Darby v. Mayer

• Decision Date: 17 March 1825
• Citation: 6 L.Ed. 367,10 Wheat. 465,23 U.S. 465
• Parties: DARBY'S Lessee v. MAYER and another
• Court: U.S. Supreme Court

23 U.S. 465

6 L.Ed. 367

10 Wheat. 465

DARBY'S Lessee v. MAYER and another.

March 17, 1825

ERROR to the Circuit Court of West Tennessee.

March 1st.

This cause was argued by Mr. Bibb and Mr. Isaacs for the plaintiff in error, and by Mr. White and Mr. D. Hoffman for the defendants in error. But as the judgment turned only on a single point, and does not finally dispose of the cause, it has not been thought necessary to report the argument.

March 17th.

Mr. Justice JOHNSON delivered the opinion of the Court.

This was an action of ejectment, in which the present plaintiff was plaintiff in the Court below. His title is derived through a patent to one John Rice, and successive conveyances down to himself which it is immaterial to recapitulate, since no question arises upon this part of the evidence. The defence set up was the statute of limitations, and in order to bring himself within its provisions, the defendant received the patent under which the plaintiff claims, as the patent for his own land, and undertakes to connect himself with it. This gave rise to a variety of exceptions taken by the plaintiff to the evidence offered by the defendant for this purpose, to which the defendant replies, that should he have failed in establishing a connexion by a chain of title, he has complied with the statute notwithstanding, by proving his possession within the patent issued to Rice, which, he contends, is all the connexion with a patent which the law requires.

One of the grounds of exception made by the plaintiff is, that the evidence of the defendant proves his possession to be upon a tract of land essentially different from that which the patent covers. And not a little difficulty has existed on this part of the case, to understand the counsel when discussing the question of identity. All this has arisen from omitting to have the locus in quo established by a survey; an omission to which the Court takes this opportunity to express its disapprobation. It is true, that the case upon this bill of exceptions can be disposed of without such a survey, but great facility would have been afforded by a survey, in understanding the discussion, which, without it, was scarcely intelligible. It is very obvious, when we refer to the patent to Rice under which the plaintiff claims and the entry to Ramsay through which the defendant deduces title, both of which are made parts of the bill of exceptions, that they do not describe the same land. On the contrary, that to Rice, calling for the entry to Ramsay as its eastern boundary, must necessarily lie without it.

However, we are of opinion, that we are not now at liberty to notice this inconsistency. The bill of exceptions states, that the plaintiff proved the defendant in possession of the land granted to Rice, and the defendant proved himself in possession of the land entered to Ramsay, both concurring in the fact that the land in the defendant's possession was the land in controversy; from which it certainly results that Rice held a patent for Ramsay's entry. But the defendant having no patent, the other has, of course, the legal estate in him, which may be barred by the defendant's possession, if he brings himself within the provisions of the statute.

In order to connect himself with the patent, the defendant proved a sale of the inchoate interest of John Rice to one Solomon Kitts, and the next link in his title depended upon the will of Solomon Kitts. To prove that Kitts devised the land to the trustees through whom defendant made title, a copy and probate of the will of Kitts was produced in evidence, duly certified from the Orphan's Court of Baltimore county, Maryland, in which, it seems, the will had been recently proved and recorded. This evidence was excepted to, but the Court overruled the exception, and it went to the jury.

The question is, whether the evidence thus offered was legal evidence of a devise of land?

The common law doctrine on this subject no one contests; the ordinary's probate was no evidence of the execution of the will in ejectment. Where the will itself was in existence, and could be produced, it was necessary to produce it; when the will was lost, or could not be procured to be produced in evidence, secondary evidence was necessarily resorted to, according to the nature of the case. But whatever proof was made, was required to be made before the Court that tried the cause; the proof before the ordinary being ex parte, and the heir at law having had no opportunity to cross-examine the witnesses; neither were the same solemnities required to admit the will to probate as were indispensable to give it validity as a devise of real estate. At first it was a question...