U.S. Supreme Court
Shutte v. Thompson, 82 U.S. 15 Wall. 151 151 (1872)
Shutte v. Thompson
82 U.S. (15 Wall.) 151
1. Although the formalities prescribed by the 30th section of the Act of Congress of September 2, 1789, 1 Stat. at Large 88, authorizing the taking of depositions de bene esse in certain cases and stating the circumstances under which, and the mode in which they may be taken, must be strictly observed (the act itself being in derogation of the common law), yet a party may waive any provisions intended for his benefit. And in regard to this statute, he will be held to have waived them if he chanroblesvirtualawlibrary
refrained, at a time when they might be removed and until after possibility of such removal had ceased, from making objections that provisions intended for his benefit were not complied with, and in fact consent that the deposition should be taken and returned to court as it was.
2. Hence, if it appear that the witness examined was an aged man when his deposition was taken; that he had died before the trial; that one of the counsel of the opposite party had accepted notice of taking the deposition; that he had attended at the taking, and cross-examined the witness; that he made no objection either to the sufficiency of the oath, to the reasons for taking the deposition, or to the competency of the magistrate; and that, though the deposition bad been filed in the record of the cause more than a year before the trial, no exception had been taken to it in all that time, consent to the manner of taking the deposition must be presumed, and the admission of the deposition in evidence will be held good even though it may not have been taken in all the modes prescribed by the act of Congress to give security to the party against whom it is meant to be used.
3. In the case of a deed made by a grantor nonresident of Virginia, it is sufficient to allow a proper record of it under the Virginia statute of December 8, 1792, that there be a certificate of the clerk of a district court of the United States that the grantor personally appeared in court and acknowledged the instrument to be his free act and deed, this being accompanied by a certificate of even date by the judge of the same court that the clerk was then the officer that he professed to be.
4. In questions of boundary, reputation in the neighborhood at the present day is not admissible, unless it be traditionary, or derived from ancient sources or from those who had peculiar means of knowing what the reputation of the boundary was in an ancient day.
5. A title to land in West Virginia assumed to have been made under the 37th chapter of the Virginia Code relating to sales of land for nonpayment of taxes, which chapter, by the Constitution of West Virginia and otherwise, was part of its laws, and was to remain in force after the creation of the latter state until repealed by it, was no title at all after the 27th of February, 1866, the entire said 37th chapter having on that day been repealed by the Legislature of West Virginia.
6. Where no request is made for specific instructions and no error is perceived in the instructions actually given, the fact that the charge may not have covered the entire case is not ground for reversal.
Thompson brought ejectment, A.D. 1859, in the court below against Shutte for four conterminous tracts of land of 1,000 acres each, situate in West Virginia. The plaintiff's chanroblesvirtualawlibrary
title originated in a grant made in the year 1787, by the state of Virginia, to one Jabez Bacon, who subsequently died leaving eight children, his heirs, among them one named Nathaniel. The grant to Jabez Bacon embraced twenty-one tracts of land, including the land now in controversy, and, as the tracts adjoined each other, it was in substance a grant of one body containing 20,000 acres, to the right of Bacon in which the plaintiff asserted that he had succeeded in virtue of sundry mesne conveyances. But it was admitted by the plaintiff in the outset of the case that all the deeds through which he claimed could not be produced, it being alleged that most of the originals were lost, several never having been even recorded. Among the instruments which were produced was a certified copy from the county records of a deed from Nathaniel Bacon (one of the eight sons of Jabez Bacon, the original grantee of the Commonwealth) to Philo Murray, of 1815, a like copy of a deed from Philo Murray to Peter Smith, of 1815, with original deeds from Gerrit Smith and other heirs of Peter Smith to the Oberlin College of 1853, and from the Oberlin College to Uriah Thompson of 1854. Assuming the copies to have been as good evidence as the originals (a matter denied by the defendant), the apparent defect in the plaintiff's title here, of course, was that but 1/8 of Jabez Bacon's title had been vested in the plaintiff, and this was a matter which made a great question in the case. To get over this apparent defect, the plaintiff produced testimony of one Underwood and others to show that there had formerly existed in the possession of the treasurer of Oberlin College
"twenty patents from the State of Virginia of Jabez Bacon for the 20,000 acres of land, and of several intermediate deeds by which said land was ultimately conveyed by Gerrit Smith to Oberlin College; deeds by several men of the name of Bacon, and Philo Murray, and Smith."
These deeds, according to the testimony, had been sent by the treasurer of the college to an agent of it to effect a sale of part of the lands, which he did, and could not be found. This evidence was fortified by evidence that the heirs of chanroblesvirtualawlibrary
Jabez Bacon, in conversation about the land, never claimed any part of it; and that the Smiths from 1815 to 1823, and Oberlin College till its sale to the plaintiff in 1854, had paid the taxes; and that the parties paying taxes had unchallenged possession from 1823 till the date of this suit.
The defense was professedly a grant by the State of Virginia prior to that one to Jabez Bacon, and some other defenses, arising under the tax laws of Virginia; but one great effort on the trial was to prevent the plaintiff from showing a title in himself; without which, of course, he could not recover in ejectment.
In the course of the trial, bills of exception were taken by the defendant to the admission of certain evidence offered by the plaintiff, and to the exclusion of certain other evidence offered by himself: and also to the charge of the court.
The first exception was to the admission by the court of the deposition of Underwood, already named; taken professedly under the 30th section of the act of Congress of September 2d, 1789. [Footnote 1] This act authorizes the deposition of an ancient, or any infirm person (among others), to be taken de bene esse, when the testimony of such person is needed in any civil cause depending in any district in any court of the United States. The deposition may be taken before any justice or judge of any of the courts of the United States, or before any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, or judge of a county court or court of common pleas of any of the United States, not being of counsel or attorney to either of the parties, or interested in the event of the cause. The act further provides for notice to the adverse party, and enacts that every person deposhe parties, or interested in the event of the cause. The act further provides for notice to the adverse party, and enacts that every person deposhe parties, or interested in the event of the cause. The act further provides for notice to the adverse party, and enacts that every person deposing as aforesaid shall be carefully examined and cautioned and sworn or affirmed to testify the whole truth. It also further enacts that the depositions taken shall be retained by the magistrate until he deliver the same with his own hand into the court for which they chanroblesvirtualawlibrary
are taken, or shall, together with a certificate of the reasons of their being taken, and of the notice, if any, given to the adverse party, be by the magistrate sealed up and directed to the court, and remain under his seal until opened in court. In the present case, the deposition had not been taken in conformity with these requirements; that is to say, it did not appear that the witness was sworn to testify the whole truth. Nor did it appear that there was any certificate of the reasons why the deposition was taken. In addition to this, it was taken before a township justice, and not by any magistrate described in the act of Congress. And on these accounts alone the defendant objected to its admission. The court, however, admitted it. In doing so, it assigned as reasons
"that it appeared that the deposition was filed in the papers of the cause more than one year before the trial thereof, and that no exceptions had been taken or endorsed thereon; that the witness was an aged man when his deposition was taken, and had died before the trial, and that no exceptions, verbal or otherwise, were taken until the deposition was offered in evidence by the plaintiffs, and because it further appeared that one of the counsel of the defendant had accepted notice for taking the deposition, and had appeared at the taking thereof and cross-examined the witness, as was shown by the deposition,"
and, as respected the character of the magistrate,
"because the court, taking judicial cognizance of the acts of assembly of West Virginia (from which it appears that a justice is required by law to keep a record of all his proceedings), and taking further notice of his power to impanel a jury to try causes before him, and that appeals will lie from his decisions, upon which transcripts of his record are evidence in the court, was for these reasons of opinion that he is 'a judge of a court within the meaning of this act of Congress relative to the taking of depositions de bene esse.'"
In the further progress of the trial, the plaintiff offered in evidence the record of two deeds -- one from Nathaniel Bacon to Philo Murray and the other from this Murray to Peter Smith, the grantors in both cases being residents of Connecticut, chanroblesvirtualawlibrary
and both deeds being acknowledged in the exact same way. The defendant objected to the admission of the records, because it appeared from them that the deeds had not been acknowledged as deeds made by persons resident out of the State of Virginia as required by its statutes to be, and because therefore the record of them was null.
To understand the force of the objection, it is necessary to state that a statute of Virginia, passed December 8, 1792, enacts that a deed acknowledged by persons residing in any of the United States, before any court of law, and certified by the court, shall be admitted to record, a copy if which shall be evidence.
The acknowledgment was thus in the first of these two deeds; mutanda mutatis in the second.
"UNITED STATES OF AMERICA"
"DISTRICT OF CONNECTICUT, ss.:"
"At a district court of the United States held at New Haven, within and for said district, on the 4th Tuesday of February, A.D. 1817 -- present, the Honorable Pierpont Edwards, Judge -- personally appeared Nathaniel Bacon, signer and sealer of the within instrument, and acknowledged the same to be his free act and deed. In witness whereof I have hereunto set my hand and affixed the seal of said court at New Haven, the 26th day of February, A.D. 1817."
"[SEAL] H. W. EDWARDS, Clerk"
"I, Pierpont Edwards, judge of said court, hereby certify that said H. W. Edwards is clerk of said court. In witness whereof I have hereunto set my hand the day above written."
"PIERPONT EDWARDS, District Judge"
In the further progress of the trial, the defendant gave in evidence plats and certificates of thirty-three surveys made in 1785 for one Thomas Laidley, one survey for William Barclay, one for John Lyne, one for Richard Mason one for Joshua Jackson, and five patents to John Reed, the object being to show the location of the patents. Further, to identify them, chanroblesvirtualawlibrary
he offered to prove by a witness who had lived many years in the neighborhood of Thomas Laidley's survey No. 1 that a poplar corner represented on the plat was, and had been for many years, known and reported in the neighborhood as the poplar beginning corner of Laidley's survey. To this the plaintiffs objected, and the court refused to allow proof
"of the reputation of the neighborhood as to the said poplar corner at the present day unless such reputation was traditionary in its character, having passed down from those who were acquainted with the reputation of the tree from an early day to the present time"
"the information as to such reputation was derived from ancient sources, or from persons who had peculiar means of knowing what the reputation of the tree was at an early day."
But the court permitted the defendant to prove that the occupants of the Laidley survey No. 1, and of the Mason tract adjoining thereto (the poplar being a corner of each), claimed the poplar as the true corner of their tracts. To this ruling of the court the defendant excepted, and this made the fourth bill of exceptions.
In the further progress of the case the defendant offered in evidence a tax deed for the lands from the recorder of Doddridge County, one Taliaferro Knight, to John S. Hoffman, the purpose of the evidence being apparently to show title out of the plaintiff. The deed was dated on the 26th of March, 1866, and showed, by its recitals, that the land was returned delinquent for the nonpayment of taxes for the year 1857, and was sold in 1860, to Hoffman, in virtue of the 37th chapter of the Code of Virginia of which West Virginia was then a part. That chapter allowed two years for redemption, and after their expiration the purchaser was obliged to have a survey made and reported to the court of the proper county, which, if approved, the court might order to be recorded. The clerk was required then to make a deed to the purchaser, in conformity with the survey. No sale could be consummated, and no deed could be made prior to the return, confirmation, and record of such survey. In 1863, West Virginia became a separate state, and by virtue of a chanroblesvirtualawlibrary
clause in its constitution, the laws of Virginia continued in force until changed by the West Virginia legislature. On the 27th of February, 1866, that legislature passed an act by which the entire 37th chapter of the Virginia Code was repealed so far as it applied to tax sales of lands in West Virginia. [Footnote 2]
The court rejected the deed offered in evidence, and this made another of the exceptions.
The trial being closed, the court charged the jury; the defendant asking no specific instructions on any point, and no instructions being given as to the matter of how far the seven-eighths of the title of Jabez Bacon, for which no deeds, or copies of deeds, were produced, was to be presumed to be vested in the plaintiff. Verdict and judgment were given for the plaintiff, and the defendant brought the case here on error. The case being now in this Court, the defendant in the case below, and now plaintiff in error here, contended that the instructions given were insufficient; his point as expressed in his brief being that they "did not clearly and correctly expound the law of the case."