Wilkes v. Elliot

29 F. Cas. 1244 | U.S. Circuit Court for the District of District of Columbia | 1839

But the Court

(Thruston, J.,

absent,) refused to give the instruction, no adverse title or possession having been shown.

The defendant then offered evidence of a conversation, in which Mr. Joseph B. Ladd, the lessor of the plaintiff, said he had not authorized his name to be used ; but he did not know but that the Bank of the United States, to whom he had made a deed, would be authorized to use his name; and said further, that he then, (at the time of the conversation,) had no claim upon or interest in, the premises.

Whereupon Mr. R. J. Brent, counsel for the defendant, prayed the Court to instruct the jury, that the plaintiff cannot recover upon the demise of the said Joseph B. Ladd, if the title is shown to be out of him at the time of the demise.

But the Court refused to give that instruction, being of opinion that the said oral declarations of the lessor of the plaintiff, were not competent evidence to show the title to be out of him ; and if it were competent for the defendant to show the title to be out of the lessor of the plaintiff by parol declarations, those made by the plaintiff’s lessor, as stated, were too vague to have that effect.

The defendant, having given evidence tending to prove twenty years’ adverse possession by himself and his father, under whom he claims;

Mr. Bradley, for the plaintiff, prayed the Court to instruct thef jury, that unless they should find from the evidence that Mr. Elliot, the defendant’s father, originally entered into the possession of the said lot, claiming to hold the same under color and claim of title, either in his own right, or under the said Charles Glover, (who had purchased the lot at a tax-sale, and contracted to sell it to the said W. Elliot,) and exclusive of any other right; or, that being in possession thereof, without the assent of John G. Ladd, the ancestor of the lessor of the plaintiff, he the said W. Elliot in his lifetime, more than twenty years before the 9th of April, 1839, (the day on which the count upon the new demise under Joseph G. Ladd was filed,) set up a color and claim of title either in himself, or under the said Charles Glover, and exclusive of any other right, and that the said possession continued in himself and the defendant ever after; unless the jury shall find the said facts, the possession of the said W. Elliot in his lifetime, and the possession of the defendant, are to be deemed and taken to be consistent with, and in subordination to the title of the lessor of the plaintiff, and do not constitute a defence to the present action.

Which instruction the Court gave ; and also, at the prayer of Mr. Coxe, the defendant’s counsel, instructed the jury that they might infer from the circumstances so in evidence before them, that the title claimed by Charles Glover and, after October, 1818, by W. Elliot and the defendant, was adverse to the title of the said Ladd, in its inception, and during its continuance, and exclusive of the title of any other party.

Mr. Coxe, for the defendant, then prayed the Court to instruct the jury, in effect, that if the defendant and his father, under whom he claims title, have held possession of the lot adversely to the title of the lessor of the plaintiff, more than twenty years before the 9th of April, 1S39, when the new count was filed upon the demise of Joseph G. Ladd, the plaintiff is not entitled to recover upon that count.

Which instruction the Court gave; Morsell, J., doubting, and Thruston, J., absent.

The defendant, having given evidence that the lot was assessed in his name, that he paid the taxes on the lot for the years 1820 and 1821, but that the taxes being in arrear and unpaid for the years 1822 and 1823, it was sold for those taxes, and purchased by his agent, John Lessford, who .received a deed from the Mayor of Washington, and then made a deed of the lot to the said W. Elliot,

Mr. Coxe, for the defendant, prayed the Court to instruct the jury that if they should believe that evidence in relation to the sale for taxes, the plaintiff was not entitled to recover.

But the Court refused to give the instruction.

Mr. Coxe, for the defendant, then prayed the Court, in effect, to instruct the jury,,that if W. Elliot was in possession of the lot, claiming to hold the same in his own right, and adversely to any other person ; and, with a view to fortify and secure his possession and title, he omitted to pay the taxes for 1822 and 1823; and that the premises were accordingly sold in 1825 for the said taxes, after due notice and advertisement, and purchased at such tax-sale for his benefit, such purchase was lawful, and the defendant, claiming under the said W. Elliot, is fully protected thereby; and the plaintiff is riot entitled to recover.

Which instruction the Court refused to give.

Mr. Jones, for the plaintiff, then prayed the Court to instruct the jury, that if, when the taxes were assessed and in arrear as aforesaid, and when the lot was advertised and sold for taxes, as aforesaid, the said W. Elliot held the bare possession of the said lot, without evidence of any bona fide title in fee, at law or in equity, to the same, and that such possession was either adverse or tortious, as to the legal title and estate of the said John G. Ladd, or his devisee, the lessor of the plaintiff; or was subordinate to such title and estate, and that the said Elliot, after having paid the said taxes so assessed for the years 1821 and 1822, purposely and designedly suffered the said taxes to fall in arrear as aforesaid, to the end of having the said lot so sold for such taxes, and of procuring the same to be bought in for him, with the intent, purpose, and design of clothing such his adverse and tortious, or subordinate possession with the legal estate, and of defeating and divesting the legal title and estate of the said John G. Ladd, or of his said devisee, then such sale for taxes, and such conveyances in execution of such sale were inoperative so as to clothe such bare possession of the said Elliot with the legal estate, and thereby to divest and defeat the legal title and estate of the said J. G. Ladd, or his said devisee.

Which instruction the Couht gave.

- The CouRT decided, that if the plaintiff examines the account-book called for by him, in the possession of the defendant, he makes the book evidence for the defendant.

Mr. Coxe, for the defendant, further prayed the Court to instruct the jury, in effect, that if the said Glover purchased the lot at a tax-sale in 1812, and W. Elliot entered into and inclosed the same in 1815, or in the spring of 1816, claiming the same under a contract, verbal or written, with the said Glover; and the said W. Elliot, and the defendant claiming by conveyance from him, has ever since held the same under inelosure, claiming it as his own, then the plaintiff is not entitled to recover.

Verdict and judgment for the defendant.