#### James J. Hoyatt, et al. v. David Phifer.

The recital of a former in a subsequent deed is evidence of the existence of the former deed, against a party to the latter and all claiming under him, but not against a stranger,

But when the admission contained in the recital is relied on by a stranger, for a fact operating in his favor, and there are also other facts disclosed which operate against lnm, the recital must be taken altogether.

Trespass q,uare cxausum pregit. Pica — general issue. On the trial before Norwood, Judge, at Fall term, 1833, of Mecklenburg Superior Court, the plaintiff proved that the defendant entered on the locus in quo. and committed the trespass. There being no actual possession, the plaintiffs, for the purpose of showing that they had a constructive possession, deduced their title to the land, in the following manner: — a grant from the State to William Polk, dated on the 27th of February, 1796 ; then a deed from Folk, dated on the 8th of February, 3 820, to Buponceau and Kentxing ; they then deduced title through sundry mesne conveyances, from Bu-ponceau and Kentxing to themselves. The defendant’s counsel moved the court, that the plaintiffs be nonsuit-ed because they had not produced in evidence, the deed from William Folk to Tench Cox, mentioned in the recital of his deed to Buponceau and Kenfoing. The deed from Polk to Buponceau and Keni&ing, of the 8th of February, 1820, recites the grants from the State to him of seventeen tracts of land, including the one in question, and also recites that ‘-by an instrument in' writing under his hand and seal, on or about the twenty- “ third day of January, Jlnno Domini, one thousand sev_ “ on hundred and ninety-seven, the said William Polk « did bargain, and sell, and convey unto Tench Cox “ Esq. his heirs and assigns, all the said seventeen tracts “ of land with their appurtenances, for and in consider- “ ation of the sum of nine cents, money of the United “ States, per acre,” and then conveys the same as follows: “ The said William Polk, for and in consideration of the “promts, and of the sum of one dollar, money of the *274“ United States, to him in hand paid, by fhe said Peter “ 8. Dnponccau and Mraham Kcnlzing assignees oí (l gaj(j ^ench Cox, who became such since the 20th day “of October, 1798, the receipt whereof is hereby ac- “ knowledged, hath granted, bargained and sold, re- “ leased and confirmed, &c. the said land to Peter S. Du-“ponceau and Mraham Kentaing in fee.” The court reserved the point of law, and the case was put to the jury, who returned a verdict for the plaintiff, subject to the opinion of the court upon the question reserved.— Upon argument the court decided, that it was necessary for the plaintiff in order to make out a complete title, to produce the said recited deed from William Folk to Tench Cox on the trial, as well as a deed from Cox to Dnponccau and Kcntaing, and thereupon, ordered the verdict to be set aside and a nonsuit to be entered Froni which'judg-meat, the plaintiff's appealed to this court.

Iredell and Devereux for the plaintiff.

No counsel appeared for the defendant.

Daniex, Judge

after stating the case delivered the opinion of the court:

It has been held that the recital of a deed in a subsequent deed, is evidence of the former, against a party to .the latter, and those who claim under him, and therefore it operates by way of admission ; but such a recital is not evidence against a stranger to the second deed. (1 Starkie, 369, Ford v. Lord Gray, Salk. 285, 4 Binney, 231.) But when the defendant relies on the admission contained in the recital, as evidence of a fact in his favor ; he must recollect that the admission must be taken altogether, and that if there are other facts disclose ed in the admission, which operate against the defendant, the plaintiffs will be entitled to the benefit of them. The whole of a recital is to be taken, and therefore if a patent be recited to be surrendered, and one relies upon the recital as proof of the existence of the patent, it will also be proof of a surrender. (3 Star. 311, 2 Ventris 171. Com. Digest Evidence, B 5.)

The recital states, that Polk conveyed the land by deed *275■of bargain and sale to Cox in the year 1797 ; by anoth-cr recital in the same deed, it appeal's that Buponeeau and Kentzing, became the assignees of Cox since the 20th of October, 1798. Assignees of what ? — the recital is speaking of the land; and we must take it to mean that they are the assignees of the land. The plaintiffs therefore, liaving made out their title to the land without the assistance of the tripartite deed and mortgage of the 12th of August, 1819, it now becomes unnecessary for us to determine, whether those deeds had been properly proven or not. We think the nonsuit should be set aside, and judgment rendered for the plaintiffs, on the verdict given by the jury.

Per Curiam — Judgment reversed.