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act is not com

to the titles of

GREEN his writ of right against the tenants holding the previous

possession under a younger patent interfering with the LITER

elder grant? &OTHERS.

WICKLIFFE, for the Demandant. pulsive, butcu. mulative.

The Court below being divided in opinion upon the The act of Vir- several questions already stated, they have been adjourşinia of 1786 ned to this Court. The questions themselves sufficientthe nature of ly shew the controversy. And the several points will the inquiry as be examined as they present themselves on the record. the parties to a writ of right. With regard to the first, we contend that the Circuit In order to

Court has jurisdiction in the case therein stated ; and support a writ of right, it is that the Defendant's only remerly, in such case, under not necessary the act of congress, is, that he shall be excused from tual entry un- paying costs, and that he may, at the discretion of the der title, or Court, be allowed his costs. In support of this point, actual taking of esplees. we rely on the judicial act of 1789. Laws U. s. vol. 1, constructive p. 47, 1 Sess. 1 Cong. ch. 20. 11 f. 20. seizen in deed is sufficient. Under the land 2d. Upon the second question, we contend, in behalf law of Virgin of the Demandant, that under the act of assembly of Virg. legal estate & Rev. Co. P. P. 34, if his tenement is an entire one, and seizin of the interfered with by divers tenants, he can only demand wealth pass to

his tenement as it is, and cannot know how the adverse the patentee, Claimants bound or abut their claims or possession ; upon the issu.

and that as all claim and obstruct him in the use ing of his patent, in as full and possession, he has a right to sue all. We conand beneficial tend, further, that although the Demandart claim more (subject only than the tenants or either of them hold, still he may reto the rights cover as much as is withheld from him by the tenant or monwealth)

tenants. To support this possition we rely upon the

act of assembly of Virginia of 1792, ch. 125, which monwealth it is in force in Kentucky and is the same in substance A conveyance

with the act of 25 Edw. 3, ch. 16, which enacts - that of wild and va- by the exception of non-tenure of parcel no writ shall be gives a con

abated but for quantity of the non-tenure which is allegstructive seizin ed;" and the act of assembly of Kentucky, entitled “an thereof, in deed, to the

act to amend proceedings in chancery and common law;" grantee, and the latter of which acts expressly provides, that if the attaches to him Plaintiff at law shall prove part of his demand or claim remedies inci- set up in his declaration, he shall not be non-suited, but dent to the shall have judgment for what he proves. See also fortiori, this Boothe on real actions, p. 2a


of the con

as the com



is no

If tenants

3d. On the third question, we insist, that, under a GREEN sound construction of the act of assembly of Virginia of 1786, (revised code, vol. 1, p. 33, ch. 27,) no matter in LITER abatement which does not affect the right can be pleaded. &OTHERS. But if it can be pleaded, yet, under the acts of assembly of Kentucky, and the rules of the Circuit Court of the

principle apdistrict of Kentucky, it ought to be pl’aded during the plies to a appearance term, and be supported by oath. It is fur- patent

În Kentuck! ther insisted, that only such matters as assume the char

å patent is the acter of abatement at common law, and which affect the completion of mere right, such as non-tenure, can be given in evidence the line is the on the mise joined. A contrary construction of the act legal title only would lead to the worst of consequences. If, upon the that can come mise joined, all matter in abatement might be given in in a writ, of evidence, a man might lose his valuable inheritance by right.

A better subthe Defendant proving on the trial that he claimed and

sisting adverse held as joint-tenant, and not as sole tenant. It would title in a third also involve the monstrous absurdity of making the jury

defence in a the sole and exclusive judges of the Demandant's count wit of right. and pleading

claiming dif

ferent parcels 4th. The fourth proposition seems to be abstract and of land by indefinite. "If the matter in bar affects the mere riglit, oniit to plead

, and goes to shew substantially that the Demandant has that matter in no claim in fee simple, it is submitted to the Court to abatement, say, whether, under a just construction of the act, he can mise, it is an plead it. But as the act allows him to give such bar in admission that

they are joint evidence on the general issue, it is within the sound dis

tenaits of the cretion of the inferior Court, to permit the Defendant to whole; and

, if plead the special matter, or give it in evidence on the for the dise: general issue; and that must depend upon the time when mandant for the application is made. On this point, the case of any parcel of Resler v. Sheehee, 1 Cranch, 110, and the case of Fox and be general, White, in the Court of appeals in Kentucky, are relied that he hath upon. It is further submitted, whether the mcre eti- right to hold quette of pleading and the time when that pleading shall the same than be filed, is not a matter of practice only, and proper left to the Circuit Courts to settle under their own rules parcel for the or the statutes and practice in Kentucky.

tenants, that they have

to be

the tenants ; and it of any

molle mere

5th. The fifth question seems to be a more important right to hold one; and it would have been, perbaps, more regular to the Dencanhave placed that before the other questions, inasmuch as dant. a decision upon that, affirmatively, would preclude the If a man enter

into lands, havnecessity of deciding several of the others.

ing title, his VOL. VIII.




seizin is not

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Upon this question we contend that the Demandant can, upon his patent, maintain his writ of right; and that

actual possession is not necessary. To maintain this &OTHERS. point it is not at all material to prove that by the king's

letters patent granting titles to land in England, a write

of right could be maintained. It is believed that no case bounded by his actnal oc

has occurred where that point has been directly decidwipancy, but ed. But titles in England are conditional, not absolute. is held to be

Since the time of William the conqueror, all grants of co-extensive with his title. Jand have been made on feudal principles ; and a patent But if a man in England is not of itself a right, but an authority to titte, his seizin the grantee to take a right; that right rests upon conis confined to ditions ; and one of those conditions is entering and takby metes and" ing possession of the land. In the grant there are two. bounds par ies supposed, the king and grantee ; and the grantee An entry into becomes bound to the king when he accepts the estate, is wacant, will and not till then ; the ultimate property remains with not give seizin the king; and upon the tenant's entering, he becomes of a parcel which is in an

seized of the use only ; and hence exists the reason, ix adverse seizin; the English books, of requiring the Demandant, in the but an entry into the last

most solemn trial of a right to real estate, to shew and parcel, in the prove the highest title the subject ever had, the dominium name of the utile, or usufruct of the property ; for if neither he nor whole, will

his ancestor had entered and been seized of the use, (the entry into the dominium directum remaining in the king,) they never Under a con: had a fee simple estate ; the feudal grant not being an veyance, tak- estate in fee, but a right to enter and take one; and if ing effect one that right was never exercised, the estate was never taof uses, the ken Sce 2 Bl. Com. 46. 104, 105, 107, 108. It appears, barguinee has also, further, from Boothe, and Fitz. Nat. Brev. tit. writ seizin in deert of right, letter F, that the Demandant had not only to set with out actual out when he was seized, but by what service he held the entry or livery

land. of seizin.

It is important to state the kind of title made by letter's patent such as those under which the Demand ant claims. In 1777, the legislature of Virginia abolislied all servile and feudal tenures ; and, in 1779, pássed her land law, under which we derive title. In one section of that act, the form of an allodial grant is given ; and, by way of closing every doubt as to the title, the Register was directed to endorse that the patentee had title. Llavins provided, in that section, for the complete investment of an absolute and unconditional title under that act, and actuated by a laudable desire to place all

enure as an

her citizens upon the same tenure, in the 19th section of GREEN the same act she declares, “ that all reservations and o conditions in the patents or grants of land from the LITER “ crown of England or of Great Britain, under the for- & OTHERS. “mer government, are hereby declared to be null and “ void ; and that all lands thereby respectively granted “ shall be held in absolute and unconditional property, to 6 all intents and purposes whatsoever, in the same man6 ner with lands hereafter to be granted by the common“ wealth, by virtue of this act." And by a subsequent section of the same act, all laws requiring the seating or possession of land to vest title, are expressly repealed. It will be perceived that the legislature not only gave the form of a patent such as never had been issued before in that state, but provided that an indorsement should appear on the back of the letters patent, that the grantee had title, no such endorsment ever having been made or allowed during the regal government. But lest the titles might, in some manner, be tinctured with the learning of the feudal law, they explicitly declare that the estate shall be held in absolute and unconditional property. It might here be asked, can any man say that the patent of the commonwealth, issued in strict pursuance of this act, does not convey a fee simple estate, without any condition being performed by the patentee? To us it seems that this is a point too clear for doubt.

The attention of the Court is next called to the act of 1786. That act, in its title and context, professes to be an act to reform the method of proceeding in writs of right; and expressly provides, that it shall be lawful for a person claiming a fee simple title to sue forth the præcipe quod reddat, &c. This act gives the writ. If the Demandant has a fee simple estate, (and the only question which can be involved is, has the Demandant, by these letters patent, a fee simple estate,) a further argument is drawn from the fact of passing the act itself. The necessity of this reform had become obvious to the legislature and the people of Virginia, from the great and radical change of the land titles created by the act of 1779. That act had repealed all laws which required claimers of land to settle them; had repealed and abolished every service and tenure by which lands in that state had been theretofore held. Of course the form of the count at common law was totally defective and im

GREEN proper; because that contained not only the charge of

actual seizin, but the time when, and by what kind of LITER service the lands were held. The common law titles &OTHERS. having ceased, the remedy ceased also; it then well be

came the legislature to give a statutory remedy suited to the statutory and then existing state of titles; and thus you find a form of proecipe and count given, precisely corrispondent with the title. The act of 1779 abo. lished all the feudal tenures, and dispensed with actual possession; and the old allegations of possession and the kind of tenure, are omitted. This omission means something; and why did it take place if not for the causes now assigned ? See, on the foregoing points, Cruise on Real Estates, 12.--Co. Litt. folio 48.-Ch. Rev. 61.

The form of the writ and count is very obviously taken from tlie British forms; and is not only the act of a legislature famed for its wisdom and learning, but report makes this form the peculiar work of a committee of the first lawyers then of the Virginia bar. To ascribe such unmeaning omissions to such men and to such a body, is wholly inadmissible.

But surely, on common law principles, it cannot be fairly contended that the Demandant shall prove actual possession. The statute has given him his count or declaration. That count will, it is believed, be sufficient for him after verdict; and if a man proves every thing he has alleged upon a good declaration, we understand the common law to be, that he shall have a verdict. If you require of the Demandant to prove more than his count contains, where will you stop? If you say that after he proyes and exhibits a fee simple title, he shall also prove possession, why not say that he must prove by what tenure he holds, and whatever else he was bound to prove at common law; and which were equally indispensable to be proved before this statute ? The case of Clay v. White, 1. Munford, 162, will be relied on to prove that the patentee is, to every legal purpose, possessed of land, in Virginia. by his letters patent. Upon this point, the attention of the Court is farther called to the state of the country at the date of the Virginia land law. It was in the midst of a war with Great Britain ;, wh n sound policy required that many of the grantees who were engaged in the war (the ofti

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