Opinion
October, 1797.
Ridgely and Miller for plaintiff. Read, Vining and Bayard for defendants.
The plaintiff's title originated with an indenture of John Rhodes to Andrew Caldwell, dated the 8th May, 1722, acknowledged in open court and recorded. This indenture recited a warrant and survey granted to John Rhodes, the elder, and that John Rhodes, party to the indenture, was son and heir to John Rhodes, the elder. An actual possession was proved under this title seventy years ago, which continued till February 7, 1747, when the land in question was sold by Benjamin Caton to William Carpenter. Benjamin Caton, by the opinion of the Court, had only an estate tail in the land, and the plaintiff was the heir in tail. Benjamin Caton had been dead about ten years, and that was the only adverse possession set up against the plaintiff.
The defendants showed no title but relied on their possession, but the plaintiff showed conveyances to them under William Carpenter.
Upon this case the counsel for the defendant contended that the plaintiff had not shown a title upon which he could recover. That the uniform practice required that the plaintiff should show the title out of the Proprietary. That in this case there was not a spark of evidence to prove a grant, nor were circumstances shown which would evidence a presumption that a grant ever existed. That the doctrine had repeatedly been laid down in this court that some evidence of a grant should be produced. And that the same practice prevailed in Pennsylvania. [1] Dall. 68.
Upon the other side it was said that there might be great reason under the proprietary government for establishing the principle that a proprietary grant should be considered as an essential part of every title; but that there was certainly at present not the same reason for adhering to it. That the lapse of a great length of time had recently induced the courts to dispense with the production of all the intermediate conveyances and to be satisfied after showing the title out of the Proprietary with a title deduced under the person who last died seised. The same reason applied to the evidences of the first grants, which were equally subject to loss and decay from time. That in this state we labor under peculiar inconveniences arising from our dependence upon the good will or caprice of the officers of another state for copies of the original warrants and surveys which might be in existence and yet not accessible to the citizens of the state. That if a proprietary grant were deemed indispensable, yet it might be presumed under the circumstances of the case. A warrant and survey were recited in a deed made more than seventy years ago, and possession in fact had accompanied the title more than sixty years. That cases familiar in practice might be shown where deeds, records, and Acts of Parliament were presumed after a certain length of enjoyment. That the existence of an original grant was a question of fact and should at least be left to the jury to find or discredit as the circumstances of the case should direct their discretion. They also insisted that as the defendants claimed under the same title they should not be allowed to question so much of it as was common to both parties.
It is a first principle in ejectment, never denied, that the plaintiff is to recover upon the strength of his own title. The written title of the plaintiff begins in 1722 and is a common conveyance from one John Rhodes to one Andrew Caldwell. No patent, warrant or survey has been produced, nor is any evidence offered that any ever existed. Nay, it is not shown that any attempts have been made to discover such original papers. We have often said and so ruled during this circuit that it is incumbent on the plaintiff to show the title out of the Proprietary, and we see nothing in this case to exempt the plaintiff from the common rule. The recital of a warrant and survey is no evidence that they ever existed. And what we much rely on is that no search has been made after them, and we cannot presume them lost when not the least evidence is offered that they ever existed. The plaintiff relies on a possession of sixty years, but we do not consider the evidence clear of so long a possession. It may be fifty-eight years, but this will not avail him.
It is insisted also that the defendant claiming under the same title with the plaintiff shall not be allowed to take advantage of the want of a grant. But in fact the defendants do not claim under the same title. They have shown no written title. They say they rely on their possession, and we do not consider that the plaintiff can compel them to claim under a title which they disclaim. We are therefore of opinion that there is a defect in the plaintiff's title not cured by any circumstances which have appeared in evidence.
Upon this opinion the jury gave verdict for defendants.