The act of the Legislature of Kentucky, passed in 1796,
respecting conveyances reduces into one all the laws previously
existing on the subject of recording conveyances of land. That act
does not create a right to convey property which any individual may
possess, but restrains that right by certain rules, which it
prescribes and which are deemed necessary for public security.
The original right to convey property remains unimpaired except
so far as it is abridged by that statute.
Under that statute, the only requisites to a valid conveyance of
lands are that it shall be in writing and shall be sealed and
delivered.
The acknowledgment and the proof which may authorize the
admission of the deed to record and the recording thereof are
provisions which the law makes for the security of creditors and
purchasers. They are essential to the validity of the deed as to
persons of that description, not as to the grantor. His estate
passes out of him and vests in the grantee, as far as respects
himself, as entirely if the deed be in writing, sealed, and
delivered, as if it be also acknowledged or attested and proved by
three subscribing witnesses and recorded in the proper court. In a
snit between them, such a deed is completely executed, and would be
conclusive although never admitted to record nor attested by any
subscribing witness. Proof of sealing and delivering would alone be
required, and the acknowledgment of the fact by the party would be
sufficient. proof of it.
If the original deed remained in existence, proof of the
handwriting, added to its being in possession of the grantee,
would, it is presumed, be
prima facie evidence that it was
sealed and delivered. No reason is perceived why such evidence
should not be as satisfactory in the case of a deed as in the case
of a bond. Where the deed is lost, positive proof of the
handwriting is not to be expected. The grantee must depend on other
proof.
The words of the first section of the statute, declaring
"that no estate of inheritance in lands, &c., shall be
conveyed from one to another unless the conveyance be declared by
writing, sealed and delivered, nor shall such conveyance be good
against a purchaser for valuable consideration not having notice
thereof or any creditor unless the same writing be
acknowledged,"
&c., can apply only to purchasers of the title asserted by
virtue of the conveyance, and to creditors of the party who has
made it. They protect such purchasers from a conveyance of which
they had no notice, and which, if known, would have prevented their
making the purchase, because it would have informed them that the
title was bad, that the vendor had nothing to sell. But the
purchaser from a different person of a different title, claimed
under a different patent, would be entirely unconcerned in the
conveyance. To him it would be entirely unimportant whether this
distinct conflicting title was asserted by the original patentee,
or by his vendor. The same general terms are applied to creditors
and to purchasers, and the word "creditors" can mean only the
creditors of the vendor.
Page 31 U. S. 125
What should be considered sufficient proof of the loss of a deed
to entitle the person holding under it to read a copy of it in
evidence, and what was sufficient proof of the execution of the
original deed to entitle it to be read in evidence to the jury.
A possession taken under a junior patent, which interferes with
a senior patent, the lands covered by which are totally unoccupied
by any person holding or claiming under it, is not limited to the
actual enclosure, but is coextensive with the boundaries claimed
under such junior patent.
A count in the declaration in an ejectment on a demise from a
different party asserting a different title is not distinguishable,
so far as respects the act of limitation, from a new action.
The construction of the act of limitations that if adverse
possession be taken in the lifetime of the ancestor, and be
continued for twenty years, and for ten years after the death of
the ancestor, no entry having been made by the ancestor of those
claiming under him, the entry is barred, is established by the
decisions of this Court, as well as of the courts of Kentucky.
On 8 March, 1825, Stephen Sicard, a citizen of Pennsylvania,
commenced his actions of ejectment in the Circuit Court for the
District of Kentucky against Jesse Davis and others, and against
John Cecil, Robert Smithers, and others for the recovery of 6,680
acres of land, or parts of the same. Those who were in possession
of the lands were admitted as defendants, each for himself, and
pleaded not guilty. In the progress of the case, the plaintiff was
twice nonsuited, and the nonsuits were set aside. Nancy Davis,
after the death of the husband, became, on motion, a party to the
suit.
The demise in the declaration was stated to have been made by
Stephen Sicard on 30 January, 1815. Afterwards, at November term,
1821, upon motion of the plaintiff, leave was given to amend the
declaration by laying a demise in the name of the heirs of the
original grantee of the land, Joseph Phillips, and from others to
whom the land had been conveyed, before the execution of the deed
under which Stephen Sicard acquired his title.
The cause was tried at the October term, 1824, of the circuit
court, and judgments were rendered for the defendants.
The plaintiff on the trial tendered a bill of exceptions in each
case, and the cases were brought up to this Court on writs of error
prosecuted by him.
Page 31 U. S. 126
The bills of exceptions stated the evidence given by the
plaintiff to maintain the suits to have been a patent dated 6 June,
1786, from the State of Virginia to Joseph Phillips, for 6,680
acres of land, under a survey dated 4 May, 1784, and proof that the
patent covered the land in controversy, and that the defendants
were in adverse possession at the commencement of the suit.
Also copies of deeds from Joseph Phillips to Benjamin Stephens,
and from Stephens to Samuel R. Marshall, and from Marshall to
Stephen Sicard.
The first deed from Joseph Phillips to Benjamin Stephens is
dated 11 October, 1797. The second deed from Stephens to Marshall
is dated 25 December, 1797. The deed from Marshall to Sicard is
dated 25 May, 1798, and these deeds covered the land in suit.
The plaintiff also proved that Phillips, Stephens, Marshall, and
Sicard always resided in Pennsylvania, New York, and New
Jersey.
It was proved that Phillips and Stephens died in the year 1798
or 1799.
The deed of Joseph Phillips to Benjamin Stephens is dated 16
October, 1797. On 8 June, 1798, it appears that Joseph Spencer, of
Philadelphia, appeared before Hillary Baker, Mayor of Philadelphia,
and deposed that he saw Joseph Phillips sign, seal, and deliver the
said deed; that he saw Samuel R. Marshall and John Phillips
severally subscribe their respective names thereunto, as witnesses
to the signing, sealing, and delivering the said deed.
This deed, thus proved, was recorded, together with the deeds
from Stephens to Marshall and from Marshall to Sicard, and were, on
23 April, 1803, certified by the clerk of the court of appeals to
have been recorded in his office in Frankford, in the State of
Kentucky.
The plaintiff, in order to introduce the copies of the deeds in
evidence and to prove the execution of the original deeds, produced
a paper signed by Alexander Parker stating that he had received,
February 9, 1803, or Mr. Stephen Sicard, three deeds for a certain
tract of land lying in Nelson County and State of Kentucky, on
Chaplin's Fork; the first, Joseph Phillips to Benjamin Stephens for
6,680
Page 31 U. S. 127
acres of land; the second, Benjamin Stephens to Samuel R.
Marshall for said land; the third, Samuel R. Marshall to Stephen
Sicard for same; also a certificate of Ralph Phillips concerning
the same, all to be recorded in the office at Frankfort in
Kentucky.
The plaintiff also read the deposition of Thomas Wallace, who
swore that in the summer of 1803, said Parker told him that he had
left at deponent's store, or with a Mr. Scott, his clerk, three
deeds, the property of Sicard, to be carried from Lexington to
Philadelphia by the deponent. He knows nothing of the papers, nor
does he recollect ever to have seen them; he has searched for them
among his papers, but is unable to find them.
Alexander Parker proved the receipt, and that he got the deeds
recorded in the Court of Appeals of Kentucky -- that he enclosed
said deeds directed to Mr. Sicard, Philadelphia, and left them with
Mr. Wallace's clerk, to be taken by Wallace to Sicard. These deeds
he believes were originals; he has never seen them since; he
believes Scott was dead; that for several years he paid the taxes
for said land, and saw the entry of said land for taxes in the
auditor's office.
Mary Powell, a witness, resident in Philadelphia, swore she is
the widow of Benjamin Powell and that she is fully satisfied from
what her husband told her that he did witness a deed to which
Benjamin Stephens and Robert Marshall were parties, or at least the
said Stephens was the seller therein; her husband died in 1820, and
that sometime before his death he went out with Stephen Sicard to
attest the fact of his, the said Powell's, having subscribed the
said deed as a witness to the execution thereof before a magistrate
or alderman.
Joseph Spencer, in his deposition stated that he has some
recollection of having witnessed an instrument of writing, supposed
by him to be a conveyance of land (but it was not known to him to
whom granted thereby) at the house of John Phillips, which he did
some twenty years before the date of his deposition (1822), and his
meeting again one or more of the family, he believes Dr Joseph
Phillips, in the City of Philadelphia, at the office of Hilary
Baker, to authenticate the handwriting to the instrument as a
witness to both, but he has no certain date in his memory.
Page 31 U. S. 128
And also the deposition of George Heyl of the City of
Philadelphia, notary public, who swears, that on 17 January, 1803,
at the request of Stephen Sicard, he made correct copies of the
deeds from Phillips to Stephens and Stephens to Marshall and from
Marshall to Sicard, that the copies made by him were from the
original deeds, and that he had certified the copies under his seal
of office. Sicard told him at the time he was going to send the
originals to Kentucky to be recorded, and assigned this as the
motive to have the copies made. The deeds had every appearance of
originals. That he had a knowledge of the signature of Hilary
Baker, the mayor of the city, before whom they were proved, and of
the seal of the city, and believed them genuine; that in the spring
of the year 1818, the said Stephen Sicard again called on him and
took his deposition before alderman Douglass at his (the
alderman's) office in this city, to the above fact, to which
deposition were annexed the said three notarial certified copies,
and a mandate from the Seventh Circuit Court of the United States
for the Kentucky District to the said Douglass to take the same --
all of which this deponent understood were transmitted to the said
court; and that the annexed two copies of deeds so certified by the
clerk of said court, to the best of his knowledge and belief, are
copies of his said notarial copies of his said originals.
The deposition of George Rozell, to prove the death of Joseph
Phillips in 1798, and who were his heirs at law, and also the
decease of Stephens, in the same or the following year, was
exhibited.
The defendants gave in evidence patents from the Commonwealth of
Kentucky of junior date to that read by the plaintiff, proved the
boundaries of those junior grants and that they included the
defendants, and gave evidence that they had settled under faith of
those junior patents, and held adversely to the patent offered in
evidence by the plaintiff. On motion of the defendants, the court
rejected the copies of the deeds aforesaid from Phillips to
Stephens and from Stephens to Marshall and from Marshall to Sicard
because there was no proof of the execution of the deeds from
Phillips to Stephens or from Stephens to Marshall, so as to let in
copies of the original deeds.
Page 31 U. S. 129
The defendants then proved that in the year 1794 they had
adverse possession of the land in controversy, and had continued
ever since to hold it adversely accordingly. Whereupon the
defendants moved the court to instruct the jury, as follows:
1. That the plaintiff has given no evidence to support the first
count, upon the demise of Sicard, and none to support the demise
from any of the other lessors except from such as are heirs of
Joseph Phillips, the patentee.
2. That if the jury find from the evidence that the patents of
Joseph Phillips and William Loving do interfere and lap, as
represented on the connected plat, and that the defendants and
those under whom they hold did enter, claiming under said Loving's
survey, and took the first possession within the said interference,
the said patent of Joseph Phillips being (at the date of such entry
and possession taken under Loving's patent) unoccupied by any
person holding or claiming under said Phillips' patent, then and in
that case the possession of the defendants so taken was not limited
to their actual enclosure, but was coextensive with the boundaries
by which they claimed.
3. That if the jury find from the evidence that the possession
of the lands in controversy was taken in the lifetime of Joseph
Phillips, the ancestor, of the lessor of the plaintiff, and
adversely to said Phillips, and that the defendants and those under
whom they hold have continued to hold adversely to said Phillips,
the ancestor and his heirs, ever since and for more than twenty
years before 17 January, 1822, when the second count in the
declaration was filed, and shall moreover find that said ancestor
Joseph Phillips died more than ten years before the said 17
January, 1822, when the second count was filed, then the said
lessors, the heirs of Joseph Phillips, are barred by the statute of
limitations.
The circuit court gave these instructions to the jury on the
prayer of the defendants.
Page 31 U. S. 130
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is a writ of error to a judgment in ejectment brought by
the plaintiffs in error against the defendants in the Court of the
United States for the Seventh Circuit and District of Kentucky. The
declaration was delivered to the defendants in March, 1815. The
declaration contains a single count on the demise of Stephen
Sicard.
In November term, 1821, the plaintiff obtained leave to
Page 31 U. S. 131
amend his declaration by laying a demise in the names of the
heirs of the original grantee of the commonwealth or intermediate
grantees, which amended declaration was filed. The issues were
joined in the usual form, and a jury sworn who found a verdict for
the defendants on which judgment was rendered by the court.
At the trial, the plaintiff gave in evidence to the jury the
patent to Joseph Phillips, and proved that it covered the land in
controversy and that the defendants were in adverse possession at
the time of the commencement of this suit. He also offered in
evidence copies of deeds which purported to convey the title from
the patentee to Benjamin Stephens, from Stephens to Samuel Robert
Marshall, and from Marshall to the plaintiff. The deed from
Phillips to Stephens dated 16 October, 1797, is attested by three
subscribing witnesses, and the deed from Stephens to Marshall,
dated 25 December, 1797, is attested by two subscribing witnesses.
Each deed was proved by one of the subscribing witnesses thereto in
June, 1798, before Hilary Baker, Mayor of the City of Philadelphia,
who gave his official certificate thereof in the usual form. The
deed from Marshall to the plaintiff Sicard, dated 25 May, 1798, is
attested by two subscribing witnesses, and is acknowledged by the
grantor before the Mayor of Philadelphia in July, 1798, who has
given his official certificate thereof. These deeds were admitted
to record on this testimony in April, 1803, in the Court of Appeals
in Kentucky.
To prove the loss of the originals, the plaintiff produced the
receipt of Alexander Parker, dated 9 February, 1803, acknowledging
the receipt of the said deeds for the purpose of being recorded in
the office at Frankfort in Kentucky; also the affidavit of the said
Parker stating his receipt, and the purpose for which the deeds
were delivered to him, as also that he had caused them to be
recorded. Sometime after this, being admitted to record, he was
directed by Sicard to send them to him in Philadelphia. Sometime
before August, 1804, he applied to Thomas Wallace to carry them,
who undertook to do so and directed him to leave them with the
clerk of the said Wallace that evening. The affiant enclosed the
three deeds in a sheet of paper directed to the said Sicard,
Page 31 U. S. 132
which he delivered that evening to the said Wallace's clerk, he
believes William Scott, who promised to deliver them to the said
Wallace. The affiant has never seen them since, but has heard that
they were lost. He believes the deeds to have been originals. He
paid the taxes on said 6,680 acres of land for several years, and
saw it entered for taxation in the auditor's office. He believes
that the said William Scott departed this life twelve or fifteen
years ago. The plaintiff also produced the affidavit or deposition
of Thomas Wallace, who proved that Mr. Alexander Parker did say
that in the summer of 1803, he left at the store or delivered to a
young man (probably Mr. Scott) then living with the deponent sundry
papers said to be deeds, the property of the said Sicard, to be
carried from Lexington to Philadelphia by the deponent. He knows
nothing of the papers, nor does he recollect ever to have seen
them. He has searched for them among his papers, but cannot find
them. He verily believes they were not delivered to him.
The plaintiff also produced the deposition of Mary Powell, widow
of Benjamin Powell, one of the subscribing witnesses to the deed
from Benjamin Stephens to Samuel Robert Marshall, who deposed that
she understood from her husband that he had witnessed a deed from
Stephens to Marshall; that he had been dead about two years.
Sometime previous to his death he accompanied the plaintiff,
Sicard, for the purpose of attesting the fact of his having
subscribed the said deed as a witness, and from several
conversations which passed between the said Sicard and her husband
in her presence, she is convinced her husband had a perfect
recollection of having subscribed his name as a witness to the said
deed. Also the deposition of Joseph Spencer, the subscribing
witness to the deed from Phillips to Stephens, who proved the same
before the Mayor of Philadelphia in June, 1798, who says, that he
has some recollection of having witnessed an instrument of writing
supposed by him to be a conveyance of land, he knew not to whom
granted, at the house of Jonathan Phillips, deceased, of
Maidenhead, now Lawrence Township, Hunterdon County, State of New
Jersey, some twenty years ago or more (this deposition was taken in
April, 1822), and of his meeting again one or more of the family,
he believes Doctor Joseph Phillips of that place or
neighborhood
Page 31 U. S. 133
was one, in the City of Philadelphia at the office of Hilary
Baker, who was then mayor of the said city, to authenticate the
handwriting to the said instrument of conveyance as party or
witness or both, but has no certain date in his memory whereby he
can be more particular. Also the deposition of George Heyl, notary
public of Philadelphia, who says that he was called on in his
official capacity on 17f January, 1803, to certify and attest to
three several copies of original deeds, one from Joseph Phillips to
Benjamin Stephens, one from Stephens to Samuel Robert Marshall, and
the third from Marshall to Stephen Sicard, dated 25 May, 1798, all
for a tract of land lying and being, &c., containing 6,680
acres, and that he did, at the request of Stephen Sicard, examine
and compare the said three several copies with the original deeds
submitted to him by the said Stephen Sicard for that purpose, and
found them to be true and faithful copies of the same; that the
said deeds appeared to him in every respect originals, fair and
genuine papers, the parchment, ink, signatures, &c., wearing
that aspect. That the said Stephen Sicard told him at the time that
his motive for requiring notarial copies of said originals was that
he was going to send said originals to Kentucky to be recorded.
That the said deponent had a knowledge of the signature of Hilary
Baker, the mayor of the city, before whom they were proved, and of
the seal of the city, and believed them genuine; that in the spring
of the year 1818, the said Stephen Sicard again called on him and
took his deposition before alderman Douglass to the above fact, to
which deposition were annexed the said three notarial copies.
The notarial copies mentioned in the foregoing deposition agree
with the copies from the record of the Court of Appeals of
Kentucky.
The plaintiff also offered as a witness the clerk of the Court
of Appeals, who deposed that the deeds had been recorded by Thomas
S. Hinde, his deputy, now living beyond the reach of the process of
this court, but he recollected to have noticed them at the time,
and they had, so far as he recollected, every appearance of genuine
documents. The plaintiff also introduced Ralph Phillips, who
stated, that he was long acquainted with Joseph Phillips, and
Stephens, and Marshall, and he
Page 31 U. S. 134
heard them speak of the conveyance of the tract of land in
controversy as made by Phillips to Stephens, and by Stephens to
Marshall, many years ago, but he does not recollect to have seen
the deeds.
The defendants gave in evidence patents of the commonwealth of
junior date to that of the plaintiff, proved the boundaries of
those junior grants, and that they included the defendants, and
gave evidence that they had settled under faith of those junior
grants and held adversely to the patent offered in evidence by the
plaintiff.
On motion of the defendants, the court rejected the copies of
the deeds aforesaid from Phillips to Stephens, and from Stephens to
Marshall, and from Marshall to Sicard, because there was no proof
of the execution of the deeds from Phillips to Stephens or from
Stephens to Marshall, so as to let in copies of the original
deeds.
The defendants then proved that in the year 1794, they had
adverse possession of the land in controversy, and had continued
ever since to hold it adversely. Whereupon the defendants moved the
court to instruct the jury,
1. That the plaintiff has given no evidence to support the first
count on the demise of Sicard, and none to support the demise from
any of the other lessors except such as are heirs of Joseph
Phillips the patentee.
2. That if the jury finds from the evidence that the patents of
Joseph Phillips and William Loving do interfere and lap, as
represented in the connected plat, and that the defendants and
those under whom they hold did enter, claiming under said Loving's
survey, and took the first possession within the said interference,
the said patent of Joseph Phillips, being (at the date of such
patent and possession taken under Loving's patent) unoccupied by
any person holding or claiming under said Phillips' patent, then
and in that case the possession of the defendants so taken was not
limited to their actual enclosure, but was coextensive with the
boundaries by which they claimed.
3. That if the jury find from the evidence that the possession
of the lands in controversy was taken in the lifetime of Joseph
Phillips, the ancestor of the lessors of the plaintiff, and
adversely to said Phillips, and that the
Page 31 U. S. 135
defendants and those under whom they hold, have continued to
hold adversely to said Phillips, the ancestor, and his heirs ever
since, and for more than twenty years before 17 January, 1822, when
the second count in the declaration was filed, and shall moreover
find that said ancestor, Joseph Phillips, died more than ten years
before the said 17 January, 1822, when the second count was filed,
then the said lessors, the heirs of Joseph Phillips, are barred by
the statute of limitations, which instructions were given
accordingly, to each of which instructions as well in excluding the
deeds as in instructing the jury the plaintiffs excepted.
The first exception is to the refusal of the court to permit the
copies of deeds offered by the plaintiff to be given in evidence to
the jury. These copies were rejected "because there was no proof of
the execution of the deeds from Phillips to Stephens, or from
Stephens to Marshall." This objection would have applied to the
originals as strongly as to the copies; consequently we must
inquire whether the plaintiff offered such evidence of the
execution of the originals as is required by law.
In 1796, the Legislature of Kentucky passed a law respecting
conveyances, the first section of which enacts
"That no estate of inheritance or freehold or for a term of more
than five years in lands or tenements shall be conveyed from one to
another unless the conveyance be declared by writing, sealed and
delivered, nor shall such conveyance be good against a purchaser
for a valuable consideration not having notice thereof, or any
creditor, unless the same writing be acknowledged by the party or
parties who shall have sealed and delivered it, or be proved by
three witnesses to be his, her, or their act in the office of the
clerk of the court of appeals of a district court or in a court of
quarter sessions or county court in the manner prescribed by law or
in the manner hereinafter directed within eight months after the
time of sealing and delivering and be lodged with the clerk of such
court to be there recorded."
The third section enacts that
"If the party who shall sign and seal any such writing reside
not in this commonwealth, the acknowledgement by such party or the
proof by the number of witnesses requisite of the sealing and
delivering of the writing before any court of law or the mayor or
other chief
Page 31 U. S. 136
magistrate of any city, town, or corporation of the county in
which the party shall dwell, certified by such court, or mayor, or
chief magistrate in the manner such acts are usually authenticated
by them and offered to the proper court to be recorded within eight
months after the sealing and delivering shall be as effectual as if
it had been in the last mentioned court."
This act reduces into one the laws previously existing on this
subject. It does not create a right to convey property which any
individual may possess, but restrains that right by certain rules
which it prescribes and which are deemed necessary for the public
security. The original right to transfer property remains
unimpaired except so far as it is abridged by the statute.
How far does the statute restrain an individual in the exercise
of this general original right?
The words are
"That no estate of inheritance, &c., in lands or tenements,
shall be conveyed from one to another unless the conveyance be
declared by writing, sealed and delivered."
The only requisites, then, to a valid conveyance of an estate of
inheritance in lands are that it shall be in writing and shall be
sealed and delivered.
The statute proceeds,
"nor shall such conveyance be good against a purchaser for a
valuable consideration not having notice thereof or any creditor
unless the same writing be acknowledged,"
&c.
The acknowledgement or the proof which may authorize the
admission of the deed to record, and the recording thereof, are
provisions which the law makes for the security of creditors and
purchasers. They are essential to the validity of the deed as to
persons of that description, not as to the grantor. His estate
passes out of him and vests in the grantee, so far as respects
himself, as entirely, if the deed be in writing, sealed and
delivered, as if it be also acknowledged or attested and proved by
three subscribing witnesses and recorded in the proper court. In a
suit between them, such a deed is completely executed, and would be
conclusive although never admitted to record nor attested by any
subscribing witness. Proof of sealing and delivery would alone be
required, and the acknowledgement of the fact by the party would be
sufficient proof of it.
Page 31 U. S. 137
If the original deed remained in existence, proof of the
handwriting, added to its being in possession of the grantee,
would, it is presumed, be
prima facie evidence that it was
sealed and delivered. No reason is perceived why such evidence
should not be as satisfactory in the case of a deed as in the case
of a bond. But the deed is lost, and positive proof of the
handwriting is not to be expected or required. The grantee must
depend on other proof.
The deed purports to have been executed more than thirty years
past. The Mayor of Philadelphia, the person entrusted by law with
receiving and certifying the acknowledgement or proof of the deed,
has certified in legal form that it was proved to him by one of the
subscribing witnesses. Had it been also proved by the other two,
the probate would have been sufficient, not only as against the
party, but as against purchasers and creditors. It has remained
from the time of its execution until its loss in the possession of
those claiming title under it, and in the long course of time which
has elapsed since its alleged execution the grantor has never
controverted its existence nor set up any title to the property it
purported to convey. Parker, the agent of the plaintiff, respecting
this transaction, as is presumed, though not averred in terms from
the facts that he brought the deeds from Philadelphia, procured
them to be recorded and took measures for returning them to him;
says that he saw them entered for taxation in the auditor's office
and paid the taxes on them for several years. Samuel Robert
Marshall, the grantee of Stephens, and who conveyed the land
afterwards to Sicard by a deed regularly authenticated and
recorded, which recites the deed from Phillips, and conveys the
land with general warranty, is a subscribing witness to that
executed by Phillips. The notary, who at the instance of Sicard
took notarial copies before the deeds were transmitted to Kentucky
to be recorded, deposes that the appearance of the originals was
perfectly fair.
Add to these strong circumstances the testimony which after the
long lapse of time the plaintiff has been enabled to procure.
Phillips and Stephens have been long dead; Marshall has conveyed
the land to Sicard with a general warranty by a deed regularly
authenticated and recorded, and is of course, if alive,
disqualified as a witness. One witness deposes that he was
Page 31 U. S. 138
long acquainted with Joseph Phillips and Stephens and Marshall,
that he heard them speak of the conveyance of the tract of land in
controversy as made by Phillips to Stephens, and by Stephens to
Marshall. Joseph Spencer, the subscribing witness to the deed made
by Phillips, who proved its execution before the Mayor of
Philadelphia, has some recollection of having witnessed an
instrument of writing, supposed by him to be a conveyance of land,
at the house of Jonathan Phillips deceased, twenty years or more
before giving his deposition, and of meeting again one or more of
the family, he believes doctor Joseph Phillips was one, in the City
of Philadelphia at the office of Hilary Baker, mayor of the city,
to authenticate the handwriting to the said instrument of
conveyance as party or witness, or both. Although he does not
recollect the transaction with that precision which might be
expected from an interested party, he remembers as much as could be
expected after so long an interval from an unconcerned person, and
enough, we think, to satisfy a court, in connection with other
circumstances, that the deed to which he subscribed his name as a
witness was executed and is the deed a copy of which was offered by
the plaintiff. He remembers attesting an instrument of writing at
the house of Jonathan Phillips, which he believed to be a
conveyance of land; he remembers meeting some of the family, one of
whom was Joseph Phillips, at the office of Hilary Baker, Mayor of
Philadelphia, for the purpose of authenticating the same
instrument. This instrument was authenticated by him before the
mayor, as appears by his certificate. The deposition of the widow
of Benjamin Powell, too, is entitled to consideration.
We think that in a contest between Joseph Phillips and Stephen
Sicard, this testimony and these circumstances would have been held
sufficient to prove the execution of his deed and would have proved
that his title was conveyed by it.
If the title of Phillips was conveyed to Sicard, then Sicard
could assert that title in a court of justice as effectually as
Phillips might assert it unless the defendants were protected from
his claim by some provision of the statute. The first section,
after declaring that no estate of inheritance, &c., "in lands
or tenements shall be conveyed from one to another,
Page 31 U. S. 139
unless the conveyance be declared by writing, sealed and
delivered," adds,
"nor shall such conveyance be good against a purchaser for
valuable consideration, not having notice thereof, or any creditor
unless the same writing be acknowledged,"
&c.
These words, we think, can apply only to purchasers of the title
asserted by virtue of the conveyance and to creditors of the party
who has made it. They protect such purchasers from a conveyance of
which they had no notice and which, if known, would have prevented
their making the purchase, because it would have informed them that
the title was bad -- that the vendor had nothing to sell. But the
purchaser from a different person of a different title, claimed
under a different patent, would be entirely unconcerned in the
conveyance. To him it would be entirely unimportant whether this
distinct conflicting title was asserted by the original patentee or
by his vendee. The same general terms are applied to creditors and
to purchasers, and surely the word "creditors" can mean only
creditors of the vendor.
This construction of this part of the statute has, we believe,
been uniformly made.
A conveyance then in writing, sealed and delivered by the vendor
in each case, was sufficient to pass the title from Phillips to
Stephens and from Stephens to Marshall. The conveyance from
Marshall to Sicard is unexceptionable.
If the original deeds had been produced, their execution was, we
think, so proved that they ought to have been submitted to the
jury. If this be correct, it cannot be doubted that the copies were
admissible. The loss of the originals is proved incontestably, and
the truth of the copies is beyond question.
We think, therefore, that the court erred "in rejecting the
copies of the deeds from Phillips to Stephens, and from Stephens to
Marshall, and from Marshall to Sicard." Consequently the first
instruction to the jury, "that the plaintiff has given no evidence
to support the first count on the demise of Sicard," ought not to
have been given.
The second instruction, that a possession taken under a junior
patent which interferes with a senior patent, the lands covered by
which are totally unoccupied by any person holding or claiming
under it, is not limited by the actual enclosure,
Page 31 U. S. 140
but is coextensive with the boundaries claimed under such junior
patent is entirely correct, and conforms to the decisions of this
Court.
The third instruction is also correct. The second count in the
declaration, being on a demise from a different party asserting a
different title, is not distinguishable, so far as respects the bar
of the act of limitations, from a new action.
See Miller's
Heirs v. McIntyre, at this term. The construction
of the act of limitations that if adverse possession be taken in
the lifetime of the ancestor and be continued for twenty years and
for ten years after the death of the ancestor, no entry being made
by the ancestor or those claiming under him, the title is barred is
established by the decisions of this Court as well as of the courts
of Kentucky.
17 U. S. 4 Wheat.
213. This point may perhaps determine the cause ultimately in favor
of the defendants. But as this Court cannot know judicially that
the verdict of the jury was founded on the bar created by the
adverse possession of the defendants, and not on the want of title
in the plaintiffs, whose title deeds were excluded by the circuit
court, the judgment must be
Reversed and the cause remanded with directions to award a
venire facias de novo.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the 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 court in this, that the said court rejected
the copies of the deeds offered by the plaintiffs as evidence,
being of opinion that there was no proof of the execution of two of
them. Therefore it is considered by the court that the judgment of
the said circuit court be reversed and annulled and that the cause
be remanded to the said circuit court with directions to award a
venire facias de novo.
