
    Bradford's Lessee vs. M‘Comas, et al. M‘Comas et al. vs. Bradford's Lessee.
    . Cross appeals from Harford County Court. Ejectment for two tracts of land, one called Ward's Purchase, and the other Lee's Adventure, brought in the name of Samuel Bradford's Lessee, for the use of William M‘Comas. The defendants took defence for Belgvard and Security, two traets foca ted by (hem on the plots returnedin the cause.
    , 1. At the trial, the plaintiff offered to read in evidence certain papers, purporting to be copies of original leases granted by the agents of the Lord Proprietary, and remaining amongst the papers in the auditor’s office at the city of Annapolis, viz. One dated-the 1st of September 3742, made to John Ward, of Ward’s Purchase, for 93 years, atan annual rent of ¿Cl 0 li sterling. The other dated the 16th of March 17'44, made to William Few, of Lee’s Adventure, for 99 years, atan annual rent of £ 1 4 $ sterling, He also, to prove the same to be true copies from the original leases in the auditor’s office, offered to read in evidence affidavits endorsed on each of said copies, made by Robert Denny, esquire, the auditor-general, taken before Joseph Sands, esquire, a justice of the. peace of Anne-Arundel county, and duly certified by the clerk of the county court of said county. To the reading of these copies the defendants objected as not being competent testimony for the plaintiff. But the Court, [Nicholson, Ch. J-3 was ®f opinion, and so directed the jury, that said copies were competent evidence for the plaintiff, and permitted them to be read to the jury. The defendants excepted.
    
      ' Copies of original leases granted bv the agents of the Proprietary, remaining in .the auditor’s office, with the affidavit of the audrtorige* neral, stating that they were true copies taken from the originals, made before a justice of the peace, with a certificate of tbe cierk of the emm* / «y court that such pe.rson was a justice, to be competent evidence.
    The FronvietavVy»hy his agent, in 1744, leased- to \V F, for 99’years, a parcel land ca’-led X,A¡ heingpavt of his lovd* ship5!} reserved manors. W F, with the consent ot the agent, assigned the lease to J 3-, who by deed in 1700 conveyed interest to W M, who in i?94 executed a bond pf conveyance to N M, conditioned ¿or the conveyance ofone half of a tract of land called G. In May l« 89 \V M had surveyed for him a parcel of Reserve land, and called it G, which ip January 1797 he assigned to N M, and in February 1797 W M as-igned to J' O, who as assignee, in April 1797' bad vesurveytd L A, so leased to W F, ana called itB G, being the same land before surveyed for \Y M, and called {r5 for which the purchase money was paid to the treasurer in November 1797. and a patent thereon issped toT O in January 3 SCO, T O, in August 1300, conveyed the same land to N M-rtfeW, that the least-hold interest subsistí d and re* maiued unoxthigimhed and was not. merged in thefteehoid by the patent to TO
    The Proprietary^ hy bis agent in 1742 leased to J IV for 99 y^nrs, a parcel of land called W P, being part of one of his lordship’s veserv! d manors. The ndpunistrator of J IV in 3747 assigned th$ Jeafe, with the approbation of the agent, to D M, who by his will in 17(35 devised the land to he equally divided between his sous D and J. Theve two sons, beiiig in possession, conveyed tbi ir intere.t, on© of them in 3769, and the other in 1774. to W M, but the 4ceds were not rceo'ided witliin the time prescribed hy law. V/ M, under those deeds, entered into possession, and held it until 1794, when lua made a contract with N ■Vi respecting* the same —Held, that the aboye facts laid a sufficient foundation ¿or the fury to presume good and valid deeds from D and J,to V? IVjy pf faid M •appeared that there had been geeds executed, aiid not {property ^ecprd^o
    
      2. The plaintiff then read in evidence a deed from John Lyon to William M-Comas, (the person for whose use the suit was brought,) dated the 14th of October 1766, reciting the lease of the Kith of March 1744, from Benjamin Tasker, (agent and receiver-general of the Proprietary,) to William Few, for 244 acres of land, part -of Lee’s .adventure, and that the said lease was on the 171b of June 1749, assigned to the said John, Jjyon by the said William Few, hj consent and approbation of his Lordship’s agent and receiver-general; and granting, in consideration of =8150 paid to said Lyon, unto the said Ml Comas, the said parcel of land, &c. for and during the-residue of the term of 99 years which was to come, &c. The defendants then read in evidence a bond of conveyance from the said Tf illiani M‘Comas to Nicholas D. MlComas, one of the defendants, dated the 11th of October 1794, in the penalty of ¿©1500, and conditioned “that if the above bound William M1 Comas, his heirs, &c. shall well and truly smake over and convey,_ by good and sufficient deed in fee simple, the one half of 250 acres wett-sw, of a tract of land lying in Harford county, known by the name of Gratuity, and to give possession by the 1st of December nest, and also to patent the said land, and to clear it of every incumbrance whatsoever^ which said 250 acres of Sand is to bo laid out most convenient to the home place, so as to include the buddings, & ,th§ said Nicholas. JJ, M'Comas, his heirs or assigns,, pfiall direct; which conveyance is to be made by the said William M'rComas, his heirs, Ac- onto the said Nicholas D. M%Comas, his ¡mil's or assigns, when the said Nicholas D. APComas, his heirs or assigns, shall pay unto Zftchcus Onion, his heirs or assigns, the balance of the purchase money at seven dollars an acre, then,” &c, The defendants further read in evidence certain certificates of survey returned tq the land office, together with their several assignments and endorsements, viz. one a certificate of land surveyed for William UP Com as on the 7th of May 1789, being a tract or parcel of the reserve land in Harford county, beginning, &c. containing 448 acres of land, to be held by the name of Oto-, tnify, and which was thus endorsed, ‘‘Returned 20th June Íf92. December 23d, 1796, the plat and certificate disagree in the direction of the f6th line disallowed. 28th December, 1796, corrected. December 30, 1796, examined and passed. January 26, 1797, assigned by William M'Comas tq Nicholas D. IvPComas. February 6,1797, assigned by Nicholas D. ñP Comas to Thomas Bond, Onion.’* The other p certificate of resurvey made the 15th of April 1797, for Thomas Bond Onion, as assignee aforesaid, of “part of two traces of lease-land, part qf the reserved land lying in harford county, fo v/it: Ward’s, Purchase, leased to John Ward September 1, 1742, for 201 acres, and find it contains a surplus of three quarters qf an acre, and have excluded 12? acres lying within a survey of James and Alexander’s Paradice. And of Jee’s Adventure, leased to William Few the }6th oí March 1744, for 244 acres, and find it deficient in pleasure 15¿ peres, and have excluded therefrom one and a quarter acre lying within the lines of Samuel Harper’s survey; also added f of an acre. The whole reduced into one tract, beginning, f&c. containing 417 acres, and called Bel guard. November 16, 1797, examined and passed, Returned 19th blovemher 1797. Tfie books, of the late Attendant shew that William Corpas purcllTtscd in the reserves of Harford county the following ¡eases: Part Ward’s Lease, 191 acres; Font’s do. 2.44 acres, making in all 43.5 acres, 4?f2 10 7. There was p deficiency of 18 acres, ¿Sfj 0 1, reducing the qupptity to 417 acres, ¿fu9 10 6, The purchase money was paid to the treasures on thq 20th qf Noyepibey If97, Thp certificate Was cq véa ted by Willimri M- Com,as on the 6fh of April 1708. Caveat discontinued by act November 1797. Patented 1st January 1800. Memorandum. The within certificate is a correction of a stiHey Containing 448 acres, surveyed by the name of Gratuity for William M'Comas, who assigned the same, as within mentioned, to Nicholas Day M- Comas, who assigned .it to Thomas Bond Onion.” The defendants then read in evidence two grants from the state to Thomas B, Onion, one dated the 14th of June 1798* for a tract called Security, containing 32¿ acres, surveyed for said Onion on the' loth of April 1797, in virtue of a special warrant granted, to him on the 6th of February 1797. The other dated tht! 1st of January 1800, to said Onion, as assignee’ of N. ID M-Comas, who was ássiguee of W. 3P Comas, of the tract before mentioned, called Belguard, containing 417 acres. The defendants then read in evidence a deed from Thomas B. Onion to Nicholas D. MiComas, dated the 29th of August 1800, consideration ¿61500, for the two tracts called Belguard and Security, agreeably to the two grant» before mentioned. And the defendants then prayed the court to direct the jury, that as the fee was vested in Thomas B Onion by the two patents for Belguard and Security, in virtue of the aforesaid assignments, the leasehold estate became thereby merged and vested in 'Thomas B Onion, the patentee. But the court refused to give this direction, but on the contrary directed the jury, that the leasehold interest still subsisted and remained unexiinguished, and was not merged in the freehold. The defendants excepted.
    3. The plaintiff then read in evidence the letters of administration granted on the 20th of February 1746, to William Dallam, on the estate of John Ward. Also a deed from the said William Dallam, as administrator of John Ward, to Daniel 31i Co mas, for part of Ward's Purchase, containing 191 acres, dated the 17th of April 1747* reciting the Proprietary lease of the 1st of September 1742, for 201 acres, and the license of the Proprietary agent to assign the said lease, &c. lie also read in evidence the last will and testament of the said Daniel 31‘Comas, dated the 15th of June 1765, whereby he devised the land whereon his son Daniel M- Comas then dwelt, called Ward's Purchase, being in his Lordship’s reserve, to be equally divided between his two sons Demi#! and John AD Comas, unto them the said Daniel and John, their heirs and assigns, for ever. The plaintiff then offered ill evidence, that after the death of Daniel ED Comas, the two devisees, Darnel and John ED Comas, entered on the land, and became possessed thereof as the law required. He also offered to read in evidence two deeds from (he two devisees, Daniel and John ED Comas, to William AD Comas, for all their right, &c. to Ward’s Purchase„ That from Daniel, was dated the' 10th of April 1769, ac~' icrtowledged on the same day, and recorded the 18th of March 1776; and that from John was dated the 21 st of December 1774, acknowledged on the same day, and recorded the 18th of March 1776, To the reading of these deeds the defendants objected as being no evidence in the cause, they not having been recorded within the time prescribed by law; and prayed the opinion of the court, that -the same were not evidence. Of which opinion the Court were, and they refused to let the deeds be read.
    The plaintiff then offered in evidence, that from the date of the respective deeds the said William, EDComas, for whose use this suit is brought, obtained the possession of' the land, and held the possession until in or about the year 1794, when,he made a contract with Nicholas D. EDGomaS respecting the same 
       The defendant then offered ia evidence, that the said William iff’Comas purchased from this, state the reversionary interest the state held in said land, and that under that purchase a survey was made, á»d a certificate returned to the land office, calling, the land Gratuity, which certificate was assigned by said William EDComas to Nicholas D. M‘Comas, one of the defendants, and to a certain Thomas Bond OnionT as herein before mentioned. The defendants also offered in evidence, that Nicholas D. EDComas assigned over his inte-■rest in said certificate, of Gratuity, to Thomas B. Onion, who returned another certificate thereon called Belguard, on which a patent issued to the said Onion, dated the 1st of January 1800. He also offered in evidence a deed from said Onion to Nicholas D. EDComás, one of the defendants, dated the 29th of August 1800, for two tracts of land called Belguard. and Security. The plaintiff then píayed the'ópinion of the court to the jury, that from the facts and circumstances aforesaid, they may and ought to presume that legal corivoyances had been made from John arid Oanie! M Comas, thd legatees aforesaid; to William 31'Comas, for whose usé this suit is brought. But the court were of opinion, that the doctrine of presumption is ttí be resorted to, to fortify long and aheient possessions; when from the great lapse of time a probability may arise that title papers ¡¡ave been lost. But since the first of May 1767, all conveyances of land are to be placed upon the public records, or no interest for more than seven years will pass, and the court will not direct the jury to presume legal conveyances to have been made, when deeds regularly executed since the 1st of May 17G7) sire produced, which appear to have been recorded several years after the time prescribed by law. Théir being placed ont record by the party, (though not in due time,) operates against the presumption, as it is an evidence that he relied on them to support his tille; and to presume a legal conveyance to support a possession of only thirty-eight years Standing, under thd circumstances existing in this case, would be to elude the act of 1766, and to carry thd doctrine of presumption farther than it is believed ever to have been carried in this state, to support a possession that commenced subsequent to the passage of that act. The court therefore refused to give the direction prayed. The plaintiff excepted.- Verdict and judgment for the plaintiff for Fees Adventure. From that judgment both the plaintiff ánd defendants appealed to this court.
    The cause Was argued on both appeals before Chase, Ch. J. and Been anas, and Earle, J.
    
      Rey and T. Buchanan, for Bradford’s Lessee,
    upon the third bill of exceptions, referred to Norwood vs. Carroll, et al. Lessee, 4 Harr. & M‘Hen. 287. Hall vs. Gittings's Lessee, 1 Harr. & Johns. 18; and Yard vs. Ford, 3 Saund. Rep. 175, (note.)
    
    No counsel appeared for the other side-
    
      
      
        ) Although it is no where stated, yet the fact is, that William EDComas became an insolvent debtor, and transferred all bis estate SC. ts the lessor of the plaintiff.
    
   Chase, Ch. J.

delivered the opinion of the court. The court are of opinion, that the court below erred in refusing to give the direction prayed in the third bill of exceptions. It appears by the facts stated, that the plain tiff de» rived Ids title to Ward’s Purchase under a lease from the ■ agent of the Proprietary, granted to John Ward ori the 1st of September if42, and deduced a regular title under that Jeitse to Daniel and John M'Comas, the sons and devisees of Daniel M'Comas, uhderliis will made the 15th of June 1765. It also appears that Daniel ñu'Comas, the son,-was living on the land at the time of making the will. It also appears that the plaintiff claimed title to the land, and offered in evidenfcfe two deeds, one from Daniel ÉP Com as dated tiie IO'fh of April 1769, the other from John M'Comas dated the £lstof December 1774, the said deviseesj to William M'Comas, under whom the, plaintiff claims, for the said land, which deeds were rejected by the court as not being legal evidence — not having been recorded within the times required by law. If also appears, that William M'Comas became possessed of the said land from the dates of those deeds, and continued in possession until the year 1794, when he made the' contract with N. J). M'Comas, one of the defendants'. It also appears that no title was set up by the defendants adverse to the title under the said lease, and that William M'Comas, and those under whom he claims, have always possessed the land, under the said lease, to the yeah 1794, and that the possession1 of N. D. M'Comas Was acquired under the contract with WillitíM M'Comas, under whom the plaintiff claims, and not in opposition to his title.

These facts, in the opinion of the court, laid a sufficient foundation for the jury to presume good and valid deeds from Daniel and John M'Comas to William M'Co~ mas, of the said land, and the jury could not be precluded from making such presumption by defective deeds offered in evidence, because the same not being legally admissible, were properly rejected, and could, have no influence on the minds of the jury.

The court dissent from, the opinion stated in the third bill of exceptions, and concur with the opinions in the first and second bills of exceptions.

On the appeal by the plaintiff,.

JUDGMENT' REVERSED, AND PROCEDENDO AWARDED.

On the appeal by the defendants,

JUDGMENT AFFIRMED,  