James Greenleaf, Plaintiff In Error v. James Birth

• Decision Date: 01 January 1835
• Citation: 9 Pet. 292,34 U.S. 292,9 L.Ed. 132
• Parties: JAMES GREENLEAF, PLAINTIFF IN ERROR v. JAMES BIRTH
• Court: U.S. Supreme Court

34 U.S. 292

9 Pet. 292

9 L.Ed. 132

JAMES GREENLEAF, PLAINTIFF IN ERROR v. JAMES BIRTH.

January Term, 1835

IN error to the circuit court of the district of Columbia in the county of Washington.

This case was argued by Mr Coxe and Mr Jones, for the plaintiff in error; and by Mr Swann and Mr Key, for the defendant.

The case is fully stated in the opinion of the court, delivered by Mr Justice M'LEAN.

This case is brought before this court by a writ of error to the circuit court of the District of Columbia.

The plaintiff commenced an action of ejectment against the defendant, and on the trial showed a legal title to the premises in dispute, deduced from the patentee, by mesne conveyances, down to the 13th of May 1796. This title was not controverted by the defendant, as he claimed under it; but he read in evidence the following deeds and documents, to show that the title to the premises in controversy, was out of the plaintiff and in himself.

1. Articles of agreement dated the 10th of July 1795, between the plaintiff, Robert Morris and John Nicholson, in which the plaintiff sold all his title to a great number of lots in the city of Washington, for the consideration specified, reserving all lots which had been sold previously, supposed to be nine hundred and ninety, and also certain other lots designated.

2. A deed of conveyance by the plaintiff to Morris and Nicholson, in pursuance of the above articles of agreement, dated the 13th of May 1796. In this deed, there is the following clause, 'excepting nevertheless, out of the lots, squares, lands and tenements above mentioned, all that square, marked and distinguished on the plat of the said city of Washington, by the number 500, all that other square lying next to and south of the said number, 506, &c., and excepting also all such squares, lots, lands or tenements, as were either conveyed or sold or agreed to be conveyed, either by all or either of them, the said James Greenleaf, John Nicholson and Robert Morris, or any of their agents or attorneys, to any person or persons whatsoever, at any time prior to the 10th of July 1795.'

3. A deed from Morris and Nicholson, dated the 26th of October 1796, to William Duncanson, William Deakins, Jun., and Uriah Forrest, for the consideration of 50,000 dollars, for a great number of squares in Washington city, and among others, square 75, all of which squares were stated to be worth 212,068 dollars.' In this deed there is excepted, 'such part of the said squares, and all, and every of them, as may have been heretofore sold by James Greenleaf, or by them the said Morris and Nicholson.'

4. A deed from William Duncanson to Deakins and Forrest, dated 16th of August 1797, which conveyed to them all his interest in the squares recited in the above deed from Morris and Nicholson.

5. The last will and testament of William Deakins, which vested in his brother, Francis Deakins, the right of the testator to the above squares, for certain uses expressed in the will.

6. A deed from Francis Deakins to Uriah Forrest, dated the 31st of May 1802, for lot 17, in square 75, being the property in dispute, together with other lots in the same and other squares.

7. The following instrument to Shaw and Birth:—'We agree to convey to John Shaw and James Birth, their heirs or assigns, the lots number 16 and 17, in square number 75 in the city of Washington, assuring it against our heirs, and all persons claiming under us, on their paying two notes of this date, each for 450 dollars and 2 cents, bearing interest from and since the 1st day of September last past—one payable the 1st of September next, and the other the 1st of September 1801. Witness our hands and seals, this 16th October 1799.

'URIAH FORREST, [SEAL].'

8. A deed from the assignees of U. Forrest to John Shaw and James Birth, dated 23d November 1807, for the lot in controversy.

9. A deed by the trustee of Shaw to Birth, the defendant, for the same lot, dated 7th of August 1828.

10. A letter from Forrest to W. Cranch, the trustee of Greenleaf, stating that he had sold lot 17 with others, to which, he understood, Cranch had a claim as part of the estate of Greenleaf; and a proposition is made that, should the property eventually be decided to belong to the estate of Greenleaf, the purchase money should be received in lieu of the property. This letter is without date.

11. The reply of Mr Cranch, dated 2d November 1799, in which he consents to the proposition on certain conditions.

Thomas Monroe, a witness, was introduced by the defendant, who stated in substance that the first occupation of the lot in controversy, known to him, was in May 1802. There was then a house on said lot, in which Shaw and Birth resided. This lot is bounded by the main avenue, leading from the President's house to Georgetown. That the plaintiff was frequently in the city in the years 1794 and 1795; but witness did not see him in Washington between the years 1795 and 1802. He heard, soon after the transaction, of the contract of general Walter Stewart with Greenleaf, Morris and Nicholson, for the purchase of the lot in controversy, and several other lots and squares in Washington. That Stewart built some houses and commenced others, which were left unfinished when he failed in business; and that he died insolvent sometime about the year 1796. That after the deed from plaintiff to Morris and Nicholson, they seemed to have the management and control of the property conveyed by that instrument; and also to be generally recognized as having the settlement of the sales of the joint property of Greenleaf, Morris and Nicholson, made before said conveyance; and as having the right to receive the purchase money from the several purchasers; and the witness states that one Davis acted as agent for general Stewart respecting his purchases, and that after his death Davis continued to act as agent for his representatives.

And it was also proved by defendant, that the said lot 17, in square 75, was assessed on the corporation books, to Shaw and Birth, from the year 1803 to the year 1828; and that the first assessment of corporation taxes was made in the year 1803. It was also proved, that square 75 is not either of the squares described in the deed from plaintiff to Morris and Nicholson, as lying next to, and south of square 506, and the one adjoining that square on the south. Defendant also proved, that Shaw and Birth took possession of lot 17, after their agreement with Forrest, in October 1799, and prior to that time it was under the superintendence of Joseph Forrest, as the agent of U. Forrest.

And the plaintiff, to explain and rebut the evidence introduced by the defendant, proved the contents of a written contract under the hands and seals of Morris, Nicholson and Greenleaf, on the one part, and Walter Stewart of the other, dated on the 19th of February 1795, in which Morris, Nicholson and Greenleaf bargained and sold and covenanted to convey to said Stewart, on the 1st of June thereafter, certain lots and squares in the city of Washington; and among others, the lot now in controversy. And to lay the foundation for the introduction of a copy of this agreement, the deposition of Walter C. Livingstone was read, in which he states that he has diligently searched, in various places, among the papers of Nicholson, for the original contract with Stewart, without being able to find it. That Nicholson died some years ago, insolvent. That the deponent...