
    [Chambersburg,
    Oct. 21, 1822.]
    PATTON and others against GOLDSBOROUGH.
    IN ERROR.
    Parol evidence of the declarations of the grantor is admissible, to prove the identity of a lot referred to in a deed by him, conveying certain “ lots m the town of H. marked on the recorded plan of the said townnotice having- been given to one of his executors, a defendant in the suit, and he having sworn that he never saw any such recorded plan, and the records of the proper county having been diligently searched, without finding any recorded plan.
    Where three executors were defendants, who had been notified on a former trial between the parties, to produce a paper, and on the present trial one of them had been notified, who swore, that he had made inquiry of the other members of the family, and diligent search had been made, -and the paper could not be found, and the deed of the testator, under which the plaintiff claimed, referred to the paper, the notice was held sufficient.
    Confessions by a grantor, that he had conveyed a-certain lot, are evidence against him and his executors, of the identity of the lot referred to in the deed ; but evidence of declarations or acts of such grantor, subsequently to his deed, is hot admissible to defeat the grant, by showing that it was not the lot referred to.
    Where both plaintiff and defendant derive title from the same person, who had been seised of the premises, it is not necessary that the plaintiff should show a title out of the commonwealth.
    Error to the Court of Common Pleas of Huntingdon county, in ah ejectment brought by William Ooldsborough against William Patton, and Richard Smith, Charles Smith, and Benjamin R. Morgan, executors of Dr. William Smith, deceased,* tried before a special court held by Reed, president, and the associate Justices of the Court of Common Pleas of Huntingdon county, under the act of assembly providing for holding special courts. A verdict and judgment passed for the plaintiff below.
    The ejectment was brought to recover a house and lot in the town of Huntingdon marked No. 11 in the town plot, which had formerly, among others, been the property of Dr. William Smith, under whom the plaintiff, who was his grandson, and also the defendants claimed. On the 15th May, 1783, Dr. Smith executed a deed to his daughter, Williamina Elizabeth Smith, the plaintiff’s mother, granting to her, among.other things, iefour lots in the town of Huntingdon, in the county of Bedford, marked on the recorded plan of the said town with the name of the said Williamina Elizabeth Smith:” and the main question between the parties was, whether lot No. 11, was one, of those embraced in this deed. The present county of Huntingdon composed in the year 1783, part of the county oí Bedford.
    
    The plaintiff gave notice to Richard Smith, one of the defendants, who resided in the town of Huntingdon, to produce, on the trial, the town plan' referred to in his father’s deed, and proved, that after a diligent search among the records of Bedford county, no plan of the town of Huntingdon was to be found of so early a date as the year 1783. A plan was produced on the .trial by Richard Smith, which had been recorded in the year 1795, and also, several other plans not recorded; but he declared, that he never saw such a plan as that which was mentioned in his father’s deed to his sister Williamina, nor could he find any record of it. The plaintiff then offered parol evidence, of repeated declarations by Dr. Smith, both before and after the building of the stone house on the premises, which he erected some time after the year 1790, “ that the lot for which the ejectment was brought, being distinguished by the number 11, on the recorded plan produced by the said Richard ■ Smith, was one of the four lots conveyed to his .daughter by the deed of May, 1783, before mentioned.” This evidence was objected to by the defendants, but admitted by the court, who sealed a bill of exceptions.
    The defendants offered in evidence a book, which had belonged to Dr. Smith and was in his hand writing, entitled by him, “ A Book of land property, begun at Philadelphia, January 1st, 1767.” It contained, among other things, an account of the property.conveyed to each of his children. In the list of property conveyed to his daughter W. E. Smith, were five lots in the town of Huntingdon, neither of which was No. 11, the lot now in dispute.- The book was produced by Richard Smith, who proved that he had received it from his brother Charles Smith, and that it was in the same condition at the trial as it was when he received it from his brother. The leaves of this book from page 55, to page 66, had b'epn torn out, but were all produced with it, except the leaf containing pages 60 and 61; and on the leaves thus produced, which had been torn out, there was the following indorsement, in the hand writing of Dr. Smith; “those taken from Book ofPro-'perty and paged to be restored to their place.” The plaintiff objected to the.admission of this book in evidence, and the court rejected it, and sealed a second bill of exceptions taken by the defendants.
    A third, fourth, and fifth bill of exceptions were taken to the following evidence offered by the defendants, and rejected by the court. 1. A letter from Thomas D. Smith (a son of Dr. Smith,) to his father, dated September, 1786, which was indorsed by Dr. 
      Smith and proved by Richard Smith to have been received from his father, to assist in making out a list of the rents of the town of Huntingdon. In this letter Thomas D. Smith spoke of the lot No. 11, now in dispute, as his property. 2. A paper in the hand writing of Dr. Smith, dated in the year 1802, in which the house and lot in question were spoken of as his own property, (his son Thomas D. Smith being then dead.) 3. A plan of the town of Huntingdon, made by Richard Smith, under the direction of Dr. Smith, in the year 1791.
    Certain points were proposed to the court by the defendants, the answers to which were excepted to.
    
      1st Point. — Answer of the Court. If there was an actual adverse possession for 21 years before the ejectment brought, it follows, that the plaintiff cannot recover. If the testimony of A. Dean, D. M‘Murtrie, and R. Campbell, be believed, the presumption of adverse possession is repelled: for they state, in substance, that Dr. Smith at various times, admitted a previous sale of the lot in question by him to his daughter, and that the house he was about to build, or had built, was on the lot, and intended for her child. If the jury believe the evidence, the statute of limitations is no bar to the plaintiff.
    
      2d Point. — Answer of the Court. Parol testimony respecting grants of real property, is not so safe as written: for the best memories, at times, will deceive the most cautious witnesses. But it may often be very certain and conclusive, and is not always to be considered dangerous. A jury should always weigh c< with great caution,” all the evidence in the ease. And we may add, that if the jury can believe, that the lot in question was granted to Thomas Duncan Smith, in 17S3, before the alleged grant to Willia-mina Smith, then the plaintiff could not recover. But on what evidence are you to believe, there was such a grant to Thomas D. Smith? The entry of his name in the old plan produced, - with the other papers and deeds is far from being conclusive of such grant.
    
      5th Point.-ylThatthe plaintiff must recover on the strength of'his own title; and the plaintiff, not having given B. R. Morgan and Charles Smith, notice to produce drafts and papers, they or either of them were not bound to appear in court, and swear, that they had no plan of the town of Huntingdon, prior to 1783, in their possession; and that the jury are not authorised by law to infer, that there is a plan in their power or possession, with the name of Wil-liamina Elizabeth Smith, for the lot in question, no notice haying been proved to have been served on them by the plaintiff in this suit.
    
      Answer of the Court. —The plaintiff must recover onthe strength of his own title. Benjamin R. Morgan and Charles Smith, the other executors, were- not e< bound to appear .in court, and swear that they had no plan of the town of Huntingdon, prior to 1783, in their possession.” But although they were not bound to appear, they had a right■ to appear, and prove the fact; and it would have been more satisfactory both to the court and jury, if those gentlemen had communicated their knowledge upon the trial, either establishing that there was, or was not such a plan as is referred to in the deed of 1783. The notice read is dated the 9th September, 1821, and only served on Richard Smith, Mr. Morgan,- and Charles Smith-, the other executors, were one at Lancaster, the other at Philadelphia. No opportunity was therefore afforded for them to produce any papers under it; and without such notice, they were not bound to produce any thing that would make against their claim. The law, therefore, does not authorise the jury, from these circumstances alone, to infer, that there is a plan in their power or possession, with the name Williamina Elizabeth Smith, inscribed for the lot in question.
    
      6th Point. — That the declaration of Doctor Smith, that he was building the stone house for his grandson, does not in law vest any title in that grandson to the lot in question.
    
      Answer of the Court. — It is not contended, that the declarations of Doctor Smith, that he was building the stone house for his grandson, vests any title in law, in that grandson, to the lot in question. The deed of 17S3 refers to a plan of the town, and to four lots with the name of the. grantee inscribed. That plan, if it existed, has not been produced. The evidence of Doctor Smith’s declarations was only offered to identify one of the lots alleged to be granted by the deed. If identified, the title would pass by the deed; not by the subsequent declarations of the grantor, but in virtue of the deed itself.
    
      7th Point. — That the plaintiff cannot recover, never having been in possession, nor nothavingshown any grant to Doctor Smith, or title out of the commonwealth.
    
      Answer of the Court. — If no adverse possession, has been show» in the defendants, or those under whom they claim, the want of a previous possession in the plaintiff is of no consequence. Both parties claim under Doctor W. Smith. The town of Huntingdon was laid out by him. • The drafts and evidence all show, that both parties claim under him. We think, therefore, it was not necessary on the part of the plaintiff to show a grant of Doctor Smith, or that the title is out of the commonwealth.
    
      Shippen and Burnside, for the plaintiffs in error.
    1. The evidence of the declarations of Dr. Smith ought not to have been admitted by the court below. It was improper for several reasons. Previous proof had not been made that any town plot of the kind referred to in the deed had ever existed, and been lost. The deed maybe considered as absolutely void, because there was no recorded town plot to identify the property conveyed. Where there was a blank left in a will for the legatee’s name, parol evidence to supply it was rejected, Phill. Ev. 418. But, at all events, secondary evidence was not admissible of the contents of such plot, till its existence and loss were first proved. There was a want of due diligence on this head in the plaintiff. Notice to produce it was not given to two of the defendants, Charles Smith and Benjamin B. Morgan, who it appears lived, the former at Lan caster, and the latter at Philadelphia, nor to any of the representatives of the Dr. Smith, except one of the defendants Pichará Smith, who resided in Huntingdon; and that notice was given only eight days before the trial. Whoever. would give parol evidence of the contents of a deed or other instrument, must entitle himself thereto, on the ground of its being lost or destroyed, or in the possession of the adverse party, and must further show thatno-tice had been given to him to produce it. The law abhors nothing more than giving parol evidence of written papers.. Campbell v. Wallace; 3 Yeates, 271. No parol evidence can be given of a fact concerning which there is a writing in existence, McKinney V. Lea-cock, 1 Serg. & Raiole, 27'. This evidence was objectionable, also, because it went to contradict the written evidence produced by the plaintiff; namely, the town plot of 1776, in which the natne of Thomas D. Smith was marked on this lot, and the recorded plot of 1795. Parol evidence is not admissible to contradict a deed or other writing. 6 Binn. 483. 4 Cranch, 224. 2 W. Bl. 1249. 1 Wils. 34. 1 Binn. 610.
    2d, 3d, 4th, and 5th bills of exceptions. These bills of exceptions all depend on the same principle. Our evidence of the acts and declarations of Dr. Smith ought, to have been received to rebut the parol evidence of his declarations, which had been admitted on the part of the plaintiff. It was all of the same character; it was secondaiy evidence resorted to ascertain the meaningof the deed, and the identity of the lot meant to be conveyed by Dr. Smith to his daughter, and therefore all tobe considered and weighed by the jury. The book of property was strong evidence on this subject, and existed prior to the deed. The leaves cut out were indorsed by Dr. Smith, and directed to be inserted according to the pages marked on them. Whether he withdrew the lost leaf, whether its contents were material, and the weight due to the evidence contained in the book, ought to have been left to the jury to determine'.
    
      Charge of the Court. — 1 st point, The court erred in their answer respecting the statute of limitations.
    
      2d Point. — The court stated their opinion of the evidence too strongly, when they said, that the evidence produced was far from being conclusive, that Dr. Smith had made a grant to Thomas D. Smith.
    
    
      4th and 5th Points. — On these points, the court did not give a full and fair answer. The judge said, that Charles Smith and B. P. Morgan, were not bound to appear in court and produce papers: and yet, that it would have been more satisfactory if they had appeared.
    
      7 th Point. The court below erred on this point The general rule is, that the plaintiff in ejectment, need only show his title as far back as the person who died last seised, first showing the estate to be out of the proprietaries, or the commonwealth. Shrider’s lessee v. Nargan, 1 Ball. 68. •
    
      Todd and S. Riddle, contra.
    1. The parol evidence produced by the plaintiff, was for the purpose of proving the contents of a lost writing. The existence of such writing was proved by the deed itself: though it appears Dr. Smith was mistaken as to the fact of its being recorded. Not being on record it would naturally pass from him into the hands of his executors. It is objected, that the notice to produce it should have been given to all the executors. In answer to this objection, it is to be observed, that on a former trial of this cause, in the year 1817, when á verdict was rendered for the plaintiff, on condition that he should pay for the value of the house, which was afterwards set aside, notice was given to all the defendants, to produce this writing. And in the present case, notice was given to Richard Smith, who stated that he had inquired of the rest of the family, and they could find no such plot as that referred to in the deed. Under such circumstances, the want of formal notice to them, cannot be complained of. Besides, the exercise of due diligence to obtain a paper is a matter of fact, for the sound discretion of the court below, and, after hearing the whole case, they decided, that proper diligence had been employed hy the plaintiff. Nor was this objection made previous to the admission of the evidence, that no notice had been given to two of the executors. The deed, on its face, was uncertain, and was to be rendered certain in relation to the property conveyed by other evidence. . To explain a latent ambiguity parol evidence is admissible.- Phill. Ev. 410, 412.
    2d, 3d, 4th, and 5 th bills of exceptions. As to the declarations of Dr. Smith, the distinction is, that though a man’s declarations are evidence against him, or those claiming under him, they áre not evidence for him to destroy his prior grant. All the declarations and acts of Dr. Smith, which we objected to, Were after the date of the deed: we made no objection to any that had occurred before. It is a sufficient reason to set aside the Book of Property, that it was produced in a mutilated condition..
    The court then told the counsel they need not speak to the remaining points.
   The opinion of the court was delivered by

TilghmaN, J. C..

This is an ejectment brought by William Goldsborough, the plaintiff below, against the executors of the late Rev. Br. William Smith, deceased, for a house and lot in the town of Huntingdon. Both parties claimed under Boctor Smithy and the principal question was, whether the lot in dispute, being distinguished by the number 11, in the town plot, was included in a deed from the Doctor, to his daughter Williamina Elizabeth Smith, deceased, dated the 15th day of May, in the year 1783. On the trial of the cause, the defendant’s counsel took five bills of exceptions to evidence, and five exceptions to the charge of the court: Iii Doctor Smith’s deed to his daughter, which was given in evidence by the plaintiff, who claimed under it, he grants to her among other things, four lots in the town of Huntingdon, in the county of Bedford, marked, on the recorded plan of the said town, with the name of the said Williamina, Elizabeth Smith.” The plaintiff served a notice on Richard Smith, one_ of the defendants, who resided in the town oí, Huntingdon, to prodüce the town plan referred to in his father’s deed, and proved, thát after diligent search among the records of Bedford county, no plan of the town of Huntingdon; was to be found of so early a date as the year 1783. Richard Smith produced a plan which was recorded in the year 1795, and several others not recorded; but. declared that he never saw such a plan as that which was mentioned in his father’s deed, to his sister Williamina; nor could he find any. record of it. The plaintiff then offered to prove, by parol evidence, repeated declará-tions of Doctor Smith, both before and after the building of the stone house, which he built On the lot in dispute sometime subsequent to the year 1790, “ that the lot for Which this ejectment was Si brought, being distinguished by the number 11, on the recorded il plans produced by the said Richard Smith, was one of the four lots *£ conveyed to his daughter, by the deed of May 1783, before mentioned.” To this evidence the counsel for the defendants, objected, but the court admitted it, and an exception was taken to their ¿pinions. . ■

The lots conveyed by Doctor Smith to his daughter* could not t>e ascertained by any thing which appeared on the face of the deed; It was necessary therefore to go out of the deed, and have recourse to the recorded plan, to which it referred — but no such plan was to be found. What then was to be done ? Dr. Smith appears to have been mistaken in referring to a recorded plan. He might have deposited one in the recorder’s office, for the purpose of beingrecord-ed, but there is no reason t'o suppose that it ever was recorded; because there was no proof that any of the records of Bedford county had been lost. But the deed is not to be defeated b'y.a mistaken reference of this kind. In order to give it efficacy, it must be presumed, that at its date, a plan was in existence, in which the name of W. E. Smith was marked on four lots, and inasmuch as Doctor Smith’s executors cóuld prodüce no such plan, it may fairly be concluded that if was lost. In that Case, the law admits parol evidence of its contents, and what evidence could be more proper, than the declarations of Doctor Smith who made the deed, and was proprietor of the ground on which the town of Huntingdon was laid out. He did not say expressly, that the plan referred to in his deed, was in his'possession, but he said that the lot No. 11, was one of those which he had conveyed to his daughter. It was very proper that the jury should hear this evidence, from which they- might draw their own conclusions. But it was objected by the defendant’s counsel, that notice to produce the paper supposed to be lost, should have been served on all the executors of Dr. Smith, and not on Richard Smith only. In answer to this objection, it is to be observed,that Richard, who lived in Huntingdon, was, the only executor who attended.the trial, and he declared, on his examination, that he had made diligent search himself, and inquired of the other members of the family. There was no reason to think, therefore, that the defendants were taken by surprise, or that the other executors could have produced any other papers. Indeed; from the nature of Doctor Smith’s deed to his daughter, which depended for its efficacy on a paper in the Doctor’s possession, he stood pledged to produce that paper whenever called on by his daughter, or those claiming under her. And as this cause was tried oncebefore, and a new trial ordered by the court, it must have been known perfectly well, by all the executors, that the plaintiff’s case depended on the town plan referred to in their father’s deed, and if either of them had it, it was his duty to produce it. The court below were satisfied, that every thing incumbent on the plaintiff, preliminary to the introduction of parol evidence, had been complied with, and there is nothing on the record which induces me to be of a contrary opinion. The defendant’s counsel urged another reason against this parol evidence, viz. that it contradicted the written evidence producedby them; meaning a town plan produced by Richard Smith, in which the name of Thomas D. Smith, (a son of Dr. Smith) was marked on the lot No. II. If the plan produced by Richard Smith, had been the one referred to in the Doctor’s deed, there would have been .weight in the objection. But it was not. The plaintiff did not recognise the plan which, was produced, as anypart of his title, and so far as concerned the lot No. 11, he was at full liberty to contradict it, by parol evidence. .If he could satisfy the .jury, that in the plan referred to in Doctor Smith’s deed, the name of W. E. Smith was written-on the lot No. 11, his title would be established, in spite of any other name which might have been written on the same lot, in any other plan. ' I am therefore, of opinion, that the parol eyidence was' properly received. ‘

The 2d exception was to the opinion of the court in rejecting a book offered in evidence by the defendants, in the hand writing of Dr. Smith, and called his book of property. In this book, the Doctor made entries from time to time, touching the disposition of his property; it was produced by Richard Smith, who proved that he had received it from his brother Charles, and that it was in the same condition at the trial, in which he received it from his brother. The leaves, from page 55 to page 66, had been torn out, but were all produced, except pages 60 and 61 — and on the torn leaves which were produced, was an indorsement in the hand writing of Dr. Smith, directing in what part of the book they were to be replaced.

However reputable the persons through whose hands this book had passed, the court was right in not permitting it to be read in evidence. Two pages were still wanting, and who could say, what those pages might contain: It would be (mjust to affect the plaintiff’s title by a mutilated book, which might have been in his favour if the whole had appeared — whether the book would have been evidence, if it had been entire, I am not prepared to say. But, as it was, it was properly rejected.

The 3d, 4th, and5th exceptions, depending on the same principle, may be considered together. The defendant offered in evidence the following papers- — 1. A letter from Thomas D. Smith, deceased, (a son of Dr. Smith) to his father, dated September, 1786-— on this letter was an indorsement in the hand writing of Dr. Smith, and Richard Smith proved, that he received it from his father, to assist in making out a list of the rents of the town of Huntingdon. Thomas D. Smith in this letter, spoke of the lot in dispute, as his property. — 2d. A paper in the hand writing of Dr. Smith, dated in the year 1802, in which the house and lot in question are spoken of as his own property, (his son Thomas D. Smith being then dead.) — 3d. A plan of the town of Huntingdon made by Rich--ard Smith, under the direction of Doctor Smith, in the year 1791. These throe papers were objected to by the plaintiff’s counsel, and rejected by the court. The objection to them was, that they were acts, or declarations, of Doctor Smith, subsequent to his conveyance to his daughter. It was a good objection; for no man shall he permitted to defeat his own grant by subsequent declarations. A man’s confessions are evidence against him, but he cannot make evidence for himself by counter declarations. On this principle, the declarations of Doctor Smith, that he had conveyed the lot to his daughter, were evidence against him, and against his executors who claim under him. When a confession is given in evidence, the whole of it is to be taken together. But a confession made atone time, cannot be rebutted by a declaration at another time, because, if that were permitted, a man might always destroy his confessions, by subsequent declarations to the contrary. The papers offered in evidence therefore, which tended to show a title in,Doctor Smith, could not be admitted, in order to rebut the parol declarations by which he had confessed the title to be in his daughter.

The charge of the court remains to be considered. The 1st exception is, to what was said on the subject of the act of limitations. The charge was, “that if there was 21 years adverse possession “against the plaintiff, he ought not to recover; but that if the’ evidence of Alexander Dean, David M’Murtrie, and Robert Si Campbell was believed, the-presumption of adverse possession 1 ‘ was repelled; because tírese witnesses swore, that Dr. Smith, at ei various times, admitted that he had conveyed the lot in question “ to his daughter, and that the house he was about to build, or had built upon it, was intended for her child”. Now who can deny that this evidence destroyed all presumption of adverse possession. The matter is really too plain to admitof argument. The 2d exception is, to that part of the charge, in which it is said, that if the lot in question was granted by Dr. Smith, to his son Thomas D. Smith, ‘‘ in 1783, before the alleged grant to his daughter Williamina, il then the defendant could not recover; but that the name of Thom-ilas D. Smith, entered in the old plan which had been produced, <£ with the other papers and deeds, were far from being conclusive ilevidence of such grant to the said Thomas D. Smith.” The defendants’ counsel complains, that the court stated their opinion of the evidence too strongly. I cannot say that I think so. Indeed I do not see how the court could have said less. The evidence was certainly very far from being conclusive. But it was left to the jury to estimate it according to their own opinion. No conveyance to Thomas D. Smith was given in'evidence. But there were circumstances in favour of his title, which were contradicted by other circumstances in favour of the title of Williamina Smith. The evidence could not properly be said to be conclusive on either side. The two next exceptions are, to the answers given by the court, in their charge, to the 5th and 6th propositions of the defendant’s counsel, on which the opinion of the court was required. The objection is, that the propositions was not answered fully and fairly. It is a vague kind of objection. I will not say that it was not possible to give a more explicit answer. But I think it was sufficiently certain, and what the jury could not misapprehend. And it is not contended that there is any thing against law in it. . It is plainly enough, expressed, that the jury are not to presume, that those executors of Doctor Smith, on whom a notice to produce papers was not served, had in their possession, the town planto which the Doctor’s deed referred — and that the declarations of Dr. Smith, that he was building the stone house for his grandson, did not vest any title in that grandson to the lot in question. These were substantial answers to the defendant’s 5th and 6th propositions. ■ The last exception to the charge is, on the answer to the defendant’s 7th proposition. The proposition was, “thatthe plaintiff cannot recover, having never been in possession, and not having shown any grant to ((Dr. Smith,ov title out oí the commonwealth.” The court answered, u that the defendant’s objections were not valid, because both parties t( claimed under Doctor Smith, and his possession was not adverse u to this.” The answer wasright, According to the testimony of Dean and others, the possession of Dr. Smith was in accordance with his daughter’s title. And as to a grant to him from the commonwealth, no positive proof of it was necesaary, because both parties affirmed, that he was seised of the ground on which he laid out the town of Huntingdon, and both gave evidence of title in themselves derived from him. Upon the whole then, I am of opinion, that there is no error in this record, and therefore the judgment should be affirmed.

Judgment affirmed.  