ERROR to the Supreme Court of the District of Columbia.
David Shoemaker brought ejectment, in December, 1868, against Caroline Smith, Mary Smith, et al., for certain real estate in Georgetown, D. C. The property in question had been conveyed, A.D. 1810, by persons owning it, to one Beal, in trust for a certain Kilty Smith during life, and on his death for his son John Chandler Smith. After the date of this deed, Kilty Smith had another son, to wit, Hamilton Smith, the father of the defendants. On the trial, the plaintiff, Shoemaker, having shown title in the above-named John Chandler Smith, completed his title by showing a conveyance from the said John Chandler Smith to himself, dated June 20th, 1868.
The bill of exceptions now thus stated the case as made by the defendants:
'The defendants, then, to maintain the issues upon their part introduced parol evidence, tending to show that Hamilton Smith . . . entered into the possession of the premises in controversy in the year 1845, with his family, claiming title thereto through a parol gift of the property from his father, John Kilty Smith; that he continued to reside thereon with his family until his death in 1857; that his children, the present defendants, Caroline and Mary, were born upon the said premises; . . . that Caroline was born in December, 1845, and Mary in October, 1847; that the said Hamilton during such occupancy always claimed to own the said premises as aforesaid; that after his death his children continued in the uninterrupted possession thereof continuously, claiming the absolute ownership of said property as heirs-at-law and representatives of their deceased father, which possession was by residence, use, and occupation, and with fixed inclosures, from the entry of the said Hamilton, in 1845, till the present time.'
The plaintiff then, without giving any account of when it was written, or where it had come from, or how he came possessed of the letter in order to show that the possession of the defendants was not adverse to the title of John Chandler Smith, but was held under him, and was by license or permission from him, offered in evidence a letter thus:
'BALTIMORE, September 10th, 1845.
'DEAR BROTHER: I have just received father's letter, dated 26th August, sent to me by you. He is well, and across the lake with his friend, Mr. Montgomery. My health is better. I hope by strict diet and moderate exercise to recover in time. I am still at uncle's, as they insist upon my staying with them, where I am very comfortable, with good society; and I go out a visiting almost every evening with my two cousins. As regards the advertisement for the rent of the house, there is no necessity for it, as I have determined to place you and your family there, as it will be the very best plan, and you will be better satisfied; so you may take possession as soon as Mr. Bagby leaves it. There is nothing new here whatever. I have just written to father. We are all well here. I wish you to write to me. Give my love to Ellen and all.
'Your affectionate brother,
'JOHN CHANDLER SMITH.
'TO HAMILTON SMITH,
Georgetown, D. C.'
The defendant objected to the reception of the letter in evidence.
'1st. Because the plaintiff could not introduce his own declarations, statements, or letter, or the declarations, statements, or letter of those under whom he claims title, to show under whom the defendants or their ancestor went into possession of the property.
'2d. Because the letter was not admissible in evidence for any purpose whatever.
'3d. Because there was no evidence to show that it was in response to any letter written by Hamilton Smith, or that Hamilton Smith ever replied to it.
'4th. Because it was not responsive to the defendant's testimony-in-chief, and was not admissible as a part of the res gestae.
'5th. Because it was not competent or admissible to prove any of the issues raised by the pleading or evidence.
'6th. Because there was no evidence to show that Hamilton Smith acted upon any instructions or suggestions contained in it.
'7th. Because it was irrelevant, inadmissible, and not proper proof.'
The court, however, under exception, admitted the letter in evidence for the purpose for which it was offered.
The plaintiff then offered two letters from Hamilton Smith to John Chandler Smith, which were received without objection. They were thus:
'GEORGETOWN, March 5th, 1856.