
    McKinnon, et al. v. Bliss.
    
      Evidence.—Recitals.—Historical Facts.—Hearsay.
    
    A recital of title, in an ancient will, is not, in general, evidence against', third persons, not claiming under it, unless accompanied by proof of a. long-continued and undisputed possession in accordance with it. .
    The recitals in a private statute are evidence that the facts were so repre- ■ seated to the legislature, but not of their actual existence, as against strangers.
    A local history is not evidence of historical facts ; to render an historical: work admissible in evidence, it must relate to facts of a public and: general nature.
    When no proof of an historical fact was given to the. jury, an appellate court will not take judicial notice of it, on the hearing of an appeal, from a judgment of nonsuit.
    ^"Hearsay evidence is, it seems, admissible of a remote transaction of a quasi public nature; but it must be derived from those who had an interest in acquainting themselves with its history.
    McKinnon •a. Bliss, 31 Barb. 180, affirmed.
    Appeal from the general term of the Supreme Court,, in the fifth district, affirming a judgment of nonsuit entered upon the trial. (Reported below, 31 Barb. 180.)
    This was an ejectment for about sixty acres of land in Herkimer county, described as part of Susannah Johnson’s 8000 acre tract, in the fourth allotment of the Royal Grant, in the town of Salisbury. The tract known as the-Royal Grant embraces a portion of the town of Herkimer, the principal portion of Fairfield and Newport, parts of' Russia and Mankeim, and all the settled part of Salisbury. The cause was tried at the Herkimer circuit, in May 1856, before Pratt, J.
    On the trial, the plaintiffs gave in evidence the will of Sir William Johnson, the patentee, which recited that the King, as a mark of his favor and regard, had given the testator a patent, under the great seal, for the tract of land called Kingland. He devised 3000 acres of this tract* to Susannah Johnson, his natural daughter, by an Indian 'woman; from whom the plaintiff derived title. They also read in evidence a private statute passed the 26th February 1797, for the relief of Jacob Merkle and others, which recited, among other things, that this portion of 'the Royal Grant belonged of right to Susannah Johnson; •and also another private statute of a similar character, passed the 31st March 1798. They then showed that 'fruitless search had been made for the patent to Sir William Johnson, or a copy thereof, in the state offices at Albany, and in the clerks’ offices of the several counties; and called as a witness Mr. Ford, a counsellor-at-law, who had resided in Herkimer county for forty years, and testified, that he had been conversant with titles and real property in that county, and knew the tradition current among the ^settlers on the Royal Grant concerning the letters-patent. They then propounded to the witness this question:—“ What is reported among the settlers of the tract to have been the disposition made of the instruments of title, or letters-patent?” This question was overruled by the court and the plaintiffs took an •exception. It was not shown that the defendant claimed title under the State, by grant subsequent to the Revolution. The court'nonsuited the plaintiffs, on the ground that no title had been shown in Sir William Johnson, and the plaintiffs excepted. The nonsuit having been affirmed at general term, the plaintiffs appealed to this court.
    *On the hearing of the appeal, the counsel for appepantg produced an exemplification from the public records office in London of the original letters-patent, which had been since discovered to be there recorded. He also read from Benton's History of Herkimer county, to show a prevailing tradition among the occupants of the Royal Grant, as to the manner in which the title had been acquired, and the mode in which the letters-patent had been destroyed.
    
      David Dudley Field, for the appellants.
    
      Francis Kernan, for the respondent.
    
      
       A recital in a will, under which a plaintiff in ejectment claims title, is not evidence against the defendant. Boyer v. Smith, 3 Watts 449. A recital is not evidence against a third person, though he himself give the instrument in evidence. Moore v. Metropolitan Bank, 55 N. Y. 41. And see Hardenburgh v. Lakin, 47 Ibid. 109.
    
   Selden, J.

The first question presented by this case is, whether it was sufficiently established, upon the trial, that Sir William Johnson, prior to his death in 1774, was the proprietor of a tract called the Royal Grant, situated in the now county of Herkimer, and embracing the premises in controversy. His title was claimed to have been derived from a grant directly from the British Crown.

For the purposes of this question, I shall assume, that the plaintiffs had made all the search for the original grant of letters-patent which the law requires; that they were not bound *to resort to the government records in London, and that the proof on that subject was sufficient to entitle them to give secondary evidence of such grant. If, then, the evidence given on that subject, taken in connection with facts and circumstances of which the court was authorized to take judicial notice, was sufficient to show primd facie that the grant or patent in question had ever existed, the nonsuit was wrong, and the judgment should be reversed.

The only evidence actually introduced upon the trial, having any bearing upon the question, consisted in the recitals contained in the will of Sir William Johnson, and the two acts of the legislature passed, respectively, in February 1797, and March 1798. Ho other evidence was given or offered, having any tendency to establish the existence of the patent; unless some slight weight be attached to the fact stated by Mr. Ford, that there is a tract in Herkimer county, known as the Boyal Grant. To establish that such a grant was made, therefore, the counsel for the plaintiff relies: First, upon the recitals in the will: Secondly, upon the two statutes read in evidence: and Thirdly, upon the public history of the period in which Sir William Johnson lived, and especially upon a manuscript memorial addressed to the King, and dated in lYlG, published in the Colonial History of this state (vol. 1, p. 839), in which Sir William prays for a grant of the tract in question, of which history, memorial, &c., the counsel claims the court should take judicial notice. As the force of each of these items of evidence depends upon considerations and principles peculiar to itself, they must be separately examined.

•The will read upon the trial recites, or rather assumes, that the testator owned the tract called the Boyal Grant, or Kingsland. Is this any evidence of such ownership, in favor of those claiming under the will?

The general rule in regard to recitals in deeds or other instruments is, that they are evidence against the parties executing such deeds or instruments, and those -who claim under them, but not in their favor. The admissibility of the recital depends upon the same princiP^es as *he admissibility of a ^declaration of the party executing the instrument; such recitals, therefore, are, in general, no evidence against third persons, who are strangers to the deed or instrument in which they occur.

It is true, that an exception has sometimes been admitted, in cases where the inquiry relates to transactions of an ancient date, and where, in consequence of the loss or destruction, from the lapse of time, or other causes, of better evidence, it became necessary to resort to that of a secondary character. A reference, however, to a few of the cases of this class will, I think, show that they differ from this in an essential particular.

In the case of Doe v. Phelps (9 Johns. 169), a deed executed in 1767, by one of several patentees of a tract of land in Otsego county, in which one of. the grantors assumed to execute, not only for himself, but as attorney for eight other persons, was treated as affording, of itself, sufficient evidence of the executipn of the necessary power of attorney. But it was further proved, in that case, that the lots in this patent, generally, were held under titles derived through this deed; and a witness testified, that the defendant did not pretend to claim' any title to the premises; reliance was placed upon these facts, and the court said“ After a lapse of forty-four years, and luhen the possessions have gone along with the deed to Yan Dam, and where no pretence of claim in opposition to that deed has been heard of, the execution of the power of attorney recited in the deed of 1767, may reasonably be presumed.”

So, in Jackson v. Lamb (7 Cow. 431), where the mutilated fragments of an ancient lease, dated in 1774, which recited that it was given in order to support a release, were allowed to go the jury as evidence of the execution of the release, but only in connection with proof of possession in accordance with the release claimed. Upon the motion for a new trial Savage, C. J., said:—“The facts are certainly sufficient to warrant the presumption of a release; the lease for a year, preserved for a long time among Campbell’s papers, the possession of forty years, upon part of lot No. 1, and the possession of other lots in the patent belonging to the same right, are abundantly sufficient to authorize the presumption.”

case which goes as far, perhaps, as apy other to support the position taken here, is that of Jackson v. Lunn (2 Johns. Cas. 109). The action was ejectment for a lot of land in the county of Montgomery; a patent had been granted to several persons, in August 1785, for fourteen thousand acres of land, including the lot in dispute; the lessors of the plaintiff were permitted, to prove, that their ancestor, Sir Peter Warren, who was not one of the original patentees, claimed, in 1736, to own the whole tract, and executed a large number of leases, in that year, in which he asserted such ownership. But it was further proved, that Sir Peter continued to exercise acts of ownership of the property, until the time of his death, and that his heirs did the same, after his death, and that his title and that of his heirs was acknowledged by the tenants upon the patent, and remained undisputed, until after the year 1783. Under these circumstances, the court held that a conveyance from the original patentees to Sir Peter Warren might be presumed.

That case bears a close resemblance to the present, in this, viz.: The heirs there were suffered to avail themselves, as evidence, of an assertion of title made in a document signed by their ancestor. But the difference in other respects is wide; there, the assertion of the ancestor was sustained by possession under an undisputed claim of title for nearly fifty years; and here, there is no proof of possession for a single day.

These cases illustrate the rule on this subject, which is, that assertions of title, or claims of ownership, made in deeds or wills, may, in some rare cases, be evidence in favor of persons claiming under the grantor or testator by whom such deed or will was executed, but only in connection with other proof of a long-continued and undisputed possession, in accordance with the right or title claimed. Here, there was no such proof, and I see nothing to take this case out of the general rule, that recitals or assertions contained in any deed or other written instrument, are never evidence in favor of the party who executes the deed, &c., or any person claiming under him, nor against strangers.

*The next question is, whether the two acts of the legislature read in evidence, afforded any proof of the existence of the grant. That the preambles to public statutes are admissible in suits between private individuals, as evidence of the facts recited in them, may perhaps be conceded (Rex v. Sutton, 4 M. & S. 532); although, in such cases, the evidence, I apprehend, is primé facie onty, and not conclusive. But private statutes have never been held admissible against parties in no way connected with such statutes. Evidence of this description was rejected by the court of king’s bench in the case of Brett v. Beales (1 Mood. & Mal. 416), although the act in that case expressly provided, that it “ should be deemed and taken to be a public act,” and should be “judicially taken notice of as such by all judges, justices and others, without being specialty pleaded.”

The objections to such evidence are well stated in the case of Elmendorf v. Carmichael (3 Litt. 472). The court there say:—“ The facts recited in the preamble of a private statute, may be evidence between the commonwealth and the applicant or party for whose benefit the act passed; bufas between the applicant and another individual whose rights are affected, the facts recited ought not to be evidence. * Once adopt the principle that such facts are conclusive, or even primé facie evidence against private rights, and many individual controversies may be prejudiced and drawn from the functions of the judiciary, into the vortex of legislative usurpation, * * * Such a preamble is evidence that the facts were so represented to the legislature, and not that they really existed.”

All who are familiar with the general course of legislation, will readily concur in the conclusion arrived at in this case. It is true, that in the case before us, we have much greater reason to place confidence in the accuracy of the facts recited and assumed in the acts read in evidence, than in the case of most private acts; for the reason that here ivas a body of'public officers called the Commissioners of Forfeitures, whose special duty it was, to inquire into and ascertain the truth of the representation *npon which the legislature acted. Still, the principle is not changed; the acts are res inter alios acta, and cannot affect those who are in no manner parties to them. Under certain circumstances, these acts might have been very satisfactory evidence in this case; they would undoubtedly operate as admissions by the People of the State, that the tract known as the Royal Grant did b.elong to the devisees of Sir William Johnson; if, therefore, it appeared, that the defendant claimed by virtue of a title derived from the State, since the Revolution, the evidence would have been admissible against him. But this fact cannot be presumed; grants may have been made by the King, or by the colonial governors, to other persons as well as to Sir William, under some of whom the defendant may claim. There is neither fact nor circumstance in the case from which anything can be inferred on this subject; and the burden rested upon the plaintiffs to show the proof admissible. The acts in question, therefore, if objected to, could not have been read in evidence; and although read without objection, they prove nothing as against the defendant.

The plaintiffs’ title, therefore, derives no support from the proof actually given upon the trial; and it only remains, upon this branch of the case, to see whether the historical evidence relied upon is sufficient to establish it.

There are several very conclusive objections to this evidence. In the first place, it was not introduced or offered upon the trial. There are, no doubt, cases in which courts, upon questions addressed to them, may take judicial notice of matters of general history and of public and universal notoriety, Avhich admit of no dispute; but upon the trial of issues of factby a jury, if reliance is placed upon any matters of this sort, some evidence of them must be adduced. In all the early cases on the subject, the histories relied upon were produced at the trial. Thus, in the case of St. Catharine's Hospital (1 Vent. 149), where the question was, as to the right of a Queen Dowager to appoint a master of the hospital; it having been decided in 4 Edw. III., that she had no such right, Lord ■ Hale allowed it to be “ shown out of Speed’s Chronicles, produced in court, that *Queen Isabel was under great calamity and oppression, and what was then determined against her, Avas not so much from the right of the thing, as the iniquity of the times.” So, in the case of Lord Brounker v. Sir R. Atkins (Skin. 14), “ Speed’s Chronicles, xvas given in evidence, to prove the death of Isabel, Queen DoAvager of EdAvard II.”

This point Avas directly considered by the court of appeals of Virginia, in the case of Gregory v. Baugh (4 Rand. 611), Avhich Avas an action brought by Baugh to recover his freedom. The case turned upon the question, Avhether the plaintiff was of Indian descent; and the judge, at the trial, had charged the jury, that “ it was a question to be decided upon probabilities and circumstances, among Avhich it Avas laAvfulfor the jury to consider facts connected with the history of the country, as if formally proAmd to them.” Judge Cabe, in delivering the opinion of the court, after quoting this part of the charge, says“ This, I presume, cannot mean, that the jury are to consider such facts as if formally proved, iuhen proved; but that, without proof, they are to consider them as if formally proved; that is, that each juror might take any f-icts as formally proved, which he may have heard of in a way to satisfy his mind, and might consider as connected with the history of the country. If this be the meaning, it is contrary to law; for it is laid down in all the books, that there must be some proof adduced of historical facts.” There is no doubt, I think, that the rule is as here stated; that it should be so, is obvious; not only in order that the jury may all be equally possessed of the evidence from which their conclusions are to be drawn, but that the facts upon which their conduct is based may be known.

Another objection to this evidence ite, that Benton’s History of Herkimer County, from which most of the facts relied upon are drawn, would not have been admissible in evidence if offered upon the trial. First, it is doubtful, whether any historical work can be read in evidence, while the author is living, and can be called as a witness to state the sources of his knowledge. (Morris v. Lessee of Harmer’s Heirs, 7 Peters 554.) * Another objection is, that it was not a general, but a mere local history. In the case of Evans v. Getting (6 Carr. & Payne 586), where the question was, as to the boundaries between two counties, the plaintiff proposed to read from Nichol’s History of Brecknockshire, to show the boundaries of that county, but Baron Alderson, before whom the trial was had, saidThis is a history of Brecknockshire; the writer of this history ' probably had the same interest in enlarging the boundaries of the county, as any other inhabitant of it; it is not like a general history of Wales; I shall not receive it.” It may, with equal propriety, be said here, the writer of Benton’s History, may have had an interest in establishing the title to the Royal Grant. This kind of evidence is only received from necessity, and should be strictly guarded.

But a more conclusive objection to any mere historical evidence in this case is, that such evidence is only admissible to prove facts of a general and public nature; and not those which concern individuals or mere local communities. In the case of Stainer v. Burgesses of Droitwitch (1 Salk. 281), Camden’s Brittania was offered in evidence upon a question as to the custom of Droitwitch; but the court refused to receive it, holding that “ a general history might be given in evidence to prove, a matter relating to the kingdom, in general, because the nature of the thing requires it, but not to prove a, particular right or custom,.” So, in the case of Morris v. Lessee of Harmer’s Heirs (supra), the court says:—“ Historical facts of general and public notoriety, may indeed be proved by reputation; and reputation may be established by historical works of known character and accuracy.” So, in a late case in this state, viz., Bogardus v. Trinity Church (4 Sandf. Ch. 633, 724), the vice-chancellor, speaking of evidence derived from public records, statutes, legislative journals, historical works, &c., says, that' it is restricted, as to historical evidence, to facts of a public and general nature.” There is, indeed, no doubt, that it is strictly confined to facts of this sort; history is only admissible to prove history, that is, suóh facts as being matters of interest to a whole people, are usually incorporated in a general history of the state or nation.

*The historical evidence relied upon, therefore, even had it been offered upon the trial, could not have been received, .with the exception, perhaps, of the memorial of Sir William Johnson to the King, published in vol. 7 of the Colonial History of the State. I am inclined to think, that had a proper foundation been laid for the introduction of this document, by showing, that the tract known as the Royal Grant had been generally possessed and occupied, from the time of Sir William’s death, under a claim of title derived from him, both this memorial, and the will of Sir William, would not only have been admissible, but sufficient, perhaps, to authorize the jury to presume that a patent had been issued pursuant to the prayer of the memorial. But such a document must clearly be introduced upon the trial"; and could no more be taken notice of, without proof, than the patent itself, if one was issued pursuant to its request. The conclusion from these views is, that there was no evidence actually introduced upon the trial, nor any which the jury had a right to consider, which has any tendency to establish the fact that the grant in question had ever been made.

The only remaining question is, whether the court erred in rejecting the question put to the witness Ford, in respect to the common report among the settlers upon the Royal Grant, as to the disposition which had been- made of the letters-patent.

The answer to this question, if admitted, would have been wholly immaterial, unless accompanied by proof that the patent had once existed; and no such proof was given. But as it may be said, that when this question was asked and rejected, the proof was not closed, and that if the answer had been received, the plaintiff might afterwards have given evidence of the execution of the letters-patent. I will briefly consider the point.

That hearsay or reputation is admissible as evidence, upon questions of pedigree or family relationship, and also upon questions respecting the boundaries of lands, is a familiar doctrine. But there are, no doubt, other cases in which the same kind of evidence may be received, for the purpose of establishing a mere private right, when the fact to be proved *is one of a quasi public nature, that is, one which interests a multitude of people, or an entire community; and it seems to me, that this case is one that might fairly be considered as falling within the latter class. The Royal Grant, as it is called, is an extensive tract, embracing an entire township and parts of several others; and everything relating to the original document upon which the title .depended, would necessarily affect the interests of every occupant of the tract. Again, thé fact sought to be proved, viz., the burying in the ground, by the descendants of Sir William Johnson, of the muniments of his title, is one which would scarcely be susceptible of any other kind of proof. Of too ancient a date to be proved by eye-witnesses, and not of character to be made a matter of public record, unless it could be proved by tradition, there would seem to be no mode in which it could be established. It is a universal rule, founded in necessity, that the best, evidence of which the nature of the case admits is always receivable; hence, had a proper foundation been laid for the proof in this case, I should have thought it admissible.

But it is always a condition to the introduction of evidence of reputation, in such cases, that it should appear to come from persons Avho may justly be supposed to have had some knowledge on the subject. The doctrine is very clearly stated, and the reasons for it given, by Professor Greenleaf in his Avork upon EAddence (§ 128). After stating that upon questions of a strictly public nature, “all persons must be presumed conversant” Avith the facts; and hence, that in such matters, “in which all are concerned, reputation from any one appears to be receivable,” he proceeeds to say—“ On the contrary, when the fact in controversy is one in which all the members of the community have not an interest, but those only who live in a particular district, or adventure in a particular enterprise, or the like, hearsay from persons wholly unconnected with the place or business would not only be of no value, but altogether inadmissible.” Again, he says (§ 137)—“The probable want of competent knowledge, is the reason generally assigned for rejecting evidence of reputation, or common fame, in matters of mere private right.”

*"*"n mos* cases involving questions of fact affecting particular localities, as towns, counties, manors, or the like, it would be sufficient to' show that the reputation or tradition offered in evidence was derived from persons inhabiting the particular town or district. But here that is not enough; because, unless the residents upon the Boyal Grant claim to hold their lands under and by virtue of the patent in question, they would have no special interest in acquainting themselves with its history; and consequently, no presumption "would exist, that they possessed that peculiar knowledge on the subject, which is always required in order to let in proof of this kind. For the reason, therefore, that it was not shown that the settlers upon the tract known as the Boyal Grant, generally, held their possessions and claimed their titles under Sir William Johnson or his devisees, the question put to Mr. Ford was, in my opinion, properly rejected. The judgment of the supreme court should therefore be affirmed.

Judgment affirmed. 
      
       See Deery v. Cray, 5 Wall. 795.
     
      
       A recital in a private statute, legitimizing a bastard, of the parentage of the child, is primd fade evidence of the fact. McGunnigle v. McKee, 77 Penn. St. 81.
     
      
       See Commonwealth v. Alburger, 1 Whart. 484.
     
      
       In this case, was cited a case, about twelve years before, of Neale v. Fry, where a deed was produced to be made, 1 Ph. & M., wherein all the titles were given to Phillip which he used after the surrender of Charles V.; now, though Charles had then surrended, yet Phillip did not take these titles upon him until that surrender had been received by the Council of Spain, which was six months after; so that the deed must needs have been forged. And to prove the time of receiving that surrender, Chronicles were produced, and admitted in evidence.
     
      
       A government gazette is not competent, to prove a fact of a private nature. Brundred ads. Del Hoyo, Spencer 328.
     
      
       See Lamb v. Davenport, 1 Sawyer 619-20.
     
      
       The rule allowing new evidence to be admitted on appeal, is confined to record evidence in support of the judgment; it cannot be received to effect a reversal. Porter v. Waring, 69 N. Y. 250. Stilwell v. Carpenter, 2 Abb. N. C. 238.
     