McCausland v. Fleming , 63 Pa. 36 ( 1870 )

The opinion of the court was delivered, January 3d 1870, by

Agniw, J. —

So far as the bill of exception to the admission of Judge Taylor’s draft in evidence, might depend upon the state of the evidence, at the time of its admission, we have no means of testing its correctness, the evidence not being furnished. In the bill itself the purpose of the offer is not stated; so that if the draft be evidence for any proper purpose, it was rightfully received.

The action was trespass vi et armis, with the plea of not guilty as well as that of liberum tenementum. The plea of not guilty put in issue the plaintiff’s possession, which the defendants had the right to disprove by proving their own ancient and continued possession of the locus in quo. This they endeavored to do by proving an ancient boundary line run by Judge Taylor, and .a possession corresponding thereto. To identify clearly and locate this line they next offered Judge Taylor’s own draft of survey of this boundary line. Preliminary to this, they proved by the testimony of Daniel Devinney, the possession of this draft (bearing date in 1823) in John Montgomery, a former owner of the land, under whom they claim title, as early as 1833, and that he was in possession of the tract claiming to this line. The handwriting of the draft was also proved to be that of Judge Taylor, who had been deceased twenty years. Under these circumstances the draft was clearly competent evidence, corroborative in its nature, of the extent of the defendants’ possession: that is of the boundary of his possession. “ A second exception (says Mr. Greenleaf, in his Law of Ev., vol. 1, § 141) to the rule rejecting hearsay evidence, is allowed in cases of ancient possession, and in favor of the admission of ancient documents in support of it. Care must be taken (he continues) to ascertain first the genuineness of the document, and that it came from proper custody.” That was done here by proving the handwriting of the deceased Judge Taylor, and the possession of the paper by the former proprietor, who would most probably have and be entitled to its custody. Then the document was fortified by proof of a line marked on the ground, bearing the ancient reputation of a survey made by Judge Taylor, and by evidence that the defendants claimed and held possession to and by this boundary.

Pedigree and boundary are the excepted cases, wherein reputation and hearsay of deceased persons are received as evidence. The statements of deceased persons relative to boundaries of which they spoke from actual personal knowledge, have been frequently received as evidence in this state: Cauffman v. Cedar Spring Congregation, 6 Binn. 62, 63; Buchanan v. Moore, 10 S. & R. 281; Bender v. Pitzer, 3 Casey 335. And ancient maps and surveys are evidence to elucidate and ascertain boundary and fix monuments: Penny Pot Landing, &c., v. City of Philadelphia, 4 Harris 91; Sample v. Robb, Id. 319. The distinction is stated by Coulter, J., in the last case, to be between drafts when offered for title and when offered for boundary. For the former purpose none but such as are shown to bear an official character will be received. These must be traced to the possession or office of the surveyor, and appear to have been made in an official character : Urkett v. Coryell, 5 W. & S. 79; Woods v. Ege, 2 Watts 336-7; Blackburn v. Holliday, 12 S. & R. 140. The question here being one of the possession and the extent of it by the boundary known as Taylor’s line, the draft being properly proved and traced, was competent evidence to aid in ascertaining and identifying that boundary.

Judgment affirmed.