#### Rowletts v. Daniel.

Argued Thursday, October 19th, 1815.

1. Evidence — Copy of Ancient Deed.* — A legally certified copy of an ancient deed, recorded on the grantor’s acknowledgment, and accompanied with possession of the land by the grantee, ought to be received as evidence, without any proof that the original is lost or destroyed.

2, Deed — Defective as Feoffment — Effect.—A deed, being defective as a feoffment, for want of proof of livery of seisin, may operate as a covenant to stand seised to use, and as such pass the title to the grantee, for the use is executed into possession by the force of the Statute of Uses.

See Rev. Code, 1st vol. ch, 90. sect. 14, p. 159.

3. Voluntary Deed — Limitation by Subsequent Deed. — A voluntary deed, duly recorded, operating as a covenant to stand seised to the use of the grantee, cannot be limited in its, effect by a subsequent deed from the grantor to a third person.

4, Deed to Stand Seised to Use — Subsequent Deed to Third Person — Effect,—After executing a deed operating by way of covenant to stand seised to use, the grantor cannot, by a deed to a third person, convert his own possession into a possession adverse to that of the grantee.

At the trial of an ejectment in the Superior Court of Dinwiddie county, in April 1812, the plaintiff, lessee of William .Rowlett and Daniel Rowlett, offered in evidence a copy, certified in the usual form, by the clerk of Dinwiddie County Court, of a deed executed by Henry Daniel, sen. (who was, at the time of executing the same, lawfully seised and possessed of the premises in the declaration mentioned,) to Henry Daniel, jun. (under whom the lessors of the plaintiff claimed,) dated the-day of-in the year 1765, and recorded, on the acknowledgment of the grantor, in Dinwiddie October Court of the same year ; and proved that the said Henry Daniel, jun. was in possession of the said land at the commencement of the American revolution, and some few years anterior thereto, during the lifetime of his father the *229grantor, and so remained in possession thereof until the year *1795. There was no evidence that the original was lost or destroyed. The defendant, Harlow Daniel, therefore moved the court to exclude the said copy from going in evidence to the jury, and, being over-ruled, excepted to the court’s opinion.

The plaintiff farther offered in evidence a deed poll from the said Henry Daniel, jun. dated the 20th day of June 1786, and duly acknowledged and recorded in the court of Dinwiddie county, (the said Henry Daniel, jun. being then lawfully seised and possessed of the premises in the declaration mentioned,) whereby he conveyed, by the words, “I have given, granted and delivered,” all his estate, real and personal, to his sister Hockey Rowlett, in consideration of natural love and affection, “to the only proper use and behoof of his said sister, her heirs and assigns forever,” with a clause of general warranty: and there being no livery of seisin endorsed on the said deed, or otherwise proven to have been made, the defendant moved the court to instruct the jury that the same was a deed of feoffment, and passed no estate in the land without livery of seisin, unless accompanied with actual possession by the feoffee ; but the court refused to give such instruction, being of opinion that the said deed operated as a covenant of the said Henry Daniel, jun. to stand seised to the use of the said Hockey Rowlett, of the premises in the declaration mentioned, and so the same passed thereby to the said Hockey Rowlett, the use being forthwith executed into possession by force of the statute of uses; to which opinion the defendant filed a second bill of exceptions.

The plaintiff also offered in evidence a deed from William Rowlett and Hockey Rowlett his wife, duly acknowledged and recorded in the court of Dinwiddie county, conveying the premises to the lessors of the plaintiff, dated the 16th day of April 1805 ; and it was proved, by parol evidence, that, after the execution of the deed recited in the second bill of exceptions, the said Henry Daniel, jun. remained in possession of the premises until the year 1795, and that then two deeds were executed between the said Henry Daniel, jun. and Harlow Daniel the defendant, which were set forth

in *h<ec verba ; the first being an agreement under seal, that the defendant should build a house on the premises, (the same being described as Henry Daniel’s land,) and have what land the said Henry Daniel should think proper for him to tend ; he paying 15w. annual rent; with liberty to the said Henry Daniel to turn him out of possession when he should think fit; the said Harlow Daniel disclaiming all right to the said land : by the second, the said Henry Daniel, jun. let his brother Harlow have the use of a small house, within his fence, eight weeks, until he built the house on the ground. Whereupon, the defendant moved the court to instruct the jury, that the execution of said two deeds just recited, being inconsistent with the tenantcy of a covenantor to stand seised to the use of another, limited the operation of the deed, in the second bill of exceptions recited, to that of a mere feoffment, so as that the same could not be construed to operate as a covenant to stand seised to the use of the feoffee therein named ; but the court over-ruled the said motion ; whereupon the defendant filed a third bill of exceptions.

And the defendant farther moved the court to instruct the jury, that the two deeds in the defendant’s third bill of exceptions recited, being inconsistent with the nature of a tenantcy by sufferance, were equivalent to a disseisin of the premises, committed by the said Henry Daniel, jun. against the said. Hockey Rowlett, and thenceforth the possession became adverse, so that the deed, in the recital of the said third bill of exceptions mentioned, from William Rowlett and Hockey his wife, passed no estate to the lessors of the plaintiff, her sons ; and the court did so instruct the jury : to which opinion the plaintiff filed a bill of exceptions.

Verdict and judgment for the defendant.

The plaintiff obtained a writ of supersedeas from this court.

Heigh for the plaintiff in error.

The Superior Court of law gave correct instructions to the jury in every instance except the last, which is erroneous.

With respect to the first; the certified copy of the deed from Henry Daniel, sen. to Henry Daniel, jun. dated in 1765, *duly recorded on the grantor’s acknowledgment, and followed by possession in the grantee, was properly admitted, without proof that the original was lost or destroyed, (a) In Maxwell v. Light, 1 Call, 120, this question is touched but not settled by this court. But in Lee v. Tapscott, 2 wash. 281, a copy of an ancient patent, from a County Court, (which had no authority to record it,) was allowed to be good evidence without enquiry after the original; possession having accompanied the patent.

2. The feoffment from Henry Daniel, jr. to his sister, Hockey Rowlett, though void as a feoffment for want of livery, was rightly held to enure as a covenant to stand seised to her use.

A deed of any kind shall never be held void, if by any construction it can avail; and if it cannot enure in the manner intended by the parties, yet, if made to a relation, it shall enure as a covenant to stand seised to use.(b)

3. If this deed did operate as a covenant to stand seised, and so vested the estate in the covenantee, it was thenceforth forever binding on the covenantor: and no subsequent act of his own could change the character of the instrument, so as to avoid its effect, and divest the estate thereby vested. To say otherwise were to affirm the general proposition, that any voluntary deed may be avoided by the grantor’s own act ; there being, in this respect, no difference between a covenant to stand seised, and any other kind of conveyance. The decision by the court in the third bill of exceptions was therefore correct.

4. But the court erred in the instruction it gave, that the two agreements of 1795, between Henry Daniel, jr. and his brother *230Harlow, were incompatible with a tenantcy in Henry Daniel, at the sufferance of Hockey Rowlett, and so operated as a disseisin by him; whereby, his possession thenceforth became adverse; and therefore no estate passed by the deed of bargain and sale from William Rowlett and wife to the lessors of the plaintiff.

I agree that, if Henry Daniel’s possession had become adverse at the time this last mentioned deed was made, *it passed no estate, (a) But was the possession adverse ? Henry Daniel, holding possession of the premises, after his conveyance thereof in 1786, to his sister, was her tenant at sufferance, (b) And by the agreements which he made with his brother Harlow, in 179S, Harlow became his tenant at will of a part of the premises.

But the possession of a lessee at will is only the possession of the lessor ; and the possession neither of tenant at will, nor of tenant at sufferance itself, works any disseisin, (c)

The estate of Henry Daniel, as tenant at sufferance of his sister, could have been destroyed only by actual entry and ouster ; till which, trespass could not have been maintained against him. (d) His lease to a subtenant did not make his possession adverse; for, if tenant at will make a lease to a subtenant, it is a disseisin of the first lessor, but only a disseisin at the election of the lessor, (e)

George K. Taylor, for the defendant.

If it shall appear that the court below gave a right judgment upon the whole matter, though erroneous instructions were given upon some points, this court should affirm its judgment.

The essential circumstances to render a deed valid, are sealing and delivery, (f) In Heyfield’s case it was held that evidence of these facts must be given to the jury, who are to judge upon the matter of fact, whether the deed was so executed, and must find accordingly, or the deed is not proved. Nothing short of proving the deed to have been sealed and delivered will do. (g) But if such proof be necessary, surely the deed itself, the best evidence, ought to be exhibited, that the witness may recognize his hand writing, explain interlineations and erasures, and relate the whole circumstances of the transaction, (h) And this the rather, because if a copy be exhibited, the defendant is deprived of his common law right of cross-examining the witness ; and the jealousy of the law presumes that the original would have been produced, but that it would have developed some fraud fatal to the party offering it. And accordingly the doctrine is thus laid down in Peake 96, 7. The law nevertheless allows an old deed to be read in evidence, without proof of the execution ; *from the impossibility of adducing such proof, after a great length of time. Ibid. 109. But, even then, the original must be exhibited, to ascertain whether there is any apparent erasure or alteration on the face of it. Ibid. 110.(i) Consequently, the copy of an old deed cannot be given in evidence without proof of the loss or destruction of the original. And this doctrine is acknowledged by Bacon, where speaking his own opinion, (k) which he fortifies by Coke’s authority afterwards, (quoting Co. Litt. 226, 267; 10 Co. 92, 93, 94, b. *;*5 Co. 74 b.,) and re-asserts in three successive places. (l) And the doctrine in the same book, p. 611, and again in p. 646, though to a casual observer conflicting with this, in truth does not contradict it. ffor in these passages the author is not discussing whether the copy shall be given in evidence where the original can be produced ; but, taking it for granted, that a proper case for the exhibition of a copy is made out, as where the original cannot be had, he goes on to state that the inspeximus of enrollment is sufficient proof of its being a real copy, where the law requires such enrollment; otherwise not. And this doctrine is clinched by Buffer’s N. P. 2S5, 2S6, and receives countenance from the case of Rex v. Gwyn, 1 Str. 401.

It may be said, there is a custom in this country of admitting copies: —but, if there be such a custom, it is bad and mischievous, and ought not to be countenanced. Our act of assembly has directed deeds to be recorded for one particular purpose, and no other ;— viz. to prevent injury to creditors and subsequent purchasers ; — without intending any alteration of the rules of the common law in relation to evidence. In Lee v. Tapscott, 2 Wash. 281, (in which case the judges were divided in opinion,) the deed admitted was extremely ancient. The authority of that case, therefore, will not apply to what is merely called, in technical language, an ancient deed. Besides, in that case, the document offered in evidence was a copy of a patent, (which is always registered before it is put into the hands of the patentee,) and not of a deed.

A fortiori, in this country, the original deed ought to be *produced, because the party cannot plead non est factum, but upon oath ; and he cannot do this, without seeing the original. If it be a paper, purporting to be a deed from the father of the party, be could know, by seeing it, whether the signature was his father’s hand writing or not. It should be recollected, too, that, in this country, a deed is kept for some time in the party’s possession before it is recorded, in which interval it might be altered by him. This circumstance affords a strong reason for requiring the original to be produced. The court, therefore, erred in the first instruction given to the jury.

I admit, as to the second, that the legal ingenuity of the court will be exerted to consider a deed, (being defective as a feoffment,) a covenant to stand seised to the use of the grantee.

But I contend, also, that the last instruction was correct. The lease from Henry Daniel, junior, to the defendant was a de*231forcement of Hockey Rowlett. The definition of that term in 3 Bl. Com. 174, is applicable to this case. Now, in case of a covenant to stand seised, the statute transfers the possession to the covenantee. Of course, the covenantor’s right to future enjoyment, and to meddle with it as his own, is done away. Henry Daniel, junior, consequently, had afterwards no right to lease the land as his own, or give other people leave to tend it. Yet he leases it, and gives leave to tend it, calling it, “his house and his land,” and “his fence — shewing his possession to be adversary to all the world, and inconsistent with the tenantcy of a covenantor to stand seised. Of course, Hockey Rowlett’s statutory possession was done away, and she deforced. And, if so, she and her husband could not convey by deed of bargain and sale.

If Hargrave’s note to Co. Litt. 57, a, be right, yet the party must shew his election not to consider himself deforced; and this must be done by entry.

Heigh in reply.

My proposition was, not that the certified copy of a recent deed, or of a deed recorded on proof by ^witnesses, or of an ancient deed not accompanied by possession, may be given in evidence without accounting for the non-production of the original; but, that such copy of an ancient deed, recorded on acknowledgment of the grantor, and accompanied with possession, ought to be admitted without enquiry or explanation concerning the original.

The cases cited from 10 Co., 2 P. Wms., and 10 Vesey, junior, only prove that sealing and delivery are essential to a deed, and that those points must be proved by the subscribing witnesses to it, if any there be; which no body ever controverted. That proposition is foreign to the present inquiry, which is, whether the copy can be substituted for the original; not, whether the probat in court is sufficient evidence of the execution of the original: — but, if the propositions were applicable, it is obvious to remark, that the deed cannot be recorded, unless the sealing and delivery be proved, either by the subscribing witnesses, or the acknowledgment of the grantor. It can hardly be contended, that, if the original of a deed, duly proved and recorded, be offered in evidence, it is necessary to call the attesting witnesses anew, (a)

One reason assigned, why it is necessary to call the subscribing witnesses, is, that opportunity may be afforded the opposite party to cross-examine them. Surely, that reason does not hold in a case like the present, where there are no subscribing witnesses, but the deed is recorded on the grantor’s own acknowledgment. The same circumstance applies with equal force to obviate a reason assigned for requiring the original, — that the court may inspect it, and see that there are no erasures or interlineations ; — for, where the deed is recorded on the grantor’s acknowledgment, there can be no doubt that the clerk’s copy exhibits it in the exact state in which it was when the acknowledgment was made.

It is said the original must be produced, because, if profert be made of a deed in pleading, non est factum may be pleaded to it; a plea which our law requires should be sworn to ; an oath which a party could not safely take without sight of the original. But this argument would apply with equal *force against the admissibility of a copy, when the destruction of the original is proved. Yet, it is well settled, that, in pleading, profert may be made of a copy, with an averment that the original is lost; and, that a copy may be given in evidence, with proof of the loss of the original.

The objection, that the law presumes that the party has the original, and fails to produce it, from a consciousness that it would appear to be vicious on the face of it, may apply to the case of recent deeds; but as to ancient deeds, their antiquity accounts both for the non-production of them, and the inability of the party to shew what has become of them ; and the long accompanying possession affords a violent presumption, as well of their fairness, as of their former existence.

It is said, with regard to ancient deeds, that though it be true that they prove themselves, yet still the original must be produced. I throw out of view the several passages cited from Buller’s N. P. 227 and 2 Bac. Abr. 637, 638, 642, 644 ; because all those passages plainly relate to recent deeds. As to what was cited from Peake’s Evce. 109, 110, and Buffer’s N. P. 255, those authorities are only affirmative, that the original of an ancient deed, accompanied by possession, may be given in evidence without proof of its execution ; not negative, that the inspeximus of an ancient deed, of a nature requiring enrollment, accompanied by possession, is inadmissible. But even if these authorities be supposed to imply an exclusion of the inspeximus of such a deed, they are contradicted by the passage cited from 2 Bac. Abr. 646, founded on a case in Style, and, (what is more,) on clear and strong reason ; and they are absolutely overruled by the decision in Lee v. Tapscott.

Three remarks were made on that case :— one, that it is the judgment of a divided court; the weight of which argument I shall leave to the court to estimate, without any commentary of mine : — another, that that was the case of an instrument which was not merely technically an ancient one, but actually ancient; in regard to which, I shall only say, that the law makes no such distinction : — a third was, that *there is a difference between the copy of a patent recorded, and a deed recorded ; because the former is registered before it is put into the hands of the grantee ; which is not the case with a deed. But this observation is every way unfounded ; for, first, the copy of the patent in that case was not from the land office, but from the County Court; so that it had been delivered to the grantee before it was recorded; and, in the next place, the deed now in question was recorded on the grantor’s acknowledgment, and was by him immediately delivered to the court, and could not have been in the grantee’s hands tiff after it was recorded.

The second and third points were yielded; and no great stress was laid upon the fourth. I do think it impossible to contend with any shew of reason, that the two agreements of *2321795, between Henry Daniel, jr. and Harlow Daniel, in any wise varied the character of Henry Daniel’s possession. The note cited from Hargrave’s Co. Litt. 57, a, (which is a manuscript of lord Hale,) and the case of Taylor v. Horde, are conclusive, that at most, they could only amount to a disseisin by election of the holder of the legal title. It is said that a formal act of election is meant; but that idea is obviated by the case of Taylor v. Horde. The passage cited from 3 Bl. Com. 174, has no manner of application. If one covenant to convey a tract of land, and neglect or refuse to do so, this is said to be a deforcement of the covenantee ; — but here is a covenant to stand seized to the use of the covenantée, which is an actual conveyance, the statute executing the use into possession. Besides, I doubt extremely, (though I speak it with great diffidence,) if Fitzherbert’s Natura Brevium, cited by Blackstone, justifies his doctrine.

Thursday, November 2d, 1815,

*

Evidence — Copy of Ancient Deed. — In Ben v. Peete, 2 Rand. 543, Judge Carr, delivering the opinion of the court, said: “In Lee v. Tapscott, 2 Wash. 281, and *Rowletts v. Daniel,*4 *Munf.*473, it is said, that the copy of an ancient deed, where possession has followed the deed, and (in the latter case), where the deed was recorded on the acknowledgment of the grantor, shall be received, without any proof, that the original is lost or destroyed. I do not consider these cases as in point; for though ours is an ancient deed, it wants that corroboration arising from possession.” See further, monographic *note*on “Deeds” appended to Fiott v. Com., 12 Gratt. 564 ; monographic *note*on “Evidence” appended to Lee v. Tapscott, 2 Wash. 276.

(a)

 2 Bac. Abr. 646; 1 Salk. 280, Smartle v. Williams: Buller's N. P. 255, 256; Peake’s evidence, 110; 2 Esp. Reports, Marsh v. Colnett; 8 co. 8 a Prince’s case; 5 co. 53 a, Page’s case.

(b)

 2 Saund. 96, Chester v. Willan; and the cases collected in the notes.

(a)

 Duvall v. Bibb, 3 Call, 362; Tabb v. Baird, Ibid. 475.

(b)

 2 Tuck. Blacks. 150.

(c)

 2 Esp. N. *P.*435; 1 Salk. 245-6.

(d)

 2 Tuck. Blacks. 150.

(e)

 Hargr. Co. Litt. 57 a note 379; Taylor lessee of Atkins, v. Horde, 1 Burr. 60, 111.

(f)

 Co. Litt. 171; 10 Co. 88, 92, Leyfleld’s case.

(g)

 Marchioness of Annandale v. Harris, 2 P. Wms. 432.

(h)

 Burrower v. Lock, 10 Vesey, jr. 473.

(i)

 Buller’s *N. P.*227.

(k)

 2 Bac. Abr. 637.

(l)

1) 2 Bac. Abr. 638, 642, 644.

(a)

*2*Bac. Abr. 611.

the president pronounced the court’s opinion, “that there is no error in the several instructions given to the jury, as stated in the several bills of exceptions, except the last. The two deeds from Henry Daniel to Harlow Daniel, on which that instruction was given, the court is of opinion, did not work a disseisin of the *said Henry Daniel, whose possession was the possession of Hockey Rowlett, nor convert the possession of Henry Daniel into an adversary possession, so as to deprive the lessors of the plaintiff, who claim under the said Hockey Rowlett, of this action ; and that the ' said judgment is erroneous.

Judgment reversed; verdict set aside ; and new trial directed, on which the last mentioned instruction is not to be given to the jury. __