Lessee of Sicard v. Davis

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

On the 8th day of March 1825, Stephen Sicard, a citizen of Pennsylvania, commenced his actions of ejectment in the circuit court for the district of Kentucky against Jesse Davis and others, and against John Cecil, Robert Smithers and others, for the recovery of six thousand six hundred and eighty acres of land, or parts of the same. Those who were in possession of the lands were admitted as defendants; each for himself; and pleaded not guilty. In the progress of the case, the plaintiff was twice non suited, and the non suits were set aside. Nancy Davis, after the death of the husband, became, on motion, a party to the suit.

The demise in the declaration was stated to have been made by Stephen Sicard, on the 30th of January 1815. Afterwards, at November term 1821, upon motion of the plaintiff, leave was given to amend the declaration, by laying a demise in the name of the heirs of the original grantee of the land, Joseph Phillips, and from others to whom the land had been conveyed, before the execution of the deed under which Stephen Sicard acquired his title.

The cause was tried at the October term 1824 of the circuit court, and judgments were rendered for the defendants.

The plaintiff on the trial tendered a bill of exceptions in each case; and the cases were brought up to this court on writs of error prosecuted by him.

The bills of exceptions stated the evidence given by the plaintiff to maintain the suits, to have been a patent dated 6th of June 1786, from the state of Virginia to Joseph Phillips, for six thousand six hundred and eighty acres of land, under a survey dated 4th of May 1784; and proof that the patent covered the land in controversy; and that the defendants were in adverse possession at the commencement of the suit.

Also copies of deeds from Joseph Phillips to Benjamin Stephens, and from Stephens to Samuel R. Marshall, and from Marshall to Stephen Sicard.

The first deed from Joseph Phillips to Benjamin Stephens, is dated the 11th of October 1797. The second deed from Stephens to Marshall, is dated the 25th of December 1797. The deed from Marshall to Sicard is dated the 25th of May 1798; and these deeds covered the land in suit.

The plaintiff also proved, that Phillips, Stephens, Marshall and Sicard, always resided in Pennsylvania, New York and New Jersey.

It was proved that Phillips and Stephens died in the year 1798 or 1799.

The deed of Joseph Phillips to Benjamin Stephens is dated the 16th of October 1797. On the 8th of June 1798, it appears that Joseph Spencer, of Philadelphia, appeared before Hillary Baker, mayor of Philadelphia, and deposed that he saw Joseph Phillips sign, seal and deliver the said deed; that he saw Samuel R. Marshall and John Phillips severally subscribe their respective names thereunto, as witnesses to the signing, sealing and delivering the said deed.

This deed, thus proved, was recorded, together with the deeds from Stephens to Marshall and from Marshall to Sicard, and were, on the 23d of April 1803, certified by the clerk of the court of appeals to have been recorded in his office in Frankford, in the state of Kentucky.

The plaintiff, in order to introduce the copies of the deeds in evidence, and to prove the execution of the original deeds, produced a paper signed by Alexander Parker, stating that he had received, February 9th, 1803, or Mr. Stephen Sicard, three deeds for a certain tract of land lying in Nelson county, and state of Kentucky, on Chaplin's fork; the first, Joseph Phillips to Benjamin Stephens for six thousand six hundred and eighty acres of land; the second, Benjamin Stephens to Samuel R. Marshall for said land; the third, Samuel R. Marshall to Stephen Sicard for same; also a certificate of Ralph Phillips concerning the same: all to be recorded in the office at Frankfort in Kentucky.

The plaintiff also read the deposition of Thomas Wallace, who swore, that in the summer of 1803, said Parker told him that he had left at deponent's store, or with a Mr Scott, his clerk, three deeds, the property of Sicard, to be carried from Lexington to Philadelphia by the deponent. He knows nothing of the papers, nor does he recollect ever to have seen them: he has searched for them among his papers, but is unable to find them.

Alexander Parker proved the receipt, and that he got the deeds recorded in the court of appeals of Kentucky-that he inclosed said deeds directed to Mr Sicard, Philadelphia, and left them with Mr Wallace's clerk, to be taken by Wallace to Sicard. These deeds he believes were originals; he has never seen them since; he believes Scott was dead: that for several years he paid the taxes for said land, and saw the entry of said land for taxes in the auditor's office.

Mary Powell, a witness, resident in Philadelphia, swore she is the widow of Benjamin Powell, and that she is fully satisfied from what her husband told her that he did witness a deed to which Benjamin Stephens and Robert Marshall were parties, or at least the said Stephens was the seller therein; her husband died in 1820; and that some time before his death, he went out with Stephen Sicard to attest the fact of his, the said Powell's, having subscribed the said deed as a witness to the execution thereof before a magistrate or alderman.

Joseph Spencer, in his deposition stated that he has some recollection of having witnessed an instrument of writing, supposed by him to be a conveyance of land, (but it was not known to him to whom granted thereby) at the house of John Phillips, which he did some twenty years before the date of his deposition (1822); and his meeting again one or more of the family, he believes Dr Joseph Phillips, in the city of Philadelphia, at the office of Hilary Baker, to authenticate the hand writing to the instrument as a witness to both; but he has no certain date in his memory.

And also the deposition of George Heyl of the city of Philadelphia, notary public, who swears, that on the 17th day of January 1803, at the request of Stephen Sicard, he made correct copies of the deeds from Phillips to Stephens, and Stephens to Marshall, and from Marshall to Sicard: that the copies made by him were from the original deeds, and that he had certified the copies under his seal of office. Sicard told him at the time, he was going to send the originals to Kentucky to be recorded; and assigned this as the motive to have the copies made. The deeds had every appearance of originals. That he had a knowledge of the signature of Hilary Baker, the mayor of the city, before whom they were proved, and of the seal of the city, and believed them genuine: that in the spring of the year 1818, the said Stephen Sicard again called on him and took his deposition before alderman Douglass, at his (the alderman's) office in this city, to the above fact; to which deposition were annexed the said three notarial certified copies, and a mandate from the seventh circuit court of the United States for the Kentucky district to the said. Douglass, to take the same-all of which this deponent understood were transmitted to the said court: and that the annexed two copies of deeds, so certified by the clerk of said court, to the best of his knowledge and belief, are copies of his said notarial copies of his said originals.

The deposition of George Rozell, to prove the death of Joseph Phillips in 1798, and who were his heirs at law; and also the decease of Stephens, in the same or the following year, was exhibited.

The defendants gave in evidence patents from the commonwealth of Kentucky, of junior date to that read by the plaintiff; proved the boundaries of those junior grants, and that they included the defendants: and gave evidence that they had settled under faith of those junior patents, and held adversely to the patent offered in evidence by the plaintiff. On motion of the defendants, the court rejected the copies of the deeds aforesaid from Phillips to Stephens, and from Stephens to Marshall, and from Marshall to Sicard; because there was no proof of the execution of the deeds from Phillips to Stephens, or from Stephens to Marshall, so as to let in copies of the original deeds.

The defendants then proved, that in the year 1794 they had adverse possession of the land in controversy, and had continued ever since to hold it adversely accordingly. Whereupon the defendants moved the court to instruct the jury, as follows:

1. That the plaintiff has given no evidence to support the first count, upon the demise of Sicard, and none to support the demise from any of the other lessors; except from such as are heirs of Joseph Phillips, the patentee.

2. That if the jury find from the evidence that the patents of Joseph Phillips and William Loving do interfere and lap, as represented on the connected plat, and that the defendants and those under whom they hold did enter, claiming under said Loving's survey, and took the first possession within the said interference, the said patent of Joseph Phillips being (at the date of such entry and possession taken under Loving's patent) unoccupied by any person holding or claiming under said Phillips's patent; then and in that case the possession of the defendants so taken was not limited to their actual inclosure, but was co-extensive with the boundaries by which they claimed.

3. That if the jury find from the evidence, that the possession of the lands in controversy was taken in the lifetime of Joseph Phillips, the ancestor, of the lessor of the plaintiff, and adversely to said Phillips, and that the defendants and those under whom they hold have continued to hold adversely to said Phillips, the ancestor and his heirs, ever since and for more than twenty years before the 17th day of January 1822, when the second count in the declaration was filed, and shall moreover find that said ancestor Joseph Phillips died more than ten years before the said 17th day of January 1822, when the second count was filed, then the said lessors, the heirs of Joseph Phillips, are barred by the statute of limitations.

The circuit court gave these instructions to the jury on the prayer of the defendants.

The case was argued by Mr Sergeant, for the plaintiff in error; and by Mr Wickliffe, for the defendants.

For the plaintiff it was contended:

That the court erred, 1. In rejecting the copies of the deeds from Phillips to Stephens, from Stephens to Marshall, and from Marshall to Sicard.

2. In charging that the possession taken by the defendants, under Loving's survey, was not limited to their actual inclosure, but was co-extensive with the boundaries by which they claimed.

3. In charging that the statute of limitations barred, if there had been adverse possession for more than twenty years before the 17th of January 1822, when the second count in the declaration was filed.

Mr Wickliffe, for the defendants, argued,

1. The plaintiff failed to show any title in Sicard at the date of the demise.

2. The copies of deeds from Phillips, &c. were correctly excluded, because the same were not legally proven in court upon the trial; nor had the same been proved and recorded in accordance with or within the time prescribed by the laws then in force in Kentucky.

3. If recorded or proven, the deeds conveyed no title, were inoperative and against law; the land conveyed being at the date of the said deeds in the adverse legal possession of the defendants.

4. If the plaintiff showed title in the heirs of the patentee, Joseph Phillips, that title was not asserted by the heirs of Phillips against the defendants until the January term 1822, when the amended declaration was filed; consequently their right was barred by the statute of limitations, both of twenty years' adverse possession, and seven years' adverse possession with title.

Mr Chief Justice MARSHALL delivered the opinion of the Court.