It is first assigned for error that the circuit court 'allowed the deed from Samuel C. Young to John Holmes to be read in evidence without instructing the jury that the recitals therein in respect to the death of Samuel Young and the heirship of Samuel C. Young were not evidence against the defendants, even if it were admissible at all, without proof of its execution or possession accompanying and held under it.' The deed of Samuel C. Young to John Holmes was rightfully admitted in evidence as an ancient deed, without proof by the subscribing witnesses, or of possession by the plaintiffs or those under whom they claimed. When offered it was more than 60 years old. It was produced from the custody of the heirs of John Holmes, the grantee, who claimed the lands described therein. It, as well as the patent for the same land from the commonwealth of Virginia to Samuel Young, was shown to have been found among the papers of John Holmes. The lands described therein were shown to have been listed for taxation to John Holmes, or to his heirs, for a period beginning with the year 1838 down to and including the year 1875, which was after the bringing of this suit; and it appeared that during that time they had paid the taxes assessed on said lands, or the same had been released to them by law. It was further shown that the judge before whom the acknowledgment of the deed had been made was dead; that his signature to the certificate of acknowledgment was genuine; that the deed had been recorded in the county where the lands lay for more than 42 years before it was offered in evidence; and that before and after the deed was put upon record the lands described therein were reported to be the lands of John Holmes, the grantee, and his heirs, and were known and designated in the neighborhood where they lay as the 'Holmes Plantation.' This state of facts amply justified the admission of the deed in evidence as an ancient document, without other proof. Caruthers v. Eldridge, 12 Grat. 670; Applegate v. Lexington & Carter Co. Min. Co., ante, 742, decided at the present term, and cases there cited.
The question is therefore fairly presented whether the recitals made in the deed of Samuel C. Young to John Holmes, to the effect that Samuel Young, the patentee, had died intestate, leaving one child only, namely, the said Samuel C. Young, the grantor, were admissible in evidence against the defendants, who did not claim title under the deed. The fact to be established is one of pedigree. The proof to show pedigree forms a well-settled exception to the rule which excludes hearsay evidence. This exception has been recognized on the ground of necessity; for as in inquiries respecting relationship or descent facts must often be proved which occurred many years before the trial, and were known to but few persons, it is obvious that the strict enforcement in such cases of the rules against hearsay evidence would frequently occasion a failure of justice. Tayl. Ev. § 635. Traditional evidence is therefore admissible. Jackson v. Cooley, 8 Johns. 99; Jackson v. Browner, 18 Johns. 37; Jackson v. King, 5 Cow. 237; Davis v. Wood, 1 Wheat. 6. The rule is that declarations of deceased persons who were de jure related by blood or marriage to the family in question may be given in evidence in matters of pedigree. Jewell v. Jewell, 1 How. 219; Blackburn v. Crawfords, 3 Wall. 175; Johnson v. Lawson, 2 Bing. 86; Vowles v. Young, 13 Ves. 147; Monkton v. Attorney General, 2 Russ. & M. 159; White v. Strother, 11 Ala. 720. A qualification of the rule is that before a declaration can be admitted in evidence the relationship of the declarant with the family must be established by some proof independent of the declaration itself. Monkton v. Attorney General, 2 Russ. & M. 156; Attorney General v. Kohler, 9 H. L. Cas. 660; Rex v. All Saints, 7 Barn. & C. 789. But it is evident that but slight proof of the relationship will be required, since the relationship of the declarant with the family might be as difficult to prove as the very fact in controversy.
Applying these rules, we are of opinion that the recital in the deed of Samuel C. Young to John Holmes, supported as it was by the circumstances of the case shown by the evidence, was admissible, as tending to prove the facts recited, namely, that Samuel Young, the patentee, was dead, and Samuel C. Young, the grantor, was his only child and heir.