Barr v. Gratz

• Citation: 4 Wheat. 213,4 L.Ed. 553,17 U.S. 213
• Parties: BARR v. GRATZ'S Heirs
• Decision Date: 19 February 1819
• Court: United States Supreme Court

17 U.S. 213

4 L.Ed. 553

4 Wheat. 213

BARR v. GRATZ'S Heirs.

February 19, 1819

[Syllabus from pages 213-215 intentionally omitted]

ERROR to the Circuit Court of Kentucky. This was an action of ejectment, in which the defendants in error were the lessors of the plaintiffs below, and which was brought to recover the possession of a tract of land in the district of Kentucky, claimed by them, under a patent issued to John Craig, November 18th, 1784, for 1000 acres of land, included in three separate warrants of 320 acres, 480 acres, and 200 acres, surveyed for John Craig, on the 14th of January 1783.

On the 16th of July 1784, John Craig conveyed, by deed, the said tract of land to Michael Gratz, the ancestor of the lessors of the plaintiffs, and covenanted to cause a patent to issue to said Gratz, or if it could not issue in his name, that said Craig would stand seised to the use of Gratz, and make such other conveyances as should be necessary to confirm the title. On the 23d of June 1786, Gratz made an agreement with Robert Barr, the defendant in ejectment, to convey to him 750 acres of land, part of the said 1000 acres; the defendant entered into possession

of the whole tract, and settled a quarter and farm thereon, and on the 11th day of April 1787, John Craig, by the direction of said Gratz, conveyed to the defendant, Barr, 750 acres, in fulfilment of said agreement, which were severed by metes and bounds from the said tract of 1000 acres. On the 26th of April 1791, John Craig and his wife made a conveyance in trust to Robert Johnson and Elijah Craig of all his property, real and personal. On the 12th of February 1813, Robert Johnson, as surviving trustee, under a decree in equity of the circuit court for the district of Kentucky, conveyed to the lessors of the plaintiffs that part of the 1000 acres not previously conveyed to the defendant Barr, and in the part so conveyed, was included the land claimed in this action.

The defendant, Barr, claimed the tract of land in controversy, under a patent for 400 acres, issued by the state of Kentucky, on the 15th of September 1795, founded on a survey made for Benjamin Netherland, May 12th, 1782.

On the trial of the cause, the plaintiffs read in evidence to the jury, the patent to John Craig for 1000 acres of land; copies of two other surveys for John Craig; the deed of the 16th July 1784, to Michael Gratz, the ancestor of the lessors of the plaintiffs; the deed of trust of the 26th of April 1791, from John Craig and wife to Robert Rohnson and Elijah Craig; the deed of the 12th February 1813, from Rrbert Johnson (as surviving trustee) to the lessors of the plaintiffs; the decree in the chancery suit between Michael Gratz and John Craig and others under which that deed was made; the surveys, plats and reports of the 14th of January 1783, signed by John Price, and the agreement between the said Gratz and Barr. The plaintiffs also introduced parol testimony establishing the boundary of the land patented to John Craig, and proving the defendant's possession of the whole tract.

The defendant gave in evidence a deed from one Coburn to him, dated the 13th of December 1796; the deed from Craig to him of the 11th of April 1787; the plat and certificate of Netherland's survey; the certificate of its conveyance by Ann Shields to the defendant; and gave parol testimony that, in the winter and spring of 1791, Coburn entered into, and fenced a field, within the boundary of Craig's patent, claiming to hold the same under the title of Netherland, as part of the land included in his survey of 400 acres.

The defendant objected to the admission in evidence of the record and proceedings of the circuit court, in the chancery suit between Michael Gratz and John Craig and others; but the decree was permitted to be read to the jury, to which the defendant excepted. The defendant also excepted to the admission in evidence of the deed from John Craig to Michael Gratz, dated the 16th of July 1784, because the same was not proved by the subscribing witnesses, nor their absence accounted for.

The court instructed the jury as follows: 1. That if they should be of opinion, that neither the defendant, nor John Coburn, under whom he claims, were in actual possession of the land now in dispute, prior to the 18th day of November 1784, the date of the patent to John Craig for the land now in dispute, that the emanation of the said grant gave possession to the said John Craig of the whole of the said land; and that the present plaintiffs were entitled to the benefit of that possession.

2. That if the jury should be of opinion, that Robert Barr, the defendant, entered upon, and took possession of the land in contest, under a contract with the ancestor of the plaintiffs, and was so possessed, at the time of the settlement of Coburn, under whom the defendant now pretends title, that the possession of Coburn, when taken, did not extend within the patent lines, under which the lessors of the plaintiffs claim, beyond his actual occupancy.

3. That Coburn's claiming and fencing a part of the land in 1791, or whenever the jury should be of opinion, he took possession and fenced within the patent limits aforesaid, did not give to him a legal possession to any other part of the land within the patent to Craig, than that of which he had the actual occupancy.

4. That the possession of Coburn, attempted to be proved, more than twenty years before the bringing this suit, did not bar the plaintiffs' right to sue, further than he showed an actual possession for twenty years or upwards, next before bringing this suit.

The defendant objected to the instructions so given the jury, and moved that the court should give certain other instructions to the jury, which were refused. A verdict was taken for the plaintiffs, and judgment rendered thereupon. The defendant afterwards moved for a new trial, which was refused by the court. The cause was thereupon brought, by writ of error, to this court.

February 11th.

This cause was argued by Trimble, for the plaintiffs in error, who made the following points: 1. That the court below erred in refusing the motion for a new trial. 2. That the decree in the chancery suit between Michael Gratz and John Craig and others, was not admissible in evidence in this case. 3. That there was error in admitting in evidence the deed from John Craig to Michael Gratz, of the 16th of July 1784, without the regular proof of its execution by the subscribing witnesses. 4. That the deed of the 13th of February 1813, from Robert Johnson, as surviving trustee, to the lessors of the plaintiff, under the decree in chancery, was not admissible in evidence, without preliminary proof that Elijah Craig was dead. 5. That the said deed was not approved by the court, nor recorded as required by the statute of Kentucky of the 16th of February, c. 453. 6. That the deed of the 26th of April 1791, from John Craig and wife, in trust, to Robert Johnson and Elijah Craig, was void under the statute of champerty and maintenance, the land being at the time in the adverse possession of Coburn. 7. That the court below erred in the instructions it gave to the jury.

Talbot and Sergeant,...