The Lessee of Henry Brewer, Plaintiff In Error v. Jacob Blougher and Daniel Blougher, Defendants In Error

• Decision Date: 01 January 1840
• Citation: 39 U.S. 178,14 Pet. 178,10 L.Ed. 408
• Parties: THE LESSEE OF HENRY BREWER, PLAINTIFF IN ERROR, v. JACOB BLOUGHER AND DANIEL BLOUGHER, DEFENDANTS IN ERROR
• Court: U.S. Supreme Court

39 U.S. 178

14 Pet. 178

10 L.Ed. 408

THE LESSEE OF HENRY BREWER, PLAINTIFF IN ERROR, v. JACOB BLOUGHER AND DANIEL BLOUGHER, DEFENDANTS IN ERROR.

January Term, 1840

AN action of ejectment was instituted by the plaintiff in error, a citizen of Pennsylvania, in the Circuit Court of the United States for the District of Maryland, for the recovery of a tract of land situated in Allegany county, in the state of Maryland, called 'Part of Grassy Cabin.'

The following were the facts of the case, as agreed upon by the parties to the suit.

John Sloan, late of Allegany county, was twice married; by his first wife he had but one child, namely, Mary Sloan; and by his second wife he had the following children, namely, William Sloan, John Sloan, Elizabeth Sloan, Peggy Sloan, Sally Sloan, and Jane Sloan: and that the plaintiff's lessor is the husband of the said Elizabeth.

After the death of his second wife, John Sloan lived and cohabited with and married Mary Sloan, his daughter, by his first wife, and had by her the following children, viz.: William Sloan, John Joseph Sloan, Mary Sloan, Jesse Sloan, and David Sloan; and William Sloan is since dead.

The said John Sloan, the father, was many years ago seized and possessed of a tract of land lying in Allegany county, Maryland, called 'Grassy Cabin,' containing four hundred twenty-seven and one-fourth acres, to which tract he had an undisputed legal title.

The said John Sloan being so seized and possessed of the said tract of land, conveyed the same for a valuable consideration, by a deed of bargain and sale, duly executed, acknowledged, and recorded according to law, to John Joseph Sloan, and that the said John Joseph Sloan became and was seized and possessed of the said tract of land, under and by virtue of the said deed.

The said John Sloan, the father, and Mary Sloan, his said daughter, by his first wife, both departed this life about the year 1826, and the said John Joseph Sloan died about the year 1832, seized and possessed of the said tract of land, intestate, and without issue, and unmarried; leaving Mary Sloan, Jesse Sloan, and David Sloan, his brothers and sister, children of the said Mary Sloan, by her said father as aforesaid, him surviving.

That the said Mary Sloan, Jesse Sloan, and David Sloan, being possessed of and claiming title to the said tract of land, called 'Grassy Cabin,' by descent from the said John Joseph Sloan, conveyed the same, by a deed of bargain and sale duly executed, acknowledged, and recorded according to law, to Jacob Blougher and Daniel Blougher, the defendants.

After the death of the said John Joseph Sloan, the plaintiff, Henry Brewer, obtained out of the Western Shore land office, a special warrant of escheat, to re-survey and affect the said tract of land, called 'Grassy Cabin,' for an alleged want of the heirs of John Joseph Sloan, who died seized thereof, in fee, and intestate as aforesaid; and the patent was granted to the said Henry Brewer.

The patent was in legal form, and recited the escheat of the land, 'for want of heirs of John Joseph Sloan, who died seized of the premises.'

The question for the decision of the Circuit Court, upon these facts was, whether, upon the death of the said John Joseph Sloan, according to the laws and statutes of Maryland, the said tract of land, 'Grassy Cabin,' did not pass by descent to the said Mary Sloan, Jesse Sloan, and David Sloan, his illegitimate sister and brothers as aforesaid. If the Court shall be of opinion that the said tract of land did not so pass by descent, then judgment to be given with costs for the plaintiff. If the Court shall be of opinion that the said tract of land did so pass by descent, then judgment to be given with costs, for the defendants. Either party to be at liberty to appeal or sue out a writ of error; it being admitted that the value of the land in controversy is at least twenty-five hundred dollars.

The Circuit Court gave a judgment for the defendants; and the plaintiff prosecuted this writ of error.

The case was argued by Mr. Pigman, for the plaintiff in error, who also submitted a printed argument by Mr. Mayer, also for the plaintiff. A printed argument for the defendants was submitted to the Court by Mr. Price.

Mr. Pigman, for the plaintiff.

The plaintiff in error, being a citizen of the state of Pennsylvania, claiming title to the tract of land called 'Part of Grassy Cabin,' which is mentioned in the declaration in the record, as being in Allegany county, in the state of Maryland, brought his action of ejectment against the defendants in error, residing in the latter state, in the Circuit Court of the United States for the District of Maryland, to try his title to said tract of land. The plaintiff holds title to his land by patent from the State of Maryland, issued by the legal authorities of that state, upon an escheat warrant from the land office, by virtue of the acts of Maryland, of October session, 1780, ch. 51, sec. 5, and 1781, ch. 20, sec. 8. The plaintiff applied to the land office of the state of Maryland for his escheat warrant, upon the ground that one John Joseph Sloan died in the state of Maryland, intestate, seized in fee simple of the land mentioned in his patent, without issue, and without heir or heirs who could have inherited. The facts upon which the questions of law will arise are settled by agreement filed by consent, and make part of the record.

The act of 1780, ch. 51, sec. 5, enacts 'that any lands within the state of Maryland, of which any person shall die seized in fee simple, without any heir of the whole blood who could inherit, or without leaving any relative of the half blood, such lands shall escheat to the state.' And by the act of 1781, ch. 20, sec. 8, escheat warrants are authorized to be issued from the land office 'when the owner shall die intestate, seized in fee simple, without having any relation of the half blood within two degrees, as the same are reckoned by the common law, and without leaving any relation who might inherit.'

It appears by the agreement of counsel filed in the cause, that one John Sloan, late of Allegany county, was twice married: by his first wife he had but one child, namely, Mary Sloan; and by his second wife he had the following children, namely, William Sloan, John Sloan, Elizabeth Sloan, Peggy Sloan, Sally Sloan, and Jane Sloan.

After the death of his second wife, the said John Sloan lived, and cohabited with, and married Mary Sloan, his said daughter by his first wife; and had by her the following children, namely, William Sloan, John Joseph Sloan, Mary Sloan, Jesse Sloan, and David Sloan; and that William Sloan is since dead.

The said John Sloan being seized and possessed of a tract of land lying in Allegany county, called 'Grassy Cabin,' containing four hundred twenty-seven and one-fourth acres, conveyed the same by deed of bargain and sale, for a valuable consideration, to the said John Joseph Sloan.

The said John Joseph Sloan died about the year 1832, seized and possessed of the said tract of land, intestate, and without issue, and unmarried, leaving Mary Sloan, Jesse Sloan, and David Sloan, his brothers and sister, children of the said Mary Sloan, by her father, as aforesaid. The said Mary, Jesse, and David, conveyed the said tract of land by deed to Jacob Blougher and Daniel Blougher, the defendants.

After the death of the said John Joseph Sloan, the plaintiff in error obtained out of the Western Shore land office, in the state of Maryland a warrant of escheat, to re-survey and affect the said tract of land, called 'Grassy Cabin,' for want of heirs of John Joseph Sloan, and obtained his patent, which patent appears in the record.

The question for the decision of the Circuit Court by the agreement-filed, was, whether upon the death of the said John Joseph Sloan, according to the laws and statutes of Maryland, the said tract of land, called 'Grassy Cabin,' did not descend to the said Mary Sloan, Jesse Sloan, and David Sloan, his illegitimate sister and brothers, as aforesaid. The Circuit Court, upon the facts stated, gave judgment for the defendants, upon the ground that the said tract of land did descend to the said Mary Sloan, Jesse Sloan, and David Sloan. From which judgment the plaintiff appealed to this Court.

It is admitted in the statement of facts that John Joseph Sloan, and his brothers and sister the children of John and Mary Sloan, as aforesaid, were illegitimate; the marriage of the father and daughter being prohibited and made void by a law of Maryland, entitled, 'an act concerning marriage,' passed in 1777, ch. 12.

At common law, therefore, John Joseph Sloan, and his brothers, and sister, being bastards, in the eye of the law, were nullius filius, and incapable of inheriting as heirs either to their putative father, or mother, or to any one else; and John Joseph Sloan, in regard to the common law, having died intestate, and without heirs of his own body, the tract of land called, 'Grassy Cabin,' escheated to the state of Maryland, and was properly granted by patent to the plaintiff in error.

But it is contended on the part of the defendants, that by a law of Maryland, of 1825, ch. 156, entitled, 'an act relating to illegitimate children,' the brothers and sister of John Joseph Sloan, who survived him, were such heirs at law, and relations of their deceased brother, to whom his said estate might descend; and that said estate did not, therefore, escheat to the state of Maryland.

We contend on the part of the plaintiff in error, that the Circuit Court committed an error in this; that upon the statement of facts and the laws of the state of Maryland, the judgment of the Circuit Court ought to have been given for the plaintiff, and not for the defendants:

1. Because the plaintiff's patent for his land, issued by the legal authorities of the state of Maryland is good, and that he had, therefore, a right to recover his title in the Circuit Court: the...