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February 1, 1814


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: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 comprizes 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 non-tenure, 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 the land in controversy, sudicient 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 unappropriate 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 shew any thing beyond his patent, can the tenant holding the younger patent be permitted to impeach the Demandant's patent, to shew 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 shewing 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, authorise the Demandant to maintain his writ of right against the tenants holding the previous possession under a younger patent interfering with the elder grant?

WICKLIFFE, for the Demandant.

The Court below being divided in opinion upon the several questions already stated, they have been adjourned to this Court. The questions themselves sufficiently shew the controversy. And the several points will be examined as they present themselves on the record.

With regard to the first, we contend that the Circuit Court has jurisdiction in the case therein stated; and that the Defendant's only remedy, in such case, under the act of congress, is, that he shall be excused from paying costs, and that he may, at the discretion of the Court, be allowed his costs. In support of this point, we rely on the judicial act of 1789. Laws U. S. vol. 1, p. 47, 1 Sess. 1 Cong. ch. 20. § 11 & 20.

2d. Upon the second question, we contend, in behalf of the Demandant, that under the act of assembly of Virg. Rev. Co. P. P. 34, if his tenement is an entire one, and interfered with by divers tenants, he can only demand his tenement as it is, and cannot know how the adverse Claimants bound or abut their claims or possession; and that as all claim and obstruct him in the use and possession, he has a right to sue all. We contend, further, that although the Demandant claim more than the tenants or either of them hold, still he may recover as much as is withheld from him by the tenant or tenants. To support this possition we rely upon the act of assembly of Virginia of 1792, ch. 125, which is in force in Kentucky and is the same in substance with the act of 25 Edw. 3, ch. 16, which enacts 'that by the exception of non-tenure of parcel no writ shall be abated but for quantity of the non-tenure which is alleged;' and the act of assembly of Kentucky, entitled 'an act to amend proceedings in chancery and common law;' the latter of which acts expressly provides, that if the Plaintiff at law shall prove part of his demand or claim set up in his declaration, he shall not be non-suited, but shall have judgment for what he proves. See also, Boothe on real actions, p. 2.

3d. On the third question, we insist, that, under a sound construction of the act of assembly of Virginia of 1786, (revised code, vol. 1, p. 33, ch. 27,) no matter in abatement which does not affect the right can be pleaded. But if it can be pleaded, yet, under the acts of assembly of Kentucky, and the rales of the Circuit Court of the district of Kentucky, it ought to be pleaded during the appearance term, and be supported by oath. It is further insisted, that only such matters as assume the character of abatement at common law, and which affect the mere right, such as non-tenure, can be given in evidance on the mise joined. A contrary construction of the act would lead to the worst of consequences. If, upon the mise joined, all matter in abatement might be given in evidence, a man might lose his valuable inheritance by the Defendant proving on the trial that he claimed and held as joint-tenant, and not as sole tenant. It would also involve the monstrous absurdity of making the jury the sole and exclusive judges of the Demandant's count and pleading.

4th. The fourth proposition seems to be abstract and indefinite. If the matter in bar affects the mere right, and goes to shew substantially that the Demandant has no claim in fee simple, it is submitted to the Court to say, whether, under a just construction of the act, he can plead it. But as the act allows him to give such bar in evidence on the general issue, it is within the sound discretion of the inferior Court, to permit the Defendant to plead the special matter, or give it in evidence on the general issue; and that must depend upon the time when the application is made. On this point, the case of Resler v. Sheehee, 1 Cranch, 110, and the case of Fox and White, in the Court of appeals in Kentucky, are relied upon. It is further submitted, whether he mere etiquette of pleading and the time when that pleading shall be filed, is not a matter of practice only, and proper to be left to the Circuit Courts to settle under their own rules or the statutes and practice in Kentucky.

5th. The fifth question seems to be a more important one; and it would have been, perhaps, more regular to have placed that before the other questions, inasmuch as a decision upon that, affirmatively, would preclude the necessity of deciding several of the others.

Upon this question we contend that the Demandant can, upon his patent, maintain his writ of right; and that actual possession is not necessary. To maintain this point it is not at all material to prove that by the king's letters patent granting titles to land in England, a writ of right could be maintained. It is believed that no case has occurred where that point has been directly decided. But titles in England are conditional, not absolute. Since the time of William the conqueror, all grants of land have been made on feudal principles; and a patent in England is not of itself a right, but an authority to the grantee to take a right; that right rests upon conditions; and one of those conditions is entering and taking possession of the land. In the grant there are two parties supposed, the king and grantee; and the grantee becomes bound to the king when he accepts the estate, and not till then; the ultimate property remains with the king; and upon the tenant's entering, he becomes seized of the use only; and hence exists the reason, in the English books, of requiring the Demandant, in the most solemn trial of a right to real estate, to shew and prove the highest title the subject ever had, the dominium utile, or usufruct of the property; for if neither he nor his ancestor had entered and been seized of the use, (the dominium directum remaining in the king,) they never had a fee simple estate; the feudal grant ...

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