Fitzhugh v. Croghan

• Decision Date: 22 October 1829
• Citation: 25 Ky. 429
• Parties: Fitzhugh and Thurston v. Croghan.
• Court: Kentucky Court of Appeals

25 Ky. 429

Fitzhugh and Thurston v. Croghan.

Court of Appeals of Kentucky.

October 22, 1829

Legal Title. Seisin. Covenant of Seisin. Deeds. Attestation. Recording. Endorsements. Equitable Lien. Mortgage. Right of Dower.

ERROR TO THE JEFFERSON CIRCUIT; J. P. OLDHAM, JUDGE.

Denny and Haggin, for appellant.

Crittenden and Brown, for appellee.

OPINION

ROBERTSON JUDGE:

On the 5th of January, 1818, Croghan sold and conveyed to Fitzburgh and Thurston, part of a town lot, in Louisville. He covenanted in his deed, that he was seised of the legal title to the lot, and had a right to sell it.

It appears that Croghan was in possession, when he conveyed the lot, and that he delivered the possession to Fitzhugh and Thurston, who have since retained without eviction or disturbance.

Apprehending that Croghan's title was defective, his vendees, (the appellants) on the 22d of September, 1824, brought an action of covenant against him, averring, as a breach of his covenant, that he was not seised of the legal title, and had no right to sell and convey.

Croghan plead that he was seised of the legal title to the lot, at the date of his deed, to the appellants. The case being tried on this issue, a verdict and judgment, were rendered for Croghan. To reverse which, this appeal is prosecuted.

The principal errors relied on by the appellants, are those which call in question Croghan's title. There are others, less important, which question the legality of instructions given by the court, and of opinions, overruling motions to instruct the jury.

Before these are examined, however, a preliminary objection will be noticed. It is, that the plea is not responsive to the entire breach in the declaration; the latter charging a want of legal title, and of right to convey; and the former averring seisin, only.

This objection is fallacious. If Croghan were seised of the legal title, he had a right to convey. A complete legal title, is the juris et sesinae conjunctio the title and possession united. This is the technical and legal import of the terms, " seised of the legal title." " Seisin," means, " ex vi termini, " the whole legal title. A covenant of seisin is broken, if the covenantor have not the possession, the right of possession and the right, or legal title.

Complete legal title, is juris et sesinae conjunctio. Seisin means, ex vi termini, the whole legal title; therefore, covenant of seisin is broken, if covenantor have not possession, right of possession and the right or legal title.

It would therefore, be difficult to imagine a case, in which a party could be " " seised," and yet, not have the right to sell and convey the legal title. " " " " Seisin" is a " nomen generalisseum, " which includes the right to sell " Omne majus continet in se minus. "

Croghan's title is derived, as follows:

1st. An act of the Virginia legislature of 1780, vesting the lots in Louisville, in certain persons, as trustees. III. Littell's Laws, 540.

2d. A deed from a majority of persons, calling themselves trustees of Louisville, to Pitman dated 4th September, 1783.

3d. A deed from Pitman to Woods, dated 8th February, 1810.

4th. A deed from Woods to Lucket, dated 11th April, 1812.

5th. A deed from Lucket to Skidmore, dated 9th April, 1816.

6th. A deed from Lucket, White, and Preston to Skidmore, dated 5th May, 1816.

7th. A deed from Skidmore to Croghan, 1st November, 1817.

The appellants object to the validity of the title, thus deduced and urge the following reasons in support of their objection:

1st. That the persons, conveying as trustees had no authority to pass the legal title; and that their deed was never properly acknowledged or proved.

2d. That Pitman, by an endorsement on the deed from the trustees to him, assigned his right to the lot, to William Johnson, on the 6th September, 1785, from whom the legal title had passed to others, between whom and Croghan, there was no privity.

3d. That Lucket had a wife entitled to dower, who had never relinquished.

4th. That Augustus D. and Juliet White had an interest in the lot adverse to the title of Croghan.

5th. That those claiming under Johnson, had, by a long continued possession, acquired a right to the possession of the lot, and that in consequence of that right, one of them had recovered judgment, in an ejectment against Croghan.

These objections were all disregarded by the jury and court below, and we think properly.

By the Virginia act of May, 1780, Louisville was established and one thousand acres of land, declared to be forfeited by the patentee, thereof, John Connelly, was vested in eight trustees, with power in any four of them, to lay out lots, and sell and convey them; and to fill vacancies that might occur in the board of trustees by death or removal of any of its members.

In May, 1783, another act passed, providing that as John Campbell and Joseph Simon, held a mortgage on the one thousand acres of land, which had been appropriated for the town of Louisville, as the escheated land of Connelly, " all further proceedings, respecting the sale of the said lots, and lands, shall be, and the same are hereby suspended, until the end of the next session, of the general assembly."

By another act of October, 1783, so much of the act of May, 1780, as might affect the rights of Campbell and Simon, was repealed.

Another act of October, 1784, recognizing the sales which had been made of lots, directed that the proceeds of such sales, should be collected and appropriated towards extinguishing the mortgage of Campbell and Simon; and declared " that the titles of the purchasers of lots in the town of Louisville, under the said act of May, 1780, shall be deemed valid against the claim of the said John Campbell and Joseph Simon, and their heirs or assigns."

The deed of Pitman, is dated September, 1783, and signed by three of the trustees, appointed by the act of 1780, and by James Patten, as a trustee, appointed by the board, to fill a vacancy; and attested by two witnesses.

On the trial, the original deed was read, on proof of the death and hand writing of the subscribing witnesses; a copy, certified by the clerk, was also read, on which there was this endorsement, " at a court, held for Jefferson county, April 6th, 1785, the above deed was acknowledged by the trustees of Louisville, to Buckner Pitman, and ordered to be recorded."

On the original was the following endorsement: " 1784, April court, O. record, recorded and examined, Book. A. pa. 147."

A resolution of the trustees of Louisville, appointing James Patten, a trustee, in June, 1783, was also read in evidence.

The plaintiffs offered in evidence, the order book of the county court, of Jefferson, for 1784-5, to show that no order appeared in it, for the admission of the deed to record, at April court, 1784; but that there was such an order, at April court, 1785; but the court refused to admit the order book.

Three objections are urged against this deed, by the appellants:

1st. That Patten was not a trustee.

2d. That in 1783, the trustees had no power to convey.

3d. That as an original, the deed ought not to have been read to the jury; and passed no title, because it was not attested by three witnesses.

4th. That the deed was not regularly proved by three witnesses, nor acknowledged and recorded within eight months, and therefore, passed no title; and consequently the copy was inadmissible.

It is as well ascertained that Pitman was a trustee in September, 1783, the date of the deed, as such a fact is susceptible of being proved.

The order of the trustees appointing him one of their board, ought to be conclusive; but if it were not, the fact that he acted in that capacity, in conjunction with others, who were appointed by law; that his authority was never doubted or questioned; that all who have ever held or claimed the lot, have looked to the deed, signed by him, as the only source of their right; and that upwards of forty years had elapsed, during which, the lot had been held and occupied under this deed alone, constitute a mass of presumption, which it would be difficult, if not impossible, to resist.

No title can ever be secure, if this is to be declared invalid for want of any better evidence of the authority of Patten, to act as a trustee. We deem it unnecessary to cite any of the numerous authorities, in support of this conclusion.

Whatever might be the proper construction of the suspending act of May, 1783; and whatever practical operation it alone might have on the deed, the subsequent acts leave no room for questioning the validity of the deed, so far as the legal right to convey the lot, can operate. The acts taken " in pari materia," shew that the only object of suspending sales, was to save the rights of Campbell and Simon. They shew that those rights were secured; and the act of 1785, positively recognizes the sales, that had theretofore been made, and legalizes the proceedings of the trustees. So far, therefore, as the right of the trustees, to sell and convey, the legal title, can have any effect, there can remain no doubt that a complete right was vested in Pitman by their deed.

No reason is perceived for the objection to the original deed. If it had never been recorded, or proved, or acknowledged for registration, it would vest the legal title, (no other objection being shewn to it) except so far as the rights of bona fide creditors, or purchasers, might be concerned. The act of 1748. which was the law in force before 1785, required, that deeds should be actually recorded within eight months from their execution or acknowledgment. And it also required the attestation of three witnesses, as every subsequent act did, until that of 1810, of this state. But the 4th ...