Walden v. Gratz, 14 U.S. (1 Wheat.) 292 (1816)

WALDEN v. THE HEIRS OF GRATZ.

Under the Act of Assembly of Kentucky of 1798, entitled, “An Act concerning- champerty and main¬ tenance,” a deed will pass the title to lands, not¬ withstanding an adverse possession.

The statute of limitations of Kentucky, does not differ essentially from the English statute of the 21st James I., c. 1., and is to be construed as that statute, and all other acts of limitation founded upon it, have been construed. The whole posses¬ sion must be taken together ; when the statute has once begun to run it continues, and an adverse possession under a survey, previous to its being carried into grant may be connected with a subse¬ quent possession,

ERROR to the Circuit Court for the District of Kentucky. This was an action of eject¬ ment in which the defendants in error were the lessors of the plaintiff in the court below. The declaration in ejectment was returned to the November term of that court, 1813. At the May term, 1814, the suit was abated as to one defendant; judgment by default was entered against Joseph Day, another defendant; and the defendants were admitted to defend instead of the casual ejector. The lessors of the plaint¬ iff claimed under a patent issue to John Craig, in November, 1784. On the 20tli of April, 1791, John Craig conveyed the lands mentioned in the declaration, in trust, to Robert Johnson, Elijah Craig, and the survivor of them. On the 11th of February, 1813, Robert Johnson, 293] styling himself surviving trustee, con¬ veyed to the iessors of the plaintiff. The de¬ fendants below, now plaintiffs in error, claim¬ ed under a patent issue to John Coburn in Sep¬ tember, 1795, founded on a survey made for Benjamin Netlierland in May, 1782. John Coburn, claiming under the said survey, enter- 94

ed thereon about the year 1790, and dwelt in a house within the limits of said survey, but without the lines of Craig’s patent. On the trial, the counsel for the defendants below mov¬ ed the court to instruct the jury,

1st. That if the defendants, and those under whom they claim, were in the actual adverse possession of the lands in question, at the mak¬ ing of the deed by Craig’s trustee to the lessors of the plaintiff, that deed did not pass such ti¬ tle as would enable them to recover in this suit.

2d. That if the defendants, and those under whom they claim, were in the actual adverse possession of the lands in question, at the mak¬ ing of the deed by Craig’s trustee to the lessors of the plaintiff, and had held such adverse pos¬ session for twenty years next before said time, that said deed did not pass such title as would enable the plaintiffs to recover in this suit.

3d. That if the defendants, and those under whom they claim, have had possession of the land in question, or any part thereof, for twenty years next before the commencement of this suit, that the plaintiff cannot recover the lands so possessed for twenty years.

On the two first points, the court instructed the jury that, according to the principles of the com'mon law, the deed from Craig’s trustee to the lessors of *the plaintiff, would not

: pass the title to the lessors of the plaintiff; but that under the operation of the act of assembly of the state of Kentucky, of 1798, the said deed was valid, and did pass the title to the lessors of the plaintiffs, notwithstanding the adverse • possession of the defendants. The court re¬ fused, to. give the last instruction applied for, but did instruct the jury that if Coburn entered upon the land in controversy, under the survey on which liis patent was founded, and he, and those holding under him, held the said lands for twenty years and upwards, prior to the com¬ mencement of this suit, yet, as the patent to Coburn did not issue until 1795, such posses¬ sion could not avail the defendants claiming under the said Coburn, but that the plaintiffs could recover, notwithstanding such possession. To these opinions and instructions, given by the court, the counsel for the defendants below excepted, and the cause was brought by writ of error into this court.

Hardin, for the plaintiff in error, and defend¬ ant in ejectment. 1. No person out of posses¬ sion can grant; first, because at common law there must be livery of seizin; second, be¬ cause the grantee could not purchase a mere right of action. Coburn was in possession ad¬ versely ; therefore, the deed from Craig’s trustee to the lessors of the plaintiffs was void. 2. The limitation of twenty years’ possession by the defendant before notice of the ejectment was a complete bar. 3. The deed of trust was joint, and it was incumbent upon the plaintiff to prove that one of the trustees was dead. The recital in the deed of conveyance, that *

E. Craig was dead, was no sufficient evidence of that fact, except as between the grantor and grantee. 4. There is error in the judgment by default against Day.

Hughes and Talbot, contra. 1. Before the act of 1798, “concerning champerty and main¬ tenance, no title could pass without an actual possession of the grantor; but this statute has abrogated the common law in that particular.

Wheat. 1.

1816

The Harrison, Herbert, Claimant.

295

But, in fact, Coburn was not in possession ad- 1 versely, and a grant from the commonwealth of vacant lands gives the patentee a right to convey. 2. A person leaving it equivocal what his possession was, cannot have an instruction in his favor. It does not appear what part the defendant possessed, nor was the instruction asked under an adverse possession. Twenty years’ possession was no bar ; the local courts ad¬ here to the English principle, that when the statute has once begun to run, it continues; but the act of assembly differs materially from the English act of 21 James I., c. 1. ; and, after the statute has begun to run, it stops if the title passes to a person under any legal disability, and recommences after the disability is removed.

Marshall, Gh. J. , delivered the opinion of the court, and, after stating the facts, proceeded as follows:

The act of assembly, on which the opinion of the court below, on the first question, was giv¬ en, is entitled, “An act concerning champerty and maintenance.” It enacts, “that no person 29G*] purchasing, or ^procuring an interest in any legal or equitable claim to land held, &c. , shall be precluded from prosecuting or defend¬ ing said claim, under such purchase or con¬ tract; neither shall any suit, or suits, brought to establish such purchase, or make good the title to such claim, be considered as coming within the provisions, either at common law or by statute, against champerty or maintenance, ” &c. This court is of opinion that this statute enabled the lessors of the plaintiff to maintain a suit in their own name for the lands conveyed to them, and that there is no error in this in¬ struction of the Circuit Court.

On the third question the Circuit Court in¬ structed the jury that an adverse possession un¬ der a survey, previous to its being carried into grant, could not be connected with a subse¬ quent possession, but that the computation must commence from the date of the patent. In giving this opinion, the court unquestionably erred. No principle can be better settled than that the whole possession must be taken together.

The counsel for the defendants in error have endeavored to sustain this opinion by a con¬ struction of the statute of limitations of Ken¬ tucky. They contend that after the statute has begun to run, it stops, if the title passes to a person under any legal disability, and recom¬ mences after such disability shall be removed. This construction, in the opinion of this court, is not justified by the words of the statute. Its language does not vary essentially from the language of the statute of James, the construc¬ tion of which has been well settled; and it is to be construed as that statute, and all other acts 297s] of limitation Hounded on it, have been construed. This court is therefore of opinion that there is error in the instruction given by the Circuit Court to the jury on the third prayer of the plaintiff in error.1

It has been contended by the counsel for the plaintiff, that there is also error in the judgment rendered against Joseph Day by default; but of his case the court can take no notice, as he is

1. — Vide L T. R. 300 ; Doe, ex dem., Durouse v.

Jones.

Wheat. 1.

not one of the plaintiffs in error, and the judg¬ ment rendered against him is not before us. The judgment must be reversed for errror in the directions of the court to the jury on the third point, on which instructions were given.

Judgment. — This cause came on to be heard on the transcript of the record, from the Circuit Court 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 Circuit Court in this, that the judge thereof directed the jury that the tenants in possession could not connect their adverse possession previous to the date of the patent under which they claimed with their adverse possession subsequent there¬ to, but in the length of time which would bar the action could compute that only which had passed subsequent to the emanation of their grant. Wherefore it is considered by the court that the judgment of the Circuit *Court

be reversed and annulled, and that the cause be remanded to the Circuit Court, with direc¬ tions to award a new trial therein.

Judgment reversed.

Cited — 9 Otto, 168 ; 2 Sawy. 518.

[prize.]

THE HARRISON. Herbert, Claimant.

If the national character of property, captured and Drought in for adjudication, appears ambigu¬ ous or neutral, and no claim is interposed, the cause is postponed for a year and a day after the prize proceedings are commenced; and if no claimant appears within that time, the property is condemned to the captors.

In prize causes this court has an appellate juris¬ diction only, and a claim cannot for the first time he interposed here; hut where the court below had pro¬ ceeded to adjudication before the above period had elapsed, the cause was remanded to that court, with directions to allow a claim to be filed therein, and the libel to be amended, &c.

A PPEAL from the Circuit Court for the Dis- 1\. trict of Maryland. The libel filed by the captors, in this case, in the District Court, alleged that the goods for which condemnation was sought were captured and taken out of a Spanish vessel. No claim was filed for the goods in either of the courts below. But, upon hearing, the District Court dismissed the libel, upon the ground that the property, to whomso¬ ever belonging, was protected by the 15th article of the treaty *of 1795 with Spain, by

which free ships make free goods; and this dectee was affirmed, upon the same principle, in the Circuit Court. The captors brought the cause, by appeal, to this court ; and a motion was made by V/inder, in behalf of Elry Her¬ bert, an asserted claimant, to be admitted to file a claim in this court.

Story, J. , delivered the opinion of the court :

We have considered this question with a view to* the general rules of practice. Whenever a prize is brought to adjudication in the admi¬ ralty, if, upon the hearing of the cause upon the ship’s papers, and the evidence taken in pre-

95

299

Supreme Court of the United States.

1816

paratory, tlie property appears to belong to enemies, it is immediately condemned. If its national character appear doubtful, or even neutral, and no claim is interposed, the court do not proceed to a final decree, but the cause is postponed, with a view to enable any person having title to assert it, within a reasonable time, before the court. This reasonable time has been, by the general usage of nations, fixed to a year and a day after the institution of the prize proceedings; and if no claim be interposed within that period, the property is deemed to be abandoned, and is condemned to the captors for contumacy and default of the supposed owner. In the present case the prescribed period had not elapsed at the time when the District Court proceeded to decree a dismissal of the libel. A claim cannot, by the practice of this court, be for the first time interposed here. In prize causes this court can exercise only an appellate jurisdiction, and between 300*] ^parties who have litigated in the court below. We are all, therefore, of opinion that this cause ought to be remanded to the Circuit Court, with directions to allow the claim to be filed in that court; and, also, to allow the libel to be amended so as to conform to the general allegation of prize, and enable the captors to obtain condemnation of the property, if the as¬ serted claim shall not be sustained, and the property shall not appear entitled to the pro¬ tection of the Spanish treaty.

Case remanded.1

Cited— 5 Wal 1 . 412 ; Blatchf. Pr. 54.

[COMMON LAW.]

HARDEN v. FISHER et al.

Under the 9th article of the treaty of 1794, be¬ tween the United States and Great Britain, by which it is provided that British subjects, holding lands in the United States, and their heirs, so far as respects those lands, and the remedies incident thereto, should not be considered as aliens; the parties must show that the title to the land for which the suit was commenced was in them, or their ancestors, at the time the treaty was made.

ERROR to the Circuit Court for the District of New York. This case was argued, with great learning and ability, by Hoffman for the plaintiff in error, and defendant in ejectment, and by Stockton, for the defendants in 301 *] '"'error and plaintiffs in ejectment. But, as the court gave no judgment upon the points discussed, the argument has beeen omitted.

Marshall, Gh. ./., delivered the opinion of the court :

This is an action of ejectment, brought by the defendants in error, in the Circuit Court for the District of New York, to recover certain lands, which they claim as the heirs of Donald Fisher, deceased. A special verdict was found in the case, which shows that Donald Fisher was a British subject, residing in the City of New York, and departed this life in the year

1 — Vide Appendix, note II.

96

1798, leaving the lessors of the plaintiffs in ejectment his heirs at law, who are also Brit¬ ish subjects. The plaintiffs, being thus found to be British subjects, are incapable of main¬ taining an action for real estate in the state of New York, unless they are enabled to do so by the 9th article of the treaty between the United Stated and Great Britain, made in the year 1794, which provides that British subjects, holding lands in the United States, and their heirs, so far as respects those lands, and the legal remedies incident thereto, should not be considered as aliens. To avail themselves of this treaty, the lessors of the plaintiff below must show that their ancestors held the lands for which this suit was instituted at the time when it was made. The court does not mean to say that they must show a seizin in fact, or an actual possession of the land, but that the title was in him at the time. This must be *shown in order to bring the case

within the protection afforded by the treaty.

The jurors find that Donald Fisher was, on the 1st day of January, in the year 1777, seized in his demesne, as of fee, of the lands and tene¬ ments in the declaration mentioned, and was in the actual possession thereof, and continued so seized and possessed, until the rendering the judgment herein after mentioned.

On the 17th day of April, in the year 1780, the grand jury, for the county of Charlotte, in the state of New York, found an indictment, stating that Donald Fisher (who is the ancestor under whom the lessors of the plaintiffs claim) did, on the 14th day of July, in the year 1777, voluntarily with force and arms, adhere to the enemies of the state. The record proceeds to state that “the said Donald Fisher having, according to the form of the act of the legisla¬ ture, entitled ‘ an act for the forfeiture and sale of the estates of persons who have adhered to the enemies of the state, ’ &c. , been notified to appear and traverse the said indictment, and not having- appeared and traversed within the time, and in the manner in and by the said act limited and required, it is therefore consider¬ ed that the said Donald Fisher do forfeit all and singular the estate, both real and personal, whether in possession, reversion, or remainder, had or claimed by him in this state.” This judgment was signed on the 29th day of De¬ cember, 1783, and is the judgment referred to in the special verdict, as herein before men¬ tioned. Under these proceedings the lands in the declaration mentioned *were sold,

and the defendants, in the court below, hold under that sale.

There are other points raised in the special verdict, and urged by counsel ; but it will be unnecessary to notice them, and the court does not mean to give any opinion on them. The court gave judgment for the plaintiffs below, and that judgment is now before this court on a writ of error.

It is contended by the defendants in error that this judgment having been rendered sub¬ sequent to the treaty of peace of 1783, and in direct repugnance thereto, is not merely void¬ able, but absolutely void. By the plaintiffs it is alleged to be voidable only.

This court cannot now- decide that question. The verdict does not find that Donald Fisher held his title until the treaty of 1794 was made,

Wheat. 1.

1816

Martin v. Hunter’s Lessee.

303

and although nothing is found to show that he has parted with it, yet the court cannot pre¬ sume that he did not part with it. The verdict ought to have shown that the title was in Don¬ ald Fisher when the treaty was made, and con¬ tinued in him to the time of his death. For this essential defect, the verdict is too imper¬ fect to enable the court to decide on the case. The judgment of the Circuit Court must there¬ fore be reversed, and the cause remanded to that court, with directions to award a venire facias de novo.

Judgment. — This cause came on to be heard on the transcript of the record of the Circuit Court for the District of New York, and was 30-4] argued by counsel; all which being •considered, this court is of opinion that there is ■error in the judgment of the Circuit Court for the District of New York, in this, that the said court ought not to have rendered judgment on the said verdict in favor of the plaintiffs in •ejectment, because it does not appear certainly, in the said verdict, that the ancestor, under whom they claim, held in law, or in fact, the lands mentioned in the declaration, when the treaty of 1794, between the United States and Great Britain, was made; therefore, it is con¬ sidered by this court that the said judgment be reversed and annulled, and that the cause be remanded to the Circuit Court for the Dis¬ trict of New York, with directions to award a venire facias de novo.

Judgment reversed d

Cited— 4 Wheat. 404 ; 9 Wheat. 496 ; 14 Pet. 413.

[constitutional law.]