(meaning, I presume, the lands comprehended within the lines of Fox's patent) to contain 440 acres, and that White's survey contains only 350 acres; the amount, though not the precise bounds of the disseisin, or ouster, are therefore shewn by the jury: and they ought to have discriminated between the lines of White's patent and that of Fox, which the surveyor, in his report, alleges, covers and includes the former; Fox's deed to Clay not being impeachable for the surplus. Mr. Taylor, for the appellee, cited the case of Goodright, Lessee of Balch, v. Rich, 7 T. R. 327. to shew that the plaintiff is not entitled to a verdict for those ninety acres, because he is bound to prove the defendant in possession of the whole of the premises which he seeks to recover. Without examining the doctrine laid down in that case, to which, as at present advised, I cannot subscribe, and to which the cases of Smith v. Mann, and Jesse v. Bacchus, cited in Buller's Ni. Pri. 110. perhaps afford a proper answer; the reply of Mr. Hay, that the Jury have in this case expressly found the lease, entry and ouster in the declaration mentioned, is, in my opinion, sufficient to obviate the objection, were such on obligation as Mr. Taylor contends for admitted. We come now to the question suggested by a member of the Court, whether a patent from the Commonwealth be equal to an actual seisin; or, as I understood the question, whether a patent only confers a complete title to lands derived from the Commonwealth; without an actual entry into the same and corporeal possession thereof, or not. APRIL, 1810. Clay V. White. 15. a. 3 Atk. That an entry is not always necessary to give seisin in deed, appears from the cases cited by Mr. Hargrave, Co. Litt. 29. a. note 3.(a) In England, letters patent under the (a) Co. Litt. great seal amount to a livery in law. (b) In this country, 471. 3 Wilson, where grants of waste and unappropriated land only are ge- v. Newman. nerally made, as in the present case, I should suppose a Barwicke's grant of such lands from the Commonwealth, under the case. seal of the state, must be considered as tantamount, not 516. Newman (b) 5 Co. 94. APRIL, 1810. Clay V. White. only to a livery in law, but to a livery in deed. For the (a) Bro. Abr. enters, HE is a disseisor.(a) tit. 'Disseisin' 65. ¿ Bac. one, and, before he enters, another person enters and keeps Prero gative,' ad fi Abr. Pre the possession until he dies, and dies seised; and the lands nem, p. 214.old descend to the heir of the disseisor; yet may the patentee edit. 240. b. enter; for his entry is not taken away by the descent in this (b) Co. Litt. case.(b) Upon common law principles, then, I am of opinion that an actual entry into waste and unappropriated lands granted by the Commonwealth is not necessary, in order to complete the patentee's title thereto; but that the same is, upon the delivery of the patent, absolute and complete for every purpose whatsoever, whether to maintain an action, or to transmit an inheritance, or to grant the same by deed, or by last will and testament. Other reasons, I think, may be drawn from the nature and situation of the country; constant usage from its first settlement; and some particulars in our laws. All the lands in Virginia have been originally granted as vacant lands. Whatever might have been the policy at the first settlement of the colony, large and extensive grants were made soon after. APRIL, 1810. Clay White. With the revolution, it became an object to raise a revenue from the sale of vacant lands, without requiring any actual settlement or cultivation. Millions of acres were disposed of to purchasers from all quarters upon those terms. It was impossible to calculate upon an increase of population commensurate with such extensive grants. All that the Commonwealth required of the patentee was the payment of his taxes upon the lands thus acquired. That done, the law had no other claim upon him. Why then must he make an actual entry? His patent was evidence of every thing that could be the object of such an entry. It was founded upon an actual survey; for making which he paid all the expense; this survey was founded upon an actual location, made, or supposed to be made, by himself or his agent. His land-warrant was his authority for so doing; and his entry in the surveyor's books; the subsequent survey made pursuant thereto; and, finally, his patent, were all so many evidences, in succession, of these facts. If the possession of a lessee for years, at common law, be construed as the possession of him that hath title to the freehold, (without entry, or receipt of rent,) so as to make a man tenant by curtesy of his wife's estate,(a) surely these (a) Vide Harg. Co.Litt. acts done by the patentee or his agents, (though preparato- 29. a. note 3. ry to a patent, instead of being subsequent thereto,) may, in favour of a purchaser for a valuable consideration, (and such every patentee from the Commonwealth is,) be construed as equivalent to an actual entry, into lands granted by the Commonwealth. How many thousand titles must be defeated, if, in order to transmit an inheritance in lands so granted, or to give validity to a devise thereof, or to any other conveyance, an actual entry and corporeal seisin must be proved in every case? It would be both a mischief, and an inconvenience, too great for the law to adopt, or to countenance, APRIL, Clay V. White. Again; by an express provision in our law, actual possession need not be proved to maintain a writ of right. If the law will admit a patent, as evidence of a complete title in the demandant, or his ancestor or predecessor, in the highest and most solemn contest concerning lands, will it reject such evidence in an action merely possessory. The object of the evidence in both cases must be to prove an hereditary right in the original patentee, absolutely perfect, so as to be capable of conveying or transmitting the inheritance. It would seem strange if we were to reject the evidence of this patent to John Fox, in this case, as insufficient to support the plaintiff's title derived from his son, and devisee, and thirty years hence the same patent should be offered and admitted as evidence sufficient to maintain a writ of right for recovery of those lands, or others in the same predicament. Nor do I conceive it necessary that Henry Fox should have made an actual entry upon the lands to enable him to convey to Mr. Clay. Wherever there is a devise of lands, (a) Co. Litt. the law casts the freehold upon the devisee before entry;(a) 111. a. and, by the will, the possession of these lands was in Mrs. Fox, until she had made the appointment to her son pursuant to her husband's will; that appointment being made, the law cast the possession, both under the will and under the deed of bargain and sale, (in which form the appointment was made,) instanter, upon the son. His possession thus acquired enabled him to convey all the lands of which he was not actually disseised. An actual entry was not necessary to be made by either, to enable the plaintiff to (b) Co. Litt. maintain an ejectment.(6) 240. b. Bull. Ni. Pri. 103. Upon the whole, I am of opinion that the plaintiff was 3 Burr 1897. entitled to recover all the lands comprehended within the Dougl. 468, lines of John Fox's patent, of which his son and devisee was not actually disseised, by the abatement of William White, at the time that Henry Fox executed the conveyance to the plaintiff, which the Jury have found in their verdict; and therefore that there ought to be a venire facias de novo, to ascertain the boundaries of the lands not comprehended within the line of White's patent for 350 acres; the plaintiff being entitled to the residue. 59. APRIL, 1810. Clay V. White. 475. Judge ROANE. In the case of Birch v. Alexander,(a) (a) 1 Wash. it was held that a seisin in the Commonwealth need not be found; that being the ultimate point beyond which a party in proving his title is not bound to go. Although this would seem to import that, in all the derivative stages, seisin must be found, yet undoubtedly the finding of an actual seisin, or corporeal investiture, may be supplied by finding other things deemed by the law of equal validity and notoriety. Thus, under the decision in Tabb v. Baird, (b) it would (6) 3 Call, be sufficient to find that a defendant purchased by deed of bargain and sale, (which is considered as a statutory livery of seisin,) from a person having possession. So, as a fine is deemed an acknowledgment of a feoffment of record, and in which livery of seisin is not necessary to be actually given, the supposition and acknowledgment thereof in a Court of Record, however fictitious, inducing equal notoriety,(c) the finding of an assurance of that kind would (c) 2 Bl.Com. be equally effectual, were it not obsolete in this country. In like manner it is held, that letters patent, under the great seal, amount to a livery in law.(d) In all these cases (d) 5 Co. 94 an actual corporeal tradition is dispensed with by the law, case. on the ground that acts of equal notoriety with it ought to have an equal and similar effect. The reason of this holds very strongly in relation to grants of land in a new country, where the proof of actual possession would be very difficult, and where, in some sense, a corporeal investiture of the land has been already taken by the entry and survey which preceded the grant, and may be said to be admitted and sanctioned thereby. In the case before us, the seisin thus acquired by the original patentee was deduced to the present appellant by the deeds of bargain and sale stated in the verdict, as to all that part of the tract in question, of which the appellees were not in possession under 348. Barwicke's |