Bryan's Lessee v. Harvey

Tuck, J., delivered tire opinion of this court J At the trial of this cause, the defendant—the present appellee—offered in evidence a deed from Riddle and others to himself, prior in date to that under which the plaintiff claimed the land in dispute, but not recorded within six months, and, to bring his defence within the Act of 1831, ch. 304, he offered to show that when Bryan purchased his part of “Rlysiansylvania,,y he knew that Harvey had purchased “Elk Garden,” but there is no evidence that he had any knowledge of a conflict between the lines of the two tracts; and he also offered proof that he had sold portions of “Elk Garden, ” and that his grantees had taken immediate possession of the lands covered by their respective deeds—all these deeds and acts of possession being prior to the deed from Riddle and others to Bryan. The plaintiff objected to these items of proof, and also to the deed from Riddle to Harvey, which objection tire court overruled. This constitutes the first exception. As a general rule a deed to be evidence must be recorded within the time limited by law.

But the Act of 1S31, ch. 304, makes provision for giving effect to deeds not so recorded, as against purchasers with notice, or where possession has been taken under the first conveyance. In these cases the admissibility of the deed must depend on the sufficiency of the evidence relied on to gratify the requirements of the Act of Assembly. The Act does not specify what shall be proof of no ¹²⁸ tice or possession; these are facts to be established as preliminary to let in the deed, and may depend on a variety of circumstances leading to the conclusion sought to be deduced. Whether; from all the evidence so offered, a jury would be warranted in finding the notice or possession, is quite a different question, which parties may have decided by a proper application to the court.

But, in the first instance, the proofs must be passed upon, as offered, and where they tend to prove the collateral issue raised on the admissibility of the deed, it is error to reject any portion, though the whole may be afterwards held to be legally insufficient for the purpose. The deeds to Abernathy, and Arnold and Potter, expressly convey parts of “Elk Garden,” by reference to the deed to Harvey, for the whole tract, by name and number of acres, accord-* ing to the patent, and by the date and record of his deed. These deeds having been executed and recorded would have been notice to Bryan of the title of the grantees, if the suit had been against them, or either of them, and we think them equally admissible in connection' with White’s testimony to prove notice to Bryan o.f Harvey’s deed. Suppose it had been proved that the plaintiff was informed by a witness, testifying to the fact, that Harvey had a deed for this land, can it be doubted that the Act of Assembly would have been complied with?

Here the deeds to Abernathy and Arnold make special reference to the deed to Harvey, as having conveyed the whole of “Elk Garden” to him. The circumstance, that the conflict between the tracts was unknown to the parties, can make no difference in the application of the principle. “Elk Garden,” and also the land conveyed to the plaintiff, belonged to the common grantors of these parlies, at the date of the first deed, and it was the plaintiff’s own fault to have taken a subsequent deed for land covered, in part, by the “Elk Garden” patent, without having had the lines of “Elk Garden” laid down so as to have known how much o£“Elysiansylvania” was