
    Samuel A. Maverick v. Walter Austin.
    Columbia,
    May, 1828.
    In a conveyance of land, the grantor styled himself “ executor” of him who was last seized; and possession accompanied the deed: Held, that after the lapse of more than thirty years, the jury, are at liberty to presume a will.
    The heir at law conveyed the land in his own name, but subscribed the deed as “ executor.” The existence of a will not being-proved, held, that the deed might operate as a conveyance from the heir'after a descent, and that it passed a good title.
    Proof that one who died seized of lands, left no nearer or other heir than the person under whom the plaintiff claims, ’is sufficient to put the defendant upon proof, that there were nearer heirs, or other heirs of equal proximity. The proof must be by a witness who knew-the deceased, and had opportunities of obtaining a knowledge of his family; but it is not essential that the witness should be a member of the family.
    Tried before Mr. Justice Gantt, at Greenville, Fall Term, 1827.
    This was an action of trespass to try title. The plaintiff gave in evidence, first, a grant to Augustus'Merrick, dated'5th February, 1787; secondly, a deed of Tilly Merrick-, dated 13th May, 1793, by which he conveyed the land in his own name to Thomas Dugan, but subscribed the deed “ Tilly Merrick, Executor of Augustusthirdly, a conveyance from Thomas Dugan to plaintiff, dated 13th December, 1806. The plaintiff also proved possession in Dugan, and afterwards in himself, by their tenants. The will of Augustus Merrick was not produced, but plaintiff relied on possession under tíie deed of Tilly Merrick, and lapse of time to raise the presumption of a will, and an authority under it in Tilly Merrick to convey. He also produced two witnesses to prove that Tilly was the brother and heir-at-law of Augustus Merrick: These witnesses testified that they were well acquainted with Augustus and Tilly Merrick; that Augustus had no family, and no sister, nor other brother than Tilly; and that he was reputed to be a single man at his death.
    The defendant claimed by possession under a junior grant to Thomas Nations; and the plaintiff called witnesses, to prove that defendant’s possession was not adverse. Several questions .were raised as to the defence, but the decision of the Court was confined to the title made out by the plaintiff.
    His Honor, the presiding Judge, charged the Jury that the plaintiff’s title had failed at the threshold ; that Tilly Merrick’s conveyance could not avail him, without proof of a will, and an authority under it to make a conveyance; that admitting him to be the .heir-at-law,' his styling himself executor was an admission that a will existed, which divested his right as heir.
    The Jury found for the defendant: And the plaintiff now moved to set aside their verdict, on the ground of misdirection.
    Irby for the motion.
    Tilly Merrick’s conveyance as heir was good, unless a will existed, and it was for the defendant to shew that there was one. If Tilly Merrick’s styling himself executor, was an admission-that there was a will, and such admission was conclusive upon him as heir, then it is equally conclusive upon all who could claim under him, and the conveyance is effectual: But if subscribing as executor, is not an admission of a will, then his right as heir is not divested, and the conveyance is equally good. In one right or the other, Tilly Merrick had full power to convey, and the conveyance must be referred to whichever was most effectual. Legge v. Magwood. Harper, 116. In any case, after so great a lapse of time, and possession accompanying the deed, a will, or whatever else is necessary to support the deed, may be presumed.
    Earle, contra.
    
    The case of Legge v. Magwood, will not assist'the plaintiff: There, an act done generally was referred to a specific authority, to wit, as executor; but it is not said, that an a,ct done in a specific character, shall be referred to every right or authority the individual might have possessed. The opposite conclusion would follow on principle; for though the greater includes the less, the less can not include the greater. It is a rule which would produce injurious consequences. Besides, the evidence was insufficient to prove Tilly Merrick to be the heir of Augustus: He was proved to-be the brother; but that did not make him heir, unless it were also proved that there were no children, wife, father or mother, or other brothers or sisters: It is true the witnesses knew of none; but to render this negative testimony of the slightest avail, it ought to have been shewn that they stood in sueh a relation to Augustus Merrick, as that they must have known of other heirs, if any sueh existed. It has never been held, that the negative testimony of others than members of the family, was competent to put the' opposite party upon proof of the alternative. Common repute is not sufficient; and there is no case where strangers have been admitted for that purpose ; for their testimony is mere hearsay, being, after all, derived from common repute. 1 Ph: Ev: 189. Doe v. Griffin, 15 East, 292. Highham v. Ridgway, 10 Ib. 120. Wliitelock v. Baker, 13 Vezey, 511.
    Allston v. Bay^Se^ivíe-Clure v. Hill,
   Colcock, J,

delivered the opinion .of the Court.

Tbe charge of the presiding Judge, that “ the paper title of the plaintiff had failed at the threshold,” renders it unnecessary to consider whether the title of the defendant was good or bad, for if the plaintiff failed to prove a title in himself, the verdict of course must be for the defendant.

But we differ in opinion with the presiding Judge as to the deed made by Tilly Merrick to Thomas Dugan, which was the link in the plaintiff’s chain of title he thought defective. There was a possession under this deed, and after a lapse of so many years, the Jury may have presumed that a will did exist. In how many cases is the existence of a deed itself presumed, where there is a long chain of title and a possession ; and if a deed may be presumed, why not an authority to make the deed 1 But the case stands on stronger ground than this : It is the deed of Tilly Merrick, and conveys all the interest he had in the land ; íÉld if he is the heir-at-law of Augustus Merrick, the grantee, the plaintiff’s title is complete. But it is said, that the evidence offered to support this fact was incompetent, that it amounted to no more than the hearsay evidence of a stranger; and, indeed, the argument was pressed so far, as to exclude all others than members of families from giving- evidence on the subject: But it is clear that the legal character of the testimony is misunderstood ; it is the positive knowledge of the witness himself. It is not hearsay: Sims says I knew them, Augustus and Tilly Merrick, I knew them well. He then goes on to state, that Augustus had no family, and no other brother or sister that he knew of, than Tilly. To this he adds, what if it stood alone, may have been incompetent, that he was reputed to be a single man at the time of his death; but this addition, to his own knowledge on the subject, cannot affect or vitiate his evidence. The testimony of the other witness is to the same effect; he also knew the man. The doctrine referred to in the argument, relates to tradition in families; that one may give evidence of what another, who is dead, was heard to say in relation to the pedigree of one of the family. But even in such cases, it is not merely because the witness is a member of the family, that he is allowed to testify, but because by being a member of the family, he has an opportunity of obtaining such knowledge.

If the witnesses in the case at bar had not known the Mer-ricks, and had only said what they had heard from others, then their evidence would not have been competent.

The testimony being competent, it was sufficient to put the defendant to the disproof of it, if it were not true. I have said that it is unnecessary to decide on the defendant’s claim; but for myself, I entertain no doubt as to the two propositions contended for, that the declarations and acts of Nations, under whom the defendant claims, as well as those of the defendant himself, may be given in evidence as to the nature of their possession.

New trial granted. 
      
       See next case, Simmons v. Parsons, and the note.
     