Lessee of Clarke v. Courtney
30 U.S. 319 (1831)

Annotate this Case

U.S. Supreme Court

Lessee of Clarke v. Courtney, 30 U.S. 5 Pet. 319 319 (1831)

Lessee of Clarke v. Courtney

30 U.S. (5 Pet.) 319

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF KENTUCKY

Syllabus

The clerk of the court brought into court, under process, a letter of attorney, and left a copy of it, by consent of the plaintiffs and defendants, returning home with the original. M. a witness stated that the clerk of the court showed him the instrument, the signature of which he examined, and he believed it to be the handwriting of the party to it, with whose handwriting he was acquainted. Another witness stated that the instrument shown to M. was the original power of attorney. The letter of attorney purported to be executed and delivered by "James B. Clarke, of the City of New York, and Eleanor his wife," to "Carey L. Clarke, of the City of New York," on 7 October, 1796, in the presence of three witnesses. By the court:

"In the ordinary course of legal proceedings, instruments under seal purporting to be executed in the presence of a witness must be proved by the testimony of the subscribing witness, or his absence sufficiently accounted for. When he is dead, or cannot be found, or is without the jurisdiction of the court, or otherwise incapable of being produced, the next secondary evidence is the proof of his handwriting, and that, when proved, affords prima facie evidence of a due execution of the instrument, for it is presumed that he could not have subscribed his name to a false attestation. If upon due search and inquiry no one can be found who can prove his handwriting, no doubt resort may then be had to proof of the handwriting of the party who executed the instrument. Such proof may always be produced as corroborative evidence of its due and valid execution, though it is not, except under the limitation stated, primary evidence. Whatever may have been the origin of the rule, and in whatever reason it may have been founded, it has been too long established to be disregarded or to justify an inquiry into its original correctness. The rule was not complied with in the case at bar. The original instrument was not produced at the trial, nor the subscribing witnesses, or their nonproduction was not accounted for. The instrument purports to be an ancient one, but no evidence was offered in this stage of the cause to connect it with possession under it so as to justify its admission as an ancient deed without further proof. The agreement of the parties dispensed with the production of the original instrument, but not with the ordinary proof of the due execution of the original, in the same manner as if the original were present."

A power of attorney "to sell, dispose of, contract, and bargain for land, &c., and to execute deeds, contracts, and bargains for the sale of the same" did not authorize a relinquishment to the State of Kentucky of the land of the constituent under the act of the Legislature of that State of 1794, which allowed persons who held lands subject to taxes to relinquish and disclaim their title thereto by making an entry of the tract or the part thereof disclaimed with the surveyor of the county.

A power of attorney from "James B. Clarke and Eleanor his wife" to "Carey L. Clarke" for the sale of lands is not properly or legally executed in the

Page 30 U. S. 320

following form:

"I, the said Carey L. Clarke, attorney as aforesaid, &c., do. . . . In witness whereof the said Carey L. Clarke, attorney as aforesaid, has hereunto subscribed his hand and seal this 25 November in the year of our Lord 1800. Carey L. Clarke [L.S.]."

This act does not purport to be the act of the principal, but of the

attorney. This may savor of refinement, since it is apparent that the party intended to pass the interest and title of his principals. But the law looks not to the intent alone, but to the fact whether the intent has been executed in such a manner as to possess a legal validity.

In the case of Hawkins v. Barney's Lessee, at this term, it was decided that when the plaintiff's title, as exhibited by himself, contains an exception and shows that he has conveyed a part of the tract of land to a third person, and it is uncertain whether the defendants are in possession of the land not conveyed, the onus probandi to prove the defendant on the ungranted part is on the plaintiff.

If a mere trespasser, without any claim or pretense of title, enters into land and holds the same adversely to the title of the owner, it is an ouster or disseizin of the owner. But in such case, the possession of the trespasser is bounded by his actual occupancy and consequently the owner is not disseized except as to the portion so occupied.

Where a person enters into land under a deed or title, his possession is construed to be coextensive with his deed or title, and although the deed or title may turn out to be defective or void, yet the true owner will be deemed to be disseized to the extent of the boundaries of such deed or title. This, however, is subject to some qualifications. For if the true owner be at the same time in possession of part of the land, claiming title to the whole, then his seizin extends, by construction of law, to all the land which is not in the actual possession or occupancy by enclosure or otherwise of the party so claiming under a defective deed or title.

In the case of Society for Propagating the Gospel v. Town of Pawlet, 4 Pet. 480, the Court held that where a party entered, as a mere trespasser without title, no ouster could be presumed in favor of such a naked possession, but that when a party entered under a title adverse to the plaintiff, it was an ouster of and an adverse possession to the true owner. The doctrines recognized by this Court are in harmony with those established by the authority of other courts, especially by the court of Kentucky.

This was an action of ejectment instituted in February, 1821, against a number of persons in possession of a large tract of land, containing 55,390, in the State of Kentucky. The suit was afterwards dismissed by the plaintiffs as to forty of the defendants.

The declaration contained five counts, each count stating separate demises of the same tract of land. The first was on the demise of James B. Clarke, of 1 September, 1820, for 55,390 acres, granted

Page 30 U. S. 321

by Virginia, to Martin Pickett, by patent, bearing date 10 December, 1785.

"Beginning at a sugar tree and white oak, at the head of a hollow corner, to another survey of the said Pickett, and of younger Pitt's land, thence with a line of said Pickett's survey of 44,740 acres,"

&c., describing the abuttals as set forth in the patent.

The second count was on the demise of John Bryant, Maxwell and wife, Anna Maria Maxwell, and Eliza Bryant Grant, heirs of John Bryant, deceased. The third was on the demise of Abraham Schuyler, and Neelson and wife. The fourth of Theodocia, Thomas, and John B. Grant. The fifth on several demises made by John B. Maxwell, Anna Maria Maxwell, Eliza B. Grant, Theodocia S. Grant, Thomas R. Grant, John B. Grant, Abraham S. Neelson and wife.

The case was tried at November term, 1826, when the verdict and judgment were for the defendants.

In the course of the trial, the plaintiffs took three bills of exceptions to the opinions of the court on the matters set forth thereon.

The first bill of exceptions sets forth that on the trial of the cause, some of the defendants professing to hold a conveyance from the plaintiff, Clarke, by Carey L. Clarke as attorney in fact of the said plaintiff, offered in evidence a deed and letter of attorney, the former executed by Carey S. Clarke as the attorney in fact of James B. Clarke and Eleanor Clarke, his wife, on 23 October, 1800, to Robert Payne and the latter the power of attorney, executed at the City of New York, on 7 October, 1796. The deed, to Robert Payne which was duly admitted to record, released to him all James B. Clarke's title to all the land embraced by the surveys of John and Robert Todd on the North Fork of Eagle and Mill Creek so far as they interfere with the patent to Martin Pickett, under which Robert Payne claimed, and gave testimony likewise, conducing to prove them. And that, Andrew Moore the Clerk of the Harrison Circuit Court, who brought the letter of attorney into this Court, under process for that purpose, desiring to return, and considering it his duty to retain possession of that instrument, by consent of plaintiff and defendant, departed with it, leaving a copy. And at a

Page 30 U. S. 322

subsequent day, Moses L. Miller was introduced as a witness to prove the letter of attorney, who stated that being summoned as a witness he met with the clerk of Harrison aforesaid, in Georgetown, who showed him an instrument, the signature to which he examined, and he believed it to be the hand writing of James B. Clarke, with whose hand writing he was acquainted. And another witness was examined, tending to prove that the instrument, so shown by said Moore to Miller, was the same previously read before this Court as aforesaid.

When Andrew More, the clerk of Harrison Court, was about to resume possession of the letter of attorney and to depart, the attorney of the plaintiff declared that he had no objections. No further evidence was offered relative to the power of attorney.

To the admission of the testimony of Miller the plaintiff objected, especially in the absence of the letter of attorney, but the court overruled the objection, and submitted the testimony to the jury, as tending to prove that instrument, to which the plaintiff excepted.

The second bill of exceptions stated that the plaintiff proved and read in evidence a patent from the Commonwealth of Virginia, to Martin Pickett, dated 10 December, 1785, for 55,390 acres,

"beginning at a sugar tree and white oak, at the head of a hollow corner to said Pickett's and younger Pitt's land, thence with a line of said Pickett's survey of 44,740 acres, being part of said entry, north 9, east,"

&c., being the same abuttals set forth in the declaration of ejectment and in the power of attorney.

And also a deed from the said Martin Pickett of Virginia, to William and John Bryant for the said land, dated May 1, 1793, and also a deed from William Bryant to James B. Clarke, dated 18 July, 1794, for an undivided moiety of the said land, and also a deed from John Bryant to James B. Clarke, dated October 13, 1794, for the other moiety, he having proved the possession of the defendants, and that James B. Clarke at the date of his deed and ever since, was and had been, a citizen and resident in the State of New York.

Page 30 U. S. 323

The plaintiff relied solely on the demise from James B. Clarke, and gave no evidence on the other demises -- and relied solely upon the patent to Pickett for 55,390 acres -- none of the defendants being within the patent to Pickett for 44,740 acres.

The defendants offered in evidence the following exhibits: a release of 49,952 acres by Carey L. Clarke, as attorney for James B. Clarke and John Bryant, bearing date 25 November, 1800 -- acknowledged same day, before John Payne, the surveyor of Scott County, by him certified -- afterwards lodged with the auditor of public accounts; it recites that James B. Clarke and wife, and John Bryant and wife, had appointed Carey L. Clarke their attorney, to sell, transfer, and convey a certain tract on the waters of Eagle Creek, in the County of Scott and State of Kentucky, containing 100,192 acres, entered in the name of Martin Pickett, and which tract of land is now held by the said Clarke and Bryant, as tenants in common:

"Now therefore I, the said Carey L. Clarke, attorney as aforesaid, in pursuance of an act of the Legislature of the State of Kentucky, authorizing claimants of land within its commonwealth to relinquish, by themselves or their attorneys, any part or parts of their claims to the commonwealth, I do hereby relinquish to the Commonwealth of Kentucky all the right, title, interest, property, claim, and demand of the said Clarke and Bryant of, in, and to the hereinafter described tracts of land, being part of the above mentioned tract, and lying within the boundaries, viz., _____."

Here the deed specifies various conflicting surveys and gives the quantity in the various surveys; also specifies certain other quantities by boundaries expressed, altogether amounting to 49,952 acres.

Also a release, bearing date 25 November, 1801, executed by the said Carey L. Clarke, as attorney in fact for John Bryant, reciting the act of assembly aforesaid, authorizing the relinquishment of lands to the commonwealth, specifying various conflicting surveys and other specific boundaries of the several parcels, amounting to 34,027 acres -- also certified by the surveyor of Scott and filed in the

Page 30 U. S. 324

auditor's office -- with a transcript by the auditor, from the books of his office certifying the entries for taxes of the 55,390 acres and the subsequent relinquishment of 49,952 acres thereof and the sale to the state for taxes of 3,438 acres -- also, the entry for taxes of the 44,547 acres; the release to the State of 34,029 thereof, and that the residue was the property of John Hawkins of George (Kentucky) -- annexed also is the certificate of the auditor that neither James B. Clarke nor John Bryant appears to have paid any taxes since the said relinquishments were made. To prove which he relied upon the power of attorney to Carey L. Clarke, mentioned in a former bill of exceptions, and the original relinquishment from the auditor's office, and proved the execution thereof by John Payne the surveyor of Scott County, wherein the land relinquished then was situate.

John Payne also stated, that in the year 1794 or thereabouts, _____ Griswold came to his residence in Scott County, claiming the land in Pickett's patent, by contract with Clarke; that the deponent and Robert Parker, the surveyor of Fayette, made out a connected plot showing the interfering claims set forth in this relinquishment, and Griswold, expressing dissatisfaction with the claim and the contract, returned. Afterwards, Carey L. Clarke came to Kentucky, avowing himself the agent of Clarke by the letter of attorney, a copy of which is set forth in the bill of exceptions taken in this cause; that Carey L. Clarke in 1796, or thereabouts, called on the witness, and expressed a disposition to relinquish. The witness advised Clarke that he might be able to prevail for some of the land, and had better not make the relinquishment. Afterwards, in the year 1800, the relinquishment was prepared by Carey L. Clarke, in his own handwriting, and executed in the surveyor's office, before said Payne and he the surveyor certified it and took copies; Carey L. Clarke then took the original, and the witness having no record book for the purpose (this being the only relinquishment ever made in his office for taxes), still kept a copy with his private papers, and he did not deliver the copy to his successor in office (and did

Page 30 U. S. 325

not suppose Clarke had used it till lately), when he resigned and handed over the records, which took place some years afterwards.

Porter Clay, the present auditor of state, produced the original, stating on examination that he found it in his office and that no tax had been paid upon that part of the tract embraced by that instrument subsequent to its date.

The attorney for the plaintiff then made a motion to the court to instruct the jury that the instrument under the proof did not bind the plaintiff, and could not bar his recovery, but the court overruled the motion and instructed the jury that the said relinquishment for the 49,952 acres, if the execution thereof was satisfactorily proved, was a bar to the recovery of all the land described in said relinquishment.

And on the motion of the defendants, the court instructed the jury that if it believed the execution of the power of attorney from James B. Clarke to Carey L. Clarke, and of the relinquishment in evidence, then it was incumbent on the plaintiff, to maintain his action, to show that the defendants or some of them were at the service of the ejectment, outside of the several parts relinquished to the state, to which several opinions of the court the plaintiff excepted.

The third bill of exceptions stated that the plaintiff having given in evidence the patent to Pickett, the deed to John and William Bryant, the deeds from John and William Bryant to the plaintiff, James B. Clarke, and proved that the said James B. Clarke was, at the date thereof, and ever since, resident of the State of New York, and that the title papers aforesaid all embrace the land in controversy, and that the defendants were all in possession at the time of the commencement of this suit, and after the defendants had given the evidence touching the relinquishment as set forth in the bill of exceptions on file in this cause, and the court had given the instructions and opinions therein also contained; the plaintiff gave testimony conducing to prove that some of the defendants, to-wit, William Hinton, James Hughes, John Vance, John Gillum, Henry Antle, Jeremiah Antle, Peter Sally, Benjamin Sally, Samuel Courtney, &c., were not within the limits set forth by the said instrument of relinquishment, and these all relying

Page 30 U. S. 326

in their defense upon their possession, they gave in evidence a patent to James Gibson and a patent to Sterrett and Grant.

That Gibson's patent is for 657 acres, surveyed 4 December, 1783, patented March 1, 1793. Sterrett and Grant's patent, 1,629 acres, entered 16 January, 1783, surveyed 1 November, 1792, patented 24 October 1799. And gave testimony conducing to prove that the said Sallys, Courtneys, &c., were within the boundary prescribed by the patent of Grant and Sterrett, and Hinton, Hughes, Gillum, Vance, Antles, were within the bounds of the grant to Gibson, and touching the possession within Gibson's patent, the witness stated that in the year 1796, William Hinton entered within the patent of Gibson, claiming a part of the tract under that grant, and that tenement has been occupied ever since, and at subsequent periods, the other tenants claiming under said William Hinton had settled in the same manner upon other parcels, claimed by them as parts of said William Hinton's purchase, and from the time of their respective settlements, their possession had been continued; the witness knew not the extent of boundary of any of the purchases, and no title papers were produced.

And touching the possession within the grant to Sterrett and Grant, the witness stated that in the year 1791 or 1792, Griffin Taylor entered under that patent; that tenement has been still occupied by Taylor and his alienees, and at periods subsequent, the other tenants had entered and taken possession, claiming under said Taylor within the limits of the patent to Sterrett and Grant. No written evidences of purchase were offered.

Whereupon the attorney for the plaintiff made a motion to the court to instruct the jury,

1. That the possession of those defendants was no bar to the plaintiff's action.

2. That the statute of limitations could only protect the defendants to the extent that had actually enclosed their respective tenements and occupied for twenty years preceding the commencement of this suit.

The court overruled the motion of the plaintiff for the instructions

Page 30 U. S. 327

aforesaid, as made, and instructed the jury that adverse possession was a question of fact; that under the adverse patents given in evidence it was not necessary to show a paper title derived under those adverse grants, to make out adverse possession, but that such hostile possession might be proved by parol; that an entry under one of the junior grants, given in evidence by the defendants, and within the boundaries of the elder grant of Pickett, made by one claiming under such junior grant without any specific metes and bounds other than the abuttals of the grant itself did constitute an adverse possession to the whole extent of the abuttals and boundaries under which such entry was made.

To the refusal of the court to give the instructions asked by the plaintiff and to the instructions given by the court, the plaintiff excepted.

Page 30 U. S. 343

MR. JUSTICE STORY delivered the opinion of the Court.

This is a writ of error founded on a judgment of the Circuit Court in the District of Kentucky in an action of ejectment in which the plaintiff in error was the original plaintiff. The case is before us upon certain bills of exceptions taken by the plaintiff, and to the consideration of these the Court will address its attention, without entering upon any examination of other facts not involved in the decision of them.

Some of the defendants professing to hold a conveyance from the lessor of the plaintiff, Clarke, made by Carey L. Clarke, as his attorney in fact, offered in evidence the deed of conveyance and the letter of attorney,

"and gave testimony conducing to prove them. And Andrew Moore, the Clerk of the Harrison Circuit Court, who brought the letter of attorney into this court under process for that purpose, desiring to return and considering it his duty to retain possession of that instrument, by consent of plaintiff and defendants, departed with it, leaving a copy. And at a subsequent day, Moses L. Miller was introduced as a witness to prove the letter of attorney, who stated that, being summoned as a witness, he met with the clerk of Harrison aforesaid in Georgetown, who showed him an instrument, the signature of which he examined, and believed it to be the handwriting of James B. Clarke (the plaintiff's lessor), with whose handwriting he was well acquainted, and another witness was examined, tending to show that the instrument, so shown by said Moore to Miller, was the same previously read before this Court as aforesaid. When Andrew Moore (the clerk of Harrison court) was about to resume possession of the letter of attorney and to depart, the attorney of the plaintiff declared that he had no objection. It is not pretended that any expectation of offering further proof was entertained or intimated to the parties. To the admission of the testimony of Miller the plaintiff objected, especially in the absence of the letter of attorney. But the court overruled the objection and submitted the testimony to the jury as tending to prove that instrument."

The letter of attorney purports to be made by "James B. Clarke of the City of New York, and Eleanor his wife" to "Carey L. Clarke of the City of New York," to be dated 7 October, 1796, and to be sealed and delivered in the presence of three witnesses.

Page 30 U. S. 344

The question is whether, under these circumstances, it ought to have been admitted in evidence.

In the ordinary course of legal proceedings, instruments under seal purporting to be executed in the presence of a witness must be proved by the testimony of the subscribing witness or his absence sufficiently accounted for. Where he is dead or cannot be found or is without the jurisdiction or is otherwise incapable of being produced, the next best secondary evidence is the proof of his handwriting, and that, when proved, affords prima facie evidence of a due execution of the instrument, for it is presumed that he would not have subscribed his name to a false attestation. If upon due search and inquiry no one can be found who can prove his handwriting, there is no doubt that resort may then be had to proof of the handwriting of the party who executed the instrument; indeed, such proof may always be produced as corroborative evidence of its due and valid execution, though it is not, except under the limitations above suggested, primary evidence. Whatever may have been the origin of this rule, and in whatever reasons it may have been founded, it has been too long established to be disregarded or to justify an inquiry into its original correctness.

The rule was not complied with in the case at bar. The original instrument was not produced at the trial, nor the subscribing witnesses, and their nonproduction was not accounted for. The instrument purports to be an ancient one, but no evidence was offered in this stage of the cause to connect it with possession under it so as to justify its admission as an ancient deed without further proof. It is said that the conduct of the parties amounted to a waiver of the due proof of the original. We are of opinion that the production of the original was under the circumstances dispensed with by the parties, and that a copy of it was impliedly assented to as a substitute for the original.

But we do not think that the implication goes further and dispenses with the ordinary proof of the due execution of the original in the same manner as if the original were present. It would be going very far to draw such a conclusion from circumstances of so equivocal a nature. The rules of evidence are too important securities for the titles to property

Page 30 U. S. 345

to allow such loose presumptions to prevail. It would be opening a door to great practical inconvenience, and if a waiver of the ordinary proof is intended, it is easily reduced to writing.

It is also said that the language of the exception that the defendants gave testimony "conducing to prove" the instruments may well be interpreted by the court to have included all the usual preliminary proofs. We do not think so; to justify the admission of the lowest kind of secondary proof, it should clearly appear that all the preliminary steps have been taken and established. The court can presume nothing; there may not have been any preliminary proof whatsoever of the absence, death, or incapacity of the witnesses, and yet there may have been some evidence "conducing to prove" the due execution of the instruments. And the very circumstance stated in the bill of exception that Miller was introduced "as a witness to prove the letter of attorney" repels the presumption that any antecedent proof had been given which in point of law dispensed with the ordinary proofs.

We think, then, that the testimony ought not to have been admitted, and that this exception is well founded.

The plaintiff having then given prima facie evidence of title under a patent to Martin Pickett of 55,390 acres, and that the defendants were in possession of the land in controversy, and that the lessor of the plaintiff (Clarke) at the date of his deed and ever since was and had been a citizen and resident of the State of New York, and having relied solely on the demise from Clarke, the defendants offered in evidence certain exhibits. One of these purported to be a release of 49,952 acres by Carey L. Clarke, as attorney for James B. Clarke and John Bryant, on 25 November, 1800, acknowledged before the Surveyor of Scott County, and afterwards lodged with the auditor of public accounts. It recited that James B. Clarke and Eleanor his wife, and John Bryant and Mary his wife, had appointed Carey L. Clarke their attorney to sell, transfer, and convey a certain tract on the waters of Eagle Creek, in the County of Scott and State of Kentucky, containing 100,192 acres, entered in the name of Martin Pickett,

Page 30 U. S. 346

which tract of land was then held by Clarke and Bryant as tenants in common. It then proceeded to state

"Now, therefore, I, the said Carey L. Clarke, attorney as aforesaid, in pursuance of an act of the Legislature of the State of Kentucky authorizing claimants of land within its commonwealth to relinquish by themselves or their attorneys any part or parts of their claims to the commonwealth, do hereby relinquish to the Commonwealth of Kentucky all the right, title, interest, property, claim, and demand of the said Clarke and Bryant of, in, and to the hereinafter described tracts of land."

Another exhibit purported to be a release dated 25 November, 1801, by Carey L. Clarke as attorney in fact of John Bryant in a similar form and containing a similar relinquishment to the State of certain tracts of land, except that the attestation clause was in these words:

"In witness whereof the said Bryant by Carey L. Clarke, his attorney, hath set his hand and seal 25 November, 1801. John Bryant, by Carey L. Clarke, his attorney [L.S.]."

The other exhibits need not be particularly mentioned.

To prove these instruments of relinquishment, or properly speaking, that of James B. Clarke and wife, the defendants relied upon the power of attorney mentioned in the former bill of exceptions, and the original relinquishment from the auditor's office, and proved the execution thereof by the surveyor of Scott County.

The plaintiff then moved the court to instruct the jury that the instrument [of relinquishment] under the proof, did not bind the plaintiff and could not bar his recovery. But the court overruled the motion, and instructed the jury that the said relinquishment for the 49,952 acres, if the execution thereof was satisfactorily proved, was a bar to the recovery of all the land described in said relinquishment; and on motion of the defendants, the court instructed the jury that if it believed the execution of the power of attorney from James B. Clarke to Carey L. Clarke, and of the relinquishment in evidence [from Carey L. Clarke as his attorney of the date of 25 November, 1800], then it was incumbent on the plaintiff, to maintain this action, to show that the defendants or some of them were, at the service of the ejectment, outside of the several parts relinquished to

Page 30 U. S. 347

the state. The opinions thus given and refused constitute the second bill of exceptions.

Various objections have been taken in the argument at the bar upon the matter of these exceptions. It is said that the relinquishment to the state, which was authorized by the Act of 4 December, 1794, Littell's Laws of Kentucky 222, has not been made in such a manner as to become effectual in point of law, for there has been no entry of the relinquishment in a book in the surveyor's office of the county, as prescribed in the statute, nor has the power of attorney been there recorded, and the state cannot take but by matter of record. Upon this objection it is not, in our view of the case, necessary to give any opinion.

It is said in the next place that the relinquishment purports to have been made in virtue of a power of attorney recited in the instrument itself to be from James B. Clarke and his wife and John Bryant and his wife, whereas the power produced purports to be from Clarke and his wife only, and therefore the latter power does not authorize the relinquishment, or in other words it was not that under which it was made. There is great force in this objection, but on this also we do not decide.

Another objection is that the power of attorney produced, even if duly executed, does not justify the relinquishment. It purports to authorize Carey L. Clarke

"to sell, dispose of, contract, and bargain for all or so much of said tract of land, &c., and to such person, or persons, and at such time or times as he shall think proper, and in our or one of our names to enter into, acknowledge and execute all such deeds, contracts, and bargains for the sale of the same as he shall think proper, provided always that all deeds for the land are to be without covenants of warranty or covenants warranting the title to the land from the patentee and his assigns,"

&c.

The language here used is precisely that which would be used in cases of intended sales or contracts of sale of the land for a valuable consideration to third persons in the ordinary course of business. In the strict sense of the term, a relinquishment of the lands to the state under the act of 1794 is not a sale. That act, after reciting that it is represented to the general assembly that many persons hold tracts of land

Page 30 U. S. 348

subject to taxation, and are desirous of continuing their interest in only part thereof, and that others have claims to lands which they wish to relinquish without their being subject to the expense of law suits, proceeds to enact that it shall be lawful for any person or persons, his heir or their agent or attorney, lawfully authorized so to do, to relinquish or disclaim his, her, or their title, interest, or claim to and in any tract or part of a tract of land that he, she, or they may think proper by making an entry of the tract or that part thereof so disclaimed with the surveyor of the county in which the land or the greater part thereof shall lie, in a book to be kept for that purpose, which said entry shall describe the situation and boundary of the land disclaimed with certainty and be signed by the party in the presence of the surveyor, who shall attest the same, and that by virtue of the aforesaid entry and disclaimer, all the interest of the party in the said tract shall be vested in the commonwealth and shall never be reclaimed by the party or his, her, or their representatives. The object of the act is to authorize a relinquishment, either on account of the land being subject to taxation or to award law suits on account of conflicting claims.

It is not pretended that the present relinquishment would have been authorized by the letter of attorney on the latter account. It is supposed at the bar to have been done on account of the taxes due on the land, though that object is not avowed on the face of the deed. There is accordingly spread upon the record a transcript of the taxes laid on the land. By the laws of Kentucky Act of 1799, s. 17, 2 Litt. L. 327, taxes constitute a perpetual lien on the land. But such taxes constitute no personal charge against nonresidents. And the act of 1799 further provides that where any person has paid or shall, on or before the first day of December then next, the tax on any tract of land which shall afterwards be lost or relinquished, the person losing shall, upon application to the auditor, receive an audited warrant to the amount paid by him, with a deduction of seven and a half percent, which shall be receivable in taxes as other audited warrants are.

The effect of the Kentucky laws, then, so far as nonresidents are concerned, is that by their relinquishment they obtain no personal discharge from any personal charge, and that

Page 30 U. S. 349

the only effect is that in the specified cases, if they have paid the taxes, they are, with a small deduction, reimbursed.

In point of fact, then, the relinquishment gives them nothing as a compensation for the land, but restores back again only the money (if any) which they have paid. Can such a relinquishment, for the purposes contemplated by the statute, be in any just sense deemed a sale? We think not. It is a mere abandonment of the title, or, in the language of the act, a relinquishment or disclaimer. The letter of attorney manifestly contemplated the ordinary contracts of bargain and sale between private persons for a valuable consideration and conveyance by deed without covenants of warranty. The very reference to covenants shows that the parties had in view the common course of conveyances in which covenants of title are usually inserted, and the clause excludes them. The statute does not contemplate any deed or conveyance, but a mere entry of relinquishment or disclaimer of record. This entry constitutes a good title in the state. The state does not buy, nor does the party sell in such case. It seems to us that the nature of such a relinquishment, amounting as it does to a surrender of title without any valuable consideration, ought not to be inferred from any words, however general, much less from words so appropriate to cases of mere private sales as those in the present letter of attorney. The question whether such a relinquishment should be made or not is so emphatically a matter of pure discretion in the owner, in the nature of a donation, that it ought not to be presumed to be delegated to another without the most explicit words used for and appropriate to such a purpose. We think that the words of the present letter of attorney are not sufficient to clothe the agent with such an authority.

But if this objection were not insuperable, there is another which, though apparently of a technical nature, is fatal to the relinquishment. It is that the deed is not executed in the names of Clarke and his wife, but by the attorney in his own name. It is not, then, the deed of the principals, but the deed of the attorney. The language is "I, the said Carey L. Clarke, attorney as aforesaid, . . . do hereby relinquish," &c., and the attesting clause is

"In witness whereof, the said Carey L. Clarke, attorney as aforesaid, has hereunto subscribed

Page 30 U. S. 350

his hand and seal this 25 November in the year of our Lord 1800. Carey L. Clarke [L.S.]."

The act does not therefore purport to be the act of the principals, but of the attorney. It is his deed and his seal, and not theirs. This may savor of refinement, since it is apparent that the party intended to pass the interest and title of his principals. But the law looks not to the intent alone, but to the fact whether that intent has been executed in such a manner as to possess a legal validity.

The leading case on this subject is Coombe's Case, 9 Co. 75, where authority was given by a copyholder to two persons as his attorneys to surrender ten acres of pasture to the use of J. N., and afterwards, at a manor court, they surrendered the same, and the entry on the court roll was that the said attorneys in the same court showed the writing aforesaid, bearing date &c., and they, by virtue of the authority to them by the said letter of attorney, given in full court, surrendered into the hands of the said Lord the said ten acres of pasture, to the use of the said J. N., &c., and the question was whether the surrender was good or not, and the court held it was good.

"And it was resolved that when any has authority as attorney to do any act, he ought to do it in his name who gives the authority, for he appoints the attorney to be in his place and to represent his person, and therefore the attorney cannot do it in his own name, nor as his proper act, but in the name and as the act of him who gives the authority. And where it was objected that in the case at bar the attorneys have made the surrender in their own name, for the entry is that they surrendered, it was answered and resolved by the whole court that they have well performed their authority, for first they showed their letter of attorney, and then they by the authority to them by the letter of attorney given, surrendered, &c., which is as much as to say, as if they had said, we, as attorneys, &c., surrender, &c., and both these ways are sufficient. As he who has a letter of attorney to deliver seizin saith, I, as attorney to J. S. deliver you seizin, or I, by force of this letter of attorney, deliver you seizin. And all that is well done, and a good pursuance of his authority. But if attorneys have power by writing to make leases by indenture for years, &c., they cannot make indentures in their own names, but in the name of him who gives the warrant. "

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Such is the language of the report, and it has been quoted at large because it has been much commented on at the bar, and it points out a clear distinction between acts done in pais and solemn instruments or deeds as to the mode of their execution by an attorney. It has been supposed that the doctrine of Lord Holt in Parker v. Kett, 1 Salk. 95, and better reported in 2 Mod. 466, intimated a different opinion. But, correctly considered, it is not so. Lord Holt expressly admits (468) that the doctrine in Coombe's Case that he who acts under another ought to act in his name is good law beyond dispute, and the case there was distinguishable, for it was the case of sub-deputy steward, appointed to receive a surrender, which was an act in pais. However this may be, it is certain that Coombe's Case has never been departed from, and has often been acted upon as good law. In Frontin v. Small, 2 Ld.Raym. 1418, where a lease was made between M.F., "attorney of J.F.," of the one part, and the defendant, of the other part, of certain premises for seven years, in a suit for rent by M.F., it was held that the lease was void for the very reason assigned in Coombe's Case. Lord Chief Baron Gilbert, 4 Bac.Abridg. Leases and Terms for years, I. 10, 140, has expounded the reasons of the doctrine with great clearness and force, and it was fully recognized in White v. Cuyler, 6 T. 176, and Wilks v. Back, 2 East. 142. If it were necessary, it might easily be traced back to an earlier period than Coombe's Case. 4 Bac.Abridg. Leases and Terms for years, I. 10, 140-141. Com.Dig. Attorney, C. 14. Moore 70. In America, it has been repeatedly the subject of adjudication, and has received a judicial sanction. The cases of Bogart v. De Bussy, 6 Johns. 94, Fowler v. Shearer, 7 Mass. 14, and Elwell v. Shaw, 16 Mass. 42, are directly in point.

It appears to us, then, upon the grounds of these authorities, that the deed of relinquishment to the state was inoperative, and consequently the court erred in refusing the instruction prayed by the plaintiff that it did not bind him and in directing the jury that if the execution of it was proved, it was a bar to the recovery of the land described therein.

This aspect of the case renders it unnecessary to decide whether, supposing the relinquishment good, it was incumbent

Page 30 U. S. 352

on the plaintiff to show that the possession of the defendants, or some of them, was at the time of the service of the ejectment outside of the land relinquished. That point was before us in Hawkins v. Barney's Lessee at this term, and it was there decided that where the plaintiff's title deed, as exhibited by himself, contains an exception and shows that he has conveyed a part of the tract of land to a third person, and it is uncertain whether the defendants are in possession of the land not conveyed, the onus probandi is on the plaintiff. Here, the deed of relinquishment is exhibited on the part of the defendants to dispute the plaintiffs' title to the land possessed by them, and it has been contended that this creates a distinction and throws the burden of proof on the defendants to show that the plaintiff has parted with his title to the particular land in controversy. The case, however, does not call for any absolute decision on this point; nor does it appear with certainty from the evidence that the relinquished land was within the boundaries of the land in controversy in the suit.

The third bill of exception states that on the trial of the cause, the plaintiff having given in evidence the patent to Pickett and by mesne conveyances to Clarke, the lessor of the plaintiff, and proved that Clarke, at the date thereof and ever since, was resident in the State of New York, and that the title deeds embrace the land in controversy, and that the defendants were all in possession at the commencement of the suit after the defendants had given in evidence the deed of relinquishment, and the court had given the instructions thereon; gave testimony conducing to prove that some of the defendants, viz., Hinton, Hughes, Vance, Gillum, Antle, Salley, Courtney, &c., were not within the limits set forth in the relinquishment, and these defendants all relying in their defense upon their possession, they gave in evidence a patent to James Gibson, 1 March, 1793, under a survey of 1783, and a patent to Sterrett and Grant, 24 October, 1799, under a survey in 1792 (reciting them), and gave testimony conducing to prove that Sally, Courtney &c., were within the boundaries prescribed by the patent of Grant and Sterrett, and Hinton, Hughes, Gillum, Vance and Antle were within the bounds of the patent to Gibson, and touching the possession within Gibson's patent, the witness stated that in 1796,

Page 30 U. S. 353

Hinton entered within the patent of Gibson, claiming a part of the tract under that grant, and that the tenement has been occupied ever since, and at subsequent periods the other tenants claiming under the said Hinton had settled in the same manner under other parcels, claimed by them as parts of Hinton's purchase, and from the time of their respective settlements, their possession had been continued. The witness knew not the extent or boundary of any of the purchases, and no title papers were produced.

And touching the possession within the patent to Sterrett and Grant, the witness stated that in 1791 or 1792, Griffin Taylor entered under that patent, that the tenements have been still occupied by Taylor and his alienees, and at periods subsequent, the other tenants had entered and taken possession, claiming under the said Taylor, within the limits of the patent to Sterrett and Grant. No written evidences of purchase were offered.

Thereupon the plaintiff moved the court to instruct the jury:

1. That the possession of these defendants, was no bar to the defendants' action.

2. That the statute of limitation could only protect the defendants to the extent that they had actually enclosed their respective tenements, and had occupied for twenty years preceding the commencement of the suit.

The court overruled the motion and instructed the jury that adverse possession was a question of fact; that under the adverse patents given in evidence, it was not necessary to show a paper title derived under those adverse grants, to make out adverse possession; but such hostile possession might be proved by parol. That an entry under one of the junior grants given in evidence by the defendants, and within the boundaries of the elder grant, without any specific metes and bounds other than the abuttals of the grant itself did constitute an adverse possession, to the whole extent of the abuttals and boundaries under which such entry was made. To this refusal and opinion the plaintiff excepted, and the question now is whether the court erred in either respect.

In considering the points growing out of this exception, it may be proper to advert to the doctrine which has been already established in respect to the nature and extent of the rights growing out of adverse possession. Whether an entry

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upon land to which the party has no title and claims no title be a mere naked trespass or be an ouster or disseizin of the true owner previously in possession of the land is a matter of fact depending upon the nature of the acts done and the intent of the party so entering. The law will not presume an ouster without some proof, and though a mere trespasser cannot qualify his own wrong, and the owner may, for the sake of the remedy, elect to consider himself disseized, yet the latter is not bound to consider a mere act of trespass to be a disseizin. If a mere trespasser, without any claim or pretense of title enters into land, holds the same adversely to the title of the true owner, it is an ouster or disseizin of the latter. But in such case, the possession of the trespasser is bounded by his actual occupancy, and consequently the true owner is not disseized except as to the portion so occupied. But where a person enters into land under a deed or title, his possession is construed to be coextensive with his deed or title, and although the deed or title may turn out to be defective or void, yet the true owner will be deemed disseized to the extent of the boundaries of such deed or title. This, however, is subject to some qualification. For, if the true owner be at the same time in possession of a part of the land, claiming title to the whole; then his seizin extends by construction of law to all the land which is not in the actual possession and occupancy, by enclosure or otherwise, of the party so claiming under a defective deed or title.

The reason is plain; both parties cannot be seized at the same time of the same land under different titles, and the law therefore adjudges the seizin of all, which is not in the actual occupancy of the adverse party, to him who has the better title. This doctrine has been on several occasions recognized in this Court. In Green v. Liter, 8 Cranch 229-230, S.C. 3 Pet.Cond. 97, 107, the Court said the general rule is that if a man enters into lands having title, his seizin is not bounded by his occupancy, but is held to be coextensive with his title. But if a man enters without title, his seizin is confined to his possession by metes and bounds. Therefore the Court said that as between two patentees in possession claiming the same land under adverse titles, he who had the better legal title was to be deemed in seizin of all the land not included in the actual close of the other patentee. The same doctrine was held in

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Barr v. Gratz, 4 Wheat. 213, 17 U. S. 223; where the Court said that where two persons are in possession of land at the same time under different titles, the law adjudges him to have the seizin of the estate who has the better title. Both cannot be seized, and therefore the seizin follows the title. And that where there was an entry without title, the disseizin is limited to the actual occupancy of the party disseizing; and in reference to the facts of that case, the Court held that in a conflict of title and possession, the constructive actual seizin of all the land not in the actual adverse possession and occupancy of the other, was in the party having the better title.

In Society for propagating the Gospel v. Town of Pawlet, 4 Pet. 480, 29 U. S. 504-506, which came before the Court upon a division of opinion upon a state of facts agreed, the Court held that where a party entered as a mere trespasser without title, no ouster could be presumed in favor of such a naked possession, but that where a party entered under a title adverse to the plaintiffs, it was an ouster of or adverse possession to the true owner.

It appears to us also that the doctrines thus recognized by this Court are in harmony with those established by the authority of other courts, and especially of the courts of Kentucky in the cases cited at the bar. Johnson's Digest Ejectment V, b; Big.'s Dig. Seisin and Disseizin in A, B, C, D.

It remains to apply these questions to the present exception. The court was called upon in the first instruction to declare that the possession of the defendants was no bar to the action. This obviously required the court to give an opinion upon matters of evidence proper for the consideration of the jury, and which might be fairly open to controversy before them. It was therefore properly denied. The second instruction required the court to declare that the statute of limitations could only protect the defendants to the extent that [they] had actually enclosed their respective tenements, and occupied for twenty years preceding the commencement of the suit. The difficulty upon this instruction is that no evidence was adduced, or, if adduced, it was not competent for the court to decide upon it that either Pickett, the patentee, or the lessor of the plaintiff, at the time of the entry and ouster by the defendants, had any actual seizin or possession of any part of the land included in

Page 30 U. S. 356

the patent, so as to limit their possession to the bounds of their actual enclosures or occupancy. The entry of the defendants was certainly under a claim of title under the patents of Gibson and Sterrett and Grant. If Pickett or his grantees were then in possession under his patent, the defendants, upon the principles already stated, would have been limited, as to their adverse possession, to the bounds of their actual occupancy. But that not being shown, the question resolves itself into this -- whether a party entering into land under a patent, but without showing a paper title to any particular portion of the land included in that patent, is not to be deemed as claiming to the abuttals of the patent against adverse titles held by other parties not then in seizin or possession under their titles.

The opinion of the circuit court was (as the instruction given shows), "that adverse possession was a question of fact" (which might be true, as applicable to the case before it, though it is often a mixed question of law and of fact);

"that under the adverse patents given in evidence, it was not necessary to show a paper title, under those adverse grants, to make out adverse possession, but that such hostile possessions might be proved by parol"

(which, as a general proportion, is certainly true, as adverse possession may exist independent of title), and what is the material part of the instruction,

"that an entry under one of the junior grants given in evidence by the defendants, and within the boundaries of the elder grant of Pickett, made by one claiming under such junior grant without any specific metes and bounds, other than the abuttals of the grant itself, did constitute an adverse possession to the whole extent of the abuttal and boundaries under which the entry was made."

The prayer of the plaintiffs then was or might have been rejected because it assumed the decision of a question of fact; that is, that the defendants entered without any claim of title by metes and bounds, and the instruction given was that an entry under the junior grants by one claiming under them by no other abuttals than those of the grants, was to be deemed an entry and adverse possession to the extent of those abuttals. This decision is fully supported by the cases in 2 March. Kent. 18 and 1 Marsh. Kent. 376.

Looking, therefore, to the instruction in the qualified manner in which it is given, and with reference to the fact that no

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seizin was shown in Pickett, or the lessors of the plaintiff, in any part of the tract included in his patent at the time of the entry of the defendants, it seems to us that, according to the local decisions, the refusal was right and the instruction given was correct in point of law.

We think it proper to add that no notice has been taken of the fact that Clarke, the lessor of the plaintiff, was a nonresident, because it does not appear that any of the instructions were asked or given in reference to the legal effort of his nonresidence.

The judgment is therefore

Reversed for the errors stated in the first and second bills of exceptions, and the cause remanded to the circuit court with directions to award a venire facias de novo.

MR. JUSTICE BALDWIN dissented as to the possession.

This cause came on, &c. It is considered by the Court here that there was error in the circuit court in admitting the testimony of Moses L. Miller under the circumstances set forth in the first bill of exceptions. And that there was error in the circuit court in refusing to instruct the jury upon the motion of the plaintiff that the instrument stated in the second bill of exceptions, under the proof, did not bind the plaintiff and could not bar his recovery, and in instructing the jury that the relinquishment stated in the same bill of exceptions for 49,952 acres, if the execution thereof was satisfactorily proved, was a bar to the recovery of all the land described in said relinquishment, as set forth in the same bill of exceptions. But there is no error in the court in refusing to instruct the jury on the motion of the plaintiff that the possession of the defendants was no bar to the plaintiff's action, and that the statute of limitations could only protect the defendants to the extent that they had actually enclosed their respective tenements and occupied for twenty years preceding the commencement of the suit, as set forth in the third bill of exceptions, and that there was no error in the court in giving the instruction to the jury set forth in the same bill of exceptions in the manner and under the circumstances therein set forth.

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