
    
      * [Philadelphia, April 30, 1838.]
    MURPHY against LOYD.
    1. In ejectment for a lot of ground in the city of Philadelphia, the plaintiff having given in evidence the list of first purchasers under William. Penn, containing the name of George Green, offered a deed from one Thomas Green, to the person under whom he claimed, reciting that he was the son of Edmund Green, who was the son of Benjamin Green, who was the son of — Green’. There was no evidence of any possession hy Thomas Green, or those under whom he claimed, previous to the date of the deed: Held, that the deed was not admissible as evidence of the pedigree of Thomas Green.
    2. A deed or will cannot he given in evidence in ejectment, unless some 'paper title is first shown in the grantor or testator, or in the absence of this, an actual possession of the land continued for some time.
    This was an action of ejectment, brought by James Murphy against Isaac S. Loyd, to recover six undivided eighth parts of a lot of ground, situate on the south side of High street between Schuylkill Fifth and Sixth streets, in the city of Philadelphia.
    On the trial of the cause, at a Court of Nisi Prius, held by Sergeant, J. at Philadelphia, on the 15th of March, Í838, the plaintiff having given in evidence the list óf original purchasers from William Penn, and Holmes’s plan of the city of Philadelphia, showing that one George Green, under whom the plaintiff claimed, was one of the original purchasers, and as such entitled to a lot in the city of Philadelphia, of which the premises in dispute were alleged to be a part, offered in evidence an exemplification of a deed from one Thomas Green to one Barnabas Higgins, dated the 26th day of July, 1774, for his right and title to two thousand acres of land in Pennsylvania, with the city lots appurtenant, as evidence, by the recitals therein contained, of the pedigree of the said Thomas Green, and the descent to him of the said premises from his alleged ancestor, the said George Green; the defendant claiming to hold the said premises, under a title commencing with a sale by the Supreme Executive Council, in the year a.d. 1786. To which deed from the said Thomas Green, the defendant, by his counsel, objected, and the learned judge refused to admit it.
    The counsel for the plaintiff then, in order to prove an interest and possession in the premises in one William Eckhart and his heirs, who were alleged to have derived their title under the said George Green, the original purchaser, called as a witness one Elizabeth Beck, who testified as follows:
    *“ I am the daughter of William Eckhart. He lived in this city before, during, and after the revolution. I lived with him all my life, until I was married. He owned considerable real estate in different parts of the- city. He owned Market street lots, one between Fifth and Sixth from Schuylkill, the other near Third from Schuylkill. I recollect riding with him past these lots. He always spoke of them, and always rated them very highly. He died in the year 1795. I heard him say that he had purchased posts and rails to have these Market street lots fenced in. I don’t know for certain whether the lots were actually fenced in, but I heard my father say that he purchased posts and rails to fence them in. I heard him say so, probably six or eight years before his death. He pointed these lots out to me as we were riding past. To the best of my impression, the lots were enclosed by .him, but I do not speak of my own personal knowledge.”
    Being cross-examined, the witness said:
    “I have had conversations with-the elder branches of my family, and with my father, about this lot: the lot between Fifth and Sixth from Schuylkill. I have had no conversation very lately, until I was informed that I would be wanted in Court. T then had a conversation with Mr. John and Mr. George Ashmead.- Mr. John Ashmead asked whether I did not know my father possessed these lots ? , He said my father had owned them, and asked me if-1 did not know it? I do not think he asked me if my father enclosed the lots. I was born in 1776. I don’t recollect whether the other lot was between Third and Fourth, or Third and Second streets. I expect it was enclosed; as much so as the other; don’t recollect any house near. I don’t recollect a house a little back from the street at the time we rode past. I can’t say whether it was about the centre of the square between Fifth and Sixth streets, that my father pointed out. He was a biscuit baker, and lived in Lombard near Fourth street. He left me no property.. He left me $1600. He had all the deeds of these lots in his possession, except one, and that was lost.”
    Being re-examined by the plaintiff’s counsel, she said:
    
      “ My father hid his deeds and papers during the time the English had possession of Philadelphia. He placed them in a place near the staircase, in the house in Lombard street, in which he lived. He likewise made an arch under the pavement to deposit plate, &c. for himself and others. After the fear of the English had subsided, the deeds, &c. were taken out, but one deed was missing. I have heard my father speak of that lost deed. He frequently complained of having lost the deed, because he rated the property very high. I have heard Mrs. Catherine Lehman, and Mary Ozeas, speak of the loss of that deed. When I refer to a lost deed, I speak of the deed *for Market street lots. Catherine Lehman and Mary Ozeas were daughters of William Eckhart.”
    Being again cross-examined, the witness said:
    
      “ My father had a great many other deeds; I can’t say how many. I have looked over some of the deeds: I can’t say how many related to Market street lots. I expect they were in the house at the time of his death. I was away then. I saw all the deeds of Market street lots,except one. I can’t tell whether they were recorded. At the time of his death, I was eighteen years and a half old.”
    The counsel for the plaintiff then called as a witness one John Ashmead, who testified as follows:
    “ I am married to one of the grand-daughters of William Eckhart. I took possession of two lots in High street, one between Fifth and Sixth from Schuylkill, the other between Third and Fourth from Schuylkill, about the years 1808 to 1810. I took possession in company with John Kern, who acted for the Ozeas branch of the family. I represented the Lehman branch. I took possession by putting a front fence on the lot. I can’t recollect which year. I paid very little attention to it afterwards. I think the fence was down soon afterwards. Two or three years since, I first saw a brick house on the lot. To that time I never saw any one else but myself in possession of the lot. I had no charge of the lot at the time I sold to Murphy. There was no fence then; the fence was down. I sold to him before the erection of the brick house. I don’t recollect walking out to the lot with Mr. Murphy. I was left executor to Catharine Lehman. I knew William Eckhart in his lifetime. I had the title papers in my possession, and I placed them on record. One was missing. It was a conveyance from Barnabas Higgins to Read, Proctor, and Haines. I have had conversations with Mrs. Catherine Lehman with' regard to the lost deed. I made search for it. Mrs. Catherine Lehman was under the impression, that the deed was in a secret place under the staircase. Shortly after her' death, I had a part of the staircase torn down, but I could find no deed.”
    
      Being cross-examined, the witness said :—
    “ The lot I took possession of was about seventy or eighty feet from Schuylkill Fifth street: I never paid taxes for the lot; I don’t think either Lehman or Ozeas paid taxes on this lot; never assessed to them as I know.. I never saw the lost deed. No member of the family that I conversed with saw the deed, as far as I know. I remember William Eckhart quite well. I knew him when I was a boy, several- years before his death. Part of the fence remained on the lot several years after I took possession. I think a post or two. There was no house on the lot. My recollection is imperfect as to what was on the east end. I don’t think the fence stood long. I *think somebody tore it down. We ran back to the tail ends of Chestnut street lots.”
    The plaintiff’s counsel then again offered the said deed from the said Thomas Green in evidence; to which the counsel for the defendant again objected; and the deed was again rejected.
    The counsel for the plaintiff then offered in evidence the will of the said William Eckhart, under whom the plaintiff claimed, dated the 20th of Juno, 1795, and duly proved in July, 1795, to which objections were made by the counsel for the defendant; and it was excluded by the Court.
    The counsel for the plaintiff then offered in evidence two deeds for the premises in question, from John Ashmead, the said witness, and his wife, to James Murphy, the plaintiff, one dated November 24th, 1834, and the other July 2nd, 1835, to which objections were made by the counsel for the defendant; and the same were rejected by the Court.
    The counsel for the plaintiff' then offered in evidence the record of the proceedings in the case of Krider v. Kremer, in the District Court for the City and County of Philadelphia, December term, 1812, No. 7, ending in a deed from Jacob Fitler, high sheriff of the city and county of Philadelphia, for a portion of the premises in question, to the said John Ashmead, dated the 1st day of June, A. u. 1815, and a deed from William E. Lehman and wife, and George F. Lehman and wife, for the remaining portion of the premises in question, to the said John Ashmead, dated 15th June, A. D. 1835; to which objections were made by the counsel for the defendant; an$ they also were excluded.
    The plaintiff’s counsel then suffered a non-suit, with leave to move the Court in banc to take it off.
    The following is a copy of the exemplification of the deed from Thomas Green, which was offered in evidence on the part of the plaintiff, and which was recorded on the 30th day of May, 1811.
    “ This indenture, made the 26th day of July, one thousand seven hundred and seventy-four,- between Thomas Green, at present of the city of Dublin, soldier, of the one part, and Barnabas Higgins, late of the city of Philadelphia, merchant, of the other part; he, the said Thomas Green, being the only son of Edmund Green, being the eldest son of Benjamin Green, he the said Benjamin Green, being the only son and heir of Green, of Earringdon in the county of Berks, of Great Britain, rope-maker. Whereas, by virtue of a deed of lease and release from William Penn, Esquire, true and lawful proprietor of Pennsylvania, the aforesaid *Green became lawfully seised in his demesne, as of fee, of, in, and unto two thousand acres land in the province of Pennsylvania. Now this indenture witnessed)., that he, the said Thomas Green for and in consideration of the sum of five shillings sterling, to him in hand paid by the said Barnabas Higgins, the receipt whereof' is hereby acknowledged, hath alienated, granted, bargained, sold, released, and confirmed, and by these presents doth alien, grant, bargain, sell, release, and confirm, unto the said Barnabas Higgins, all his right, title, interest, property, claim, and demand, whatsoever, of and in the said two thousand acres of land, together with the city lots, and liberty lands appurtenant to the same, situate, lying, a,nd being in the Province of Pennsylvania, in America, as being the only surviving heir of the above-named Green. To have and to hold, the said two thousand acres of land, with the appurtenances to the same, and every part thereof, or thereunto belonging, unto him, the said Barnabas Higgins,'his heirs and assigns forever; and also the said Barnabas Higgins, his heirs. and assigns,- shall and may quietly and peaceably, have, hold, and enjoy, the said two thousand acres of land, and every part thereof, according to the true intent and meaning of these presents, without the let, disturbance, or interruption of him, the said Thomas Green, his heirs or assigns, or any other person or persons whatsoever, claiming, or to claim, by, from, or under him, they, or any of them; and he, the said Thomas Green, his heirs and. assigns, shall and will from time to time, make, do, and execute, all such further acts, thing and things, conveyances and assurances whatsoever, upon the reasonable requests, costs, and charges of him, the said Barnabas Higgins, or his counsel learned in the law, shall be reasonably advised, devised, or required, for the further and better conveying and assuring the said two thousand acres of land, with all and every the appurtenances thereunto belonging: and it is further agreed, that the said Barnabas Higgins, shall and will restore one-half of the said two thousand acres of land, together with one-half of the appurtenances thereunto belonging, to him, the said Thomas Green, or his assigns, to have and to hold the same forever, upon the demand of the said Thomas Green, his heirs or assigns, any time after the said Barnabas Higgins comes into the possession thereof. In witness whereof, the said parties 'to these presents have hereunto set their hands and seals, the day and year first before written.
    Thomas íx¡ Green, (l. s.)
    Bars. Higgins, (l. s.)
    Signed, sealed and delivered in the presence of us,— Thomas Molony,
    Rich’d Aylman,
    Patt. Dueeey.
    *City of Philadelphia, ss.
    day of December, in the year of our Lord *- one thousand seven hundred and seventy-four, before me, Thomas Willing, one of the Justices of the Supreme Court of Pennsylvania, personally appeared Patrick Duffey, one of the subscribing witnesses to the aforegoing instrument in writing, and made oath on the Holy Evangelists of Almighty God, that he was personally present and did see the therein named Thomas Green and Barnabas Higgins, severally seal, and as their respective act and deed, deliver the same; and that the name of him, the appearer, thereunder subscribed as a witness thereof, is of his, this appearer’s, own proper hand-writing, and that he did also see Thomas Molony and Richard Aylward, subscribe their names thereunder, as the other witnesses of such sealing and delivery. Sworn before me, at Philadelphia. Witness my hand and seal, the day and year abovesaid.
    . Thomas Willing, (l. s.)”
    A motion having been made on the first day of the term to take off the non-suit, the case came on now for argument.
    Mr. G. W. Ashmead, for the plaintiff,
    argued, that the deeds and other written evidence offered, ought to have gone to the jury-
    1. The deed of Thomas Green was offered to prove the pedigree of the grantor, in the first instance, independently of possession, and afterwards connected with proof of possession. The rules of evidence in cases of pedigree, are much relaxed. Hearsay evidence of a slight character, has been admitted. 3 Starkie’s Evidence, 1100. We had a right to show that the-Green mentioned in the deed was George Green. [Sergeant, J. I overruled the dee.d on the ground that the recitals in it wore not evidence of pedigree. There was certainly no evidence offered or suggested to connect George Green with the grantor in the deed.] Written declarations ought to be admitted in preference to verbal ones. The affidavit of the subscribing witness is some evidence of'the grantor in the deed having been the person he represented himself to be. Jackson v. Cooley, (8 Johns. Rep. 128). Copies of inscriptions on gravestones, &c. have been admitted. 12 Viner, 244. A paper found among the papers of a deceased ancestor, was held to be evidence of the existence of an older brother. Johnson v. Pembroke, (11 East, 503). A copy of a deed was admitted after sixty years, to establish a grant under which the parties claimed. Buller N. P. 233 ; where it is said that “recitals in family deeds, are evidence of pedigree.” In Stokes v. Dawes, (4 Mason, 268,) Judge Story held that recitals in a deed were evidence of heirship after sixty years’ possession. The point, however appears to have been expressly decided in two cases in this state. Morris v. Vanderen, (1 Dall. 67,) where C. J. M‘Kean says, in general terms, that “recitals hi a heed are *evidence of pedigree;” and Paxton Price, (1 Yeates, 500,) where a deed under precisely the same circumstances as this, was admitted. It is true, that in Garwood v. Dennis, (4 Binn. 314,) it is laid down that the recital of one deed in another is not evidence, unless there has been uninterrupted possession in conformity with the deed ; but a recital of pedigree differs from that of a deed. IIow was the plaintiff here to prove the pedigree of a man who died one hundred and fifty years ago ? Supposing the rule in Garwood v. Dennis, to apply, all that we could be called upon to show is, that there was no possession adverse to our title. The evidence of Mrs. Beck and Mr. Ashmead, not only proves this, but shows that there has been a continued possession on our side, for more than sixty years; and after this evidence had been given, the deed ought to have been allowed to go to the jury. Alston v. Saunders, (1 Bay, 26); Penrose v. Griffith, (4 Binn. 236); Downing v. Gallagher, (2 Serg. & Rawle, 455); Kiddey v. Cockburn, (2 Russ. & Mylne, 167; s. c. 6 Eng. Chan. Rep. 441); Elliott v. Peirsoll, (1 Peters, 328).
    2. The will of Eckhart, and the deeds and other papers after-wards offered, ought to have been admitted. It is settled that the plaintiff in ejectment need not go further back that the deed or will of a person, who died seised. West v. Pine, (4 Wash. C. C. Rep. 691); Jack v. Doughty, (3 Watts, 151). It is not necessary that the possession of the plaintiff should be continued and notorious. In Hook v. Long, (10 Serg. & Rawle, 1,) 0. J. Tilghman said, that any evidence of title, no matter how small, was sufficient. This was a vacant lot in the suburbs of the city; and the same evidence of possession could not be expected as of a dwelling-house or farm. M'Intire v. Savoy, (17 Serg. & Rawle, 109); Hopkins v. Robinson, (3 Watts, 205); Stanley v. White, (14 East, 342); Goodwin v. Hubbard, (15 Mass. Rep. 213); Jackson v. M'Call, (10 Johns. Rep. 380);. 2 Starkie, 514; Sir Thomas Jones, 182; Co. Litt. 31, (a), 266, (b); Watkins on Descents, 38, 49; 1 Phillips on Evid. 124.
    Mr. Chester and Mr. T. I. Wharton, for the defendant.
    1. The first question is, whether the copy of the record of a deed, was admissible to prove the descent of the grantor from a person whose Christian name was not given, in order to trace a pedigree from a first purchaser. It is believed that no case has gone so far; greatly as the rules respecting pedigree have been relaxed. There are two rules to be found in the books on this subject, neither of which will aid the plaintiff. 1st, That recitals in deeds are evidence where they operate as admissions or estoppels. 2d, That in cases of pedigree, slight evidence is admissible, provided it comes from disinterested persons. The principle is clearly stated by Lord Eldon, in Whitelock v. Baker, (13 Vesey, 514,) where he says, that entries in Bibles, &e., are admitted because they are the effusions of *a person who speaks an occasion when the mind stands in an even position, without any temptation to. deceive, &c. The very foundation is taken away, when it appears that the party making the declarations was interested to establish it. It is said in 1 Phillips on Evidence, 176, that “recitals in family deeds,” monumental inscriptions, &c. are admissible “upon the same principle.” In Cowper, 594, which is referred to, there is nothing said about family deeds. The only difference between pedigree and other matters seems to be, that in respect to the former, evidence is admitted without oath; but if the party making the declarations would not be admissible on oath, certainly his declarations ought not to be received. Now in this case Grreen, the grantor, would not have been a witness to prove the facts he states, either before or after the execution of the deed: not before, because he was directly interested : nor after, because there was an express agreement by the grantee to restore one-half of what he might recover. If the declarations of a grantor, in support of his title, are, admissible, then declarations against it ought to be received, which is not allowed. Bartlett v. Delprat, (4 Mass. Rep. 702). In Clevinger v. Hill, (4 Bibb, 498,) it was held, that a deed purporting to be executed by heirs, was not any evidence of the fact of heirship. The dictum of Chief Justice M'Kean, in Morris v. Vanderen, must be taken with the necessary qualifications; otherwise it is against all the authorities. The case is very imperfectly reported; and it is to be presumed that he spoke of recitals in deeds made by disinterested persons where the possession had been conformable.' The case of Paxton v. Price was a Nisi Prius decision, and if it is to' be understood as supposed on the other side, it is certainly not law. In Garwood v. Dennis, there had been uniform possession, and the recital was against the interest of the party making it. In Stokes v. Dawes, Judge Story rests his opinion on the continued possession. The remarks of Judge Thompson, in Jackson v. Cooley, show why the acknowledgment of the grantor was considered to be material; and the reasons do not apply to this case. There was no such evidence of possession here as the authorities require. Nothing is pretended until about 1788, long after the date of the deed; and the testimony of Mrs. Beck does not prove any possession then. The only fact shown is, that in 1808 or 1810, Mr. Ashmead took possession by putting up a fence, which was soon torn down. It was admitted that they had never paid taxes.
    2. The other deeds and papers were properly rejected. It is well settled, that' a deed is not admissible, unless some title is shown in the grantor. Faulkner v. Eddy, (1 Binn. 188); Peters v. Condron, (2 Serg. & Rawle, 84): Soak v. Dong, (10 Serg. & Rawle, 10); Kennedy v. Skeen, (3 Watts, 95). Here there was no paper title in Eckhart or Ashmead. Nor was there any title by possession. The defendant claimed to hold under a PateiR from the commonwealth *grauted in 1786, in of a sale made by virtue of the act of 1781, (1 Sm. Laws, 533). It has been decided, that where there is a legal possession under a grant from the commonwealth, the actual entry of the owner is not necessary. Potts v. Gilbert, (3 Wash. C. C. Rep. 475). To give a title to the plaintifTby possession, there must have been an acrual, continued, visible, notorious, distinct, and hostile possession for twenty-one years. Hawk v. Senseman, (6 Serg. & Rawle, 21). In this case there was ■ neither the pedis piossessio, nor that kind of possession which is derived from causing the land to be assessed as the property of the claimant, and the payment of taxes. Independently of the general rules applicable to this case, -the title of the defendant was strengthened by the provisions of the act of 1781, which seems to exclude all idea of any legal possession by the plaintiff after the year 1781, if this lot was unappropriated at that date, as it must be taken to have been.
    Mr. O. J. Ingersoll, in reply.
    This is not- a motion for a new trial, but to be considered as a reserved point. The admission of evidence is a matter of judicial discretion, to be governed by considerations of convenience. A recital in a deed is as good' as hearsay. I question the rule that has been asserted as to interest disqualifying- a man from giving evidence to prove pedigree. A man may be incompetent to establish his own title, yet he may be heard to prove his descent. Is the recital annulled by being-contained in a deed which relates to title ? The case of -Elliott v. Piersol, which is of high authority, supports the view we have taken of this kind of .evidence. Judge Sergeant ought to have let that part of the deed which relates to pedigree go to the jury, and should have then told the jury to disregard that which relates to title. The cases of Morris v. Vanderen and Paxton v. Price, both of which were decided by very eminent judges, are not overruled by Garwood v. Dennis, which does not treat of pedigree, and in the report of which they are not mentioned. Boudereau v. Montgomery, (4 Wash. C. C. Rep. 186,) shows how far the Courts will go in receiving evidence of pedigree. Judge Sergeant thought, that there was no evidence of possession to sustain the deed; but there certainly was some evidence, and we think sufficient for the purpose. It is not necessary that there should be such possession as is requisite to establish a title under the statute of limitations. This is like the case of a demurrer to evidence; in which every thing ought to be inferred against the party excluding the evidence. The act of 1781, plainly refers to unappropriated lots only; and the plan given in evidence showed that this lot was appropriated as far back as 1683.
   Huston, J.

delivered the opinion of the Court—

On the trial of this cause the plaintiff offered in evidence a deed, *and afterwards a will, both of which were rejected: on which the plaintiff suffered a non-suit, with liberty to move to take off the non-suit in the Court in banc.

To understand the case, it may be necessary to give a brief statement of things which are now matter of history, partly supported by documents which are in the archives of the state, -and partly by tradition.

Before William Penn left England, he proposed to sell lands in the province then granted to him, but of which he had not taken possession; and he granted to different persons, and to different companies, bodies of land, to be surveyed in his province. These grants differed in quantity from 5000 acres to 500. And he stipulated to lay out a city with streets, alleys and lots; and around the city to separate from the mass of lands, a certain quantity; this quantity was to.be apportioned among those who became parties to his scheme in such way that each first purchaser was to have one hundred acres of this parcel contiguous to the city, for each one thousand acres which he purchased; and of the city lots, each of those first purchasers was to have a lot or lots as appurtenant to his grant of lands. Those who had purchased five thousand acres were to have the preference in the choice of the city lots ; and where there were many having the same quantity of land, their respective city lots were to be ascertained by lot. Soon after the arrival of William Penn, he laid out the city of Philadelphia. There is in the land office a list of original purchasers, and opposite the name is the number of the lot drawn by each, or, more correctly, drawn for each, as only five of them were' present; and there is also a plan of the city, with the number of the lot in each ; and thus each first purchaser could ascertain the lot appropriated for him as appurtenant to the land agreed to be sold and laid off to him by the contract with William Penn. These terms were afterwards changed or modified, and this was the subject of much altercation, of which it is not necessary here to state the particulars. There could bo nothing more simple or more equitable than this plan, if it had all been executed immediately; but this case shows that the execution of it was long delayed. One half of those first purchasers did not come to Pennsylvania with William Penn, nor in his lifetime. The records of the land office contain all the surveys made and returned for those first purchasers ; and it is certain that many of them never applied for orders of survey, or have any drafts been returned showing that any land was appropriated for them ; I say it is certain, for as there is no evidence or tradition that any one applied for an order of survey and was refused, we must take it now, after a century and a half, that many never applied. Whore any person procured a survey to be returned for the quantity of land agreed for in England, he had a right to a city lot by the terms of the and such lot has been often spoken of lawyers and judges as appurtenant *to the land granted; and Holmes’s plan of the city has been given in dence, together with a list of first purchasers, with the number drawn written opposite the name, as evidence of what particular lot belonged to each first purchaser.

It must be borne in mind that this plan of the city, with the numbers in each lot, and this drawing for the first purchasers, took place the.year after the Proprietary landed, and a lot was drawn for every person whose name was in that list, without regard to whether he at that time had his grant of land laid off or not — in fact, few then had their grants laid off — and without knowing whether each one would ever have his land appropriated or not.

A grave question or two arises here. — The lot was to go with the land, and has, I think, always been spoken of as appurtenant to it. The agreement with those first purchasers, though called a deed, designated no particular land ; it was for so many acres to be laid off in Pennsylvania. If none is or ever was designated for one of these first purchasers, can he claim the appurtenant lot, without having that to which it is appurtenant ? And if one of them sold the land, did not the lot go with it unless expressly reserved ? And if no land has been appropriated and no lot claimed for a century or more, do all the principles of quieting estates, of derelictions and abandonment apply ? But I give no opinion on these points, and come to the case before us. In the list of first purchasers, is found the name of George Green, and opposite, I take it, though it does not appear on our paper book, the No. 64, designating the number of the lot drawn for him. From all offered, and all stated in the argument, it seems, that neither George Green, nor any one claiming under him, had any land appropriated, or asked for any, or took any step in the matter until'1774, when a person alleging himself to be the great-grandson, made the deed stated in the case, which deed was offered in evidence and rejected. And this is the first point. Nothing has been said of the omission of the first name, Qeorcje, in the deed, nor of the fact that there is no evidence that this Green, was the purchaser from William Penn: no paper, or document kept by the family, is adduced to prove this fact: and I would hesitate long before I would say, that proof, if there was any, that Thomas Green the grantor, was the great-grandson of- Green, was any evidence, except his own recital, that he was the descendant of George Green the first purchaser. But I pass over that.

There is a part of the deed from Thomas Green, which the plaintiff’s counsel only noticed to say it was of no importance.— By the deed Thomas Green stipulated, that his grantee Barnabas Higgins should restore one-half of the said two thousand acres of land, together with one-half of the appurtenances thereto belonging, to him the said Thomas Green, or his assigns, &c., to have and to hold the same to the said Thomas Green, his heirs and assigns, &c. * After this deed, then, Thomas Green was a party directly in interest, as to one-half of the property in suit.

The only evidence that Thomas Green was the descendant of -Green whom he alone states to be the first purchaser, is the recital of his own pedigree in his own deed to his grantee, for his own use as to one-half of the property. Cases have been cited to show, that recitals in deeds, declarations of those related to or intimately acquainted with families, letters to such persons, and inscription on tombstones, have been received as evidence of pedigree : and so they have. One of the most common errors in our profession, and in all sciences which depend on reasoning, is, to assume that a position which is partially, or even generally true, is universally true. Is there any case that the declarations of a plaintiff in a cause are any evidence of his own pedigree; or that a letter written by him is evidence of his own pedigree ? If such were evidence, there is an end of all difficulty in proving pedigree. The case of Garwood v. Dennis, (4 Binn. 314,) has been cited and relied on by both parties: the facts were so complicated, that it may fairly be said to be no authority, unless in a case precisely like it; and Chief Justice Tilghman takes care to state, that all the circumstances of it entered into his opinion. Several deeds were before the Court, some from R. Dennis alone, and two from Richard Dennis together with T. Say, the executor of John Coates the father of Dennis’s first wife, under whom the plaintiffs claimed. In this deed, some of the brothers and sisters of Mrs. Dennis joined; another, in which Dennis and one of the brothers of Mrs. Dennis joined. The opinion of the 'Chief Justico is summed up in these words: “I am of opinion, that the deeds of conveyance of R. Dennis in, which he was joined with Thomas Say, and the Coates family, or either of them, were competent evidence, and therefore there should be a new trialthus excluding all evidence of recitals in deeds executed by Dennis alone: it was the recital by others of the family or connected by intimate acquaintance with the business or transactions respecting the estate, which were evidence. Yeates did not concur; and the general principle on which he relied, that no man can make evidence for himself, is not. easily got over. In this case there is no pretence of possession or claim by Thomas Green, or those under whom he claimed previous to his deed; nor is it easy to show how friends or relations could affect the rights of infants by any acts or declarations. The books cited, 3 Starkie, 1108, and especially 13 Yesey, 564, and 4 Bibb, 458, are expressly in point, that the proof of pedigree must be given by persons who can prove, on oath, what they have heard, or seen, or read, and not by the statements of the party himself. And Thomas Green is a party plaintiff in this cause.

The plaintiff examined a witness or two, and then offered in evidence the will of William Eckhart. They showed- no convey-ance *from Barnabas Higgins, the grantor of Thomas Green. They proved that Eckhart had lost a deed. No person was called who ever saw the deed said to be lost; none of Eclchart’s family ever saw it. The plaintiff claimed under Eckhart as he alleged. To put it in the strongest way, and it is more than any witness said, the proof is that Eckhart said he had such a deed. Now, this was no evidence of its existence or contents. The party has been admitted to prove he lost a deed; but that it once existed, and the contents of it, must be proved by some other than the party claiming under it. Eckhart telling his daughter that he claimed a lot in that part of the city, and saying that he would buy or had bought rails to fence it, Avas not taking possession: no Conveyance Avas shoAvn to him, and no possession in him was shown. A deed or Avill by him then would be no evidence, and this offer was properly rejected.

To attempt to take possession by Mr. Ashmead in 1808 or ’10 cannot give any effect to this Avill. Can it give any right to himself? I admit, where a man has shown any title vested in himself, slight acts of OAvnership may be considered as taking or continuing possession. But where a man has shown no other title to land, the possession Avhich will enable him after tAventythree years absence, to support an ejectment, even against an intruder, Avithout title, must have been at least an actual personal residence continued for some time.

In future decisions respecting these old rights, it may be well to refer to the act of April, 1781, (1 Smith’s Laws, 533). Though the first sections refer to unappropriated lots, yet others refer only to those actually granted by William Penn but never claimed until that time, and provide a limitation as to such claims, Avhich may be found a positive bar in most cases. The motion to take off the non-suit must be refused.

Motion refused.

Cited by Counsel, 4 Watts & Sergeant, 444 ; 2 Barr, 250; .6 P. F. Smith, 138.  