The appearance of the defendants to a foreign attachment in a
circuit court of the United States waives all objection to the
nonservice of a process.
The district judge may alone hold a circuit court, although
there be no judge of the Supreme Court allotted to that
circuit.
An action may be supported on a covenant of seizin, although the
plaintiff has never been evicted, and the declaration need not aver
an eviction.
Under the foreign attachment law of Connecticut, an absent
person who is liable for damages for breach of his covenant is an
absent debtor.
The official certificate of survey returned by a legal sworn
surveyor in Virginia cannot be invalidated by a particular fact
tending to show an impossibility that the survey could have been
made in the time intervening between the date of the entry and the
date of the certificate of survey.
On the trial of an action in Connecticut for breach of a
covenant of seizin of lands in Virginia, the question whether a
patent from the State of Virginia for the lands be voidable is not
examinable. Parol testimony is not admissible in an action on the
covenant of seizin to prove prior claims upon the land.
Dwight and others brought a foreign attachment against Pollard
and Pickett in the County Court of Hartford, and declared in an
action of covenant upon a deed of bargain and sale in fee simple of
certain lands in the County of Wythe and Commonwealth of Virginia
by which the defendants below covenanted that they were
"lawfully seized of the lands and premises, with their
appurtenances, and had good right and lawful authority to sell and
convey the same in manner and form aforesaid,"
and the breach assigned was
"that they were not nor were any or either of them lawfully
seized and possessed of any estate whatever in the said land and
premises nor in any part thereof, nor had the said Pollard and
Pickett, or either of them, good right and lawful authority to sell
and convey the said land and premises as aforesaid."
The defendants appeared and removed the cause to the Circuit
Court of the United States for the District of Connecticut, and
there pleaded to the jurisdiction of the court, and prayed
"judgment whether the honorable Pierpont Edwards, District Judge
of the District of Connecticut holding said court, there being no
justice of the Supreme Court of the United States present in court,
will have cognizance of the said cause, because they say that, by
the law of the United States, the Circuit Court of the Second
Circuit in the District of Connecticut shall consist of the Justice
of the Supreme Court residing in the third circuit and the District
Judge of the District of Connecticut, and that when the said law
was enacted,
viz., on 3 March, 1803, the Honorable William
Paterson was the only Justice of the Supreme Court residing in the
said Third Circuit, and that he died on or about 10 September last
past,
Page 8 U. S. 422
and that there is not now, nor hath there been, since the death
of the said Paterson, any Justice of the Supreme Court residing in
the said third circuit; and there hath not been by the Supreme
Court of the United States, or by the President of the United
States, any allotment of a Chief Justice or an Associate Justice of
the Supreme Court of the United States to the said second circuit,
and this they are ready to verify,"
&c., which plea, upon general demurrer, was overruled and a
respondeas ouster awarded, whereupon the defendants
pleaded that they were, at the date of the deed,
"well seized and possessed of the said land, and had good right
to bargain and sell the same in manner as is alleged in the said
deed, and so they have kept and performed their said covenants, and
of this put themselves on the country . . . and the plaintiffs
likewise."
The verdict was for the plaintiffs, and damages assessed to
$27,497. The defendants moved in arrest of judgment because it
appears by the declaration that the said deed was executed, and the
lands lie in the State of Virginia, and because the declaration is
insufficient and will not support any judgment; but the motion was
overruled and judgment rendered on the verdict.
On the trial, a bill of exceptions was taken which stated that
the defendants claimed to be seized under a patent to them from the
Governor of Virginia dated March 20, 1795, and grounded on a survey
in favor of David Patterson by virtue of an entry, dated September
1, 1794, on sundry Treasury warrants to the amount of 150,000
acres, and completed on 8 September, 1794, which survey had been
assigned to the defendant, Pollard; whereupon the plaintiffs
offered to read in evidence copies of two surveys made for one
Wilson Carey Nicholas, by virtue of two entries made on the same 1
September, 1794, in the office of the same surveyor, one to the
amount of 500,000 acres and the other to the amount of 480,000
acres, the greater part of which laid in the County of Wythe, and
bounding on the land surveyed for Patterson, and that the said
survey for 500,000 acres purported to be completed on 9 September,
1794,
Page 8 U. S. 423
and that for 480,000 on the 10th of the same month, and that the
extent of all the lines of the said surveys was more than 320
miles, and offered to prove by Erastus Granger that the nearest
part of the said lands to the office of the surveyor of Wythe
County was distant therefrom two days' journey and that a surveyor
could not, in that county, survey a line longer than seven miles in
a day, and that he (Erastus Granger) had surveyed the land surveyed
for Patterson and found marked trees only for about three or four
miles from the starting point of the survey, and two or three only
of the first corners mentioned in the survey, and that the streams
ran in opposite directions to those laid down in the plot, which
testimony of the said Granger was offered to prove that Patterson's
survey was fraudulent, and not made conformably to the laws of
Virginia, and the plaintiffs further offered to prove by the
testimony of the said Granger that there were prior claims upon the
land in question to the amount of upwards of 90,000 acres. It was
admitted that Granger was not a sworn surveyor. The defendants
objected to the above evidence, but the court overruled the
objection and suffered it to go to the jury.
The defendants sued out their writ of error to this Court, and
the errors assigned were,
1. That the plea to the jurisdiction ought to have been
allowed.
2. That the evidence stated in the bill of exceptions ought not
to have been admitted.
3. That the declaration is insufficient.
4. That the title of the land could not be tried in
Connecticut.
5. That the circuit court had not jurisdiction, the plaintiffs
being citizens of Massachusetts and Connecticut and the defendants
citizens of Virginia, not found in the District of Connecticut.
Page 8 U. S. 424
6. That the judgment ought to have been rendered for the
defendants.
Page 8 U. S. 428
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
follows:
In this case, objections have been made to the jurisdiction of
the circuit court and to the proceedings in that court.
The point of jurisdiction made by the plaintiffs in error is
considered as free from all doubt. By appearing to the action, the
defendants in the court below placed themselves precisely in the
situation in which
Page 8 U. S. 429
they would have stood had process been served upon them, and
consequently waived all objections to the nonservice of process.
Were it otherwise, the duty of the circuit court would have been to
remand the cause to the state court in which it was instituted, and
this Court would be bound now to direct that proceeding. As little
foundation is there for the exception taken to the manner in which
the circuit court was constituted. That court consists of two
judges, any one of whom is capable of performing judicial duties.
So this Court consists of seven judges, any four of whom may act.
It has never been supposed that the death of three of the judges
would disqualify the remaining four from discharging their official
duties until the vacant seats of their departed brethren should be
filled. There is nothing in the peculiar phraseology of that part
of the Judicial Act which establishes the circuit courts that
requires a different construction of the words authorizing a single
judge to hold those courts, from what is usually given in other
cases, to clauses authorizing a specified number of justices to
constitute a court.
The exceptions taken to the proceedings of the circuit court are
more serious. These are,
1. To the pleadings.
2. To the opinions of that court, admitting certain testimony in
support of the action.
The objections to the pleadings are
That the different parts of the declaration are repugnant to
each other, and that the declaration is itself insufficient as the
foundation of a judgment.
In deciding on so much of this objection as depends on the laws
of Connecticut, this Court would certainly be guided by the
construction given by that state to its own statute, and if it was
indispensably necessary now to decide that question, the evidence
in favor of the construction maintained by the defendants in error
would seem to preponderate.
Page 8 U. S. 430
Another objection taken to the declaration is that it ought to
have alleged a disseizin of the plaintiffs below in order to enable
them to maintain their action.
On this part of the case, the Court can only consider whether
the declaration in itself, unconnected with the testimony which was
adduced to support it, is so radically defective that a judgment
cannot be rendered on it. This leads to the inquiry whether the
covenant of the vendors can be broken, as stated in the
declaration, although no eviction has taken place, and the Court is
of opinion that it may be so broken. 9 Co. 60.
The covenant is that the vendor is seized in fee of the premises
which he sells and conveys. Suppose the fact to be that he had no
title nor pretense of title to those premises; that he had conveyed
lands for which he had never received a patent or a title of any
kind. Could it be said that his covenant that he was seized in fee
remained unbroken until the real proprietor should think proper to
eject the vendee? This question, in the opinion of the Court, must
be answered in the negative. The testimony, which would be
sufficient to establish the breach assigned, may be a subject for
serious consideration, but on the sufficiency of the breach as
assigned to support a judgment, there is no doubt.
The exceptions to the testimony admitted in the circuit court
consists of two parts.
1st. To the admission of certain copies of surveys made for
Wilson Carey Nicholas, connected with the testimony of Erastus
Granger, describing the face of the country on which the surveys
purported to be made.
2d. To the admission of parol testimony to prove prior titles to
the lands conveyed in the deed on which this suit was
instituted.
1. The surveys of Wilson Carey Nicholas, and the explanatory
testimony of Granger, were introduced for the purpose of showing
that the patent for the lands sold by Pollard and Pickett was void,
because it issued on a
Page 8 U. S. 431
plat representing a survey which, in point of fact, could not
have been made.
In examining this exception, it becomes proper to inquire what
was the real issue between the parties.
The plaintiffs below averred in their declaration that the
defendants were not seized and possessed of any estate whatever in
the land and premises nor in any part thereof, nor had they or
either of them good right and lawful authority to sell and convey
the same. The defendants in their plea do not set forth their
title, but say generally that they were seized of the land sold and
conveyed by them and had good right to sell and convey the same as
is expressed by their deed. On this plea an issue is tendered which
is joined by the plaintiffs.
To prove that the survey on which the patent granting the lands
to the defendants was issued could not have been made, the
plaintiffs produced two other surveys made by the same person for
Wilson Carey Nicholas, which were said to be completed only two
days succeeding the completion of the survey of the defendants,
which three several surveys could not possibly have been made in
the time intervening between the entries in the surveyor's office
and the day on which they are alleged to have been completed,
whence the jury might conclude that the survey of Pollard and
Pickett was not made.
The surveyor was a sworn officer, and his survey was returned
upon oath. This is an attempt to invalidate the evidence derived
from his official return by a particular fact which has no relation
to the cause before the court and with which the parties to this
controversy have no connection. Had it even appeared that the
copies offered in evidence were authenticated, they would on this
account have been inadmissible.
This whole testimony is inadmissible on other ground. Were it
even true that this patent is voidable if the surveyor had not run
round all the lines of the land, a
Page 8 U. S. 432
point not yet established, it cannot be deemed absolutely void
-- it cannot be deemed a mere nullity. While it remains in force,
it is a valid title and vests the fee simple estate in the
patentee. In this action and on the trial of this issue, the
question whether the patent be voidable by Virginia or not is not
properly examinable. Testimony, therefore, tending to establish
that point is irrelevant and inadmissible.
2. But had the court entertained any doubt on this point, the
second part of the exception would be clearly decisive with regard
to this judgment.
Parol testimony is admitted to show prior claims to the land in
controversy. The defendants in error attempt to defend the
admission of this testimony by supposing it auxiliary to other
testimony which had previously established the validity of those
claims, and that this witness was only adduced to show that those
claims covered this land. Had the fact supported the argument, a
private
ex parte survey would have been a very improper
mode of establishing it; but the language of the exception excludes
that construction of the opinion which the counsel for the
defendants in error would put upon it. The proof offered and
admitted is not that those particular titles which were exhibited
and proved to the court covered the land conveyed by Pollard and
Pickett, but "that there were prior claims upon it to the amount of
upwards of ninety thousand acres." The prior claims rest upon the
oath of the witness. If those claims were valid, their validity was
established by his testimony, which cannot be tolerated on any
legal principle; if they were mere claims, not good titles, they
ought not to have been stated to the jury. They were irrelevant to
the point in issue.
Upon the whole, the Court is unanimously of opinion that the
circuit court erred in permitting the copies of surveys made for
Wilson Carey Nicholas and the testimony of Erastus Granger to go to
the jury for the purposes mentioned in the bill of exceptions,
and
Page 8 U. S. 433
that the judgment of the circuit court must on that account be
reversed and the cause remanded for a new trial.
Judgment reversed.