APRIL, 1810. Clay V. White. acres of the land in controversy," which patent recites that, "in consideration of the ancient composition of one pound fifteen shillings sterling, there is granted to the said William White 350 acres of land, by survey," &c. the lines of which are recited, and do not appear to bear any relation to, or conformity with, those in Fox's patent. The verdict farther stated that the said White had been in possession of the said 350 acres ever since the date of his patent: but "whether any of the before named persons were in actual seisin of the land other than is stated above, the Jury did not know." They found the lease, entry and ouster in the declaration mentioned, and concluded in the usual form. The District Court gave judgment for the defendants; from which an appeal was taken to this Court. Hay, for the appellant. The District Court appears to have given judgment for the defendents on the authority of Tabb v. Baird and others, 3 Call, 475.; according to which, a person not in possession cannot convey by bargain and sale such a title as will enable the bargainee to recover in ejectment against another holding by adverse possession. But the facts in this case do not justify the application of that authority to it. The lines of Fox's patent are expressly stated to contain 440 acres, and include the 350 acres of land granted by White's patent. The Court, by misapprehension, thought that White was in possession of the whole land claimed by Clay; supposing 350 acres to be all: but surely Clay had a right to recover the difference between the 440 acres and the 350; though he had no right to recover the 350 acres. The obscurity of the survey and verdict misled the Court; and a venire facias de novo ought to be awarded, to ascertain the lines of the smaller patent within the bounds of the larger. Clay was entitled in equity to the whole 440 acres; and in strict law to the 90 acres only. But he ought to have recovered the latter at any rate. M'Crae and George K. Taylor, contra. APRIL, 1810. Clay V. White. There could be no ground for this. Either White was in possession of the 350 acres only; or of the whole land. If the former was the case, the plaintiff could not set up a claim against him for the 90 acres which he had not in possession. The case of Goodright, Lessee of Balch, v. Rich,(a) shews that con- (@) 7 T. R. fession of lease, entry and ouster does not conclude the question of possession; that, if the defendant be not actually in possession, judgment ought not to be given against him; and that the plaintiff ought to prove that the defendant is in possession. Here the declaration claims only 342 acres. There is nothing to prove that White was in possession of more than his patent warranted. If he had had nothing in his possession, claimed by Clay, there could be no doubt that Clay could not have recovered against him: and the same reason applies to these 90 acres. But, if White was in possession of the 90 acres, on the same ground that the plaintiff's title failed as to the 350, it fails as to the 90; for the possession is equally adverse in both cases. No possession is found in Clay, or those under whom he claims, except so far as the deeds might be construed as carrying possession. Hay, in reply. Nothing is said positively as to the possession of the 90 acres. Clay's title to the whole 440 appears. But, according to Tabb v. Baird, he cannot recover the 350 acres in this form of action. The question in Term Reports did not arise on a special verdict; but at the trial; being whether the defendant could be admitted to prove himself not in possession, or whether the plaintiff was bound to prove him in possession. No such question arose here. It would be inconvenient to transfer the doctrines recently established in England to this country. This is not a rule property, but of practice; and, even in that country, the rules are different in different Courts. 327. APRIL, 1810. Clay The verdict here is too defective to enable the Court to decide the whole case. There are other defendants besides White. Hardy and others, also confessed lease, entry and White. ouster. They may be in possession of the 90 acres. The Jury ought to have said who was in possession of them. V. Taylor. This is a new objection. Either White is in possession; or he is not. If he is not, the law is clearly in our favour. If he is, the Jury were not bound to state the the of the defendants; for the plaintiff must recover by the strength of his own title; not by the weakness of the defendants' title. The plaintiff's title is clearly defective according to Tabb v. Baird; it appearing that the person of whom he bought never was in possession. The Jury's stating farther the adverse possession of White was altogether surplusage. Saturday, May 28th. Judge FLEMING informed the counsel, that an argument was requested on the following point; "whether the bare obtaining a patent for land is to be considered as giving seisin to the grantee?" October 29th. Hay maintained the affirmative; relying especially on the language of the several acts of assembly (a) Ch Rev. concerning the land office; (a) from all which it appears to have been the intention of the legislature to grant an absolute unconditional title to the patentee. p. 98. 1 Rev. Code, p. 142. s. 5. p. 147. s. 43. and p. 148. s. 44. He suggested as a proposition, whether a conveyance by record is not equal to livery. In England there are two kinds; a fine and a common recovery. By either of these a complete title (which according to Blackstone is juris et seisina conjunctio) is transferred, and no entry is necessary to perfect it. A patent under the great seal is of equal (b) Bar- dignity: for in 5 Co. 94. b.(b) the doctrine is laid down, vicke's case. totidem verbis, that letters patent under the great seal amount to a livery in law. So in Bac. Abr. tit. Prerogative, and 17 Viner, 95. it is said that a grant of a reversion by the king is good without attornment. If such would have been the effect of a grant under the regal government, he could see no reason why a patent granted by the Commonwealth should not have the same effect. Every principle of public convenience requires that this position should be held to be true: and, when we advert to the situation of this country, it is peculiarly necessary. To take actual possession in many cases would be extremely difficult. The patentee must take witnesses with him; and by their subsequent death or removal might be prevented from recovering, though he had the oldest patent. If a patent were not sufficient without actual entry, it might often happen that a younger patent would take precedence, and the claimant under the older patent be driven to a suit in Chancery. But the uniform understanding of the people of this country is, that the patent itself gives complete title, and enables the patentee to maintain any action whatsoever. APRIL, George K. Taylor, contra, did not contradict Mr. Hay's position that the act of assembly gives a title: but the question is whether that title is of itself sufficient to enable a party to maintain his action without actual possession. The legislature has indeed declared that actual possession need not be proved to maintain a writ of right;(a) but this does not extend to ejectment; for exceptio probat regulam. 29. It would seem a fair inference from that act, that, if it had not been passed, proof of actual possession would have been necessary in a writ of right. The case then stands as influenced by decisions in England alone. The authority of Barwicke's case is admitted; but it only proves that a patent amounts to a livery in law. Now it is clear that a livery in law is not sufficient without actual possession. 3 Bac. Abr. 146. (Gwill. edit.) tit. Feoffment. Cur. adv, vult. 1810. Clay V. White. (a) 1 Rev. Code, & 12. . APRIL, 1810. Clay V. White. Thursday, April 19, 1810. The Judges delivered their opinions. Judge TUCKER (after stating the case) proceeded as follows: Mr. Hay admitted that, after the decision of this Court in the case of Tabb v. Baird, 3 Call, 475. and Duval v. Bibb, Ibid. 362. he could not support the plaintiff's title, under the deed of bargain and sale from Henry Fox, to maintain an ejectment for so much of the land in controversy as was found by the Jury to have been in possession of the defendant at the time that conveyance was made; but contended, that, if the verdict contained sufficient certainty to ascertain the bounds of White's 350 acres, judgment ought to be rendered for the plaintiff, for the remaining 90 acres; or, if the verdict be too uncertain for that purpose, there ought to be a venire de novo. I am of that opinion; for, if John Fox, the testator, was capable of devising this land, (of which hereafter,) Henry, his son, must be considered as taking under the devise, and not merely under the deed from his mother, which was intended to be, and was in fact, an appointment by her, under the power given by the will, and not a conveyance of any interest from herself, though both the considerations of natural love and affection, and of five shillings in money, are also mentioned therein. Whether Mrs. Fox the mother ever entered upon these lands confided to her care does not appear, and is not material to this part of the case. But the patent to White, and his actual and continued possession of the lands from the date thereof in 1792, either vested in him a rightful, or wrongful possession adverse to the title of John Fox, and of all claiming under him; so far as that possession actually extended; but no further. For it would be a most mischievous construction, indeed, to suppose, that the entry of a disseisor upon one hundred acres of land, part of one thousand, or more, would prevent the owner from conveying away the residue, to any other person he might think proper. Here the Jury have found the lands in controversy |