Park's Lessee v. Larkin

• Citation: 1 Tenn. 101
• Parties: PARK'S LESSEE v. LARKIN.
• Decision Date: 31 May 1799
• Court: Tennessee Circuit Court

1 Tenn. 101

PARK'S LESSEE

v.LARKIN.

Superior Court of Law and Equity of Tennessee.

May, 1799.

[ S. C., ante, 17.]

Ejectment, plea not guilty.--The plaintiff claimed under a grant for 640 acres made to Mary Asher, dated March 1, 1797, and registered May 25, 1798. It appeared from the copy of a record produced, that Mary M'Cloud was indicted in Hamilton District for an assault and battery, in which Mary Asher was prosecutrix; the defendant was found not guilty, and the prosecutrix taxed with the costs. Several executions issued without effect; after which a fieri facias was levied on this tract of land, it was sold on the 12th of March, 1801; and the sheriff conveyed it to the plaintiff March 19, 1801; the conveyance was registered August 28, 1801.

Scott for the defendant objected that the record was not set out verbatim and cited the case of Wilcox v. Rhea, in Haywood, 410.

Overton, J.

The record is sufficiently regular; it was not necessary to state verbatim the intermediate executions; the one under which the land was sold is set out verbatim, after stating the judgment and the proceedings previous thereto; but if it were necessary the intermediate executions are stated agreeably to the books of entries from which it does not appear that the formal parts in the beginning or end of a process are set out.^a1

Campbell, J.

The record is regular; it shows the proceedings, and judgment which was the authority for issuing the execution under which the sale was made, and the execution itself is set out verbatim.

White, J.

Taking the certificate of the clerk as true, it is a perfect record of the proceedings in that cause. It does not seem necessary that the intermediate executions should be set out at all.

The case in Haywood does not apply,--in that the clerk certified, as it appeared to him; in this the clerk certifies it to be a true transcript.

In that case it was determined that the clerk should have certified the words of the record, and not his own opinion of it, which was correct.

Let the record be read. Mr. Payne was introduced as a witness, who proved that Mary Asher had never been in possession of the land, and that the defendant was in possession at the time of the sale by the sheriff, claiming adversely.

Scott and Williams, for the defendant, contended that agreeably to a decision which had lately taken place at Knoxville, no person can convey a title to land when another is in possession claiming adversely; and they took it to be clear that the sheriff could convey no greater right than Mary Asher herself could have done had she sold at private sale, which would be none at all, and therefore the plaintiff could not recover.

Miller and Whiteside, for the plaintiff.

Though the grounds upon which the case alluded to at Knoxville rested do not apply to the state of society in this country, the judges conceived themselves bound by the principles of the English decisions in this respect. This being the case, the Court will not extend the effect of that decision further than the reasons upon which it is founded will clearly warrant.

Overton, J.

In order to understand this subject distinctly, it may not be improper to take a short view of the doctrine of conveyance, so far, at least, as respects the common assurance of bargain and sale.

Feoffment was the common-law mode of conveying, in which it was necessary that livery of seisin should be made, so that no person could convey in this way unless he had possession, and consequently was able to deliver it. The statute of 27 H. 8, c. 10, introduced the idea of conveying by deed of bargain and sale. This statute was made to remedy the inconveniences which had arisen by frequent conveyances to uses. In this way it had happened that persons holding and possessing lands were but trustees for others who recovered the profits. The person in possession by the principles of the common law was considered as the owner of the estate.

Agreeably to the principles of equity, the person who had paid the consideration money was entitled to the use or profits of the land, though the conveyance might have been made to another. The effect of this statute was to transfer the possession to the use which had been or might afterwards be created, making the cestui que use the complete legal owner.

Before this statute the payment of money for land raised the use, and this statute annexed the possession in legal understanding to it so as to complete the title. Hence, in bargains and sales, a consideration is necessary to raise an use, after which the statute transfers the possession without actual livery of seisin; it is however understood that this statute is bottomed on the principles...