Ejectment. A deed of indenture, duly executed, acknowledged and
recorded, was given is evidence by the defendant in an ejectment,
which purported to convey certain lots of ground in the City of
Washington, specifying the number of the lots, referring to the
title under which they were held by the grantor. The deed contained
the following exception:
"Except as hereinafter excepted, all those hereinafter mentioned
and described lots, squares, lands, and tenements situate in the
City of Washington in the District of Columbia which the said J.G.
and the said R.M. and J.N. were jointly interested in, each one
equal undivided third part, on the day of the date of the
indenture, 10 July, 1796."
Among the lots described in the conveyance were lots supposed to
be 239, described as those which J.G., the grantor, contracted for
with Uriah Forrest and Benjamin Stoddert by an agreement dated 15
July, 1794. The lot sued for was one of those included in a
conveyance made by Forrest and Stoddert to J.G. on 24 September,
1794. The exception in the deed states the lots which it purports
to apply to as "a square, number 5016," another
"square lying next to, and south of the said number 506, and all
the other ground lying next to, and south of the square last
aforesaid, the said square containing,"
&c., which are to remain the separate property of the
grantors, and also excepting all such squares, lots, lands, and
tenements as were conveyed or agreed to be conveyed by the parties
to the indenture, prior to 10 July, 1795.
Held that this
exception is valid, and that the burden of proof to show that the
lot for which the ejectment is brought is within the exception is
not upon the plaintiff in the action. That in many cases the burden
of proof is on the party within whose peculiar knowledge and means
of information the fact lies is admitted. But this rule is far from
being universal, and has many qualifications upon its
application.
In the case before the Court, the defendant has shown
prima
facie a good title to recover. The defendant sets up no title
in himself, but seeks to maintain his possession as a mere intruder
by setting up a title in third persons with whom he has no privity.
In such a case, it is incumbent upon the party setting up the
defense to establish the existence of such an outstanding title
beyond all controversy. It is not sufficient for him to show
that there may possibly be such a title. If he leaves it in
doubt, that is enough for the plaintiff. He has a right to stand
upon his
prima facie good title, and he is not bound to
furnish any evidence to assist the defense. It is not incumbent on
him negatively to establish the nonexistence of such an outstanding
title; it is the duty of the defendant to make its existence
certain.
Deeds for lands in the District of Columbia, executed by an
insolvent debtor under the insolvent laws of the State of
Pennsylvania and under and in conformity with the insolvent laws of
the State of Maryland, not having been enrolled in the general
court where the lands lie, are in a legal sense mere nullities, and
incapable of passing the lands described in them.
Page 31 U. S. 303
This was an ejectment instituted in May, 1818, by the plaintiff
in error, in the Circuit Court of the County of Washington, for the
recovery of a lot of ground in the City of Washington, number 17,
square 75. The case was subsequently removed to the County of
Alexandria, where the same was tried and a verdict and judgment
rendered for the defendant. The plaintiff prosecuted this writ of
error.
The plaintiff in error, James Greenleaf, held in fee simple
under a patent from the State of Maryland to William Langworth, and
a deed from Uriah Forrest and Benjamin Stoddert, a large number of
lots and squares of ground in the City of Washington. Afterwards,
on 13 May, 1796, he conveyed by deed of indenture to Robert Morris
and John Nicholson, in fee simple, certain of the said lots, which
are particularly described in the said instrument. The indenture
purports to convey the said lots, "except as is hereinafter
excepted;" and the exception, in a subsequent part of the same, is
in the following words:
"excepting, nevertheless, out of the lots, squares, lands and
tenements above mentioned all that square marked and distinguished
in the plot of the City of Washington by the number 506, and that
other square lying next to and south of the said number 506, and
all that other square lying next to and south of the square last
aforesaid, the said three squares containing in the whole about the
quantity of one hundred and sixtynine thousand and seventysix and
three quarters square feet, be the same more or less, which it is
agreed by all the parties to these presents shall be and remain the
sole and separate property of the said James Greenleaf, his heirs
and assigns, and excepting also all such squares, lots, lands, or
tenements as were either conveyed or sold, or agreed to be
conveyed, either by all or either them, the said James Greenleaf,
Robert Morris and John Nicholson, or any of their agents and
attorneys, to any person or persons whatsoever, at any time prior
to 10 July, 1795."
This deed was recorded in the City of Washington according to
the provisions of the laws of Maryland.
James Greenleaf having, on 10 March, 1798, applied to the
Supreme Court of the State of Pennsylvania, for the benefit of the
insolvent laws of that state, was discharged as an
Page 31 U. S. 304
insolvent debtor by that court on 31 March, 1798.
At the time of this discharge, he executed a conveyance of all
his estate, real, personal and mixed, to Robert Smith, Mordecai
Lewis, and James Yard, their heirs and assigns, for the benefit of
his creditors, agreeably to the provisions of the insolvent laws of
the State of Pennsylvania.
Subsequently, in March, 1800, on the application of the
creditors of Mr. Greenleaf, Thomas M. Willing, and Joseph S. Lewis
were substituted as the assignees of the insolvent, and they also
refusing to act, the court, on 12 March, 1804, appointed John
Miller, Jr., sole assignee of the estate and effects of Mr.
Greenleaf, and Robert Smith and James Yard, who survived Mordecai
Lewis, on 16 March, 1804, conveyed to John Miller, Jr., all the
estate and effects of the insolvent, which had been vested in them
by the deed executed by him at the time of his discharge.
On 9 February, 1799, James Greenleaf applied by petition to the
chancellor of the State of Maryland for the benefit of the
insolvent law of that state, passed in 1798, and he was discharged
on 30 August in the same year. As a part of the proceedings in the
case, the petitioner executed a deed conveying to a trustee named
by the chancellor all his property, real and personal, and all the
requirements of the laws of Maryland were complied with.
Annexed to the schedule of the property of the petitioner for
the benefit of the insolvent laws of Maryland is a statement that
all the property mentioned therein had been transferred by the
petitioner to assignees appointed under the insolvent laws of
Pennsylvania.
On the trial of the cause in the circuit court, the plaintiff
tendered two bills of exceptions.
The first bill of exceptions was as follows:
"On the trial of this suit, to maintain the issue on his part
joined on the first count in his declaration, the plaintiff gave in
evidence to the jury, a patent from the proprietors of the State of
Maryland, to William Langworth, dated 5 July, 1686, in these words
[stating the same], and proved that the tenement, wooden messuage,
and improvements in the
Page 31 U. S. 305
plaintiff's declaration mentioned, were comprehended within the
bounds of the said patent, and the legal title to the said
tenement, wooden messuage, and improvements was deduced from the
said patentee to plaintiff by divers mesne conveyances and by the
deed of 20 September, 1794, from Forrest and Stoddert to J.
Greenleaf, mentioned in the deed of 13 May, 1796, whereupon the
defendant, to show a title out of the plaintiff, gave in evidence
to the jury a deed from the said James Greenleaf to Robert Morris
and John Nicholson, dated 13 May, 1796 [stating the same], admitted
to have been executed by the said James Greenleaf, and offered no
other evidence. Whereupon the plaintiff's counsel prayed the court
to instruct the jury that the said deed, unaccompanied by any other
evidence, did not show such an outstanding title as was sufficient
to bar the plaintiffs recovering in this suit, which instruction
the court refused to give, to which refusal the plaintiff excepted
and prayed the court to sign and seal this, his bill of exceptions,
which is accordingly done this 5 December, 1829."
The second bill of exceptions stated that:
"On the trial of this suit, to sustain the issue on his part
joined, the plaintiff gave in evidence to the jury a patent from
the proprietor of the State of Maryland [stating the same], and the
legal title under the said patent is admitted by the defendant to
have been vested in the plaintiff by the said patent and by divers
mesne conveyances on 30 August, 1799. Whereupon, to prove a title
out of the said James Greenleaf, the defendant offered in evidence
to the jury the proceedings in the case of the said James
Greenleaf, and insolvent, before the chancellor of Maryland,
setting out the said proceedings, and an Act of the State of
Maryland of 1798, ch. 64. To the admission of which proceedings of
insolvency the plaintiff by his counsel excepted, but the court
overruled the said exception and permitted the said proceedings to
be read in evidence to the jury, and thereupon, on the prayer of
the counsel for the defendant, the court instructed the jury that
the said act of assembly, and proceedings in insolvency did show a
legal title out of the plaintiff, and did preclude a recovery in
this suit on the first count in the plaintiff's declaration."
"The plaintiff's counsel thereupon gave in evidence to the
jury
Page 31 U. S. 306
the proceedings in the case of the insolvency of the said James
Greenleaf in the Commonwealth of Pennsylvania in these words
[stating the same], and the conveyances therein mentioned, not
recorded in the State of Maryland, and prayed the court to instruct
the jury that under the operation of the said proceedings in
Maryland and Pennsylvania, the legal title to the premises in the
declaration mentioned, notwithstanding the said conveyances, was
not divested from the said James Greenleaf by anything by the
defendants so as aforesaid shown, which instruction the court
refused to give. To the admission of the proceedings as aforesaid
before the chancellor of Maryland and to the instruction of the
court given on the prayer of the defendant as to the effect thereof
and of the said act of assembly, and to their refusal to instruct
the jury as prayed by the plaintiff's counsel, the plaintiff, by
his counsel, excepted and prayed that this, his bill of exceptions,
may be sealed and enrolled, which was done accordingly. "
Page 31 U. S. 308
MR. JUSTICE STORY delivered the opinion of the Court.
The original action was an ejectment, brought in May, 1818, by
the plaintiff in error against the defendant in
Page 31 U. S. 309
error for a certain lot of ground, number 17, square 75, in the
City of Washington, and was founded upon demises. Upon the trial
(which was at December term, 1829), a verdict was found for the
defendant, upon which he had judgment. Two bills of exceptions were
taken at the trial on behalf of the plaintiff, and the questions
for the consideration of this Court grow out of the matter of those
exceptions.
The first bill of exceptions states that at the trial a title to
the premises in controversy was deduced from the State of Maryland
by mesne conveyances to James Greenleaf, the lessor of the
plaintiff, in September, 1794. Whereupon the defendant, to show a
title out of the plaintiff, gave in evidence to the jury a deed
from Greenleaf to Robert Morris and John Nicholson dated 13 May,
1796, the due execution of which was admitted, and offered no other
evidence. Whereupon the plaintiff's counsel prayed the court to
instruct the jury that the said deed, unaccompanied by any other
evidence, did not show such an outstanding title as was sufficient
to bar the plaintiff's recovery in the suit, which instruction the
court refused to give, to which refusal the plaintiff's counsel
excepted. And the question before this Court is whether this
exception is well founded.
The deed of Greenleaf to Morris and Nicholson purports to grant
to them in fee as tenants in common
"except as is hereinafter excepted, all those hereinafter
mentioned and described lots, squares, lands, and tenements situate
in the City of Washington, in the District of Columbia, wherein the
said James Greenleaf, and the said Robert Morris and John Nicholson
were jointly interested, in each one equal undivided third part, on
the day of the date of the above named articles of agreement [10
July, 1796],"
&c. It then proceeds to specify three squares and lots
contracted for by Greenleaf with the commissioners of the City of
Washington, and three thousand lots contracted for by Greenleaf as
agent of Morris, with the same commissioners, and about two hundred
and twenty lots, contracted for by Greenleaf with Daniel Carroll,
and about four hundred and twentyeight and a half lots contracted
for by Greenleaf with Notley Young, and then proceeds,
"and also all those lots situate in the said City of Washington,
supposed to be about two hundred and thirtynine and one quarter
Page 31 U. S. 310
in number, for which the said James Greenleaf contracted with
Uriah Forrest and Benjamin Stoddert by an agreement in writing,
bearing date, &c. [15 July, 1794]."
The lot sued for was one of these lots, and was included in a
conveyance made by Forrest and Stoddert to Greenleaf on 24
September, 1794. Several other parcels of lots are then specified,
and then comes the following exception:
"excepting, nevertheless, out of the lots, squares, lands, and
tenements above mentioned all that square marked and distinguished
in the plan of the said City of Washington by the number 506, and
that other square lying next to and south of the said number 506,
and all that other square lying next to and south of the square
last aforesaid, the said square containing . . . , which it is
agreed . . . shall be and remain the sole and separate property of
the said James Greenleaf and his heirs and assigns. And excepting
also all such squares, lots, lands, or tenements as were either
conveyed or sold or agreed to be conveyed either by all or either
of them, the said James Greenleaf, Robert Morris, or John
Nicholson, or any of their agents or attorneys, to any person or
persons whatsoever, at any time prior to the said 10 July, A.D.
1795."
It is observable that the granting part of the deed begins by
excepting from its operation all the lots, squares, lands and
tenements which are within the exceptions. The words are, "doth
grant . . . except as is hereinafter excepted, all those
hereinafter mentioned and described lots, squares, lands and
tenements" &c. In order, therefore, to ascertain what is
granted, we must first ascertain what is included in the exception,
for whatever is within the exception is excluded from the grant;
according to the maxim laid down in Co. Litt. 47a,
si quis rem
dat et partem retinet, illa pars quam retinet semper cum eo est, et
semper fuit.
It has been argued that the second clause in the exception is
utterly void for uncertainty, because it excepts "such squares,
lots, &c. as were either conveyed or sold, or agreed to be
conveyed," without stating to whom sold or conveyed or agreed to be
conveyed or giving any other description which would reduce them to
certainty. And it has been intimated that it is also void for
repugnancy because it is an exception of a part which had been
previously granted, and Co.Litt.
Page 31 U. S. 311
47a has been relied on in support of this objection, where it is
laid down that an exception of a thing certain out of a thing
particular and certain will be void, as if a man leaves twenty
acres, excepting one acre, the exception is void. Com.Dig. Fait, E.
7. But without stopping to inquire in what sense and to what extent
the rule thus laid down is law, it is sufficient to say that there
is no such repugnancy here, for the exception is not out of the
thing previously granted, but is incorporated into the very
substance of the granting clause.
As to the other exception, we do not think it is void for
uncertainty. It refers to things by which it may be made certain,
and
id certum est, quod certum reddi potest. No one will
doubt that the exception of squares and lots actually sold and
conveyed would be sufficiently certain, for they may be made
certain by reference to the deeds of conveyance. And as all
contracts for the sale and conveyance of lands must be in writing,
there seems the same certainty in reference to the lots contracted
to be conveyed by the parties or their agents.
It has been suggested that the generality of the exception might
open a door to frauds and impositions upon third persons by
enabling the parties to bring forward spurious or concealed
contracts at a future time. But to this objection it is a
sufficient answer that the present is not a case of a
bona
fide purchaser or grantee, whose title may be affected by any
such fraud or concealment. The defendant, Birth, is a mere stranger
to the title, and for aught that appears is a mere intruder. It
does not lie in his mouth to contend that an exception, solemnly
stipulated for by the parties, shall not be binding between them.
They were content to take the conveyance upon these terms. There
was certainly enough in the exception to satisfy them, and it would
be a fraud in the grantees to attempt to avail themselves of the
general and loose expressions of the exception to avoid the titles
of parties claiming title under Greenleaf by prior deeds or
contracts of lots within the reservation. Even if the exception
were void at law, a court of equity would relieve them against the
claims of Morris and Nicholson set up to their prejudice. It is not
improbable that many such titles in this city are now held under
the faith of this exception, and a declaration, at the instance of
a mere
Page 31 U. S. 312
intruder, that it was utterly void might work the most serious
mischiefs. We see no substantial ground to support it.
But if it were otherwise, still the other exception of the
square number 506 and the other two squares next south of it are
sufficiently certain. This Court cannot judicially know that one of
the squares next south of square number 506 is not square number
75, and there is nothing in the record that negatives it, for the
defendant offered no evidence except the naked deed.
But it is said that if the exception is not void, still the
burden of proof is upon the plaintiff to establish that the lot in
controversy is within the exception, because it is peculiarly
within the privity and knowledge of the plaintiff's lessor what
lots were conveyed and sold and contracted to be conveyed, and the
defendant has no means of knowledge. That in many cases the burden
of proof is on the party within whose peculiar knowledge and means
of information the fact lies is admitted. But the rule is far from
being universal, and has many qualifications upon its application.
In the present case, the plaintiff has shown
prima facie a
good title to recover. The defendant sets up no title in himself,
but seeks to maintain his possession as a mere intruder by setting
up a title in third persons with whom he has no privity. In such a
case, it is incumbent upon the party setting up the defense to
establish the existence of such an outstanding title beyond
controversy. It is not sufficient for him to show that there may
possibly be such a title. If he leaves it in doubt, that is enough
for the plaintiff. He has a right to stand upon his
prima
facie good title, and he is not bound to furnish any evidence
to assist the defense. It is not incumbent on him negatively to
establish the nonexistence of such an outstanding title; it is the
duty of the defendant to make its existence certain.
Besides, this is the case of an outstanding title set up under a
deed executed in 1796, under which, in respect to the act in
controversy, the grantees are not shown either to have had or to
have claimed any possession or right of possession. The present
ejectment was brought in 1818, twentytwo years after the execution
of that deed, and the trial had in 1829, more than thirtythree
years after its execution. Under such
Page 31 U. S. 313
circumstances, a very strong presumption certainly arises that
the lot was included within the exception, for it would be
difficult in any other manner to account for such total absence of
claim or possession by the grantees. An outstanding title could
hardly be deemed a good subsisting title by common presumption,
under such circumstances, whereas if the lot was within the
exception, the nonclaim would be natural and fully accounted for.
We are therefore of opinion that the circuit court erred in
refusing the instruction prayed for by the plaintiff in the first
bill of exceptions.
The second bill of exceptions, after stating that the defendant
admitted that the legal title to the lot in question, under the
patent from the State of Maryland, was vested in the plaintiff by
the patent and by divers mesne conveyances on 30 August, 1799,
proceeds to state that thereupon, to prove a title out of James
Greenleaf, the defendant offered in evidence to the jury the
proceedings in the case of James Greenleaf, an insolvent before the
chancellor of Maryland, and the Act of Maryland of 1798, ch. 64, to
the admission of which proceedings the plaintiff objected; but the
court overruled the objection and admitted the evidence, and
thereupon, on the prayer of the defendant, the court instructed the
jury that the said act of 1798 and the proceedings of insolvency
did show a legal title out of the plaintiff, and did preclude a
recovery in this suit on the first count in the plaintiff's
declaration -- that is to say upon the demise of Greenleaf.
The plaintiff's counsel thereupon gave in evidence the
proceedings in the case of the insolvency of Greenleaf in the
Commonwealth of Pennsylvania, and the conveyances therein
mentioned, not recorded in the State of Maryland, and prayed the
court to instruct the jury that under the operation of the said
proceedings in Maryland and Pennsylvania, the legal title to the
premises in the declaration, notwithstanding said conveyances, was
not divested from Greenleaf by anything by the defendant so shown,
which instruction the court refused to give, to which refusal and
instruction and admission of evidence the plaintiff excepted.
By the laws of Maryland, (with certain exceptions not necessary
to be mentioned) no conveyance is sufficient to pass any estate of
inheritance of freehold in lands or any estate
Page 31 U. S. 314
above seven years except the deed or conveyance be in writing
and acknowledged in the general court or before a judge thereof or
in the county court or before two justices of the county where the
lands lie, &c., and be enrolled in the records of the county or
of the general court within six months after the date thereof;
see Act of 1715, ch. 47; Act of 1767, ch. 14; Act of 1783,
ch. 9; Act of 1794, ch. 57; Act of 1798, ch. 103. Neither the deed
of assignment of Greenleaf to the trustee under the Maryland
insolvency, nor the deed of assignment of Greenleaf to the
trustees, under the Pennsylvania insolvency, has ever been enrolled
in the general court or in the county where the land in controversy
lies. Unless, then, some exception can be found which exempts these
assignments from the general law, the omission to enroll them
renders them, in a legal sense, mere nullities, and incapable of
passing any title to the land in controversy. There is no pretence
of any exception in relation to the assignment under the
Pennsylvania proceeding, and therefore that did not divest the
title of Greenleaf. But in regard to the Maryland proceedings it is
said that there is, under the Act of 1798, ch. 64, respecting
insolvents, a constructive exception. That act provides, section
fifth, that upon the petitioning debtor's (and Greenleaf was in
that predicament) executing and acknowledging a deed to the trustee
to be appointed, as the act requires, conveying all his property,
real, personal, and mixed, &c., and the trustee's certifying
the same, it shall be lawful for the chancellor to order that the
said debtor shall be discharged from all debts, &c. Greenleaf
was accordingly discharged, having in this respect complied with
the terms of the act. The fifteenth section of the act provides
"That all proceedings under this act shall be recorded by the
register, who shall be entitled to the same fees as are fixed by
law for services in other cases. . . ."
Now the argument is that this clause operates
pro tanto
a repeal of the general laws in relation to the enrolment of
conveyances, so far as respects assignments by debtors under the
act. But we think this is not the fair construction of the act.
There is nothing in the act which requires the assignment to be
recorded, nor does it necessarily constitute a part of the
proceedings before the chancellor. On the contrary, the fifth
section contemplates that it shall be executed and acknowledged by
the debtor in the usual manner, and the trustee is to certify the
same
Page 31 U. S. 315
to the chancellor. If the deed is to be acknowledged in the
usual manner, then it is to be enrolled in the usual manner, for no
provision is made for its enrollment elsewhere, and the only
judicial notice which the chancellor has of it, as connected with
the proceedings before him, is by the certificate of the trustee.
Nor is there any policy disclosed on the face of the act of 1798
which could justify the court in presuming that the legislature
intended, in respect to deeds of insolvent debtors, that the
ordinary securities of enrolment should be dispensed with. We
think, then, that there was error in the circuit court in admitting
the proceedings under the Maryland insolvency, and also in
instructing the jury that these proceedings showed a legal title
out of the plaintiff and precluded a recovery in the suit.
For the same reasons, there was error in the refusal of the
circuit court to instruct the jury according to the prayer of the
plaintiff's counsel; that under the operation of the said
proceedings in Pennsylvania and in Maryland, the legal title to the
premises was not divested from Greenleaf by anything shown by the
defendant.
The judgment of the circuit court is therefore
Reversed, and the cause is to be remanded to the circuit
court, with directions to award a venire facias de novo.
MR. CHIEF JUSTICE MARSHALL dissented from so much of the
foregoing opinion as requires the defendant to show that the lot in
the declaration mentioned is not within that part of the exception
contained in the deed from Greenleaf to Morris and Nicholson, which
excepts therefrom
"all such squares, lots, lands or tenements as were either
conveyed, or sold, or agreed to be conveyed, either by all or
either of them, the said James Greenleaf, Robert Morris and John
Nicholson, or any of their agents or attorneys, to any person or
persons whatever, at any time prior to the said 10 July, 1795,"
because he understood it to impose on the defendant the
necessity of proving a negative and because the fact on which the
exception depends is within the knowledge of the plaintiff and not
of the defendant.
This cause same on to be heard on the transcript of the
Page 31 U. S. 316
record from the Circuit Court of the United States for the
district of Columbia, holden in and for the County of Alexandria
and was argued by counsel, on consideration whereof it is the
opinion of this Court that there was error in the circuit court in
refusing to instruct the jury that the deed from Greenleaf to
Morris and Nicholson in the first bill of exceptions mentioned,
unaccompanied by any other evidence, did not show such an
outstanding title as was sufficient to bar the plaintiff's recovery
in this suit, as in the same bill of exceptions mentioned. And it
is further the opinion of this Court that there was error in the
circuit court in admitting the proceeding in the case of the said
James Greenleaf, an insolvent, before the chancellor of Maryland in
the second bill of exceptions mentioned, and also in instructing
the jury that the Act of Assembly of Maryland of 1798, ch. 64, and
proceedings of insolvency aforesaid, did show a legal title out of
the plaintiff and did preclude a recovery in this suit on the first
count in the plaintiff's declaration, and also in refusing to
instruct the jury that under the operation of the proceedings in
Maryland and Pennsylvania in the same bill of exceptions mentioned,
the legal title to the premises in the declaration mentioned,
notwithstanding said conveyance, was not divested from the said
James Greenleaf by anything by the defendant so as aforesaid shown
as in the same bill of exceptions is mentioned. It is therefore
considered and adjudged by the Court that for the errors aforesaid,
the judgment of the said circuit court be and the same is hereby
reversed and the cause be remanded to the circuit court with
directions to award a
venire facias de novo.
