Hawkins v. Barney's Lessee

ERROR to the circuit court of Kentucky.

In the circuit court, the lessee of Joshua Barney brought an ejectment for fifty thousand acres of land in the state of Kentucky, which he claimed under a patent from the commonwealth of Virginia, to Philip Barbour, dated the 27th December 1786, and a deed from Barbour to him dated the 7th of August 1786. The defendants, William May and John Hawkins, derived their title under a junior grant to William May, for four thousand acres of land; and they proved on the trial in the circuit court, that John Creemer who had conveyed part of the land included in the grant to William May, settled on the land in 1790, and that both of the defendants in the ejectment have had possession of the land claimed by them ever since.

The defendants introduced and read in evidence a deed from Joshua Barney to John Oliver, dated the 6th of January 1812, by which the 50,000 acres, conveyed to him by Philip Barbour, were conveyed to John Oliver. The deed contained a recital that he had previously sold and conveyed to John Berryman, 11,000 acres of the land, and other small tracts to Charles Helm, in detached parcels.

The plaintiff then produced and read a deed in evidence, a deed executed by John Oliver and himself, on the 6th January 1812, in which the former conveyances were recited, and in which it appeared that the conveyance made by him to John Oliver on the 6th of January 1812, was to secure the payment of twenty thousand dollars within three years, with power to John Oliver to sell the land or any part of it, if Barney did not repay the sum which had been loaned to him by Oliver: he also produced in evidence a deed executed by Robert Oliver, on the 21st October 1816, as the attorney in fact of John Oliver, by which the title of John Oliver, to the whole of the land is released to Barney. This deed also recites the previous conveyances to Berryman and others.

The power of attorney from John Oliver to Robert Oliver was dated at Baltimore on the 12th of October 1815, and was as follows: 'And further I do hereby authorize and empower my said attorney to contract and agree for the sale, and to dispose of as he may think fit, all or any of the messuages, lands, and tenements, and hereditaments of and belonging to me in any parts of the United States, or held by me in trust or otherwise. And to sell, execute, and deliver, such deeds, conveyances, bargains, and sales, for the absolute sale and disposal thereof, or of any part thereof, with such clauses, covenants and agreements, to be therein contained, as my said attorney shall think fit and expedient. Or to lease and let such lands and tenements for such periods and rents as may by him be deemed proper, and to recover and receive the rents due and to become due therefrom, and to give aquittals and discharges for the same, hereby meaning and intending to give and grant unto my said attorney my full power and whole authority in all cases without exception or reservation, in which it is or may become my duty to act, whether as executor, administrator, trustee, agent, or otherwise.'

It was in evidence that neither John Oliver or Joshua Barney had ever been within the limits of the state of Kentucky, until within three months before the institution of the ejectment, when Joshua Barney came into the state. It was also proved that the debt due by Joshua Barney to John Oliver was still unpaid.

On the trial, the circuit court instructed the jury, that the deed to John Oliver, and from Oliver to Barney, did not show such an outstanding title as the defendants could allege; and refused to instruct generally that the plaintiff had no right to recover.

The court also refused to instruct the jury, that the plaintiff had no right to recover, unless he showed that the 11,000 acres did not cover the defendants, recited to have been conveyed to Berryman.

The court, also, refused to instruct the jury that the law was for the defendants; if they found from the evidence that the defendants had had the land twenty years in possession before the bringing of the suit.

The defendants excepted to the opinion of the court, and prosecuted this writ of error.

The case was argued by Mr Wickliffe for the plaintiffs in error, and by Mr Jones for the defendant.

For the plaintiffs in error it was contended: that the defendant in error has not exhibited such a title in himself as will entitle him to recover in this action, when taken in connexion with the proof introduced by the defendants below.

1. By the deed to John Oliver he divested himself of the legal title; and the deed by Robert Oliver, the agent, does not reinvest him with that title: the mortgage money not having been paid, the conveyance was unauthorized by the letter of attorney.

2. According to the recitals in the deed of Barney to Oliver and from Oliver to Barney, Barney had conveyed distinct parcels of the 50,000 acres, to Berryman and Helm; and before he was entitled to the verdict and judgment against the defendant, it was incumbent upon him to prove that Hawkins's possession was not only within the boundary of the 50,000 acres, but that it was without the tracts conveyed to Helm and Berryman.

The plaintiff was not entitled to recover, because the defendant proved an adverse possession, continued for more than twenty years, before the commencement of this action; and his absence from the commonwealth cannot avail him, because of the provisions of the act of the legislature of Kentucky of 1814.

If, however, the provisions of the last recited act are inoperative; that the plaintiff ought not to recover because of the provisions of the act of the legislature of February 9th, 1809: which law inhibits the recovery in this form of action, in a suit commenced after the 1st of January 1816, when the defendant had resided upon the land, claiming to hold under an adverse title in law or equity, for seven years before the commencement of the suit, or action at law.

Mr Wickliffe argued that Barney had not shown a right of entry to the 50,000 acres, patented by the commonwealth of Virginia to Philip Barbour.

That he had not shown that he was entitled to that part of the land in possession of the plaintiff in error.

The conveyance by Barney to John Oliver was absolute on its face, and recites the former conveyances of part of the land; but by the instrument which was executed at the same time, that deed became a mortgage; the amount secured to be repaid in three years. The title remained in Oliver. The reconveyance is said to have been made in 1816, by Robert Oliver, as attorney in fact for John Oliver; but it is denied that the power of attorney authorized that conveyance. The money which was due to John Oliver was not paid before the reconveyance by Robert Oliver, as his attorney; and was not therefore within the scope and purpose of his powers. It was therefore a void deed. A mortgagor cannot maintain ejectment after the time fixed for the payment of the money, unless he can show that the same was paid. The legal estate is in the mortgagee. 1 Marshall's Rep. 52.

The recitals in the deed from Barney to Oliver, show that 11,000 acres of the land had been conveyed to Berryman; and Barney was bound to show that the defendants lived out of the part so conveyed. 3 Marshall, 20. Madison vs Owen, 6 Littell, 281. 3 Littell, 334.

The case shows an adverse possession in the plaintiffs in error for twenty years; and adverse possession under a claim of title from the commonwealth of Kentucky for seven years.

The act of the legislature of Kentucky, which protects the possession of the plaintiff in error, does not depend on the same principle with the act of 1812, which has been declared void, as to the provision for occupying claimants, by the court in the case of Green vs. Biddle. No advocate for the rights of the state of Virginia, under the compact, ever meant to deny to the state of Kentucky the right to legislate over the land within her territory; so as to quiet possessions, and prevent litigation, for the purpose of sustaining old and dormant titles.

The seventh and eighth article of the compact between Kentucky and Virginia have been supposed to be violated by the limitation law. By that compact the rights relating to lands were to be determined by the laws of Virginia. The laws of Virginia established limitations of actions, and those of Kentucky are in the same spirit, and on the same principles with the Virginia laws from 1750 or 1760; and the same principles have been maintained and established by the laws of other states; they are to be bound in the legislative enactments of Pennsylvania, of Tennessee, of North Carolina, of Massachusetts, and of other states.

The compact was only intended to adopt and secure the general principles of the Virginia land laws, and cannot be construed as a total inhibition to Kentucky to legislate in relation to the lands in the state. 1 Bibb's Rep. 22. Such has been the uniform construction given to this compact. 1 Littell, 115. 3 Littell, 330.

The statutes of 1809 and 1813 are only statutes of limitation, and do not impair the obligation of any contract. Such laws may by some be considered unjust; but they are prospective, and affect remedies without operating on rights. 1 Caines', 402. 2 Randolph, 305. 5 Johns. 132. 11 Johns. 168. 1 Call's Rep. 194, 202. 2 Bibb. 208. 4 Serg. and Rawle, 364. 2 Gallison, 141. 4 Bibb. 561. 1 Littell, 173. 3 Littell, 318, 446, 464. 4 Littell, 313. 5 Littell, 34. 1 Marshall, 378. 2 Marshall, 388. 1 Munroe, 164. 2 Marshall, 133, 318, 319, 615. 4 Monroe, 523, 554.

Mr Jones for the defendant in error.

The first objection is that the plaintiff below did not make out a title. That he was a mortgagor, and could not maintain the action after a forfeiture, without showing payment of the money advanced by John Oliver. But the evidence shows that Barney had ceased to be a mortgagor before the suit was brought. A mortgagor may maintain a suit against a mortgagee. 19 Johns. 325. The mortgage is a mere security; and a stranger cannot set up an outstanding mortgage.

But the power of attorney was sufficient to authorize all that was done under it; and this was subsequently ratified by John Oliver. The power was full to the purposes of a release; and if so extensive, its operation to that effect was all that was required.

Mr Jones denied that it was the duty of the plaintiff in the circuit court, to show that the land sold to Berriman was not included in that for which this suit was brought. The authorities upon this point establish the principle, that the defendant must show that fact.

He contended that the statutes of limitations violated the contract. The decisions of the state court, upon the validity of the law, are not authority. The construction and meaning of a statute of a state belongs to the tribunals of the state. But questions, which go to the validity of the statute, are subject to the supervision of this court; whether such a law be constitutional, is an inquiry here, by the express words of the judiciary act. The acts of Kentucky make a material distinction between residents and non-residents, excluding the latter entirely from its operation. It requires actual possession by one claiming title, and the possession of a tenant is not sufficient. The law of 1814 repeals the law of 1796, and does not affect the savings in the Virginia statutes.

It is inquired whether the act of limitations is consistent with the contract? As a general rule it has been said that statutes of limitation relate to the remedy. But this distinction is not sound. There can be no right without a remedy to secure it.

It is not in the power of Kentucky, by any legislation, to take away a right to land which was vested before the compact, except such as is warranted by the laws of Virginia.

He denied that any such warrant existed.

Mr Justice JOHNSON delivered the opinion of the Court; Mr Justice BALDWIN dissenting.