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The result of this reasoning is, that wherever there exists the union of title and seizin in deed, either by actual entry and livery of seizin, or by intendment of law, LITER as by conveyances under the statute of uses, or in the &OTHERS other instances which have been before stated, there the esplees are knit to the title, so as to enable the party to maintain a writ of right. And it will be found extremely difficult to maintain that a deed, which, by the lex loci, conveys a perfect title to waste and vacant lands, without further ceremony, will not yet enable the grantee to support that title by giving him the highest remedy applicable to it, without an actual entry.
Let us consider how far a perfect title to waste and vacant lands can be considered as having passed by a patent under the land law of Virginia of 1779, ch. 15. It is argued that such a patent conveys only a right or title of entry, which, until consummated by actual possession, gives the patentee no actual investiture or seizin of the land: and it is likened to the case of a patent from the crown. Some countenance is lent by authority to this position, so far as respects patents from the crown; but a careful examination will be found by no means to establish its correctness. No livery of seizin is necassary to perfect a title by letters patent. The grantee, in such case, takes by matter of record ; and the law deems the grant of record of equal notoriety with an actual tradition of the land in the view of the vicinage. The contrary is the fací, as to feoffinents. The deed is inoperative without livery of seizin. This difference alone would seem to carry a pretty strong implication that actual seizin passed by operation of law, on a patent from the crown ; for it is the union of a right and seizin that constitutes a perfect title; and when once the law has declared a title perfect, it must include every thing necessary to produce that effect. Accordingly we find it expressly held in Barwick's case, 5 Co. 91, * that letters patent under the great seal do amount to a livery in lau. What is a livery in law, but such an act as in legal contemplation, amounts to a delivery of seizin? If, for instance, a feoffment include divers parcels of land in the same county, livery of seizin of one parcel, in the name of the whole, is livery of all not in an adverse seizin. This, therefore, as to all the parcels : except that whereof livery is actually marle, is but a lix
GREEN ery in law; and yet to all intents and purposes it is as
effectual as livery in deed. And it was upon the footing LITER of this doctrine that, in Barwick's case, the court held &OTHERS. that the conveyance of a freehold by letters patent to
commence in futuro, was void as much as if the conveyance had been by feoffment; because in neither case could there be a present livery of the future freehold estate. The livery must operate at the time when it is made, or not at all. It is not therefore admitted by this Court, that letters patent of the crown do not convey a perfect title, where there is no interfering possession.
But even admitting it were otherwise, still we think a patent under the land law of Virginia must be considered as a statute giant, which is to have all the legal effects attached to it, which the legislature intended. It cannot be doubted that the legislature were competent to give their patentees a perfect title and possession without actual entry. Have they so done? We think that it is impossible, looking to the language of their acts, or the state of the country, to doubt that the whole legal estate and seizin of the commonwealth in the lands, passed to the patentee, upon the issuing of his patent, in as full an extent and beneficial a manner, (subject only to the rights of the commonwealth,) as the commonwealth itself held them. At the time of the passing of the act of 1779, Kentucky was a wilderness. It was the haunt of savages and beasts of prey. Actual entry or possession was impracticable; and, if practicable, it could answer no beneficial purpose. It could create no notoriety; it could be evidence to no vicinage of a change of the property. An entry therefore would have been a vain and useless and perilous act: and if there ever was a case in which the maxim would apply that the law does not oblige to vain or impossible things, we think it is such a one as the present. There is no pretence that the legislature have expressly made an entry a pre-requisite to the completion of the title. Such a pre-requisite, if it exist at all, must arise from mere implication only, and under circumstances which would render it nugatory or absurd. We do not, therefore, feel at liberty to insert in the operation of the grant a limitation which the law has not of itself interposed.
And this leads us to say, that even if, at common law, GREEN an actual pedis positio, followed up by an actual percep tion of the profits, were unnecessary to maintain a wiit LITER of right, which we do not admit, the doctrine would be & OTHERS inapplicable to the waste and vacant lands of our couritry. The common law itself in many cases dispenses with such a rule; and the reason of the rule itself ceases when applied to a mere wildern ss. The object of the law in requiring actual seizin, was to evince notoriety of title to the neighborhood, and the consequent burthens of feudal duties. In the simplicity of ancient tiines there were no means of ascertaining titles but by the visible seizin; and, indeed, there was no other mode, between subjects, of passing title, but livery of the land itself by the symbolical delivery of turf and twig. The moment that a tenant was thus seizd, he had a perfect investiture ; and, if ousted, could maintain his action in the realty, although he had not been long enough in possession even to touch the esplees. The very bbject of the rule, therefore, was notoriety, to prevent frauds upon the land and upon the other tenants. But in a mere uncultivated country, in wild and impenetrable woods, in the sulten and solitary haunts of beasts of prey, what notoriety could an entry, a gathering of a twig or an acorn convey to civilized man at the distance of hundreds of miles ? The reason of the rule could not apply to such a state of things ; and cessante ratione, cessat ipsa lex. We are entirely satisfied that a conveyance of wild or vacant lands gives a constructive seizin thereof, in deed, to the grantee, it attaches to him all the legal remedies incident to the estate. A fortiori, this principle applies to a patent; since, at the common law, it imports a livery in law. Upon any other construction, infinite mischiefs would result. Titles by descent and devise, and purchase, where the parties from whom the title was derived was never in actual seizin, would, upon principles of the common law, be utterly lost.
As to the sixth question. We are of opinion that in Kentucky, a patent is the completion of the legal title of the parties; and it is the legal title only that can come in controversy in a writ of right. The previous stages of title are merely equitable, which a Court of chancery may inforce, but a Court of common law will not entertain. In this apinion, we adopt the principles which the VOL. VIII.
GREEN Courts of Kentucky have been understood uniformly to
sanction. And this opinion is also an answer to the LITER
seventh question. & OTHERS.
As to the eighth question. We are of opinion that a better subsisting adverse title in a third person, is no de fence in a writ of right. That writ brings into controversy only the mere rights of the parties to the suit.
As to the ninth question. We have already expressed our opinion that tenants claiming different parcels of land by distinct titles cannot be joined in a writ of right. If, however, they omit to plead in abatement and join the mise, it is an admission that they are joint tenants of the whole ; and the verdict, if for the Demandant for any parcel of the land, may be general, that he hath more mere riglt to hold the same than the tenants ; and if of any parcel for the tenants, that they have more mere right to hold the same than the Demandant.
As to the tenth question. The general rule is, that if a man enter into lands, having title, his seizin is not bounded by his actual occupancy, but is held to be coextensive with his title. But if a man enter without title, bis seizin is contined to his possession by metes and bounds. In the case put by the Court below, the first patentee had the better legal title; and his seizin presently, by virtue of his patent, gave him the best mere right to the whole land, upon the principles which we liave already stated. A fortiori, he must have the best mere right to the land not included in the actual close of the second patentee. For, by construction of law, he has the eldest seizin as well as the eldest patent.
As to the eleventh point. We are of opinion, that if a inan having title to land enter into a part in the name of the whole, he is, uponcommon law principles, adjudged in seizin-of the whole, notwithstanding an adverse seizin thereof. But if the land be in seizin of several tenants claiming different parcels thereof in severalty, an entry into the par-' cel held by one tenant will not give seizin to the parcels held by the other tenants ; but there must be an entry into each. Co. Litt. 252, b. By parity of reason, an entry into a parcel which is vacant, will not give seizin of a par-. cel which is in an adverse seizin. But an entry into the last parcel, in the name of the whole, will énure as an en
try into the vacant parcel. It does not appear, in the ques GREEN tion put by the Court below, into which parcel the entry is supposed to be made.
&OTHERS. Such are the unanimous opinions of this Court, which are to be certified to the Circuit Court of Kentucky.
THIS was an appeal from the Circuit Court for An appeal lies
to this Court' the district of Columbia.
from the sentence of the
Circuit Court E. I. LEE, for the Appellants.
of the district
of Columbia TAYLOR, for the Appellees.
affirming the sentence of the
Orphan's March 11th....STORY, J. delivered the opinion of the Court of AļexCourt as follows:
ed a petition The Appellants, who are heirs at law of Sally Carter to revoke the
probate of a deceased, petitioned the Orphan's Court, of the county will. of Alexandria to revoke and repeal the probate of a will of the said Sally Carter procured by the respondents, upon the ground that the said will was admitted to probate without notice to the Appellants, and that the supposed testatrix was an inhabitant of and resident in Virginia at the time of her death, and left no assets real or personal or debts in the county of Alexandria. The Orphan's Court, without issuing a summons to the respondents, dismissed the petition, and upon an appeal this dismissal was confirmed by the Circuit Court of the district of Columbia.
Two objections have been taken to the sustaining of the appeal to this Court-1. That by the act of congross of 27th February, 1801, ch. 86, s. 12, (vol. 5, p. 272) it is enacted that on appeals from the Orphạn's