Shilknecht v. Eastburn's Heirs , 2 G. & J. 114 ( 1830 )

Martin, J.

delivered the opinion of the Court.

In the argument of this cause, several points have been brought into view by the counsel for the appellant, which cannot be noticed in the decision. The ejectment was tried in 1826, of course, is embraced by the act of 1825, ch. 117, and this Court can only review such questions of law, as were acted on by the Court below. In the first bill of exceptions, the only question decided by the Court below, was, that the deed from Young to Scott, made in 1803, under the evidence offered, conveyed no title to the said Scott; and in the second bill of exceptions, the Court decided upon the question, whether the jury might presume from the evidence, that the sale reported by the trustee, under the decree of Chancery, was finally ratified and confirmed.

By the recitals in the deed of 1803, it appears, that French and Young were appointed by the Court of Chancery, trustees, to sell certain real estate of John, Robert, and William Cary — that the said trustees did expose to sale the said real estate, and that George Scott became the purchaser of part, and has paid the purchase money. It then states that French was dead, and that Young, in virtue of the decree of the Court of Chancery, did convey to the said Scott, his heirs and assigns, for ever, lots No. 1, 2, and 5, being part of a tract of land called “the resurvey on Panmure, and Zero,” &e.

This deed clearly shews on the face of it, the character in which French and Young acted; and to give it legal effect and operation as a deed under the decrece of the Court of Chancery, a copy of the record ought to have been produced, to shew the trust reposed in them, and their legal performance of it. Although this deed could not have legal operation as a deed under the decree of Chancery, without producing a record of the proceedings, it shall be taken most strongly against the grantor, and if he had a legal interest in the land, that could be transferred by an ordinary deed of bargain and sale, the Court ought to give it effect as such.

On the 8th of August, 1791, the legal estate in both Panmure, and the Resurvey on Panmure, was vested in John, Robert, and William Cary, and by a deed of that day, they conveyed to French and Young, as joint tenants, in fee, the tracts of land called Zero, and Panmure, containing 375 acres, and part of Palentine, in trust, &c. By this deed, the legal estate in Panmure was vested in French and Young, as trustees, in joint tendancy. Although they were trustees, yet the legal estate vested in them jointly, and either could at law, convey his undivided moiety in the land. The land having been sold by French and Young, if French died, Young could convey the whole interest in the land to the purchaser. If French was alive, still as Young was seized as joint tenant in fee, of an undivided, moiety with French, by his separate deed of 1803, all Young’s legal estate passed to Scott, the grantee.

The land in dispute in this ejectment, is lot No. 1, part of the Resurvey on Panmure ; and to make the deed of 1803 available to the plaintiff, it must convey an interest not only in Panmure, but in lot No. 1, part of the Resurvey on Pan~ mure. Whether it has this effect, must depend entirely on the legal operation of the deed of 1791.

This deed conveys Panmure, containing 375 acres, without giving any description of the land intended to be conveyed, by courses and distances expressed in the deed. If there is nothing to aid the legal operation of this deed, it can only convey Panmure; for certainly, a deed for one tract of land, cannot per se, convey another tract. No testimony has been introduced to shew, that Panmure, and The Resurvey on Panmure, are the same tract, but called by different names, and as before observed, no description of the land intended to be conveyed, by courses and distances, is given in the deed, to extend the land beyond that conveyed by name. The number of acres in the deed, being more than Panmure contains, cannot alone effect that object, and the reference to the patents, in legal intendment, can only relate to the patents of Zero, and Panmure.

It has been supposed, the location of the deed of 1791, on the plots, not being counter-located by the defendants, is an admission by them, that Panmure, and The Resurvey on Panmure, are but one tract of land. A location of a tract of land, by one party in ejectment not counter-located by the other, admits the location to be correct — that is, that the land is correctly described on the plots; but it does not admit the title to the land thus located — this must still be proved. To recover in ejectment, when defence is taken on warrant, the plaintiff must shew the true position of the land by location, and also, that he has a legal title to the land thus located. The admission in this case to the greatest extent, is only, that the deed of 1791, is correctly laid down by the plaintiff, on the plots; but still requires him to shew that this deed, by its legal operation, conveyed the land thus located. The deed, from any thing that appears in this record, could only convey io the grantees, Panmure, according to the lines, metes, and bounds, of that land, and as Young’s title was derived from that source alone, his deed of 1803, could transfer no title to the land in controversy in this ejectment, that being part of The Resurvey on Panmure, and not included within the lines of the original tract. We concur in opinion with the Court below, that the deed of 1803, conveyed no title, that could avail the plaintiff in this ejectment.

The Court having decided against the plaintiff, as to the operation of the deed of 1803, under the evidence then offered, he, in addition to that contained in the first bill of exceptions, produced a copy of the record of the proceedings in Chancery — a petition to the Chancellor, by Ariana French, and the order of the Chancellor thereon. He then prayed the opinion and direction of the Court to the jury, that they may, and ought to presume, from the facts given in evidence in the cause, that the return of sales, as reported by the trustees in the proceedings in Chancery, was finally ratified and confirmed. The Court were divided in opinion, and did not grant the direction, as prayed for by the plaintiff.

It appears from the record of the proceedings in Chancery, that a petition was filed by John, Robert, and William Carey, and French, and Young, praying the Chancellor to appoint French and Young trustees, to sell certain real estate, that had been conveyed to them by the said Carey’s in trust. That a decree passed accordingly. That French and Young, as trustees under this decree, sold the said real estate, and George Scott became the purchaser of part of the same. A report of this sale was returned to the Chancellor, who, on the 31st of October, 1795, passed an order of confirmation, nisi, &c., but it does not appear from the record, that the report of the sale was finally ratified and confirmed.

The law is well established, that facts to aid a title, may, in some cases be presumed, and the question now presented to us is, whether the evidence in this cause was sufficient to justify the jury in presuming the report of the trustees, was finally ratified and confirmed.

The decree was passed in the year 1795; the sale under that decree; the report of the trustee was returned; and the order of confirmation, nisi, &c. all in that year. The deed from Young to Scott, in 1803, and this Ejectment, was tried in 1826. At least thirty years elapsed between the order nisi and the trial of the cause, and twenty-two years between the deed to Scott and the trial.

The decree in express terms directs, that no deed shall be given until the report of sales shall be finally ratified and confirmed, and the purchase money paid. It is not to be intended the trustee disregarded this injunction. He had no interest in violating it, and the law will always lean to the presumption that a trustee has faithfully executed his trust. Here is a deed under the decree of Chancery, which ought not to have been made, unless the report had been finally confirmed; and upon the hypothesis that the report was finally confirmed, is the only fair way to account for it. This presumption is strongly sustained by the other evidence in the cause. The petition of Ariana French, although not of itself sufficient to create the presumption, may be called in aid of other evidence, to effect that purpose. This petition was fiíed in 1803’, the same year in which the deed was executed, and but a few years after the order of confirmation, nisi. It was almost a cotemporaneous act with the deed. This petition states the decree of the Chancellor; the report of sales made under that decree; that the report had been finally ratified and confirmed, and that Scott, the purchaser, was ready to pay the purchase money. It further states, that Archibald Orme was entitled to part of the purchase money, the proceeds of the sale under the decree of Chancery, and prays the petitioner (from the facts stated in her petition) may be substituted in the place of Orme, and that the trustee may be directed to pay her claim. The Chancellor, in his order, says he has considered the petition with the vouchers and proofs therewith filed, and directs the petitioner to be substituted in the place of Orme. It may be true that this substitution might have been directed, although no proceedings had taken place to- sell the land; but when the petitioner states the proceedings as the foundation of her claim, and the Chancellor declares he had considered the petition with the vouchers and proof therewith filed, is it not fair to conclude he was satisfied of the truth of the facts as stated in the petition? It was then a recent transaction, and in his own Court.

In 1804, an action of Ejectment was instituted by Scott, the grantee in the deed of 1803, against Robinson Eastburn, (who was originally the defendant in this Ejectment) to recover the same land now claimed. This case was tried in 1808, when there was a verdict for the plaintiff, judgment, and a writ of possession. In both Ejectments, the defence was taken on warrants, and the defendant took defence, not for all the land claimed, but only for so much thereof as was included within the lines of other tracts. The possession of a great part of the land intended to be conveyed by the deed of 1803, has, from that time, been in the grantee named in the deed, and those who claim under him, and only part has been disputed, as being within the lines of other tracts.

When we view the whole evidence, the presumption appears irresistible, that all was done in Chancery that was necessary to give legal effect to this deed under the decree. This was a judicial sale, the purchase money bona fide paid, and every fair legal presumption ought to be allowed to sustain it.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.