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U.S. Supreme Court

Lessor of Fisher v. Cockerell, 30 U.S. 5 Pet. 248 248 (1831)

Lessor of Fisher v. Cockerell

30 U.S. (5 Pet.) 248


After a judgment for the plaintiff in ejectment in the Union Circuit Court of the State of Kentucky, a habere facias possessionem was awarded, and on the succeeding day, on motion of the defendant, commissioners were appointed by he court according to, the provisions of the occupying claimants' law of Kentucky, to assess the damages and waste committed by the defendant and the value of the improvements made on the land. The commissioners valued the improvements at $1,350. F. did not appear on the return of the inquisition, and judgment was rendered against him for the sum so reported. Afterwards F. tendered a bill of exceptions stating that he moved the court to quash the report of the commissioners appointed to value the improvements, assess the damages, &c., but the court refused to quash the same, to which opinion he excepted and appealed to the Court of Appeals. A citation was issued by the clerk of the Court of Appeals, which was served. In that court, among others, F. assigned as error

"the plaintiff deriving his title from Virginia, the act or acts of the State of Kentucky, on which the court has founded its opinion, is repugnant to the compact with Virginia, therefore void as to the case before the court, being against the Constitution of the United States."

To bring a case within the protection of the seventh article in the compact between Virginia and Kentucky, it must be shown that the title to the land asserted is derived from the laws of Virginia prior to the separation of the two states.

The clerk of the Union Circuit Court certifies that certain documents were read in evidence, and among them a patent under which, F. claimed, issued by the Governor of Kentucky, founded on rights derived from the laws of Virginia. This Court cannot notice this patent; it cannot be considered a part of the record.

In cases at common law, the course of the Court has been uniform not to consider any paper as part of the record, which is not made so by the pleadings, or by some opinion of the court referring to it. This rule is common to all courts exercising appellate jurisdiction according to the course of the common law. The appellate court cannot know what evidence was given to the jury unless it is spread on the record in proper legal manner. The unauthorized certificate of the clerk that any document was read or any evidence given to the jury cannot make that document or that evidence a part of the record so as to bring it to the cognizance of this Court. The Court cannot perceive from the record in the ejectment cause that the plaintiff in error claimed under a title derived from the laws of Virginia. It therefore cannot judicially know that this suit was not a contest between two citizens claiming entirely under the laws of the State of Kentucky. When the record of the Union Circuit Court was transferred to the Court of Appeals, the course of that court requires that the appellant or the plaintiff in error shall assign the errors on which he means to rely. The assignment in that court contains the first intimation that the title was derived from Virginia, and that the plaintiff in error relied on chanrobles.com-red

Page 30 U. S. 249

the compact between those states. But this assignment does not introduce the error into the record or in any manner alter it. The Court of Appeals was not confined to the inquiry whether the error assigned was valid in point of law. The preliminary inquiry was whether it existed in the record. If, upon examining the record, that court could not discover that the plaintiff had asserted any right or interest in land derived from the laws of Virginia, the question whether the occupying claimants' law had violated the compact between the states could not arise.

In the view which has been taken of the record by the Court, it does not show that the compact with Virginia was involved in the case. Consequently the question whether the act for the benefit of occupying claimants was valid does not appear to have arisen, and nothing is shown on the record which can give jurisdiction to this Court.

A review of the cases of Harris v. Dennie, 3 Pet. 292; Craig v. Missouri, 4 Pet. 410; Owing v. Norwood, 5 Cranch 344; Miller v. Nicholls, 4 Wheat. 312.

In the argument, the Court has been admonished of the jealousy with which the states of the Union view the revising power entrusted by the Constitution and laws of the United States to this tribunal. To observations of this character the answer uniformly given has been, that the course of the Judicial Department is marked out by law; we must tread the direct and narrow path prescribed for us. As this Court has never grasped at ungranted jurisdiction, so it will never, we trust, shrink from the exercise of that which is conferred upon it.

This was a writ of Error to the Court of Appeals of the State of Kentucky to review a decision of that court affirming a judgment of the Union County Circuit Court of that state involving the validity of a law of the State of Kentucky called the "Special Occupying Claimant Law."

The action of ejectment was commenced in the circuit Court of Union County on the 20 May, 1822. At September term, 1822, William Cockerell, the defendant, appeared, and at his instance as well as of the plaintiff, an order of survey was passed requiring the surveyor to lay off the land in controversy as either party should require.

The plaintiff in the ejectment, after the filing of his declaration, at September term, 1822, had leave to withdraw the title papers filed by him for the purpose of the survey, as was presumed.

At June term, 1823, a verdict and judgment was rendered for the plaintiff on the demise of John Fisher, the plaintiff in error. On the other counts in the declaration, which stated other demises, a verdict and judgment was entered for the defendant. chanrobles.com-red

Page 30 U. S. 250

The record specifies the written evidence in the cause as follows:

"The following patent was the only paper read in evidence in this cause. The following deeds, to-wit, John Fisher to Frederick Ridgeley and Frederick Ridgeley and wife to James Morrison, were filed among the papers but rejected by the court, and so marked by the court, to-wit."

The patent and deeds so referred to are then set out in the transcript.

The patent purports to have been issued in the usual form under the seal of the Commonwealth of Kentucky, and the hand of the governor, duly countersigned by the secretary of state, on 15 June, 1802, and

"that by virtue and in consideration of three military warrants, No. 1115, 1125, and 1153, and entered 21 July, 1784, there is granted by the said commonwealth unto John Fisher (habendum to him and his heirs forever) a certain tract or parcel of land containing six hundred acres, by survey bearing date 23 May, 1785, lying and being in the district set apart for the officers and soldiers of the Virginia continental line on the Ohio,"

&c. The metes and bounds of the granted lands are then specially set out in the patent.

The two deeds referred to having been rejected as evidence for some reason not stated, but to be inferred from the informality of their authentication, and in consequence the issue on the two counts which those documents were adduced to support having been found for the defendant, it is unnecessary to state their contents. The recovery was upon the title of the original patentee, John Fisher, alone.

The court then proceeded, on the motion of defendant, to appoint commissioners (in virtue and execution of the state law)

"to go on the land from which the defendant has been evicted in this action and make assessment of what damage and waste the defendant has committed since 20 May, 1822 (when the suit was commenced) and the rent and profit accruing since 17 June, 1822 (the day of appearance to the action) and the value of improvements made on said land, and of the value of said land at the time of such assessment, regarding it as if such improvement had never been made."

The report of the commissioners was returned to March chanrobles.com-red

Page 30 U. S. 251

term, 1824, in which they say

"that there has been no injury or waste done upon the premises by the occupant since 20 June, 1823, and they assess the improvements made on the premises as follows:"

Clearing and enclosing forty-six acres of land, at

twenty dollars per acre . . . . . . . . . . . . . . 920

Dwelling house and various farm buildings . . . . . . 430



For this sum the court gave judgment against the plaintiff, who moved to quash the said report and reserved a bill of exception to the refusal of the court so to quash.

Upon this last judgment the plaintiff sued out a writ of error to the Court of Appeals in Kentucky, and made a special assignment of the errors complained of pursuant to the law and practice of that court. The error assigned was

"the plaintiff deriving title from Virginia, the act or acts of the State of Kentucky on which this Court has founded its opinion is repugnant as to the compact with Virginia, therefore void as to the case before the court, being against the Constitution of the United States."

The Court of Appeals affirmed the judgment of the circuit Court of Union County, and the plaintiff prosecuted this writ of error. chanrobles.com-red

Page 30 U. S. 252


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