A very great number of objections were taken by the plaintiff's counsel to the admission of evidence upon the trial of this cause, which have been fully argued in the brief presented to the court on the part of the appellant. But it will be entirely unnecessary to consider and dispose of them in detail, under the view which has been taken of the case. The title upon which the defendant relied for his defence is identical with that, in many respects, upon which the real property of nearly the entire western portion of this State depends. Its early history is a matter of general notoriety and interest throughout the State, and, in fact, of the United States; and, for that reason, the transactions and public documents on which it has so long rested should be judicially noticed by the courts without further proof of their authentication. The rule mentioned by Greenleaf on this subject, is stated to be, that "courts will generally take notice of whatever ought to be generally known within the limits of their jurisdiction." (1 Greenleaf on Evidence, § 6, p. 10;Smith v. N.Y. Central R.R. Co., 43 Barb., 225, 231;Swinnerton v. Columbian Ins. Co., 37 N.Y., 174, 188-90.) And that is certainly broad enough to permit courts of justice, on the public history of the State, to know, that the western portion of its territory was, by its own act, ceded to the State of Massachusetts, and by the latter conveyed to certain parties, who afterward, under the proper authority of both States and of the nation, extinguished the title of the Indians to it. Under this rule, the formal objections taken to the documents offered and received for the purpose of establishing those facts became entirely unimportant as well as immaterial.
The same legal consequence follows from the form which was given to the pleadings in the cause. For, by the complaint, it was alleged that Robert Morris, the grantee of Nathaniel Gorham and Oliver Phelps, to whom the State of Massachusetts conveyed the property, owned it in fee, on the 20th day of February, 1795. The answer in substance admits, that Morris did own the property in fee, without conceding that he was such owner at the precise time mentioned in the complaint. Upon the subject of his title, the answer proceeds farther than the complaint, and alleges that he derived his title from Gorham and Phelps. As to the objections taken to the form, as well as those urged against the validity and substance of the preceding title to the land, the time when Morris became the owner was not material. It was sufficient to dispose of them, that he did acquire the fee of the land sometime after the year 1790, for he could only have done that legally by the cession of the State of New York and the conveyance of the State of Massachusetts, and the extinguishment of the Indian title being maintained. For the purpose of disposing of the case, therefore, it may be properly assumed that Robert Morris did become the owner of the fee of the land in controversy.
A similar answer is furnished by the state of the pleadings, to all the other objections made to the defendant's evidence concerning the legal title to the land in controversy. For they show, at least, a formal transmission of the title to the persons under whom the defendant occupied the land. Upon this subject, it is averred in the complaint, that Morris and wife, by an instrument duly signed and sealed by them, conveyed the premises to Charles Williamson, who lived and died a subject of the king of Great Britain; and that the defendant entered into and claimed title to them by or through the authority of Williamson or his grantees. These averments are more fully elaborated in the fourth subdivision of the complaint, by the statement that Williamson, in due form of law, conveyed the premises to Sir William Pulteney, who died afterward, leaving his only child, Henrietta Laura Pulteney,
his heir-at-law; and that she died, leaving Sir John Lowther Johnstone, her only heir-at-law, who, at the time of his death, left a last will and testament, "by which he devised his lands in America, to Ernest Augustus, called the duke of Cumberland, Charles Herbert Pierpont, David Cathcart, and Masterton Ure, in trust, for certain purposes," in his will mentioned. It is then alleged that such conveyances and releases were afterward made, under and in pursuance of that will; that Ernest Augustus, David Cathcart, Masterton Ure, and John Gordon, became and were seized of such lands, and held the title thereto in pursuance of the will, and subject to the trust provided for in it. And after that, by the decease of Ernest Augustus and David Cathcart, Masterton Ure and John Gordon were left the surviving trustees under the will, and as such, severally conveyed their interest in the premises, to William, earl of Craven, Alexander Oswald and Edmund Bucknall Estcourt, whom it is averred, thereupon and pursuant to the terms of such last will and testament of Sir John Lowther Johnstone, became seized of such lands and held the title thereto, subject to such trusts, and now hold the same. After alleging that all these persons were aliens and subjects of the king of Great Britain, it is stated that the defendant was in possession of the land in dispute, under the three persons last named.
The answer to the complaint is peculiar in its structure. It contains no general or specific denial whatever, but denies the allegations of the complaint, except as the same are afterward expressly admitted to be true, which it may be observed in passing, is a form of denial in no way provided for or sanctioned by the present system of pleading. The fifth subdivision of the answer then proceeds to show that the defendant was in possession of the land under the same persons from whom the complaint stated he had derived that possession. And their title is traced back to the State of Massachusetts, through the same persons, devise and conveyances more particularly mentioned and described in the complaint. The only difference in the pleadings being that
already referred to, the time when Charles Williamson derived his title from Robert Morris. Thus it will be seen, that no issue whatever was made concerning the transmission of the formal title to the land, for both the plaintiff and defendant agreed entirely in their statements upon that subject. Hence the documentary and formal evidence given to establish it by the defendant, beyond the deeds from Robert Morris and wife to Charles Williamson, and from him to Sir William Pulteney, was not only wholly needless, but it was actually impertinent and immaterial. And if the objections taken to that evidence were otherwise well founded, they were, under the issue, of no legal importance whatsoever, for the admission of the proof could by no possibility work any injury to the plaintiff. The agreement of the pleadings upon this part of the case was conclusive upon both the parties, and neither could be prejudiced by evidence tending to show the truth of the facts so agreed upon.
If this evidence had any possible pertinency to the issue in the case, it was to that part of it which may perhaps have been made upon the alienage of those persons through whom the premises were transmitted from Williamson to the defendant, for it did prove that they were aliens as the complaint had stated them to be. So far, it may have benefited the plaintiff's case, but that fails to render the objections any more tenable than they would have been, if that issue had not been made.
Free access — add to your briefcase to read the full text and ask questions with AI
A very great number of objections were taken by the plaintiff's counsel to the admission of evidence upon the trial of this cause, which have been fully argued in the brief presented to the court on the part of the appellant. But it will be entirely unnecessary to consider and dispose of them in detail, under the view which has been taken of the case. The title upon which the defendant relied for his defence is identical with that, in many respects, upon which the real property of nearly the entire western portion of this State depends. Its early history is a matter of general notoriety and interest throughout the State, and, in fact, of the United States; and, for that reason, the transactions and public documents on which it has so long rested should be judicially noticed by the courts without further proof of their authentication. The rule mentioned by Greenleaf on this subject, is stated to be, that "courts will generally take notice of whatever ought to be generally known within the limits of their jurisdiction." (1 Greenleaf on Evidence, § 6, p. 10;Smith v. N.Y. Central R.R. Co., 43 Barb., 225, 231;Swinnerton v. Columbian Ins. Co., 37 N.Y., 174, 188-90.) And that is certainly broad enough to permit courts of justice, on the public history of the State, to know, that the western portion of its territory was, by its own act, ceded to the State of Massachusetts, and by the latter conveyed to certain parties, who afterward, under the proper authority of both States and of the nation, extinguished the title of the Indians to it. Under this rule, the formal objections taken to the documents offered and received for the purpose of establishing those facts became entirely unimportant as well as immaterial.
The same legal consequence follows from the form which was given to the pleadings in the cause. For, by the complaint, it was alleged that Robert Morris, the grantee of Nathaniel Gorham and Oliver Phelps, to whom the State of Massachusetts conveyed the property, owned it in fee, on the 20th day of February, 1795. The answer in substance admits, that Morris did own the property in fee, without conceding that he was such owner at the precise time mentioned in the complaint. Upon the subject of his title, the answer proceeds farther than the complaint, and alleges that he derived his title from Gorham and Phelps. As to the objections taken to the form, as well as those urged against the validity and substance of the preceding title to the land, the time when Morris became the owner was not material. It was sufficient to dispose of them, that he did acquire the fee of the land sometime after the year 1790, for he could only have done that legally by the cession of the State of New York and the conveyance of the State of Massachusetts, and the extinguishment of the Indian title being maintained. For the purpose of disposing of the case, therefore, it may be properly assumed that Robert Morris did become the owner of the fee of the land in controversy.
A similar answer is furnished by the state of the pleadings, to all the other objections made to the defendant's evidence concerning the legal title to the land in controversy. For they show, at least, a formal transmission of the title to the persons under whom the defendant occupied the land. Upon this subject, it is averred in the complaint, that Morris and wife, by an instrument duly signed and sealed by them, conveyed the premises to Charles Williamson, who lived and died a subject of the king of Great Britain; and that the defendant entered into and claimed title to them by or through the authority of Williamson or his grantees. These averments are more fully elaborated in the fourth subdivision of the complaint, by the statement that Williamson, in due form of law, conveyed the premises to Sir William Pulteney, who died afterward, leaving his only child, Henrietta Laura Pulteney,
his heir-at-law; and that she died, leaving Sir John Lowther Johnstone, her only heir-at-law, who, at the time of his death, left a last will and testament, "by which he devised his lands in America, to Ernest Augustus, called the duke of Cumberland, Charles Herbert Pierpont, David Cathcart, and Masterton Ure, in trust, for certain purposes," in his will mentioned. It is then alleged that such conveyances and releases were afterward made, under and in pursuance of that will; that Ernest Augustus, David Cathcart, Masterton Ure, and John Gordon, became and were seized of such lands, and held the title thereto in pursuance of the will, and subject to the trust provided for in it. And after that, by the decease of Ernest Augustus and David Cathcart, Masterton Ure and John Gordon were left the surviving trustees under the will, and as such, severally conveyed their interest in the premises, to William, earl of Craven, Alexander Oswald and Edmund Bucknall Estcourt, whom it is averred, thereupon and pursuant to the terms of such last will and testament of Sir John Lowther Johnstone, became seized of such lands and held the title thereto, subject to such trusts, and now hold the same. After alleging that all these persons were aliens and subjects of the king of Great Britain, it is stated that the defendant was in possession of the land in dispute, under the three persons last named.
The answer to the complaint is peculiar in its structure. It contains no general or specific denial whatever, but denies the allegations of the complaint, except as the same are afterward expressly admitted to be true, which it may be observed in passing, is a form of denial in no way provided for or sanctioned by the present system of pleading. The fifth subdivision of the answer then proceeds to show that the defendant was in possession of the land under the same persons from whom the complaint stated he had derived that possession. And their title is traced back to the State of Massachusetts, through the same persons, devise and conveyances more particularly mentioned and described in the complaint. The only difference in the pleadings being that
already referred to, the time when Charles Williamson derived his title from Robert Morris. Thus it will be seen, that no issue whatever was made concerning the transmission of the formal title to the land, for both the plaintiff and defendant agreed entirely in their statements upon that subject. Hence the documentary and formal evidence given to establish it by the defendant, beyond the deeds from Robert Morris and wife to Charles Williamson, and from him to Sir William Pulteney, was not only wholly needless, but it was actually impertinent and immaterial. And if the objections taken to that evidence were otherwise well founded, they were, under the issue, of no legal importance whatsoever, for the admission of the proof could by no possibility work any injury to the plaintiff. The agreement of the pleadings upon this part of the case was conclusive upon both the parties, and neither could be prejudiced by evidence tending to show the truth of the facts so agreed upon.
If this evidence had any possible pertinency to the issue in the case, it was to that part of it which may perhaps have been made upon the alienage of those persons through whom the premises were transmitted from Williamson to the defendant, for it did prove that they were aliens as the complaint had stated them to be. So far, it may have benefited the plaintiff's case, but that fails to render the objections any more tenable than they would have been, if that issue had not been made.
The plain theory of the plaintiff's case, as the complaint disclosed it, was, that Williamson received his conveyance from Robert Morris on the 20th of February, 1795, and that he was at that time an alien, and the persons afterward succeeding to the title were also aliens. For this reason it was claimed that the title had vested by escheat in the plaintiff. Upon this part of the case, the deed from Morris to Williamson was pertinent evidence. Formal proof of the execution of that deed was rendered necessary by the pleadings, in order to entitle the court to receive it as evidence, because both the parties in their pleadings agreed that a deed conveying
the property had been made and delivered by Morris to Williamson. The only disagreement which existed was that concerning the time when it was done. The deed itself appears by the case to have been produced by the defendant upon the trial; and from the copy inserted in it, this deed seems to have been dated on the 11th day of April, 1792, to have been sealed and delivered in the presence of four subscribing witnesses, and acknowledged before James Wilson, one of the judges of the Supreme Court of the United States, on the 20th of February, 1795. This officer was entitled to take the acknowledgment, and it must be presumed that he did it within the limits of his jurisdiction, even though that is not stated to have been the case in the certificate which he made, for the legal presumption is in favor of the validity of the acts of public officers, where nothing appears warranting a different conclusion. This certificate of acknowledgment was sufficient proof of the execution of the deed to render it admissible as evidence upon the trial, particularly after so great a lapse of time, from which it might well be presumed, that the subscribing witnesses had all departed this life before the time when the trial was had.
No other evidence was given than that which the deed itself furnished, for the purpose of showing the time of its delivery; and under the state of the proof, the law presumes it to have been delivered at the time of its date. Seymour v. Van Slyck
(8 Wend., 403, 414); Cowen Hill's notes, 3d Ed., part 1, 461, part 2, 588, and cases cited; and Duke of Cumberland v.Graves (3 Seld., 305, 308), where that view was very properly taken in the application of the law to this deed, for the subsequent acknowledgment did not change that presumption. (Ford v. Gregory, 10 B. Monroe, 175, 180.) Assuming, as this court should under the evidence, that this deed was made and delivered at the time when it bears date, and not at the date of the acknowledgment, which, as a matter of convenience, may very well have been made afterward, then even if Williamson was at that time an alien, as he was stated to be in the complaint, he was entitled
under the treaty between the United States and Great Britain to hold and convey the title to the land. This treaty was made on the 19th of November, 1794; and by its ninth article it was agreed that British subjects who then held lands in the territories of the United States, should continue to hold them according to the nature and tenure of their respective estates and titles therein, and that they might grant, sell or devise the same to whom they pleased, in like manner as if they were natives; and that neither they nor their heirs or assigns should, so far as respected such lands and the legal remainders incident thereto, be regarded as aliens. (U.S. Statutes at Large, vol. 8, 122, act 9.) This clearly empowered Williamson to hold and convey the title to the land, even though the allegations of the complaint concerning his alienage were true, for by the constitution of the United States, it became a part of the supreme law of the land, and as such obligatory upon the authorities of the different States. (1 R.S., Edmonds' ed., 23; Art. 6, § 2 of Const. of U.S.)
But evidence was given from the records of the Supreme Court of Pennsylvania, showing very satisfactorily that Williamson was naturalized in that court on the 9th day of January, 1792, a few months before the date of the deed from Morris and wife to him. This was certified by the clerk of the court, and authenticated by the chief justice in the form required by the act of congress, in order to render it entitled to full faith and credit in the courts of this State, and for that reason, it was not only admissible as evidence, but beyond that it completely justified the court in excluding the mere certificate of the clerk that no other paper than the oath was found by him on file in his office. This was due to the record as evidence, for full faith and credit would not otherwise have been given to it. This record showed that Charles Williamson had been admitted as a citizen of the United States, and from the identity of the name in the absence of all other proof upon the subject, it is to be presumed that he was the same person to whom the conveyance
from Morris was made. (Hatcher v. Rocheleau, 18 N.Y., 86.)
But it is of no special importance in this case whether Williamson was ever naturalized or not; for the treaty authorized him to hold and convey the land, if he was an alien British subject, and the laws of the State permitted him to do the same, if he had become a citizen of the United States. He could in either case convey the title to the land.
It appears by the date, as well as the certificate of acknowledgment, of the deed from Williamson to Sir William Pulteney, that it was executed on the 31st day of March, 1801, and by the certificate of its record, that it was recorded in the office of the secretary of the State of New York, on the 21st of October, 1801, less than twelve months after the day of its date. It was a valid conveyance therefore, even though made, as it appeared to have been, to an alien; for it was made within the time in which, under the act of April 2, 1798, lands could be conveyed to aliens, not being the subject or subjects of some sovereign State or power at war with the United States of America. In order to render a conveyance to an alien valid under that act, all that was necessary was that it should be made within three years after its passage, and be recorded in the office of the secretary of State within twelve months after the day of its date. (Edmonds' ed. of General Statutes, vol. 4, 294.) And a compliance with both of those requirements was shown for the purpose of sustaining this conveyance. That statute provided that conveyances, made and recorded under its provisions, should be deemed valid to vest the estate thereby granted in the alien grantees, and that it should be lawful for such alien or aliens to hold the same to his, her or their heirs and assigns forever, any plea of alienism to the contrary notwithstanding. And this statute, together with the act affecting its construction, which was enacted in 1819 (Gen'l Statutes of N.Y., vol. 4, 295), have been held by this court to legalize and sanction the title of the persons from whom the present claimants of the property in question derived their estate. (Duke of Cumberland
v. Graves, 3 Seld., 305.) Under that authority, the fact of their being aliens, and of the title being conveyed and devised through aliens, was not sufficient to entitle the plaintiff to divest it as an escheated estate.
The same conclusion would also result from the article in the treaty of 1794, already referred to, if Williamson was at that time an alien; for that provided that neither the alien owner, being a subject of the king of Great Britain, nor their heirs or assigns, should be regarded as aliens so far as such lands were concerned. Both the treaty and the statute allowed the property to be conveyed and devised from one alien to another, and to be inherited by descent by alien heirs, without in any manner impairing or affecting the title to it. This title, since the deed from Williamson has not passed into the hands of a citizen of this State or country, and while that shall continue to be its character, it will not be liable to escheat to the plaintiff by reason of the alienage of its owner. The disposition was right which the circuit made of this cause at the trial, and the judgment appealed from should therefore be affirmed, with costs.