D

DEED.

6. And it must also appear that the
party found in possession enter-
ed without right; for if his entry
were congeable, or his posses-
sion lawful, his entry and pos-
session will be considered as
limited by his right.
lb.

E

EJECTMENT.

1. Possession of land by a party,
claiming it as his own in fee, is
prima facie evidence of his
ownership and seisin of the
inheritance. Ricard v. Wil-
liams,
59. 105
2. But possession alone, unexplain-
ed by collateral circumstances,
which show the quality and ex-
tent of the interest claimed, evi-
dences no more than the mere
fact of present occupation by
right. Id.

105
3. But if the party be in under ti-
tle, and by mistake of law sup-
himself possessed of a less
poses
estate than really belongs to
him, the law will remit him to
his full right and title. Id. 106
4. It is a general rule that a dis-
seisor cannot qualify his own
wrong, but must be considered
as a disseisor in fee. Id. 107
5. But this rule is introduced only
for the benefit of the disseisee,
for the sake of electing his re-
medy.

16.

ESTOPPEL.

EVIDENCE.

1. Presumptions of a grant, ari-
sing from the lapse of time, are
applied to corporeal, as well as
incorporeal hereditaments. Pi-
card v. Williams, 59. 109
2. They may be encountered and
rebutted by contrary presump-
tions, and can never arise where
all the circumstances are per-
fectly consistent with the non-
existence of a grant. Id. 109
3. A fortiori, they cannot arise
where the claim is of such a na-
ture as is at variance with the
supposition of a grant. Id. 110
4. In general, the presumption of

a grant is limited to periods ana-
logous to those of the statute of
limitations, in cases where the
statute does not apply. Id. 110
5. Where the statute applies, the
presumption is not generally re-
sorted to but if the circum-
stances of the case are very co-
gent, and require it, a grant may
be presumed within a period
short of the statute. Id. 110
6. Under the laws of Massachusetts

and Connecticut, the power of
an administrator to sell the real
estate of his intestate, under an
order of the Court of Probates,
must be exercised within a rea-
sonable time after the death of
the intestate. Id.
115

7. The case of such a power to sell
is not within the purview of the
statute of limitations of Connec-
ticut. which limits all rights of
entry and action to fifteen years
after the title accrues; but the
reasonable time, within which
the power must be exercised, is
to be fixed by analogy to that
statute. Id.
117
8. One heir, notwithstanding his
entry as heir, may afterwards,
by disseisin of his co-heirs, ac-
quire an exclusive possession,
upon which the statute will run
both against his co-heirs and
against creditors. Id. 120
9. An heir may claim an estate by
title distinct or paramount to that
of his ancestor; and if his pos-
session is exclusive under such
claim, against all other persons,
until the statute period has run,
he is entitled to the protection of
the bar. Id.
10. A person having an interest only
in the question, and not in the
event of the suit, is a competent
witness. Evans v. Eaton, 356.
421

121

11. In general, the liability of a wit-

ness to a like action, or his
standing in the same predica-
ment with the party sued, if the
verdict cannot be given in evi-
dence for or against him, is an
interest in the question, and
does not exclude him. Id. 424
12. Where a deposition has once
been read in evidence without
opposition, it cannot be after-
wards objected to as being ir-
regularly taken. Evans v. Het-
tich,
13. It is no objection to the compe-
tency or credibility of a witness,
that he is subject to fits of de-
rangement, if he is sane at the
time of giving his testimony.

id.

453

470

14. The doctrine that if witnesses
concur in proof of a material
fact, they ought to be believed
in respect to that fact, whatever
may be the other contradictions
in their testimony, ought to be
received under many qualifica-
tions and with great caution.
The Santissima Trinidad, 338
15. Application of the maxim, falsus
in uno, falsus in omnibus. Id.

339
16. The decisions of the board of
Commissioners under the acts of
Congress providing for the in-
demnification of claimants to
public lands in the Mississippi
Territory, (commonly called
the Yazoo lands,) are conclu-
sive between the parties in all
cases within the jurisdiction of
the Commissioners. Brown v.
Jackson,
218. 237
17. This determination reconciled
with that of the Court in Brown
v. Gilman, ante, vol. IV. p. 255.

Id.
240
18. The practice of the State Courts

cannot sanction the admission of
depositions in the Courts of the
United States, which are not
taken according to the laws of
the United States, and the rules
of their Courts. Evans v. En-
ton,

F

FRAUD.

426

creditor, to induce the prefer-
ence, will avoid the deed which
gives it. Id.

577

577
3. It is not necessary, to the va-
lidity of such a deed, that the
creditors, for whose benefit it is
made, should have notice of
the execution of the deed, pro-
vided they afterwards assent to
the provisions made for their
b: nefit. Id.
4. Nr it is any objection, to the
validity of the deed, that it was
made by the grantor, in the
hope and expectation, that it
would prevent a prosecution for
a felony, connected with his
transactions with his creditors;
if the favoured creditors have
done nothing to excite that hope,
and the deed was not made with
their concurrence, and with a
knowledge of the motives which
influenced the grantor, or was
not afterwards assented to by
them under some express or
implied engagement to suppress
the prosecution. Id.
5. Nor will it be invalidated by the
fact, that the trustee, to whom
the conveyance is made, being
the father-in-law of the debtor,
received the conveyance with a
view of concealing the felony,
and preventing a prosecution of
his son-in-law, provided it was
not executed wth the concur-
rence of the cestui que trusts,
and a knowledge on their part
of the motives which influenced
the trustee, or was not after-
wards assented to by them un-
der some engagement to sup-
press the prosecution. Id. 579

I

INSURANCE.

577

Under a policy containing the
following clause: "And lastly,

it is agreed, that if the above
vessel, upon a regular survey,
should be thereby declared un-
seaworthy, by reason of her be-
ing unsound or rotten, then the
assurers shall not be bound to
pay their subscription on this
policy," and it was found by the
jury that the vessel was sea-
worthy at the time of the com-
mencement of the risk, and when
she sailed on the voyage insu-
red: Held, that proof, by a regu-
lar survey, of unsoundness at
any subsequent period of the
voyage, discharged the under-
writers. Dorr v. The Pacific
Ins. Co.
581
2. An exemplification of a condem-
nation of the vessel in a foreign
Court of Vice Admiralty, reci-
ting the certificate of surveyors,
that the vessel was unworthy of
being repaired, and unsafe and
unfit ever to go to sea again, and
produced in evidence by the in-
sured to prove the loss, is "a
regular survey," in the lan-
guage of the above clause. Id.

581
3. But the survey must correspond
with the contract, and if the
vessel be declared unseaworthy
for any additional cause, besides
being unsound or rotten," it
is not conclusive evidence of un-
seaworthiness Id.
581

J

JUDGMENT.

See EVIDENCE, 16. 17.
PRIZE, 11, 12. 17.
JURISDICTION.

A writ of errror lies from this
Court, upon a judgment of the
Circuit Courts awarding a pe-
remptory mandamus. The Co-

2. Presumption of grants, how far
limited to periods analogous to
those of the statute of limita-
tions. Il.
110
3. The reasonable time, within
which the power of the admi-
nistrator to sell real estate for
the payment of debts, under the
local law of Massachusetts and
Connecticut, must be exercised,
is to be fixed by analogy to the
statute of limitations. Id. 117
4. One heir may. by disseisin of his

co-heirs, acquire an exclusive
possession, upon which the sta-
tute will run, both against his
co heirs, and against creditors.
Id.

LOCAL LAW.

120

1. A warrant and survey authorize
the proprietor of them to de-
mand the legal title, but do not,
in themselves, constitute a legal
title: until the consummation
of the title by a grant, the per-

1

son who acquires an equity
holds a right, subject to exami-
nation. Miller v Kerr,
2. Where the register of the land
office of Virginia had, by mis-
take, given a warrant for milita-
ry services in the Continental
line, on a certificate authorizing.
a warrant for services in the
State line, and in recording it
pursued the certificate, and not
the warrant, it was held that this
Court could not support a prior
entry and survey, on a warrant
thus issued by mistake, against
a senior patent.
3. Where the plaintiffs seek to set
aside the legal title, because
they have the superior equity,
it is consistent with the princi-
ples of the Court to rebut this
equity by any circumstances
which may impair it and the
legal title cannot be made to
yield to an equity founded on
the mistake of a ministerial offi-
cer. ld.
6

id.

1

4. Where platts are returned and
grants made, without an actual
survey, the rule of construction
which has been adopted, in or-
der to settle the conflicting
claims of different parties, is,
that the most material, and most
certain calls shall control those
which are less material and less
certain. Newsom v. Pryor,
5. A call for a natural object, as a
river, a known stream, a spring,
or even a marked line, shall
control both course and distance.
Id.
10

6. There is no distinction between

a call to stop at a river, and a
call to cross a river. Id. 12
7. Where a grant was made for

5,000 acres of land," lying on
both sides of the two main forks

of Duck river, beginning, &c.
and running thence west 894
poles, to a white oak, thence
south 894 poles, to a stake
crossing the river, thence east
894 poles. to a stake, thence
north 894 poles, to the begin-
ning, crossing the south fork ;"
it was held, that it must be sur-
veyed so as to extend the second
line of the grant such a distance
on the course called for as would
cross Duck river to the opposite
bank. Id.
8. Under the laws of Massachu-
setts and Connecticut, the power
of the administrator to sell the
real estate for the payment of
debts must be exercised within
areasonable time, which is to be
fixed by analogy to the statute of
limitations. Ricard v. Williams,
59. 115

12

9. The patent issued on a military
warrant under the law of Virgi-
Dia, is prima facie evidence that
every prerequisite of the law
was complied with. Bouldin v.
Massie,
122. 148
10. The loss of a paper must be es-
tablished before its contents can
De proved but where the pa-
tent issues upon an assignment
of the warrant, and the legal ti-
tle is thus consummated, the as-
signment itself being no longer a
paper essential to that title, the
same degree of proof of its exist-
ence cannot be required as if
it were relied on as composing
part of the title. Id.
11. Where there is a strong degree
of probability that the assign-
ment has been lost or destroyed,
through accident, its non-pro-
duction, by the party claiming
under it, ought not to operate
against him, so as to defeat his
legal title. Id.

154

155

15.

161

The following entry was pro-
nounced under the circumstan-
ces, to be void for uncertainty:
"7th of August, 1787. Capt.
Ferdinand O'Neal enters 1000
acres, &c. on the waters of the
Ohio, beginning at the northwest
corner of Stephen T. Mason's en-
try, No. 654. thence with his
line east 400 poles, north 400
poles, west 400 poles, south 400
poles." The entry of Stephen T.
Mason referred to, being as fol-
lows: "7th of August, 1787.
Stephen T. Mason, Assignee,
&c. enters 100 acres of land on
part of a military warrant, No.
2012, on the waters of the Ohio,
beginning 640 poles north from
the mouth of the third creek run-
ning into the Obio, above the
mouth of the Little Miami Ki-
ver; thence running west 160
poles; north 400 poles; east
400 poles; thence to the be-
ginning." Id.

159

16. The Ohio and Little Miami Ri-
vers are identified and notorious
objects. H.
161
17. But the third creck above the