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U.S. Supreme Court

Elliott v. Lessee of Piersol, 26 U.S. 1 Pet. 328 328 (1828)

Pet. 328

Elliott v. Lessee of Piersol

26 U.S. (1 Pet.) 328


A letter from a deceased member of a family stating the pedigree of the family and sworn by the wife to have been written by her husband, who also swore in her deposition that the facts stated in the letter had been frequently mentioned by her husband in his lifetime is legal evidence, as is also the deposition of the witness in a question of pedigree.

The rule of evidence that in questions of pedigree, the declarations of aged and deceased members of the family may be proved and given in evidence has not been controverted.

In a case where a controversy had arisen or was expected to arise between parties concerning the validity of a deed against which one of the parties claimed but no controversy was then expected to arise about the heirship, a letter written stating the pedigree of the claimants was not considered as excluded by the rule of law which declares that declarations relating to pedigree, made post litem motam cannot be given in evidence.

Where the defendant had reserved a right to move the court to exclude any part of the plaintiff's evidence which be might choose to designate as incompetent, and it did not appear from the bill of exceptions that he designated any particular piece or part of the evidence as objectionable and moved the court to exclude the whole or to instruct the jury that it was insufficient to prove title in the lessors of the plaintiff, this could not be done on the ground of incompetency unless the whole was incompetent. The court is not bound to do more than respond to the motion in the terms in which it is made. Courts of justice are not obliged to modify the propositions submitted by counsel so as to make them fit the case. If they do not fit, that is enough to authorize their rejection.

The privy examination and acknowledgment of a deed by a feme covert so as to pass her estate cannot be legally proved by parol testimony.

In Virginia and Kentucky, the modes of conveyance by fine and common recovery have never been in common use, and in these states the capacity of a feme covert to convey her estate by deed is the creature of the statute law, and to make her deed effectual, the forms and solemnities prescribed by the statutes must be pursued.

By the Virginia statute of 1748, "when any deed has been acknowledged by a feme covert, and no record made of her privy examination, such deed is not binding upon the feme and her heirs." This law was adopted by Kentucky at her separation from Virginia, and is understood never to have been repealed.

The provisions of the laws of Kentucky relative to the privy examination of a feme covert in order to make a conveyance of her estate valid.

It is the construction of the act of 1810, that the clerks of the county chanrobles.com-red

Page 26 U. S. 329

court of Kentucky have authority to take acknowledgments and privy examinations of femes coverts in all cases of deeds made by them and their husbands.

What the law requires to be done and appear of record can only be done and made to appear by the record itself or an exemplification of it. It is perfectly immaterial whether there be an acknowledgment or privy examination in form or not if there be no record made of the privy examination, for by the express provisions of the law, it is not the fact of privy examination only, but the recording of the fact which makes the deed effectual to pass the estate of a feme covert.

A deed from Baron and feme of lands in the State of Kentucky, executed to a third person, by which the land of the feme was intended to be conveyed for the purpose of a reconveyance to the husband, and thus to vest in him the estate of the wife, was endorsed by the clerk of Woodford County Court, "acknowledged by James Elliott, and Sarah G. Elliott, September 11, 1816," and was certified as follows:

"Attest, J. McKinney, Jr. Clerk, Woodford County, ss., September 11. 1813. This deed from James Elliott and Sarah G. Elliott his wife to Benjamin Elliott, was this day produced before me and acknowledged by said James and Sarah to be their act and deed, and the same is duly recorded. John McKenney, Jr., C.C.C."

Held that subsequent proceedings of the Court of Woodford County, by which the defects of the certificate of the clerk to state the privy examination of the feme (which, by the laws of Kentucky, is necessary to make a conveyance of the estate of a feme covert legal) were intended to be cured upon evidence that the privy examination was made by the clerk, will not supply the defect or give validity to the deed.

If the court of a state had jurisdiction of a matter, its decision would be conclusive, but this Court cannot yield assent to the proposition that the jurisdiction of a state court cannot be questioned where its proceedings were brought collaterally before the circuit court of the United States.

Where a court has jurisdiction, it has a right to decide any question which occurs in the cause, and whether its decision be correct or otherwise, its judgments, until reversed, are regarded as binding in every other court. But if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a remedy sought in opposition to them, even prior to a reversal. They constitute no justification, and all persons concerned in executing such judgments or sentences are considered in law as trespassers.

The jurisdiction of any court exercising authority over a subject may be inquired into in every other court when the proceedings of the former are relied on and brought before the latter by a party claiming the benefit of such proceedings.

The jurisdiction and authority of the courts of Kentucky, are derived wholly from the statute law of the state.

The Clerk of Woodford County Court has no authority to alter the record of the acknowledgment of a deed at any time after the record is made.

William Peirsol, and Lydia Peirsol, his wife, Ann North, Jane North, Sophia North, Elizabeth F. P. North, and William chanrobles.com-red

Page 26 U. S. 330

North, citizens of Pennsylvania, heirs of Sarah G. Elliott, commenced their action of ejectment against James Elliott the younger and others, the plaintiffs in error, in the Circuit Court for the District of Kentucky to recover the possession of 1,200 acres of land, part of 2,000 acres patented to Griffin Peart.

The plaintiffs proved that upon the division of the whole body among the heirs of Griffin Peart, the 1,200 acres in contest was allotted to Sarah G. Peart, one of the heirs, and that she was seized thereof in severalty. Sarah G. Elliott, formerly Peart, she having intermarried with James Elliott, died about 1822, without issue; Francis Peart, and Le Roy Peart, brothers of Sarah Elliott, died shortly before her, also without issue. The boundaries of the 1,200 acres and the possession by the defendants were not controverted.

The plaintiffs below claimed the premises as the heirs of Sarah G. Elliott, formerly Sarah G. Peart, and they sought to establish their heirship by the deposition of Mrs. Braugh, widow of Robert Braugh, who swears that the letter annexed to her deposition, addressed to William Peirsol, Philadelphia, is in the handwriting of her deceased husband. She also states that she frequently heard him speak of his family connections, and has always understood from him, that the late Mrs. Mary North, formerly Mary Peart, and the late Mrs. S. G. Elliott were cousins, both on the side of the father and mother; and that the statements in the letter correspond with the other statements she heard him make upon the subject of the pedigree of the two ladies, which letter proves the present plaintiffs to be the only heirs of Mrs. Sarah G. Elliott at the time of her death. Other depositions were read to the same effect.

On 12 June, 1813, James Elliott and Sarah G. Elliott executed a deed by which the premises in question were expressed to be conveyed to Benjamin Elliott, under whom the plaintiffs in error claimed to hold the same.

The defendants below moved the circuit court to instruct the jury that the evidence adduced by the plaintiffs to establish their heirship to Sarah G. Elliott was insufficient and that the same ought to be excluded. The court refused so to do, but on the contrary instructed the jury that the said evidence, if believed by the jury, was prima facie testimony that the lessors of the plaintiffs were the legal heirs of the said Sarah Peart, alias Sarah G. Elliott.

In relation to the deed of 12 June, 1813, to Benjamin Elliott, it was contended below that Sarah G. Elliott never did execute the same in the manner described and required by law, and that the fee simple estate of Mrs. Elliott, did not pass thereby. The provisions of the law relative to the privy examination chanrobles.com-red

Page 26 U. S. 331

of a feme covert by the officer, the clerk of the court, or in open court, and to the recording thereof were alleged not to have been complied with, and consequently the estate of Mrs. Elliott did not pass by the conveyance to Benjamin Elliott. It was also claimed on the part of the plaintiffs in error that if a privy examination and acknowledgment were made, it was not recorded, and unless recorded, no title passes to divest the title of the feme covert. The circuit court decided this point in favor of the defendants in error, and the case was brought up upon a bill of exceptions. chanrobles.com-red

Page 26 U. S. 333


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