Lessee of James Clarke and Others, Plaintiffs In Error v. John Courtney and Others, Defendants In Error

• Citation: 5 Pet. 319,8 L.Ed. 140,30 U.S. 319
• Parties: LESSEE OF JAMES B. CLARKE AND OTHERS, PLAINTIFFS IN ERROR v. JOHN COURTNEY AND OTHERS, DEFENDANTS IN ERROR
• Decision Date: 01 January 1831
• Court: United States Supreme Court

30 U.S. 319

5 Pet. 319

8 L.Ed. 140

LESSEE OF JAMES B. CLARKE AND OTHERS, PLAINTIFFS IN ERROR v. JOHN COURTNEY AND OTHERS, DEFENDANTS IN ERROR.

January Term, 1831

ERROR to the circuit court of the United States, for the district of Kentucky.

This was an action of ejectment instituted in February 1821, against a number of persons in possession of a large tract of land, containing fifty-five thousand three hundred and ninety acres, in the state of Kentucky. The suit was afterwards dismissed, by the plaintiffs, as to forty of the defendants.

The declaration contained five counts, each count stating separate demises of the same tract of land. The first was on the demise of James B. Clarke, of the 1st of September 1820, for fifty-five thousand three hundred and ninety acres, granted by Virginia, to Martin Pickett, by patent, bearing date on the 10th December 1785. 'Beginning at a sugar tree and white oak, at the head of a hollow corner, to another survey of the said Pickett, and of younger Pitt's land, thence with a line of said Pickett's survey of forty-four thousand seven hundred and forty acres,' &c. describing the abuttals as set forth in the patent.

The second count was on the demise of John Bryant, Maxwell and wife, Anna Maria Maxwell, and Eliza Bryant Grant, heirs of John Bryant, deceased. The third was on the demise of Abraham Schuyler, and Neelson and wife. The fourth of Theodocia, Thomas, and John B. Grant. The fifth on several demises made by John B. Maxwell, Anna Maria Maxwell, Eliza B. Grant, Theodocia S. Grant, Thomas R. Grant, John B. Grant, Abraham S. Neelson and wife.

The case was tried at November term 1826; when the verdict and judgment were for the defendants.

In the course of the trial the plaintiffs took three bills of exceptions to the opinions of the court on the matters set forth thereon.

The first bill of exceptions sets forth: that on the trial of the cause some of the defendants professing to hold a conveyance from the plaintiff, Clarke, by Carey L. Clarke as attorney in fact of the said plaintiff, offered in evidence, a deed and letter of attorney, the former executed by Carey S. Clarke as the attorney in fact of James B. Clarke and Eleanor Clarke, his wife, on the 23d October 1800, to Robert Payne, and the latter the power of attorney, executed at the city of New York, on the 7th of October 1796. The deed, to Robert Payne, which was duly admitted to record, released to him all James B. Clarke's title to all the land embraced by the surveys of John and Robert Todd, on the North Fork of Eagle and Mill Creek, so far as they interfere with the patent to Martin Pickett, under which Robert Payne claimed; and gave testimony likewise, conducing to prove them. And that, Andrew Moore, the clerk of the Harrison circuit court, who brought the letter of attorney into this court, under process for that purpose, desiring to return, and considering it his duty to retain possession of that instrument, by consent of plaintiff and defendant, departed with it, leaving a copy. And at a subsequent day, Moses L. Miller was introduced as a witness to prove the letter of attorney, who stated that being summoned as a witness he met with the clerk of Harrison aforesaid, in Georgetown, who showed him an instrument, the signature to which he examined, and he believed it to be the hand writing of James B. Clarke, with whose hand writing he was acquainted. And another witness was examined, tending to prove that the instrument, so shown by said Moore to Miller, was the same previously read before this court as aforesaid.

When Andrew More, the clerk of Harrison court, was about to resume possession of the letter of attorney—and to depart, the attorney of the plaintiff declared that he had no objections. No further evidence was offered relative to the power of attorney.

To the admission of the testimony of Miller, the plaintiff objected, especially in the absence of the letter of attorney; but the court overruled the objection, and submitted the testimony to the jury, as tending to prove that instrument; to which the plaintiff excepted.

The second bill of exceptions stated, that the plaintiff proved and read in evidence, a patent from the commonwealth of Virginia, to Martin Pickett, dated 10th of December 1785, for fifty-five thousand three hundred and ninety acres, 'beginning at a sugar tree and white oak, at the head of a hollow corner to said Pickett's and younger Pitt's land, thence with a line of said Pickett's survey of forty-four thousand seven hundred and forty acres, being part of said entry, north 9. east, &c.' being the same abuttals set forth in the declaration of ejectment, and in the power of attorney.

And also a deed from the said Martin Pickett of Virginia, to William and John Bryant for the said land, dated May 1st, 1793; and also a deed from William Bryant to James B. Clarke, dated 18th July 1794, for an undivided moiety of the said land; and also a deed from John Bryant to James B. Clarke, dated October 13th 1794, for the other moiety; he having proved the possession of the defendants, and that James B. Clarke at the date of his deed and ever since, was and had been, a citizen and resident in the state of New York.

The plaintiff relied solely on the demise from James B. Clarke, and gave no evidence on the other demises—and relied solely upon the patent to Pickett for fifty-five thousand three hundred and ninety acres—none of the defendants being within the patent to Pickett for forty-four thousand seven hundred and forty acres.

The defendants offered in evidence the following exhibits: a release of forty-nine thousand nine hundred and fifty-two acres by Carey L. Clarke, as attorney for James B. Clarke and John Bryant, bearing date 25th November 1800—acknowledged same day, before John Payne, the surveyor of Scott county, by him certified—afterwards lodged with the auditor of public accounts:—it recites that James B. Clarke and wife, and John Bryant and wife, had appointed Carey L. Clarke their attorney, to sell, transfer, and convey a certain tract on the waters of Eagle creek, in the county of Scott and state of Kentucky, containing one hundred thousand one hundred and ninety-two acres, entered in the name of Martin Pickett, and which tract of land is now held by the said Clarke and Bryant, as tenants in common: 'Now, therefore, I, the said Carey L. Clarke, attorney as aforesaid, in pursuance of an act of the legislature of the state of Kentucky, authorizing claimants of land within its commonwealth to relinquish, by themselves or their attornies, any part or parts of their claims to the commonwealth; I do hereby relinquish to the commonwealth of Kentucky, all the right, title, interest, property, claim and demand of the said Clarke and Bryant, of, in and to the hereinafter described tracts of land, being part of the above mentioned tract, and lying within the boundaries, viz. _____' here the deed specifies various conflicting surveys, and gives the quantity in the various surveys; also specifies certain other quantities by boundaries expressed, altogether amounting to forty-nine thousand nine hundred and fifty-two acres.

Also a release, bearing date 25th November 1801, executed by the said Carey L. Clarke, as attorney in fact for John Bryant, reciting the act of assembly aforesaid, authorizing the relinquishment of lands to the commonwealth, specifying various conflicting surveys and other specific boundaries of the several parcels, amounting to thirty-four thousand and twenty-seven acres also certified by the surveyor of Scott, and filed in the auditor's office—with a transcript by the auditor, from the books of his office, certifying the entries for taxes, of the fifty-five thousand three hundred and ninety acres,—and the subsequent relinquishment of forty-nine thousand nine hundred and fifty-two acres thereof, and the sale to the state for taxes of three thousand four hundred and thirty-eight acres—also, the entry for taxes of the forty-four thousand five hundred and forty-seven acres; the release to the state of thirty-four thousand and twenty-nine—thereof, and that the residue was the property of John Hawkins of George (Kentucky):—annexed also is the certificate of the auditor, that neither James B. Clarke, nor John Bryant, appear to have paid any taxes since the said relinquishments were made. To prove which he relied upon the power of attorney to Carey L. Clarke, mentioned in a former bill of exceptions, and the original relinquishment from the auditor's office, and proved the execution thereof by John Payne, the surveyor of Scott county, wherein the land relinquished then was situate.

John Payne also stated, that in the year 1794, or thereabouts, _____ Griswold came to his residence in Scott county, claiming the land in Pickett's patent, by contract with Clarke; that the deponent and Robert Parker, the surveyor of Fayette, made out a connected plot showing the interfering claims set forth in this relinquishment, and Griswold, expressing dissatisfaction with the claim and the contract, returned. Afterwards Carey L. Clarke came to Kentucky, avowing himself the agent of Clarke by the letter of attorney, a copy of which is set forth in the bill of exceptions taken in this cause: that Carey L. Clarke in 1796, or thereabouts, called on the witness, and expressed a disposition to relinquish. The witness advised Clarke that he might be able to prevail for some of the land, and had better not make the relinquishment. Afterwards in the year 1800, the relinquishment was prepared by Carey L. Clarke, in his own hand writing, and executed in the surveyor's office, before said Payne, and he the surveyor certified it and took copies: Carey L. Clarke then took the original; and the witness having no record book for the purpose (this being the only relinquishment ever made in his office for taxes), still kept, a copy, with his private papers, and he did not deliver the copy to his...