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U.S. Supreme Court

Lessee of Clarke v. Courtney, 30 U.S. 5 Pet. 319 319 (1831)

Lessee of Clarke v. Courtney

30 U.S. (5 Pet.) 319


The clerk of the court brought into court, under process, a letter of attorney, and left a copy of it, by consent of the plaintiffs and defendants, returning home with the original. M. a witness stated that the clerk of the court showed him the instrument, the signature of which he examined, and he believed it to be the handwriting of the party to it, with whose handwriting he was acquainted. Another witness stated that the instrument shown to M. was the original power of attorney. The letter of attorney purported to be executed and delivered by "James B. Clarke, of the City of New York, and Eleanor his wife," to "Carey L. Clarke, of the City of New York," on 7 October, 1796, in the presence of three witnesses. By the court:

"In the ordinary course of legal proceedings, instruments under seal purporting to be executed in the presence of a witness must be proved by the testimony of the subscribing witness, or his absence sufficiently accounted for. When he is dead, or cannot be found, or is without the jurisdiction of the court, or otherwise incapable of being produced, the next secondary evidence is the proof of his handwriting, and that, when proved, affords prima facie evidence of a due execution of the instrument, for it is presumed that he could not have subscribed his name to a false attestation. If upon due search and inquiry no one can be found who can prove his handwriting, no doubt resort may then be had to proof of the handwriting of the party who executed the instrument. Such proof may always be produced as corroborative evidence of its due and valid execution, though it is not, except under the limitation stated, primary evidence. Whatever may have been the origin of the rule, and in whatever reason it may have been founded, it has been too long established to be disregarded or to justify an inquiry into its original correctness. The rule was not complied with in the case at bar. The original instrument was not produced at the trial, nor the subscribing witnesses, or their nonproduction was not accounted for. The instrument purports to be an ancient one, but no evidence was offered in this stage of the cause to connect it with possession under it so as to justify its admission as an ancient deed without further proof. The agreement of the parties dispensed with the production of the original instrument, but not with the ordinary proof of the due execution of the original, in the same manner as if the original were present."

A power of attorney "to sell, dispose of, contract, and bargain for land, &c., and to execute deeds, contracts, and bargains for the sale of the same" did not authorize a relinquishment to the State of Kentucky of the land of the constituent under the act of the Legislature of that State of 1794, which allowed persons who held lands subject to taxes to relinquish and disclaim their title thereto by making an entry of the tract or the part thereof disclaimed with the surveyor of the county.

A power of attorney from "James B. Clarke and Eleanor his wife" to "Carey L. Clarke" for the sale of lands is not properly or legally executed in the chanrobles.com-red

Page 30 U. S. 320

following form:

"I, the said Carey L. Clarke, attorney as aforesaid, &c., do. . . . In witness whereof the said Carey L. Clarke, attorney as aforesaid, has hereunto subscribed his hand and seal this 25 November in the year of our Lord 1800. Carey L. Clarke [L.S.]."

This act does not purport to be the act of the principal, but of the

attorney. This may savor of refinement, since it is apparent that the party intended to pass the interest and title of his principals. But the law looks not to the intent alone, but to the fact whether the intent has been executed in such a manner as to possess a legal validity.

In the case of Hawkins v. Barney's Lessee, at this term, it was decided that when the plaintiff's title, as exhibited by himself, contains an exception and shows that he has conveyed a part of the tract of land to a third person, and it is uncertain whether the defendants are in possession of the land not conveyed, the onus probandi to prove the defendant on the ungranted part is on the plaintiff.

If a mere trespasser, without any claim or pretense of title, enters into land and holds the same adversely to the title of the owner, it is an ouster or disseizin of the owner. But in such case, the possession of the trespasser is bounded by his actual occupancy and consequently the owner is not disseized except as to the portion so occupied.

Where a person enters into land under a deed or title, his possession is construed to be coextensive with his deed or title, and although the deed or title may turn out to be defective or void, yet the true owner will be deemed to be disseized to the extent of the boundaries of such deed or title. This, however, is subject to some qualifications. For if the true owner be at the same time in possession of part of the land, claiming title to the whole, then his seizin extends, by construction of law, to all the land which is not in the actual possession or occupancy by enclosure or otherwise of the party so claiming under a defective deed or title.

In the case of Society for Propagating the Gospel v. Town of Pawlet, 4 Pet. 480, the Court held that where a party entered, as a mere trespasser without title, no ouster could be presumed in favor of such a naked possession, but that when a party entered under a title adverse to the plaintiff, it was an ouster of and an adverse possession to the true owner. The doctrines recognized by this Court are in harmony with those established by the authority of other courts, especially by the court of Kentucky.

This was an action of ejectment instituted in February, 1821, against a number of persons in possession of a large tract of land, containing 55,390, in the State of Kentucky. The suit was afterwards dismissed by the plaintiffs as to forty of the defendants.

The declaration contained five counts, each count stating separate demises of the same tract of land. The first was on the demise of James B. Clarke, of 1 September, 1820, for 55,390 acres, granted chanrobles.com-red

Page 30 U. S. 321

by Virginia, to Martin Pickett, by patent, bearing date 10 December, 1785.

"Beginning at a sugar tree and white oak, at the head of a hollow corner, to another survey of the said Pickett, and of younger Pitt's land, thence with a line of said Pickett's survey of 44,740 acres,"

&c., describing the abuttals as set forth in the patent.

The second count was on the demise of John Bryant, Maxwell and wife, Anna Maria Maxwell, and Eliza Bryant Grant, heirs of John Bryant, deceased. The third was on the demise of Abraham Schuyler, and Neelson and wife. The fourth of Theodocia, Thomas, and John B. Grant. The fifth on several demises made by John B. Maxwell, Anna Maria Maxwell, Eliza B. Grant, Theodocia S. Grant, Thomas R. Grant, John B. Grant, Abraham S. Neelson and wife.

The case was tried at November term, 1826, when the verdict and judgment were for the defendants.

In the course of the trial, the plaintiffs took three bills of exceptions to the opinions of the court on the matters set forth thereon.

The first bill of exceptions sets forth that on the trial of the cause, some of the defendants professing to hold a conveyance from the plaintiff, Clarke, by Carey L. Clarke as attorney in fact of the said plaintiff, offered in evidence a deed and letter of attorney, the former executed by Carey S. Clarke as the attorney in fact of James B. Clarke and Eleanor Clarke, his wife, on 23 October, 1800, to Robert Payne and the latter the power of attorney, executed at the City of New York, on 7 October, 1796. The deed, to Robert Payne which was duly admitted to record, released to him all James B. Clarke's title to all the land embraced by the surveys of John and Robert Todd on the North Fork of Eagle and Mill Creek so far as they interfere with the patent to Martin Pickett, under which Robert Payne claimed, and gave testimony likewise, conducing to prove them. And that, Andrew Moore the Clerk of the Harrison Circuit Court, who brought the letter of attorney into this Court, under process for that purpose, desiring to return, and considering it his duty to retain possession of that instrument, by consent of plaintiff and defendant, departed with it, leaving a copy. And at a chanrobles.com-red

Page 30 U. S. 322

subsequent day, Moses L. Miller was introduced as a witness to prove the letter of attorney, who stated that being summoned as a witness he met with the clerk of Harrison aforesaid, in Georgetown, who showed him an instrument, the signature to which he examined, and he believed it to be the hand writing of James B. Clarke, with whose hand writing he was acquainted. And another witness was examined, tending to prove that the instrument, so shown by said Moore to Miller, was the same previously read before this Court as aforesaid.

When Andrew More, the clerk of Harrison Court, was about to resume possession of the letter of attorney and to depart, the attorney of the plaintiff declared that he had no objections. No further evidence was offered relative to the power of attorney.

To the admission of the testimony of Miller the plaintiff objected, especially in the absence of the letter of attorney, but the court overruled the objection, and submitted the testimony to the jury, as tending to prove that instrument, to which the plaintiff excepted.

The second bill of exceptions stated that the plaintiff proved and read in evidence a patent from the Commonwealth of Virginia, to Martin Pickett, dated 10 December, 1785, for 55,390 acres,

"beginning at a sugar tree and white oak, at the head of a hollow corner to said Pickett's and younger Pitt's land, thence with a line of said Pickett's survey of 44,740 acres, being part of said entry, north 9, east,"

&c., being the same abuttals set forth in the declaration of ejectment and in the power of attorney.

And also a deed from the said Martin Pickett of Virginia, to William and John Bryant for the said land, dated May 1, 1793, and also a deed from William Bryant to James B. Clarke, dated 18 July, 1794, for an undivided moiety of the said land, and also a deed from John Bryant to James B. Clarke, dated October 13, 1794, for the other moiety, he having proved the possession of the defendants, and that James B. Clarke at the date of his deed and ever since, was and had been, a citizen and resident in the State of New York. chanrobles.com-red

Page 30 U. S. 323

The plaintiff relied solely on the demise from James B. Clarke, and gave no evidence on the other demises -- and relied solely upon the patent to Pickett for 55,390 acres -- none of the defendants being within the patent to Pickett for 44,740 acres.

The defendants offered in evidence the following exhibits: a release of 49,952 acres by Carey L. Clarke, as attorney for James B. Clarke and John Bryant, bearing date 25 November, 1800 -- acknowledged same day, before John Payne, the surveyor of Scott County, by him certified -- afterwards lodged with the auditor of public accounts; it recites that James B. Clarke and wife, and John Bryant and wife, had appointed Carey L. Clarke their attorney, to sell, transfer, and convey a certain tract on the waters of Eagle Creek, in the County of Scott and State of Kentucky, containing 100,192 acres, entered in the name of Martin Pickett, and which tract of land is now held by the said Clarke and Bryant, as tenants in common:

"Now therefore I, the said Carey L. Clarke, attorney as aforesaid, in pursuance of an act of the Legislature of the State of Kentucky, authorizing claimants of land within its commonwealth to relinquish, by themselves or their attorneys, any part or parts of their claims to the commonwealth, I do hereby relinquish to the Commonwealth of Kentucky all the right, title, interest, property, claim, and demand of the said Clarke and Bryant of, in, and to the hereinafter described tracts of land, being part of the above mentioned tract, and lying within the boundaries, viz., _____."

Here the deed specifies various conflicting surveys and gives the quantity in the various surveys; also specifies certain other quantities by boundaries expressed, altogether amounting to 49,952 acres.

Also a release, bearing date 25 November, 1801, executed by the said Carey L. Clarke, as attorney in fact for John Bryant, reciting the act of assembly aforesaid, authorizing the relinquishment of lands to the commonwealth, specifying various conflicting surveys and other specific boundaries of the several parcels, amounting to 34,027 acres -- also certified by the surveyor of Scott and filed in the chanrobles.com-red

Page 30 U. S. 324

auditor's office -- with a transcript by the auditor, from the books of his office certifying the entries for taxes of the 55,390 acres and the subsequent relinquishment of 49,952 acres thereof and the sale to the state for taxes of 3,438 acres -- also, the entry for taxes of the 44,547 acres; the release to the State of 34,029 thereof, and that the residue was the property of John Hawkins of George (Kentucky) -- annexed also is the certificate of the auditor that neither James B. Clarke nor John Bryant appears to have paid any taxes since the said relinquishments were made. To prove which he relied upon the power of attorney to Carey L. Clarke, mentioned in a former bill of exceptions, and the original relinquishment from the auditor's office, and proved the execution thereof by John Payne the surveyor of Scott County, wherein the land relinquished then was situate.

John Payne also stated, that in the year 1794 or thereabouts, _____ Griswold came to his residence in Scott County, claiming the land in Pickett's patent, by contract with Clarke; that the deponent and Robert Parker, the surveyor of Fayette, made out a connected plot showing the interfering claims set forth in this relinquishment, and Griswold, expressing dissatisfaction with the claim and the contract, returned. Afterwards, Carey L. Clarke came to Kentucky, avowing himself the agent of Clarke by the letter of attorney, a copy of which is set forth in the bill of exceptions taken in this cause; that Carey L. Clarke in 1796, or thereabouts, called on the witness, and expressed a disposition to relinquish. The witness advised Clarke that he might be able to prevail for some of the land, and had better not make the relinquishment. Afterwards, in the year 1800, the relinquishment was prepared by Carey L. Clarke, in his own handwriting, and executed in the surveyor's office, before said Payne and he the surveyor certified it and took copies; Carey L. Clarke then took the original, and the witness having no record book for the purpose (this being the only relinquishment ever made in his office for taxes), still kept a copy with his private papers, and he did not deliver the copy to his successor in office (and did chanrobles.com-red

Page 30 U. S. 325

not suppose Clarke had used it till lately), when he resigned and handed over the records, which took place some years afterwards.

Porter Clay, the present auditor of state, produced the original, stating on examination that he found it in his office and that no tax had been paid upon that part of the tract embraced by that instrument subsequent to its date.

The attorney for the plaintiff then made a motion to the court to instruct the jury that the instrument under the proof did not bind the plaintiff, and could not bar his recovery, but the court overruled the motion and instructed the jury that the said relinquishment for the 49,952 acres, if the execution thereof was satisfactorily proved, was a bar to the recovery of all the land described in said relinquishment.

And on the motion of the defendants, the court instructed the jury that if it believed the execution of the power of attorney from James B. Clarke to Carey L. Clarke, and of the relinquishment in evidence, then it was incumbent on the plaintiff, to maintain his action, to show that the defendants or some of them were at the service of the ejectment, outside of the several parts relinquished to the state, to which several opinions of the court the plaintiff excepted.

The third bill of exceptions stated that the plaintiff having given in evidence the patent to Pickett, the deed to John and William Bryant, the deeds from John and William Bryant to the plaintiff, James B. Clarke, and proved that the said James B. Clarke was, at the date thereof, and ever since, resident of the State of New York, and that the title papers aforesaid all embrace the land in controversy, and that the defendants were all in possession at the time of the commencement of this suit, and after the defendants had given the evidence touching the relinquishment as set forth in the bill of exceptions on file in this cause, and the court had given the instructions and opinions therein also contained; the plaintiff gave testimony conducing to prove that some of the defendants, to-wit, William Hinton, James Hughes, John Vance, John Gillum, Henry Antle, Jeremiah Antle, Peter Sally, Benjamin Sally, Samuel Courtney, &c., were not within the limits set forth by the said instrument of relinquishment, and these all relying chanrobles.com-red

Page 30 U. S. 326

in their defense upon their possession, they gave in evidence a patent to James Gibson and a patent to Sterrett and Grant.

That Gibson's patent is for 657 acres, surveyed 4 December, 1783, patented March 1, 1793. Sterrett and Grant's patent, 1,629 acres, entered 16 January, 1783, surveyed 1 November, 1792, patented 24 October 1799. And gave testimony conducing to prove that the said Sallys, Courtneys, &c., were within the boundary prescribed by the patent of Grant and Sterrett, and Hinton, Hughes, Gillum, Vance, Antles, were within the bounds of the grant to Gibson, and touching the possession within Gibson's patent, the witness stated that in the year 1796, William Hinton entered within the patent of Gibson, claiming a part of the tract under that grant, and that tenement has been occupied ever since, and at subsequent periods, the other tenants claiming under said William Hinton had settled in the same manner upon other parcels, claimed by them as parts of said William Hinton's purchase, and from the time of their respective settlements, their possession had been continued; the witness knew not the extent of boundary of any of the purchases, and no title papers were produced.

And touching the possession within the grant to Sterrett and Grant, the witness stated that in the year 1791 or 1792, Griffin Taylor entered under that patent; that tenement has been still occupied by Taylor and his alienees, and at periods subsequent, the other tenants had entered and taken possession, claiming under said Taylor within the limits of the patent to Sterrett and Grant. No written evidences of purchase were offered.

Whereupon the attorney for the plaintiff made a motion to the court to instruct the jury,

1. That the possession of those defendants was no bar to the plaintiff's action.

2. That the statute of limitations could only protect the defendants to the extent that had actually enclosed their respective tenements and occupied for twenty years preceding the commencement of this suit.

The court overruled the motion of the plaintiff for the instructions chanrobles.com-red

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aforesaid, as made, and instructed the jury that adverse possession was a question of fact; that under the adverse patents given in evidence it was not necessary to show a paper title derived under those adverse grants, to make out adverse possession, but that such hostile possession might be proved by parol; that an entry under one of the junior grants, given in evidence by the defendants, and within the boundaries of the elder grant of Pickett, made by one claiming under such junior grant without any specific metes and bounds other than the abuttals of the grant itself did constitute an adverse possession to the whole extent of the abuttals and boundaries under which such entry was made.

To the refusal of the court to give the instructions asked by the plaintiff and to the instructions given by the court, the plaintiff excepted. chanrobles.com-red

Page 30 U. S. 343


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