Opinion
June Term, 1853.
A copy, however authenticated, of a will proved and recorded in another State only, is not evidence of a devise therein contained of lands situate in this State.
(The case of Ward et al. v. Hearne, ante, 184, cited and approved.)
THIS was an action of ejectment, in which the plaintiff declared on the several demises of R. R. Kelly, Edmund Deberry, Allen Macfarland, and of a number of the heirs of Duncan McRae. On the trial before Dick, J., at STANLY, on the last Spring Circuit, the case states that the plaintiff offered no paper title; but it appeared that the defendant had been in possession of the land in controversy some twenty-six or seven years; that about ten years after he went into possession, (278) he told a witness that he had been put on the land by Duncan McRae and one Oliver; and that about ten years since, he said he had bought the land of McRae, and had paid a part of the purchase money, but could not pay the balance until McRae made him a title. Another witness proved that in 1833 he heard McRae ask the defendant for more money for the land, and the defendant replied, he would pay him when he got title. The plaintiff further showed that in 1829 McRae conveyed the premises in fee to Edmund Deberry, who conveyed his interest to John Taylor, who died before the date of the demises in the declaration mentioned. Then, to show title in Allen Macfarland, the plaintiff offered in evidence a copy of the will of John Taylor, duly certified as having been admitted to probate in November, 1848, by the judge of the Court of Ordinary of the District of Chesterfield, South Carolina, and having attached thereto the testimonial of the Governor of that State that the certificate of the said judge of the Court of Ordinary was entitled to all due faith and credit, etc. This evidence was objected to by the defendant, and rejected by his Honor. The plaintiff then introduced one William H. McRae as a witness, who proved that he was one of the heirs of Duncan McRae (but the witness made no demand himself, nor was any made in his behalf), and that he and Kelly went on the land together, before the bringing of this suit, when Kelly demanded the possession of the premises, and the defendant refused to deliver them up, saying, "The land was his own, and nobody else's." To show that Kelly had a right to make the demand, the plaintiff offered in evidence a written assignment, not under seal, from John Taylor to him and one Dumas, of the land in question, which assignment was endorsed on the deed from Deberry to Taylor. This evidence was also objected to and rejected by his Honor. And no other evidence was offered of Kelly's title to the land.
No counsel for lessors of plaintiff.
Strange and Dargan for defendant.
The plaintiff's counsel insisted that the demand made by Kelly was sufficient to terminate Ross's tenancy, and if it were not, his disclaimer of title in any one else and assertion of it in himself, rendered a demand unnecessary.
His Honor charged the jury that the demand proved by plaintiff was not sufficient to change the nature of Ross's possession, and that the lessors of the plaintiff could not recover in this action. There was a verdict and judgment for the defendant accordingly, and the (279) lessors of the plaintiff appealed.
The declaration contains four counts on four several demises. It is unnecessary to consider more than the third, on which the whole case at present turns. That count is on the demise of Allan Macfarland. It is to be remarked that the case states that the plaintiff produced no paper title — meaning thereby no complete chain. To sustain his claim under the third count, the plaintiff showed that in 1829 Duncan McRae conveyed the land in dispute to Edmund Deberry, and that he conveyed it to John Taylor; and it was alleged that the latter had, by his last will and testament, devised the land in dispute to the lessor, Macfarland. A paper-writing purporting to be the will of John Taylor, was offered in evidence and rejected by his Honor, and in this opinion he is sustained by the case of Ward et al. v. Hearne, ante, 184. In the latter case, the will of Dr. Thornton, of the District of Columbia, where he lived and died, and where the will was made, was brought forward in evidence. The authentication was substantially the same as in this case. It was certified by the proper officer of the district for taking the probate of wills, styling himself the register of wills, with the seal of his office attached, and also the certificate of the Secretary of State of the United States, under the great seal of the United States, that the certifying officer was the register of wills, in and for the District of Columbia. The paper was rejected because it never had been recorded in this State, according to the provisions of the act of 1844. The paper before us is subject to the same objection. John Taylor lived and died in South Carolina, where his will was made. We have no reason to doubt it was properly made to convey real estate in this State, and we have as little reason to doubt that it is properly proved according to the laws of that state, and properly certified; but the requisite formalities have not been gone through, to make it evidence in (280) our courts of justice under the laws of this State — it never has been recorded here. We therefore concur with his Honor in the rejection of this evidence.
The title to the land, as far as it is set forth in the case, having been traced down to Taylor, is there left; and there is no count on the demise of his heirs. This disposes of the first, second, and fourth counts. The plaintiff has himself shown that he has no title, and from the statement in the case, there is much ground to believe that the title is in Ross, the defendant. We perceive no error committed by the court below, of which the plaintiff has a right to complain.
PER CURIAM. Judgment affirmed.
Cited: Moody v. Johnson, 112 N.C. 802.