
    GENERAL COURT,
    MAY TERM, 1797.
    Richard Hoddy’s Lessee against William Harryman.
    THIS was an ejectment for an undivided moiety of a tract of land called Shaw's Fancy; also of an undivided moiety of Shaw's Delight, and also of Shaw's Privilege, all lying in Baltimore county.
    At the trial of the cause three bills of exceptions were taken.
    For the first, the plaintiff offered in evidence the patent for the tract of land called Sham's Fancy, granted to Christopher Shaw the 10th of August, 1684, for 100 acres, and which was admitted to comprehend the whole of the lands mentioned in the declaration. He also offered in evidence the last will and testament of Christopher Shaw, dated the 11th of February, 1739, by which he devises all his real estate to be equally divided between John Ingle and Ruth Bayes, in fee-simple. That Christian Shaw, the devisor, was a son of Christopher Shaw, the patentee.
    The plaintiff further offered in evidence a deed from Robert Boyd, and Ruth, his wife, to George Harryman, dated the 6th of December, 1742, conveying to George Harryman one half of Shaw's Fancy, one half of Shaw's Delight, and Shaw's Privilege, which land is recited in the deed to have been devised by Christopher Shazv to John Ingle and Ruth Bayes, the wife of the said Robert Boyd, and is acknowledged in the form following ; u Memorandum, that on the 6th of December, 1742, came Robert Boyd, party to the within deed, and acknowledged the said lands and premises therein mentioned, to be the right, title and estate of the within named George Harry.mcm, his heirs and assigns ; and at the same timz_Ruthv 
      the wife of the above said Robert Boyd, acknowledged the within bargained lands to be the right of the said George Harryman, his heirs and assigns for ever, accordjng to the directions of the act of assembly, in such case made and provided;” &c.
    The plaintiff also offered in evidence to the jury that? the said Ruth mentioned in the deed was Ruth Bayes, to whom the said Christopher devised the' undivided half of his lands ; also that Robert Boyd, about 16 years past, moved from Baltimore county into the state of Virginia, where he died about ten years past; also that Christopher Shaw, the devisor, lived and died on the said tract of land in dispute, and that the said George Harryman, and those claiming under him, have been in possession of the premises from some time before the year 1750, until the present time.
    The defendant then offered evidence that the said Christopher, to whom the said tract of land was granted, left two sons, Thomas and Christopher ; (the devisor;) that Thomas was the eldest, and died leaving his eldest son, Christopher Durbin Shaw; and offered evidence that the said Christopher Durbin Shaw had been in possession of part of the lands in dispute ; but without offering evidence that George Harryman, or those claiming under him, ever possessed the said lands antecedent to the said deed from the said Boyd and wife. The defendant produced a paper purporting to be a bond of conveyance from Christopher Durbin Shaw, to the aforesaid George Harryman, dated the 11th of February, 1737-8, the condition whereof is, that Christopher Durbin Shaw should convey all his right and title to the tract of land called Shaw's Fancy, or all the land he held any claim to in Baltimore county; which bond purported to be signed and sealed by Christopher Durbin Shaw, in the presence of two witnesses.
    The defendant then offered to read the same in evidence to the jury, without proving the execution thereof;' Whereupon the plaintiff, by his counsel, objected that the defendant was not entitled to read the said paper without proof of the execution thereof, or of possession by George Harryman, or those claiming under him, at some period antecedent to the execution of the said deed.
    
      The Court were of opinion that the said bond from the said Christopher Durbin Shaw, to the said George Harryman, the grandfather of the defendant, may be given in evidence to the jury without proof of the execution thereof, the said defendant, and those under whom he claims, having been in possession of the lands in question for more than forty-seven years; and the said paper, purporting to be a bond from the said Christopher Durbin Shaw, was read to the jury accordingly. To this opinion the plaintiff excepted.
    
      2d exception. The plaintiff also offered in evidence a transcript from the land records of Baltimore county court, purporting to be a deed from the said Robert Boyd and wife, to George Harryman, under which the said George Harryman, the defendant, claims, for the purpose of showing that the said Harryman entered and possessed the land mentioned in the declaration, or some part of it, under the deed, claiming under them, or one of them; which deed was acknowledged as set forth in the first exception. And also read in evidence a transcript from the land records of Baltimore county, under the seal of the county court, purporting to be a deed from Christopher Durbin Shaw to the said George Ha: ryman, of an undivided half of Shaw’s Fancy and Shaw’s Delight, dated the 9th of March, 1738 ; to which deed is the following acknowledgment, viz. “ Memorandum, that on the 9th day of March, 1738, came Christopher Durbin Sham, and acknowledged the lands and premises within mentioned to be the right, title and estate of the within named George Harryman, and his heirs and assigns for ever : and at the same time came Susanna, wife of the said Christopher, and acknowledged the land and premises to be the right, title and estate of the said George Harryman, his heirs and assigns for ever, according to the direction of an act of assembly in such cases made and provided.” Made before two justices of the peace; which transcript was read in evidence by the plaintiff to prove that George Harryman entered into one moiety of the .said two tracts of land, and possessed the same under the said deed, claiming the same under the deed; and that the said Christopher Durbin Shaw, by that deed, meant, only to sell one undivided moiety of the said lands to George Harryman; both which transcripts had been, before they were so read to the jury, and on the production thereof, submitted to the view and examination of the counsel for the defendant, by which counsel they were returned to the counsel of the plaintiff, without any objection to their being read to the jury ; and they were read without objection ; but during the trial of the cause, and on the next day after they had been so produced and read to the jury, the defendant’s counsel prayed the court to determine the said transcripts ought not to have been read to the jury, because the deeds do not appear to be legally acknowledged, and, therefore, that they should be withdrawn, or not considered as evidence in the cause, and that the court could take no notice of their contents for any purpose of proof, and that the jury, in forming their verdict, was not to notice those transcripts, or th,eir contents.
    Key, for the defendant,
    contended that the copy of the deed produced yesterday by the attorney-general, from Boyd and wife, the acknowledgment being defective, could not be read in evidence for any purpose.
    
      Martin
    
    (Attorney-General) admitted it could not convey any interest in the bargainee, but insisted it might be read to satisfy the jury of the fact, that the bargainee entered under that title; and that moreover the counsel of the defendant was too late in his objection, as the deed had been read, and the objection was waived, being made too late j that if it had been made in time, he could have produced the original.
   The Court

(Chase and Duvall

against the opinion of the chief judge) were of opinion the said transcripts were not legal evidence, they nothavingbeen acknowledged according to law; that they could not be legally offered to the court and jury for any purpose of proof, and that the jury, in forming their verdict, was not to notice those transcripts or their contents. To this opinion the plaintiff’s counsel excepted.

3d. For the 3d bill of exception, the plaintiff offered in evidence the two grants, the one for Shaw's Fancy, and the other for Shaw's Delight, granted to Christopher Shaw; that they are two of the tracts mentioned in the declaration, and it was admitted that the true location of the land called Shaw's Fnncy, included the whole of the tract called Shaw's Delight; that Shaw the grantee left two sons, Thomas, his eldest son, and Christopher, the younger son ; that Thomas died leaving a son named Christopher Durbin Shaw his heir. He also offered in evidence the will of the said Christopher, son of Christopher, the grantee ; that Ruth Bayes, one of the devisees therein named, intermarried with Robert Boyd; The transcript of the deed from the said Boyd and wife to George Harryman, the grandfather of the defendant, under which said George the said defendant claims : That after the death of Thomas Shaw aforesaid, the said Christopher Durbin Shaw lived on the land called Shaw's Fancy, until the date of the deed from him the said Christopher Durbin, Shmv, to the said George Harryman : The transcript of the deed aforesaid, from the said Christopher Durbin Shaw to the said George Harryman : That the said Christopher Shazo, son of the patentee, lived on the land called Shazo’s Fancy some years before his death, and was living thereon until his death ; that the lands meant to be conveyed by the said deed from the said Christopher Durbin Shaw to the said George Harryman, though called Szvan’s Fancy and Swan’s Delight, were in reality the tracts called Shaw’s Fancy and Shaw’s Delight.

The plaintiff also offered in evidence theentries in the rent roll of lands situate in Baltimore county, preserved in the land-office, to wit:

“ 97 acres yly rent 3s. 10c/. Shaw’s Delight, surv. 15th June, 1688, for Christ, Shazo on the S. side of Middle River.

“ 48 a. Is, lid. George Harryman from Xphr. Durbin Shazo, 9th March, 1738.

“ 97 a. 3s. 10c/. Georgs Harryman from Robert Boyd and wife, 6th December, 1743.

" 100 a. 4s. Shaw’s Fancy surv. 10 Augt. 1680, for Xpher. Shazo on the W. side Middle River at bound Spanish Oak of the land called Hopewell.

“ 50 a. 2s. George Harryman from Xpher. Durbin Shazo, 9th March, 1738.

“ 100 a. 4s. George Harryman from Robert Boyd and wife, 6th December, 1743.”

That the said George Harryman, and those holding under him, have possessed the said land called Shaw’s Fancy ever since the said deeds were so executed, until the present time. That Richard Hoddy, the lessor of the plaintiff, before the commencement of this suit, married Alary, the daughter of the said Robert Boyd and Ruth his wife, and that the said Hoddy and wife live in the state of Virginia ; that the said Robert Boyd died in the same state six years past, and that the said Ruth his wife died about fifteen or sixteen years past.

The defendant offered in evidence the grant of the tract of land called Shaw’s Fancy to the said Christopher Shaw ; that the said Shaw died leaving two sons, Thomas, the eldest son, and Christopher, the youngest. The grant of the land called Shaw’s Delight to the said Christopher Shaw the elder. That Christopher, the grantee of Shaw’s Privilege, was the brother of the said Thomas, and youngest son of Christopher the elder. The admissions of the plaintiff, that the said land called Shaw’s Privilege waslocated and contained within the lines and location of the land called Shaw’s Fancy. That Thomas Shaw died leaving an only son and heir at law Christopher Durbin Shaw ; that the said Christopher Durbin Shaw entered upon, held and had possession of part of the said land called Shaw’s Fancy, at the time Christopher Shaw had possession of part thereof. That George Harryman, more than fifty years ago, entered upon, held, used and claimed the said land called Shaxv’s Fancy as his own proper estate and right. The bond for the conveyance of the said land executed by Christopher Durbin Shaw, and conditioned for the conveyance of the said land George Harryman and his heirs, dated the 11th of February, 1737-8. That the said George Harryman entered upon, qccupied and was possessed of the whole of the said land called Shaw’s Fancy, and afterwards died so seised thereof, leaving George Harryman his eldest aou and heir at law. That the said George Harryman, the heir at law, after the death of his father, entered upon, and became seised of, the said land as the law required, and afterwards died so seised thereof, leaving William Harry-man, the defendant, his eldest son and heir at law, who, after the death of the said George Harryman, his father, last mentioned, as heir at law, entered upon the said land called Shaw’s Fancy, and hath ever since held and possessed the same, and is now in possession thereof, and is the defendant in the present cause.

Martin, (Attorney-General,) for the plaintiff.

It is equity and humanity to protect the rights of married women. The deed being a void deed cannot be argued from : the deed from Christopher Durbin Shaw is for one undivided moiety. This shows plainly what the one party meant to sell, and what the other meant to buy. Under this deed George Harry man was entitled to one moiety only. On the 11th of February, 1/39, Christopher Shaw made his will, and devised the other moiety to Ruth Bayes and John Ingle, to them and their heirs for ever ; and the will was proved the 3d of May, 1/39. The deed from Boyd and wife, dated in December, 1/42, to George Harryman, recites the devise from Christopher Shaw, and is for one half part, and recognises Christopher Shaw's right. Then George Harry man's right is good as long as Boyd lived, (and he died in 1/91,) and no longer.

There might have been a will from Christopher Shaw, senior, for there was no law at that time making it necessary to record wills. It may be said that this presumption is to defeat an ancient possession, but it is not so : it is to strengthen an ancient possession, a possession which all parties acknowledged; but, according to his title, the defendant’s possession ceased on the death of Boyd, and ours begins. For presumption to legalize long possession, cites Helms's Lessee v. Howard, (October term, 1734,) and Lloyd v. Gordon, April term, 1789,) where a patent was presumed although against long possession, say fifty years. But the presuming the patent was to strengthen and legalize possession. In the case of Greenhawk and Wife's Lessee v. Cumberford, the defendant supported his title under a patent of 1762. The ejectment was brought about 1780. The defendant set up a title under a patent to A. Hutchings, dated in 1762. No patent could be found for the land for which the ejectment was brought. There was a certificate for Rigby, {the name of the land,) by which it appeared tha." the land had been surveyed in 1679 for John Wooters- Me conveyed it, in 1694, to Josiah Bradbury. A deed from Bradbury in 1735, was made to Thomas Hutchings for a moiety. In 1747 Thomas Hutchmgs died, and had lived on the land. He left a son named Thomas, his heir, who enlisted in the army in Braddock's war in 1756, and never returned. This Thomas left an only daughter, who married one Greenhawk before she was of age. A. Hutchings was the brother to Thomas. To get clear of the patent to A. Hutchmgs, it was necessary to presume a grant, and it was presumed; and it was presumed to show that the possessions were held under title, and not to destroy title.

Whereupon the plaintiff’s counsel desired the court to declare to the jury their opinion, that on this evidence, if they believed the testimony given, they might and ought to presume a will or conveyance to have been executed by Christopher the grantee, under which his son Christopher, and his grandson Christopher Durbin, were entitled to the said land called Shaw's Fancy, as tenants in common, or as joint tenants, though no such deed or will was produced at the trial; and that the court would so direct the jury notwithstanding the evidence so offered by the defendant.

So in the case at bar, the defendant being in under title until Boyd's death, the presumptions is not to destroy title-

Key, for the defendant.

In 1680 Christopher Shaw took up Shaw's Fancy ; he left two sons, Thomas and Christopher. In 1725 patent issued to Christopher the son, for the same land, called Shaw's Privilege ; Christopher Durbin Shaw is heir at law to Shard’s Fancy ; Christopher, the son, the patentee of Shaw's Privilege. The fact whether Christopher Shaw entered under the patent of 1725, or tindcr a deed to be presumed from his father, is for the jury to determine.

There is no evidence to show the assent of the heir at }aw t0 ^he entry of Christopher under the patent; and the bond from Christopher Durbin Shaw, in 1738, is for the whole. Reads the proprietary instructions and conditions of plantation of the 5th of April, 1684, 4th of December, 1696, and the 12th of April, 1712.

The Court

were of opinion that under the evidence given in this cause, they could not, in point of law, give the direction as prayed for by the plaintiff’s counsel, and did accordingly refuse to give the direction. To this opinion the plaintiff excepted.

In the course of the trial of the cause, Key, for the defendant, offered to read in evidence a copy of a deed, (the book in which it was recorded being lost,) dated in the year 1707, and which did not appear to have been acknowledged. He cited Esp. 747. 773. The act of 1715, c. 47. s. 6, 7. 2 Bac. Abr. tit. Evidence, 308, 309. The copy of the deeds appeared to be taken from Liber H. W. No. 1. and the clerk of Baltimore county, sworn as a witness, said, the hand-writing in which tW copy was made seems to be the same as the hand-writing in the record book, Liber H. W. No. 2.

The Court. The instrument offered not having been acknowledged, cannot be received in evidence. The defect cannot be cured by any of the acts of assembly of 1692, c. 30. 1699, c. 42. 1704, c. 24. or 1715, c. 47.

The plaintiff appealed to the court of appeals.

At June term, 1800, the court of appeals decided that.' the general court were right in their opinions contained in the first and third bills of exceptions. But, as to the second, bill of exceptions, the court of appeals were of opinion, that the general court “ had a right to direct the jury that testimony, offered and admitted by the parties, was illegal and inoperative, the court of appeals being of opinion that they are not bound by the admission of the parties, when evidence is illegal; but the court of appeals were further of opinion that the acknowledgment of the two deeds, mentioned in the said bill of exceptions, were good and legal, and ought to have been read in evidence to the court and jury j for which error the said judgment is reversed.”  