Hawkins' Lessee v. Hayes — 3 Del. 489

Majority

p. 489

WILLIAM L. HAWKINS’ Lessee vs. JOHN HAYES, ten. in possession.

Headnote

A. recovery in ejectment, though by confession of judgment, is not conclusive of the title.

The assignment of intestate lands in the Orphans’ Court precludes no one, not a party, from denying the title of the intestate.

The plaintiff claimed title under Daniel Bedwell, assignee of Ann eterson, to whom the land was assigned in the Orphans’ Court as ntestate land of Rebecca Sutton. Exceptions were taken in the rphans’ Court to the assignment of the land, and objections made to ¡he return, by this defendant; but it was confirmed by that court afer hearing. The title of Rebecca Sutton rested on a very ancient rolding. Ann Peterson had recovered in a previous ejectment of his defendant by confession. 1

The defence was, that this holding had not been adversary; and hat the assignment in the Orphans’ Court was not in conformity to he act of assembly, and conveyed no title. The principal objection these proceedings was, that they assigned the land as intestate nd of Rebecca Sutton, when she was proved to have married, and vas the widow of one Hamilton.

The plaintiff’s counsel replied, that the proceedings in the Or-hans’ Court, to which John Hayes became a party on his own moon, precluded him from denying the title of Rebecca Sutton; (Rig. 24; 1 Harr. Rep. 485 , 555, Martin’s lessee vs. Roach:) that the re-overy in ejectment at the suit of Ann Peterson against the present efendant was conclusive, the judgment being by confession, (2 Harr, ep. 30, Porter’s lessee vs. Matthews:) that Rebecca Sutton had title ly possession; and the proceedings for dividing the land were pro-rly taken in the name of Mrs. Sutton; because, though she married amilton, they never lived together, and she was always known by e name of Sutton. t

The case was argued before the jury by Smithers and Frame, for aintiff; and Bates and Buffington, for defendant.

p. 490

Smithers and Frame, for plaintiff.

Bates and Hvffington, for defendant.

Chief Justice Booth charged the jury:—

Plaintiff claims through proceedings in the Orphans’ Court the title of Rebecca Sutton; who, he says, died seized of the land. Rebecca Sutton left three children, of whom Ann Peterson was one. Ann Peterson conveyed to Daniel Bedwell, to whom the land was assigned in the Orphans’ Court. Bedwell con'veyed to plaintiff. The proceedings in the Orphans’ Court were on the petition of Bedwell, and the assignment in the Orphans’ Court conveyed to him all Rebecca Sutton’s title in the land.

What was the title of Rebecca Sutton1? Plaintiff insists that she had a title by possession. Twenty years adverse possession, uninterrupted, gives a good title. It is for the jury to say whether there has been such, a possession in Rebecca Sutton; if so, the verdict ought to be for plaintiff for all the land.

The plaintiff contends also, that because of a recovery had by Ann Peterson against this defendant, in a previous action of ejectment, the defendant is estopped from controverting the plaintiff’s title as to one-third. The general rule is, that a recovery in ejectment is no conclusive in any other ejectment; and wo do not think this cas' varies the matter, though it is called a recovery on confession. Th record shows that it was not a confession formally made in opei: court, but a general confession of judgment, having no other effec than the verdict of a jury.

The plaintiff also contends that the proceedings in the Orphans’ Court are conclusive against this defendant. These proceedings ii: the Orphans’.Court are ex parte, on the petition of some one or mor of the persons concerned. Those proceedings conclude no one, not a party to them, from denying the title of the intestate.

The plaintiff had a verdict,