith, and to leave him to prove the contents of the writing by secondary- evidence.

It was proved that Morrow settled on the tract of land, -where he resided at the time of issuing the warrant by the justice, in 1794, and for the purpose of proving under whose title the settlement was made, a witness was asked by the counsel of Morrow, as to what were Morrow’s declarations as to the person under whom he settled, at the time of his settling upon the land; but the question was objected to by the counsel of Smith, and the objection overruled, and the question answered. The next point to be noticed is, was the court correct in permitting the witness to answer the question propounded?

The decision of the court, in suffering the question to he answered by the witness, is so obviously correct, that we have thought it. scarcely necessary to bestow any remarks upon it. The intention with which the settlement was made by Morrow, so unites and connects itself with the act of settlement, and has such an important influence upon the extent of the possession which was acquired by that settlement, that argument must surely be useless to prove the propriety in a contest like the present,, involving the extent of possession of a witness, whilst speaking as to the fact of settlement, also stating what the declarations of Morrow were in re-lation to the claim under which he settled at the time of his making the settlement. The declara ' *237iions which were then made as to the claim under which Morrow settled, are of themselves facts which connect themselves to, and form a part of, the fact of settlement and possession by Morrow; and as part of the *res*gesta, were doubtless properly allowed to be detailed in evidence to the jury.

Controversy on the, fact of possession.

Morrow’s ev' idence of possession.

The land in contest is claimed'by the parties under adverse interfering patents from the commonwealth; those under which Smith claims are two in number, one in the name of Weathers Smith for four hundred eighty-seven and a half acres, dated the 10th of May J785, and the other in the name of Charles Morehead for two hundred and three acres, also dated the 10th of May 1785; and Morrow *claims*under a patent to Wm. Trimble for seven hundred and fifty acres, dated the 18th of May 1800. One great object with Morrow on the trial in the circuit oourt, was to prove that by his entry, settlement and improvement of the land, he acquired the possession of all the land included within the boundary of Trimble’s patent, and which is also contained in the patents of Smith and Morehead under which Smith claims; and that the possession so acquired continued in him until the entry was made by Smith, which is complained of in the writ of forcible entry and detainer, sued out from the justice of the peace in this case. To that object the evidence of both parties was directed, on the trial, Morrow *endeavoring to establish the*possession of the land in contest at the date of the entry to be in him, and Smith endeavoring to. repel the fact, and prove that some years prior to the time of the forcible entry alleged in the warrant, the possession of the land was in him, under the elder patents of Smith and Morehead, and that he has retained the possession ever since.

To maintain the position contended for by him, Morrow proved that as early as 1794, he settled upon the land contained in Trimble’s patent, claiming under that patent, and that he has continued to reside thereon and extend his improvements ever since; and although his settlement was not originally made within the boundary of either of the patents under which Smith claims, he proved that as *238early as 1798, and before any possession was taken under the patents of Smith or Morehead, he extended his improvements within the boundaries of those patents; at the same time claiming to hold under Trimble. It was also proved that before he settled upon the land, Morrow married the daughter of the patentee Trimble, and that the settlement was made under a promise of the patentee to give him two hundred acres of the land; but there was no evidence introduced conducing to prove that any precise boundary for the two hundred acres, was a— greed on between Morrow and the patentee before the settlement; though it is to be inferred from the fact of Morrow having as early as 1798, extended his improvements within the patent boundaries of Smith and Morehead, and *other acts*of ownership which he is proved to have extended over the land, that Morrow understood he was to have, and expected to receive from the patentee, Trimble, a conveyance for the land in contest. There was no certified copy from the books of the surveyor, of the survey originally made for Trimble, introduced as evidence; but the patent of Trimble was used in evidence and that recites the survey to have been made for Trimble as early as July 1785; and it was satisfactorily proved that the boundary of the survey so recited in the patent, includes the land in contest. It was also proved, that in 1802 the patentee, Trimble, conveyed the land in contest, together with other land, to Morrow and R. Trimble, and that R. Trimble has since conveyed his interest to Morrow.

instructions, moved by Smith, overruled by the bourt.

After the evidence was through, the following instructions to the jury were moved by the counsel of Smith, but refused by the court, to-wit: “If Morrow, when he originally entered upon the claim of Trimble, had no metes and bounds or quantity of land assigned him, upon which he could make lawful entry, that his possession acquired is circumscribed to his actual close, until he received with R. Trimble a deed of conveyance from Win. Trimble, the patentee in 1802.”

The next question therefore is, ought the instructions moved to have been given?

We think not. There would have *been*great *239propriety in circumscribing the possession of Morrow to his actual close, provided, that whilst that possession continued, the claim of Trimble, under which it was held, had no prescribed and ascertained boundary; for, as the settlement of Morrow was made, and his improvements extended, under the claim of Trimble, it would be difficult, and indeed impracticable, to extend the possession thereby acquired beyond Morrow’s actual close, if there was no boundary to the claim of Trimble by which the possession could be circumscribed and limited. But it is apparent from the patent of Trimble, that his claim had been actually surveyed long before Morrow entered and settled upon the land; and as that *entry*and settlement was made under the claim of Trimble, though under a promise to give his son-in-law two hundred acres, the boundary of which was not defined, it is most reasonable to presume that by entering and settling upon the land, it was intended by Morrow to take the possession of the entire tract, as fully as could have been done by Trimble, if the settlement had been made by him. It is not designed to say, that if the settlement had been made by Trimble, he would thereby have gained the possession of his entire survey.

Settlement of the son-in-law of the former patentee within the interference between his patent and an elder grant unoccupied, under a promise of a gift of a certain number of acres, bur not demarked, gives the possession to the extent of the former patent.

If the original settlement were outside the elder patent, and after-wards the improvements extended within the elder patent, the possession of the interference commenced with that extension of the improvements within the elder grant.

Evidenqe *240raíití!ulied in conteftfor taxation, is tentC°mpe' hehart sur^6 rendered and not held the possession. that one of the parties

*239The settlement was not upon the land contained in either of the elder patents, which had then issued, and under which Smith now claims; and we should not *by construction extend*a possession lawfully taken, *outside*of the elder grants of others, so as to encroach upon and conflict with their legal right under those grants. But whilst it is conceded that the original settlement might not be construed to give a possession within the elder patents of Smith and Morehead, it is perfectly clear, that so soon as the improvements were extended within the boundary of those patents, a possession was acquired within those patents, not limited by the actual close or improvements, but extending to the limits of the boundary of Trimble’s survey, under which the settlement and improvements were made.

It results, therefore, that in refusing the instructions moved, the court did not err.

The next question relates to a decision of the court *240in rejecting, as incompetent evidence, copies oi various extracts, certified by the clerks of the county courts of the counties in which Morrow' resided, to be true copies, from the books of the commissioners of the tax in various successive years. It was con-ten^ed on the trial in the circuit court, and attempt-e(i to be proved by Smith, that as early as 1808 the possession of the land in contest was surrendered up to hy Morrow; and as evidence conducing to suPP01’t that position, the rejected copies of extracts from the books of the commissioners of the tax for the year 1803, and the successive years down to 1821, were offered to be read to the jury by him.

We are unable to discern the rule of evidence which can have been violated by the exclusion of those copies of extracts *from*the jury. From those copies, it would seem that Morrow has failed to enter for taxation the land in contest; and if in truth such has been his co.nduct, he may have been remiss in the discharge of his duty to the government, but the connexion between an omission to list the land for taxation and the fact assumed by Smith, that the possession of the land was surrendered to him by Morrow', is not perceived, so as from the fact of omitting to list the land, to infer the fact of a surrender of the possession. The motives for omitting to list land for taxation may be so various, that from the fact of omission, no unfavorable inference against a continuance of the possession can with propriety be drawn. Whether there be or be not a possession iu fact of land, depends not upon a faithful performance of his duties to government by the person claiming to be possessed. Government may fail to receive her taxes for land, and the possession thereof nevertheless retained by the delinquent; and in controversies about the possession, such as *the*present,to allow the claims of government or the delinquency of either party to the government to be drawn in question, would in its consequences, instead of casting any light upon the matter in issue, tend to embarrass and perplex the deliberations of the jury, by drawing their attention to irrelevant and impertinent subjects.

The remaining point made, by the assignment of *241errors, relates to the refusal of the court to award a new trial, on the motion of Smith.

New trial lefused.

*Talbot*and *Reid*for appellant; *Crittenden*for appellee.

That decision involved no question of law that was not decided by this court when this cause was formerly here, and we would again refer to that opinion for a full exposition of every legal question which relates to the merits of the contest. With respect to the facts involved in the application for a new trial, we would barely remark, that they were left with the jury, whose province it is to weigh the evidence and decide the facts; and we cannot say, that in coming to the conclusion it did, the jury has transcended its province, and found a verdict which should have been set aside on the ground of its being against evidence.

The judgment must be affirmed, with cost.