#### Doe on Demise of the Trustees of the University of North-Carolina v. Roe and John Hogg.

From New-Hanover.

When the lessors of the Plaintiff introduced a writing, signed by the Defendant, acknowledging that the title was in the lessors, and shewing also that the Defendant had been in possession more than seven year's under colour of title, — it was hold, that the paper was made evidence for the Defendant by its introduction, by the lessors, and that, as the acknowledgment was not made until after his possession had ripened into title, he was not affected by it: it would have been otherwise, if made before.

Ejectment. On the trial below it was admitted, that the lands in controversy had been granted by the State. Two deeds were read, one from John Cowan, and one from John Bradley, to Jonathan Jennings, for the pre~ *371alises ‘, ami seven years actual possession of Jennimrs, under iliem. was proved. The will of Jon a-than Jennings was then read, whereby the land described in the declaration was devised to his wife Ann, and her heirs. It was further proved, that after the death of Jonathan Jennings, his widow intermarried with Thomas Jennings, with whom she lived on the premises, until her death, in 1807, or 1808, and that Thomas Jennings lived there until he died, in 1809. Two witnesses, who had known Ann Jennings for thirty years, swore that they liad never heard of her Slaving any issue ; and one deposed, that he had always understood she was an English woman. John Hogg had been in possession of the lot from the death of Thomas J minings to the time of trial.

The Plaintiff then introduced as evidence, a writing signed by the Defendant, in substance, as follows, viz :

Tb the honorable the Trustees of the Oniversitij of J'.'orth-tlarsliiut.

Tlie representation and memorial of I)r. Nathaniel Hill and John iiogg, executors and devisees in trust of Thomas Jennings, deceased, late of Wilmington, in the State aforesaid, respectfully sheweth, That upwards of thirty years ago, Jonathan Jennings, the uncle of your me-morialist’s testator, settled in Wilmington as a tavern and boarding-housekeeper; that for many years he struggled on in low, and indeed indigent circumstances, when from perseverance and industry, his business improving and becoming profitable, he acquired, and died seised and possessed oij some property, chiefly gained by the attention and industry of his wife. The said Jonathan having no children, devised and bequeathed the whole of his estate, real and personal, to his wife.

That the widow of Jonathan Jennings afterwards intermarried with Thomas Jennings, your memorialists’ testator, who of course became possessed of said property, consisting, among- other things, ofacc." fain lot on Front Street, in Wilmington.

That the wife of Thomas died in or about the year , without making a will, and that Thomas Jennings died afterwards, in or about the year , having made his will, of which he appointed the me ■ xnorialists executors, and that among other property devised by said will to the memorialists, is the lot in Wilmington, in trust, lo and f</< the use and benefit of George Jennings and George Tipler, nephews of Thomas Jennings.

That some time after the desease of Thomas Jennings, your memo-rialists were applied to by, and on behalf ofj one Cocke, of Tennessee. v?r a debt due by Jonathan Jennings, to him. on bond. They, not be*372ing the legal representatives o ' Jonathan, were advised, by counsel, í«í constitute themselves such, in order to become parties to a suit at law at the instance of Cocke, rather than to be sued in Chancery. They accordingly' took out letters of administration, de bonis non, on the estate of Jonathan, and suit was brought against them by' Cocke, who obtained judgment: execution issued thereon, and was levied on the lot in Wilmington ; and it was sold, on or about the 13th of November, 1815, when it was bought in, by, and for, the use of your memo-rialists, for the sum of $1044 55, by them paid, to and for the use of George Jennings and George Tipler, under the devise in trust as aforesaid.

The memorialists, then averring and offering to prove the wish and intention of Thomas Jennings’ wife to convey her right to her husband, and that, it was omitted, only because of the ignorance of Thomas Jennings, and his wife, that it was necessary, prayed the Trustees to accept of a moderate compensation for the interest which* had escheated to them.

This paper bore date, 19th December, ISIS. Defendant moved that Plaintiff be nonsuited, not having shewn title in himself. The presiding Judge, on the evidence before stated, expressed an opinion, that the memorial of John Hogg, being introduced by the Plaintiff, was an admission, and contained evidence of title in the Defendant ; whereupon Plaintiff submitted to a nonsuit, and afterwards moved for a new trial; the rule was refused: judgment rendered ,* and Plaintiff appealed.

Gaston, for the appellants,

contended, that the memo* rial was not conclusive evidence of John Hogg’s title : therefore, the Court should not have stopped the case by nonsuit — But John Hogg was estopped after suit brought to deny title in the University, when the memorial expressly admitted it.

Hogg, for Defendant.

It is proved on the part of the Plaintiff, that the lands were in the seisin of Jonathan Jennings, and by him devised to his wife Ann, who died without any known heirs, whereby they escheated to the Plaintiffs. They also prove that John Hogg, the De*373fendant, had a continued possession of the premises from the death of one Thomas Jennings in 1809, to 1819, when the Plaintiffs’ process was served. The Plaintiffs?, to prove the escheat, produced on the trial a memorial, which is made part of the case; whereby it appears that the said Thos. Jennings devised the lands to John Hogg.

It is a rule of law, that the highest evidence must be offered: by which is meant, that the evidence introduced must not pve-suppose better evidence of the fact in the power or possession of the party offering. This rule is not founded in any public policy, but is intended merely for the benefit of the party against whom such evidence is offered : it is therefore an exception as general as the rule, that by the consent of such party, the secondary evidence may be produced. This may be given in express terms, or may be implied. If matter of record be set forth in any pleading, on demurrer of the opposite party, the Court will pass the same judgment as if the record, or a proper exeinplication thereof, had been properly produced, or as if the deed had been duly proven, and this though it may be that no record or deed did. ever exist.

Within this exception, is the case where one offers the admission of the opposite party; the whole admission must be taken together, and if by it any thing is alleged to the advantage of the party admitting, although it be on record or under seal, yet it shall be taken as proved prima fade at least, without the production of the record, or proof of execution ; and for this plain reason, that the party offering the admission, knows before hand whether there be such record or deed, and if not, ise may forego the admission, or he may possibly introduce the admission and falsify that part of it which alleges the deed or record.

The case before the Court, is a very strong one to illustrate the wisdom of this exception. The memorial alleges a devise by Thomas Jennings, who died in New* *374®alK,verV in 1809. An inspection of the records of th® County Court would have shewn whether he diedtes-tate, and if so, whether he did devise to the Defendant. It must have been, that the Plaintiffs, by-their counsel, inspected the will of Thomas Jennings, and knew that the Defendant was prepared to prove the devise, before they offered the memorial: otherwise they would, have rested the case' on the previous proof, that Aun Jennings had been long dead without issue, and was reputed an English-woman.

The exception is laid down with great precision in Moore’s Index, S67, and cites (5 Taunt. 245) Handle v> Blackburn. , ,

Hall, Judge.

I can see no objection to the opinion of the Court in this case. It appeared in evidence, that the Defendant had been in possession of the lot in dispute more than seven years. It also appeared from the Plaintiff’s own shewing, that the possession was under a colour of title, namely, the will of Thomas Jennings. I say from their own shewing: because, when the Plaintiff introduces the petition in evidence, he makes the whole of it evidence against him as well as for him. It is very true, that from the tenor of the petition, it appears that the Defendant did not believe or think that he had title to the lot of land, but it is to be observed that this petition bore date in the year 1819, at which time the Defendant had been in possession of the lot since the death of Thomas Jennings, (a longer period of time than seven years,) under the will of Thomas Jennings — and that he had thereby acquired title to it.

I think an ignorance of his title ought not to prejudice him. Had he presented this petition to the Trustees before his possession had ripened into title, and when the title was really in the Trustees, that would have been aa acknowledgment of their title; and that he held under (them j in chat situation no length of time would, hay© *375acknowledgment given him title; but as there was no of this sort before his title became complete, one made after it will not affect the case.

I therefore think the nonsuit was properly entered.

Tayxou, Chief-Justice, and Henderson, Judge, con curred, and a new trial was refused.