Levy's Lessee v. M'Cartee. 6 P. Here, the disability to inherit and make title is plainly stated to exist; not that there is a doubt upon the subject; and the disability is stated to arise from the fact, that the ancestor by whom they are to derive their descent is an alien; not that the ancestor from whom they derive their title to the estate is an alien; and a [* 121 ] remedy is therefore provided to meet that which was deemed the only inconvenience, a descent through a me diate alien ancestor. * Upon the clear result, then, of the English authorities, we should be of opinion, even if there were no further lights on the subject, that the alienage of the mediate ancestors in the present case, would be a bar to the recovery of the plaintiff. But the same doctrine will be found fully recognized by Mr. Chancellor Kent, in his learned commentaries, with the additional declaration, that the statute of William III. had never been adopted in New York; though he very properly admits that the enlarged policy of the present day would naturally incline us to a benignant interpretation of the law of descents, in favor of natural-born citizens, who were obliged to deduce a title to land from a pure and legitimate source, through an alien ancestor. 2 Kent's Comm. 47, 48, 49. See also Jackson v. Lunn, 3 Johns. Cas. 109, 121. The case of Jackson v. Wood, 7 Johns. 290, 297, has not the slightest bearing on the subject. It decided no more than that an Indian was incapable of passing a title to lands in New York, without the consent of the legislature; or in any other manner than is provided for by the laws of the State. The case of Jackson v. Jackson, 7 Johns. 214, turned upon the known distinction, that an alien who cannot inherit, shall not prevent the descent to a citizen who can make title as heir, not through the alien, but aside from him; as in the common case in England, of a younger brother inheriting from his father, though he has an elder brother living who is an alien. But there is a very recent decision in the State of New York, not yet in print, which is direct to the point now before us. It is the case of Jackson v. Green, decided by the supreme court of that State in 1831. 7 Wend. 333. We have been favored with a manuscript copy of the opinion delivered by the court on that occasion. The question in that case was, whether one naturalized citizen could take by descent from another naturalized citizen, who was his cousin; the pedigree being to be made through alien ancestors. It was held that he could not. The court fully recognized the distinction already adverted to between mediate and immediate descents; holding that an alien ancestor, through whom the pedigree must be traced, intercepted the descent, and produced a fatal bar to the recovery. Sicard's Lessee v. Davis. 6 P. A certificate will be sent to the circuit court, that the [* 122 ] lessors of the plaintiff, Bella Cohen and Rhina Mordecai, were not capable of taking by descent the premises described in the special verdict in the case, whereof the said Philip Jacobs died seised, as therein stated, as heirs at law of the said Philip Jacobs, by reason of the alienage of the mother of the said Philip Jacobs, and his maternal uncle, Leipman Cohen, and their father; the lessors of the plaintiff deriving their pedigree and title by descent through mediate alien ancestors. Certificate accordingly. LESSEE OF STEPHEN SICARD et al., Plaintiffs in Error, v. NANCY DAVIS et al., Defendants in Error. SAME V. JOHN CECIL AND ROBERT SMITHERS. 6 P. 124. In Kentucky, a deed not acknowledged or recorded, passes the title as against all the world except creditors of the grantor, and purchasers from him without notice. What circumstances may be sufficient presumptive proof of the execution and delivery of a lost deed. A possession under a junior patent, which interferes with a senior patent, the lands being wholly unoccupied by any one claiming under the latter, extends by construction to the whole tract. If a party amend his declaration in ejectment by inserting a new count, laying a demise from a different lessor, the statute of limitations, as against this new title, continues to run till the amendment is made. And if the adverse possession had then been held more than twenty years, and more than ten years since the death of the plaintiff's ancestor, it is a bar. THE case is stated in the opinion of the court. Sergeant, for the plaintiff. Wickliffe, contrà. [ *130 ] MARSHALL, C. J., delivered the opinion of the court. This is a writ of error to a judgment in ejectment brought by the plaintiffs in error against the defendants, in the court of the United States for the seventh circuit and district of Kentucky. The declaration was delivered to the defendants in March, 1815. The declaration contains a single count on the demise of Stephen Sicard. In November term, 1821, the plaintiff obtained leave to amend his declaration, by laying a demise in the names [* 131 ] of the heirs of the original grantee of the commonwealth, or intermediate grantees; which amended declaration was filed. The issues were joined in the usual form, and a jury sworn, who found a verdict for the defendants, on which judgment was rendered by the court. At the trial, the plaintiff gave in evidence to the jury the patent to Sicard's Lessee v. Davis. 6 P. Joseph Phillips, and proved that it covered the land in controversy, and that the defendants were in adverse possession at the time of the commencement of this suit. He also offered in evidence copies of deeds which purported to convey the title from the patentee to Benjamin Stephens, from Stephens to Samuel Robert Marshall, and from Marshall to the plaintiff. The deed from Phillips to Stephens, dated the 16th day of October, 1797, is attested by three subscribing witnesses, and the deed from Stephens to Marshall, dated the 25th day of December, 1797, is attested by two subscribing witnesses. Each deed was proved by one of the subscribing witnesses thereto, in June, 1798, before Hilary Baker, mayor of the city of Philadelphia, who gave his official certificate thereof in the usual form. The deed from Marshall to the plaintiff, Sicard, dated the 25th day of May, 1798, is attested by two subscribing witnesses, and is acknowledged by the grantor before the mayor of Philadelphia, in July, 1798, who has given his official certificate thereof. These deeds were admitted to record on this testimony, in April, 1803, in the court of appeals in Kentucky. To prove the loss of the originals, the plaintiff produced the receipt of Alexander Parker, dated the 9th of February, 1803, acknowledging the receipt of the said deeds, for the purpose of being recorded in the office at Frankfort, in Kentucky; also the affidavit of the said Parker, stating his receipt, and the purpose for which the deeds were delivered to him; as also that he had caused them to be recorded. Some time after this, being admitted to record, he was directed by Sicard to send them to him in Philadelphia. Some time before August, 1804, he applied to Thomas Wallace to carry them, who undertook to do so, and directed him to leave them with the clerk of the said Wallace that evening. The affiant inclosed the three deeds [* 132] in a sheet of paper directed to the said Sicard, *which he , delivered that evening to the said Wallace's clerk, he believes William Scott, who promised to deliver them to the said Wallace. The affiant has never seen them since, but has heard that they were lost. He believes the deeds to have been originals. He paid the taxes on said 6,680 acres of land for several years, and saw it entered for taxation in the auditor's office. He believes that the said William Scott departed this life twelve or fifteen years ago. The plaintiff also produced the affidavit or deposition of Thomas Wallace, who proved that Mr. Alexander Parker did say, that in the summer of 1803 he left at the store, or delivered to a young man, (probably Mr. Scott,) then living with the deponent, sundry papers, said to be deeds, the property of the said Sicard, to be carried from Lexington to Philadelphia by the deponent. He knows nothing of the papers, nor does he recollect ever to have seen them. He has searched for Sicard's Lessee v. Davis. 6 P. them among his papers, but cannot find them. He verily believes they were not delivered to him. The plaintiff also produced the deposition of Mary Powell, widow of Benjamin Powell, one of the subscribing witnesses to the deed from Benjamin Stephens to Samuel Robert Marshall, who deposed that she understood from her husband that he had witnessed a deed from Stephens to Marshall; that he had been dead about two years. Some time previous to his death, he accompanied the plaintiff, Sicard, for the purpose of attesting the fact of his having subscribed the said deed as a witness; and from several conversations which passed between the said Sicard and her husband, in her presence, she is convinced her husband had a perfect recollection of having subscribed his name as a witness to the said deed. Also the deposition of Joseph Spencer, the subscribing witness to the deed from Phillips to Stephens, who proved the same before the mayor of Philadelphia, in June, 1798, who says that he has some recollection of having witnessed an instrument of writing supposed by him to be a conveyance of land, he knew not to whom granted, at the house of Jonathan Phillips, deceased, of Maidenhead, now Lawrence township, Hunterdon county, State of New Jersey, some twenty years ago or more, (this deposition was taken in April, 1822,) and of his meeting again one or more of the family, he believes Dr. Joseph Phillips, of that place or neighborhood, was one, in the city of [133 ] Philadelphia, at the office of Hilary Baker, who was then mayor of the said city, to authenticate the handwriting to the said instrument of conveyance, as party or witness, or both; but has no certain date in his memory whereby he can be more particular. Also the deposition of George Heyl, notary public of Philadelphia, who says that he was called on in his official capacity, on the 17th of January, 1803, to certify and attest to three several copies of original deeds, one from Joseph Phillips to Benjamin Stephens, one from Stephens to Samuel Robert Marshall, and the third from Marshall to Stephen Sicard, dated the 25th of May, 1798, all for a tract of land lying and being, &c., containing 6,680 acres; and that he did, at the request of Stephen Sicard, examine and compare the said three several copies with the original deeds submitted to him by the said Stephen Sicard for that purpose, and found them to be true and faithful copies of the same; that the said deeds appeared to him, in every respect, originals, fair and genuine papers, the parchment, ink, signatures, &c., wearing that aspect. That the said Stephen Sicard told him at the time that his motive for requiring notarial copies of said originals was that he was going to send said originals to Kentucky to be recorded. That the said deponent had a knowledge of Sicard's Lessee v. Davis. 6 P. the signature of Hilary Baker, the mayor of the city, before whom they were proved, and of the seal of the city, and believed them genuine; that in the spring of the year 1818, the said Stephen Sicard again called on him, and took his deposition before Alderman Douglass to the above fact, to which deposition were annexed the said three notarial copies. The notarial copies mentioned in the foregoing deposition agree with the copies from the record of the court of appeals of Kentucky. The plaintiff also offered as a witness the clerk of the court of appeals, who deposed that the deeds had been recorded by Thomas S. Hinde, his deputy, now living beyond the reach of the process of this court; but he recollected to have noticed them at the time, and they had, so far as he recollected, every appearance of genuine documents. The plaintiff also introduced Ralph Phillips, who stated that he was long acquainted with Joseph Phillips, and Stephens, and [* 134 ] Marshall, and he heard them speak of the conveyance of the tract of land in controversy, as made by Phillips to Stephens, and by Stephens to Marshall, many years ago; but he does not recollect to have seen the deeds. The defendants gave in evidence patents of the commonwealth of junior date to that of the plaintiff; proved the boundaries of those junior grants, and that they included the defendants; and gave evidence that they had settled under faith of those junior grants, and held adversely to the patent offered in evidence by the plaintiff. On motion of the defendants, the court rejected the copies of the deeds aforesaid, from Phillips to Stephens, and from Stephens to Marshall, and from Marshall to Sicard; because there was no proof of the execution of the deeds from Phillips to Stephens, or from Stephens to Marshall, so as to let in copies of the original deeds. The defendants then proved that in the year 1794, they had adverse possession of the land in controversy, and had continued ever since to hold it adversely. Whereupon the defendants moved the court to instruct the jury: 1. That the plaintiff has given no evidence to support the first count on the demise of Sicard, and none to support the demise from any of the other lessors, except such as are heirs of Joseph Phillips, the patentee. 2. That if the jury find from the evidence that the patents of Joseph Phillips and William Loving do interfere and lap, as represented in the connected plat, and that the defendants and those under whom they hold did enter, claiming under said Loving's survey, and took the first possession within the said interference, the said patent of Joseph Phillips being (at the date of such patent and possession taken |