# Lessor of Fisher v. Cockerell

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## Dissenting Opinion

    Baldwin
United States Supreme Court
30 U.S. 248
Lessor of Fisher v. Cockerell
THIS was a writ of Error to the court of appeals of the state of Kentucky; to review a decision of that court, affirming a judgment of the Union county circuit court of that state, involving the validity of a law of the state of Kentucky, called the special occupying claimant law.
The action of ejectment was commenced in the circuit court of Union county, on the 20th of May 1822. At September term 1822, William Cockerell, the defendant, appeared, and at his instance, as well as of the plaintiff, an order of survey was passed, requiring the surveyor to lay off the land in controversy, as either party should require.
The plaintiff in the ejectment, after the filing of his declaration, at September term 1822, had leave to withdraw the title papers filed by him, for the purpose of the survey, as was presumed.
At June term 1823 a verdict and judgment was rendered for the plaintiff on the demise of John Fisher, the plaintiff in error. On the other counts in the declaration, which stated other demises, a verdict and judgment was entered for the defendant.
The record specifies the written evidence in the cause as follows:
'The following patent was the only paper read in evidence in this cause. The following deeds, to wit, John Fisher to Frederick Ridgeley, and Frederick Ridgeley and wife to James Morrison; were filed among the papers but rejected by the court, and so marked by the court, to wit.' The patent and deeds, so referred to, are then set out in the transcript.
The patent purports to have been issued in the usual form, under the seal of the commonwealth of Kentucky, and the hand of the governor, duly countersigned by the secretary of state, on the 15th of June 1802; and 'that by virtue and in consideration of three military warrants, No. 1115, 1125, and 1153, and entered the 21st of July 1784, there is granted by the said commonwealth unto John Fisher (habendum to him and his heirs forever), a certain tract or parcel of land containing six hundred acres, by survey bearing date the 23d of May 1785, lying and being in the district set apart for the officers and soldiers of the Virginia continental line on the Ohio,' &c. The metes and bounds of the granted lands are then specially set out in the patent.
The two deeds referred to having been rejected as evidence, for some reason not stated, but to be inferred from the informality of their authentication, and in consequence the issue on the two counts which those documents were adduced to support having been found for the defendant, it is unnecessary to state their contents. The recovery was upon the title of the original patentee, John Fisher, alone.
The court then proceeded, on the motion of defendant, to appoint commissioners (in virtue and execution of the state law), 'to go on the land from which the defendant has been evicted in this action, and make assessment of what damage and waste the defendant has committed since the 20th of May 1822 (when the suit was commenced), and the rent and profit accruing since the 17th of June 1822 (the day of appearance to the action), and the value of improvements made on said land, and of the value of said land at the time of such assessment, regarding it as if such improvement had never been made.'
The report of the commissioners was returned to March term 1824, in which they say 'that there has been no injury or waste done upon the premises by the occupant since the 20th of June 1823; and they assess the improvements made on the premises as follows:'
Clearing and enclosing forty-six acres of land, at twenty
dollars per acre, - - - - - - - - - - - - - - - - - - - - - 920
Dwelling house and various farm buildings, - - - - - - - 430
1,350
For this sum the court gave judgment against the plaintiff; who moved to quash the said report, and reserved a bill of exception to the refusal of the court so to quash.
Upon this last judgment the plaintiff sued out a writ of error to the court of appeals in Kentucky, and made a special assignment of the errors complained of, pursuant to the law and practice of that court. The error assigned was 'the plaintiff deriving title from Virginia, the act or acts of the state of Kentucky on which this court has founded its opinion, is repugnant as to the compact with Virginia; therefore void as to the case before the court, being against the constitution of the United States.'
The court of appeals affirmed the judgment of the circuit court of Union county, and the plaintiff prosecuted this writ of error.
Mr Wickliffe, for the defendant in error, moved to dismiss the writ of error, for want of jurisdiction in this court.
He contended that the case presented by the record did not give the court jurisdiction under the twenty-fifth section of the judicial act of 1789. It is a writ of error to a state court, and there is nothing on the face of the proceedings to show that the construction of an act of congress, or the obligation of a contract, was brought into question in that court.
The record does not show the particular point decided by the state court; and this court cannot look at the reasoning of that court in giving its decision to ascertain the same. The jurisdiction must be determined by the record. Inglee vs. Cooledge, 2 Wheaton, 363. It is denied that the title papers are by the law of Kentucky required to be recorded in an action at law. This requisition is confined to proceedings in chancery.
The question in the state court was whether a law of Kentucky of 1820 or 1823, was in force. The act of 1820 was repealed before this suit was brought, and no judgment of the state court was given whether the act of 1820 was void or not. Cited 1 Bibb, 442. 2 Bibb, 236, 292, 331. 3 Mon. Rep. 202, 128. 3 Mar. Rep. 431.
Mr Jones for the plaintiff in error.
The patent shows the title of the plaintiff was derived from the state of Virginia, and the patent is properly on the record. It is the duty of the cleik, and is so made by law, to record all the title papers introduced in evidence; and under this requisition of the law the patent is made part of the record. Cited as to jurisdiction, Craig et al. vs. The state of Missouri, 4 Peters, 426.
The title of the plaintiff being shown by the patent to rest on a patent from Virginia, his rights to protection under the compact are manifest; and he is entitled to the benefit of the decision of this court in Green vs. Biddle, 8 Wheaton, 1.
Mr Chief Justice MARSHALL 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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