Lessee of Scott v. Ratliffe
ERROR to the circuit court of the United States for the district of Kentucky.
On the 2d of April 1825, the plaintiffs commenced an action of ejectment against the defendants, asserting a title and right of entry in and to eighteen hundred and fifty acres of land, patented to their ancestor, James Madison, by the commonwealth of Kentucky. The grant was dated August 8th, 1798; and was in consideration of sundry land office treasury warrants issued by the state of Virginia, and a survey bearing date 26th December, 1796, founded on an entry made prior to the 1st of June 1792. At May term 1828, a verdict and judgment were rendered for the defendants.
On the trial the plaintiff gave in evidence the patent to James Madison, and evidence conducing to prove the boundaries thereof; and that the defendants resided in said bounds at the commencement of the suit.
The patent recites, that in virtue of three land office treasury warrants, & c. 'there is granted unto the Reverend James Madison, a certain tract or parcel of land, containing eighteen hundred and fifty acres by survey, &c.;' and describes the boundaries thereof, 'including within said lands five hundred and twenty-two acres of land entered for John Preston, four hundred and twenty-five acres for William Garrard: both claims have been excluded in the calculation of the plot with its appurtenances,' &c. &c.
They also proved by James Harvee that he had known Bishop James Madison and his daughter Susan, the wife of one of the plaintiffs in error. He stated that he had understood Susan had married Mr Scott, but he had never seen him; that Bishop Madison was dead, and he supposed died in 1812. N. B. Beal, another witness, testified that he had known Bishop Madison, had been to school to him, and he was well acquainted with his daughter Susan Madison, and with James C. Madison, his son, the lessors; they were the only children of Mr Madison living at his death; that he could not say when Bishop Madison died, but he thought about twenty years prior to 1828; that in 1818 he was at the house of Mr Scott, in Virginia, saw Mrs Scott, and they were then living as man and wife.
Mrs Eppes swore that she resided in Petersburg, Virginia, and that Bishop Madison resided in Williamsburg, Virginia; that while she resided in Petersburg, she had seen Bishop Madison, and was acquainted with his daughter only by report; that she had never seen her or Mr Scott, but recollects to have heard of her marriage with Mr Scott before the death of her father; that she had heard of Miss Madison's marriage before her own marriage, which was in 1910; that she could not tell from whom she heard the report, but she had three cousins who went to college in Williamsburg at the time that she lived in Petersburg, and had no doubt that she had heard them speak of the marriage; that she was, as she believed, in 1811, in Williamsburg, and was told that Mr Madison was dead.
The defendants gave in evidence the patent to John Grayham, assignee of John Preston, issued by the governor of Kentucky, on the 13th day of January 1814, for fourteen hundred and forty-five acres of land; a deed from John Grayham to Silas Ratliffe, for one hundred acres by metes and bounds, dated 12th August 1814; a deed from John Grayham to Thomas Owings, for four hundred acres, dated 25th of March 1816. On the trial the counsel for the plaintiffs took three bills of exceptions to the opinion of the court; the particulars of which are stated more at large in the opinion of this court.
The first exception was to the instruction of the court of the jury, that if the plaintiffs did not show to their satisfaction that the defendants resided within the plaintiffs' grant and outside of the land claimed of Preston and Garrard, they ought to find for the defendants. This bill of exception also set forth an objection, by the plaintiffs' counsel, to the ruling of the court as to the mode by which the location and survey should have been made.
The second bill of exceptions stated, that the plaintiffs moved the court to instruct the jury that the seven years possession of the defendants was no bar to the plaintiffs' recovery: which the court overruled; and they instructed the jury that if they believed, from the evidence, that the defendants had been more than seven years in possession next before the bringing the action, that the seven years possession law of Kentucky, of 1809, was a bar to the plaintiffs' recovery; unless the jury should find that Susan Madison was a feme covert when her father died, and when the defendants acquired title under the patent of John Grayham.
The third bill of exceptions stated that the court, on the motion of the counsel of the defendants, overruled the evidence of Mrs Eppes.
The plaintiffs prosecuted this writ of error.
The case was argued by Mr Wickliffe for the plaintiffs in error. No counsel appeared for the defendants.
Mr Wickliffe contended, that the evidence of Mrs Eppes was improperly excluded in the circuit court. It was important to Mrs Scott and to her co-heir to establish the facts in the knowledge of Mrs Eppes; and such testimony to prove marriage, the death of the ancestor, and heirship, is within the rules of law and decided cases. 3 Bibb, 238. 2 Marshall, 572. Elliott vs. Peirsoll, 1 Peters.
As to the protection claimed under the seven years law; the counsel for the plaintiffs contended that it protects only those who are in under a supposed title from the commonwealth of Kentucky. This was not the fact as to all the defendants: but the instructions of the court were given as to the possession of them all. The party claiming under that act must connect himself with a legal or an equitable title. Ratliffe and Owings were the only persons who claimed in that manner. Even with such a title, it must be shown to have been adverse to the plaintiffs' title.
The instructions of the court upon the terms of the patent were also erroneous. The grant is to the whole extent of the boundaries of the land, and gives the legal title; but the equitable title of those who might be within those boundaries was not affected thereby. 1 Monroe, 133.
The court say the plaintiffs cannot recover unless they prove that the defendants live outside of the undefined bounds of Preston's grant. These lands had not been run out; and it was impossible to prove the facts insisted upon, as the lines had not been ascertained.
Mr Chief Justice MARSHALL delivered the opinion of the Court.