Gittings's Lessee v. Hall

1 H. & J. 14

• Court: General Court of Virginia
• Decided: May 15, 1800
• Status: Published

Opinion

The Court oj? Axtkaus, [

(a)

Mackall,

Jones, Folts and Dennis, J.]

gave the following opinion:

The first bill of exceptions in this cause presents two questions for decision.

First. If James Bosley, who is stated to have been in the possession of the land called Hill’s Forest, at the execution of his deed to George Buchanan, and George Buchanan having the same possession of the land conveyed by James Bosley to him, had, in construction of law, at the execution of their several deeds, such a possession of the whole, as entitled them, to convey7 the same by deed of bargain and sale, notwithstanding the possession of Walter Tolly, by enclosures, during those periods, as stated in the same hill of exceptions? and

Secondly. If under such circumstances, the deeds of bargain and sale by them could operate to convey the whole of the tract to which they were entitled, whether the operation of those deeds, or either of them, could be restricted or controled by any evidence appearing in the record extrinsic of the deeds?

Upon these questions this court concur with the Ueneral Court, and affirm the judgment expressed in that bill of exceptions.

The second bill of exceptions offers this question:

Whether the evidence given on the part of the plaintiff below, presented such a ground as justified the direction of the court to the jury, that they might and ought to presume that a deed good and operative in law to convey the said land called Mill’s Forkst, was executed, and did pass -the said land in fee from the said Henry Hill, the son of the original patentee, to Joseph Hill his son, although they should find the several facts stated by the defendant to be true?

Upon adverting to the record it appears to this court, that a part of the evidence offered to the jury to prove the statement on which they were to ground the presumption of a good and operative deed from the said Henry Hill to Joseph Hill, was not admissible by law to be read to the jury, to wit: the deed from Benjamin Ogle and Henry Margaret his wife, to James Bosley, inasmuch as the same deed purports to have been executed by Benjamin Ogle and wife, of Anne-Arundel county, and is acknowledged before two justices of the peace of Prince-George’s county, and from thence certified and transmitted to and recorded in -Baltimore county, where the land lies.

It was competent to James Gittings’s Lessee, at th® trial, to have proved to the jury, that Benjamin Ogle and his wife, although stated in the deed to be of Jlnne-Arundel county, were residents of Prince-George’s county, if that had been the fact. Having omitted to do that, and that fact making no part of the case stated in the bill of exceptions, the court cannot go out of the record for evidence of that fact, or in any manner supply the omission. The court are therefore of opinion, that the direction given was erroneous, because it appears that inadmissible evidence was read to the jury to support an important part of the statement, on which they were to ground the presumption of a deed from Henry Hill to Joseph Hill, which part of the statement, if struck out, does not leave such a case as will justify the judgment given in favour of the plaintiff in ejectment. The court therefore disagree with the general court in the direction stated in the second bill of exceptions to have been given, and reverse the judgment of the general court on that hill of exceptions.

In the record another objection presents itself to the judgment rendered in the general court. The uncertainty of the verdict found; that verdict not ascertaining, with sufficient precision, the location of the plaintiff’s claim, and the particular land for which the jury find for the plaintiff.

The plaintiff hath, made two locations of his pr&» tensions; the jury do not say which of those locations they find to be the true location of the land; both of them cannot he right. The judgment of the court does not ascertain it, and this court can see nothing in the record to direct the general court, or this court, in giving their judgment that certainty required in judgments.

Much has been said respecting the exemplification of the deed from Henry Hill to Joseph Hill in 1737, offered in evidence by the plaintiff in ejectment, at the trial in the general court: That exemplification, having been rejected by the general court, and that rejection acquiesced in by the plaintiff there, it makes no part of the record before this court, and can only be considered as an abstract proposition, not in the cause at all, and on which this court can judicially give no opinion.

As to the third bill of exceptions, this court concur with the general court, and affirm their judgment on that bill of exceptions.

Judgment of the General Court reversed, and •procedendo awarded.

Ramsey, Ch. J. owing to indisposition, did not attend.