LESSEE OF SICARD V. DAVIS, 31 U. S. 124 (1832)

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U.S. Supreme Court

Lessee of Sicard v. Davis, 31 U.S. 6 Pet. 124 124 (1832)

Lessee of Sicard v. Davis

31 U.S. (6 Pet.) 124


The act of the Legislature of Kentucky, passed in 1796, respecting conveyances reduces into one all the laws previously existing on the subject of recording conveyances of land. That act does not create a right to convey property which any individual may possess, but restrains that right by certain rules, which it prescribes and which are deemed necessary for public security.

The original right to convey property remains unimpaired except so far as it is abridged by that statute.

Under that statute, the only requisites to a valid conveyance of lands are that it shall be in writing and shall be sealed and delivered.

The acknowledgment and the proof which may authorize the admission of the deed to record and the recording thereof are provisions which the law makes for the security of creditors and purchasers. They are essential to the validity of the deed as to persons of that description, not as to the grantor. His estate passes out of him and vests in the grantee, as far as respects himself, as entirely if the deed be in writing, sealed, and delivered, as if it be also acknowledged or attested and proved by three subscribing witnesses and recorded in the proper court. In a snit between them, such a deed is completely executed, and would be conclusive although never admitted to record nor attested by any subscribing witness. Proof of sealing and delivering would alone be required, and the acknowledgment of the fact by the party would be sufficient. proof of it.

If the original deed remained in existence, proof of the handwriting, added to its being in possession of the grantee, would, it is presumed, be prima facie evidence that it was sealed and delivered. No reason is perceived why such evidence should not be as satisfactory in the case of a deed as in the case of a bond. Where the deed is lost, positive proof of the handwriting is not to be expected. The grantee must depend on other proof.

The words of the first section of the statute, declaring

"that no estate of inheritance in lands, &c., shall be conveyed from one to another unless the conveyance be declared by writing, sealed and delivered, nor shall such conveyance be good against a purchaser for valuable consideration not having notice thereof or any creditor unless the same writing be acknowledged,"

&c., can apply only to purchasers of the title asserted by virtue of the conveyance, and to creditors of the party who has made it. They protect such purchasers from a conveyance of which they had no notice, and which, if known, would have prevented their making the purchase, because it would have informed them that the title was bad, that the vendor had nothing to sell. But the purchaser from a different person of a different title, claimed under a different patent, would be entirely unconcerned in the conveyance. To him it would be entirely unimportant whether this distinct conflicting title was asserted by the original patentee, or by his vendor. The same general terms are applied to creditors and to purchasers, and the word "creditors" can mean only the creditors of the vendor.

Page 31 U. S. 125

What should be considered sufficient proof of the loss of a deed to entitle the person holding under it to read a copy of it in evidence, and what was sufficient proof of the execution of the original deed to entitle it to be read in evidence to the jury.

A possession taken under a junior patent, which interferes with a senior patent, the lands covered by which are totally unoccupied by any person holding or claiming under it, is not limited to the actual enclosure, but is coextensive with the boundaries claimed under such junior patent.

A count in the declaration in an ejectment on a demise from a different party asserting a different title is not distinguishable, so far as respects the act of limitation, from a new action.

The construction of the act of limitations that if adverse possession be taken in the lifetime of the ancestor, and be continued for twenty years, and for ten years after the death of the ancestor, no entry having been made by the ancestor of those claiming under him, the entry is barred, is established by the decisions of this Court, as well as of the courts of Kentucky.

On 8 March, 1825, Stephen Sicard, a citizen of Pennsylvania, commenced his actions of ejectment in the Circuit Court for the District of Kentucky against Jesse Davis and others, and against John Cecil, Robert Smithers, and others for the recovery of 6,680 acres of land, or parts of the same. Those who were in possession of the lands were admitted as defendants, each for himself, and pleaded not guilty. In the progress of the case, the plaintiff was twice nonsuited, and the nonsuits were set aside. Nancy Davis, after the death of the husband, became, on motion, a party to the suit.

The demise in the declaration was stated to have been made by Stephen Sicard on 30 January, 1815. Afterwards, at November term, 1821, upon motion of the plaintiff, leave was given to amend the declaration by laying a demise in the name of the heirs of the original grantee of the land, Joseph Phillips, and from others to whom the land had been conveyed, before the execution of the deed under which Stephen Sicard acquired his title.

The cause was tried at the October term, 1824, of the circuit court, and judgments were rendered for the defendants.

The plaintiff on the trial tendered a bill of exceptions in each case, and the cases were brought up to this Court on writs of error prosecuted by him.

Page 31 U. S. 126

The bills of exceptions stated the evidence given by the plaintiff to maintain the suits to have been a patent dated 6 June, 1786, from the State of Virginia to Joseph Phillips, for 6,680 acres of land, under a survey dated 4 May, 1784, and proof that the patent covered the land in controversy, and that the defendants were in adverse possession at the commencement of the suit.

Also copies of deeds from Joseph Phillips to Benjamin Stephens, and from Stephens to Samuel R. Marshall, and from Marshall to Stephen Sicard.

The first deed from Joseph Phillips to Benjamin Stephens is dated 11 October, 1797. The second deed from Stephens to Marshall is dated 25 December, 1797. The deed from Marshall to Sicard is dated 25 May, 1798, and these deeds covered the land in suit.

The plaintiff also proved that Phillips, Stephens, Marshall, and Sicard always resided in Pennsylvania, New York, and New Jersey.

It was proved that Phillips and Stephens died in the year 1798 or 1799.

The deed of Joseph Phillips to Benjamin Stephens is dated 16 October, 1797. On 8 June, 1798, it appears that Joseph Spencer, of Philadelphia, appeared before Hillary Baker, Mayor of Philadelphia, and deposed that he saw Joseph Phillips sign, seal, and deliver the said deed; that he saw Samuel R. Marshall and John Phillips severally subscribe their respective names thereunto, as witnesses to the signing, sealing, and delivering the said deed.

This deed, thus proved, was recorded, together with the deeds from Stephens to Marshall and from Marshall to Sicard, and were, on 23 April, 1803, certified by the clerk of the court of appeals to have been recorded in his office in Frankford, in the State of Kentucky.

The plaintiff, in order to introduce the copies of the deeds in evidence and to prove the execution of the original deeds, produced a paper signed by Alexander Parker stating that he had received, February 9, 1803, or Mr. Stephen Sicard, three deeds for a certain tract of land lying in Nelson County and State of Kentucky, on Chaplin's Fork; the first, Joseph Phillips to Benjamin Stephens for 6,680

Page 31 U. S. 127

acres of land; the second, Benjamin Stephens to Samuel R. Marshall for said land; the third, Samuel R. Marshall to Stephen Sicard for same; also a certificate of Ralph Phillips concerning the same, all to be recorded in the office at Frankfort in Kentucky.

The plaintiff also read the deposition of Thomas Wallace, who swore that in the summer of 1803, said Parker told him that he had left at deponent's store, or with a Mr. Scott, his clerk, three deeds, the property of Sicard, to be carried from Lexington to Philadelphia by the deponent. He knows nothing of the papers, nor does he recollect ever to have seen them; he has searched for them among his papers, but is unable to find them.

Alexander Parker proved the receipt, and that he got the deeds recorded in the Court of Appeals of Kentucky -- that he enclosed said deeds directed to Mr. Sicard, Philadelphia, and left them with Mr. Wallace's clerk, to be taken by Wallace to Sicard. These deeds he believes were originals; he has never seen them since; he believes Scott was dead; that for several years he paid the taxes for said land, and saw the entry of said land for taxes in the auditor's office.

Mary Powell, a witness, resident in Philadelphia, swore she is the widow of Benjamin Powell and that she is fully satisfied from what her husband told her that he did witness a deed to which Benjamin Stephens and Robert Marshall were parties, or at least the said Stephens was the seller therein; her husband died in 1820, and that sometime before his death he went out with Stephen Sicard to attest the fact of his, the said Powell's, having subscribed the said deed as a witness to the execution thereof before a magistrate or alderman.

Joseph Spencer, in his deposition stated that he has some recollection of having witnessed an instrument of writing, supposed by him to be a conveyance of land (but it was not known to him to whom granted thereby) at the house of John Phillips, which he did some twenty years before the date of his deposition (1822), and his meeting again one or more of the family, he believes Dr Joseph Phillips, in the City of Philadelphia, at the office of Hilary Baker, to authenticate the handwriting to the instrument as a witness to both, but he has no certain date in his memory.

Page 31 U. S. 128

And also the deposition of George Heyl of the City of Philadelphia, notary public, who swears, that on 17 January, 1803, at the request of Stephen Sicard, he made correct copies of the deeds from Phillips to Stephens and Stephens to Marshall and from Marshall to Sicard, that the copies made by him were from the original deeds, and that he had certified the copies under his seal of office. Sicard told him at the time he was going to send the originals to Kentucky to be recorded, and assigned this as the motive to have the copies made. The deeds had every appearance of originals. That he had a knowledge of the signature of Hilary Baker, the mayor of the city, before whom they were proved, and of the seal of the city, and believed them genuine; that in the spring of the year 1818, the said Stephen Sicard again called on him and took his deposition before alderman Douglass at his (the alderman's) office in this city, to the above fact, to which deposition were annexed the said three notarial certified copies, and a mandate from the Seventh Circuit Court of the United States for the Kentucky District to the said Douglass to take the same -- all of which this deponent understood were transmitted to the said court; and that the annexed two copies of deeds so certified by the clerk of said court, to the best of his knowledge and belief, are copies of his said notarial copies of his said originals.

The deposition of George Rozell, to prove the death of Joseph Phillips in 1798, and who were his heirs at law, and also the decease of Stephens, in the same or the following year, was exhibited.

The defendants gave in evidence patents from the Commonwealth of Kentucky of junior date to that read by the plaintiff, proved the boundaries of those junior grants and that they included the defendants, and gave evidence that they had settled under faith of those junior patents, and held adversely to the patent offered in evidence by the plaintiff. On motion of the defendants, the court rejected the copies of the deeds aforesaid from Phillips to Stephens and from Stephens to Marshall and from Marshall to Sicard because there was no proof of the execution of the deeds from Phillips to Stephens or from Stephens to Marshall, so as to let in copies of the original deeds.

Page 31 U. S. 129

The defendants then proved that in the year 1794 they had adverse possession of the land in controversy, and had continued ever since to hold it adversely accordingly. Whereupon the defendants moved the court to instruct the jury, as follows:

1. That the plaintiff has given no evidence to support the first count, upon the demise of Sicard, and none to support the demise from any of the other lessors except from such as are heirs of Joseph Phillips, the patentee.

2. That if the jury find from the evidence that the patents of Joseph Phillips and William Loving do interfere and lap, as represented on the connected plat, and that the defendants and those under whom they hold did enter, claiming under said Loving's survey, and took the first possession within the said interference, the said patent of Joseph Phillips being (at the date of such entry and possession taken under Loving's patent) unoccupied by any person holding or claiming under said Phillips' patent, then and in that case the possession of the defendants so taken was not limited to their actual enclosure, but was coextensive with the boundaries by which they claimed.

3. That if the jury find from the evidence that the possession of the lands in controversy was taken in the lifetime of Joseph Phillips, the ancestor, of the lessor of the plaintiff, and adversely to said Phillips, and that the defendants and those under whom they hold have continued to hold adversely to said Phillips, the ancestor and his heirs, ever since and for more than twenty years before 17 January, 1822, when the second count in the declaration was filed, and shall moreover find that said ancestor Joseph Phillips died more than ten years before the said 17 January, 1822, when the second count was filed, then the said lessors, the heirs of Joseph Phillips, are barred by the statute of limitations.

The circuit court gave these instructions to the jury on the prayer of the defendants.

Page 31 U. S. 130

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