20 U.S. 59 (1822), Ricard v. Williams

Citation:20 U.S. 59, 5 L.Ed. 398
Party Name:RICARD v. WILLIAMS and Others.
Case Date:February 28, 1822
Court:United States Supreme Court
 
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Page 59

20 U.S. 59 (1822)

5 L.Ed. 398

RICARD

v.

WILLIAMS and Others.

United States Supreme Court.

February 28, 1822

OPINION

[COMMON LAW. LOCAL LAW.]

ERROR to the Circuit Court of Connecticut.

This was a suit instituted by the defendants in error against the plaintiff in error, in the Court below. The original action is commonly known in Connecticut by the name of an action of disseisin, and is a real action, final upon the rights of the parties, and in the nature of a real action at the common law. The cause was tried upon the general issue, nul tort, nul disseisin, and a verdict being found for the demandants, a bill of exceptions was taken to the opinion of the Court upon matters of law at the trial.

The history of the case, as it stands upon the record, is in substance as follows. The demandants claimed the estate in controversy, by purchase from the administrator of William Dudley, at a sale made by him for the payment of the debts of his intestate, pursuant to the laws of Connecticut, which authorize

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a sale of the real estate of any person deceased, for the payment of his debts, when the personal assets are insufficient for that purpose. In order to establish the title of William Dudley in the premises, the demandants proved that Thomas Dudley, the father of William, was, in his lifetime, possessed of the premises, as parcel of what were called the Dulley lands, and died possessed of the same in 1769, leaving seven children, of whom William was eldest, being of about the age of fourteen years, and Joseph Gerriel, the youngest, being about four years of age. Upon the death of his father, Joseph Mayhew, the guardian of William, entered into possession of the Dudley lands, and of the demanded premises as parcel, taking the rents and profits in his behalf during his minority; and upon his arrival of age, William entered and occupied the same, taking the rents and profits to his own use, until his death, which happened in the year 1786; all his brothers and sisters being then living. During the life of William, no other person claimed any right to enter or occupy the premises, except that his mother used to receive one-third of the rents and profits, until she died in the year 1783. During his life, and while in possession of the premises, William always declared that he held the same only for life, and therefore would not allow any improvements on them at his expense; no leases were made by him except for short periods; and no attempt was made by him to sell or convey the premises; and he declared that he had no right to sell them, and that upon his death they would descend to his son Joseph Dudley, under whom the tenant derived

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his title, in the manner hereafter stated. No administration was ever taken in Connecticut upon the estate of William Dudley, until 1814, and his estate was then declared insolvent; and, in 1817, the lands in controversy were sold by the administrator, by order of the Court of Probates, for the payment of the debts found due under the commission of insolvency.

To rebut the title of the demandants, and to establish his own, the tenant proved that William Dudley died intestate, leaving seven children, the eldest of whom was Joseph Dudley. Upon the death of his father, the guardian of Joseph (the latter being within age,) entered into possession of the Dudley lands, and the demanded premises as parcel, and used and occupied the same, receiving the rents and profits in behalf of Joseph, until his arrival of age, when Joseph himself entered into possession, claiming them as his own, and taking the rents and profits to his own use, and holding all other persons out of possession, until the year 1811 and 1812, when he sold the demanded premises, and the tenant, either by direct or mesne conveyances under Joseph, came into possession, and has ever since held the premises in his own right. In the year 1811, Samuel Dudley, the brother of Joseph, claimed title to some of the Dudley lands possessed by Joseph, and brought an action of ejectment for the recovery of them, but the suit was compromised by Joseph's paying him about 2,000 dollars; and about the same time Joseph settled with another of his brothers, but did not pay him any thing. But Joseph never admitted that his brothers

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or sister had any interest in the lands; and said he could hold them, and did hold them in the same manner as he held the lands in Massachusetts.

The will of Governor Dudley, which was admitted to probate in Massachusetts in 1720, was also in evidence, but neither party established any privity or derivation of title under it.

Upon these facts, the tenant prayed the Court to instruct the jury, that the demandants had not made out a title in themselves, nor in William Dudley. Not in themselves, because the sale by the administrator to the demandant was void, by force of the statute regarding the sale of disputed titles, the tenant being in possession of the property at the time of the sale, claiming it as his own, and that William Dudley had acquired no title to the property in question by possession, as he claimed to hold the same only during his life, and could therefore acquire no title, except for life by any length of possession, and that if he could acquire title by possession, if this estate descended from Thomas Dudley, said William could not, in seventeen years, acquire a title against his brothers and sisters, or at least against those of them who had not been of full age for five years before the death of said William; and if the demandants could recover at all, it could only be for that proportion of the estate which descended from William as one of the heirs of Thomas Dudley.

The tenant further prayed the Court to instruct the jury, that if they found that Joseph Dudley had, for more than fifteen years before he sold the land in controversy, been in possession of the same, exclusively

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claiming them as his own, and holding out all others, he had gained a complete title to the property.

The tenant further claimed that the Court ought to have instructed the jury, that under the circumstances attending the possession of said lands by William Dudley, the father, and by Joseph Dudley, and the length of time which had elapsed since the death of said William, without any claim on the part of the creditors of said William, the jury might presume a grant from some owner of the land to William for life, with remainder to his eldest son. But the Court did charge and instruct the jury that the sale by the administrator under an order of Court was not within the statute regarding disputed titles, and was not therefore void. That William Dudley, by mistaken constructions of the will of Governor Dudley, might have claimed an estate for life in the premises, and that such mistake would not operate to defeat his title by possession. That the length of time in which this estate had been occupied by William and Joseph Dudley, would bar any claims by the other children of Thomas Dudley deceased, and that the jury were authorized to presume a grant by said children to their brother William Dudley deceased, and, therefore, if the demandants recovered, they must recover the whole of the premises.

The Court also charged the jury that, as against the creditors of William Dudley, neither Joseph Dudley nor the tenant had gained title to the lands in controversy by possession, and that the jury were not authorized to presume a grant to Joseph.

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To which several opinions of the Court, the tenant by his counsel excepted.

Feb. 13th.

Mr. D. B. Ogden, for the plaintiff in error, argued, 1. That this being a writ of entry, in which the demandants or plaintiffs counted on their own seisin, and could count in no other way; and as they were unconnected with any other seisin than their own, it was necessary for them to have shown upon the trial an actual entry. Without such actual entry there never could have been any seisin or possession in them; and without such seisin or possession in them there never could have been any disseisin or forcing them out of possession. In an action of ejectment, which is a mere legal fiction, the execution of the lease, the entry under it, and the ouster are all stated in the declaration, and they must be proved upon the trial. Unless the defendant will afford the means of that proof by his confession, the plaintiffs cannot obtain a verdict. So here the entry and ouster must be proved, or the plaintiffs never can recover; because the entry and ouster are the very foundation of the whole action. Actual seisin is as necessary in a writ of entry as a writ of right. Green v. Liter, 8 Cranch 229, 244. The actual seisin and ouster are expressly stated in the declaration . They are material and necessary allegations. It is a universal rule, that whatever is a material and necessary allegation in the declaration, is a material and necessary part of the proof upon the trial, unless that necessity be dispensed with by

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the pleadings. Now, in this case, there is no pretence that any actual entry was ever made in the premises in question by the plaintiffs. None was proved upon the trial; the demandants were, thereupon, not entitled to a verdict.

By the local law of Massachusetts and Connecticut an administrator has no seisin of the lands of his intestate. They descend to his heir at law, subject to a naked power in the administrator, in case of an insufficiency of the personal property to pay the debts of his intestate, to sell the lands for the payment of those debts. The administrator or executor may lawfully sell them, whether they be in the possession of a devisee, or an heir, or their heirs or assigns, or of a disseisor of a devisee or heir: for, say the cases, the...

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