A executed a delivered it to C, the act and deed it was further established by the act of the clerk of the court, who officially certified the alteration of the date, as a proceeding in court by the consent of the court and the parties; which, when done, admitted the deed to be recorded. 6. That it was the official act of the clerk could not be doubted, because it was made under the eye of the court, and with their consent, and endorsed on the original deed. 7. That it was endorsed at the request of the grantee, for his benefit, and to explain the date of the alienation fine. 8. That the memorandum, after so great a lapse of time, was the best evidence of the fact, and ought therefore to have been admitted in evidence as the act of the clerk in open court, with the consent of the court and the parties to the deed. They referred to Gilb. L. E. 108. Markham vs. Gonaston, Cro. Eliz. 626. Cospey vs. TurRussell's Lessee Hoddy's Lessee vs. Har ner, Ibid 800. The State vs. Oden (a). ryman, S Harr. & M'Hen. 581. Wood vs. Owings & On the second bill of exceptions they contended, 1. That the land was not liable to escheat, there being heirs of Scarth; and they referred to the several acts of confiscation of October 1780, ch. 45, ch. 49, and ch. 51. 2. That this was not a case within the warranty of the act of November 1781, ch. 20, s. 8. . They cited 1 Blk. Com. 91. 3. That the land was liable to confiscation, and the title to it could only be obtained in a particular manner-by sale and deed; and that the land office had no power or authority over confiscated lands. They referred to acts of 1784, ch. 81; 1785, ch. 66, ch. 88; 1788, ch. 49; 1789, ch. 47; 1791, ch. 77, s. 8; 1792, ch. 81, s. 6; 1793, ch. 64; 1795, ch. 6; 1796, ch. 12; 1799, ch. 80, s. 6; and 1800, ch. 62, s. 6. 4. That the patent was made without au (a) In the case of The State vs. Oden, in the general court at bond to B, and May term 1800, in debt on bond, the defendant pleaded non est to be delivered to factum, and that the bond was delivered as an escrow. At the trial B-Held not to be the plaintiff offered to prove, that J. S. was indebted to the state, of A, it not hav- and that the defendant was indebted to J. S; that it was agreed ing been received that J S. should give up to the defendant his bond, and that the by B. defendant should execute his bond to the state for the sum which he owed to J. S.-which was done That the defendant's bond was presented to the state's agent, but which was refused to be received in discharge of the debt due to the state by J. S, and upon which bond this suit was brought in the name of the state for the use of J S. The GENERAL COURT refused to direct the jury that the bond was the deed of the defendant. thority, and was void. They cited Kelly's Lessee vs. Greenfield, 2 Harr. & M Hen. 121. On the third, fourth, and fifth bills of exceptions, they contended, 1. That this land was held under a judgment of condemnation on attachment. They referred to the act of 1715, ch, 40. Stat. 5 Gee. II. ch. 7. Plater's Lessee vs. Hepburn, S Harr. & M'Hen. 434. Davidson's Lessee vs. Beatty, Ibid. 594. The act of 1797, ch. 119. 2. That if it could not be legally held under that judgment, it was embraced by the releasing act of 1797, ch. 119, unless it came within one of the provisos. S. That the second proviso could not aid the appellee, for two reasons-1st. because Norwood was not an informer against confiscated lands; and 2d. because the rights of informers extended not to the land, but to a certain part of the price. They referred to the acts of 1785, ch. 88, s. 3; 1788, ch. 49, s. 2; 1789, ch. 47, s. 20; 1790, ch. 65; 1791, ch. 77, ch. 90; 1792, ch. 81; 1794, ch. 40, s. 7; & 1800, ch. 62. 4. That the only remaining question was, whether Norwood came within the first proviso; that is, whether at the time of passing this act, (21st January 1798,) he had a right in or to this land? They contended that the grant to Norwood could have no relation to the date of the escheat warrant, which had illegally issued; nor to the date of the certificate of survey, which was equally illegal, as there could be no relation to an illegal or tortious inception of title. They cited 3 Coke, 286, 29. a. 2 Ventris, 200. Townsend vs. Ash, 3 Atk. 340. Co. Litt. 310, b. 3 Shep. Abr. 150, 151, 152. Howard vs. Cromwell, 4 harr, & M.Hen. 325, and 1 Harr. & Johns. 115. Peter vs. Mains, 4 Harr. & M Hen. 423. Hammond vs. Norris, in the General Court, (see post.) On the sixth and eighth bills of exceptions, they contended, 1. That the confiscation act excepted debts, and, by an equitable construction, it excepted all the incidents to and securities for debts. They cited Pow. on Mort. 15, 15, 16, 178, 179. 2. That if mortgages were affected by the act of confiscation, still the treaty of peace protected them, and operated as a repeal pro tanto. They referred to the treaty of peace of Sd of September 1783, Art. 4, 5, 6. Ware vs. Hylton, 3 Dall. 199. Clerke vs. Harwood, Ibid 342; and the treaty of the 19th of November 1794, Art. 9. 1807. Owings VS Norwood On the seventh bill of exceptions they contended, that the nature and length of the possession of the appellant, and those under whom he claimed, to the exclusion of all others, and there being no demand of the mortgage debt, were sufficient for the court to have directed the jury to presume the mortgage debt had been satisfied. On the ninth and tenth bills of exceptions, they cited Warren vs. Greenville, 2 Stra. 1129. Bridges vs. The Duke of Chandos, 2 Burr. 1065. Anonymous Case, 1 Ventris, 257. The Mayor of Hull vs. Horner, Cowp. 102. Eldridge vs. Knott, Ibid 214. Cocksedge vs. Fanshaw, Dougl. 119. 12 Coke, 5. The act of 1797, ch. 119. Carroll et al. Lessee, vs. Norwood, 4 Harr. & M Hen. 287. Ridgely, Mason, and Johnson, (Attorney-General,) for the appellee, in their arguments on the first bill of exceptions, insisted, 1. That the acknowledgment of the deed from Brown to Gadsby was no proof that there was a delivery before that time. 2. That the memorandums taken together, prove that there was a delivery at that time. They cited Smartle vs. Williams, 1 Salk. 280. Markham vs. Gonaston, Cro. Eliz. 626, 627. On the second bill of exceptions, they contended, 1. That the land was liable to escheat, and that the escheat grant was prima facie evidence of an escheat. That if Scarth, or his daughter, died after the 4th of July 1776, and before the act of confiscation, then the land escheated to the state, as the next heir being an alien could not inherit; and that it was incumbent on the appellant, who claimed against the escheat grant, to prove that this did not happen. 2. That admitting the land to have been liable to confiscation, and not escheat, still the grant ought to pass it; because, at the time of the grant, the price of escheat and confiscated lands were the same. 3. That at the time of making the grant, the chancellor had authority to grant confiscated lands under the acts of 1793, ch. 64, and 1795, ch. 6. 4. That he had general authority to judge and decide in disputes respecting the title of confiscated lands, and that he did so on Hammond's caveat; and his decision ought to be final under the acts of 1785, ch. 66; April 1787, ch. SO, s. 4, and 1789, ch. 35, s. 4. 5. That the grant was protected by the warranty clause in the act of November s. 3; and April 1781, ch. 20, s. 8. They referred to 2 Blk. Com. 249. On the third bill of exceptions they referred to the acts of 1715, ch. 40, s. 7, and 1797, ch. 119. Rex vs. Deane, 2 Show. 85. Taylor vs. Cole, S T. R. 296. Davidson's Lessee vs. Beatty, 3 Harr. & M Hen. 594. On the fourth bill of exceptions they referred to the acts of 1797, ch. 119; November 1781, ch. 20, s. 6, 8; and 1789, ch. S5, 8. 5. On the seventh bill of exceptions they contended, that the mortgage from Rawlings to Scarth. by lapse of time and the long possession of the mortgagee, had become an absolute estate, and the equity of redemption was gone. They cited 1 Fonbl. 323. 2 Fonbl. 269. Cook vs. Arnham, 3 P. Wms. 288, (note). On the eighth bill of exceptions they referred to the acts of April 1782, ch. 60, s. 7, 8; and 1784, ch. 81. Strit horst vs. Græme, 2 W. Blk. Rep. 723. On the ninth and tenth bills of exceptions they cited Denn vs. Barnard, 2 Coup. 597. Davidson's Lessee vs. Beatty, 3 Harr. & M Hen. 594. Curia ad. vult. THE COURT OF APPEALS, at this term, affirmed the judg ment of the General Court, concurring in the opinions expressed in all the bills of exceptions. The appellant considered this was a case arising under a treaty, within the meaning of the constitution of the United States, and that the supreme court had appellate jurisdicti on therein, he therefore sued out a writ of error under the provisions of the 25th section of the act of congress, entitled, "An act to establish the judicial courts of the United 1807. Owings VS Norwood States," passed the 24th of September 1789; but the supreme court, considering it not to be such a case, dismissed the writ of error. 5 Cranch, 344. DECEMBER. No adversary possession of land HALL VS. GITTINGS Junr's. Lessee. GITTINGS Junr's. Lessee vs. HALL. CROSS APPEALS from the General Court. This was an can avail against action of ejectment for a tract of land called Friendship the state. cheated to the were by the acts Lands which es- Compleated, lying in Baltimore county. The defendant Lord Proprietary, (Hall) in the court below, took defence on warrant for a of October 1780, tract of land called Tolly's Purchase, granted under an escheat warrant on Cullen's Lot, and part of Cullen's Addition. ch. 45, and ch. 49, confiscated to and al entry. An adversary 1. At the trial at May term 1802, the defendant offered possession com mencing against to prove, that George Holland, the patentee of Holland's. the Proprietary, ceased to operate Park, died before the year 1760, intestate, and without is against the state after the act of sue, not having conveyed that land, and leaving no heirs That in the year 1774, Walter Tol confiscation. The net of Octo- capable of inheriting. ber 1780, ch 49, vested the seizin and possession of all 'ands liable to confiscation in the commissioners, on behalf of the state, and divested the possession of all other persons. If two persons are in possession of land, the one by right, and the other by wrong, it is the posses sion of him who is in by right. If land liable to escheat is included in a survey and giant under an escheat war ant on another tract of land, such grant will operate to pass a good title to the and so ine uded, if there has been posses sion and payment of quit rents for one than 20 years before the set of confiscation. Land not liable to escheat at the time it was included in a grant on a survey made in virtue of an escheat warrant on another tract, but which site wards. Lecane escheat, will not pass under such grant, and the state is not estopped from granting it to any cher person. An escheat grant relates to, and operates to ass the whole of the original tract escheated. If there are two de-criptions of the land conveyed, the cue by rame, an the other by metes and bounds, &e the grant will ope ate to pass the land according to that description which is most beneficial to the granice If the testimony of a witness is intended to be objected to because of his holding adjoining lands, &c. his interest must be located on the plots. The deca.ations of a former holder of the adjoining lands, as to the bounds of the land in dispute. admitted in evidence, it not appearing by the plots that he was interested in establishing the truth of the facts related by him. Whether or not a will was legally exceuted and proved, are matters of fact for the jury; and where the will was made in 1683, they may and ought, from the length of ume elapsed, to presume that it bad been duly executed and proved. The jury were directed on certain evidence of title and descent, that if true, then land which had been granted as scheat land was not escheatable, aitho for upwards of 100 years no per on ever claimed the land under the original grantee. In ejectment the plaintiff must recover on the strength of his own title. The defendant may pre vent his recovery, by showing a title in hi uself, or a c ́ear subsisting til in a stranger. Possession is presumptive vicdnce of night, and the defendant cnot be deprived of his possession by any person but the rightful owner of the land, i. e. he who hath the jus possessionis. A clear subsisting title, outstanding in another, means such a title as the stranger could recover on in ejectment against either of the contending parties. Land is not escheatable as long as there are heirs of the original tenant or grantee, E-cheat is that possibility of interest which reverts to or devolves on the Lord upon the failure of heirs of the original grantee, and he cannot grant the land again until that event happens; and if he does his grant will pass nothing, An escheat grant is prima facie evi·lence of title; but being only a presumption of right in the Proprietary, it only exists until the contrary is proved. Nothing but 20 years adversary possession can defeat a title acquired under a legal grant, The jury were direct d, that if "hey believed certain facts, then the presumption of law was, that G. H, for whom the land in dispute was surveyed on the 14th of October 16-3, and granted to lum the 10th of August 1664, was seized thereof at the time of his will dated the 19th of February 1663, and his death in 1685, and that the land passed to his deviste under the residuary clause in his will. |