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1822. ment. This genera] principle derives great strength from usage which has prevailed among these military surveys. The case states, that it has been customary, ever since the year 1799, to withdraw surveys after they have been recorded. The place surveyed has, of course, been considered as having again become vacant, and has been appropriated by other warrants, which have been surveyed and carried into grant. It would be a serious mischief, the extent of Which cannot be calculated, to declare these grunts void. No subject requires to be treated with more delicacy than the land titles of a counrry, where a law has been explained by usage. Upon the general principle, which has been stated, and upon the custom of the country in this respect, the Court is of opinion, that the owner of a survey, under the circumstances stated in the first question, may abandon it; but by doing so he will not cancel the rights of others.
If the plaintiff was at liberty to withdraw his survey, the defendant could not protect himself, under the act of Congress, to which the second question refers. The proviso of that act, which annuls all locations made on lands previously surveyed, applies to subsisting surveys, to those in which an interest is claimed; not to those which have been abandoned, and in which no person has an interest. A certificate is to be given in conformity with these principles.
Certificate.—This cause came on to be heard on the facts agreed by the parties, and on the question on which the Judges of the Circuit Court were
divided,and wasargued by counsel; on consideration 1822.
1. That the owner of a survey, made in conformity with his entry, and not interfering with any other person's right, may abandon his survey after it has been recorded.
2. That the defendant, on the facts stated in the case, cannot protect himself at law, under the act of Congress, passed the 2d of March, 1807, entitled, ''An act to extend the time for locating Virginia military warrants, for returning surveys thereon to the office of the Secretary of the Department of War, and appropriating lands for the use of schools in the Virginia military reservation, in lieu of those heretofore appropriated," and the several subsequent
acts on the same subject.
Green V. Watkins.
In a writ of right, the tenant cannot give in evidence the title of a third person, with which he has no privity, unless it be for the purpose of disproving' the demandant's seisin.
Therefore, where the demandant proves an actual seisin, by a pedis poritio, the tenant cannot be permitted to prove a superior outstanding title, since it does not disprove the demandant's seisin.
But where the demandant relies for proof of seisin, solely upon a con
1822. structive actual seisin, in virtue of a patent from the State, of vacant
lands, the tenant may show that the land has been previously granted by the State, for that devests the title of the State, and disproves the demandant's constructive seisin.
A writ of right brings into controversy only the titles of the parties to the suit, and is a comparison of those titles; and either party may therefore prove any fact which defeats the title of the other, or shows it never had a legal exisience, or has been parted with.
The case of Qreen v. Liter, 8 Cranch, 229. commented on, and explained.
Feb. M. This cause was argued by Mr. Montgomery, for
the plaintiff in error, and by Mr. B. Hardin, for the defendant.
Feb. \w. Mr. Justice Story delivered the opinion of the
The record in this case presents a great variety of facts, out of which several important questions have arisen; but as the merits of the cause may, in the opinion of the Court, be completely disposed of by the decision of a single point, the facts which illustrate that point will alone be mentioned.
This is a writ of right, originally brought by the plaintiff in error, against the defendant in error, to recover a certain tract of land in Kentucky, described in the writ. Issue being joined on the mere right between the parties, the demandant, to sustain his suit, gave in evidence a patent of the land in question, granted to him by the Commonwealth of Virginia, and dated the 28h day of January, 178*, and offered proof of the boundary. But he offered no proof, other than his patent, that he was ever seized of the land in question. According to the de
cision of this Court, in Green v. Liter, ( 8 Cranch, 182 229.) a patent of vacant lands of the State conveys to the grantee a constructive actual seisin, sufficient to maintain a writ of right; and therefore the demandant in this case entitled himself prima facie, upon this evidence, to a recovery. To rebut this conclusion, the tenants offered in evidence, as well for the purpose of proving title in themselves, as to show that the demandant was never seized of the premises, certain patents from the Commonwealth of Virginia, which included the premises, to wit, a patent to John Lewis and Richard May, dated the first of June, 1782; a patent to Edmund Eggleston, dated the same day and year; and a patent to John Gratton, dated the same day and year; and a patent to lsham Watkins of the same date : under which patents the tenants endeavoured to derive by mesne conveyances a good title to themselves in severalty. To the regularity of the title of the tenants so derived, the demandant took several objections, which were overruled by the Court, and the conveyances were admitted in evidence; and if, in point of law, the patents so offered in evidence by the tenants were admissible, for the purpose of showing that the demandant never had any constructive actual seisin in the premises, which was the only seisin on which he relied, the regularity of these mesne conveyances to the tenant becomes wholly immaterial, since, if these patents were still outstanding in strangers, they would, if admissible, all establish the same defect of seisin in the demandant. The question, then, which meets us at the tbreshhold of this cause is, whether it
be competent for the tenants, in a writ of right, where the demandant shows no seisin by a pedis positio, but relies wholly on a constructive actual seisin, in virtue of a patent of the land, as vacant land, to disprove that constructive seisin, by showing that the State had previously granted the same land to other persons, with whom the tenants claim no privity. In other words, whether the tenants can set up title and seisin in a stranger, to disprove the seisin of the demandant: and, upon the fullest consideration, we are all of opinion that they may. The reasoning on which our opinion is founded, is this; the mise joined in a writ of right, necessarily involves the titles of both parties to the suit, and institutes a comparison between them. It is consequently the right of each party, to give any fact in evidence, which destroys the title of the other; for the question in controversy is, which hath the better mere right to hold the demanded premises. It has been already decided by this Court, and is indeed among the best established doctrines of the common law, that seisin indeed either by possession of the land, and perception of profits, or by construction of law, is indispensable to enable the demandant to maintain his suit. The tenant may therefore show in his defence, that the demandant had no such actual seisin; for the seisin of the freehold by the tenant, which is admitted by the bringing of the suit against him, is a sufficient title for the tenant, until the demandant can show a better title. The tenant may thus defeat the demandant, by proving that he never had any such seisin in deed; or if he once had it, that he has parted with