Lead Opinion
delivered the opinion of the Court.
This is а writ of error to the circuit court of the district of Columbia. The original action was an ejectment, brought in May 1818, by the plaintiff in error, against the defendant in
The first bill of exceptions states, that at the trial a title to the premises in controversy was deduced from the state of Maryland,-by-mesne conveyances to James. Greenleaf, the lessor of .the plaintiff, in Sеptember 1794. Whereupon the defendant, to show a title out of the plaintiff, gave in evidence to'the jury a deed from Greenleaf to Robert Morris and John Nicholson,-dated the 13th,of May 1796, the due execution of which was admitted, and offered no other evidence. Whereupon the .plaintiff’s pounsel prayed the court to instruct the jury, that the said deed, unaccompanied by any other evidence^ did not show such an outstanding title as was sufficient to bar the plaintiff’s recovery in the suit; which instruction the court refused to give; to which refusal the plaintiff’s counsel • excepted. And the question before this court is, .whether this exception is well founded.
The deed of Greenleaf .to Morris and Nicholson purports , to grant to them in fee ás tenants in common, “ except as is-hereinafter excepted, all those hereinafter mentioned and. described lots, squares,'lands and.tenements situate in the city of Washington, in the District of Columbia, wherein the said JamesGreenleaf, and the said Robert Morris and John Nicholson were jointly interested; in each one equal undivided third part, on the day of the date of the above named' articles of agreement” (the 10th of July 1796), &c. &c.- It then proceeds to specify three squares and lots contracted for by Greenleaf; with: the commissioners of the city of Washington; and1 three thousand lots contracted for by Greenleaf, as agent of Morris, with the same commissioners;-and about two hundred and twenty lots, contracted for by Greenleaf with Daniel Carroll; and about-four hundred and twenty-eight and a half Ipts contracted for by Gredhleaf with Notley Young: and then .proceeds, .“and also all those lots situate’in the said city of Washington, supposed to be about two hundred and thirty-nine and one.
It is observable that the granting part of the deed begins by excepting from its operatiоn- all- the lots, squares, lands and tenements which are' within the exceptions. The words are, “ doth grant, &c. except as is hereinafter excepted, all those hereinafter mentioned and described lots, ..squares, lands and tenements,” &c. In 'order,,therefore, tq ascertain what is granted, we must first ascertain what .is included ni the exception; for whatever' is within thfe exceptiоn, is excluded from the grant; according-to the maxim laid down in Co. Litt. 47 a, si quis rem dat et partem retinet, ilia pars quam retinet semper cum eo est, et semper fuit.
.It has been argued that the second clause in the exception is utterly void for uncertainty,.because it excepts “ such squares, lots,"&c.-as were either conveyed or sold,.or agreed tq be conveyed,” without, stating to whom sold or conveyed, or. agreed to be conveyed, or giving any other description which would reduce them tq certainty. Audit has been intimated that it is also void for repugnancy, because it is an exception of a part which- had been previously granted; and Co. Litt.
As to the other exception, we d.o. not think it is void for uncertainty. It refers to things by which it may be made certain; and id eertum esf, .qu.od certum reddi potest. No one will-doubt that the exception of' squares and lots actually sold and conveyed, would be sufficiently certain; for they may be made certain by referenсe to the deeds of conveyance. And as all contracts for the sale and conveyance of lands must.be in.writing, there seems' the same certainty in reference to the lots contracted to be conveyed by -the parties or their agents.
It has been suggested, that the generality of the exception might open a-door to frauds and impositions upon.third persons, by enabling the parties to bring forward spurious-or concealed contracts at a future time. But to this objection it is a sufficient answer, that the present ij not a case of a bona fide -purchaser or grantee, whose title, maybe affected by any.such fraud or concealment. The defendant, Birth, is a mera stranger to the title, and for . aught that appears, is a mere inti Oder. It does not lie in his modth to contend that an exception; solemnly Stipulated, for by the. parties, shall not be binding between them. ' They were' content' to' take thq conveyance upon these terms. There was certainly enough in the exception to satisfy them; and it Would be a- fraud in the grantees to -attempt to avail themselves of the general and lóose ■ expressions of the exception, to avoid the titles of parties claiming title under Greenleaf by prior .deeds or contracts of lots within the reservation. Even if the' exception wefe void at law, a court of equity would relievé them- against-the claims of fylorfis and Nicholsoh; set up to their prejudice. It is not improbable that many such titles jn this city are now held under the faith of this exception; and a- declaration, at the instance of a rqere
But if it were otherwise; still the other exception of the square number 506, and the other two squares next south 'of it, are sufficiently certain. This court cannot judicially know that one of the squares next south of square number 506 is not squаre number 75; and there is nothing in the record that negatives it, for the defendant offered no evidence except the naked deed.
But it is said that if the exception is not void, still the burthen of proof is upon the plaintiff to establish thát the lot in controversy is within the exception; because it is peculiarly within the privity and knowledge of the plaintiff’s lessor what lots were conveyed and sold, and contracted to be conveyed, and the defendant has no means of knowledge.. That in many cases the burthen of proof is on the party within whose peculiar knowledge and means of information the fact lies, is admitted. But the rule is far from being universal, and has many qualifications upon its application. In the present case the plaintiff has shown, prima facie, a good title to recover. The defendant sets up no title in himself, but seeks to maintain his possession as a, mere intruder, by setting up a title in third persons, with whom he has no privity. In such a case it is incumbent upon the.party setting up the defence, to establish the existence of such an outstanding title beyond controversy. It is not -sufficient for him to show that there may possibly be suсh a title. If he leaves it in doubt, that is enough for the plaintiff. He has a right- to stand upon his prima facie good title, and pe is not bound to furnish any evidence to assist the defence... It is not incumbent on him, negatively, to establish the non-existence of such an outstanding title; it is the duty of the defendant to make its existence certain.
Besides, .this is the case'of an outstanding t'fle set up under a deеd executed in 1796, under which, in respect to the act in controversy, the grantees are apt shown either to have had, or to have claimed any possession or right of possession. The present ejectment was brought in 1818, twenty-two years after the execution of that deed; and the trial had in 1829, more than thirtjr-three years afteF its execution. Under such cir
The second bill of exceptions, after stating that the defendant admitted that the legal title to the lot in question, under the patent from the state of Maryland, was vested in the plaintiff by the patеnt, and by divers mesne conveyances- on the 30th day of August 1799, proceeds to state, that, thereupon, to prove a title out of James Greenleaf, the defendant offered in evidence to the jury, the proceedings in the»case of James Greenleaf, an insolvent before the chancellor of Maryland, and the .act of Maryland of 1798, ch. 64; to the admission of which proceedings the plaintiff objected; but the court overruled the objection and admitted the evidence; and thereupon, on the prayer of the defendant, the court instructed the jury, that the said act of 17-98, and the proceedings of insolvency, did show a legal title out of the plaintiff, and did preclude a recovery in- this suit on the first count in the plaintiff’s declaration; that is to say, upon the demise of Greenleaf.
The plaintiff’s counsel thereupon gave in evidence the proceedings in the case of the insolvency of Greenleaf, in the commonwealth of Pennsylvania, and the conveyances therein mentioned, not recorded in the state of Maryland; and prayed the court to instruct the jury, the'-under the operation of the said proceedings in Maryland and Pennsylvania, the legal title to the premises in the declaration,- notwithstanding said conveyances, was not divested from Greenleaf, by any thing by the defendant so shown; which instruction the' court refused to give: to which refusal, and instruction, and admission of evidente the plaintiff excepted.
By the laws of Maryland, (with certain exceptions not necessary to be mentioned) no conveyance is sufficient to pass any estate of1 inheritance or freehold in lands, or any estate
For the same reasons, there was error in the refusal of the circuit court to instruct the jury according to the prayer of the plaintiff’s counsel; that under the operation of the said proceedings in Pennsylvаnia and in Maryland, the legal title to the premises was not divested from Greenleaf by any thing shown by the defendant.
The judgment of the circuit court is therefore reversed, and the cause is to be remanded to the circuit court, with directions to' award a venire facias de novo.
Dissenting Opinion
dissented from so much of the foregoing opinion as requires the defendant to show that the lot in thе declaration mentioned,, is not within that part of the exr ception contained in the deed from Greenleaf to Morris and Nicholson, which excepts therefrom “ all such squares, lots, lands or tenements as were either conveyed, or sold, or agreed to be conveyed, either by all or either of them, the said James Greenleaf, Robert Morris and John Nicholson, or any of their agents or attorneys, to any person or persons whatever, at any time prior to the said 10th day of July 1795:” because he understood it to impose on the defendant the necessity of proving a negative; and because the fact on which the exception depends, is within the knowledge of the plaintiff and not of the defendant.
This cause came on to be heard on the transcript of the re