32 Ky. 38 | Ky. Ct. App. | 1834
delivered the Opinion of the Court.
This-action of ejectment was brought, in 1819, on dem*ses *n t'le names of John Fry, Joshua Fry, Charles Vancoover, John Vaughan, Charles Vaughan and John Fiott. The land in contest ‘was patented the 15th of December, 1772, by the then governor of Virginia, to ■John Fry, in consideration of military services rendered under the governor’s proclamation of 1754 ; conveyed by Joshua Fry, his heir at law, to Vancoover, in 1792, hnd by him, to the Vaughans and Fiott, in 1793.
The land was settled on by Vancoover, in 1788, and the possession held by him, and those claiming under him, for a few years thereafter. Vancoover and Fiott were both natives of Great Britain, never naturalized in this couutry, and died in England prior to 1818. The patent to Fry stipulates for the payment, by him, of one shilling yearly for every fifty acres after the expiration of fifteen years, by way of rent, and also for the cultivation and improving of three acres, part of every
The conveyance to the Vaughans and Fiott, recites the payment of the whole of the consideration money by the latter, and stipulates that they shall hold in trust for him.
There was no proof1 that the conditions stipulated by the patent for improvement &c. had been complied with.
The defendants .claimed under a Kentucky patent of 1818, issued upon a survey and land office warrant.
Subsequent to the dereliction of the possession by those holding under Vancoover, there had been a possession of sixteen or seventeen years by persons neither having,or claiming title, and no way connected with the title of either of the parties to this controversy.
Upon an agreed case, which presented the foregoing facts, the circuit court rendered judgment in favor of the defendants, and .the plaintiffs appealed.
All objection to the title of the plaintiffs, on the score of non-improvement and non-payment of the quit rent, reserved by the patent, is answered by the ninth section of the Virginia act of 1777, 1 Litt. Laws, 391, abolishing quit rents, and the nineteenth section of the act of 1796, which abolishes all reservations and" conditions in the grants from the crown of Great Britain, and which declares no petition for lapsed land shajl be received for or on account of any failure or forfeiture made or incurred after the 29th of September, 1775.
As Fiott was dead at the institution of the suit, the recovery, if for any thing, must be restricted to the two thirds, which, by the deed from Vancoover, passed to the Vaughans, in trust for Fiott — the title to the other, third having passed, under the deed, to Fiott himself, > ■
This construction supersedes the necessity of going into the question of an alien’s right to maintain an action for the recovery of real estate. The trust here is such an one as a court of law cannot notice. In legal intendment, the Vaughans are the proprietors, as well as the legal title holders, of two thirds of the land.
The heirs of Fiott being aliens, as is admitted in the agreed case, the title to the third which he derived under the deed, did not descend to them, but vested in the commonwealth, without office found. This third, it is contended, passed by the patent of ISIS, to the defendants; that they thereby became tenants in common with the Vaughans, and there should have been, therefore, proof of an actual ouster. It is a sufficient answer to this position, that the defendants, on entering their appearance, not only confessed the ouster, but the agreed case admits they held the land adversely to the plaintiffs.
The result is that, the plaintiffs were entitled to a judgment for two thirds of the land in contest, and the judgment in bar of their action must be reversed.
But as, according to settled practice, when a judgment is reversed, we are bound to go back to the first error committed to the prejudice of either party, our attention has been called to an alleged error in the com
The judgment must be reversed, on the agreed case, and the cause remanded, with directions to dismiss the suit, for the irregularity referred to.