
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1812.
    Jacob Lands and Wife v. Solomon Crocker, et. al.
    
    (Present — Judges John Fauohereaud Grimke, Eliíiu Hall Bay¿ Joseph Brevard, Abraham Nott, and Charms Jones Colcook.-William Smith, the other judge of the court, was absent, by reason of sickness.)
    Where the declarations of a deceased person are permitted to go to the jury in support of a particular case, any counter declarations made by the same party, must also be admitted.
    Mere verbal declarations, that a release has been executed, will not be sufficient to establish the existence of a deed, more particularly where; there is no other evidence to support the presumption of its having beeir executed. [See Spence v..Spence, 2 vol. 466.]
    Motion for a new trial. On an application for a writ of partition,, before Judge Bay, in Spartanburgh district, an issue was made up,, by consent, to try certain facts by a jury, on a question whethei Arthur Crocker, deceased, was seized, at the time of his death, of the lands in dispute. The original grant to Arthur Crocker was produced. The defendants attempted to prove that the grantee had sold and conveyed the land to-Wofford ; and proved a lease, for a year, from him to Wofford, dated 1776. The witnesses to the lease were proven to be dead, and the handwriting of one of. them was proven. The other witnesses, and the lessor, appeared to have made their marks. Their marks were not proven. It was proven that Wofford had possession of the lnnd about six or seven years; and took possession about fourteen years after the date of the lease, by his tenant. It was proven that Arthur Crocker said, some time before he died, that he had sold the land to Wofford ,¡ 
      and made Mm a right, but that there was a flaw in it, and his sons might get it after his death.
    The plaintiffs’ counsel offered to prove other declarations of Arthur Crocker, in contradiction, but was not allowed to do so.
    M’Crea, a witness for the plaintiff, proved, that he had a release in his possession from 1788 to 1790, from Crocker to Wofford, not signed, nor sealed, nor subscribed, by witnesses, which he received from Wofford to keep ; and this witness said, if the lease was placed in his hands to keep, it was also unexecuted. The execution of the lease appeared suspicious. Wofford adhered to the British, and went away with them.
    Verdict for the defendants.
    Gist, for the demandants.
    Samuel Farrow, for the defendants.
   Brevard, J.

In this case I am of opinion the motion ought to be granted ; because it appears to me clear, that the evidence given to the jury was not sufficient to authorize them to find a verdict for the defendant.

I am also of opinion, that the declarations of Arthur Crocker, which were offered in evidence to shew that he had not conveyed the land in question to Wofford, ought not to have been rejected ; because they were not offered to contradict any deed which had been proved to exist, but to discredit other verbal declarations of the same person, signifying that he had made a deed.

The evidence adduced to the jury, and on which they presumed the existence and contents of a release from Arthur Crocker to Wofford,’was, in my opinion, quite insufficient. It amounted to no more than this ; some doubtful proof of a lease from the former to the latter, in the year 177C, purporting to be a 'lease for one year of the land in question, and intended to be followed up by a release 5 and six or seven years possession of the land by the tenant of Wof-ford, at the distance of fourteen years from the date of the lease; and certain declarations of Arthur Crocker, “ that he had sold the land to Wofford, and made him a right.”

But the presumption, if any, could arise from the evidence, suf* ficient to supply the want of evidence to prove a valid conveyance of-the land in. fee, by a sufficient legal instrument, duly executed-, was,-1 think, completely repelled by the testimony of M’Crea', and the circumstances of the case, as they- appeared from the shewing of the plaintiffs themselves,

M’Crea’s testimony was strong and pointed, to shew that the release, alluded to by the-verbal declarations of Arthur Crocker, was never executed. There was uo other evidence to support the. prc* sumption of its having been executed,'but those verbal declarations* Those declarations, had they been more full and explicit, would not, of themselves, be sufficient to prove the existence of a deed* This point was decided in the case of Spence vs. Spence, in this court. (2 vol. p. 466.) But if that case had never been decided,, my opinion would be the same.

The possession of Wofford, under the circumstances of the case, appears to me very immaterial. When we consider that there was a treaty on foot,-between Crocker and Wofford, for the land ; that blank titles were left in the hands of M’Crea, to be executed ; that Wofford went off with the British ; and that prior to his going away the times were revolutionary and distracted — we have probable grounds for presuming that the titles were not executed. From the inspection of the lease, I strongly suspect its authenticity ; but taking it for genuine, its production without the release is a strong circumstance to prove that no release was executed ; as its non-production has not been accounted for. These title deeds, if they ever existed, it is reasonable to presume, would be kept together. This presumption has not been removed by the adduction of any fact or circumstance, which has come to my knowledge in the argument of the cause.

I am, therefore, for these reasons, of opinion, that a new trial ought to be granted.

Per curiam. Grpimke, Bbevard, Nott, and Coecock.

The motion was granted.  