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GREENLEAF'S LESSEE V. BIRTH, 30 U. S. 132 (1831)

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U.S. Supreme Court

Greenleaf's Lessee v. Birth, 30 U.S. 5 Pet. 132 132 (1831)

Greenleaf's Lessee v. Birth

30 U.S. (5 Pet.) 132


It is to be understood as a general rule that where there are various bills of exceptions filed according to the local practice, if in the progress of the cause the matters of any of these exceptions become wholly immaterial to the merits as they are finally made out on the trial, they are no longer assignable as error, however they have been ruled in the court below.

It may be gathered from the decisions of the courts of Maryland that on the trial of a question of title to land, no evidence can be admitted of the location of any line, boundary, or object laid down on the plots or resurvey, and that a witness, who was not present at the resurvey, is not competent to give evidence as to the lines, objects, and boundaries laid down in such plots. These rules appear to rest on artificial reasoning, and a course of practice peculiar to Maryland.

The Court does not find it to have been decided by the courts of Maryland that no testimony is admissible to prove a possession of the land within the lines of the party's claim laid down in the plot except the testimony of some witness who was present on the resurvey. Upon the general principles of the law of evidence, such testimony is clearly admissible. A party has a right to prove his possession by any competent witness, whether he was present at the resurvey or not.

In the ordinary course of things, the party offering evidence is understood to waive any objection to its competency as proof. It is not competent for a party to insist upon the effect of one part of the papers constituting his own evidence without giving the other party the benefit of the other facts contained in the same paper.

A power of attorney was given by C. to A. and B. to make in his name an acknowledgement of a deed for land in the City of Washington before some proper officer, with a view to its registration, constituting them "the lawful attorney or attorneys" of the constituent. A. and B. severally appeared before different duly authorized magistrates in Washington at several times, and made a several acknowledgement in the name of their principal. Held that the true construction of the power is that it vests a several as well as a joint authority in the attorneys. They are appointed "the attorney or attorneys," and if the intention had been to give a joint authority only, the words "attorney" and "or" would have been wholly useless. To give effect, then, to all the words, it is necessary to construe them distributively, and this is done by the interpretation before stated. They are appointed his attorneys, and each of them is appointed his attorney, for the purpose of acknowledging the deed.

The lessee of James Greenleaf instituted an action of ejectment chanroblesvirtualawlibrary

Page 30 U. S. 133

in the Supreme Court for the County of Washington for the recovery of lot No. 16 in Square No. 75, in the City of Washington, which suit was afterwards removed to the County of Alexandria and was there tried in the circuit court.

Upon the trial, the plaintiff gave in evidence certain duly authenticated copies of deeds, commencing in date 18 June, 1791, and of the allotment of the lot in question to James Greenleaf by the commissioners of the United States under the authority of the Act of Congress of 16 July, 1790, establishing "a temporary and permanent seat of the government of the United States." Upon this evidence, the plaintiff prayed the court to give certain instructions to the jury in favor of the title and possession of the lessor of the plaintiff, which were refused, and which refusal was made the ground of separate bills of exceptions. Subsequently the plaintiff gave in evidence a regular chain of title from the Lord proprietor of the province of Maryland, and a good title in the lessor of the plaintiff, in the month of October, 1794. The case on the part of the plaintiff was by this evidence relieved from the difficulties presented by the evidence which was offered in the first instance, and out of which arose the exceptions taken to the refusal of the court to give instructions upon that evidence.

The plaintiff also offered in evidence the survey, certificates, plots, and explanations returned in this cause, and offered to prove that nineteen and a quarter acres were truly located on the plot by the lines designated by the letters E.S.G.; that the deed from Benjamin Stoddart to Gant and Beall, and the deed from Benjamin Stoddart and Uriah Forrest to James Greenleaf the lessor of the plaintiff, comprised the land designated as aforesaid; and that the said lot No 16, in square No. 75, allotted to the lessor of the plaintiff by the said commissioners, in the said division of the said square, was also part of the land so designated, and offered parol evidence, by a competent witness, who was not present at the survey, that the lessor of the plaintiff was, in the month of October, 1794, in possession of the land designated by the lines and letters E.S.G. which is now demanded, and designated on the said plot, by lot 16 in square 75, under the claim of title. chanroblesvirtualawlibrary

Page 30 U. S. 134

But the court refused to permit the said parol evidence to be given to the jury, the same having been objected to on the ground of the witness not having been on the survey.

The plaintiff having established a good title in his lessor in October, 1794, the defendant offered to read in evidence to the jury, for the purpose of showing that the title to the lot in question was out of the lessor of the plaintiff after the year 1794, a paper purporting to be a copy of certain proceedings under the bankrupt law of the United States, admitted to be duly authenticated, and a deed from the persons therein named as commissioners of bankruptcy to Edward S. Burd, and a deed from the said commissioners and Burd to John Miller, Jr. To the admission of which in evidence the counsel for the plaintiff objected, and the court sustained the objection as to the said two deeds.

And thereupon the defendant prayed the court to instruct and the court did instruct the jury that by the proceedings of bankruptcy, the said James Greenleaf the lessor of the plaintiff was divested of the legal title in and to the said lot No. 16 in the said square No. 75, in the declaration mentioned, and that the said legal estate was thereby vested in the said commissioners of bankruptcy, and rejected the said deeds as any evidence in said cause.

Whereupon the plaintiff, in addition to the evidence aforesaid, offered to read in evidence to the jury, the said deeds in the said proceedings mentioned from the said commissioners of bankruptcy to the said Edward S. Burd, and the said deed from the said commissioners and the said Edward S. Burd to the said John Miller, and also a copy of a deed, duly authenticated, from the said Miller to Samuel Eliot, Jr., and a copy, duly authenticated, of a deed from the said S. Eliot, Jr., to James Greenleaf the lessor of the plaintiff, which the court refused to admit to be read in evidence.

The plaintiff excepted to those several opinions of the court, and prosecuted this writ of error, to reverse the judgment of the circuit court in favor of the defendant. chanroblesvirtualawlibrary

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Page 30 U. S. 135

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