William Peirsoll and Others, Appellants v. James Elliott and Others, Appellees
| Decision Date | 01 January 1832 |
| Citation | 31 U.S. 95,6 Pet. 95,8 L.Ed. 332 |
| Parties | WILLIAM PEIRSOLL AND OTHERS, APPELLANTS v. JAMES ELLIOTT AND OTHERS, APPELLEES |
| Court | U.S. Supreme Court |
APPEAL from the circuit court of the United States for the district of Kentucky.
The case was argued by Mr Wickliffe for the appellants, and by Mr Loughborough for the appellees.
The facts and pleadings are fully stated in the opinion of the court.
This is an appeal from a decree of the court of the United States for the seventh circuit and district of Kentucky, dismissing the plaintiffs bill filed in that court, with costs.
The bill states that the plaintiffs are the heirs and representatives of Sarah G. Elliott, deceased, who departed this life intestate, seised of a valuable estate in the county of Woodford, which descended to them. That in her life time, in the year 1813, James Elliott, her husband, caused a deed to be made and recorded, purporting to be executed by the said Sarah G. and himself, for the purpose of conveying the said land to Benjamin Elliott, who immediately re-conveyed the same to the said James Elliott. The complainants allege, that this deed was never properly executed by their ancestor; that she was induced by the said James to believe, that it conveyed only an estate for her life; that she was prevailed on under this belief to accompany him to the clerk's office, where she acknowledged the said deed without any privy examination, which is required by law. The deed was recorded on her acknowledgement without any certificate of privy examination. The said Sarah G. departed this life in the year 182, soon after which her heirs brought an ejectment in the circuit court for the recovery of the land. While it was depending, in November 1823, the said James Elliott, having failed in an attempt to induce the clerk to alter the record, prevailed on the county court of Woodford, on the motion of Benjamin Elliott, to make the following order.
'On motion of Benjamin Elliott, by his attorney, and it appearing to the satisfaction of the court by the indorsement on the deed from James Elliott and wife to him, under date of the 12th of June 1813, and by parol proof that the said deed was acknowledged in due form of law by Sarah Elliott, before the clerk of this court, on the 11th day of September 1813, but that the certificate thereof was defectively made out, it is ordered that the said certificate be amended to conform to the provisions of the law in such cases, and that said deed and certificate, as amended, be again recorded; whereupon the said certificate was directed to be amended to read in the words and figures following, to wit:
'Woodford county, sct.—September 11, 1813.
'This day the within named James Elliott, and Sarah his wife, appeared before me, the clerk of the court for the county aforesaid, and acknowledged the within indenture to be their act and deed; and the said Sarah being first examined privily and apart from her said husband, did declare that she freely and willingly sealed and delivered said writing, which was then shown and explained to her by me, and wished not to retract it, but consented that it should be recorded.' The said deed, order of court, and certificate, as directed to be amended, is all duly recorded in my office.
Teste,
JOHN McKINNEY, JR., C. W. C. C.
Indorsements on the back of the foregoing deed, to wit:—James Elliott et ux. to Benjamin Elliott—Deed.
Acknowledged by James Elliott and Sarah G. Elliott, September 11, 1813.
Att.
J. McKINNEY, JR., C. W. C.
R. B. F. page 199. Recorded deed-book K, page 56, 57.
Att.
C. H. Mc., D. Clk.
The said James Elliott departed this life during the pendency of the ejectment: it was revived against James Elliott, his son, as terre tenant, and determined in favour of the plaintiffs in November 1823. The bill, which was filed during the term at which the judgment in ejectment was rendered, alleges that the defendants retain possession of the premises by themselves and their tenants, who are doing great waste by cutting and destroying the timber, and who threaten to continue their possession by suing out a writ of error to the judgment of the court. It charges that the defendants are receiving the rents, which some of them will be unable to repay; prays for an injunction to stay waste; that a receiver may be appointed; that the rents, from the death of Sarah G. Elliott, may be accounted for; that the deed may be surrendered up to be cancelled; and for further relief.
The injunction was awarded.
The writ of error to the judgment of the circuit court came on to be heard on this court at January term 1828, 1 Peters, 328, when the judgment was affirmed; this court being or opinion that the deed from James Elliott and Sarah G. his wife, was totally incompetent to convey the title of the said Sarah G. to the tract of land therein mentioned.
In November 1828, the defendants filed their answer, in which they claim the land in controversy as heirs of James Elliott, deceased. They insist that the deed from James Elliott and Sarah G. his wife, recorded in the court of Woodford county, was fairly and legally executed, and conveyed the land it purports to convey. That Sarah G. Elliott was privily examined according to law, and that the omission to record her privy examination was the error of the clerk, which was afterwards corrected by order of the court, so as to conform to the truth of the case. They deny that the deed from Sarah G. Elliott was obtained by any misrepresentation; and say, they have heard that the judgment of the circuit court has been affirmed in the supreme court, and that they have not determined to prosecute any other suit, but hope they will be left free on that subject.
In May term 1829, the cause came on to be heard, when the bill of the plaintiffs was dismissed with costs. They appeal from the decree to this court.
The principal object of ...
To continue reading
Request your trial
-
Wood v. Phillips
...clear proof of both possession and legal title in the plaintiff. Alexander v. Pendleton, 8 Cranch, 462 3 L. Ed. 624; Peirsoll v. Elliott, 6 Pet. 95 8 L. Ed. 332; Orton v. Smith, 18 How. 263 15 L. Ed. 393; Crews v. Burcham, 1 Black, 352 17 L. Ed. 91; Ward v. Chamberlain, 2 Black, 430 17 L. E......
-
Verdin v. City of St. Louis
...73 Mo. 289; Janney v. Spedden, 38 Mo. 395; Mason v. Black, 87 Mo. 329; Cooley, Tax'n; and Heywood v. City of Buffalo, supra. In Peirsol v. Elliott, 6 Pet. 95, Chief Justice Marshall, speaking for the court, dismissed the bill because, the deed therein mentioned being void at law, for matter......
-
Kelley v. Laconia Levee District
...Ark. 419. F. M. Rogers, for appellee. Appellant must recover upon the strength of his own title. 110 U.S. 15; 121 U.S. 551; 8 Cranch, 462; 6 Pet. 95; 18 How. 263; 155 404; 12 Ark. 296; 37 Ark. 647; 62 Ark. 439; 19 Ark. 603; 36 Ark. 456. The deeds relied upon by appellant were not sufficient......
-
Appalachian Electric Power Co. v. Smith
...158 U. S. 375, 406, 15 S. Ct. 1006, 39 L. Ed. 1022; Hannewinkle v. Georgetown, 15 Wall. 547, 548, 21 L. Ed. 231; Peirsoll v. Elliott, 6 Pet. 95, 98, 8 L. Ed. 332; Story, Eq. Juris. § 700(a). It has been held that nothing which does not require evidence to remove can be considered a cloud on......