Davis v. Mason

THE lessee of Richard B. Mason commenced an action of ejectment in the Circuit Court for the district of Kentucky, against John Davis and others tenants in possession, for the recovery of eight thousand acres of land, claiming to recover the same under a right of entry under, and by virtue of a grant from the state of Virginia to George Mason of Fairfax, dated 19th of March 1817.

William Mason and others conveyed, by deed, their interest in and to the land in contest, (they being children of the patentee,) to George Mason of Lexington, the eldest son of George Mason the patentee. George Mason, the grantee and the father of the lessor died the ___ day of December 1796, having first made his last will and testament; in a codicil to which, made on the 3d of November 1796, he devised to the child of which his wife was then ensient, his Kentucky lands, 'if the child should be born alive, and arrive at the age of twenty-one years, or married, whichever may first happen.' Richard B. Mason, the lessor of the plaintiff, is, by the evidence in the cause, the posthumous child referred to in the codicil. This will was fully proved, and admitted to record, according to the laws of Kentucky, and was said to vest the title in Richard B. Mason.

At the trial of the cause in the Circuit Court, the plaintiffs in error requested the Court, by instructions to the jury, 1st. To exclude the depositions of Lund Washington and George Graham, on the alleged ground that they were not taken and certified according to law.

2d. To exclude what the defendants designated as 'the third codicil' annexed to the will of George Mason, which it was said was not proved and certified according to law.

3d. That the plaintiff could not recover, unless he could show that the land sued for, was entered after George Mason the elder made his will, and not patented at his death.

4th. That if from the evidence they believe that the daughters of the patentee were dead before the commencement of this suit, they should find for the defendants, as the deed from the husbands did not pass the interest of the femes; nor had the husbands a right by courtesy to the lands, as they never had other or further possession of the lands, than that given by deed.

The Court refused to give the several instructions prayed for, and a bill of exceptions was tendered, upon which the case was brought before this Court. The facts of the case which appeared upon the record, in connexion with the matters contained in the exceptions, are stated in the opinion of the Court.

The defendants in error insisted, 1st. That the Court should have excluded the third codicil. It was not, upon proof, ordered to be recorded by the County Court of Fairfax county. It is not certified, as having been proved, and ordered, or admitted to record. It was not proved upon the trial, by any admissible and competent proof, to have been executed by George Mason.

2d. That there was no competent proof upon the trial, that the land in contest passed by conveyance to George Mason. It does not appear that they were not patented before the date of the will of George Mason, and otherwise disposed of by him in his will. The plaintiff should have proved that the lands were acquired by the said George Mason after his will, and not having done so, the Court should have given the instructions asked for, on that point, by defendants.

3d. The Court erred in stating to the jury, that the deed conveyed to George Mason, the courtesy right of the husbands of the feme coverts, daughters of George Mason sen.

4th. The Court erred in refusing to give the instructions asked for by defendants, upon the other points stated in the bill of exceptions.

The case was argued by Mr. Rowan for the plaintiffs in error, and by Mr. Wickliffe for the defendant in error. In reference to the rights of the husbands in the estates of their wives, Mr. Wickliffe cited 3 ''Bos. & Pull.'' 643.

Mr. Justice JOHNSON delivered the opinion of the Court:--