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cers and soldiers) should remain in it during its continnance; and that those not engaged should, to a certain extent, be drawn into its armies. . In fact, this very land office was opened with the two-fold view of &OTHERS, raising men and money to carry on the war. It is therefore asked, if the objects of the legislature would not have been defeated if the very bounty offered for the public service, and which might be the price of the .blood of the father to the children, should depend upon seating and possessing the land? For if the doctrine obtain, that actual possession is necessary to a perfect title, or to give a fee simple estate, it is incontrovertible (by the rules of the common law) that the death of the grantee before entry, prevents the estate from descending ; that the grantee cannot sell nor devise a mere right of entry; and that, by the bare attempt to do the one or the other, he works a forfeiture. See Co. Litt. 214, 266, and Noy's Maxims, 84. It is believed that one third of the best lands in Kentucky are held by devise, purchase, or descent, without the original grantee ever having been possessed. With what astonisment will the Virginian or Kentuckian learn, for the first time, the monstrons doctrine that destroys every estate of the kind. Again, with the exception of four small forts or stations, the whole territory which now forms the state of Kentucky was, at the date of the law, a wilderness, in the possession and under the power of the Indians. In fact, a considerable part granted out by the state, below the Tennessee, is yet held, and may be held for a century, by the Indians. And can it be supposed that Virginia could have intended, when she invited the soldier and the capitalist to embark their fortunes in the war, and offered as a reward these lands, to have imposed the necessity of actual settlement and taking the esplees as a pre-requisite to title? What are the esplees of a wilderness under the dominion of the tomahawk and the scalping knife ? Are they the game or the wild acorns ? If we be correct in supposing that the commonwealth vests in the Demandant, in this case, a fee simple estate, and legally possesses him of that estate, it follows, that nothing less than an adverse possession of thirty years can bar him; and that twenty years is not a sufficient bar. In support of the foregoing observations, see Ch. Rev. p. 97-id. p. 98, sec, 6– 1. Rev. Code of Vir. Laws, p. 33-id. p.
ims, 160--Co. Litt. 48, note-Boothe, 112-id. 98-Harding's (Kentucky) Reports, 162, Bradford v. Patterson.
Sneed's Reports, 237, Brown v. Quarles—Co. Litt. 57&OTHERS. Fitz. N. B. 506, note--Rev. Code, ch. 114.
oth. On the sixth question proposed, we contend that the first patent conveys the legal estate in fee; that the incipiency of title was a matter between the commonwealth and the patentee; and, when síttled with the commonwealth, and the title made perfect, that it do s not lie in contest between the Demandant and Defendant. We contend, also, that, in a trial at law, of a mere legal right, the Defendant cannot set up an equity against the elder grant. This point was settled by the Court of appeals of Kentucky, in the old case of Brown v. Quarles, and bas ever since been considered the law of that state.
8th. On the eighth question, we contend that the mise is joined upon the mere right between the Demandant and Defendant; and that the jury is to inquire whether the Demandant hath more right, &c. or the Defendant, &c. and that it will be absurd to inquire whether the Demandant or some one else hath the most mere right.
9th. On the ninth, it may be observed, that it must depend upon the manner in which the mise is joined. . If the tenants jointly and severally join the mise upon the whole land claimed by the Demandant in his count, then a general finding will be proper. But if they severally plead as to part, and disclaim or plead non-tenure as to the rest, then the finding should be several, and respond to each issue.
10th. On the tenth, we contend that an entry into part in the name of the whole, and claiming the whole, will, on common law authority, sustain the writ and count as to all claiming under a younger and inferior right, that have not had thirty years adverse possession; and, of course, that the land in the Demandant's patent and outside of the close of the Defendant, belongs to the Demandant.
11th. The observations upon the tenth question will apply to this also.
The fifth question being the most important, and that to which the Demandant's counsel has principally direct- & OTHERS. ed his attention in the course of his argument, I shall confine my observations also, chiefly to that point.
The Virginia act of assembly of 19th December, 1792, which declares that “ actual possession need not be prov, ed to maintain a writ of right," was passed after the separation of Kentucky from Virginia ; and consequently is not in force in the former state.
At common law, a writ of right cannot be maintained without proof of se zin in the Demandant, and actual taking of esplees within the time of limitation; which, in England, is thirty years on a man's own seizin, 'and fifty, on the seizin of his ancestors; and such was the law of Virginia untill the year 1786, when the act for reform-. ing the method of proceeding in writs of right, was passed. But this act merely changed the mode of trial, not the substance of proof. It did not dispense with proof of the Demandant's seizin ; and, consequently, the law on that subject remains the same as before the passage
of the act of 1786. Vid. Boothe, 85, 111, 112.Co. Litt. 281, 393, 294.—2 Saund. 45, 46.-—Bac. Abr.. Tit. Limitation of Actions, B.- Rep. 8. Bevill's case.Old laws of Virginia, 147.
From the case of l'isson v. Clarke, 3. Wills. 119, it appears, that if the tenant did not pay his demi-mark, and deny the scizin of the Demandant, such seizin was taken for confessed. Hence the Defendant was put to prove his title, contrary to the general rule. Vid. the case of Tisson v. Clarke, 3 Wils. 419.-id. 541.--Co. Lit. 5 514.
-Boothe, 113.-But the legislature of Virginia, ny omitting to require the allegation of seizin, made it necessary that the Demandant should prove it. If it bad been alleged, and not denied, such proof, on the part of the Demandant, would not have been necessary.
Although, according to the decision of the Court of appeals of Kentucky in the case of Innis and al. r. Crawford, (M. S. report) the patent conveys a fee simple estatc, yet the patentec must so nse it as not to lose his es
GREEN tate, and in such a manner as to prevent the operation of
the statute of limitations. A patentee may lose his right LITER by not entering in due time; and, in such case, having &OTHERS, nothing superior to a right of entry, he cannot main
tain a writ of right. At the time of the separation of
But admit that a patent is equivalent to livery in law; we contend that livery in fact is neressary; and so must the case of White v. Clay in 1. Munf. 162, be understood. Co. Lit. 240,-id. 111-Shep. Touch. 209, 223.
The reason of the law requiring proof of actual possession, is obvious : such proof was required in order to secure the peaceable occupancy of the land to the rightful proprietor. Investiture and seizin were in· vented for the purpose of putting an end to litigation. They were notorious acts in the country, performed in the presence of the vicinage ; and where there had been such actual seizin and investiture, the law, after the right of entry was gone, gave the Demandant the writ of right to revive his former possession. 2. Bl. Com. 11, 312, Shep. Touch. 209.
It is true that, according to the old law, a charter of feoffment, without actual livery, only gave an estate at will; and the statute of uses transfers the possession in law to the use; but no change was made thereby in the law respecting writs of right, which requires proof of actual possession.
With regard to the other questions adjourned, the counsel for the tenants contended,
As to the 1st. and 2d. points, that the Demandant could not join, in the writ and count, several tenants claiming under several distinct, separate and independent original titles ; and that, as they could not be joined, the Circuit Court had no jurisdiction; inasmuch
as no one of the tenements in question was of the value GREEN of $ 500.
LITER As to the third point, that non-tenure, no seizin, &c. &OTHERS. might be pleaded under the act of Virginia, of 1786.
The 4th point he submitted.
On the 6th and 7th, he contended that the patent was not conclusive evidence in a writ of right.
On the 8th, he supported the affirmative of the question.
The 9th, he said respected matter of form merely.
As to the 10th, he insisted, that when a man takes possession, he takes possession to the extent of his claim.
The 11th, he said was answered by the observations on the 1st point.
WICKLIFFE, in reply,
Contended, that the Kentucky cases cited by the temant's counsel, not being final and absolute, were not authority; that the Court of appeals of Kentucky was, in fact, waiting for the decision of this Court, in these cases, But admitting them to be authority, still there was error in the finding of the jury; they bad found a special verdict, which, by the common law, they could not do; they ought to have decided the mere right, and nothing more.
In the case of a grant from the crown of the same land to two different persons, if the last grantee enter, the former may maintain trespass.
In the case of Innis v. Crawford, the Court, in effect, said, that the patent gave seizin; because they da. ted the disseizin by the tenant, from the date of his entry; but if the demandant was not seized, he could not have been disseized. VOL. VIII.