out proof of the execution, if the jury shall find the possession of the land has been held under the deed; and that the jury may and ought to presume and find livery and seisin of the land, if they find the possession has gone and been held according to the deed. The court are also of opinion, that the bonds from John Lacon Israel to John Hurd, and from John Hurd to B. Tusker and others, are legal and admissible evidence in this cause, and proper to be read to the jury. The defendants excepted. the OCT. 1801 Carroll VS. Norwood An ancient deed is evidence with Ed-out proof of the execution, if the jury find posses has been held un 5. The defendants produced and shewed to court, a deed from the said John Lacon Israel to ward Norwood, father of the defendants, dated the sion of the land 28th of March 1760, for "all his right," &c. "of and der it, and they may and ought to in a tract of land called Goshen, Addition and Cannon's presume and find livery and seisin, Delight; also all his right," &c. "unto any tracts or &c. parcels of land devised to the said Israel by his father's last will and testament, or otherwise as heir at law, have become the property of him the said J. L, Israel." The defendants objected to the reading of the said deed (M) from John Lacon Israel to Benjamin Tasker, unless the execution of the same was proved. 8. Chase, Jun. for the plaintiff, to shew that the deed may operate as a feoffment, and that every deed will operate to effectuate the intent of the parties, cited Shep. T. 83, 84. 2 Wils. 22, 75, 79. Gilb. L. E. 103, 161. 13 Viner, 206. 1 Roll. Rep. 132. 1 Wood. 530. Mason, contra. Two things are required-If the deed is to operate as a feoffment, it must be proved, and if possession has gone along with the deed, then livery shall be presumed, though it be not proved; but if possession has not gone along with the deed, then the livery upon the feoffment must be proved. Lofft's Gilb. 105. Martin, (Attorney General,) for the plaintiff. The endorsement made on the deed by the clerk of AnneArundel county, is evidence of the deed's being 50 OCT. 1801 Carroll VS. Norwood A deed although located on the plots by a wrong in evidence in cation, years old; and the acknowledgment before a justice of the provincial court, is conclusive evidence of its execution. CHASE, Ch. J. The Court are of opinion, that the deed from John Lacon Israel to Benjamin Tasker, being an ancient deed, is evidence to the jury, without proof of the execution, if the jury find the possession of the land has been held under the deed; and that the jury may and ought to presume and find livery and seisin of the land, if they find the possession has gone and been held according to the deed. The defendants excepted. 6 The surveyor of Baltimore having certified that date, may be read he had located for the plaintiff. upon the plots retu»nsupport of the lo- ed, a deed (E) from John Yate to Robert Chapman, dated the 5th of March 1715, beginning at the end of the 6th line of Yates his Forbearance, at D, and running from thence to 19. to 20. to 16, and to D. as described upon the said plots, the plaintiff produced and offered to read to the jury, the said deed from John Yate to Robert Chapman, whereby is granted, &c. all that piece or parcel of land lying on the N. side of Patapsco river, in the county aforesaid, beginning at a bounded gum, and running S 160 ps. to a bounded black oak, then E. 100 ps. then N. 160 ps. then W. 100 ps. to the first tree, containing 100 acres more or less, being part of a tract of land called Yates his Forbearance. [The time when the deed was recorded is not mentioned.] The plaintiff also produced and offered to read to the jury, a deed (P) from Robert Chapman to Daniel Dulany, dated the 23d of December 1749-which deeds were produced and offered to be read to the jury, in order to make title to the land as located upon the plots in manner aforesaid from D to 19, &c. To which the defendants objected, because the said deeds, so offered to be read in evidence by the plaintiff, are not located upon the said plots. The plaintiff offered in evidence to the jury a sworn copy of the instructions delivered to the surveyor to lay down the said deeds, viz. "Locate deed, Fate to Chapman. beginning at the end of the sixth line of the whole tract, thence running S. 160 ps. then E. 100 ps. then N. 160 ps. and thence to the beginning, correcting the variation by allowing one degree for every 20 years from the date of the certificate," &c. The plaintiff offered to prove by a witness, that he delivered to the surveyor the said deed from Fate to Chapman, with the instructions to lay the same down; as also the said deed from Chapman to Dulany. CHASE, Ch. J. The Court are of opinion, that the deeds from Fute to Chapman, and from Chapman to Dulany, are located on the plots, and they allow the same to be read in support of the location. The defendants excepted. Oct. 1801 Carroll Norwood Evidence as to where a tree stood, not admitted, uncated on the plots, 7 The plaintiff having located the deed (E) from John Yate to Robert Chapman, to begin at black D, as less the place is lodesignated upon the plots, and to run from thence to 19, to 20, to 16, and to D, the defendants examined a witness, who had been sworn on the survey, as to the fence designated on the plots from red h to red k, and who gave evidence as to the making of that fence by the defendants. The defendants then, to disprove the beginning of the said deed from Fate to Chapman, so set up by the plaintiff as aforesaid at black D, offered to prove by the said witness the place where, about 15 years ago, there stood an ancient gum tree, marked as a boundary, with the letters RC upon it, which place is in the said line of fence from red h to red k, and near the letter red k; that at the time he saw the said gum tree it was then dead, and had the appearance of having been marked ́a great many years before that time, and that the said gum tree is now down and gone. CHASE, Ch. J. The Court are of opinion, that inasmuch as the gum tree, or the place where it stood, is not located on the plots, the evidence offered is inadmissible, and cannot legally be received. The de fendants excepted. Ост. 1801 Carroll VS Norwood 8. The plaintiff produced and offered to read in evidence to the jury, the exemplification or copy of a deed (E) from John Yate to Robert Chapman, dated the Deeds of bar 5th of March 1715, under whom the plaintiff claims, ly, before the act by divers subsequent conveyances, the part of the said tract of land called Futes his Forbearance therein men gain and sale on of 1766, ch 14, con.d be acknowledged and recorded. No instance of tioned; and the plaintiff prayed the court to allow the a deed's being recorded for safe acknowledged and same exemplification or copy of the said deed to be custody: and a read in evidence to the jury, as proof of the original judge has no au thority to take the deed, although not recorded in time, as there are acknowledgment of such a deed. A copy of a deed words in the said deed, by which the same may ope not requiring en rolment, is not rate as a deed of release, or of feoffment. evidence; nor is a copy of a deed not recorded in time, proof of the origina deed Ridgely, for the defendants, contended, that the co A misrecital of py ought not to be read in evidence to the jury for a deed as to its rial 121. date is not mate any purpose. He cited 14 Viner, 446. 12 Viner, 84, Co. Litt. § 66, § $65. 2 Freem. 259. Style's Rep. 445. 3 Lev. 388. 2 Bac. Ab. 307, 308. 10 Co. 92. 3 T. R. 156. Esp. 774, 239. Bull. N. P. 256. 1 Salk. 269. Martin, (Attorney General,) for the plaintiff, contended, that an ancient deed, at common law, was good, although it had not been enrolled within the time limited by law. He cited the case of Hoddy vs. Harryman, (3 Harr. & M Hen. 381.) He also cited 1 Ventris, 296. 1 Salk. 280. Comb. 247. 2 Bac. Ab. 308. 3 Com. 280. 3 Lev. 388. He also cited 1 Ld. Ray. 746, to shew that a copy of the enrolment of a deed may be given in evidence. Where a copy may be admitted in evidence though not examined, 1 Mod. 4. That even recitals in a deed, under certain circumstances, are evidence of the deed, 6 Mod. 44, 45. That an engrossed copy, though not executed, may under certain circumstances, be given in evidence, Ambler, 247, 248. CHASE, Ch. J. There is no instance of a deed's being acknowledged and recorded for safe custody; but all deeds are acknowledged and recorded under acts of assembly. Deeds of bargain and sale only, previous to the act of 1766, ch. 14, could be acknow ledged before a judge or justices. A copy of a deed not requiring enrolment, is not evidence to be read to the jury. A misrecital of a deed as to its date, is not material, other matter recited being certain. The Ch. J. cited 3 Lev. 387. 2 Freem. 259. Viner, tit. Evidence. Statute 10 Ann, ch. 18. The court are therefore of opinion, that the copy of the deed from John Yate to Robert Chapman, cannot be received in evidence as proof of the original deed, the same not having been recorded within the time prescribed by law. And in the opinion of the court, the justices before whom the same deed was acknowledged, had no authority to take the acknowledgment of a deed to be recorded for safe keeping. The plaintiff excepted. are Ocr. 1801 Carroll VS. Norwood Where the gran tee in a defective. deed is in posses sion of the land under a bond of deed will operate lease, the fee to subsequent deed from the grantor 9. The plaintiff prayed the opinion of the court, and their direction to the jury, that if the jury of opinion from the evidence, that Benjamin Tasker, conveyance, such or Benjamin Tasker and Company, had possession, to convey, as a re under assignment (K) from John Hurd, of the land the grantee, and a and premises mentioned in the deed (M) from John Lacon Israel to Benjamin Tasker and Partners, the 15th June 1750, at the time the same was executed, then the said deed operates to convey, as a release, the fee to Benjamin Tasker, and the deed to Edward Norwood in 1760 cannot operate to convey the same land. of THE COURT gave to the jury the direction as prayed. to another person will not operate to convey the same land the which pass 10. The plaintiff gave in evidence to the jury patent, wills, deeds, &c. (A) to (M) inclusive, last deed (M) the court ruled might operate to the land, if livery of seisin had been made thereon; and that livery of seisin might and ought to be, by the jury, presumed, if possession had gone therewith; or, that if the said Tasker was in possession of the land mentioned therein at the time the same was executed, then the same might operate as a deed of release; and that the same being recorded under the de gain and sale so as to affect the title of such other pernotice, &c son, umess he had |