OCTOBER TERM, 1769.

Lib. D. D. No. 16. fol. 196.

#### James Hutchins’s Lessee *against*Mathew Erickson.

EJECTMENT for a tract of land called *Isaac’s*Chance„ in *^ueen Anne’s*County, containing 100 acres. The de» fendant took defence for *Erickson’s*Chance, which tract of land included the whole of *Isaac’s Chance.*

At the trial of this cause at the Assises held for *Talbot*County, in September, 1769, it appeared from the special verdict found, that the Lord Proprietary, on the 10th. of August, 1684, granted *Isaac’s Chance*to one *Isaac Winchester;*that about the month of August, 1758, the plaintiff entered into the land, and was thereof actually possessed, and so thereof continued, and was quietly and peaceably possessed, until on or about the 24th of December, 1764, when the defendant with force and arms did enter, and forcibly and violently expel the plaintiff, and hath ever since held him out of possession. That a certain *Ralph*Distance, upwards of fifty years before the demise in the declaration, entered upon the said tract of land, and was thereof seised and possessed in his demesne, as of fee; and being so seised and possessed, he died leaving two daughters, *Anne*and Mary, who entered upon the land, and were thereof possessed and seised, as the law requires. That *Anne*Dailey, one of the daughters, after the death of her first husband, by whom she had several children, by deed of bargain and sale dated the 3d of May, 1744, did convey fifty acres, being a moiety of *Isaac’s Chance*to *Edmund*Kelly, shortly after which conveyance, the said *Kelly*.intermarried with the said *Anne,*and entered upon the land in the deed mentioned, and was thereof seised, and being so seised he died, leaving issue *William*Kelly, his heir at law. That *Mary,*the other daughter, intermarried with a *340certain *John Gilbert,*who entered upon the tract of land called *Isaac’s Chance,*and the said *Mary,*and *John*Gilbert, her husband, were seised and possessed of the land, as the law requires, and being so seised and possessed, they died leaving issue *Anne,*their only child and heir at law, who afterwards entered, and was seised, and being so seised, intermarried with one *Valentine Downey,*by whom she had several children. That the said *Downey*and his wife, on the 7th of *August, 1758,*by deed of bargain and sale, conveyed all that parcel of land, being part of a tract of land called *Isaac’s Chance,*lying in *Kent Island,*containing thirty acres of land to *James Hutchins,*the lessor of the plaintiff; by virtue of which conveyance the said *Hut-chins*entered, and was thereof seised and possessed ; that the Lord Proprietary on the 23d of *September,*1765, after the said *William Kelly*had been absent upwards of seven years beyond seas, issued an escheat patent to the plaintiff, as the first discoverer of *Isaac’s Chance,*the right of a certain *William Kelly,*who died seised thereof and intestate, and granted the said land by the name of *Erickson’s Chance,*to the defendant; that *William Kelly*was found to be in full life some time in the year 1757, in the island of *St. Christopher.*

It was also found that *James Hutchins,*the lessor of the plaintiff, on the 29th *December,*1763, conveyed a considerable part of *Isaac’s Chance*to *Philip Conner.*

*Hollyday,*for the plaintiff

Prior possession is a sufficient title in ejectment, unless a better title can be shewn. *Cro. Eliz.*422. 437. 2 *Saund. 111. Vaug.*299. *Craw*v. *Ramsey, Carth.*398. *Parker*v. *Medor, Carth.*243. 1 *Ld. Raymd.*217. 12 *Mod.*122. *Salk.*94. On these principles it appearing that there is no title for the defendant, the plaintiff must recover. It appears that the Lord Proprietary originally granted this land to *Winchester.*It does not appear that the land ever reverted back to the Lord Proprietary, therefore he had nothing *341to grant at the time of the escheat patent to *Mathew*Erickson. He that would take a benefit by the death of another, 'must prove that death, and if the person is once found to be living, his death cannot be .afterwards presumed. 2 *Raym.*999. The defendant must therefore prove not only the death of Kelly, but also that he died without issue, in order to make out his title through the escheat patent; and to shew that notwithstanding a patent, one may shew that the King had no interest in the land patented, although he cannot plead *nul fiel record.*See 12 *Mod.*200. *Bro. Grant,*40. *Co. Litt.*260. *Perk.*tit. Grant, s. 5. Respecting the statute of Charles, that after seven years, persons on whose lives a reversion depends, shall be pre« sumed dead, unless proof be made of their being alive, see *Garth.*246. This statute cannot apply here, it being only applicable to cases where a party is entitled to an interest on another’s death; but Erickson, the defendant, can claim nothing here merely by the death of *William Kelly ;*besides, a presumption that a man died *without*heirs, shall never be allowed. It may be contended by the opposite counsel, that the plaintiff is tenant in common with *Kelly*by virtue of his deed for 30 acres from *Dbwney*and wife, and that one tenant in common cannot support an ejectment against another tenant in common, without an actual ouster. But the deed to *Hutchins*being for thirty acres of land, even supposing the conveyance was from a tenant in common, is bad, because a tenant in common cannot convey a particular number of acres separate from the rest. *Plow.*424. *Co. Litt. 197,*198. 12 *Mod.*302. 1 *Salk.*391. If the person had been sole Seised, and had conveyed a particular number of acres, nothing could pass before election. *Dyer,*281. *Bullock's*case, *Hob, 174>.*2 *Co.*36. *Heyward's*case. From the case in Hobart, it appears that where no election can be made, nothing passes, *ergo,*in the present instance, the conveyance being by a tenant in common, it could not transfer a certain in*342terest. *Hob. 282, 283.*approves of the judgment in *Plow..*424. 3 *Bulst.*184. 1 *Sid. 229. 1-Mod. 102. Law Eject. 82,*83. 1 *Burrow,*326.

*Goldsborough,*same side,

Considers the case in two lights. 1st. That there is no title found for the defendant. 2d. That being the case, there is a sufficient one for the plaintiff, and cites *Gilbert’s Tenures, 21. Doct.*and *Stud.*33. *T. Hawk. 1 S3,*154. s. 54. to shew that prior possession is a good title. As to the argument which he supposes will be urged, that the plaintiff was tenant in common, it does not appear that *Ralph Distance,*who left the'two daughters, had no heirs, neither Was it found that the daughters were heirs, therefore it cannot be presumed. 2 *Roll. Abr.*701. pi. 16. *Gilb. Rep,*259. 2 *Saund.*111. 1 *Vent.*229. 2 *Vern.*106, 107.

*W. Paco.,*for the defendant-.

Priority of possession is not a good title in ejectments. *L. Eject.*12. *Comb.*332. 10 *Mod. 177. Downey’s*deed passed a freehold. *Co. Litt.*30. a. *Cases temp. Talb.*167. *Yin. Abr.*tit. *Joint-Tenants,*483. pi. 3. 498. pi. 1. 500. pi. 3. 512. pi. 4. 1 *Salk. 139.*

*S.*Chase, for the defendant.

The plaintiff has declared on a sole demise from *Hut-chins,*the lessor of the plaintiff. This is the title alleged. The title found in the verdict is, that *Hutchins*is tenant in common of thirty acres, with *William Kelly ; ergo,*the title .alleged, and the 'title found, are variant, and the declaration is not maintainable. Cites *Gilb, Evid.*210. 212. 221. 223. *Gilb. Eject.*85, 86. S. C. *Gilb. Evid.*210. *O. L. Eject.*101. 2 *Bac. Abr. 175.*3 *Bac. Abr.*216. See cited for the plaintiff, *Gilb. Evid.*220. *Law Eject. 82, 83. Yin. Eject.*3:51. *1 Burr.*326. *2’ Stra.*908.

*343A title in fee in all *Isaac’s*Chance, is found to be in *Ralph*Distance, also in his two daughters, *Anne*and Mary, as tenants in common. *Anne*conveyed to *Edmund Kelly ;*and *William*Kelly, his heir, is found to be tenant in common in fee of an undivided moiety of *Isaac’s*Chance. *Mary*married *John*Gilbert, and after his death, married *Valentine*Downey, who conveyed thirty acres, which was one-half and one-tenth of his undivided fifty acres, to *Hut-*chins, who entered. *Hutchins*then had title to only thirty acres, and therefore he could not demise more; but the declaration alleges a demise of the whole tract, which appears to be false, for *Hutchins*had only thirty acres, and the declaration ought to shew the truth. The plaintiff should shew that *Hutchins*had a right to demise all *Isaac’s*Chance, and if *Hutchins*appears by verdict to have only a legal right to thirty acres, he could not demise the whole tract. The plaintiff should declare on such lease as would suit his title, and for him to support this ejectment, it ought to appear that he had a right to demise the whole of *Isaac’s Chance.*The plaintiff must shew in the lessor, such a title as is alleged ; that is, in *quality of estate*and not quantity. If a plaintiff is tenant in common, he can only recover his purparty *pro*indiviso, and be put in possession of no more. 12 *Mod.*657. *Vin. Eject.*353. 1 *Mod.*102. pi. 9. Joint-tenants, or tenants in common, may, according to their interests, join or sever in making leases, but the lease should be agreeable to their title. .What judgment can the plaintiff obtain ? Certainly not his term in the whole tract, when his title found is only for an undivided thirty acres; and he has already taken above that quantity, which he conveyed to *Conner.*A tenant in common cannot pass a certain interest, nor can he demand any part in certain. The claim must be of an undivided *part;*therefore he could only make a lease of an undivided part. *Plow.*424. *Co. Lift.*197. 12 *Mod.*302. *Salk.*391. He has no election. Dyer, 281. 2 *Co.*36. *Hob.*174. There is one property common to both joint-tenants and tenants in common, viz. that their occupation is undivided, and neither knoweth his *344part in severalty. 3 *Bac. Abr.*188. Therefore the possession of the one is the possession of the other.

Suppose there are two lessors, and you declare that they demised, you must shew in them a title to demise the whole, and if one should not have a legal interest in the whole, he could not in law demise the whole. *Gilb. Eject.*84. 2 *Keb. 376.*Suppose you declare on a lease made by *A.*and *B.*and it is proved at the trial that *A.*was tenant for life, with remainder to *B.*in fee, it could only be the lease of *A.*during his life. *6 Rep.*15. *Poph. 57.*Or suppose the plaintiff declares on a lease made by *A.*and *B,*and on trial they are proved to be tenants in common, he must fail, because he ought to shew a title in each, to demise the whole, agreeably to his declaration ; and as they could have a title to a moiety only, so they could not each demise the whole. Suppose again that two tenants in common, join in a lease for years, to bring an ejectment, and declare that they demised, it is bad, for it could only be a several lease of their moieties, and they must declare that whereas *one*demised *one*moiety, and the *other*the *other moiety, Old Lazo Eject.*100. 1 *Brownl.*13. *Cro. yac,*166. *Law Evid.*210.

It is objected by the plaintiff, that the deed from *Downey*to Hutchins, is void for uncertainty; it conveys “ all “ that parcel of land being part of *Isaac’s*Chance, lying in “ *Kent*Island, containing thirty acres,” *Fid. Bac.*Abr. Election, 183,

*Answer.*If the deed is void, *Hutchins*is tenant at will, and if the will is determined by his deed to Conner, then he is tenant at sufferance, and if either, he is only tenant of an undivided thirty acres. Whether a lessee at will can maintain an ejectment, see *Fin. Eject,*339. pi. *17.*Styles, 380. *Cro. E/iz. 676.*pL 4. - *Holt, 73. Garth. 66. Roll. Rep.*3. ph 5, 2 *Bulst, 217.*3 *Cro.*305. *Raym.*137.

As to what will be evidence to prove a man’s death without heirs, see 19 *Car,*II. c. 6. s. 2, by which it was declared, that any persons for whose lives estates are granted, who absent themselves for seven years together, shall *345be accounted dead. See *Carth.*246. *Holt,*195. the only cases upon the statute.

The Jury may find a thing upon presumption, but the Court can only judge on what appears in the record. *Vin. Evid.*56. pi. 2. 123. Where there were four'sisters, the question was, whether they were alive. They shall be intended to be alive, if the contrary be not proved; but this was before the statute. Livery and seisin shall be presumed after 25 years possession. 1 *Fern.*196. pi. 192. *Vin. Evid.*126. In debt on a bond which is very old, and where no demand has been made, or no interest paid for many years, it will be presumed to have been paid. *Trials per pais,*311. In dower, the issue was whether the husband was dead or living'; two witnesses produced by the defendant, proved the same argumentatively only, and not directly, but there being no proof of the life of the husband, the defendant’s proof was disallowed. *Vin. Evid.*94. 230. Where in dower the husband’s brothers and others, swore that the husband being a minister, left the kingdom *propter religionem,*and was about seven years in Germany, and that no merchants of *Germany,*nor *English-*persons who have travelled there, could hear any tidings of him; wherefore in their consciences they believe, that he is rather dead than alive, and no witness being produced of his living, the plaintiff recovered. *Dy.*185. pi. 65. *Mod.*14. pi. 35.

A judgment of twenty years standing, was presumed satisfied. 1 *Stra.*639. 652. So of a bond'thirty years old. *Id.*A deposition of a witness received fifty years before, cannot be read without some account of his death. The Chief Baron said, that if proper searches or inquiry had been made, and no account could be given of him, he would have admitted it, at such a distance of time. 2 *Stra.*920.

The Provincial Court gave judgment for the plaintiff. The defendant appealed to the Court of Appeals, where the judgment was affirmed by default, at *May*Term,