US SUPREME COURT DECISIONS

Ejectment. A deed of indenture, duly executed, acknowledged and recorded, was given is evidence by the defendant in an ejectment, which purported to convey certain lots of ground in the City of Washington, specifying the number of the lots, referring to the title under which they were held by the grantor. The deed contained the following exception:

"Except as hereinafter excepted, all those hereinafter mentioned and described lots, squares, lands, and tenements situate in the City of Washington in the District of Columbia which the said J.G. and the said R.M. and J.N. were jointly interested in, each one equal undivided third part, on the day of the date of the indenture, 10 July, 1796."

Among the lots described in the conveyance were lots supposed to be 239, described as those which J.G., the grantor, contracted for with Uriah Forrest and Benjamin Stoddert by an agreement dated 15 July, 1794. The lot sued for was one of those included in a conveyance made by Forrest and Stoddert to J.G. on 24 September, 1794. The exception in the deed states the lots which it purports to apply to as "a square, number 5016," another

"square lying next to, and south of the said number 506, and all the other ground lying next to, and south of the square last aforesaid, the said square containing,"

&c., which are to remain the separate property of the grantors, and also excepting all such squares, lots, lands, and tenements as were conveyed or agreed to be conveyed by the parties to the indenture, prior to 10 July, 1795. Held that this exception is valid, and that the burden of proof to show that the lot for which the ejectment is brought is within the exception is not upon the plaintiff in the action. That in many cases the burden of proof is on the party within whose peculiar knowledge and means of information the fact lies is admitted. But this rule is far from being universal, and has many qualifications upon its application.

In the case before the Court, the defendant has shown prima facie a good title to recover. The defendant sets up no title in himself, but seeks to maintain his possession as a mere intruder by setting up a title in third persons with whom he has no privity. In such a case, it is incumbent upon the party setting up the defense to establish the existence of such an outstanding title beyond all controversy. It is not sufficient for him to show

that there may possibly be such a title. If he leaves it in doubt, that is enough for the plaintiff. He has a right to stand upon his prima facie good title, and he is not bound to furnish any evidence to assist the defense. It is not incumbent on him negatively to establish the nonexistence of such an outstanding title; it is the duty of the defendant to make its existence certain.

Deeds for lands in the District of Columbia, executed by an insolvent debtor under the insolvent laws of the State of Pennsylvania and under and in conformity with the insolvent laws of the State of Maryland, not having been enrolled in the general court where the lands lie, are in a legal sense mere nullities, and incapable of passing the lands described in them. chanrobles.com-red

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This was an ejectment instituted in May, 1818, by the plaintiff in error, in the Circuit Court of the County of Washington, for the recovery of a lot of ground in the City of Washington, number 17, square 75. The case was subsequently removed to the County of Alexandria, where the same was tried and a verdict and judgment rendered for the defendant. The plaintiff prosecuted this writ of error.

The plaintiff in error, James Greenleaf, held in fee simple under a patent from the State of Maryland to William Langworth, and a deed from Uriah Forrest and Benjamin Stoddert, a large number of lots and squares of ground in the City of Washington. Afterwards, on 13 May, 1796, he conveyed by deed of indenture to Robert Morris and John Nicholson, in fee simple, certain of the said lots, which are particularly described in the said instrument. The indenture purports to convey the said lots, "except as is hereinafter excepted;" and the exception, in a subsequent part of the same, is in the following words:

"excepting, nevertheless, out of the lots, squares, lands and tenements above mentioned all that square marked and distinguished in the plot of the City of Washington by the number 506, and that other square lying next to and south of the said number 506, and all that other square lying next to and south of the square last aforesaid, the said three squares containing in the whole about the quantity of one hundred and sixtynine thousand and seventysix and three quarters square feet, be the same more or less, which it is agreed by all the parties to these presents shall be and remain the sole and separate property of the said James Greenleaf, his heirs and assigns, and excepting also all such squares, lots, lands, or tenements as were either conveyed or sold, or agreed to be conveyed, either by all or either them, the said James Greenleaf, Robert Morris and John Nicholson, or any of their agents and attorneys, to any person or persons whatsoever, at any time prior to 10 July, 1795."

This deed was recorded in the City of Washington according to the provisions of the laws of Maryland.

James Greenleaf having, on 10 March, 1798, applied to the Supreme Court of the State of Pennsylvania, for the benefit of the insolvent laws of that state, was discharged as an chanrobles.com-red

Page 31 U. S. 304

insolvent debtor by that court on 31 March, 1798.

At the time of this discharge, he executed a conveyance of all his estate, real, personal and mixed, to Robert Smith, Mordecai Lewis, and James Yard, their heirs and assigns, for the benefit of his creditors, agreeably to the provisions of the insolvent laws of the State of Pennsylvania.

Subsequently, in March, 1800, on the application of the creditors of Mr. Greenleaf, Thomas M. Willing, and Joseph S. Lewis were substituted as the assignees of the insolvent, and they also refusing to act, the court, on 12 March, 1804, appointed John Miller, Jr., sole assignee of the estate and effects of Mr. Greenleaf, and Robert Smith and James Yard, who survived Mordecai Lewis, on 16 March, 1804, conveyed to John Miller, Jr., all the estate and effects of the insolvent, which had been vested in them by the deed executed by him at the time of his discharge.

On 9 February, 1799, James Greenleaf applied by petition to the chancellor of the State of Maryland for the benefit of the insolvent law of that state, passed in 1798, and he was discharged on 30 August in the same year. As a part of the proceedings in the case, the petitioner executed a deed conveying to a trustee named by the chancellor all his property, real and personal, and all the requirements of the laws of Maryland were complied with.

Annexed to the schedule of the property of the petitioner for the benefit of the insolvent laws of Maryland is a statement that all the property mentioned therein had been transferred by the petitioner to assignees appointed under the insolvent laws of Pennsylvania.

On the trial of the cause in the circuit court, the plaintiff tendered two bills of exceptions.

The first bill of exceptions was as follows:

"On the trial of this suit, to maintain the issue on his part joined on the first count in his declaration, the plaintiff gave in evidence to the jury, a patent from the proprietors of the State of Maryland, to William Langworth, dated 5 July, 1686, in these words [stating the same], and proved that the tenement, wooden messuage, and improvements in the

Page 31 U. S. 305

plaintiff's declaration mentioned, were comprehended within the bounds of the said patent, and the legal title to the said tenement, wooden messuage, and improvements was deduced from the said patentee to plaintiff by divers mesne conveyances and by the deed of 20 September, 1794, from Forrest and Stoddert to J. Greenleaf, mentioned in the deed of 13 May, 1796, whereupon the defendant, to show a title out of the plaintiff, gave in evidence to the jury a deed from the said James Greenleaf to Robert Morris and John Nicholson, dated 13 May, 1796 [stating the same], admitted to have been executed by the said James Greenleaf, and offered no other evidence. Whereupon the plaintiff's counsel prayed the court to instruct the jury that the said deed, unaccompanied by any other evidence, did not show such an outstanding title as was sufficient to bar the plaintiffs recovering in this suit, which instruction the court refused to give, to which refusal the plaintiff excepted and prayed the court to sign and seal this, his bill of exceptions, which is accordingly done this 5 December, 1829."

The second bill of exceptions stated that:

"On the trial of this suit, to sustain the issue on his part joined, the plaintiff gave in evidence to the jury a patent from the proprietor of the State of Maryland [stating the same], and the legal title under the said patent is admitted by the defendant to have been vested in the plaintiff by the said patent and by divers mesne conveyances on 30 August, 1799. Whereupon, to prove a title out of the said James Greenleaf, the defendant offered in evidence to the jury the proceedings in the case of the said James Greenleaf, and insolvent, before the chancellor of Maryland, setting out the said proceedings, and an Act of the State of Maryland of 1798, ch. 64. To the admission of which proceedings of insolvency the plaintiff by his counsel excepted, but the court overruled the said exception and permitted the said proceedings to be read in evidence to the jury, and thereupon, on the prayer of the counsel for the defendant, the court instructed the jury that the said act of assembly, and proceedings in insolvency did show a legal title out of the plaintiff, and did preclude a recovery in this suit on the first count in the plaintiff's declaration."

"The plaintiff's counsel thereupon gave in evidence to the jury

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the proceedings in the case of the insolvency of the said James Greenleaf in the Commonwealth of Pennsylvania in these words [stating the same], and the conveyances therein mentioned, not recorded in the State of Maryland, and prayed the court to instruct the jury that under the operation of the said proceedings in Maryland and Pennsylvania, the legal title to the premises in the declaration mentioned, notwithstanding the said conveyances, was not divested from the said James Greenleaf by anything by the defendants so as aforesaid shown, which instruction the court refused to give. To the admission of the proceedings as aforesaid before the chancellor of Maryland and to the instruction of the court given on the prayer of the defendant as to the effect thereof and of the said act of assembly, and to their refusal to instruct the jury as prayed by the plaintiff's counsel, the plaintiff, by his counsel, excepted and prayed that this, his bill of exceptions, may be sealed and enrolled, which was done accordingly. "

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