Walden v. the Heirs of Gratz

• Decision Date: 18 March 1816
• Citation: 1 Wheat. 292,4 L.Ed. 94,14 U.S. 292
• Parties: WALDEN v. THE HEIRS OF GRATZ
• Court: U.S. Supreme Court

14 U.S. 292

4 L.Ed. 94

1 Wheat. 292

WALDEN v. THE HEIRS OF GRATZ.

March 18, 1816

ERROR to the circuit court for the district of Kentucky. This was an action of ejectment in which the defendants in error were the lessors of the plaintiff in the court below. The declaration in ejectment was returned to the November term of that court, 1813. At the May term, 1814, the suit was abated as to one defendant; judgment by default was entered against Joseph Day, another defendant; and the defendants were admitted to defend instead of the casual ejector. The lessors of the plaintiff claimed under a patent issued to John Craig, in November, 1784. On the 20th of April, 1791, John Craig conveyed the lands mentioned in the declaration, in trust, to Robert Johnson, Elijah Craig, and the survivor of them. On the 11th of February, 1813, Robert Johnson, styling himself surviving trustee, conveyed to the lessors of the plaintiff. The defendants below, now plaintiffs in error, claimed under a patent issued to John Coburn in September, 1795, founded on a survey made for Benjamin Netherland in May, 1782. John Coburn, claiming under the said survey, entered thereon about the year 1790, and dwelt in a house within the limits of said survey, but without the lines of Craig's patent. On the trial, the counsel for the defendants below moved the court to instruct the jury,

1st. That if the defendants, and those under whom they claim, were in the actual adverse possession of the lands in question, at the making of the deed by Craig's trustee to the lessors of the plaintiff, that deed did not pass such title as would enable them to recover in this suit.

2d. That if the defendants, and those under whom they claim, were in the actual adverse possession of the lands in question, at the making of the deed by Craig's trustee to the lessors of the plaintiff, and had held such adverse possession for twenty years next before said time, that said deed did not pass such title as would enable the plaintiffs to recover in this suit.

3d. That if the defendants, and those under whom they claim, have had possession of the land in question, or any part thereof, for twenty years next before the commencement of this suit, that the plaintiff cannot recover the lands so possessed for twenty years.

On the two first points, the court instructed the jury that, according to the principles of the common law, the deed from Craig's trustee to the lessors of the plaintiff, would not pass the title to the lessors of the plaintiff; but that under the operation of the act of assembly of the state of Kentucky, of 1798, the said deed was valid, and did pass the title to the lessors of the plaintiffs, notwithstanding the adverse possession of the defendants. The court refused to give the last instruction applied for, but did instruct the jury that if Coburn entered upon the land in controversy, under the survey on which his patent was founded, and he, and those holding under him, held the said lands for twenty years and upwards, prior to the commencement of this suit, yet, as the patent to Coburn did not issue until 1795, such possession could not avail the defendants claiming under the said Coburn, but that the plaintiffs could recover, notwithstanding such possession. To these opinions and instructions, given by the court, the counsel for the defendants below excepted, and the cause was brought by writ of error into this court.

Hardin, for the plaintiff in error, and defendant in ejectment. 1. No person out of possession can grant; First, because at common law there must be livery of seisin. Secondly, because the grantee could not purchase a mere right of action. Coburn was in possession adversely; therefore, the deed from Craig's trustee to the lessors of the plaintiffs was void. 2. The limitation of twenty year's possession by the defendant before notice of the ejectment was a complete bar. 3. The deed of trust was joint, and it was incumbent upon the plaintiff to prove that one of the frustees was dead. The recital in the deed of conveyance that E. Craig was dead, was no sufficient evidence of that fact, except as between the grantor and grantee. 4. There is error in the judgment by default against Day.

Hughes and Talbot, contra. 1. Before the...