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. "
Page 30 U. S. 351
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
Page 30 U. S. 354
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
Page 30 U. S. 355
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
Page 30 U. S. 357
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.
