GREEN V. LITER, 12 U. S. 229 (1814)

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U.S. Supreme Court

Green v. Liter, 12 U.S. 8 Cranch 229 229 (1814)

Green v. Liter

12 U.S. (8 Cranch) 229


The circuit courts of the United States have jurisdiction in write of. right where the property demanded exceeds $500 in value, and if, upon the trial, the demandant recover leas, he is not to be allowed his costs, but at the discretion of the court may be adjudged to pay costs.

At common law, a writ of right will not lie except against the tenant of the freehold demanded. If there are several tenants claiming several parcels of land by distinct titles, they cannot lawfully be joined in one writ, and if they are, they may plead in abatement of the writ. If the demandant demands against, any tenant more land than he holds, he may plead nontenure as to the parcel not holden, but the writ shall abate only as to the parcel whereof poll tenure is pleaded, and admitted or proved.

Under the act of Kentucky to amend process in chancery and common law, the party may recover although he prove only part of the claim in his declaration, but it does not enable him to join parties in an action who could not be joined at the common law.

The act of Virginia of 1786 reforming the method of proceeding in writs of right did not vary the rights or legal predicament of the parties as they existed at the common law. It did not therefore change the nature and effect of the pleadings, and notwithstanding that act, the tenant shall still have the full benefit of the ordinary pleas in abatement. The clause of the act which provides that the tenant at the trial may, on the general issue, give in evidence any matter which might have been specially pleaded is confined to matters in bar.

Under the act of Virginia of 1786, the tenant may, at his election, plead any special matter in bar in a writ of right or give it in evidence on the mise joined. The act is not compulsive, but cumulative.

The act of Virginia of 1786 did not change the nature of the inquiry as to the titles of the parties to a writ of right.

In order to support a writ of right, it is not necessary to prove an actual entry under title or actual taking of esplees. A constructive seizin in deed is sufficient.

Under the land law of Virginia, the whole legal estate and seizin of the commonwealth pass to the patentee upon the issuing of his patents in as full and beneficial a manner (subject only to the rights of the commonwealth) as the commonwealth itself held them. A conveyance of wild and vacant lands gives a constructive seizin thereof in deed to the grantee, and attaches to him all the legal remedies incident to the estate. A fortiori this principle applies to a patent.

In Kentucky, a patent is the completion of the legal title, and it is the legal title only that can come in controversy in a writ of right.

A better subsisting adverse title in a third person is no defense in a writ of right.

If tenants, claiming different parcels of land by distinct titles, omit to plead that matter in abatement and join the mise, it is an admission that they are joint tenants of the whole, and the verdict, if for the demandant, for any parcel of the land may be general, that he hath no more right to hold the same than the tenants, and if of any parcel for the tenants, that they have no more right to hold the same than the demandant.

If a men enter into lands having title, his seizin is not bounded by his actual occupancy, but is held to be coextensive with his title.

But if a man enter without title, his seizin is confined to his possession by metes and bounds.

An entry into a parcel which is vacant will not give seizin of a parcel which is: in an adverse seizin, but an entry into the last parcel in the name of the whole will enure as an entry into the vacant parcel.

Under a conveyance taking effect under the statute of uses, the bargainee has a complete seizin in deed without actual entry or livery of seizin.

This was a writ of right brought by Green, the demandant, against the tenants to recover seizin of a large tract of land lying in Kentucky and set forth in the count. The writ of right was sued out under the act of the Virginia Assembly entitled "an act for reforming the method of proceeding in writs of right."

At the trial in the Circuit Court for the Kentucky District, several questions arose upon which the court was divided, whereupon those questions were certified for the opinion of the Supreme Court. They are as follows: chanrobles.com-red

Page 12 U. S. 230

1st. Has the circuit court of the United States jurisdiction in a writ of right where the land claimed by the demandant is above the value of $500, but the tenement held by the tenant is of less value than $500?

2d. Can the demandant join in the writ and count several tenants claiming under several distinct, separate, and independent original titles, all of which interfere with the land of the demandant? If he can, must he demand of them the tenements they severally hold, or may he demand a tenement to the extent of his own title? If it comprises a part not claimed or held by any of the said tenants, may he demand, in his count against the several tenants, his own tenement, or must he demand of each tenant the tenement he severally holds?

3d. Can the tenant, under the act of the Virginia Assembly for reforming the method of proceeding in writs of right, plead in abatement either the plea of nontenure, joint tenancy, sole tenancy, several tenancy, or never tenant of the freehold, or any of them, or other pleas in abatement necessary to his case, or is he compellable to join in the mise in the form prescribed by the said act? If he can, when or at what stage of the proceedings? If he cannot, may he give it in evidence on the mise joined?

4th. May the tenant, under the said act, plead specially any matter of bar, or must he join the mise, without other plea, in the form prescribed by the said act?

5th. Can a demandant who has regularly obtained a patent from the land office of the State of Virginia for the land in contest, under the act of the Virginia Legislature passed in the year 1779, commonly styled the land law, maintain a writ of right under such patent against a person claiming and holding possession under a younger patent from the said state without having first taken the actual possession of the land under his patent held by the tenant? If he can maintain a writ of right without such proof in the general, can he do it where his right of entry is barred by an actual adverse possession of twenty years?

6th. Is the eldest patent obtained, as aforesaid, for chanrobles.com-red

Page 12 U. S. 231

the land in controversy, sufficient proof of the best mere right, or can the demandant be put on the proof that, in the incipiency, and in the different steps necessary to complete his title, he has complied with the requisites prescribed by the acts, the one entitled

"An act for adjusting and settling the titles of claimants to unpatented lands under the present and former government previous to the establishment of the commonwealth land office,"

and the other "An act for establishing a land office and ascertaining the terms and manner of granting waste and unappropriated lands," and the subsequent laws of Virginia on the same subject, in force at the time of the erection of the District of Kentucky into a separate state?

7th. If the demandant is not compellable to show anything beyond his patent, can the tenant holding the younger patent be permitted to impeach the demandant's patent to show the incipiency and completion of his own title and the relative merits of his own and the demandant's title?

8th. Can the defendant defend himself by showing an older and better existing title than the demandant's, in a third person?

9th. Where several tenants, claiming in severalty, are joined in a writ of right, should the finding of the jury be several of the mere right between the demandant and each tenant, or may it be a general finding that the demandant hath the most mere right?

10th. The commonwealth having first made and granted a patent to the demandant, and afterwards, by her patent, granted a part of the same land to the defendants, who entered and obtained the first possession, the demandant afterwards entered and took possession, under his first grant, of that part of his land not within the patent of the first grantee -- who has the best mere right to the land, where the patents conflict, outside of the actual close of the last grantee?

11th. Will an entry upon part, and taking the esplees under the elder grant from the commonwealth, and making claim to the whole land included within the bounds of the elder grant, authorize the demandant to maintain chanrobles.com-red

Page 12 U. S. 232

his writ of right against the tenants holding the previous possession under a younger patent interfering with the elder grant? chanrobles.com-red

Page 12 U. S. 242


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