At the next subsequent May term in this county, the opinion of the Court was delivered by
Mellen C- J-
This is a writ of entry in which the demandants count on their own seizin within twenty years, and demand possession of a lot of thirteen acres. As to ten acres of the demanded premises, commonly called the ten acre lot (excepting that part of it which was sold to the Cotton and Woollen Factory) the defendant pleads the general issue, which is joined. As to one undivided moiety of three acres, called the mill lot, and as to all other parts of the premises demanded, he pleads a general non-tenure. And as to the other undivided moiety of said mill lot, he pleads a recovery of the same, since the commencement of the suit, by one Walter Blake, who is alleged to be the real demandant in the present action. Issue is joined on the plea of non-tenure, and a verdict has been returned in favour of the defendant. The above plea of recovery by Walter Blalce was filed by leave of Court, at September term, 1832, and to this there has been given since the main argument, a special demurrer which will be more particularly noticed in the sequel.
We will in the first place examine the instructions of the Judge in relation to some of the minor questions in the cause, and dispose of them, and conclude with an examination of those of more importance as to the merits, or more interesting in their consequences as to practice; all of which have arisen in the investigation of facts under the general issue.
[211]*211It is contended that the instructions were incorrect as to one undivided moiety of the three acre or mill lot, and the plea of non-tenure, as applicable to it. The defendant never pretended to have a title to more than an undivided moiety. On this point we think the language of the Judge was correct. It is certainly true, as stated, “ that a tenant in common of land, “ in the enjoyment of his legal rights, must necessarily be in “ possession of the whole; that such is the nature of a ten- “ ancy in common.” The defendant received a deed of a moiety in common ; and, when he entered under the deed, he must be presumed to have claimed and held according to his title. Besides, he actually possessed only a moiety, in consequence of a parol division, made between himself and Blake. In either view of the facts, touching this part of the cause, we think the instruction was proper ; and under that instruction, the jury have found that he never claimed to be a tenant of the freehold of more than a moiety. Thus this objection is at an end.
Again, it is urged that the instruction was erroneous as to the possession or tenure of the Island or rock, which seem to be used as synonymous terms. In the deed from Isaac Hill to the defendant, above-mentioned, the Island or rock is expressly excepted ; and we have no question that the exception is a good one. Payne & ux. v. Parker, ante. There is no direct proof of any claim, in contradiction to the terms of the deed. He was an owner of one twelfth part of a mill on the opposite side of the stream and of the adjoining dam, which was erected about twenty years ago by Reuben and Isaac Hill, who merely rested one end of it against the rock where it still remains. Under the circumstances disclosed by the report, we are satisfied with the instruction given. The fact proved, could never be considered as sufficient proof of a tenure of the freehold of the Island or rock, by the defendant, in direct contradiction to his deed from Isaac Hill. This objection, therefore, is not sustained.
Another objection has been urged, in relation to this sharp point in the cause. It has been contended, that inasmuch as in the Court of Common Pleas, the defendant pleaded the general [212]*212issue as to the rock or Island, and the three acre lot, and a trial was there had upon that plea, that fact is evidence to sustain the issue as it now stands. The answer to this objection is an obvious and satisfactory one. The amendment of the plea, we presume, was made for some good reason, in the opinion of the Court which permitted it. It is not a subject of revision now. If an error had been committed in the pleading, which might be prejudicial to the defendant, that error has been corrected by the amendment, for the purposes of justice, which would at once be defeated by allowing it now to be considered as a confession of a fact which the demandants find necessary to enable them thereby to disprove the plea of non-tenure. The objection is inter apices legis, and cannot be allowed to have the desired operation. Such an objection, if sustained, would render all amendments useless. But the amendment has been examined by the full Court, and we are all satisfied the leave to make it was properly granted. This amended plea will be particularly examined, in the close of this opinion, as to its merits and the time when it was filed.
We have thus considered and disposed of the several objections which have been urged by the counsel for the demandants, which have respect to the special pleas in bar and the instructions of the presiding Judge as to the principles of law applicable thereto. It remains for us now -to examine those which have been urged as to the ruling of the Judge in regard to the admission of Isaac Hill as a witness, and of the original deed from Reuben Hill to Isaac Hill in evidence to the jury, without the usual proof of its execution; and the alleged incorrectness of the Judge in omitting or declining to give certain requested instructions., Though the report states the facts of the case with sufficient clearness; yet it may be useful here to give a condensed view of them and comparison of dates, by means of which our opinion may be more intelligible, and the grounds of it more readily understood, than by reference to a long report.
One William Lewis was formerly the owner of the land in question, and conveyed the same to Moses Copeland; and both parties claim under him. By the evidence introduced by the demandants, it appears that, prior to the sixth of December, [213]*2131797, the said Moses Copeland conveyed the demanded premises to Josiah Reed, but the deed was never registered. That on said sixth day of December, 1797, the said Reed, by his deed of that date, conveyed the same premises in fee to Henry Knox, father of the demandants ; in which deed, Heed states that the same were conveyed to him by Copeland. This deed was registered April 30, 1798. Gleason cut some timber on the land under Knox. The non-production of the deed from Copeland to Reed was accounted for by proof that Copeland,, after the death of Henry Knox in 1806, took back the deed from Reed, and destroyed it; and having a demand against Reed secured it by this arrangement. November 10th, 1812, Copeland conveyed the same premises to Reuben Hill, who at the time of receiving it, had full knowledge of the cancellation of Copeland’s deed to Reed and the circumstances attending it. The deed to Hill was registered March 19th, 1816. Reuben Hill, on the 28th of May, 1821, conveyed the 10 acres, and undivided moiety of the mill lot to his sou Isaac Hill, who caused his deed to be registered May 29th, 1821. And the same year Isaac Hill conveyed to Silloway the land, excepting the three acres sold to the Factory. On these facts, if duly proved on the trial, are the demandants entitled to recover, or is the defendant entitled to retain the verdict which the jury returned in his favour ?
The general principles of law, applicable to the above facts, are clearly and fully stated in Trull v. Bigelow, 16 Mass. 406, McMechan v. Griffin, 3 Pick. 149, Hewes v. Wiswell, 8 Greenl. 94, as well as in many other cases. It is clear, that if Reuben Hill was the defendant in this case, his title deed could not avail him ; but the question is whether the case before us furnishes any proof of a scienter on the part of Isaac Hill, or of Silloway; for if not, then they stand on firm ground, and are not affected by the fraud between Copeland and Reed, though it was well known to Reuben Hill' — see the cases before cited. But it is contended by the counsel for the demandants, that Isaac Hill and Silloway, both, had such notice of the conveyance to Knox, as to defeat the conveyances under which the defendant claims. The answer to this position is, that Reed [214]*214never had any possession under his unrecorded deed : and the only evidence of possession of Henry Knox, under his deed from Reed, was the cutting of some timber on the land. This was no vissible act of possession. The cutting was by Gleason under Knox: but, of itself, it furnished to third persons no evidence of title or claim on the part of Knox; and the registry of deeds furnished none of any conveyance of the premises by Copeland, prior to his deed to Reuben Hill, except what aros»? from certain recitals in other deeds which will soon be noticed. The records exhibited Copeland as the owner, when Reuben received his deed, there being on record a deed from William Lewis to him, dated May 6, and registered May 8, 1793. What possession then was there to prevent the operation of the deed from Reuben Hill to Isaac Hill in 1821, which contains a general warranty of title, and imports a consideration paid, of three hundred dollars. So far from there having been an adverse, exclusive and notorious possession, there was not even a visible one by any person: and the jury have found that Isaac Hill had no knowledge of any conveyance from Copeland prior to- his deed to Reuben Hill. This certainly has put an end to all inquiry on this point, so far as evidence of a scienter could be inferred from any possessory acts of Knox or his heirs. But it is said, that the recital in the deed from Reed to Knox, in relation to the deed from Copeland to Reed, amounted to notice to Isaac Hill, and also to Silloway, of the conveyance to Reed; but why should either of them be bound to look for recitals in deeds executed by persons under whom they did not claim, and who did not appear on the record of deeds to have any connection with Copeland, the person under whom they did claim ? The authorities cited by the demandants’ counsel by no means support his position. Starlde, 1 vol. page 369, says, “ It has “ been held that a recital of a deed in a subsequent deed is ev- “ idence of the former against a party to the latter.” See also note on same page. “ The rule of law is, that a deed, con- “ taining a recital of another deed, is evidence of the recited “ deed against the grantor and all persons claiming by title de- “ rived to him subsequently. But such recital is not evidence “ against a stranger, nor against one who claims by title derived [215]*215“ from the grantor before the deed which contains the recital.” According to the principles here stated, the recital above-mentioned, so far from being conclusive evidence isi law against the defendant, and not proper to be referred to the jury, amount to no evidence whatever against him, inasmuch as he does not claim under Reed. With respect to the recital in the deed of Copeland to Blake, it does not appear that the deed was made prior to the year 1821, or, if it was, that it was registered before that time : of course, no conclusions can be drawn from it prejudicial to the rights of the defendant. We have thus far examined the cause upon the facts we have been considering, upon the idea that they have been legally proved. But it is contended, that in two particulars, some of the facts have been proved by inadmissible evidence. In the first place by the introduction of Isaac Hill as a witness ; and 2dly, the original deed before-mentioned without proof of its execution. With respect to the witness we cannot perceive how he is interested in the event of this cause. It is not contended that he is so, in consequence of having entered into covenants with the defendant which ought to exclude him ; nor do we see how the verdict in this cause could be evidence one way or the other, in an action between the present demandants and the witness. The objection is placed on the ground, that the relation of lessor and lessee subsisted between the witness and the defendant, and that his testimony tended to strengthen his own title. The cases cited are to that point. But no such connection or relation is proved to have existed between them. The witness owned, or at least, had a deed of all the Island or rock, and half of the mill lot, excepting the part sold to the Factory. His testimony did not and could not affect his own property.
Before proceeding to consider the objection above stated, respecting the admission in evidence of the original deed to Isaac Hill, we would merely observe, that we have answered all other objections, and given our opinion on all the particulars of requested instructions, except what are contained in the 3d request and compose the 3d point contended, namely, that Reuben Hill, having knowledge of the prior conveyance of Copeland to Reed, his taking a deed with such knowledge was fraud[216]*216ulent, and that nothing passed by the deed, and so he could pass nothing to his grantee, though he might have paid a full consideration. Such an instruction was not given, and clearly ought not to have been given in any case, unless the grantee was also conusant of the same facts, or was a mere grantee, having paid no consideration; nor even then, in the present case, because none but the creditors of Reuben, or after purchasers from him, can be permitted to make this objection. The deed’was good against all others and passed the estate to the' grantee, as the demandants are not his creditors, or after purchasers from him.
We now proceed to the examination of another question. The original deed from Reuben to Isaac Hill, was duly registered on the day next following its date. We are not called upon in this case to decide, whether a party in a cause is entitled to give in evidence an original unrecorded deed to his grantor, (the same deed being less than thirty years old,) without proof of execution. There may be important distinctions between registered and unregistered deeds, in respect to the point we are considering, and probably there are. As we have not met with any decision, bearing directly on the point presented by the objection, we shall give the reasons on which our opinion is founded, distinctly and at large. The 34th Rule of this Court, established April Term, 1822, is in these words, “ in all ac- “ tions touching the realty, office copies of deeds, pertinent to “ the issue, from the registry of deeds, may be read in evidence “ without proof of their execution, where the party offering “ such office copy in evidence is not a party to the deed, nor “ claims as heir, nor justifies as servant of the grantee or his “ heirs.” This Rule is in unison with immemorial usage in Massachusetts. The Courts of this State have uniformly observed it; and it is believed that a similar practice has long prevailed in most, if not in all the New-England States. It is a departure from the principle and practice in England, occasioned by a well known distinction in respect to the custody of title deeds. In that country, title deeds accompany the title which they pass. The purchaser receives the documentary evidence of his title, and is entitled to hold it, while he continues [217]*217to hold the estate. Having the original conveyances in his possession, he has no occasion to make use of copies. But with us the universal practice is for every man to retain possession of his own title deeds. Our rule above-mentioned and our practice conforming to it, are founded upon the presumed fact that none of the deeds under which a party claims, except the deed from his immediate grantor, are in his possession or under his control ; hence he may give in evidence copies duly certified by the register of deeds, except in the cases specially named in our rule. A rule of law has long existed in respect to the proof of deeds, which bears a strong resemblance in principle to the rule as to the use of copies of deeds. “ If a deed or other instru- “ ment, when produced, appear to be thirty years old, no fur- “ ther proof is requisite. Since, after that time, it is to be pre- “ sumed that the attesting witnesses are all dead.” And the party producing the deed, has the full benefit of the presumption, though the witnesses are living. 1 Stark. 343. And he need not call the attesting witnesses, ib. — In the case of Marsh v. Colnett, 2 Esp. R. 665, a deed more than thirty years old was offered in evidence without proof of execution, and though objected to, was admitted. One of the subscribing witnesses was then in court; but Mr. Justice Yates declared, that he would not break in upon the rule and require the witness to testify to the fact of execution.
The effect of the rule and practice which we are now considering is, to admit the facts stated in the copy of a deed to have the same influence upon the minds of the jury, as the facts stated in the original deed to the party producing it would have, after due proof of its execution. It dispenses with proof of execution in all cases but one, namely, the case of a deed to the party himself. It has been supposed that the case of Woodman v. Coolbroth, 7 Greenl. 181, has indirectly decided the question we are now examining; but such is not the fact; it has merely decided that where a party has, according to our rule and practice, a legal right to use an attested copy of a deed, he is not deprived of that right, because he happens to have the original deed in his possession. In the above case, Cool-broth offered to read the copy of a deed from the demandant [218]*218to one Winslow, under whom he claimed, which copy was rejected, and he then produced the original, which was admitted and he had the benefit of it, but the Court set aside the verdict and granted a new trial. The ruling of the Judge deprived the defendant of a right which was valuable to him. In the case before us, the counsel for the defendant happened to have in his possession at the trial the original deed from Reuben to Isaac Hill, and not the copy. As soon as the objection to its admission was made, he could in half an hour have had it registered, and have procured a copy, duly certified and ready in Court; and such could not have been rejected by the Court, according to their own rule, and their own decision in Woodman v. Coolbroth, notwithstanding the counsel had the original In his hand. Now, by what magic has a copy from the registry acquired more solemnity and virtue than the original; and why is it entitled to more credit in a court of justice ? Why is not a registered, unproved original deed as good, as safe, and as satisfactory evidence, as a certified copy of such unproved original, or rather, as a certified copy of the record, which is no more than a copy of the original ? Is not the supposed distinction the merest phantom ? Where is the sound sense of such a distinction ? Of what possible use or importance is it in its application to any one ? Who can ever be injured by its abolition in practice ? Certainly not the objector, because a copy may readily be produced, which dispenses with the proof vvhich he demands ? While the above-mentioned rule and practice are permitted to continue — which are found- as useful as they are acceptable — would not the asserted distinction, if sanctioned in a court of law, be justly considered a blemish, and something as unintelligible as it seems tobe unmeaning? However, we do not place our decision of the present question merely upon the grounds we have thus been stating, but in connection with another fact which has been mentioned, namely, that'the deed had been duly registered. Had it not been so registered, probably our minds would have been conducted to a different conclusion, notwithstanding the course of reason* ing which we have been pursuing. We now proceed to a fur* ther view of the subject.
[219]*219It must be remembered, that in the above-mentioned cases, in which certified copies are admitted in evidence, they are admitted, not because the registry of the original deed is full and conclusive proof of the legal execution of it, but because it is presumptive and prima facie proof that the original is what it appears to be, namely, a fair and perfected contract, inasmuch as the person claiming under it has voluntarily placed it on the public records of the county. The Court, therefore, for these reasons and in these cases presume the original deed to have been duly executed, and thus throw the onus proband,i upon the other party, who, if he can, may impeach the deed as a forgery, or show that it was never delivered and perfected by the grantor. He has the same means of obtaining possession of the original as the party has who introduces the copy, and may thus avail himself of all accessible means of disproving and defeating it. The production in Court of a copy duly certified, is proof that the original has been registered, and thus displayed to the public eye. Does not precisely the samó fact appear to the Court on inspection of the original ? On the back of the deed in question is the certificate of the register that it has been registered on his records. Having the samo fact proved as clearly to the Court in one case as in the other, why should not the presumption that the original was duly executed be as influential in one case as the other, and produce the same effect in both, as prima facie evidence in the cause, for the purpose and to the extent before mentioned ? We are not able to discern any difference. Now, as a party is not bound to prove the execution of the deed of his immediate grantor to himself, if thirty years old, even though the subscribing witnesses should be present in Court, why should he be held to prove the recorded original deed to his immediate grant- or, because it happens to be in his possession and in Court, when a copy of it is legal evidence without any such proof ? The reason on which both the before-mentioned rules are founded, does not exist in either of the cases we have just stated; yet the rule is admitted to have the same operation and influence as though such reason did exist in full force. As we are not bound by any legal decision on the point before us, we can [220]*220discover as little reason, as we feel inclination to extend the limits of merely technical learning, so far as to include the present case, and sustain the objection of the counsel for the demandants. It savors too little of sound common sense, and too much of unnecessary refinement and useless distinction. It seems to be based on the idea that, in legal contemplation, a shadow is of more value than a substance, and entitled to more respectful consideration by the Court, when thus presented as a subject of judicial decision.
After maturely examining the question, we are satisfied that the ruling of the Judge was correct in admitting the original deed without proof of its execution ; and that a course of practice, in accordance with this decision, can injure no man’s rights, but on the contrary, will advance the cause of justice ; — may save much needless expense and trouble, and render the rule of Court consistent in relation to its consequences. From a view of all the questions submitted, the Court are of opinion that none of the objections which have been urged, and which we have been considering, can be sustained.
It now remains for us to examine the merits of the plea which was mentioned in the commencement of this opinion, as filed by way of amendment under leave of Court, the particulars of which it is' proper here to notice. When this cause was argued upon the exceptions taken to the rulings and instructions of the Judge at the trial, upon which our opinion has just been given, it was not particularly noticed that no issue had been joined upon the above-mentioned plea, as to one undivided moiety of the mill lot, in which plea the defendant states a recovery of the same by Walter Blake, for whose use and benefit the present action is brought. Since the above argument, the demandants have demurred specially to said plea, and the merits of it, having been submitted without any formal argument, we have carefully examined it, and now proceed to give our opinion. The substantial allegation of the plea is, that Blake, the real demandant in this action, and for whose use it was brought, on the 8th of December, 1825, commenced an action against the defendant for the said moiety of said mill lot, and that such proceedings were had in the action, that at [221]*221the term of this Court, held here, on the third Tuesday of September, 1828, the said Blake recovered judgment for the premises then demanded, that on the 21st of March, 1829, he took out his writ of possession on said judgment, by force of which he became seised of said premises, prout patet per recordum. The above facts are pleaded in bar of the action, as to the demanded moiety ; and we think they were so pleadable. Banker v. Ash, 9 Johns. 250. The learned author of the treatise on the pleadings and practice in Real Actions, page 164, says, “ Although a demandant had a good cause of action at the “ time of commencing his suit, yet his estate may be afterwards “ determined or his right of action otherwise destroyed by his “ own act. In such a case the fact should be pleaded in bar of “ the further maintenance of the action.” He has furnished no form of a plea in abatement in such a case. Thus the first cause of demurrer seems not to be well assigned. The second is, that the facts are pleaded generally in bar, and not in bar of the further maintenance of the action. From the nature of the plea, and the time when it was pleaded, it could not be a bar, except to the further maintenance of the action as to the moiety in question. It could not possibly have any respect to the period between the date of the writ and the time when it was pleaded. Why then should the plea be adjudged bad, even on a special demurrer, because it does not state in express terms that limitation which the law imposes ? The plea distinctly states those facts which demonstrate that it is relied on in bar of the further maintenance of the action as to the moiety. The act abolishing special pleading in this State and substituting brief statements in place of special pleas, was passed on the 30th of March, 1831. The present action was commenced some years prior to that time and special pleas in bar filed ; but the plea we are now examining was not filed till after the act was passed, namely, at September term, 1832: and though this Court has permitted special pleas in bar to be filed in cases commenced before the act was passed, where counsel preferred it, still the right of a defendant, in such actions, to avail himself of the benefit of the act, if he be inclined so to do, has not been denied. We are not aware that we have since [222]*222the above statute was passed decided any cause on demurrer, upon mere informality in pleading. In the case of Potter v. Titcomb, 7 Greenl. 301, a special demurrer was given to the surrejoinder; but the Court did not examine its merits, but decided the cause in favour of the defendant on the ground of a substantial defect in the replication. If the facts stated in the plea before us, are such as to bar the plaintiffs from the further maintenance of the action as to the moiety of the mill lot, we ought to give effect to them and consider the plea in the nature of a brief statement, filed, as it was, after the act of abolition was passed, rather than defeat its object by deciding against the plea on the merest point of technical learning. The statute was made to do away such niceties, and enable parties to arrive at the merits of a cause without the observance of them. A good plea in bar does not differ from a brief statement; except it is not, or need not be so particular. The law requires no particular form. A plea in bar, good in substance, is no better than a good brief statement. It would be doing violence to the meaning and spirit of the act to sustain the above objection to the plea. We therefore are of opinion that this second cause of demurrer is not well assigned.
The third and fourth causes assigned, may be considered together. The plea ought not to deny the alleged disseizin of the demandants nor the defendant’s seizin at the time the action was commenced. The plea, from its nature, has no connection with those facts; or, at least, it does not rely upon them; both may be admitted to be true, in perfect consistency with the plea. But it is stated in the last clause of the third cause assigned, and also in the fourth cause assigned, that the defendant does not deny his possession at the time of plea pleaded, or that Blalce entered and expelled the defendant. The facts thus stated seem to contradict the record ; for the plea avers the recovery of judgment by Blalce, and his sueing out his writ of possession, and then states, “ by force of which the “ said Blalce became seised of said premises, as by the record “ thereof now remaining in said Court appears.” If Blalce did become seised by force of his writ of possession, why did he not in some proper form traverse that fact, instead of admit[223]*223ting it by his demurrer ? But it is admitted that he became seised by force of the writ of possession, and, of course, before the return day of the writ; consequently, the defendant could not also be seised at the same time. Even if both had afterwards continued in possession, that would not alter the case, for where the possession is mixed, the law considers the seizin to be in him who has the right; and in the present case the judgment which Blake recovered established the right in him. But there was no mixed possession ; Blake became seised, and that terminated the seizin of the defendant. We might go one step further and say, that if no writ of possession had ever issued, still, the judgment gave Blake a right of entry, and to become seised, if he could peaceably; — and the plea states that he did become seised of the premises, which fact is not denied. The fifth cause assigned is virtually disposed of already by the opinion, as given above, that a plea in lar, stating the demandant’s entry and seizin since the commencement of the action, is good, though not since the last continuance. We are all of opinion that the plea in bar is good and sufficient; and that there must be judgment on the verdict. But the defendant is to tax no costs prior to May term, 1833, at which term the amended plea was filed.