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January 1, 1831


ERROR to the circuit court of the United States, for the district of Kentucky.

This was an action of ejectment instituted in February 1821, against a number of persons in possession of a large tract of land, containing fifty-five thousand three hundred and ninety acres, in the state of Kentucky. The suit was afterwards dismissed, by the plaintiffs, as to forty of the defendants.

The declaration contained five counts, each count stating separate demises of the same tract of land. The first was on the demise of James B. Clarke, of the 1st of September 1820, for fifty-five thousand three hundred and ninety acres, granted by Virginia, to Martin Pickett, by patent, bearing date on the 10th December 1785. 'Beginning at a sugar tree and white oak, at the head of a hollow corner, to another survey of the said Pickett, and of younger Pitt's land, thence with a line of said Pickett's survey of forty-four thousand seven hundred and forty acres,' &c. describing the abuttals as set forth in the patent.

The second count was on the demise of John Bryant, Maxwell and wife, Anna Maria Maxwell, and Eliza Bryant Grant, heirs of John Bryant, deceased. The third was on the demise of Abraham Schuyler, and Neelson and wife. The fourth of Theodocia, Thomas, and John B. Grant. The fifth on several demises made by John B. Maxwell, Anna Maria Maxwell, Eliza B. Grant, Theodocia S. Grant, Thomas R. Grant, John B. Grant, Abraham S. Neelson and wife.

The case was tried at November term 1826; when the verdict and judgment were for the defendants.

In the course of the trial the plaintiffs took three bills of exceptions to the opinions of the court on the matters set forth thereon.

The first bill of exceptions sets forth: that on the trial of the cause some of the defendants professing to hold a conveyance from the plaintiff, Clarke, by Carey L. Clarke as attorney in fact of the said plaintiff, offered in evidence, a deed and letter of attorney, the former executed by Carey S. Clarke as the attorney in fact of James B. Clarke and Eleanor Clarke, his wife, on the 23d October 1800, to Robert Payne, and the latter the power of attorney, executed at the city of New York, on the 7th of October 1796. The deed, to Robert Payne, which was duly admitted to record, released to him all James B. Clarke's title to all the land embraced by the surveys of John and Robert Todd, on the North Fork of Eagle and Mill Creek, so far as they interfere with the patent to Martin Pickett, under which Robert Payne claimed; and gave testimony likewise, conducing to prove them. And that, Andrew Moore, the clerk of the Harrison circuit court, who brought the letter of attorney into this court, under process for that purpose, desiring to return, and considering it his duty to retain possession of that instrument, by consent of plaintiff and defendant, departed with it, leaving a copy. And at a subsequent day, Moses L. Miller was introduced as a witness to prove the letter of attorney, who stated that being summoned as a witness he met with the clerk of Harrison aforesaid, in Georgetown, who showed him an instrument, the signature to which he examined, and he believed it to be the hand writing of James B. Clarke, with whose hand writing he was acquainted. And another witness was examined, tending to prove that the instrument, so shown by said Moore to Miller, was the same previously read before this court as aforesaid.

When Andrew More, the clerk of Harrison court, was about to resume possession of the letter of attorney–and to depart, the attorney of the plaintiff declared that he had no objections. No further evidence was offered relative to the power of attorney.

To the admission of the testimony of Miller, the plaintiff objected, especially in the absence of the letter of attorney; but the court overruled the objection, and submitted the testimony to the jury, as tending to prove that instrument; to which the plaintiff excepted.

The second bill of exceptions stated, that the plaintiff proved and read in evidence, a patent from the commonwealth of Virginia, to Martin Pickett, dated 10th of December 1785, for fifty-five thousand three hundred and ninety acres, 'beginning at a sugar tree and white oak, at the head of a hollow corner to said Pickett's and younger Pitt's land, thence with a line of said Pickett's survey of forty-four thousand seven hundred and forty acres, being part of said entry, north 9. east, &c.' being the same abuttals set forth in the declaration of ejectment, and in the power of attorney.

And also a deed from the said Martin Pickett of Virginia, to William and John Bryant for the said land, dated May 1st, 1793; and also a deed from William Bryant to James B. Clarke, dated 18th July 1794, for an undivided moiety of the said land; and also a deed from John Bryant to James B. Clarke, dated October 13th 1794, for the other moiety; he having proved the possession of the defendants, and that James B. Clarke at the date of his deed and ever since, was and had been, a citizen and resident in the state of New York.

The plaintiff relied solely on the demise from James B. Clarke, and gave no evidence on the other demises–and relied solely upon the patent to Pickett for fifty-five thousand three hundred and ninety acres–none of the defendants being within the patent to Pickett for forty-four thousand seven hundred and forty acres.

The defendants offered in evidence the following exhibits: a release of forty-nine thousand nine hundred and fifty-two acres by Carey L. Clarke, as attorney for James B. Clarke and John Bryant, bearing date 25th November 1800–acknowledged same day, before John Payne, the surveyor of Scott county, by him certified–afterwards lodged with the auditor of public accounts:–it recites that James B. Clarke and wife, and John Bryant and wife, had appointed Carey L. Clarke their attorney, to sell, transfer, and convey a certain tract on the waters of Eagle creek, in the county of Scott and state of Kentucky, containing one hundred thousand one hundred and ninety-two acres, entered in the name of Martin Pickett, and which tract of land is now held by the said Clarke and Bryant, as tenants in common: 'Now, therefore, I, the said Carey L. Clarke, attorney as aforesaid, in pursuance of an act of the legislature of the state of Kentucky, authorizing claimants of land within its commonwealth to relinquish, by themselves or their attornies, any part or parts of their claims to the commonwealth; I do hereby relinquish to the commonwealth of Kentucky, all the right, title, interest, property, claim and demand of the said Clarke and Bryant, of, in and to the hereinafter described tracts of land, being part of the above mentioned tract, and lying within the boundaries, viz. _____' here the deed specifies various conflicting surveys, and gives the quantity in the various surveys; also specifies certain other quantities by boundaries expressed, altogether amounting to forty-nine thousand nine hundred and fifty-two acres.

Also a release, bearing date 25th November 1801, executed by the said Carey L. Clarke, as attorney in fact for John Bryant, reciting the act of assembly aforesaid, authorizing the relinquishment of lands to the commonwealth, specifying various conflicting surveys and other specific boundaries of the several parcels, amounting to thirty-four thousand and twenty-seven acres also certified by the surveyor of Scott, and filed in the auditor's office–with a transcript by the auditor, from the books of his office, certifying the entries for taxes, of the fifty-five thousand three hundred and ninety acres,–and the subsequent relinquishment of forty-nine thousand nine hundred and fifty-two acres thereof, and the sale to the state for taxes of three thousand four hundred and thirty-eight acres–also, the entry for taxes of the forty-four thousand five hundred and forty-seven acres; the release to the state of thirty-four thousand and twenty-nine–thereof, and that the residue was the property of John Hawkins of George (Kentucky):–annexed also is the certificate of the auditor, that neither James B. Clarke, nor John Bryant, appear to have paid any taxes since the said relinquishments were made. To prove which he relied upon the power of attorney to Carey L. Clarke, mentioned in a former bill of exceptions, and the original relinquishment from the auditor's office, and proved the execution thereof by John Payne, the surveyor of Scott county, wherein the land relinquished then was situate.

John Payne also stated, that in the year 1794, or thereabouts, _____ Griswold came to his residence in Scott county, claiming the land in Pickett's patent, by contract with Clarke; that the deponent and Robert Parker, the surveyor of Fayette, made out a connected plot showing the interfering claims set forth in this relinquishment, and Griswold, expressing dissatisfaction with the claim and the contract, returned. Afterwards Carey L. Clarke came to Kentucky, avowing himself the agent of Clarke by the letter of attorney, a copy of which is set forth in the bill of exceptions taken in this cause: that Carey L. Clarke in 1796, or thereabouts, called on the witness, and expressed a disposition to relinquish. The witness advised Clarke that he might be able to prevail for some of the land, and had better not make the relinquishment. Afterwards in the year 1800, the relinquishment was prepared by Carey L. Clarke, in his own hand writing, and executed in the surveyor's office, before said Payne, and he the surveyor certified it and took copies: Carey L. Clarke then took the original; and the witness having no record book for the purpose (this being the only relinquishment ever made in his office for taxes), still kept, a copy, with his private papers, and he did not deliver the copy to his successor in office, (and did not suppose Clarke had used it till lately), when he resigned and handed over the records; which took place some years afterwards.

Porter Clay, the present auditor of state, produced the original, stating on examination, that he found it in his office, and that no tax had been paid upon that part of the tract embraced by that instrument subsequent to its date.

The attorney for the plaintiff then made a motion to the court to instruct the jury, that the instrument under the proof did not bind the plaintiff, and could not bar his recovery: but the court overruled the motion, and instructed the jury that the said relinquishment for the forty-nine thousand nine hundred and fifty-two acres, if the execution thereof was satisfactorily proved, was a bar to the recovery of all the land described in said relinquishment:

And, on the motion of the defendants, the court instructed the jury, that if they believed the execution of the power of attorney from James B. Clarke to Carey L. Clarke, and of the relinquishment in evidence, then it was incumbent on the plaintiff to maintain his action, to show that the defendants, or some of them, were at the service of the ejectment, outside of the several parts relinquished to the state: to which several opinions of the court the plaintiff excepted.

The third bill of exceptions stated, that the plaintiff having given in evidence the patent to Pickett, the deed to John and William Bryant, the deeds from John and William Bryant to the plaintiff, James B. Clarke, and proved that the said James B. Clarke was, at the date thereof, and ever since, resident of the state of New York, and that the title papers aforesaid, all embrace the land in controversy, and that the defendants were all in possession at the time of the commencement of this suit; and after the defendants had given the evidence touching the relinquishment as set forth in the bill of exceptions of file in this cause, and the court had given the instructions and opinions therein also contained; the plaintiff gave testimony conducing to prove, that some of the defendants, to wit:–William Hinton, James Hughes, John Vance, John Gillum, Henry Antle, Jeremiah Antle, Peter Sally, Benjamin Sally, Samuel Courtney, &c. were not within the limits set forth by the said instrument of relinquishment; and these all relying in their defence upon their possession, they gave in evidence a patent to James Gibson, and a patent to Sterrett and Grant.

That Gibson's patent is for six hundred and fifty-seven acres, surveyed 4th December 1783, patented March 1st, 1793. Sterrett and Grant's patent, one thousand six hundred and twenty-nine acres, entered 16th January 1783, surveyed 1st November 1792–patented 24th October 1799. _____ And gave testimony conducing to prove that the said Sallys, Courtneys, &c. were within the boundary prescribed by the patent of Grant and Sterrett: and Hinton, Hughes, Gillum, Vance, Antles, were within the bounds of the grant to Gibson: and touching the possession within Gibson's patent, the witness stated, that in the year 1796, William Hinton entered within the patent of Gibson, claiming a part of the tract under that grant; and that tenement has been occupied ever since: and at subsequent periods, the other tenants claiming under said William Hinton, had settled in the same manner upon other parcels, claimed by them as parts of said William Hinton's purchase, and from the time of their respective settlements, their possession had been continued: the witness knew not the extent of boundary of any of the purchases, and no title papers were produced.

And touching the possession within the grant to Sterrett and Grant, the witness stated that in the year 1791 or 1792, Griffin Taylor entered under that patent: that tenement has been still occupied by Taylor and his alienees, and at periods subsequent, the other tenants had entered and taken possession, claiming under said Taylor within the limits of the patent to Sterrett and Grant. No written evidences of purchase were offered.

Whereupon the attorney for the plaintiff made a motion to the court to instruct the jury,

1. That the possession of those defendants was no bar to the plaintiff's action.

2. That the statute of limitations could only protect the defendants to the extent that had actually enclosed their respective tenements; and occupied for twenty years preceding the commencement of this suit.

The court overruled the motion of the plaintiff for the instructions aforesaid, as made; and instructed the jury that adverse possession was a question of fact: that under the adverse patents given in evidence it was not necessary to show a paper title derived under those adverse grants, to make out adverse possession:–but that such hostile possession might be proved by parol; that an entry under one of the junior grants, given in evidence by the defendants, and within the boundaries of the elder grant of Pickett, made by one claiming under such junior grant without any specific metes and bounds, other than the abuttals of the grant itself, did constitute an adverse possession to the whole extent of the abuttals and boundaries under which such entry was made.

To the refusal of the court to give the instructions asked by the plaintiff; and to the instructions given by the court, the plaintiff excepted.

The case was argued by Mr Loughborough for the plaintiff in error; and by Mr Bibb for the defendant.

For the plaintiffs in error it was contended,

As to the proof of the letter of attorney.

The court erred in admitting a copy to the jury. The original was in existence, and it was in the power of the defendants to produce it. This should have been done. Peake's Ev. 96; 9 Wheaton, 558. Tayloe vs. Riggs, 1 Paters 591. To admit the copy as evidence, it was necessary first to have proved the execution of the original. Rees vs. Lawless, 4 Littell's Rep. 220. Elmondorf vs. Carmichael, 4 Littell's Rep. 479. This was not done. There were subscribing witnesses to the deed. Proof of handwriting in such case is secondary evidence; and to admit it, a foundation must be laid by showing that the testimony of the subscribing witnesses cannot be had. Here the absence of the subscribing witness was not accounted for in any manner: proof of handwriting was therefore incompetent. Peake's Evidence, 101, and cases cited in notes. Fox et al. vs. Reel et al. 3 Johns. 477. Henry et al. vs. Emott, 2 Wendell, 475. M'Murtry vs. Frank, 4 Monroe's Rep. 39. I Starkie's Ev. 330.

But admitting a sufficient excuse shown for the absence of the subscribing witnesses, the next best evidence is proof of their hand writing. Phill. Ev. 420, 421. Starkie Ev. ubi supra. Norris' Peake, 152. Huby vs. Champlin, 4 Johns. Rep. 461 and notes. It does not appear that this proof was given here. Proof of the party's signature was therefore incompetent and misplaced.

That the plaintiff's counsel did not object to the withdrawal of the original by Moore, does not preclude his exception to the secondary evidence. The instrument constituted a part of the defendant's evidence, offered by themselves; which they had a right at any time to withdraw, without the plaintiff's assent. The plaintiff could have made no objection. At the proper time the proper objection was made; that was, when the secondary and objectionable evidence was offered. And surely the defendants cannot be permitted to cut off the objection upon the ground that the plaintiff did not make himself the guardian of their case; by forewarning them that he would in due time avail himself of a just exception to incompetent testimony. No surprise could have been occasioned by the objection. It was one which the defendant's counsel should have expected.

2. But if the court shall consider the power of attorney sufficiently proved, it is insisted, by the plaintiff, that it does not authorize the act of relinquishment attempted to be performed by the agent. In the commencement it authorizes the attorney 'to sell and dispose of, contract and agree for, a certain tract of land,' &c. and, after describing the land, proceeds as follows: 'hereby fully authorizing and empowering the said Carey L. Clarke to sell, dispose of, contract and bargain for, all or so much of said tract of land, and to such person or persons, and at such time and times, as he shall think proper; and, in our or one of our names, to enter into, acknowledge, and execute all such deeds, contracts, and bargains, for the sale of the same, as he shall think proper.' Then follows a proviso, limiting the attorney's power to make warrantees.

Whether this power of attorney be regarded in the whole, or with a view to its several parts, it will not appear to give the agent any authority to abandon the land of his principal by relinquishing it to the commonwealth. No one can believe that James B. Clarke expected to escape from his title in this manner. The agency intended seems to have been one for the sale of the land, or such parts of it as the agent might think proper. This will appear from the first clause recited: and when the power to execute deeds, contracts, and bargains for the principal is given, it is limited to such as shall be 'for the sale' of the lands. When, therefore, the agent attempted to execute a deed, not for the sale of the land, he exceeded his authority. That an authority must be strictly pursued: Bac. Abr. title Authority. 1 Com. Dig. title Attorney. Nixon vs. Hyserott, 5 Johns. Rep. 58.

The power of attorney shown does not appear to have been that under which C. L. Clarke acted. By the relinquishment, it appears that the attorney had a joint letter of attorney from Clarke and Bryant, tenants in common of a tract of one hundred thousand one hundred and ninety-two acres of land, to sell, &c. The authority shown is from J. B. Clarke, sole tenant of fifty thousand acres. This does not support the relinquishment; it is inconsistent with it.

3. But the relinquishment was not duly made. The power to relinquish did not exist at common law; it was given by the act of assembly of Kentucky of the 4th December 1794. 1 Littell's Laws, 222. Digest Laws of Kentucky, 845.

The act provides that the relinquishment shall be 'by making an entry of the tract, or that part thereof so disclaimed, with the surveyor of the county in which the land, or the greater part thereof, shall lie, in a book to be by him kept for that purpose; which said entry shall describe the situation and boundary of the land disclaimed, with certainty, and be signed by the party in the presence of the surveyor, who shall attest the same.'

It is a principle of law that enabling statutes must be strictly pursued. Where a statute innovates upon the common law, and confers authority in derogation thereof to do a particular thing; as in this case, to surrender land to the commonwealth; the act must be performed in the manner directed by the statute, else it cannot prevail: not by the common law, for that does not at all permit it; not by the statute, because its requisitions have not been complied with. The statute declares that when certain things are done in the mode pointed out by it, they shall operate a relinquishment of the title. To make an act valid, therefore, under this statute, it must be shown to have been performed in the prescribed manner. In Wilson vs. Mason, 1 Cranch 97, this court held that a party claiming under a statute, should show that its requirements had been fully complied with; and that the court could not substitute any equivalent act for that required by the law.

The court will perceive no motive for liberality in the construction of this act of the Kentucky legislature. The land had been appropriated by entry, survey, and patent, all on record; the relinquishment should have been made of record in a book kept for that purpose by the surveyor, signed by the party in presence of the surveyor, by him attested; and if by an agent, that officer should have received the power duly authenticated, and recorded it with the entry. None of these requisitions have been fulfilled. The relinquishment offered was in no book–not even held officially by the surveyor; for he laid the copy aside with waste papers, and handed none of them to his successor. Suppose an entry upon a land warrant had been thus made; no court could recognize it as a valid act.

In Hardin vs. Taylor (4 Monroe's Reports, 516,) the court of appeals of Kentucky deemed it a valid objection to a relinquishment made by an attorney, that the power of attorney was not filed in the surveyor's office. The relinquishment, in this case, was, it is true, after the act of 1801, which directed the power to be recorded; but that direction was only an affirmance of an established principle of law that the authority of the agent should be evidenced as the act performed by him.

In England the title to land can pass neither to nor from the king, except by matter of record. 2 Blackstone's Commentaries, 344.

This rule is applicable to the commonwealth of Virginia. Fairfax's Devisees vs. Hunter's Lessee, 7 Cranch, 603. In the case of Barbour vs. Nelson, 1 Littell's Rep. 59, the court of appeals of Kentucky recognize the principle as existing in that state. Cited also to this point, 4 Littell's Rep. 479.

In Robinson vs. Huff, &c., 3 Littell's Reports, 38, the court of appeals of Kentucky decided that the common law prevailed in that state; and that an act of the legislature which provided that lands which could not be sold for taxes should be 'stricken off to the state,' did not affect it: and they held that the title to lands actually stricken off to the state was not thereby vested in it.

If the rule, that a record is necessary to pass a freehold to the king or to the commonwealth, be as inflexible as these authorities show it; then that record must be complete between the holder of the freehold and the state. Such is not the case here. Admitting the relinquishment to be a record, still it is a record made up between C. L. Clarke and the commonwealth, and to which J. B. Clarke, the owner of the title, is no party. It does not appear, of record, that C. L. Clarke was the attorney of J. B. Clarke for the purpose of this relinquishment. The authorities it is believed will show that to an inquest of office to vest a freehold in the king, it was necessary that the party interested should appear in person, or by an attorney, whose warrant was entered on the record of the proceeding.

But, furthermore, this deed of relinquishment is invalid upon its face, as not having been executed in the proper manner. It is executed in the name of the attorney, not of his principal.

In Combe's case, 9 Coke, 76, it was resolved, that if attorneys have power by writing to make leases by indenture, they cannot make indentures in their own names, but in the name of him who gives them warrant.

In Frontin vs. Small, 2 Lord Raymond, 1418; S. C. 1 Strange, 705, held, that a deed purporting to be made by an attorney, in his own name, was void upon its face. Cited also White vs. Cuyler, 6 Durn. East, 176. 2 Stark. Ev. 477. Elwell vs. Shaw, 16 Mass. Rep. 42. 1 Greenleaf, 339, S. C. is a case analogous to the present. There the supreme court of Massachusetts review all the cases, and adduce from them the rule now advanced.

The case of Parker vs. Klett, reported in Raymond and Modern, which would seem to conflict with the rule, in the case of an act in pais, not of a deed. That the deed in question is not a common law but a statutory deed, cannot vary the rule. The act authorizing this relinquishment, it is true, says that lands may be relinquished to the commonwealth by the holder or his attorney; but as it does not prescribe any particular mode in which ...

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