
    
      John M. Swygart vs. Eli Taylor.
    
    To prove a deed to J. S. for two tracts of land which did not adjoin, and one of which only was in dispute, purporting to be seventy-two years old, and to have been proved shortly after its execution before a justice of the peace, but never recorded — 1st. The handwriting of the justice, who had been dead many years, was proved. 2d. That an old field, on the tract in dispute, was called J. S’s old field. 3d. That the only child of J. S, who survived him, about nine years after the date of the deed rented out, a field on the tract not in dispute. Held, that the deed was sufficiently proved to go to the jury.
    
      Any incontestible fact, going to show that a deed was in existence more than thirty years before it is offered in evidence, will authorize its introduction as an ancient muniment of title.
    
      jBefore Butler, J. at Lexington, Fall^ Term, 1844.
    This was an action of trespass, to try titles to a tract of one hundred acres of land.
    The plaintiff proved, 1st. A grant to Thomas Vaughan for one hundred acres, dated in May, 1772. 2d. A grant to Thomas Vaughan for fifty acres, dated November, 1771. These two tracts did not adjoin, and the suit was only in relation to the one hundred acre tract. The next link in the. plaintiff’s chain of title, was a conveyance by lease and release from Thomas Vaughan to John Hines, dated in September, 1772, for one hundred and fifty acres, describing the two tracts above mentioned, and including them. To authorize the introduction of this deed as an ancient paper, the following evidence was offered.
    The deed purported to have been proved before Fair-child, a justice of the peace, some time in the year 1772, shortly after its execution, by one of the subscribing witnesses*, Fairchild’s hand-writing was proved ; and it appeared that he had been dead for many years — probably more than thirty.
    Samuel Morris, a witness, about seventy-six years old,.. said he was acquainted with the land. He said that Polly Hines, the daughter and' only surviving child of John Hines, lived with her step-father, one Mason Izzard, and rented a field bn the fifty acre .tract, to George Spillers, the step-father of witneis. This was about eight years after Lord Rawdon had camped at the Cedar Springs, on his way to Ninety Six, which was in June, 1781. Settlements had been made on this piece, some time before Spillers rented it, as witness judged from appearances.
    The houses rented by Spillers from Polly Hines, were subsequently moved by one Jonathan Gilbert, to suit his ■own purposes. Gilbert lived at Cross Road, near Juniper Springs, but had no settlement on this tract. This witness said that there was an old field in the one hundred acre •grant, called the Hines Old Field. It was called an old ¿eld many years ago ; did not know that it was enclosed.
    Daniel Lomeneck said that he knows the old field on the one hundred acre tract; always called the Hines Old Field. The witness said he recollected the circumstance •of a hearty, fine-looking young woman riding up to Gilbert’s, and asking him if he knew of any one trespassing on her land, and he replied he believed not. She was said to be the last of her family, and witness understood she moved to Long Cane. This was sometime in 1788. The witness, who was seventy-two years old,/always heard the one hundred acre tract called the Hines’s land; it lay about one mile from where Gilbert lived.
    Under this evidence, the deed was admitted by the court 4o be read to the jury. The rest of plaintiff’s title was then clearly made out, and he had a verdict.
    The defendant appealed, on the ground,
    
      That the court ought not to have admitted in evidence' the conveyance from Thomas Vaughan to John Hines, as there was no proof of possession under it.
    Caldwell, for the motion,
    cited Fleta, 6 Book, chap. 34 j Co. Lit. 6 b; 1 Rolle, 132; Skin. 239; 2 Mod. 323; 1 Wm. Bl. 532; 3 J. R. 292-8; 1 Bay, 364; 2 N. & McC.. 55; 6 Binn. 439.
    Boozer, contra.
    1 Shill. Ev. 477; 5 Cowen, 123; 3' J. R. ,283; 7 Wend. 371; Í0 Sergt & Rawl. 199 ; 1 Hill,. 389; 2 N. & McC. 406 ; 4 Wheat. 213-221. .
   Curia, per

Butler, ’J,

The only link in the chain' of plaintiff’s title that has been assailed, is the conveyance: 'from Vaughan to John Hines. It has been contended'that, it was not sufficiently proved — which depends on the-question, whether the paper was properly admissible in evidence as an ancient deed. The deed purports to have-been executed seventy-two years ago ; and,.upon inspection,, it had all the appearance of an ancient paper. Any incon-testible fact., going to shew that a deed was in existence-more than thirty years before it is offered- in evidence, will authorize its introduction as an ancient muniment of right.. Possession is that which seems to be most generally resorted to for this purpose, because it is the most usual mode of' asserting a right under legal title. This is not, however,, indispensibly necessary, according to the reason of the principle applicable to such evidence, as- recognized by modem decisions.' For if a registering officer were to-swear that a paper had been in his office for more than thirty years, or it could be made to appear that it had been recorded for that length of time, these facts must necessarily prove its previous existence.

In the case under consideration, there is no difficulty... The possession of Polly Hines, by her tenants, is .not only reconcilable with the deed to her father, but should be referred to it. The main possession being on the fifty acre-tract, can make no difference, for the deed included that,., as well as the hundred acre tract. A possession, therefore, on either tract, would fulfil the strictest requisitions-of the law. But there seems to have been clearings at! least on both tracts; and at this length of time, we may-very well suppose that, these clearings were once enclosed, and were in actual possession. Besides these possessions, which must be referred to the Hines’s title, there are other circumstances which may be referred to as ancillary evidence, to shew that the deed in question was more than thirty years old. It has upon it. the probate of one of the subscribing witnesses, taken before a justice who must have been dead more than thirty years ago; such, at least, in the absence of all evidence, would be the'presumptions of the law; which are constantly reported to, to supply what may have been destroyed by the lapse of time.

The deed from Polly Hines to Etheldred King being proved to the satisfaction of all the parties, by the evidence of A. H. Fort, Esq. it presents no question for the opinion of the court. And its-existence being established, would go to confirm the previous existence of the other deed, and relieves the case from all doubt. Motion, refused.

Richardson, O’Neall, Evans and Frost, JJ. concurred.

Wardlaw, J.

I think the preliminary evidence here was sufficient to justify the admission'of the deed in question as an ancient paper, without further proof of its execution. But I do not think that incomestible evidence of a paper’s being thirty years old, is, of itself, sufficient to authorize its admission, without something else to shew that it was originally genuine ; for this purpose, some possession under it is, I think, requisite. That no possession, such as the paper was likely to produce, was resumed for thirty years, would usually be a circumstance from which suspicion of its authenticity, however old, might arise.  