A witness swore that she resided in Petersburg, Virginia, and
that Bishop Madison resided in Williamsburg, Virginia; that while
she resided in Petersburg, she had seen Bishop Madison, and was
acquainted with his daughter only by report; that she never had
seen her or Mr. Scott, but recollects to have heard of their
marriage in Petersburg, as she thought, before the death of her
father; that she could not state from whom she beard the report,
but that she had three cousins who went to college at the time that
she lived in Petersburg, and had no doubt that she had heard them
speak of the marriage; that she heard of the marriage of Miss
Madison before her own marriage, as she thought, which was in 1810;
that she was, as she believed, in 1811, in Williamsburg, and
was
told that Mr. Madison was dead.
Held that so much of
this evidence as goes to prove the death of Mr. Madison was
admissible on the trial and ought not to have been excluded by the
court.
A patent was issued by the Governor of Kentucky for a tract of
land containing eighteen hundred and fifty acres by survey,
&c., describing the boundaries. The patent describes the
exterior lines of the whole tract, after which the following words
are used,
"including within the said bounds five hundred and twenty-two
acres entered for John Preston, four hundred and twenty-five acres
for William Garrard; both claims have been excluded in the
calculation of the plot with its appurtenances,"
&c. Patents of this description are not infrequent in
Kentucky. They have always been held valid so far as respected the
land not excluded, but to pass no legal title to the land excluded
from the grant. The words manifest an intent to except the lands of
Preston and Garrard from the patent. The government did not mean to
convey to the patentee lands belonging to others by a grant which
recognizes the title of these others. If this Court entertained any
doubt on this subject, those doubts would be removed by the
construction which it is understood has been put on this patent by
the court of the State of Kentucky.
The defendants claimed under a patent issued by the Governor of
Kentucky on 3 January, 1814, to John Grayham, and two deeds from
him, one to Silas Ratliffe, one of the defendants, dated in August,
1814, for one hundred acres, the other to Thomas Owings, another
defendant, for four hundred acres, dated 25 March, 1816, and gave
evidence conducing to prove that they and those under whom they
claimed had a continued possession by actual settlement more than
seven years next before the bringing of this suit. The court
instructed the jury that if it believed from the evidence that the
defendants' possession had been for more than seven years before
the bringing of the suit, that the act, commonly called the seven
years limitation act of Kentucky, passed in 1809, was a bar to the
plaintiffs' recovery; unless they found that the daughter of the
patentee, holding under a patent from the State of Virginia, was a
feme covert when her father, the patentee, died, or was so
at the time the defendants acquired their titles by contract or
deed from John Grayham, the
Page 30 U. S. 82
patentee under the Governor of Kentucky. The words "at the time
the defendants acquired their title by contract or deed from the
patentee, John Grayham" can apply to those defendants only who did
so acquire their title. The Court cannot say this instruction was
erroneous.
On 2 April, 1825, the plaintiffs commenced an action of
ejectment against the defendants, asserting a title and right of
entry in and to eighteen hundred and fifty acres of land patented
to their ancestor, James Madison, by the Commonwealth of Kentucky.
The grant was dated August 8, 1798, and was in consideration of
sundry land office treasury warrants issued by the State of
Virginia, and a survey bearing date 26 December, 1796, founded on
an entry made prior to 1 June, 1792. At May term, 1828, a verdict
and judgment were rendered for the defendants.
On the trial, the plaintiff gave in evidence the patent to James
Madison and evidence conducing to prove the boundaries thereof, and
that the defendants resided in said bounds at the commencement of
the suit.
The patent recites that in virtue of three land office treasury
warrants &c., "there is granted unto the Reverend James Madison
a certain tract or parcel of land containing eighteen hundred and
fifty acres by survey, &c.," and describes the boundaries
thereof,
"including within said lands five hundred and twenty-two acres
of land entered for John Preston, four hundred and twenty-five
acres for William Garrard; both claims have been excluded in the
calculation of the plot with its appurtenances,"
&c.
They also proved by James Harvee that he had known Bishop James
Madison and his daughter Susan, the wife of one of the plaintiffs
in error. He stated that he had understood Susan had married Mr.
Scott, but he had never seen him; that Bishop Madison was dead, and
he supposed died in 1812. N. B. Beal, another witness, testified
that he had known Bishop Madison, had been to school to him, and he
was well acquainted with his daughter Susan Madison, and with James
C. Madison, his son, the lessors; they were the only children of
Mr. Madison living at his death; that he could not say when Bishop
Madison died, but he thought about twenty
Page 30 U. S. 83
years prior to 1828; that in 1818 he was at the house of Mr.
Scott, in Virginia, saw Mrs. Scott, and they were then living as
man and wife.
Mrs. Eppes swore that she resided in Petersburg, Virginia, and
that Bishop Madison resided in Williamsburg, Virginia; that while
she resided in Petersburg, she had seen Bishop Madison, and was
acquainted with his daughter only by report; that she had never
seen her or Mr. Scott, but recollects to have heard of her marriage
with Mr. Scott before the death of her father; that she had heard
of Miss Madison's marriage before her own marriage, which was in
1910; that she could not tell from whom she heard the report, but
she had three cousins who went to college in Williamsburg at the
time that she lived in Petersburg, and had no doubt that she had
heard them speak of the marriage; that she was, as she believed, in
1811 in Williamsburg, and was told that Mr. Madison was dead.
The defendants gave in evidence the patent to John Grayham,
assignee of John Preston, issued by the Governor of Kentucky on 13f
January, 1814, for fourteen hundred and forty-five acres of land; a
deed from John Grayham to Silas Ratliffe, for one hundred acres by
metes and bounds, dated 12 August, 1814; a deed from John Grayham
to Thomas Owings, for four hundred acres, dated 2 March, 1816. On
the trial, the counsel for the plaintiffs took three bills of
exceptions to the opinion of the court, the particulars of which
are stated more at large in the opinion of this Court.
The first exception was to the instruction of the court of the
jury that if the plaintiffs did not show to their satisfaction that
the defendants resided within the plaintiffs' grant and outside of
the land claimed of Preston and Garrard, they ought to find for the
defendants. This bill of exception also set forth an objection by
the plaintiffs' counsel to the ruling of the court as to the mode
by which the location and survey should have been made.
The second bill of exceptions stated that the plaintiffs moved
the court to instruct the jury that the seven years possession of
the defendants was no bar to the plaintiffs' recovery, which the
court overruled, and it instructed the jury that
Page 30 U. S. 84
if it believed from the evidence that the defendants had been
more than seven years in possession next before the bringing the
action, that the seven years possession law of Kentucky, of 1809,
was a bar to the plaintiffs' recovery unless the jury should find
that Susan Madison was a
feme covert when her father died
and when the defendants acquired title under the patent of John
Grayham.
The third bill of exceptions stated that the court, on the
motion of the counsel of the defendants, overruled the evidence of
Mrs. Eppes.
The plaintiffs prosecuted this writ of error.
Page 30 U. S. 85
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
The plaintiffs claimed title as heirs of the Reverend James
Madison, deceased, under a patent issued to him by the Governor of
Kentucky on 8 August, 1798. A verdict and judgment having been
rendered for the defendants, the plaintiffs have brought the cause
into this Court by writ of error. The case depends on several bills
of exceptions taken to certain opinions given by the court at the
trial of the cause.
The plaintiffs gave in evidence the patent to their ancestor. It
grants to the Reverend James Madison a certain tract or parcel of
land containing eighteen hundred and fifty acres by survey,
&c., and "bounded as follows." It then describes the exterior
lines of the whole tract, after which the following words are
used:
"including within said bounds five hundred and twenty-two acres
of land entered for John Preston, four hundred and twenty-five
acres for William Garrard; both claims have been excluded in the
calculation of the plot with its appurtenances, &c."
They then gave evidence conducing to prove the death of the
grantee before the institution of the suit; that the plaintiffs
Susannah and James C. were his heirs at law, and that the plaintiff
Susannah had intermarried with the plaintiff Robert G. Scott. They
then introduced Mrs. Eppes as a witness, who swore that she resided
in Petersburg, Virginia, and that Bishop Madison resided in
Williamsburg, Virginia; that while she resided in Petersburg, she
had seen Bishop Madison, and was acquainted with his daughter only
by report; that she had never seen her or Mr. Scott, but recollects
to have heard of her marriage in Petersburg, as she thought, before
the death of her father; that she could not state from whom she
heard the report, but she had three cousins who went to college at
the time that she lived in Petersburg, and had no doubt that she
heard them speak of the marriage; that she heard of the marriage of
Miss Madison before her own marriage, as she thought, which was in
1810; that she was,
Page 30 U. S. 86
as she believed, in 1811 in Williamsburg, and was told that Mr.
Madison was dead.
On the motion of the defendants, the court excluded this
testimony as incompetent, and the counsel for the plaintiffs
excepted to this opinion.
In considering this exception, some diversity of opinion has
prevailed in this Court with respect to that part of it which
related to the time of the intermarriage between the plaintiffs,
Robert G. Scott and Susan his wife. Some of the judges think that
the evidence given by Mrs. Eppes respecting the time, as well as
that respecting the fact of intermarriage, comes within the general
rule excluding hearsay testimony, which was laid down by this Court
in the case of
Queen v.
Hepburn, 7 Cranch 290. That rule is
"that hearsay evidence is incompetent to establish any specific
fact, which fact is in its nature susceptible of being proved by
witnesses who speak from their own knowledge."
Others think that the fact of the marriage being established by
other testimony, the circumstance that this fact was communicated
to the witness before another event took place, becomes itself a
fact and is evidence that the marriage was anterior to that other
event. It becomes unnecessary to decide on this principle, because
we are all of opinion that so much of the testimony of Mrs. Eppes
as goes to prove the death of Mr. Madison was admissible, and ought
not to have been excluded.
On the motion of the defendants, the court also instructed the
jury
"that if the plaintiffs did not show to their satisfaction that
the defendants resided within the plaintiff's grant and outside of
the land claimed of Preston and Garrard, they ought to find for the
defendants."
An exception was taken to this opinion, and the plaintiffs
contend that it is erroneous because the grant comprehends all the
land within the exterior lines of the survey, and that the
exception of the equitable claims of Preston and Garrard did not
impair the legal effect of the grant, but subjected the grantee to
the equitable demands of those claimants.
Patents of this description are not infrequent in Kentucky. They
have been always held valid so far as respected the land not
excluded, but to pass no legal title to the land excepted from the
grant. The plaintiff does not controvert this general
Page 30 U. S. 87
principle, but contends that the peculiar language of this grant
forms an exception to the general rule, and exempts this patent
from its operation. The language is that the lands entered for John
Preston and William Garrard are included within the same bounds,
but "both claims have been excluded in the calculation of the plot,
with its appurtenances, &c." We think these words manifest an
intent to except the lands of Preston and Garrard from the patent.
The government could not mean to convey to Madison lands belonging
to others by a grant which recognizes the title of those others. If
we entertained doubts on this subject, those doubts would be
removed by the construction which we understand the courts of the
state have put on this very patent.
The defendants claimed under a patent issued by the Governor of
Kentucky to John Grayham on 3 January, 1814, and showed two deeds
from John Grayham, one to Silas Ratliffe one of the defendants for
one hundred acres of land, dated 12 August, 1814, the other to
Thomas Owings, also a defendant, for four hundred acres of land,
dated 25 March, 1816. They also gave evidence conducing to prove
that they and those under whom they claimed had a continued
possession by actual settlement more than seven years next before
the bringing this suit. The plaintiffs then moved the court to
instruct the jury that seven years possession, as aforesaid, was no
bar to the plaintiffs' recovery, but the court overruled the motion
and instructed the jury that if it believed from the evidence that
the plaintiffs had been more than seven years in possession next
before the bringing the action, that the act, commonly called the
seven years limitation act, of Kentucky, passed in 1809, was a bar
to the plaintiffs' recovery unless the jury should find that Susan
Madison was a
feme covert when her father, the patentee,
died or was so at the time the defendants acquired their titles by
contract or deed from the patentee, John Grayham.
The plaintiffs excepted to this instruction.
Their counsel admits the constitutionality of the act of
limitations referred to in the opinion of the court, and that it is
a bar to the action as to those defendants who show title under
John Grayham, but insists that only two of the defendants
Page 30 U. S. 88
show such title, and that the plaintiffs are entitled to
judgment against the others.
There is no question respecting the law as applicable to the
fact, but some doubt exists respecting the fact. It is understood
to be settled in Kentucky that their limitation act of 1809
protects those only who are connected with a patent from government
by paper title, and the record shows conveyances from Grayham to
Ratliffe and Owings only; but it cannot escape us that the object
of the plaintiffs' motion and exception was to bring into review
and question the constitutionality of the act of 1809. He therefore
does not discriminate between those who have and those who have not
title. His motion comprehends all the defendants. The instruction
given by the judge is also in general terms, obviously not
contemplating any difference of situation or right between the
several defendants. We find expressions in the conclusion of the
instruction leading to the opinion that in fact there was no
distinction between the defendants. After declaring that the
statute was a bar, the judge adds
"unless the jury should find that Susan Madison was a
feme
covert when her father, the patentee, died, or was so at the
time the defendants acquired their titles by contract or deed from
the patentee, John Grayham."
The words "at the time the defendants acquired their titles by
contract or deed from the patentee, John Grayham," can apply to
those defendants only who did so acquire their title. The language
of the judge cannot be construed to indicate that the conveyance to
Ratliffe and Owings could avail those who did not claim under them.
The defendants might all claim under them. Some confusion
undoubtedly exists in the statement of the fact, both in the motion
and in the instruction, but we think both may be fairly understood
as applying only to defendants claiming under John Grayham. We
cannot say that this instruction is erroneous.
The judgment is reversed for error in the entire exclusion
of the testimony of Mrs. Eppes, and the cause is to be remanded
with instructions to award a venire facias de novo.
This cause came on to be heard on the transcript of the
Page 30 U. S. 89
record from the Circuit Court of the United States for the
Seventh Circuit and District of Kentucky and was argued by counsel.
On consideration whereof this Court is of opinion that there is
error in the proceedings and judgment of the said circuit court in
this that the testimony of Mrs. Eppes, a witness in the said cause,
was totally excluded, whereas the same ought to have been admitted
so far as it conduced to prove the death of James Madison, the
ancestor of the plaintiffs. Therefore it is considered, ordered,
and adjudged by this Court that the said judgment be, and the same
is hereby reversed and annulled: and that the cause be and the same
is hereby remanded to the said circuit court with directions to
award a
venire facias de novo.
