
    *Patrick Duncan v. David Beard, Administrator.
    A grant of an uninhabited portion of country by a British governor, to A and his associates, is not void for uncertainty.
    If a deed be certain in part, and uncertain in other parts, it is not therefore void. Such construction shall be given ut res macjis valeat quam pereat.
    
    Where a grant has once passed the great seal, it cannot be revoked, except by legal proceedings; even if the sovereign power should possess the power of itself of determining when a grant should be revoked, a second grant for the same land would not be considered evidence of revocation.
    Where a deed is made to A and his associates, and A makes a deed of the land, a deed from the associates will also be presumed, if necessary, after a great lapse of time, and possession under A.
    A deed, thirty years old, may be given in evidence, without proof of its execution, if accompanied with possession. Quere, as to a will.
    Papers, other than deeds, if found in the place in which they should be deposited, in pursuance of their object, that circumstance, added to their being thirty years old, will raise a presumption in favor of their authenticity; and when they are produced from their proper repository, and have been properly preserved, it will not, after a certain time, be necessary to prove them.
    Where the subscribing witnesses to a will are dead, and no proof of their handwriting can be obtained, it will be sufficient to prove the handwriting of the testator.
    Where a witness, called to prove the handwriting of a subscribing witness to a codicil, could not undertake to say that he had ever seen the subscribing witness write, but that, from his having been a notary public, he had seen much of his acknowledged writing, it was held sufficient.
    Where a man devised lands to his daughters, in 1782, who were aliens, they take ' subject to the trusts of the will: but if bound to take by descent, they are protected in their rights by the treaty of 1792, 9th art., which declares that British subjects shall hold as before the war.
    Whether persons hold possession of land, as the tenants of another, is a question for the jury.
    
      Trespass to try title, tried before Mr. Justice Oolcock, at Abbeville Court House, Spring Term, 1819.
    Adam M’Kee, claimed to be the real defendant, and was entered as such on the record.
    Plaintiff’s title — 1. A grant to William Levingston and his associates, dated *4011 ^th ^une> for 50,000 *acres, tract No. 3, by J ames Glenn, governor -1 of the then province.
    2. Lease and release from William Levingston to John Hamilton, dated 25th and 20th June, 1753, for 200,000 acres, including tract No. 3.
    Richard A. Rapley, a witness, sworn, proved Le Briton’s handwriting, who was one of the subscribing witnesses to this conveyance, but did not know Barnard, the other witness to the deed; both of them lived in England, and were dead, as witness understood before he left it. Memorandum on the deed, that it was proven before Thomas Rawlinson, Mayor of London, the 11th May, 1754, by James Bernard. Witness Rapley came here in 1770, or 1771; as the agent of Salvador, in 1772, or'1773. He re-surveyed the land, and took possession, suing those who held out, and leasing to others. Only two held out. He had all the papers relating to the title, and this deed and grant produced now among them. The grants had seals to them at the time he had them, both for No. 3 and 4. They were broken by being carried about, and he believes he cut off the remains of them. He continued in possession until 1784, or 1785, when Salvador came in, and he removed away to the lower country, but returned again.
    3. Lease and release from John Hamilton to Joseph Salvador, dated 27th and 28th November, 1755, for 100,000 acres, No. 3 and 4. Rapley has often seen Hamilton’s handwriting, but did not know him. Knows his writing from a correspondence; has heard that James Grindlay, one of the witnesses, was dead before he left England; knows nothing of John Jackson, the other witness. Recorded, in Charleston, 28th April, 1766, by Pen wick Bull, register. Rapley knows E. Bull’s writing; has often seen him write. Salvador died about 1786, or 1787. He had a house at-, in which he lived.
    4. Will of Joseph Salvador, dated the 7th October, 1782. Rapley knows the hand and seal of the testator, but does not know the writing of either of the witnesses.
    *4091 *5. Power of attorney for the heirs of Salvador, to James Nicholson. Rapley knows the handwriting of Moses Salvador, one'of the subscribing witnesses, and also of Patrick Duncan, another subscribing witness. He knows the writing of Abigail and Elizabeth Salvador, but does not know that of Texiera and his wife, nor of E. A. Holland, notary public, another witness.
    6. Decree and proceedings in the Court of Equity, by Robert E. Griffin v. Nicholson. Report confirmed — Land sold — Sale confirmed. '
    7. Deed from the commissioner in equity to Patrick Duncan. Francis Wardlaw, witness, saw it executed — other witnesses who signed it with him, out of the State. Dated 8th July, 1816.' For No. 3 and 4, $13,682.
    The locus in quo, established, by ’Squire Morrau, and that defendant lived within the lines of No. 3.
    J esse Calvert proved that the defendant was in possession of the land when he went away, five or six acres.
    On the part of defendant:
    A grant to John Dixon, for 1000 acres, dated June, 1803.
    Deed from John Dixon to Adam M’Kee, dated 15th October, 1805. John Steal proved the execution of it, and that Michael M’Kee, the other witness who signed it at the same time with him, is in the western country. He also stated, that he knew Adam M’Kee, the real defendant, to be in possession from the year 1803; that is, by him, the witness, as a tenant. He went in under a written instrument; but of this instrument he could give no account. Mr. Morrow proved that the defendant’s grant covers the land in dispute, and that he had understood, that David Beard, the nominal defendant, was a tenant of M’Kee.
    John M’Kee says, that David Beard was a tenant of his brother Adam. He understood it from both of them ; he stated, that after Steal went out of possession, Beard worked it one year. Then one With, for *the next p^Qg year. Then one Spencer, and then the widow Melford, and she has remained in possession ever since. On his cross-examination, he could not fix the order in which these persons succeeded each other, but stated that the land had been always occupied by some one under the authority of his brother.
    Bobert Breckenridge was called, but had forgotten or never knew any thing about the possession.
    In reply, Mr. Bowie stated, that he went into possession as a tenant of Salvador, in 1772, or 1773 ; has paid rent for it to all the claimants, and still holds it; considers himself a tenant to whoever is the owner. He first paid rent to Bapley, as agent of Salvador; afterwards to Salvador himself; then to Mr. Wm. Tennant, as agent of the Philadelphia Company; his lease was for the residue of what had not been leased before. In the year 1774, he ran round the whole of the land, four tracts, for Salvador, at the request of Bapley, as his agent.
    Mr. Bapley further proved, that he is in possession of about 100 acres of No. 3; has cultivated it for twenty or twenty-five years; he leased to Mr. Bowie, as the agent of Salvador.
    The jury found a verdict for the plaintiff, and a motion was now made to set aside the verdict, and for a new trial, on the following grounds:
    1. Because the Court ought to have rejected the grant to Wm. Levingston and his associates, as void for uncertainty, and forfeited for non-performance of the condition.
    2. Because the Court permitted the conveyance from Wm. Levingston to. John Hamilton, to be given in evidence, without requiring the plaintiff to show a transfer of the right of his associates.
    
    3. Because there was not sufficient proof of the will of Joseph Salvador, no account having been given of the subscribing witness, and not sufficient proof of the codicil, there being no proof of the handwriting of one of the witnesses.
    *4. Because the proceedings in the Court of Equity ought to have been rejected for irregularity. ■-
    5. Because the heirs of Salvador were bound to take by descent, and not by devise ; and being aliens, no descent could be cast upon them.
    6. Because the power of attorney was insufficiently proven, inasmuch as there should have been some account given of the third subscribing witness, and proof of the handwriting of two of the parties, Susannah and her husband.
    7. Because the verdict of the jury was contrary to law, and the Judge’s charge upon the statute of limitations.
    8. Because the verdict was contrary to law and evidence, inasmuch as the defendant proved a title by possession.
   The opinion of the Court was delivered by

ColcocK, J.

The first ground presents two points for determination : First, whether the grant to William Levingston and his associates, is void for uncertainty f And, secondly, whether it is forfeited for nonperformance of the condition ? As to the first point there can be no doubt, as has been argued, that a deed may be void for uncertainty; but if a deed be in part certain, and in no other part uncertain, it does not follow that it is void; for the rule is, that such construction shall be given, if possible, ut res magis valeat quam pereat. Now, as to Lev-ingston, the deed is certain. It is to him ; and our not being able to identify his associates does not render the deed void. The word has no technical meaning, but it bears a strong analogy in common parlance to the word assigns. And when we read the deed through, and see that the object was to settle an uninhabited portion of country with a certain description of persons, it is easy to discover that it was intended by the grantor to vest the whole of the legal estate in Levingston, with autho-*¿0^1 rby t° bim to regrant or convey any part thereof to such ^person -I or persons as would associate with him in the undertaking to settle the land; and this view of the subject is supported by the deed which he afterwards makes to Hamilton, in which he styles him his associate. But if there had been persons in esse at the time, who were denominated his associates, who might then have taken under the grant, after a lapse of sixty years and an accompanying possession by those to whom Hamilton sold, a deed from the associates to Levingston, might be fairly presumed.

Upon the second point in this ground, the plaintiff’s counsel contended, that the condition being subsequent, it will be presumed to have been performed; and that if not, the grant must be set aside by a regular process of law. To which it was replied, that the grant reserved to the grantor the right of re-entry, on the failure to perform the condition, and that the subsequent grant may be considered as evidence of that re-entry, on the failure to perform the condition. It is certain that, • where a grant has once passed the great seal, it cannot be revoked, except by some legal proceeding, and this for the most obvious reason. The party may have it in his power to show a compliance with the condition, or a release from the performance of it. 6 Comyn’s Digest, 63, letter D, 10. 5 Com. 214, title Patent. Despotic indeed would be that government which would exercise the power of revoking at will, all grants of land which it may have made to individuals, or of determining, without the intervention of a judicial tribunal, where there was ground for a revocation. The usual mode in England, is by scire facias in equity, or by process on the law side of the Exchequer Court. But if it were consistent with the principles of justice, that the sovereign power should of itself determine when a grant should be revoked ; a second grant of land in this State should not be evidence of such revocation, for they are often made without the knowledge of the officer who is empowered to sign the grant. It not unfrequently occurs that there are two or three grants *4061 *^01’ ^le same ^an^’ an<^ Pubbc officers perfectly ignorant of this fact. The younger grant in this case, then, cannot be considered as any evidence of the revocation of the elder, but that remains in full force.

The second ground has been determined in the consideration of the first. A deed from the associates, if we can suppose them grantees, would be presumed, after a lapse of so many years, and a possession under Lev-ingston.

Upon the third ground, the insufficiency of the proof of the will, I take it to be a well established doctrine, that a deed of thirty years may be given in evidence, without proof of its execution, if accompanied by possession, and a mere entry for the purpose of resurvey, has been considered a sufficient possession. Reid v. Eifert, (1 Nott & M’Cord, 374.) What are the reasons on which this rale is founded ? 1. That after a lapse of thirty years it is difficult, and in most cases impossible, to procure the witnesses to the deed. Those who are parties to a deed of thirty years standing, must be upwards of fifty years old, and a great portion of those who are born, die before that period. The second reason is, that a possession, or an exercise of ownership, under the deed, is calculated to give authenticity to it. In my own opinion there is a possession under this will, for I consider the possession of Rapley, who obtained his possession as the agent of Salvador, the possession of the devisees of Salvador. He would not be permitted to set up an adverse title to them, and it is not necessary by the statute of-, that he should have attorned. But if this be not clear, as is the opinion of my brethren, still the first reason of the rule applies to the case of this will, and another rule, in regard to papers other than deeds, is, that if they be found in the place in which they should be deposited, in pursuance of their object, that that circumstance, added to their being thirty years old, will raise a presumption in favor of their authenticity. Peake, 73. Phillips, 349. And Mr. Justice BuileR says, “ ancient writings, which are proved to have been found among deeds of evidences of land, may be given in <- ‘ evidence, although the execution cannot be proved; for it is hard to prove ancient things, and the finding- of them in such a place is a presumption that they were honestly and fairly obtained, and preserved for use, and are free from the suspicions of dishonesty.” N. P. 255. And Mr. Phillips, in pursuing the subject, observes, that “this observation on the necessity of showing where the deed was found, seems to apply more particularly to those cases, where the character and authenticity of old writings depend, in some degree, on the nature of the place or custody, in which they have been keptand when they are produced from their proper repository, and have been properly preserved, it will not, after a certain time, be necessary to prove them. Phillips, 350. Now the will in this case was taken from the Secretary’s Office, in Charleston, where, by the law then existing, all wills are required to be deposited, and is, upon the face of it, free from all suspicion of fraud, and appears to have been executed with all the formalities required by the statute. Again, in Phillips, 385, it is said, “ where the subscribing witnesses are dead, and no proof of their handwriting can be obtained, as must frequently happen in the ease of old wills, it will be sufficient to prove the signature of the testator alone.” And the case of Calthorpe v. Gough, et al., (4 T. R. 707,) is referred to, and although this point was not finally determined in the case, yet it is the expression of an opinion of a distinguished judge, and supported by the authority of a case decided by Sir Lloyd Kenyon, Master of the Rolls. In this case the handwriting and seal of the testator to the will were proven, and his handwriting to a codicil, made in the year 1786, not long before his death, and proof of the handwriting of one of the subscribing witnesses to the codicil, by one who could not undertake to say he had ever seen him write, but from the subscribing witness’ having *been a notary public, he had seen much of what was acknowledged to be his writing. L s

But it was said that there was no proof of the death of the subscribing witness; as to one, there was as much proof as is ever required. The witness, Mr. Rapley, says he has heard-that one of them was dead, and when it is recollected that the will was executed thirty odd years ago, and in England, I think it a fair presumption that the others are also dead.

The fourth ground requires no observation, for no argument is offered to show any irregularity in the proceedings, and none is apparent on the face of them.

The testator, by his will, devises his estate to his three daughters, in trust for his creditors.

The fifth ground, therefore, cannot avail the defendant, for the children of the testator, Salvador, I am inclined to think, must take, subject to the trust, or not at all. But if they were obliged to take by descent, their rights are protected by the 9th article of the treaty of I? 94, which declares that British subjects shall hold as before the war.

Upon the sixth ground, I am of opinion that all the proof which the law requires in such cases, was given. It was proven that James Nicholson had been authorized to act for the heirs of Salvador, as attorney. But there was no necessity to prove anything about the power of attorney, in this case; that might have been a question in the Court of Equity, when the proceedings were going on there against the heirs of Salvador ; we have nothing to do with the agency; the plaintiff claims before us in his own right, under a deed to himself.

The two last grounds may be considered together; the jury were instructed, that if they believed that the real defendant, Adam M’Kee, had been in the possession of the land by his tenants, from the year 1805, to the commencement of this action, they ought to find for the defendant. *4091 ^ they doubted whether *these persons, who were said to have -* been in possession were the tenants of M’Kee ; yet, if they were satisfied that there had been a continued and uninterrupted possession, though of different persons, not conveying to each other, for that time, that then they ought to find for the defendant; and this I directed on the authority of the case of Mayrick v. White, MS., decided in this Court about the year 1808 or 1809 ; it was an action brought by myself. The case never met my approbation, but I considered myself bound by it. I am authorized to say, by my brethren, that they do not consider the case as authority, having only a verbal report of it. The question, then, whether these persons, said to be in possession, were the tenants of M’Kee, was one merely of fact, and for the determination of the jury. It was positively sworn to, so far as regarded the possession after the deed from Dixon to M’Kee. It was not clearly and satisfactorily proven as to all who occupied, that they were tenants. And I am not dissatisfied with the verdict. The jury were acquainted with the witnesses, and all the circumstances attending that sort of possession, and were, therefore, better qualified to determine on the fact than the Court.. Upon the whole, the objections to the plaintiff’s title being overruled, and the jury having found against the defendants, on the facts, the motion is discharged.

Noble, for the motion. MDuffie, contra.

Nott, JohnsoN, RichaRDSOn, and HugeR, JJ., concurred. 
      
       See 2 McC. 295.
     
      
       7 Rich. 225 ; 5 Rich. 272.
     
      
       See Cheves, 85 ; 1 Rich. 56 ; Rice, 100 ; 1 Sp. 191; 2 McM. 498.
     
      
       11 Stat. 41, § 11; 11 Rich. 305. Post. 570.
     
      
       This may he a misnomer of the case, Mazych v. Wight, 2 Brev. 151, A. D. 1807, in which the decision was contrary to Judge Colcock’s recollection of what had been previously held in this Court.
     