Jones v. Huggins, 12 N.C. 223, 1 Dev. 223 (1827)

June 1827 · Supreme Court of North Carolina

12 N.C. 223, 1 Dev. 223

Edward S. Jones v. Luke Huggins.

From Onslow.

A witness who has seen many certificates of survey attached to grants and purporting to have been made by a surveyor who had been many years dead, is competent, from the knowledge of his writing thus acquired, to prove that a particular plat of survey is in the hand-writing of the deceased surveyor.

A survey though ancient made by direction of the owner of lands, fo his own convenience, is not admissible evidence for him, or those claiming under him.

This was an action of trespass Q. C. F. tried before Daniee, Judge, the Plaintiff deduced title under a grant for 640 acres of- land to one Joel Martin in 1.713, a conveyance to John Starkey in 1759, and subsequent descents and devises to himself. The Plaintiff also deduced title to himself under a grant to John Starkey in 1760, for eighty acres, to which grant was annexed a certificate of survey purporting to have been made the 24th of October 1759, by John Skibbow, deputy Surveyor of Onflow. A long continued and actual possession was then shewn of land alleged to he in both grants, of neither of which was a corner or line tree to be found; and in order to locate them, ¡he Plaintiff gave evidence of the goneray reputation respecting their boundaries. As further evidence, it was proposed to submit to the Jury a map or plan, purporting to represent, the two tracts of land, on* which were laid down various water courses, dwelling houses and other objects, and at the foot of the map was a memorandum in these words : s‘ This plan represents 660 acres of land in Onslow county, on the west side of White Oak River, beginning, &c. (setting forth various courses and distances) as by the patent granted, &c. doth appear. Explained for John Starkey, Esq. 24th October, 1759, P. J. Skibbow, D. S.” The plaintiff proved by an aged resident of the county that John Skibbow, was dead before his recollection, and that he had understood from general report, that Skibbow in his lifetime? , * acted as a surveyor or deputy surveyor ot the county, that the witness liad seen many plats of surveys attached to grants'of land and purporting to be made by Skibbow, and from the acquaintance with his hand-writing thus acquired, believed that every word in the memorandum and in the map produced, was of the proper hand-writing of Skibbow. 'Whereupon, the Judge, notwithstanding an objection taken thereto by the Defendant’s counsel, re-cen ed the map in e\ idcuce and left its weight and effect to be judged of by the Jury.

A verdict was found for the Plaintiff and a new trial being refused, the Defendant appealed.

Badger, for the Appellant,

The proof by which the paper was shown to be in the hand-writing of tiie surveyor, was comparison of hands. This kind of proof is not admissible, the true rule is that laid down by Futes Justice, in the case of Brockland v. Woodley, {Gilb. Ev. 47 n.~) 44 where, a witness has seen the party write, and speaks to his belief of that handwriting which is produced, being the party’s hand-waiting, that is evidence. But where it is merely opinion on similitude, collected from comparing them, the Jury may compare them as well as any one else.”

The same rule is established by this Court in the State v. Mien, (l Hawks 6) the established' mode of proof are then said to be first, the evidence of one who has seen the party write $ second, of one who has in a course of a correspondence, rccehed pertinent letters from him; third, of one who has inspected old and authentic documents signed by him.

This case is not witiiin any of tiiese, the documents inspected by the svitness do not appear to be such as the law' recognizes as authentic, the determination of their character is not left with the witness, (1 Starkie Ev. 167, 169.") It does not appear that the witness ever saw J the papers before the trial, nor what grants he saw, what wcre tiieir number,' or where they were kept. The paper offered in evidence was not shown to be ancient, there was no evidence of its existence, even a day previous to the trial, and'therefore it should not have been proved as an ancient paper.

2d. But the survey if properly proved, was a private exparte survey, and is nothing more than the plan, statement or declaraiion of the person under whom the Plaintiff claims; it is not, on general principles, evidence against the Defendant, and the cases are express to this purpose, (Peake’s Ev. 60. — 1 Starlde Ev. 26 — Bridgman v. Jennings, 1 Ld. Maym. 734.)

Gaston, contra.

To prove handwriting, any witness may be called, who has by sufficient means acquired such a know ledge of the general character of the writing as will enable him to swear to the hand-writing in question, (2 Starkie 651.) Whether the mode by which the knowledge is acquired is sufficient, must depend upon the nature of the document to be proved, if it be a modern paper, the rule requires that the witness should have seen the person write, or have received letters from him in a course of correspondence. But if the document be an ancient one, these modes of acquiring aknowledge of it are unattainable, and others must be allowed, (2 Starkie 651, 656 — 1 Phillips 372 — Butler JV.P. 235, 236.)

As a general rule, that comparison which results from juxtaposition, is not allowed; the reason is not as usually said, because the jurors may not be able toread, and because an unfair selection of specimens may be made, but because if permitted, the evidence may be drawn out o an inconvenient length, and too many collateral en-quiries arise, (Starkie 655-6.) But in proof of ancient documents, a witness is allowed to speak from a knowledge acquired by an examination of old and authentic writing, (Lessee of Thomas v. Ilorloeker, 1 Ball. 14,) and if no other evidence can he had, there may he a compa-risen of hands as to ancient papers. (Roe deni■ Bruñe v. Rawlings, 7 East. 282 — Morewood v. Wood, ¡4 do, 3¿7.)'

No reasonable doubt can exist as to the proof of this survey, it is sixty-eight years old, is produced by him who should have the custody of it, and who holds it as a muniment of his title, and it accompanies an authentic paper, viz. the survey of a cotemporaneous grant. The witness who proves it, derived his knowledge from having seen similar papers annexed to many grants. By statute, a survey is required to accompany every grant, and grants are the most solemn assurances known to our law.

The authenticity of the paper being established, it was admissible in evidence as the declaration of a deceased witness, in relation to boundary made before any dispute had arisen. The survey annexed to the patent was dated October 24th, 1759, and the paper offered was executed the same day; if the surveyor was now alive, his testimony would be very high evidence as to the location of the grant, a witness who had heard him describe the location, would be allowed to give such description in evidence; can there be any reason why his verbal declaration should be received, and his written certificate of the same fact rejected ?

It is said that this is the declaration of Starkie, and therefore not admissible for those claiming under him j but this is founded in a mistake, it is not the declaration of Starkie, but of the surveyor; it is not made by Starkie bat for him.

Badger, in reply.

The antiquity of the map was not shown, either by inspection as in the case in Balias, or by the place in which it was found as ecclesiastical teiv ríes kept in the Bishop’s registry, rolls of Courts Baron, produced by the Steward, &c. There is nothing which imports antiquity hut the date, and the paper may, for any thing that appears, exhibit on its face unequivocal indications of a recent origin. The evidence of the handwriting could have been properly received only on the ground that the paper was ancient, and yet its antiquity was presumed without proof, in order to Jet- in the evidence. Surely the Plaintiff’s case was not helped by his producing the paper, for that shows it to have been under his control, and is of itself a-reason for suspicion.

The case in Ld. Raymond is a direct decision that a survey of a manor made under the direction of the Lord is not evidence of its boundary except against those who claim under him. As a survey therefore, the map was not admissible, nor was it admissible as the declaration of a deceased person. A declaration of Skibbotv, whether verbal or written, made as the agent of Starkey, is but the declaration of Starkey himself, and can effect only those who claim through him.

’I’atior, Chief-Justice.-

I consider that the evidence offered of Skibbotv’s hand-writing was legally admitted, and that it was certainly free from the objection of its being proof from comparison of bands. The witness was an aged man, and Skibbotv had died before his remembrance, the witness’s knowledge of the general character of Skibbotv’s hand-writing was derived from hav-iny inspected many plats of surveys annexed to grants, which surveys purported to have been made by him, who was reputed to be a surveyor or deputy. I think this satisfies the rule of law that the witness must have acquired his knowledge, of the hand-writing by sufficient means 5 for the authenticity of these grants held by various persons as the muniments of their estates, cannot ¡reasonably be questioned. The offices where they issue, and where they are recorded, the small temptation presented to commit forgery and the facility of detecting it, place these documents on more elevated ground than bank bills or post office franks, and bring them within the operation of the rule staled by Le Blanc J in Roe v. Rawlings, (7 East 282.) This very point has been so decided in New-York, as appears from the case quoted at the bar.

But on the question whether the survey itself be competent evidence for the Plaintiff, the Court is of opinion that it is inadmissible as being a private memorial procured to be made by Starkey for his own convenience, and is not evidence for him, or for any one who claims through him. The reason for excluding such evidence is decisive, viz. that it might benefit men to include in such surveys more than belonged to them. There must consequently be a new trial.

Per Curiam. — Judgment reversed and new trial awarded.