After the plaintiff's had proved by a surveyor that most of the
lines and streets in "Howard's Late Addition to Baltimore Town" had
been run by him as the same were marked in a particular plot upon
which was the lot of ground for which the ejectment was brought,
they gave the plot so authenticated in evidence. This was contained
in a volume in which were also other plots. The defendant then
offered in evidence another plot in the same volume, but gave no
evidence to authenticate it, claiming to use the same in evidence,
as it was authenticated in the same volume in which was that
exhibited by the plaintiffs. It was held that the whole volume was
not in evidence, and if the defendant meant to use any plot in the
same, it was his duty to establish it by competent proof of its
particular authenticity.
Evidence to establish heirship and pedigree had been obtained
under a commission issued for that purpose to France in an action
of ejectment in which the plaintiffs had recovered the lots of
ground for which this suit was instituted. In the course of that
trial, a bill of exceptions was tendered by the plaintiffs and
sealed by the court, in which the evidence contained in the
commission was inserted. The commission and the testimony obtained
under it were afterwards lost. In an action for mesne profits
brought by the plaintiffs in the ejectment, against the landlord of
the defendant in the suit, who had employed counsel to oppose the
claims of the plaintiffs, but who was not a party to the suit on
the record, it was held that the testimony, as copied into the bill
of exceptions, was legal and competent evidence of pedigree.
It is well known that in cases of pedigree the rules of law have
relaxed in respect to evidence to an extent far beyond what has
been applied to other cases. This relaxation is founded on
principles of public convenience and necessity.
Where A. was the real landlord of the premises in controversy in
an ejectment and employed counsel to defend the suit, but was not a
party defendant on the record, the record of the recovery in the
ejectment, when offered in evidence in an action of trespass for
mesne profits against B., is not conclusive evidence of title in
the plaintiffs, but is
prima facie evidence thereof and is
evidence of the plaintiffs' possession; but B. may controvert the
title of the plaintiffs. As to third persons, strangers to the
suit, the record is evidence to show possession of the property in
the plaintiffs.
When the court was asked to instruct the jury upon a particular
point if it believed from the evidence certain facts, and there was
not the slightest evidence from which the jury had a right to
believe the existence of any such facts, the Court ought not to
have given such instructions, since they were calculated to mislead
them, and raise a mere speculative question.
By the law of descent of Maryland, a person claiming as heir
must prove himself heir of the person last seized of the estate,
and if an intestate leaves a brother of the whole blood who
survived him and died without issue, and without having ever been
actually seized of the estate, the estate will descend to the
half-blood of the person so seized.
Page 27 U. S. 614
An action of trespass for mesne profits was instituted by the
plaintiffs in error in the Circuit Court of the United States for
the Maryland District, Anthony Taurin Chirac and others against the
defendant in error upon the recovery of certain real estate in the
City of Baltimore by the judgment of this Court at February term
1817.
15 U. S. 2 Wheat.
259. The ground lies in a section of Baltimore called "Howard's
Late Addition to Baltimore Town," and is part of the lot designated
in that addition by the number 802. The parties, plaintiffs in this
action, were the same with those in the ejectment, with the
addition of the husband of Maria Bonfils Desportes, one of the
plaintiffs with whom he has since intermarried.
The defendant in the ejectment was John Charles Francis Chirac.
This action was brought against the defendant in error on the
ground that he was in fact the real defendant in that suit, he
having taken on himself the defense, employed counsel, and being
the real party in interest, as he had been the receiver of the
rents and profits of the estate during the whole period for which
they were claimed by the plaintiffs in this action.
After a trial of this case in the Circuit Court of Maryland, it
was removed by the plaintiffs by writ of error to this Court, and
at February term, 1826, the court decided, among other points which
were presented by the record,
"That the action for mesne profits may be maintained against him
who was the landlord in fact, who received the rents and profits
and resisted the recovery in the ejectment suit, although he was
not a party to that suit and did not take upon himself the defense
thereof upon the record, but another did as landlord."
Also that
"A recovery in ejectment is conclusive evidence in an action for
mesne profits against the tenant in possession, but not in relation
to third persons. But when the action is brought against the
landlord in fact, the record in the ejectment suit is admissible to
show the possession of the plaintiff connected with his title,
although it is not conclusive upon the defendant in the same manner
as if he had been a party on the record. "
Page 27 U. S. 615
At the trial of this case in the circuit court in December,
1827, after the same had been returned to that court under the
mandate of this Court, the plaintiffs gave evidence to show that
the defendant in error was, before the institution of the
ejectment, the claimant and actual landlord of the property, and
had continued such until the recovery of the same, and that he had
employed counsel and had sustained the defense by his funds
exclusively. They also proved that the property had been conveyed
to him by the defendant in the ejectment. The evidence of title
exhibited by the plaintiffs showed the property to be in John
Baptist Chirac, as whose heirs the plaintiffs claimed and recovered
the same in the ejectment, and in order to show the location of the
ground, the plaintiffs exhibited in evidence to the jury the public
plot of
"Howard's Late Addition to Baltimore Town," by
which it appeared that the lot embraced part of a street called
Walnut Street, which, the plaintiffs further proved by the city
records, had been shut up and the ground included in it divided
between the owners of lots bounding upon it.
The plaintiffs then offered in evidence the record of the
proceedings, judgment, and writ of possession in the ejectment, but
the defendant objected to the reading of the same, except to show
the possession of the property of the plaintiffs mentioned in the
record. The court admitted the parts of the record as
prima
facie evidence of title in the plaintiffs, and permitted them
to be read in evidence as such proof of title.
The defendant then offered to exhibit in evidence a plot from
the volume of plots in which was that already mentioned, of
"Howard's late addition" to show that the whole of Walnut Street
was out of the limits of "Howard's Late Addition," and that the
parties under whom John B. Chirac claimed, and John B. Chirac, had
no title to a certain portion of the ground recovered in the
ejectment. The plaintiffs objected to the use of the plot in
evidence and for that purpose. The court allowed the testimony, and
the plaintiffs excepted.
The plaintiffs then read in evidence certain depositions taken
under a commission issued in this cause to France,
Page 27 U. S. 616
showing the kindred of John Baptist Chirac and the marriage of
Maria Bonfils, and also offered evidence by Mrs. Lafolloniere of
the death, before John B. Chirac, of Gabriel Chirac, the only
brother or relation in that degree of the whole blood of John
Baptist Chirac. And they then proved that the original depositions
taken in the ejectment cause were lost, and therefore, in order to
show the pedigree of the plaintiffs' family, offered to read in
evidence the bill of exceptions, which embodies these depositions,
contained in the record and proceedings of the recovery in
ejectment; but the court, upon the defendant objecting, refused to
allow it to be so read in evidence, and the plaintiffs
excepted.
After this evidence was given and the testimony was closed on
both sides, (none having been offered on the part of the defendant
except that stated in the first exception on the point of location)
the plaintiffs offered in evidence the record of recovery in the
ejectment as conclusive evidence of the right and title of the
plaintiffs to the premises, against John Charles Francis Chirac,
and against the defendant holding under that title -- but the court
refused to admit the evidence so offered. The plaintiffs
excepted.
The plaintiffs then prayed the court to instruct the jury that
if the jury believed the evidence given, the plaintiffs had shown a
sufficient title to the premises in the declaration to entitle them
at law to maintain this action against the defendant. The court
refused to give this instruction -- and the plaintiffs took a
further exception.
The defendant then prayed the court as follows:
1. That if from the evidence the jury believed that John B.
Chirac, who died seized of the premises in the declaration
mentioned, had any brother or brothers, sister or sisters, of the
whole blood, or their descendants, who survived the said John B.
Chirac the younger, then the plaintiffs are not entitled to
recover.
2. That if the jury believe that the said John B. Chirac the
elder had by his second wife another son beside the said John B.
Chirac the intestate, then it is incumbent upon the plaintiffs to
show, before they can entitle themselves to
Page 27 U. S. 617
recover, that such son died before the said John B. Chirac the
intestate, without lawful issue.
3. That if the jury believe that the said John B. Chirac the
elder had by his first wife a daughter who married a certain Samuel
Bonfils, by whom she had a son named John Baptist Bonfils, who
married Ann Coton, who had a daughter named Maria Bonfils, who
married Desportes, one of the plaintiffs, then it is incumbent upon
the plaintiffs, before they can entitle themselves to recover, to
show the death of the great grandfather, grandmother, and father
before the impetration of the original writ in this cause, and that
the plaintiffs have offered no evidence of these facts.
All these prayers of the defendant were granted by the court,
and the plaintiffs excepted to all of them, and they prosecuted
this writ of error.
MR. JUSTICE STORY delivered the opinion of the Court.
The original suit was an action for mesne profits, brought by
the plaintiffs in error against Reinecker, and is the same cause
which came before this Court and is reported in
24 U. S. 11
Wheaton. 280. The cause now comes again before this Court upon
certain bills of exceptions taken by the plaintiffs in error at the
new trial had under the mandate issued upon the former judgment of
reversal.
Without going at large into the facts as they came formerly
before us, it is sufficient to state that the action is for taking
the mesne profits of a certain parcel of land lying in a part of
Baltimore called "Howard's Late Addition to Baltimore Town," and is
designated as lot No. 802 in that addition. Before the commencement
of this suit, a recovery of the same premises was had in ejectment
by the same plaintiffs (the husband of one of them being now added
as
Page 27 U. S. 618
a party) as lessors against one John C. F. Chirac, who was
admitted upon his prayer as landlord to defend the premises. The
record of that recovery was offered in evidence at the former trial
against Reinecker and rejected by the court, and that rejection
constituted one of the grounds of the reversal.
At the new trial after the introduction of certain evidence,
which will be hereafter stated, the plaintiffs offered the same
record in evidence, including the execution of the writ of
possession, and other proceedings in the same cause; to the
admissibility of which, as evidence of the plaintiffs' possession,
the defendant's counsel did not object, but did object to it as
evidence of the plaintiffs' title to the property. The court,
however, admitted the record as
prima facie evidence of
the plaintiffs' title, and thereupon the defendant filed an
exception, which, however, is not now before this Court.
The evidence alluded the consisted of the testimony of witnesses
to establish the facts that Reinecker had received, as landlord,
the rents of the premises during the period sued for; that he
exercised the rights of ownership over the same; that he was, at
the time of the ejectment brought, the real landlord, and had
notice of the suit, employed counsel to defend it, and was, in
fact, the substantial litigant party, and that he derived his title
to the premises under the defendant in ejectment, John C. F.
Chirac, by intermediate conveyances executed before the ejectment.
The evidence further established a strict deduction of title by
mesne conveyances of the lot in question, down to John Baptist
Chirac (the intestate), under whom the plaintiffs claimed the same
as heirs.
The plaintiffs then proved by a surveyor that he had surveyed
most of the lines and streets in Howard's Late Addition to
Baltimore Town in 1782, according to the official plot and location
thereon in the mayor's office (which plot was also then given in
evidence by the plaintiffs to the jury); that he had run the lines
of Lun's lot according to the patent or certificate thereof, and
that the premises described
Page 27 U. S. 619
in the plaintiffs' declaration and in the writ of possession
were in Lun's lot, and also within the said addition, and were
known as lot 802 &c.
The plaintiffs, after having given in evidence the plot
aforesaid, upon which was located lot No. 802 and Walnut Street,
then gave in evidence, from the original book of entry and record
in the mayor's office, certain proceedings condemning Walnut Street
to be shut up and ordering that each person interested by having
lots in the street be entitled to one-half of such street on each
side, &c.
The defendant then offered in evidence another plot in the same
volume of city plots, being a plot of Howard's Addition to
Baltimore in 1766, in order to show that the whole of Walnut Street
was contained within such last mentioned addition, already read in
evidence, to the admission of which the plaintiffs objected, but
the court overruled the objection and permitted the plot to go to
the jury.
The admission of this evidence constitutes the first exception
of the plaintiffs. It is in the first place said that it was not
proper evidence against the plaintiffs, after the recovery in
ejectment, even if the plot in question had been duly
authenticated. But at all events it is contended that it is not
per se evidence, merely from the fact that it is found in
a volume of city plots, which contained the general plot already in
evidence, and which had been specially authenticated by the
surveyor. We are of opinion that this last objection is well
founded. The book itself had not been authenticated as a book of
public plots regularly made, but a single plot only in the volume
had been authenticated. The whole volume, therefore, was not in
evidence, and if the defendant meant to use any other plot, it was
his duty to establish it as evidence, by competent proofs of its
particular authenticity.
The other objection assigned for rejection of it admits of more
doubt. It is said that the effect of this evidence would be to
establish that John B. Chirac (the intestate) had no title to a
certain portion of the land recovered in the ejectment. Unless the
defendant was absolutely concluded by the judgment in that suit, he
was certainly at liberty to dispute any part of that title. And if
it were material for the
Page 27 U. S. 620
plaintiffs to prove the actual location of the lot 802, and
Walnut Street, in Howard's Late Addition in 1782, no reason occurs
to us why the defendant was not at liberty to disprove the fact by
showing that Walnut Street was in Howard's former addition in 1766.
It is merely evidence to rebut other parol evidence of the
plaintiffs as to the location.
The plaintiffs then further read in evidence the depositions of
certain witnesses in France, taken under a commission to establish
their pedigree. The testimony was to this effect: that J. B.
Chirac, the father of the intestate, had three wives; that by his
second wife he had two sons; the intestate, and one Gabriel B. R.
Chirac; that the intestate died in 1799; that his brother Gabriel
left France, and went to the islands. One of the witnesses said he
died in the islands. Another witness stated that before 1797 she
resided in St. Domingo and lived on a plantation near that of J. B.
Chirac (the intestate); that she heard in St. Domingo that his
brother came to the intestate's residence there, and it was
publicly reported in the neighborhood that the said brother had
died; that she heard this at the house of a friend where the
intestate visited, and heard it very often, and that it was
generally stated as a fact; that she never saw the brother, and
never heard that he was married, and never heard of him as being
alive since the report of his death; that she is no relation of the
family, and never was at the intestate's house while he was at St.
Domingo, and did not know or believe that there were any ladies
living there when the brother died.
The plaintiffs then offered to prove that the original
commission for taking the testimony issued in the said ejectment
cause, with the depositions taken under the same, were lost, and
then offered to read to the jury the bill of exceptions contained
in the record aforesaid in order to show the pedigree of the
plaintiffs' family. But the court refused to allow the same to be
read in evidence to the jury. This refusal constitutes the second
exception of the plaintiffs. The bill of exceptions so rejected was
taken by the plaintiffs, and did not refer to any depositions; but
it stated that the plaintiffs gave in evidence to the jury, that
the intestate was a
Page 27 U. S. 621
native of France; that the lessors of the plaintiffs (naming
them) were the brothers and sisters, and grand niece, &c., of
the intestate, &c.,
"and that neither the father nor mother, nor any brother or
sister of the whole blood of the said intestate, nor their issue or
descendants, were living at the time of his death."
Upon consideration, we are of opinion that under the
circumstances of this case, the evidence was admissible for the
purpose of establishing the pedigree of the plaintiffs' family, and
this is the only view in which it was presented to the court. It is
well known that in cases of pedigree, the rules of law have been
relaxed in respect to evidence, to an extent far beyond what has
been applied to other cases. This relaxation is founded upon
principles of public convenience and necessity. In a case between
the parties to the suit, in which this bill of exceptions was
taken, the evidence would have been conclusive. Although Reinecker
was not the defendant in that suit, yet he was the real landlord
and party in interest, and conducted the suit, and the evidence of
the facts so proved as to pedigree ought under such circumstances,
we think, to be admitted as
prima facie evidence against
him. He had the means of contesting those facts, and if he did not
avail himself of those means, it may fairly be presumed that he
yielded to the sufficiency of the proofs.
This was the whole evidence in the cause, and it being closed on
both sides, the plaintiffs offered the same record of the recovery
in the ejectment cause as conclusive evidence of their right and
title to the premises against J. C. F. Chirac (the defendant
therein), and against the defendant Reinecker holding under that
title, which the court refused to admit. This refusal constitutes
the third exception of the plaintiffs. The plaintiffs then prayed
the court to instruct the jury that if it believed the evidence,
the plaintiffs have shown a sufficient title to the premises in the
declaration, to entitle them in law to maintain their action
against the defendant, which the court refused to give. And this
refusal constitutes the fourth exception of the plaintiffs. There
was a fifth exception, but it is unnecessary to refer to it because
it is a mere repetition (apparently by mistake) of the fourth.
Page 27 U. S. 622
Before proceeding to consider these exceptions, it may be proper
to say a few words explanatory of that part of the former decision
of this Court as it stands reported in
24 U. S. 11 Wheat.
280. The record of the ejectment suit had been rejected by the
court below as any evidence against Reinecker, although it was
offered, in connection with other evidence, to establish that
Reinecker, although not a party on the record, was the real
landlord, and had received the rents and profits, and had notice of
the suit, and had employed counsel to defend it, and resisted the
recovery. In the opinion of the court upon this point it was stated
that, in general, a recovery in ejectment, like other judgments,
binds only parties and privies. It is conclusive evidence in an
action for mesne profits against the tenant in possession, or other
defendant on record. But in relation to
third persons, the
judgment is not conclusive, and if they are sued in an action for
mesne profits, they may controvert the plaintiff's title at large.
In such a suit (that is to say, against
third persons),
the record of the ejectment is not evidence to establish the
plaintiff's title, but is admissible to show the possession of the
plaintiff.
This proposition has been supposed at the bar to indicate an
opinion that in the case then before the court, with reference to
all the circumstances of notice, and rating of the rents, &c.,
by Reinecker, the record was only evidence of the possession and
not of the title of the plaintiffs. Such was not the understanding
of the court. The proposition was asserted as to
third
persons generally, who were strangers to the suit. Even as to
such persons, it was asserted that the record was admissible to
show the possession of the plaintiff. The particular circumstances
of Reinecker's case, as connecting him with the parties, were not,
in that part of the opinion, in the view of the court. In the
subsequent commentary of the court on the case of
Hunter v.
Britts, 3 Campbell 455, a doubt was intimated, whether a mere
notice,
in pais, to the landlord, who was not a party to
the record, was conclusive upon him, but not the slightest doubt
was intimated that it was
prima facie evidence of title,
as well as of possession, against him, under such circumstances.
The point whether the record in the
Page 27 U. S. 623
ejectment suit was not
prima facie evidence of title in
the plaintiffs, as against a person standing in the predicament of
Reinecker, was not decided at that time, and was not necessary to
the decision.
Upon consideration of the question presented by the third
exception above mentioned, we retain the opinion that the record in
the ejectment suit was not conclusive evidence upon persons not
parties to the record, but we are also of opinion that it was
prima facie evidence of the plaintiffs' title and
possession against Reinecker under the circumstances adduced in
evidence. He had full notice of the suit, and had the fullest means
to defend it. The parties upon the record were his agents or
tenants, and he in effect though not in form, took upon himself the
defense of the suit. The case is stronger than that of
Hunter
v. Britts and fairly within the reach of the principle decided
by it. There was then no error in the court in refusing to give
this instruction.
The fourth exception can be sustained only upon the ground that
there was no fact in the cause upon which there was any doubtful or
contradictory evidence. If there was any such evidence, it would
have been improper for the court to withdraw the question of its
credibility from the jury. And if the evidence was merely of a
presumptive nature, it was not for the court to decide as a point
of law how much it ought to weigh with the jury. It was properly
its province to draw the conclusions of fact arising from such
presumptions. It might have believed the evidence but at the same
time not have been satisfied that it justified it in inferring from
it other facts not positively proved.
The real difficulty in the case arises from the peculiar
structure of the prayer of the plaintiffs and the introduction of
parol evidence at the trial by them to fortify what had been
already declared by the court to be
prima facie evidence,
record evidence of title.
If the court had been asked to instruct the jury that the
evidence of the plaintiffs, if believed by the jury, was competent
in point of law, from which it might infer all the necessary facts
to maintain the action, unless it was rebutted on the part of the
defendant, it would have been
Page 27 U. S. 624
unobjectionable. It would have left the matters of fact for the
just consideration of the jury upon the
prima facie
evidence of the plaintiffs. But the difficulty is that a matter of
fact of vital consequence to the plaintiffs was whether Gabriel B.
R. Chirac, the brother of the whole blood of the intestate, was
dead without leaving lawful issue upon the death of the intestate.
The plaintiffs very unnecessarily introduced parol evidence on this
subject after the court had ruled that there the ejectment was
prima facie evidence of their title. The parol evidence
did not particularly establish the death of Gabriel (for the bill
of exceptions had been rejected as evidence), although it was
exceedingly strong as presumptive proof, and as such it was the
province of the jury to pass upon it. The court was right,
therefore, in refusing the prayer of the plaintiffs because it
trenched upon the proper province of the jury by requiring the
court to assume a fact which was not absolutely proved, but was
matter of inference and presumption upon the whole testimony.
The defendant afterwards prayed the court to instruct the jury
as follows:
1. That if from the evidence the jury believed that J. B.
Chirac, who died seized of the premises in the declaration
mentioned, had any
brother or
brothers, sister or
sisters of the whole blood or their descendants, who
survived the said J. B. Chirac the younger, then the plaintiffs are
not entitled to recover.
2. That if the jury believed that the said John B. Chirac the
elder had by his second wife another son besides the said son J. B.
Chirac, the intestate, then it is incumbent upon the plaintiffs to
show, before they can entitle themselves to recover, that such son
died before the said intestate without lawful issue.
3. That if the jury believed that the said John B. Chirac the
elder had by his first wife a daughter who married a certain Samuel
Bonfils, by whom she had a son named John Baptist Bonfils, who
married Ann Coton, who had a daughter named Maria Bonfils, who
married Desportes, one of the plaintiffs, it is incumbent upon the
plaintiffs before they can entitle themselves to recover, to show
the death of the great grandfather, grandmother, and father before
the impetration of the original writ in this cause,
and that
the plaintiffs have offered no evidence of these facts. The
court gave the
Page 27 U. S. 625
instructions so prayed for, and the plaintiffs filed their
exception thereto.
The first instruction is open to two objections. It asks the
court to instruct the jury that if from the evidence it believed
(among other things) that the intestate had any
sister or
sisters of the whole blood or their descendants who
survived him, &c., the plaintiffs were not entitled to recover.
Now there was not the slightest evidence from which the jury had a
right to believe the existence of any such sister or sisters, and
without such evidence, the court ought not to have given the
instruction, since it was calculated to mislead them and to raise a
mere speculative question.
But a still more decisive reason against it is that by the law
of descent of Maryland, a person claiming as heir must prove
himself heir of the person last actually seized of the estate, and
if the intestate had left a brother of the whole blood who survived
him and died without issue and without ever having been actually
seized of the estate, the plaintiffs would still have been entitled
to recover as heirs of the half-blood of the person last
seized.
The second instruction was rightly given. It was not sufficient
for the plaintiffs to show that Gabriel was dead, but that he died
without lawful issue, for otherwise such issue were entitled to
recover. The
onus probandi was upon them to establish
every fact necessary to their own heirship, and it cannot admit of
doubt that this was necessary. The same rule is laid down in 3
Starkie on Evidence 1099, and is supported by the case of
Richards v. Richards, there cited from Mr. Ford's MSS.
also by
Doe v. Griffin, 15 East 293.
The third instruction assumes to decide a question of fact upon
which we think there was evidence before the jury. The record of
the recovery in the ejectment suit was
prima facie
evidence of the plaintiffs' title, and the depositions in the cause
and the structure of the interrogatories and answers presupposed
the death of the great grandfather, grandmother, and father of the
intestate. There was error then in the court in giving this
instruction.
Page 27 U. S. 626
Upon the whole, the judgment must be
Reversed and the cause remanded with directions to award a
venire facias de novo.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Maryland and was argued by counsel, on consideration whereof this
Court is of opinion that the said circuit court erred in admitting
the plot offered in evidence by the defendant's counsel as stated
in the plaintiffs' first bill of exceptions, and also erred in
refusing to admit as evidence the bill of exceptions stated in the
plaintiffs' second bill of exceptions. And the said circuit court
also erred in granting the instructions firstly and thirdly prayed
for by the defendants as stated in the plaintiffs' sixth bill of
exceptions. Whereupon it is considered, ordered, and adjudged by
this Court that, for the errors aforesaid the judgment of the said
circuit court in this cause be and the same is hereby reversed and
annulled, and that the said cause be and the same is hereby
remanded to the said circuit court with directions to award a
venire facias de novo.
