Cookey's Lessee v. Smith

Chase; Ch. J. delivered the o’pinlori of the court. In actions of ejectment to recover the possession of land, it is incumbent on the plaintiff to show a grant of the land from the proprietary. To pt-otfe such grant life must produce the patent, or a copy under seal. This is the general rule, and must be generally adhered to, because there can be no recovery in ejectment without Showing a legal title in the plaintiff, which cannot be done without producing a grant from the proprietary. . The cases in which this general rule has been deviated from, and in which secondary evidence has been resorted Ito. and admitted, for the,purpose of obtaining the direction of the court to, the jury to presume and find a grant, rest on strong facts and circumstances, evineing an equitable right to the land — an incipient title from the proprietary, and length of possession in conformity thereto — mesne conveyances and wills, transmitting the right from the taker up to the plaintiff. [27] inactions of ejectment tlie producing the grant of the proprietary is the first ste|) in deducing title; if that is wanting, and inferior testimony is resorted to for presuming a grant, the foundation must be laid by stating and combining ail the facts and circumstances existing in the case, on w hich the prayer to the court is to be made for their direction to the jury, to presume and find a ^rant. In this case, to repel the plaintiff?? title, an attempt ¡A made by the defendant to prove an antecedent grant, without producing it, or giving any evidence that such grant ever existed, without showing an incipient tit|e, or proof that the records of the land office were lost or destroyed, and without showing any rightful possession accompanying the defendant’s claim. Length of possession is the great and leading fact in presuming grants and deeds, and without which no grant 01* deed can be presumed. There arc no facts stated in the first bill of exceptions, by which the right and possession of the proprietary could be divested. It is not stated that Clark was ever in possession of the land; arid if he was, he was an intruder, and his deed could not operate to transfer, any right to, the land, for he had no right or interest to transmit; and the entry and possession of Franklin under Clark's deed, was an intrusion, the land being vacant land. The proprietary continued in possession until the act of confiscation; and the acts for appointing commissioners vested the right to ihe laud, and the actual seism and possession, in the s.tate, which continued in the state until t!ie grant made to Cockey, the lessor of the plaintiff. The court are of opinion, that the deed from Clark to Franldin, and the certificate of the receipt for the alienation fine endorsed on that deed, are not legal and competent evidence; and that the court below erred in admitting the same to be read to the jury to show title, in the defendant to the land in question, and do dissent from the opiniou expressed in tl)éfirst bill of exceptions. It is the exclusive rigid of the court to decide on the le» gality and competency of all testimony, which, is to be read or given to the jury; and this court are oí, opinion, that the court below erred in allowing the three papers, purporting to be copies of certificates for Gibson’s Forest and Warner’s €hame} to be read in evidence to the jury, the same not [28] having been certified by Thomas Jennings under the seal of the land office, and the same being without date, and the court below having leferred the same to the jury to determine whether they were genuine or not. This court dissent from the opinion expressed in the second bill of exceptions. It of right belongs to the court to determine on the legal sufficiency of the facts and circumstances which will warrant the jury in presuming and finding a patent; and tins court are of opinion, that the court below erred in not directing the jury that the proof in this case was insufficient in law for the jury to presume a grant from the proprietary, and they dissent from the opinion in the third bill of exceptions.