Barr v. Gratz's Heirs

delivered the opinion of the Feb. 191%, Court. In this case, it is unnecessary to travel *220 through all the exceptions taken by the defendant in the Court below, because; upon the fact? stated in the bill of exceptions, some of the opinions required of the Court upon points of law, do not arise from the evidence ; and as to others, the opinion of the Court, if in any respect erroneous, was so in favour of the defendant.

The first error assigned is, that the Court refused to grant a new trial; but it has been already decided, and is too plain for argument, that such a refusal affords no ground for a writ of error.

Another error alleged is, that the Court allowed the decree of the-Circuit . Court, in the Chancery suit between Michael Gratz and John Craig and ethers, to be given in evidence to the jury. In our •opinion this record was clearly admissible. It is true that, in general, judgments and decrees are evidence, only in suits between parties and privies. But the doctrine, is wholly inapplicable to a case like the present, where the Recree is not introduced as per se -binding upon any rights of the. other party, but as an introductory fact to a link in the/chain of the plaintiff’s title, and constituting a,part of the. muniments of his estate; without establishing the existence of the decree, it would be impossible to establish the legal, validity of the deed from Robert Johnson, to the lessors of the plaintiffs, which was made under the authority of that decree ; arid under such, circumstances to reject the proof of the decree* would be, in effect, to declare that no title derived under a decree in Chancery, was of any validity éxeept in a suit between parties and privies,-so that in- *221 a suit by or against a stranger, it would be á mere nullity. It might with as much propriety.be argued, that the plaintiff was not at liberty to prove any other title deeds in this suit, because they were res inter alios acta.

Another error alleged is, the admission in evidence of the deed of John Craig to Michael Gratz, dated the 16th of July, 1784, without the regular proof of its execution by the subscribing witnesses. But as that deed was more than thirty years old, and was proved to have been in the possession of the lessors of the plaintiff, and actually asserted by them as the ground of their title in the Chancery suit, it was, in the .language of the books, sufficiently accounted for j and on this account, as well as because it was a part of the evidence in support of the decree, it was admissible, without the regular proof of its execution.

Another error alleged is, that the deed from Robert Johnson to the plaintiffs, under the decree in Chancery, was not admissible in evidence without proof that. Robert Johnson was the surviving trustee, and that Elijah Craig was dead. But upon examining the bill of exceptions of tfie defendant, no point of this sort arises ; for it is there stated that the plaintiff gave in evidence “ the deed from Robert Johnson the surviving trustee to the lessors of the plaintiffand no objection appears to have been made to its admissibility on this account. -

Having disposed of these minor objections, we may advance to the only points of any real importance in the causé, but which, in <our opinion, are of no intrinsic difficulty. - Upon the issuing of the pa *222 tent to John Craig, in November, 1784, the posses*" sion then being vacarit, he became, by operation of law, vested. with a constructive actual seisin, of the whole tract of land included in his patent. His whole title (such as it ivas) passed by his prior conveyance in July, 1784, to Michael Gratz, the ancescestor of the lessor of the plaintiff, and the moment it became complete at law by the issuing of the patent,' the actual constructive seisin of Craig was transferred to Gratz, in virtue of that conveyance. a Whén subsequently, in Virtue of the agreement made in June, 1786, between Michael Gratz, and the defendant, for the purchase of 750 acres of the tract of 1,000 acres, the defendant entered into possession of the whole tract, under this equitable title, his pos-' session being consistent with the title of Gratz, and in. common with him, was the possession of Gratz himself, and enured to the benefit of both, according to the nature of their, titles. When subsequently, in April, 1787, by the direction of Gratz, Craig conveyed to the defendant a large'portion of the' land in fulfilment of the agreement between Gratz and Barr, and the same was severed by the metes and bounds in the deed from the ,tract of 1,000 acres, the defendant became sole seized in his own right of the portion so conveyed." But as he still remained in the actual possession of the residue of the tract within the bounds of the patent, and this possession was originally taken under Gratz, the character of his tenure was not changed by his own act, and there *223 fore he was quasi tenantto Gratz; and as such, continued the actual seisin of the latter over the whole of this residue, at least up to the period of the deed from Coburn to the defendant in 1796. This brings us to the consideration of the period when the evidence first establishes any entry pr possession in John Co-burn. It appears by the evidence, that in the winter and spring of 1791, Coburn entered into, and fenced, a field within the boundary of Craig’s patent, claiming to hold the same under the title of Netherland, as part of the land included in his survey of a tract of 400 acres. If Coburn at this time had been the legal owner of Netherland’s survey, his actual occupation of a part, would not have given him a constructive actual seisin of the residue of the tract included in that survey, if at the time of his entry and occupation that residue was in the adverse seisin of another person having an older and better title. .For where two. persons are in possession of land at the same time,, under different titles, the law adjudges him to have the seisin of the estate who has the better title. Both cannot be seised, and, therefore, the seisin follows the title. Now it is clear that the title of Craig, and, of course, of his grantee Gratz, was older and better than 'Netherland’s; and the possession of Barr under that title, being the possession of Gratz, the legal seisin of the land which was not sold to Barr, was by construction of law in Gratz; and the disseisin of Coburn under a junior title, did not extend beyond the limits of his actual occupancy. This reasoning proceeds upon the supposition that Coburn had a good title to Netherland’s survey. *224 Bat, in fact, no such title was shown in evidence, there being no proof that Ann Shield, from whom Coburn derived his title, was the legal owner of the title of Netherland. So that the entry of Coburn must be considered as an entry without title, and, consequently, his disseisin was limited to the bounds of his actual occupancy. This view of. the case disposes, of the objection to the deed from Craig and wife to Robert Johnson and Elijah Craig, in 1791, upon the ground that it was within the statutes of champerty and maintenance, the land being at the time in the adverse possession of Coburn; for as to all the lánd not in his actual occupancy (and to this alone the charge of the Court applied) the deed was not, at all events, operative; the grantors, and persons holding-under them, having at all times had the legal seisin. a

Another objection taken is, that the deed from Robert Johnson to the lessors ,of the plaintiff, under the decree in Chancery, wa^ not approved' by the Court, nor recorded in the Court iti conformity with the statute of Kentucky of the Í8th of February, 1818, ch. 453. In our judgment no such approval was necessary; and upon examination of the statute in question, it is clear that it is not imperative in the present case.

Upon the’whole, without going more minutely into the case, we are all of opinion that the judgment of the Court below ought to be affirmed. No error has been committed which is injurioüs to the defend *225 ant. He has had the full benefit of the law, so far as the facts of his case would warrant the Court in applying it in his favour.

Judgment affirmed.