Bledsoe v. Doe ex dem. Little

| Miss. | Dec 15, 1839

Mr. Chief Justice Sharkev

delivered the opinion of the court.

The defendant in error brought ejectment against the plaintiff in error for a lot of ground in that part of Natchez called “Under the Hill,” and obtained a verdict. A motion was made for a new trial, which being refused, exceptions were taken. The plaintiff 'below in support of his title relied on a patent to the legal representatives of Henry Willis for fractional section number seventy-seven, in township seven, of range three, west of the basis meridian line; a deed from McComas and wife to Pease, and one from Pease and wife to the plaintiff, for the same land mentioned in the patent. .A surveyor was sworn who proved that the lot in controversy was within the land granted by the patent'; and a witness was also sworn who proved that Mrs. McComas was the only child of Willis.

To the introduction of the patent and deeds, the defendant’s counsel objected, and also to the testimony of the surveyor. ■

The objection to the patent is, that it was procured in fraud of law, because the special acts of Congress under which it emanated, did not authorise Willis’s heirs to locate on any lands which had not been offered for sale, or on town lots; and it was insisted on that the -Court is bound to know that the land granted was never offered for sale.

This objection is untenable; We know judicially that there,is a general law requiring the president to issue his proclamation requiring the registers and receivers of the public land offices to offer the lands for sale, and that they are not subject to private entry until after they have been so offered; but we cannot know negatively that the land in question never was so offered. The law is directory, and the proclamation and sale are mere official acts. The doctrine is now too well settled to be doubted, that a patent for land is evidence in a court of law that every thing has been done which the law required to justify the issuing of it. It pre-supposes that all legal steps have been taken to consummate the title. The act of Congress of the 8th of May, 1820, authorized the representatives of Henry Willis to enter without payment, in any of the land offices of Mississippi or Alabama, thirteen hundred arpens of land, the entries to be made agreeable to the surveys made by the United States surveyor. The act of the 29th December, 1820, prohibited them from entering any town lots or lands reserved by the United States, but we cannot know whether the entry was made prior or subsequent to. the last act, even if it would be proper to institute such an inquiry. The patent merely recites that they had deposited their certificate of entry in the general land office, but when the entry was made does not appear. The patent is based upon this certificate, and we cannot now question the propriety of the entry, especially in the absence of testimony shewing how and when it was made. It is not denied that the government had a right to the land, and the patent is evidence that the right has been legally transferred to the patentees. We do not understand either that the entry was made according to a survey made in pursuance of the above mentioned acts, but according to the surveys previously made by the government. The acts did not authorize new surveys to be made. The patent passed the legal title to the heirs of Willis j does the plaintiff derive title from the heirs ?

It was proven positively by Chotard, that Mrs. McComas was the only child of Willis; she, therefore, had a right to convey. That she and her mother had considered themselves jointly interested, and had made arrangements to divide the land, cannot affect the right of the vendee of Mrs. McComas. The chain of title from Mrs. McComas to Pease, and from Pease to Little, is complete.

But it is said, that the deed from McComas and wife, is not sufficiently certain in description. The land is described as fractional section seventy-seven, in township No. 7, in range No. 3, west, following the description in the patent, and the same description is given in the deed from Pease to Little. It is sufficient description of land to give the number of the section, township and range according to the public surveys, and perhaps it is the very best description that could be given, because those surveys are pub-lie records, and. afford certain means of fixing the identity of land.

It is also said, that it does not appear that the lot in question is within the section conveyed to the lessor of the plaintiff. The testimony of Wailes, the surveyor, is conclusive on this point. He produced a diagram of his survey, and also a copy of the land office map, and stated that his survey embraced fractional section No. 77, mentioned in the patent, and that the lots shaded blue were the lots claimed by defendants. When asked how he knew the boundaries of section seventy-seven, he stated that he was governed by the office copy of the map, and the directions of Little. He does not state which had the greatest influence, and, although he may have derived his information in part from a suspicious source, he undertook tó speak positively. His testimony was not legally incompetent, and the jurors were the judges of his credibility.

That the deeds bear date anterior to the patent, does not vitiate them. The patent is the consummation of title, predicated on the certificate of entry, and relates back to the date of the entry; and even if the deeds were insufficient at the time for want of capacity to convey, they became sufficient afterwards, because the title of a vendor, which is imperfect at the time, but which afterwards becomes perfect, enures to the benefit of the vendee as a necessary consequence. The vendor could hot recover on his subsequently acquired title, he would be estopped by his warranty, and so would all subsequent purchasers under him.

We must, therefore, conclude that the lessor has shown a good title to the lot in dispute, and must recover, unless the defendant has shown enough to defeat him.

The defendant does not rely on a better title, but on adverse possession under color of title, for two purposes; first, because he says, such possession has existed for twenty years next before the commencement of the suit; and second, because such possession existed when Little acquired his title from Pease, and that the deed was therefore void for maintainance.

The statute of limitations constitutes no defence. The suit was commenced within less than twenty years after the Government parted with the title to the land, and it could only begin to run at that time. It did not run. against the United States, because it is a statute of policy, referring to individuals merely, having for its object the repose of society. No .laches are to be-imputed to the government, nor is it to be charged with disturbing the peace of society by suspicious or ill-founded claims. Angel on Limitations, 369, 70, 71. Wilson v. Hudson, 8 Yerger, 398.

It is admitted that if Brustie was in possession adverse under color of title at the time Little acquired his right by the deed from Pease, .that the deed was void for maintaiuance. The law being admitted, we have only to enquire into the proof. For the lessor of the plaintiff it is contended that the locality of Brustie’s lot is not shewn with sufficient certainty, and that the deeds are not sufficient to raise color of title.

The first evidence offered by the defendants was a deed from David and wife to Brustie, bearing date 28th of May, 1812, for a lot in that part of the city of Natchez called “under the hill,” being on the east side of the street leading to the lower landing, bounded on the upper side by a house and lot belonging'to Josiah Packard, and on the lower side by a house and lot belonging to Hosey Fleris, containing twenty-nine feet front. The witnesses Henderson-and Miller stated that Brustie was in possession of a lot under the hill on the east side of the road leading to the landing, in 1820 and previous. The witness Mardis stated that Brustie owned a lot which he bought of David, and was living on it in 1809; and that said lot is about where Bledsoe, the defendant, has erected his building. The witness Gobeau stated that Brustie rented the premises in dispute to Perkins in 1823, and that Brustie had always been in possession either by himself or a tenant, except when burned out, and that since the last fire Bledsoe put up a house on the lot.. Robetaille stated that Brustie purchased a lot of Johnson in 1809, and that he purchased of David in .1812 and ivas living there in 1813 at the time of the first fire, after which he built again. That the lot was on the left hand side of the street near the landing.

This is the substance of. the testimony, and although it is not precise or definite in regard to the boundary of the lot, yet it shews with reasonable certainty that -Brustie was living on the lot which he purchased of David; and that he must have been there about the time Little acquired title. It is a presumption which* may fairly be indulged that the possession held under a deed is compatible with the boundaries given in the deed. Brustie’s possession was neither loose nor equivocal, but an actual occupancy, a possessio pedis, definite, positive, and notorious. Was it held under color of title. In the case of Jackson ex dem. Lathrop v. Demont, cited, the title was said to be colorable, derived from a vendor who had no title, or whose title was not shewn. In Coxe’s lessee v. Peck and others, 3 Yerger 435, a devise of land to the defendants was held to give color of title. In the case of Love v. Love, 2 Yerger 288, the supreme court of Tennessee went a step further and decided that a deed constituted color of title, although the vendee knew when he received it, that the vendor had no right to convey. Although the propriety of this decision may be doubted, taken to its full extent, yet the others go far enough for the case before us. Brustie held under a deed apparently sufficient, and we cannot know but what he received it in confidence and good faith, under a belief that his grantor had a right to convey. It was sufficient color of title.

But it seems that Brustie sold and the defendant claims through him two other lots, in regard to which the defence must fail. His possession of the second lots is by no means so clearly proven. In fact we have no certain evidence that he ever had the actual possession. The witnesses do not state how far his possession extended, nor do they speak of the possession of but one lot. But independent of this objection, he shows no color of title. The deed from Turpin, the sheriff, was properly ruled out because the decree was not produced. And the deed from McGraw & Railten was also properly ruled out, because it was not proven. A deed takes effect by the sealing and delivery, and without proof of these it can have no effect whatever, and of course must be inadmissible as evidence for any purpose. Its genuineness is to be proved. It does not, like a record, import verity on its face. If it were not genuine it could not give even color of title, and the court could only know that by the evidence of the subscribing witness, or by proving his hand writing if he were dead.

The affidavit of newly discovered evidence, in support of the motion for a new trial, is insufficient. The defendant swears that Downing is a witness to the deed from McGraw & Railten, and that he, only discovered during the trial that Downing was still living. He must have known that it would be necessary to prove the execution of the deed, and that Downing was the witness. He should therefore have shewn proper diligence in endeavoring to obtain his testimony. With proper exertions the testimony might have been obtained, and a new trial cannot be granted for newly discovered testimony, which with reasonable diligence might have been had at the first. 2 Caine’s Rep. 163. 18 J. R. 489. Besides; we do not know that Downing would prove the execution of the deed if present. No affidavit of his has been produced. It is a little surprising too, if the defendant thought Downing was dead, as we must infer he did from the affidavit, that he was not prepared to prove his hand writing.

■ Under this view of the prominent points in the case, was the defendant entitled'to a new trial?

The plaintiff brought his suit for five acres of land, and obtained a general verdict. ■ He has shewn title to a part, and therefore had a right to recover; but his title fails as to the twenty-nine feet. He was entitled to a writ of possession, for that part to which he shewed title, but the court might and should have limited the writ to that part only, which must be the order of this court on the authority of Jackson ex dem. Moore v. Van Bergen, 1 Johnson’s Cases, 101; and the new trial must be refused.