Joseph Story

“ Rep. 97, 107, the court said; the general rule is, that if a man enters into lands, having title, his seisin is not bounded by his occupancy, but is held to be co-extensive with his title. But if a man enters without title, his seisin is confined to his possession by metes and bounds. Therefore the court said that as between two patentees in possession claiming the same land under adverse titles, he who had the better legal title was to be deemed in seisin of all the land not included in the actual close of the other patentee. ”

“ The statute does not contemplate any deed or conveyance; but a mere entry of relinquishment or disclaimer of record. This entry constitutes a good title in the state. The state does not buy, nor does the party sell in such case. It seems to us that the nature of such a relinquishment, amounting, as it does, to a surrender of title without any valuable consideration, ought not to be inferred from any words, however general, much less from words so appropriate to cases of mere private sales as those in the present letter of attorney. ”

“ Whether the possession was averse or not to the plaintiff, is properly a question of fact, of which the jury are the competent triers. Bowles vs. Sharp, 4 Bibb, 551.
Nor is it necessary that possession should be held under colour of title to render it adverse and transferable from one to another; so that the successive possessions may be knit together, and toll the right of entry. Bowles vs. South, 4 Bibb, 551.
A continued, uninterrupted possession for twenty years, not only tolls the right of entry, but gives a right of possession which will maintain an ejectment. ”

“ In the ordinary course of legal proceedings, instruments under seal, purporting to be executed in the presence of a witness, must be proved by the testimony of the subscribing witness, or his absence sufficiently accounted for. Where he is dead, or cannot be found, or is without the jurisdiction, or is otherwise incapable of being produced, the next best secondary evidence is the proof of his handwriting; and that, when proved, affords prima facie evidence of a due execution of the instrument, for it is presumed that he would not have subscribed his name to a false attestation. ”

“ Whether an entry upon land, to which the party has no title and claims no title, be a mere naked trespass, or be an ouster or disseisin of the true owner, previously in possession of the land; is a matter of fact depending upon the nature of the acts done, and the intent of the party so entering. The law will not presume an ouster without some proof; and though a mere trespasser cannot qualify his own wrong ”

“ And at a subsequent day Moses L. Miller was introduced as a witness to prove the letter of attorney; who stated, that being summoned as a witness, he met with the clerk of Harrison aforesaid, in Georgetown, who showed him an instrument, the signature of which he examined, and believed it to be the handwriting of James B. Clarke (the plaintiff's lessor) , with whose handwriting he was well acquainted: and another witness was examined, tending to show that the instrument, so shown by said Moore to Miller, was the same previously read before this court, as aforesaid. ”

“ Taylor (4 Monroe's Reports, 516,) the court of appeals of Kentucky deemed it a valid objection to a relinquishment made by an attorney, that the power of attorney was not filed in the surveyor's office. The relinquishment, in this case, was, it is true, after the act of 1801, which directed the power to be recorded; but that direction was only an affirmance of an established principle of law that the authority of the agent should be evidenced as the act performed by him.
In England the title to land can pass neither to nor from the king, except by matter of record. ”

“ The counsel for the defendants insisted that the points, involved in this proposition for instruction moved by the plaintiff, were correctly ruled by the court.
It must be remembered that no evidence was adduced, tending to prove any actual possession, by Pickett, or the lessors of the plaintiff, under Pickett's patent.
Entry, by purchaser of part of a survey not patented, his purchase not meted: he is possessed of the whole survey, and possession is not limited to his actual inclosure. ”

“ Entry under a junior patent within the interference, no possession existing under the elder patent; the possession so taken under the junior patent is not limited to the close, but is co-extensive with the interference. Fox vs. Hinton, 4 Bibb, 559.
But it would have been improper for the court to have told the jury that the limitation was no protection to those defendants who were within Gibson's survey; because the evidence conduced to prove, and the jury might have so found, that those defendants were not within the part to which James B. Clarke had title. ”

“ It recited that James B. Clarke and Eleanor his wife, and John Bryant and Mary his wife, had appointed Carey L. Clarke their attorney to sell, transfer and convey a certain tract on the waters of Eagle Creek, in the county of Scott and state of Kentucky, containing one hundred thousand one hundred and ninety-two acres, entered in the name of Martin Pickett, which tract of land was then held by Clarke and Bryant as tenants in common. ”

“ R. 94; Fowler vs. Shearer, 7 Mass. R. 14; and Elwell vs. Shaw, 16 Mass. R. 42; are directly in point.
It appears to us, then, upon the grounds of these authorities, that the deed of relinquishment to the state was inoperative; and consequently the court erred in refusing the instruction prayed by the plaintiff, that it did not bind him; and in directing the jury, that if the execution of it was proved, it was a bar to the recovery of the land described therein. ”

“ And touching the possession within the grant to Sterrett and Grant, the witness stated that in the year 1791 or 1792, Griffin Taylor entered under that patent: that tenement has been still occupied by Taylor and his alienees, and at periods subsequent, the other tenants had entered and taken possession, claiming under said Taylor within the limits of the patent to Sterrett and Grant. ”

“ The second count was on the demise of John Bryant, Maxwell and wife, Anna Maria Maxwell, and Eliza Bryant Grant, heirs of John Bryant, deceased. The third was on the demise of Abraham Schuyler, and Neelson and wife. The fourth of Theodocia, Thomas, and John B. Grant. The fifth on several demises made by John B. Maxwell, Anna Maria Maxwell, Eliza B. Grant, Theodocia S. Grant, Thomas R. Grant, John B. Grant, Abraham S. Neelson and wife.
The case was tried at November term 1826; when the verdict and judgment were for the defendants. ”

“ Non-residents and residents were required, upon pain of forfeiture, to enter their lands for taxation by the last day of November 1795, but prolonged until 1st December 1798; and until 15th December 1806, &c. ”