1814. SHALLER et al. v. BRAND. ❝ed, and the full contents made known to her, voluntarily "consenting thereto." Christian Brand and Feronica his wife, in the year 1783, conveyed to Adam Shaller in fee, and acknowledged the deed on the 20th April 1808. The first question upon the trial, which took place in December 1812, arose upon the proof of Valentine Dillebaugh's will. It was written in German, with the signatures of both Valentine and his wife, and subscribed by six witnesses; but did not appear to have been ever exhibited for probate. Notice had been served on the defendant below and his counsel in 1805, to produce certain title papers on the trial, and generally all papers relating to the lands; but this will was not particularly mentioned. Under the notice certain papers were received in January 1808, by Mr. Elder the counsel of Brand, and a memorandum was taken of them, but it did not include the will. Mr. Elder swore that he could not speak with certainty as to the will, but thought he got it then or some time after from Shaller's counsel. The counsel of the defendants swore, that they had not seen the will until the trial of the cause. The deed from Brand to Shaller in 1783, recited that the grantor's title was derived under this will; and the deed from Valentine and Christian Dillebaugh to Yost Brand, recited that the father had devised the premises to his three children equally, by a will duly proved and recorded in the county of Lancaster; but no such will was found there. The counsel for the defendants objected to the reading of this paper, but the Court admitted it; and in conclusion charged the jury, that proof of the execution could be dispensed with only on the ground, that it had accompanied the possession for more than thirty years, which was a fact for them to determine; and if it had not gone with the possession, they should pay no attention to it.... The next question arose upon the certificate of acknowledgment by Tost Brand and Catharine his wife, which the defendant's counsel contended was defective as to the wife, and therefore did not pass her estate or dower. But the judge charged to the contrary.. A third was in relation to the dower of Anne, the wife of Valentine Dillebaugh the younger. The fact of her having 1814. et al. survived her husband, and being still alive, appeared from a memorandum in the handwriting of Mr. Elder the plain- SHALLER tiff's attorney, which stated further that she had released her dower. The judge charged that the whole must be taken together, and if so, it shewed that the dower was not outstanding... The last question related to interest on the judgment, which was objected to by the defendants, because the judgment was conditional, and it had been the plaintiff's fault that the title was not sooner made perfect. But the judge charged the jury that interest was due upon the judgment, because it was absolute, and the condition applied merely to the execution; and because the defendants had received the profits of the lands, and had never made a tender of the money nor kept it unemployed. * On all these points bills of exceptions were tendered and sealed. The exceptions were argued in this Court by Fisher and Montgomery for the plaintiffs in error, and by Elder and Hopkins contra. TILGHMAN C. J. delivered his opinion upon the several exceptions as follows: 1. The defendant contends that the plaintiff was not entitled to interest on the bond subsequent to the entry of the judgment, because the judgment was conditional, or in the nature of an interlocutory judgment, and in its nature showed an intention to suspend the interest, until the title was completed. But the judgment was neither conditional nor interlocutory. It was absolute, and the condition or restraint was annexed only to the execution. Whenever the Etitle was perfected, the plaintiff had a right to take but execution, and the judgment being for the penalty of the bond, the plaintiff might cover under it his whole interest and costs. The jury did not give interest from the time of the judgment on the accumulated sum of principal and interest then edue according to our act of assembly, so that the defendant has no reason to complain of the least hardship, considering his case on equitable grounds. He was in possession of the land, the profits of which were equal to the interest of the money, and there was no evidence of his having kept the money lying dead for a single moment. v. BRAND. 1814. SHALLER et al. v. BRAND. 2. The next question is on the acknowledgment of a deed from Tost Brand and Catharine his wife to Christian Brand. The act of 24th February 1770, on which this point arises, directs that the judge who takes the acknowledgment, shall examine the wife separate and apart from her husband, and shall read or otherwise make known to her, the full contents of the deed; and if upon such separate examination she shall declare, that she did voluntarily and of her own free will and accord seal, and as her act and deed deliver the said deed, without coercion or compulsion of her husband, then the said deed shall be good and valid. It is insisted by the counsel for the defendant, that the form prescribed by the law should be strictly pursued; but such has never been the opinion of this Court. We have always declared, that it was sufficient if the law was substantially complied with; and on any other principle of construction, the peace of the country would be seriously affected, as the certificates of acknowledgments of deeds have generally been drawn by persons who were either ignorant of or disregarded the words of the act of assembly. The law must be complied with, but in construing it we shall always be inclined to suppose a fair conveyance if possible. Now it is here said, that the wife was examined apart from her husband, that the contents of the deed were made known to her, and she voluntarily consented. It is not straining the expressions "voluntarily consenting thereto" too far to say, that they imply, she declared that she executed the deed voluntarily, and that is sufficient; for if the execution was voluntary, it was without coercion or compulsion. I am clearly of opinion therefore that by this deed, the estate of the wife was legally conveyed. 3. The third question is on an outstanding title of dower in Anne Dillebaugh, supposed to be living in Canada. She is the widow of Valentine Dillebaugh jr., who conveyed his interest in this bond to Yost Brand, the 26th February 1778. There was no proof of this woman's being living or having any right of dower, except by a memorandum in the handwriting of Mr. Elder, in which same memorandum it is also mentioned, that she had released her right. The Court of Common Pleas were of opinion, that the contents of this paper must be taken altogether, and in this they were cer 1814. tainly right, so that although it appeared, that she once had a right of dower, yet upon the whole it appeared that she SHALLER had no right because she had released. 4. The last objection is to the opinion of the Court in admitting as evidence a paper purporting to be the will of Valentine Dillebaugh the elder, bearing date the 3d September 1777, by which he devised the land sold by Christian Brand to Adam Shaller, to his sons Valentine and Christian and his daughter Catharine equally in fee. There was no proof of this will, but it was admitted in evidence on the ground of its being a writing which had accompanied the possession of the land for upwards of thirty years. There is no doubt but that ancient deeds under which the possession has gone for thirty years, are evidence without proof of their execution, and it was decided in Jackson v. Blanshan, 3 Johns. 292, that in similar circumstances a will also was evidence. In that case the Court differed in opinion, as to the time necessary to bring a will within the rule of an ancient paper. Spencer thought that upwards of thirty years having elapsed from the date of the will, and possession having been held under it twenty-seven years, it might be read in evidence without proof. But Kent Chief Justice, and a majority of the Court were of opinion that it required thirty years possession; and I agree with them, because although the antiquity of the writing affords some evidence in its favour, yet the main ingredient is possession. Both however are necessary to raise that presumption which will justify the Court in departing from the usual rule, which requires the production of the subscribing witnesses or proof of their handwriting, after accounting for their absence. This will bore date thirty-five years before it was offered in evidence, the testator had been dead upwards of thirty-four years, articles of agreement for sale to the defendant had been executed by the plaintiff, who claimed under the will, upwards of thirty years, and these articles had been followed by an actual conveyance the year next succeeding, so that possession had probably been held under this will between thirty and thirty-four years. The proof was not positive, that the will had been among the title papers delivered to the defendant, nor was it ascertained with certainty at what time the et al. υ. BRAND. 1814. SHALLER et al. V. BRAND. title papers were put into the hands of the defendant. The Court thought, that sufficient evidence had been given to authorize them to permit the will to be read to the jury; and they permitted it under this restriction, that unless the jury should be of opinion that possession had gone according to the will for upwards of thirty years, they should pay no regard to it. The Court had a right to judge, upon the previous matter themselves; but I do not see that they did wrong in permitting the jury to judge of it, a reasonable foundation having been first laid. And it appears that such foundation was laid, both from the strong circumstance of possession held by the defendant himself, and from recitals in ancient deeds deducing title under this will. The testator left three children, two sons Valentine and Christian, and one daughter Catharine the wife of Yost Brand. The two sons conveyed their interest to Yost Brand, by deed dated 6th February 1798, in which it is recited, that their father devised the premises to his three children equally by a will duly proved and recorded in the county of Lancaster. But no such will has been found on record, so that there is a mistake in that part of the recital. The deed from the plaintiff to the defendant also recites the title as derived from the same will. These are very strong circumstances. When all persons interested in the estate, declared that the will was made, particularly when the eldest son of the testator says so, who would have been entitled to one half of the land if his father had died intestate, there was surely a good foundation for suffering the paper to go to the jury in the man ner that it went. Upon the whole I am of opinion that there is no error in this record, and therefore the judgment should be affirmed. * YEATES J. I fully assent to the correctness of the deci sions on all the points disputed in this cause, except a single one which I shall consider in the last instance. It has been contended, that the deed from Yost, Brand and Catharine his wife to Christian Brand, was not effectual to convey the interest of the wife in these lands, by reason of a radical defect in the acknowledgment. If the will of her father Valentine Dillebaugh was established, she was entitled to one undivided third part of the lands afterwards IV 27 |