CORLIES V. VAN NOTE admr. &c.

would it have been lawful to cross-examine him, or call witnesses to discredit him in his own Court. Every consideration shews he acted herein by mistake; and the judgment must be reversed.

RYERSON, J. This judgment must be reversed on the second objection; the admission of secondary evidence to prove the execution of the instrument, without first producing or properly accounting for the instrumental witness. The Justice could not legally act on his own personal knowledge of a fact, but only on such facts as were proved to him, by competent evidence.

“A deed is a This is not ap

But I do not think the other objection well taken. The instrument in question, cannot be regarded as a sealed instrument, possessing the solemnity of a deed. The Court on inspection are to judge of the sufficiency of a deed, to bind the party. For that purpose is the profert, the bringing into Court, that they may inspect it. Coke Litt. 225; 2, Blk. Com. 297-8; 1 Chit. Pl, 349. The sound principle I take to be, that there shall be enough on the face of the instrument, to show the Court, if all be true, that the party meant to be held and bound, as by a deed. writing sealed and delivered," 2, Bl. Com. 295. parent to the Court on the production of this instrument. It does not purport to have been sealed. It lacks that regular and orderly part of a deed, a proper conclusion. 2, Bl. Com. 504; and in point of fact is not sealed. It is true, our statute, R. Laws, 305, gives in some cases, the force of a seal, to "a scroll, ink, or other device, affixed by way of a seal." But that it was so affixed, ought to appear, at least prima facia, by mere inspection, and be determinable by the Court. This doctrine was once carried so far,that the Court determined against the validity of a deed, from erasure, or interlineation, not noted. 2, Bl. Com. 308-9; Coke Lit. 225, b. Shep. Touch. 69. And although this rule has has been so far relaxed, as to leave it to the jury, to determine, whether the alteration was made before, or after delivery; yet this relaxation ought not to extend to a vital part of the deed-that which is of its very essence. The Court by bare inspection, ought to be able to settle the force and operation of an instrument. This they can never do, unless they can tell by inspection merely, whether

WARE and WIFE late Fox v. HALL jr.

it is to operate, if operation it hath any, as a deed, or as a parol contract.

Judgment reversed.

SAMUEL WARE and WIFE late FOX v. WILLIAM HALL Jr.

In ERROR to Salem Common Pleas.

J. F. Leased to W. H. a farm for three years, and afterwards devised the same to his son J. F. for and during his natural life, from and after the expiration of the present lease thereon. Held, that the rents accruing between the testator's death and the expiration of the lease, belong to the heirs of the testator.

This case was submitted at November term, upon the following statement.

This suit was commenced in the Salem Common Pleas, by the plaintiffs, to recover of the defendant, the proportionate part of certain rent claimed to be due to Ann Ware, as one of the heirs at law of Jacob Fox deceased, late of the county of Salem.

The defendant, in the Salem Pleas, demurred to the plaintiffs' declaration, and after argument, the Court sustained the demurrer, and gave judgment for the defendant. The plaintiffs brought a writ of error, and the case is now before the Supreme Court. In order that the several questions of law involved, may be speedily and properly settled, the following, state of the case is agreed upon by the parties and submitted for decision,

WARE and WIFE late Fox v. HALL jr.

to the Supreme Court, at November term 1857, upon writ of

error.

STATE OF THE CASE.

Jacob Fox late of the county of Salem, during his life time, leased to William Hall jr. the defendant, above named, a certain farm in the township of Lower Penns Neck, for three years, at an annual rent of three hundred and fifty dollars. This lease or contract, was parol; and under it, William Hall entered into possession, and it was mutually agreed that the terms of the contract should be reduced to writing in the form of a lease, and signed by the respective parties. It was accordingly reduced to writing in the form of a lease, and approved by the respective parties, and signed by Jacob Fox as lessor, but never was signed by William Hall jr. to whom, one part so signed, was delivered. William Hall jr. entered into possession on the 25th day of March A. D. 1831, and continued thereon, for three years. On the 21st. day of September 1831, Jacob Fox the lessor died. He left a will bearing date September 13th 1831, in which among other things, is the following devise:

Secondly "It is my will, that my son Jacob Fox shall have and enjoy the plantation in Lower Penns Neck, adjoining lands 'of the heirs of Thomas Sinnickson deceased, Samuel Dunn and others, and whereon William Hall jr. now lives, for and during his natural life, (from and after the expiration of the present lease on said plantation) he paying to my executors, one hundred and fifty dollars at the end of each year, for five successive years from the time he shall come into possession of said plantation."

Jacob Fox left four children, Ann Fox wife of Samuel Ware, Jeremiah Fox, Jacob Fox, Frederick Fox; and several grand children, viz: the children of Isaac Fox a son deceased, and the children of Margaret Mulford deceased, a daughter:

The amount claimed in this suit, is the one sixth part of the rent, which accrued from the death of Jacob Fox the testator, until the expiration of the lease, to wit; from the 21st. day of September 1831; to the 25th of March, 1834, with interest:

If the Court, should be of opinion from the foregoing facts, that the heirs at law of Jacob Fox deceased are entitled to the

WARE and WIFE late Fox v. HALL jr.

rent which accrued from his death, until the expiration of the lease, then judgment is to be entered in favor of the plaintiffs for the sum of one hundred and eighty dollars, and ninety-six cents, with Common Pleas costs. But if the Court should be of opinion that either the executors of Jacob Fox deceased, or Jacob Fox the devisee, or any other person is entitled to the rent, then judgment is to be entered for defendant with like costs.

Thos. S. Smith, attorney for Samuel Ware.

Rich'd P. Thompson, attorney of William Hall jr.

Eakin, and T. S. Smith for the plaintiffs, referred the Court to the following authorities.

Where A. dies leaving a will and there is a certain portion of his real or personal estate not disposed of in the will; the testator as to that portion of property, dies intestate, and the estate descends to his heirs in equal portions. 4 Kent: Com. 287; 1 Lutw. 798; Clark v. Smith, 1 Vesey 485;

Rents are chattel interest real? And are so annexed and consolidated with the inheritance, that they shall accompany it wherever it vests: Toller, 176; 2 Kent's Com. 427, 8.

And as the inheritance vests with the heirs, the rent of such inheritance must necessarily vest in such heir:

Ex gratia. If A seized in fee, makes a lease for life or years, reserving rent, such rent as accrues after his death, being incident to the reversion, shall go to his heirs, and not to his executors, although they are expressly named in the covenant: Toller, 176, citing 3 Bac. Abt. 62; Co. on Litt. 47; 2 Johnson Cases, 24; Com. on L. and T. (6 Law Lib.)

One reserving rent to him and his assigns, or to him, his executors and assigns (during the term,) these words shall be sufficient, to carry. the rent to the heir: Com. on L. and T. 278; Toller on Exs. 176, 7; 5 Com. Dig. 423; 2 Saunds. 367; Ray. 213; s Bac. Ab. (Rent.)

Rent is incident to the reversion, Com. on L. and T. 214; 2 Saund. 368; 1 Com. Dig.

R. P. Thompson, contra.

At the present term, the following opinion of the Court, was indorsed upon the state of the case, by

APPLEBY V. OBERT.

HORNBLOWER, C. J. I am at a loss to see upon what ground there is any room to doubt the plaintiff's right to recover. The inheritance was undisposed of by the will, and of course it descended to the heirs; and consequently the rent accruing after the testator's death, belongs to them. The question whether the action should have been debt on the indenture of lease; and of apportionment, seem to be waived by the case submitted.

Judgment for plaintiffs.

LEONARD APPLEBY v. JOHN S. OBERT.

In trespass, on rule to shew cause, why verdict be not set aside, and a new trial granted.

Proof of possession of the plaintiff, is unnecessary in an action of trespass quare clausum fregit, when in a suit before a justice of the peace, for the same trespass, the defendant pleaded title and gave bond, pursuant to the statute. Such plea admits plaintiff's possession.

In such a case, if the defendant plead the general issue, in this Court, it may be stricken out. The only issue to be tried, is whether the defendant had or had not, a legal title to the land trespassed upon.

'Twenty years' possession under a written agreement of sale and purchase of the premises, is not adverse, so as to give a title; but is a holding under the party agreeing to sell &c.

This case was submitted to the Court on the written briefs of counsel, the defendant's attorney, from ill health, being unable to attend Court.

This was an action of trespass "quare clausum" commenced before a justice of the peace and a plea of title filed by defendant, with bond pursuant to the statute.

De

The plaintiff then brought his suit in Supreme Court. fendant pleaded liberum tenementum. Plaintiff new assigned and defendant rejoined, whereupon issue was joined.