# Greenleaf's Lessee v. Birth (31 U.S. 302)

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United States Supreme Court
31 U.S. 302
Greenleaf's Lessee v. Birth
ERROR to the circuit court of the county of Alexandria, in the district of Columbia.
This was an ejectment instituted in May 1818, by the plaintiff in error, in the circuit court of the county of Washington, for the recovery of a lot of ground in the city of Washington, number 17, square 75. The case was subsequently removed to the county of Alexandria, where the same was tried, and a verdict and judgment rendered for the defendant. The plaintiff prosecuted this writ of error.
The plaintiff in error, James Greenleaf, held in fee simple, under a patent from the state of Maryland to William Langworth, and a deed from Uriah Forrest and Benjamin Stoddert, a large number of lots and squares of ground in the city of Washington. Afterwards, on the 13th of May 1796, he conveyed by deed of indenture to Robert Morris and John Nicholson, in fee simple, certain of the said lots, which are particularly described in the said instrument. The indenture purports to convey the said lots, 'except as is hereinafter excepted;' and the exception, in a subsequent part of the same, is in the following words: 'excepting, nevertheless, out of the lots, squares, lands and tenements above mentioned, all that square marked and distinguished in the plot of the city of Washington by the number 506, and that other square lying next to and south of the said number 506, and all that other square lying next to and south of the square last aforesaid, the said three squares containing in the whole about the quantity of one hundred and sixty-nine thousand and seventy-six and three quarters square feet, be the same more or less; which it is agreed by all the parties to these presents shall be and remain the sole and separate property of the said James Greenleaf, his heirs and assigns; and excepting also all such squares, lots, lands or tenements, as were either conveyed or sold, or agreed to be conveyed, either by all or either them, the said James Greenleaf, Robert Morris and John Nicholson, or any of their agents and attorneys, to any person or persons whatsoever, at any time prior to the 10th day of July 1795.'
This deed was recorded in the city of Washington according to the provisions of the laws of Maryland.
James Greenleaf having, on the 10th of March 1798, applied to the supreme court of the state of Pennsylvania, for the benefit of the insolvent laws of that state, was discharged as an insolvent debtor by that court, on the 31st day of March 1798.
At the time of this discharge, he executed a conveyance of all his estate, real, personal and mixed, to Robert Smith, Mordecai Lewis and James Yard, their heirs and assigns, for the benefit of his creditors, agreeably to the provisions of the insolvent laws of the state of Pennsylvania.
Subsequently, in March 1800, on the application of the creditors of Mr Greenleaf, Thomas M. Willing and Joseph S. Lewis were substituted as the assignees of the insolvent; and, they also refusing to act, the court, on the 12th day of March 1804, appointed John Miller, Junior, sole assignee of the estate and effects of Mr Greenleaf; and Robert Smith and James Yard, who survived Mordecai Lewis, on the 16th March 1804, conveyed to John Miller, Junior, all the estate and effects of the insolvent, which had been vested in them by the deed executed by him at the time of his discharge.
On the 9th of February 1799, James Greenleaf applied by petition to the chancellor of the state of Maryland for the benefit of the insolvent law of that state, passed in 1798; and he was discharged on the 30th of August in the same year. As a part of the proceedings in the case, the petitioner executed a deed conveying to a trustee named by the chancellor, all his property, real and personal; and all the requirements of the laws of Maryland were complied with.
Annexed to the schedule of the property of the petitioner for the benefit of the insolvent laws of Maryland, is a statement that all the property mentioned therein had been transferred by the petitioner to assignees appointed under the insolvent laws of Pennsylvania.
On the trial of the cause in the circuit court, the plaintiff tendered two bills of exceptions.
The first bill of exceptions was as follows:
On the trial of this suit, to maintain the issue on his part joined on the first count in his declaration, the plaintiff gave in evidence to the jury, a patent from the proprietors of the state of Maryland, to William Langworth, dated 5th July 1686, in these words (stating the same), and proved that the tenement, wooden messuage, and improvements in the plaintiff's declaration mentioned, were comprehended within the bounds of the said patent, and the legal title to the said tenement, wooden messuage, and improvements, was deduced from the said patentee to plaintiff by divers mesne conveyances, and by the deed of the 20th September 1794, from Forrest and Stoddert to J. Greenleaf, mentioned in the deed of 13th May 1796; whereupon the defendant, to show a title out of the plaintiff, gave in evidence to the jury, a deed from the said James Greenleaf to Robert Morris and John Nicholson, dated 13th May 1796 (stating the same), admitted to have been executed by the said James Greenleaf, and offered no other evidence. Whereupon the plaintiff's counsel prayed the court to instruct the jury, that the said deed, unaccompanied by any other evidence, did not show such an outstanding title as was sufficient to bar the plaintiffs recovering in this suit; which instruction the court refused to give; to which refusal the plaintiff excepted, and prayed the court to sign and seal this, his bill of exceptions, which is accordingly done this 5th day of December 1829.
The second bill of exceptions stated that: on the trial of this suit, to sustain the issue on his part joined, the plaintiff gave in evidence to the jury, a patent from the proprietor of the state of Maryland (stating the same), and the legal title under the said patent is admitted by the defendant to have been vested in the plaintiff by the said patent, and by divers mesne conveyances, on the 30th day of August 1799. Whereupon, to prove a title out of the said James Greenleaf, the defendant offered in evidence to the jury, the proceedings in the case of the said James Greenleaf, and insolvent, before the chancellor of Maryland, setting out the said proceedings, and an act of the state of Maryland of 1798, ch. 64. To the admission of which proceedings of insolvency, the plaintiff by his counsel excepted, but the court overruled the said exception, and permitted the said proceedings to be read in evidence to the jury; and thereupon, on the prayer of the counsel for the defendant, the court instructed the jury that the said act of assembly, and proceedings in insolvency did show a legal title out of the plaintiff, and did preclude a recovery in this suit on the first count in the plaintiff's declaration.
The plaintiff's counsel thereupon gave in evidence to the jury, the proceedings in the case of the insolvency of the said James Greenleaf, in the commonwealth of Pennsylvania, in these words (stating the same), and the conveyances therein mentioned, not recorded in the state of Maryland, and prayed the court to instruct the jury, that under the operation of the said proceedings in Maryland and Pennsylvania, the legal title to the premises in the declaration mentioned, notwithstanding the said conveyances, was not divested from the said James Greenleaf by any thing by the defendants so as aforesaid shown; which instruction the court refused to give. To the admission of the proceedings as aforesaid before the chancellor of Maryland, and to the instruction of the court given on the prayer of the defendant, as to the effect thereof, and of the said act of assembly, and to their refusal to instruct the jury as prayed by the plaintiff's counsel, the plaintiff, by his counsel, excepted, and prayed that this, his bill of exceptions, may be sealed and enrolled, which was done accordingly.
The case was argued by Mr Coxe and Mr Jones, for the plaintiff in error; and by Mr Swann and Mr Key for the defendant.
For the plaintiff, it was contended, upon the first bill of exceptions, that a defendant in ejectment cannot protect himself under an outstanding title, with which he is in no manner connected. But if such a title could avail the defendant in this case, he was bound to show that it, was a valid and subsisting title, and covered the property in question. It was for him to show that the lot held by him was not within the exception in the deed of the 13th of May 1796, from the plaintiff in error to Morris and Nicholson. Cited 5 Peters, 457. The exception in the deed is not void upon its face. If the exception were void, the whole deed would be void. It is sufficiently certain. If the description is such as to pass an estate, it is sufficient as a reservation. The exception does not apply to the estate, but to a description of the land conveyed by the deed. There is enough in the conveyance, and in the exception, to enable any one to ascertain what was granted, and what was withheld.
As to the second bill of exceptions, it was said, that it was admitted that the title to the premises in controversy was, in August 1799, in the plaintiff in error. How had that title been divested? By the laws of Maryland all conveyances of land must be recorded in the county where the land is situated:-without being recorded they do not pass any estate. These provisions of the law apply to the proceedings under the insolvent laws of Pennsylvania, and to those before the chancellor of Maryland.
The Maryland deed has not been recorded as provided by the act of assembly; which requires that the same shall be enrolled within six months in order to make it operative. The insolvent law in its spirit, if not in its terms, requires enrolment. The deed must be acknowledged. This is the act of the insolvent. The recording is an act to be performed by the assignee; and the act relative to the recording of deeds considers this as an ordinary conveyance. It does not require it to be recorded in the court of chancery. It is not a part of the proceedings in that court. It is not executed under the inspection of the chancellor; he is only to have a certificate of its execution from the assignee.
The premises were not conveyed by the assignment executed under the insolvent laws of Pennsylvania. The description of the property was too general to pass the estate. After that assignment, Mr Greenleaf had only a resulting trust in the lots in Washington. If that assignment was not recorded in the county of Washington, as it was not; he had the legal title, subject to a claim of the assignees to a conveyance: and this interest would not pass under the assignment in Maryland. But he still held a mere naked legal estate, subject to the equity of his assignees and creditors.
It cannot be set up by the defendant, that the title to the premises is in the assignee in Pennsylvania. That title, if it ever existed, is barred by the statute of limitations.
But the plaintiff does not set up his title against any of his trustees or assignees. It is only against a mere intruder and stranger.
Mr Key and Mr Swann, contra.
The questions in the case are, 1. Whether the premises in controversy are within the exceptions in the deed to Morris and Nicholson. 2. Whether the interest of the plaintiff in error, passed under the Maryland insolvent law.
The decision of the first question turns on the point, who must prove the lot not in the exception. It is admitted that the defendant must show an outstanding title; but he is released from a part of the difficulty in establishing such a title here, as the exception is altogether void from its uncertainty; it is a fraudulent trap, intended to operate secretly on the property conveyed by the deed.
Upon the law of exceptions, cited Shep. Touch. 77; 5 Coke, 12; 4 Com. Dig. tit. Fait, E. 8; 7 Co. Lit. 47, a; 3 Johns. Rep. 370; 8 Johns. Rep. 394; 3 Wheat. 224; Bul. N. P. 110.
As to the second bill of exceptions, the counsel for the defendant contended, that the refusal of the circuit court to instruct the jury, that the proceedings under the insolvent laws of Pennsylvania and Maryland did not divest the title of Mr Greenleaf, was correct.
By the act of assembly of Maryland of 1798, chapter 64, sections 5, 15, all the proceedings under the law are to be recorded. It is contended by the plaintiff that the title did not pass under the assignment, because the deed to Mr Cranch was not recorded in the county where the property is situated. But the recording in the court of chancery is all that is necessary. The general act relative to recording of deeds does not apply to such cases. The deed was a part of the chancery proceedings; and the provision in the insolvent law relative to the registering of the proceedings, is, so far as they would be affected by the recording law, a repeal of the same. Cited 2 Har. and John. 574; 2 Har. and M'Henry, 46.
As to a mere intruder showing title out of the plaintiff, the distinction seems to be this-he cannot show an outstanding title in a third person; but he may show that the plaintiff has himself parted with the title. Cited 3 Wheat. 225, 228; 9 Wheat. 516; 2 Har. and John. 112; 5 Burr. 2484; 4 T. R. 682; 6 Mass. Rep. 239.
Mr Justice STORY delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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