#### *Vaughan v. Doe on Demise of Green.

June, 1829.

Wills — Not Duly Executed as to Real Estate — Effect after Seven Years.* — Will, disposing of real and personal estate, but not duly executed as to the real, was admitted to probat by county court, in general terms, in 1785, and never contested: Held, this was full probat; the heir could only have contested the will, by bill in chancery, within seven years; and he, instead of so contesting it having taken as devisee under it, it must be now regarded as a complete will of lands.

Bills of Exception.† — Defendant in ejectment, relies on 20 years adverse possession, as a bar: verdict against him, which he moves court to set aside, as contrary to evidence: court overrules the motion: then, he moves court to certify the facts that were proved, which went to establish his 20 years adverse possession: this the court refuses to do. Held, the court was right in so refusing. Quaere, Whether, if the judge, in such case, refuse to certify a proper state of the facts proved, the party may take an exception for that cause, and appeal from the judgment? or ought to tender a fair and full state of the facts proved, and upon the judge refusing to certify it, take evidence of its fairness, and then ask the appellate court for process to compel the judge to sign and seal it?

*105Ejectment for a small parcel of land, brought by Green against Vaughan, in the circuit court of Halifax. Vaughan filed two bills of exceptions to opinions of the court given at the trial. There was a verdict for Green. Vaughan moved for a new trial: the court overruled the motion, and he excepted to this opinion also. Judgment was then given upon the verdict; and- Vaughan appealed to this court.

1. The first bill of exceptions stated, that Green, who claimed title under William Boyd, in order to shew that he (Green) and those he claimed under, had been in possession of the land in controversy, since the grant thereof to col. Byrd, the x3atellfee> offered in evidence, 1. A paper purporting to be a will of William Boyd, wherein all his lands as well as his personal estate, were given to his wife and children: this paper was dated January 2d 1/85, and though it appeared not to have been dulj- executed as a will of lands, the county court of Halifax, at September term 1785, stating that it was exhibited in court as the will of Boyd, and proved by the oaths of two witnesses, admitted it to probat in general terms, recorded it, and granted administration with the will annexed to the testator’s widow. *2. An instrument, indorsed on the original will, signed and sealed by Francis Boyd, eldest son and heir of the testator, dated January 5th 1785, whereby reciting that his father had died before he could complete his will, he assented to and confirmed that incomplete will, and relinquished all right and claim to the lands left by his father, except to a share thereof under the will: he acknowledged this deed in the county court, at the same time the will was proved, and it also was recorded. 3. A report of commissioners, appointed by the county court of Halifax, to divide the lands of the testator William Boyd among his children, returned to the court, and recorded September term 1789; whereby one share of land was allotted, in the partition, to the testator’s son Francis Boyd, and another share to his son William Patrick; in one or the other of which (it appeared) the land in controversy was included. 4. A deed from William Patrick Boyd to his brother Francis, dated October 16th 1792, and duly recorded ; whereb}7 all the land allotted to William Patrick, in the partition of his father’s estate, was conveyed to Francis. 5. The will of Francis Boyd, dated October 24th 1802, and duly proved January 24th 1803; whereby he devised all his lands to his wife Clarissa for life, remainder to his children. And 6. A deed from Francis Bo37d’s devisees to Green, the lessor of the plaintiff, dated September 26th 1810, and duly recorded; whereby they conveyed to Green a tract of land devised to them by Francis Boyd, of which (it appeared) the land in dispute was claimed as parcel. Whereupon, Vaughan’s counsel objected to the two papers first above mentioned, (that purporting to be the will of William Boyd, and that indorsed thereon, purporting to be the deed of his heir Francis Boyd) going in evidence to the jury: but the court allowed these papers to go in evidence to the jury, connected with the other evidence in the cause, for the purpose of proving the possession of Green and those under whom he claimed. Vaughan excepted.

'*The second exception stated, that Vaughan, having introduced witnesses for the purpose of proving, that he had been in possession of the land in dispute, from the latter part of the year 1801, till the institution of this suit, moved the court to instruct the jury, that Green could not succeed in this action, unless he proved that he, or those he claimed under, had been in actual possession thereof within twenty 37ears next before the commencement of the action. This instruction the court refused to give; but it instructed the jury, that, if it should find that Vaughan had held adverse possession for twenty years next before the commencement of the suit, such possession would be a bar to this action. Vaughan excepted.

The third exception was in the following words: “Beit remembered, that after the jury had rendered a verdict in this cause, the defendant’s (Vaughan’s) counsel moved the court for a new trial, because the verdict was contrary to evidence, the defendant having relied that there was an adverse possession in him and those under whom he claimed, for more than twent37 years before the institution of this suit: and the court having overruled the motion for a new trial, the defendant’s counsel requested the court to certify the facts which were proved, which went to establish the defendant’s adverse possession for twenty years before the institution of this suit: but the court refused to certify the said facts, as requested by the defendant’s counsel; and stated that such facts were insulated, and therefore it refused to certify them. And to such opinion of the court, in overruling this motion for a new trial, and in refusing to certify the said facts, the defendant’s counsel excepted &c.”

Johnson, for the appellant,

said, he could not see how the will of William Boyd and the deed of his heir at law assenting thereto, mentioned in the first exception, and objected to as inadmissible evidence, could, both or either, be at all relevant to the point to which it was adduced, namely, the possession of the Boyds (under whom Green- claimed) at Kthe dates of those papers. They only shewed, that W. Boyd, and his family after his death, claimed a right to the land ; they did not, they could not, shew possession according to the right claimed. Evidence of a claim was not proper evidence of possession. The will of W. Boyd was not well executed as a will of lands; and though the probat of it in the county court be expressed in general terms, yet the probat ought to be referred to the personal subject, as to which it was a good testament. This paper then proved nothing. The deed of the heir at law, indorsed on the will, was certainly not proper evidence: there was no proof of the execution of it; for, as it was not such a deed as the county court had jurisdiction to receive proof of, the record of the acknowledgment and registry of it there, was not proof of execution. Illegal or improper evidence, however unimportant, ought never to be left to the jury: *106per Pendleton, P., in Lee v. Tapscott, 2 Wash. 281, 2; Brown v. May, 1 Munf. 291. Neither ought evidence wholly irrelevant to be admitted, for it can only tend to confuse the jury. See Turner v. Fendall, 1 Cranch, 132.

Upon the second exception, he contended that the instruction proposed by Vaughan, ought to have been given to the jury. Vaughan having proved continual possession in himself, and that unqualified, for twenty years next before the institution of the suit, it behoved Green to prove an actual entry, in order to sustain this action. This was the true meaning of the proposition which Vaughan contended for; and, thus understood, the proposition was correct.

The court erred, in refusing to certify the facts proved touching the point, on which Vaughan insisted that the verdict was contrary to evidence. He relied on twenty years adverse possession in himself, as a bar to the ejectment: if he proved such possession, he was entitled to a verdict: and, therefore, though the facts relating to that point, might have been unconnected with other facts in proof, or (in the language of the court) insulated, yet the party had a right to require that the facts proved touching the possession, should *be stated and certified by the court, as those were the facts, upon which the motion for a new trial was to be determined.

Leigh, for the appellee,

contended, that the will of W. Boyd professing to devise the land in 1785, whether the devise were valid in law or not, and the deed of his heir at law relinquishing his right to the land by descent, and agreeing to take a share of it by devise, were acts of ownership exercised over it; and, as no possession inconsistent with the right asserted, was pretended to have existed at the time, and as, in 1789, the land was actually divided among the testator’s devisees, so that it was then certainly in possession of his family, the will and the deed of the heir, taken in connexion with the subsequent partition, was evidence, circumstantial if not direct, that W. Boyd at the date of his will, and his family after his death, held the possession. The will was' admitted to probat, not only as a will of personalty, but generally as the testator’s will; and whether the judgment of the court of probat, was right or wrong, it was too late to correct or even to question it. The deed of the heir, assenting to and confirming the devises contained in the will, was apparently a piece of evidence of little importance; but it appears to have been the original deed that was offered in evidence, not an office copy; it was an apcient deed, in conformity with which, as confirming the previous questionable devise of the ancestor, the land was thenceforth held by, and afterwards divided among, the devisees; and such an ancient deed proved itself. Phil. Ev. (N. York edi. 1820) p. 404. Besides, in Lee v. Tapscott, 2 Wash. 276, an office copy of an ancient patent, recorded in the county court, which never had jurisdiction to record patents, was held to be admissible evidence.

As to the second exception, he said, that the instruction which the court was asked to give the jury, was, that Vaughan having adduced evidence for the purpose of proving possession in himself for twenty years next before the ejectment was brought, it was necessary to sustain the action, *that Green should prove that he, or those he claimed under, had had actual possession within the twenty years: that is, as the proposition was propounded to the court, that the introduction of evidence tor the purpose of proving his possession, whether the evidence should be satisfactory proof of the fact to the jury or not, and whether if it proved his possession, that possession were an adverse one or not, was enough to put Green to the proof of actual possession in himself or actual entry within the twenty years. And that the court so understood the proposition, and therefore refused to give sanction to it, was manifest from the instruction which it did give: that if Vaughan had held adverse possession for twenty years next before the ejectment was brought, that would be a bar to the action. And this instruction was, undeniable, the law upon the point.

The third exception, he said, might have been -inaccurately penned; yet this court could only look to the record for the state of the case. According to the record, Vaughan asked the court to state and certify “the facts which were proved, which went to establish his adverse possession for twenty years,” not, all the facts in proof, in relation to that point. Well might the court say, that the facts it was required to certify, were insulated, and refuse to spread a partial state of the case on the record.

A question was made, upon the third exception, and discussed at the bar, but was not noticed in the opinion of the court, Whether, if a motion for a new trial, on the ground of the verdict being contrary to evidence, be overruled by the court, and the court then refuse to state and certify the facts proved at the trial, the party may take an exception to such refusal of the court to state and certify the facts proved, and complained of that as error, in the appellate court? Or, whether, in such case, it be not the proper and the onlj' course for the party aggrieved, to have a correct state of the facts proved at the trial, set forth in a bill of exceptions, and require the judge to put his seal thereto, and if the judge refuse, then to take affidavits that his state of the facts *is correct, and apply to the appellate court for process to compel the judge to sign and seal his bill of exceptions?

*

Wills — Probate—Conclusiveness.—On this question the principal case is cited in *foot-note*to Parker v. Brown. 6 Gratt. 554; Robinsons v. Allen, 11 Gratt. 787; Ballow v. Hudson, 13 Gratt. 678 (see foot-note). See monographic *note*on “Wills.”

†

Bills of Exception. — The principal case is cited in Jackson v. Henderson, 3 Leigh 216; Page v. Clopton, 30 Gratt. 423; Henry v. Davis, 13 W. Va. 248. See monographic *note*on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.

CARR, J.

The proper court of probat, in 1785, admitted the paper purporting to be the will of William Boyd, to full probat, had it recorded, and granted administration under it. There has never' been any bill filed, or attempt made in any other form, to impeach it. And, in 1823, thirty-eight years after the probat, it is objected, that this will shall not be introduced in evidence, in a contest about the lands held under it. I do not think this objection can be sustained on any ground. In Bagwell v. Elliott, 2 Rand. 198, West v. West, 3 Rand. 373, and Nalle v. Fenwick, 4 Rand. 585, this court decided, that a will admitted *107to probat by the proper court, could only be contested by hill; and that, no party appearing within seven years to contest the will, “the probat shall be forever binding.” The circuit court, therefore, committed no error in suffering this will to go to the jury. Nor can I see what possible effect the instrument indorsed on the will could have: it could neither add to nor take from the will, being merely the assent of the heir.

The second bill of exceptions states, that the defendant introduced witnesses for the purpose of proving, that he had been in possession of the land in controversy, more than twenty years; and then moved the court to instruct the jury, that the plaintiff could not support ejectment, unless he, or those under whom he claimed, had been in actual possession of the land within twenty years. The court refused, but instructed "the jury, that if it should be of opinion, that the defendant had had adverse possession of the land, for twenty years before the institution of the suit, such possession would bar the plaintiff’s right to recover in this action. Ejectment is an action of trespass. When first this remedy was applied to the trial of disputed titles, the term was created, by the party claiming title making an actual entry upon the disputed premises, . accompanied by another, to whom, while on the lands, he sealed and delivered a lease for years, It *is from the necessity of this entry, that the remedy by ejectment is confined to cases, in which the claimant has a right to the possession: where only a right of property, or a right of action, remained to him, the entry would be illegal, and of course nol sufficient to enable the party making it, to convey a title to his lessee. And, as the principles of the action remain the same, though the proceedings be changed, the right to make an entry is still requisite, though no actual entry be now necessary. Whatever takes away this right of entry, and turns it to a right of action, deprives the claimant, of the remedy by ejectment, though the legal title may still remain in him. Our statute of limitations (following 21 Jac. 1, c. 16, § 1,) enacts, that “no person, who hath any right or title of entry into any lands &c. shall make any entry but within twenty years after such right or title accrued;” saving to persons under the disabilities enumerated in the proviso, ten years after such disabilities removed. The possession of the defendant gives him a right against every man who cannot establish a good title; the plaintiff, therefore, must recover on his own strength. The defendant may meet his claim, either by shewing title in himself and those under whom he claims, or he may rest intirely on his possession; when he does this last, he must shew in himself and those under whom he claims, a possession of twenty j^ears adverse to the claim of the plaintiff. When he relies on possession, the idea of right is excluded. 9 Johns. Rep. 180. Nothing less, therefore, than the twent3' years required by the statute, will do; nor even this, if the plaintiff can bring himself within any of the savings. The circuit court, then, was right in refusing to instruct the jury, that the plaintiff must shew actual possession within twenty years; and the instruction given would have been intirely correct, if after telling the jury, that twenty years adverse possession, if proved by the defendant in himself and those under whom he claimed, would bar the plaintiff’s action, the court had added, unless the plaintiff could bring himself within some saving of the statute. This omission however *is of no moment, as the plaintiff against whom it was calculated to operate, was satisfied with it.

Then, as to the third exception. In the case of Bennett v. Hardaway, 6 Munf. 125, there was a verdict for the plaintiff on the general issue: a motion fora new trial was made, and overruled: the defendant excepted to the opinion of the court, and prayed that the evidence might be certified of record, and that being done, appealed. This court, upon reasons given at large, shewing the inconvenience of the practice, was of opinion, that the bill of exceptions, because it brought up the whole evidence, was net properly taken, and therefore furnished no ground to reverse the judgment : it therefore affirmed it. But, taking up a point not then before it, the court proceeded thus: “Whether a party can, on overruling a motion for a new trial, on the alleged ground of the verdict being contrary to evidence, require the judge to state in a bill of exceptions, the facts as they appeared in evidence to him, and carry up the case to the appellate court thereupon, is a different question. We are inclined to think, it has been affirmatively settled, by the admissions of this court, and the practice of the country.” After several further remarks, tending to shew the advantages of this mode of proceeding over the other, the court concluded thus: “For this reason, and because we see none of the evils resulting, which exist in the case before us, we should be disposed to entertain a *bill*of exceptions of the description last mentioned.” I do not consider this case as settling, authoritatively, the question, whether an appellate court can reverse the decision of an inferior tribunal, refusing a new trial moved for on the ground of a verdict being contrary to evidence; nor have I met with any case in our books, where the point has come directly before the court, and been discussed and examined: yet it seems to be considered as settled, and (my brethren think) correctly settled by the above case, and others that have since passed sub silentio. If this were still an open point, I confess I should think, with the supreme court of *the U. States,* that an appellate court ought not to review the decision of the court who heard the evidence. It seems to me impossible, that any certificate, either of the whole evidence, or of the facts which the court ma3r certify as proved, can give to the appellate court such a view of the real ground, as to enable it to pronounce upon the judgment of the court below: it cannot see or hear the witnesses: and when the jury has found the *108verdict, and the court which presided agrees with it, I should think it safest for the ends of justice, and best for the parties, that there should be an end to the matter. This, however, is my opinion simply: the point is considered as settled differently.

But still, I think, the court, in the case before us, committed no error in refusing the certificate asked for. The counsel (it will be remarked) did not ask for a certificate of all the facts that were proved, touching the adverse possession, but of such facts only as went to establish his adverse possession. If the court had complied with this request, we should have been presented with the evidence on one side only, all the countervailing evidence, being shut out. The very reason which the court gives, for refusing to certify as requested, shews that it so understood it; such evidence (it said) would be insulated. The court was clearly right in refusing to give this one-sided certificate.

I think the judgment must be affirmed; with less hesitation, indeed, as this is an action in which a judgment does not preclude another trial of the right.

The other judges concurred; and the judgment was affirmed.

*

That court lias repeatedly so decided, and that in cases from Alexandria, where the law of Virginia is the law of the land. Henderson v. Moore, 5 Cranch, 11; Marine I. C. v. Young, Id. 187; Same v. Hodson, 6 Cranch, 208. — Note in Original Edition.