Games v. Stiles

IN error to the Circuit Court of the United States for the District of Ohio.

In 1836, the lessee of the defendants in error instituted an action of ejectment against the plaintiffs in error, in the Circuit Court of the United States for the District of Ohio, for a tract of land lying between the Little Miami and Sciota rivers, in that part of the state of Ohio known as the Virginia Military District, being on a survey under a part of a military land warrant for one thousand acres. The cause was tried at July term, 1838, and a verdict and judgment were entered for the plaintiffs in the action, the defendant in error.

On the trial of the cause, the defendant tendered a bill of exceptions. The bill of exceptions states, that the plaintiff offered in evidence in support of his action:

First, A certified copy of a deed from David Carrick Buchanan to Walter Sterling, dated June 27th, 1825. The patent from the United States, dated 22d May, 1802, for the land in controversy, was granted to David Buchanan by the President of the United States, and the deed was executed by David Carrick Buchanan, stating that he had formerly been David Buchanan. The defendants asked the Court to instruct the jury, that the statement in the deed by the grantor, that he had formerly been David Buchanan, is no proof that he was David Carrick Buchanan. This instruction the Court refused. The deed from David Carrick Buchanan recited that the deed was executed in conformity with a decree of the Circuit Court of the United States for the Fifth Circuit, in the Virginia District, to convey the land described in it to Walter Sterling, in fee simple. The defendants excepted further to the introduction of the deed in evidence, because the proceedings of the Circuit Court of the United States in Virginia, recited in the deed, were not produced with it. But the Court overruled the objection.

Second, The defendants in their defence offered in evidence a certified copy of a paper, purporting to be a deed from William Middleton, auditor of Brown county, to John S. Wills, bearing date April 22d, 1824, for two hundred acres of land; and insisted it was duly acknowledged as such deed, and such copy was duly certified by the recorder of Brown county. The deed from William Middleton, the auditor of Brown county, recited that a sale had been made of two hundred acres of land, by William Middleton, county auditor, to John S. Wills, on the 29th December, 1823, for arrearages of taxes due to the state of Ohio, for 1821, 1822, 1823, for the lands conveyed; the land being part of the land patented to Buchanan. The deed particularly described, by metes and bounds, the tract conveyed, and granted the same to John S. Wills, in fee simple. It was duly acknowledged according to the laws of Ohio, and recorded in the proper office.

The plaintiff objected to this deed as not competent to go to the jury without evidence of the proceedings and acts of the public officers, prior, and at the sale of said land for the tax; and insisted it ought to be admitted: and the Court sustained the objection, and overruled the evidence, and declared their opinion that the same evidence should not be admitted, and the same was rejected accordingly.

The defendants then offered the same deed or copy of deed, accompanied by a duly certified copy of the record of the proceedings, at and before the sale of said land for taxes, bearing date 9th May, 1838, certified by Hezekiah Lindsey, county auditor of said county of Brown; which copies or papers, and certificates thereon, are referred to as a part of the bill of exceptions; whereupon, the plaintiffs, by counsel, objected to the admission of the same on the ground that the same did not contain all the legal requisites to justify and authorize said sale and conveyance of said land for taxes; and of this opinion was the Court, and declared their opinion to be that the same ought not to be admitted in evidence in this case, and the same were rejected accordingly.

The defendants below gave in evidence a transcript of the record of the proceedings and decree of the Supreme Court of the state of Ohio, in a case wherein White's heirs and J. S. Wills' heirs, and H. Brush were complainants, and David Buchanan, in his lifetime, was defendant; and his unknown heirs, after his decease, were, by bill of revivor, made defendants; wherein the title to the premises in question was decreed to the complainants in that suit.

The defendants asked the Court to instruct the jury, that the record of the proceedings and decree given in evidence by defendants, may be considered by the jury as conveying the title to the land in controversy in that suit, to the complainants therein, and will, and ought to affect parties and privies, who had knowledge of the same, to prevent their taking title from the defendant therein from the time such knowledge existed. In place of this instruction, the Court instructed the jury, that to prevent Buchanan from making a good deed to those lands, it was necessary he should have notice, actual or constructive, prior to the making such deed; and of the commencement of the suit; the service of the process or the order of publication, giving such notice to appear and answer; and such publication made, to be proved: if the jury should find the deed from Buchanan to Sterling, was dated June 27th, 1825, and was at that time delivered, and the order of the Court for the publication not made until August following, as appears in the record aforesaid, it was competent for Buchanan to make such deed to Sterling; and the Court declared their opinions accordingly.

The defendant prosecuted this writ of error.

The case was argued by Mr. Mason, for the plaintiffs in error; and by Mr. Corwin, with whom was Mr. Bond, for the defendant.

The counsel for the plaintiffs in error, Mr. Mason, assigned the following reasons for the reversal of the judgment of the Circuit Court:

First, That on the trial of the cause, the Court admitted as evidence in the cause, a paper purporting to be a deed from, or signed by David Carrick Buchanan to Walter Sterling, as appears by bill of exceptions; which, for the reasons stated in the bill of exceptions should not have been admitted in evidence.

Second, There is also error in this, that the Court, on the trial aforesaid, admitted in evidence to the jury a copy of another paper, purporting to be a deed from Walter Sterling to Walter Dunn; which, for the reasons stated in the bill of exceptions, ought not to have been admitted in evidence.

Third, There is also error in this, that the Court refused to admit a certified copy of a deed from William Middleton, auditor of Brown county, to John S. Wills, for two hundred acres of land, for the reasons stated in said bill of exceptions; whereas the same evidence ought to have been admitted.

Fourth, There is also error in this, that said Court refused to admit the same deed or copy accompanied by a duly certified copy of the record of the proceedings, at and before the sale of said lands for taxes, for the reasons stated in the bill of exceptions; whereas, said evidence ought to have been admitted.

Mr. Corwin, for the defendants, contended, that the proceedings of the Court in Virginia were not necessary to the validity of the deed; that a good consideration is stated in the deed, independently of that decree; that the title being in Buchanan, he had a right to convey with or without the authority of the decree.

2. That it was not necessary, that the acknowledgment should aver or recite the delivery of the deed; that possession of the deed was evidence to go to the jury of its delivery; that the recital of delivery in the deed, is evidence of that fact.

3. That the recital in the deed, showing that the grantor, David Carrick Buchanan, Esq., was the same person formerly called David Buchanan, Esq., was evidence to go to the jury of the identity of the person named in the deed and patent.

The counsel for the defendant also insisted, that it was incumbent on the party offering evidence of title growing out of a sale for non-payment of taxes, to show that the law was in all material respects complied with under which the auditor acted; that neither the deed nor the record of the auditor shows such compliance. See 18 Ohio Laws, 70.

4. That the defendants below claiming title underBrooke, through whom the lessor of plaintiff also claimed, it was not competent for them to dispute the validity of their common title.

5. That the identity of the land in question with that described in the title papers, is shown by the descriptive calls recited in the declaration, and those in the title papers of the plaintiff below, and is admitted by the consent rule.

The defendant below asked the Court the charge the jury, that the statement in the deed from Buchanan to Sterling, reciting that David Carrick Buchanan, Esq., was formerly called David Buchanan, Esq., was no evidence that it was the same person who received the patent, and conveyed to Sterling. The Court refused so to charge, and instructed the jury that they must be satisfied from the deed, other documents, and the circumstances of the case, that David Carrick Buchanan, and David Buchanan, were the same person; and declared their opinion, that such was the case; to which opinions the defendants excepted.

1. The defendant in error insisted, that this exception only questions the propriety of the opinion given to the jury as to the fact of identity, as arising out of the proof before them.

2. That it was proper for the Court to give such opinion, leaving the jury to decide on it for themselves. 1 Peters, 182. 190. 10 Peters, 80.

3. That the recital in the deed is evidence to be considered by the jury, with other proofs in the cause, to show the identity of the grantee of the United States with the grantor to Sterling.

Mr. Justice M'LEAN delivered the opinion of the Court.