Barger v. Miller

2 F. Cas. 781 | U.S. Cir. Ct. | 1822

WASHINGTON, Circuit Justice,

charged the jury. The first, and most important question for your decision is, whether the plaintiff has made out such a title to the land now in controversy as will authorise you to give a verdict in his favour? If he has not, your verdict ought to be for the defendant, however imperfect his title may be. The first question is one purely of law; and the opinion of the court is, that the title of the plaintiff is altogether defective. We go back to the year 1732, at which time the title of J. H. Sprogel to the large tract of land, of which that in question was a part, was unexceptionable. But in that year he mortgaged 7500 acres of that tract, including the land in controversy, to Henry Soames, for securing the payment of £75. The money not having been paid at the time stipulated, Sprogle, in the succeeding year, in consideration of the debt aforesaid, and of an additional advance, released to Soames his equity of redemption in the mortgaged premises, whereby Soames became entitled to the estate therein, both legal and equitable. The next inquiry is,. whether, by any subsequent act of Soames, or of any person claiming under him, the estate became revested in the Spro-gle family. It is insisted by the plaintiff’s counsel that the deed executed by Samuel Mickel produced this effect. With respect to that deed, it is to be premised, that it makes its appearance before the court in a very questionable shape, if indeed, it be entitled to all the importance which is attached to it by the plaintiff’s counsel. It is not even dated; and so little attention seems to have been bestowed upon it, that the common and necessary form observed in the execution of deeds by an attorney, was disregarded. In the body of it, it is true, Mickel styles himself the attorney in fact of Henry Soames, but it is signed and sealed in his individual name, not as attorney of his constituent, nor with his name. This might answer very well to a paper which imported no more than a mere settlement of accounts, and an acquittance; but it cannot, upon any principle of law, be said to be the deed of Henry Soames. Where would we expect to find a deed of the importance attributed to this paper by the counsel, and where was it found? One would suppose amongst the title papers belonging to this estate, in the possession of the Sprogle family; since, without the evidence of a re-conveyance, the title was forever gone, and vested in Soames by the deeds of 1732 and 1733. But instead of this, it was scraped out of,the cast away papers in the garret of a Mr. Say, by one of his descendants, in the course of a few months past. It professes to be an acquittance of all bonds, mortgages, and conveyances, touching the premises in Hanover and elsewhere, and the cancelling of all papers and parchments. What became then of the deeds of 1732 and 1733? The plaintiff’s counsel answer, that they furnished them on the trial to the defendant’s counsel. This is true; but were they found amongst the title papers of the Sprogle family? No evidence of this kind was offered. But how happens it, that they were recorded in the year 1794, nine years after the time when Mickel’s deed declared they were can-celled, if it be true that they were at all referred to, or in the contemplation of the parties when that deed was executed? They must have been offered for record, either b¿ J. H. Sprogle, or Henry Soames. If by the former, it was surely an extraordinary mode of cancelling and destroying them, to perpetuate by record proof of the evidence of their being subsisting and valid deeds. If they were recorded at the instance of Soames, it proves that they still remained in his possession, the evidences of his title to the 7500 acres of land, which he deemed it prudent to perpetuate; and if so, they could not be conveyances to which Mickel’s deed referred. But be it one way or the other, they never were cancelled, and Mickel’s deed states that the papers and parchments to which it applied were so. But suppose the deed under consideration clear of all these difficulties;— what is its purport, and legal effect? It professes to amount to no more than an acknowledgment that all accounts between Sprogle and Soames had been finally settled, and an acquittance to Sprogle from all debts by bond or mortgage. It has not one feature of a grant of any land, much less of that, the equity of redemption in which had been released to Soames. It cannot be considered even as an agreement to reconvey the 7500 acres of land; and even if it could, it would not benefit the plaintiff in this action, who is bound to establish in himself a legal title to the land in controversy. If it were necessary to go further, it might be very safely laid down, that even if the deed in question were in fact a reconveyance of the 7500 acres of land, it was not warranted by the power of attorney to Mickel. That power referred to accounts and debts then open and subsisting; whereas the debt which was secured by the mortgage deed of 1732 had been finally closed and discharged seven years before the power was given, by the deed of 1733. It authorised Mickel to sell the lands of his constituent; but the deed under consideration does not even profess to be the evidence of a sale of any kind.

The title of the plaintiff being thus obviously defective, I should not deem it necessary to notice that of the defendant, founded upon length of possession, If the plaintiff’s counsel did not seem to have misunderstood the decision of this court in the case of Potts v. Gilbert, [Case No. 11,347,] which was altogether different from the present. In that, the persons, of whose possessions the defendant sought to avail himself, were mere intruders, or squatters, as they are called, upon a vacant possession, without title or col-our of title, between whom and the defendant there was no privity. The court laid it down, that the title of the plaintiff drew to it a constructive possession sufficient to bar the running of the act of limitations against him. That when that possession was disturbed by the actual possession of A, a continuance of such possession for twenty-one years would have divested the right of the owner to the particular part so possessed, and vested a right in A. But that if, after possessing the land for a number of years, short of those mentioned in the statute, A left the land and B took possession, the constructive possession of the owner revived, and B could not tack to his possession that of A the prior occupant, so as to make out a twenty-one years possession against the real owner of the land. These were the principles of that decision. In this case, Preston entered under a claim and colour of title derived under Soames, although the title papers recited in his deed to Guiger have not been produced; and in 1794 he conveyed the land, of which the tract in question is a part, to Guiger, from whom the title is regularly deduced to the defendant. No two cases therefore can be more unlike than Potts v. Gilbert, [supra,] and the present. Upon the whole, the defendant is clearly entitled to your verdict.

The plaintiff suffered a non-suit.