
    Bell against the Lessee of Wetherill.
    A recjtal ia a patent-of prior convey-, apees, without other proof, is not evidence of the exist- ’ ence of such conveyances against a person claiming under atitle paramount, and who has had adverse possession.
    In Error.
    ERROR .to tjie .Common-Pleas of Dauphin,cqunty, .in ejectment. .
    : The plaintiff claimed, under- a .warrant to George Bartramf dated Marsh 15th, 17.74, and - survey thereon, April 20th, 1774. The title .of. George Bartram was regularly deduced to the plaintiff, except that certain deeds from George Bar-tram to Alexander Bartram,-and- from-Alexander Bartram, to William Hiorn were not produced. They were, however, recited in the patent from the Commonwealth, subsequently granted to William Hiorn* -which was given in evidence on the trial. Possession had not accompanied the patent, but had been'adverse, and the defendants' title,.under the Commonwealth, commenced prior to the date of the patent. Under-.these .circumstances, .the.Courtbelow left.it to.the jury to presume that there were such conveyances, which, from the lapse, of years had been lost.
    
      Fisher, for the plaintiff, in error,
    cited Stoever v. Witman.
      
       Penrose v. Griffith.
      
       Bonnet v. Devebaugh.
      
    
    Elder, contra.
    
      
       6 Binn. 419.
    
    
      
      
         4 Binn. 231. 240.
    
    
      
       3 Binn. 179.
    
   Tilghman C. J.

delivered the opinion of the Court. In this case the Court of. Common Pleas left it to the jury to presume a deed, of the existence of which there Was no other evidence than a recital in the patent to William Hiorn, under Whom the plaintiff claims: and the presumption was set up against the defendant, who derived title from the Commonwealth,/jrior to the date of the patent. That such recital alone was not. sufficient evidence, was decided by this Court, in the case of Penrose v. Griffith, and the principle has been recognised in other, cases. I should be glad to lay hold of an^ circumstance to warrant a presumption: but there appears to be nothing to rest on in this case. The possession has been adverse; nor was there evidence of payment of taxes, nor any single circumstance to strengthen the naked recital in the patent. The case cannot, therefore, be distinguished from Penrose v. Griffith. The judgment must, therefore, be reversed, and a venire facias dé novo awarded.

Judgment reversed, and a venire facias de novo awarded.  