Den on demise Clarke v. Diggs, 28 N.C. 159, 6 Ired. 159 (1845)

Dec. 1845 · Supreme Court of North Carolina

28 N.C. 159, 6 Ired. 159

DEN ON DEMISE OF NANCY CLARKE vs. RILEY DIGGS.

A plaintiff in ejectment can only recover upon the strength of his own title, as being good against all the world, or as good against the defendant by estoppel. '

Grants from the Sovereign, when enrolled in the office from which they emanate, are there records, and copies of them may be used in evidence by all persons, except those who would be entitled to the originals.

Copies of Abstracts entered in Lord Granville’s office are evidence.

Though the party,’against whom the Judge in his charge commits an error, obtains a verdict, yet when the principle, so erroneously laid down, might liave prevented the defendant from making his full defence, a new trial will be granted.

The cases of Duncan v. Duncan, 3 Ired. 317, Candler and Lunsford, 4 Dev. and Bat. 13, and Jones v. Young, 1 Dev. and Bat. 354, cited and approved.

Appeal from the Superior Court of Law of Anson County, at the Fall Term, 1845, his Honor Judge Caldwell presiding.

The plaintiff claimed the land in controversy, under ail alleged grant from the Royal government to one John Slay, who conveyed the whole to tine Auld. By mesne conveyances, the land in dispute, consisting of twenty acres, came to a man by tbe name of Field, who conveyed it to Joseph Clarke. The latter conveyed to his three daughters, of whom the plaintiff was one, a tract containing one hundred and eighty-seven acres, the deed reciting-, that it was part of a tract granted to John Ha-mer. In order to make out her title, the plaintiff offered in evidence a paper writing, certified by the Secretary of State, as being the copy of a grant for three hundred acres of land to John Slay. This evidence was rejected by the Court as not being what it was alleged to be, but merely a copy of boundaries. The plaintiff, failing by this decision, to make out a title by a regular and connected chain, then offered in evidence, by deeds of conveyance, to show that the defendant was estopped, by recitals in them, to deny the title of the lessor of the plaintiff. It was shown that the land in controversy was a part of the Slay tract, and that the deed from Joseph Clarke to his daughters covered it, and that the defendant was in possession. But it does not appear that the plaintiff, or any person under whom she claimed, ever had been in possession.

The jury found a verdict for the plaintiff, and judgment being rendered thereon, the defendant appealed.

Badger, for the plaintiff.

Strange, for the defendant.

Nash, J.

We are spared the trouble of examining the doctrine of estoppel, as applicable to this case, in the argument before us ; that ground has been very properly abandoned. There certainly is no estoppel. But it has been argued, that although there is no technical estoppel, yet the deed from Auld to Curtis, which conveyed to the latter two hundred and eighty acres of the Slay tract, and recited the deed from Slay to Auld, and the deed from the latter to Field, for the twenty acres, together with the deed from Curtis to Marshal Diggs, of the same two hundred and eighty aeres, and the deed from the latter to the defendant, was good, prima facie evidence of title against the defendant, who was a mere wrong-doer. We do not accede to the proposition, nor indeed is it in •this State an open question. The rule here is a plain and simple one. A plaintiff in ejectment must recover on the strength of his own title, cither as being in itself good against all the world, or good against the defendant by estoppel. Duncan v. Duncan, 3d Ired. 317. In this case, it is admitted there is no estoppel, and it is apparent the legal title, according to the evidence before the jury, was not in the plaintiff. The first link in her chain was wanting, to-wit, the grant from the State.

In rejecting the paper certified by the Secretary of State, as a copy of the grant to John Slay, his Honor erred. It escaped his observation, that this very question was decided by this Court, in the case of Candler v. Lunsford, 4 Dev. and Bat. 19. It is there ruled, that grants or patents from the Sovereign are enrolled in the office, from which they emanate, and are then records. Like all other records, copies of them, by the common law, may be used as evidence" by all persons, except those who would be entitled to the originals. The Legislature, by an Act passed in 1748, recognizes this principle, and goes further, and makes the abstracts entered in the office of Lord Granville, or exemplifications of them duly proved, evidence, as if the originals were produced. The paper offered in evidence is an abstract, containing the courses and distances of the lines and the date, and is signed by the then Governor of the colony, and the Secretary of State has certified it as a true copy of the record of the grant. We believe the practice has been uniform to record abstracts, and though the Act of ’48 is not brought forward in the Revised Statutes, we are of the opinion, that. Act merely recognized the rule of the common law, and by the latter the copy was evidence. The jury, however, gave the plaintiff a verdict, notwithstanding this error against him; yet, as this erroneous opinion may have prevented the defendant from relying upon other testimony in his power, we think it proper upon the authority of Jones v. Younge, 1st Dev. and Bat. 354, that the case should be again submitted to a jury.

Per Curiam. Judgment reversed, and a venire de novo ordered.