Sneed v. Ward

• Decision Date: 21 April 1837
• Citation: Sneed v. Ward, 35 Ky. 187 (Ky. Ct. App. 1837)
• Parties: Sneed v. Ward et al.
• Court: Kentucky Court of Appeals

35 Ky. 187

Sneed v. Ward et al.

Court of Appeals of Kentucky.

April 21, 1837

FROM THE CIRCUIT COURT FOR LAWRENCE COUNTY.

Mr Turner, Mr. Hord and Mr. Apperson for plaintiff.

Messrs Morehead and Brown for defendants.

OPINION

ROBERTSON CHIEF JUSTICE

This writ of error is prosecuted to reverse a judgment for the defendants, in an action of ejectment on the demise of Achilles Sneed, who held a derivative title under a royal grant, made on the 15th of December, 1772, to John Fry, for military services rendered by him in Virginia, in the colonial wars, between 1754 and 1759.

The grant reserved an annual quit rent in fee, of one shilling for every fifty acres; required improvements, within three years, to the extent of clearing and cultivating as much as three acres for each fifty acres, and declared that, in the event of a failure, for three years, thus to improve and cultivate, and pay rent, the estate grant should, ipso facto, cease and determine. And there being no proof of a compliance with those conditions, the Circuit Judge instructed the jury that the grant was void.

A grant of land made, by royal authority, in 1772, reserved an annual quit rent in fee, and required that certain improvements should be made, and declared that for a failure to clear, &amp c. and pay the rent, the estate should, ipso facto, cease and determine: these are conditions subsequent; the patent vested the title; a party who claiming adverse to the grant, relies on a forfeiture, must show it.

That instruction presents the only question we shall now consider.

The reasons assigned for the instructions, are obviously insufficient to show, either that the grant had become void or that the title had reverted to the crown of England, or to the Commonwealth of Virginia.

First. The title was vested, and the prescribed cultivation and payment of rents constituted conditions subsequent, and therefore, the burthen of showing a forfeiture or extinguishment of the estate, devolved on the defendants, and they did not attempt to prove any fact whatsoever.

Second. An act of the Virginia Legislature, of 1777, abolished all royal quit rents; and, in 1796, the Legislature of Kentucky declared that all conditions in grants from the crown of England for land lying in this State, should be void, and that the grantees should hold in fee simple. And it neither appears that, prior to either of those enactments, there had been any other...