Majority
p. 367Jackson, ex dem. Klock and others, against Richtmyer.[1]
Headnote
- where a partiwsv under the ma; an^ónthe pap’and flew-a““°eSre°produ¡¡St^hJ'baSotjrotberorad<|Uit 5t£r hes'uihthaa In'dV!.ao“of cognising the partition, it would not be invalidated on account of the want of the bail0b“s book.And an agree*“nt SUpe«onrin of6pities. “>- ecute ' it, ivas f¡e<i by the subtbeuep\rty'31°¿ wtlose name it
son whoreeovers io an actio» °fkes cj“‘0“een¿ veyitheLTto !biha^rakS SSene¿Vs“3uci! session aiibi-<T faff evidence
THIS was an action of ejectment, to recover párt bf lpt No. 4, in the sixth allotment of a tract bf land, in the town of Minden, and county of Montgomery j granted by letters patent, dated the Í3th of November, 1731, to Abraham Vdn Horne, William Pre. '■host, Philip Livingstoti, and Mary Burnet. The cause wax tried before Mr. J. Plait, at the Montgomery circuit, in August, 1813.
At the trial, the plaintiff gave in evidence an* exemplification bf the letters patent to Van Horne and others, for 8,000 acres of land ; also, a release. from William Prevost, one of the patentees to Philip Livingston, another of the patentees, dated the 1st of November, 1734, of hi's undivided fourth part of the 8,000 acres, or.tract described in the patent. Philip Livingston, by his will, dated the 15th of July, 1748,, devised his interest in the tract of 8,000 acres tó John Livingston and others, who, by deed dated the 3d of February, 1761, conveyed to George Klock and J el lis Fonda, in fee, an undivided moiety of the land contained in the patent, except 1,000 acres conveyed to David Schuyler. The plaintiff further gave in evidence, a deed from David and Van Horne, heirs at law of Abraham Van Home, the patentee, dated- the 3d of February, 1761, to Jellis Fonda and George Klock, of an undivided fourth part of the lands in the patent, A . , o , ' -t -i • i except 500 acres conveyed to David Schuyler. It was admitted that George Klock died in 1787, and that the lessors of the o ' plaintiff áre his heirs at law; and that the defendant was in possession of part of lot No'. 4, in the sixth'allotment of the above-mentioned tract.
The defendant then gave in evidence, a release dated the 22d of November, 1763, of the sixth allotment, from Philip Living ston, William Livingston, Walter Rutherford, John Duftcan, and William Burnet Brown, styling themselves part owners of fheland in the said patent, to three Indiansi and their heirs, in trust themselves and all the rest of the, native Indians belonging to the Canajoharie Castle, and their heirs, for ever. The defendant
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next gave in.evidence a bill of discovery,, filed in chancery fef1 j0jm jun-> and others, including the- present defendant* against the lessors of the plain-tiff, and their answers'thereto* 'Júcob G. 8? George,G. Klock, two of the lessors* in their ans-iver, admit, that land’s"of,certain Indians of-the Mohawk tribe, Were -included in the sixth allotment of the said patent, and that the íftdwhs were greatly discontented cm account of this g-rani ;-but they- deny that their .father, G’éorge K look, 'at. any time, ever', assentéd hd íhé,release :to those Indians, but-refused to execute.it. They admit, that proceedings, in partition, were had some time ¿about tlie-y'ear T;764, and ..that Isaac Proman,' Rynier :Mynderse,- and Joseph Rl Yates, were appointed commissioners for that .purpose, who divided the tract into six allotments* and disti-n* ■ güiáhed them numerically, ■ and completed the - map and field-book on* or about,, the 9th Of .Qctober, 1764. The defendants say,-that theymye ignorant ..-from what motives or opinions the commissioners acted,' "nor. do-' tlie'y believe that any particular instructions’.were given -by'the--proprietors.of the-patent, or by. any of them, to the'commissip.ners, to. proceed to'a subtli-vjsiorl of the sixth allotment, differing from'those given for th.e par-trtion'of . the other p.drts of-the-tract; but believe that they .proceeded to a subdivision of the .sixth allotment only from motives .of duty.. They admit* thát a draft of the' lots* into which' the . sixth allotment was subdivided,- was duly made by the comm-is^ sioners; and that, on such drawing, Íot-No. 1.,'. in the said sixth -allotment, was.drawn to.the share of the.-.patentee, Philip. Liv-' ingston; lot No, 2. to the share of the patentee, Abraham Pan Horne-; Noi 3. to the share of the patentee, Mary Burnet; and No- 4-..tothe share of the. other patentee, William Prevost. They deny that lot No. 1. was -assigned' to. their .ancestor,-Gcotgs Klock, as his full portion in the sixth allotment-; but, that the opposition of the native Indians having ceased, Jellis 'Fonda and jGeorge Klock took possession of lot No. 1., as part of their shar.e in the sixth allotment; and, in conformity to ah adjust* ment between themselves, George Klock released to Jellis Fon .dar one! fourth of lot No. 1,., and Fonda released to Klock’,, thrpe fourths ; and Klock having, possessed himself of lot No. 1., sold' and conveyed hisj three fourths thereof to Johannes' Luke. They admit, that the Indians continued on the -land until 1779 ; and that, after they -removed,, some of the .tenants, and others, residing on the lands, at the request of the defendants,; entered
p. 369
mío some agreements in writing for leases to be given, whenever the defendants should obtain a patent for the land, or have their titles confirmed by the state; and they say that the reason of the last-mentioned stipulation in the agreement, was, because they were ignorant of the extent of their rights in the sixth allotment. They say that they have heard, but whether true or hot they are unable to tell, that Jellis Fonda did obtain an instrument, or deed, (dated, as charged in the bill, the 6th July, 1789,) from some of the Indians of the Upper Mohawk Castle, for the sixth allotment, which instrument they insist to be invalid. They admit that Jellis Fonda, and the following persons, to each of whom, as was charged in the bill, Fonda conveyed an undivided fifth part, John Lansing, junAbraham Van Vechtens Abraham G. Lansing, and Christopher P. Yates, commenced, actions of ejectment against them, and recovered possession, of which suits the defendants had notice, but judgment was obtained by default therein, by the negligence of the attorney» The defendants say, that they claim, in the ejectment suits now pending, the half of lots No. 2. and 4. in the sixth allotment, and admit that their father, George Klock, was a party to the partition before mentioned. They state, that no part of the 1,000 acres excepted in the deed from the devisees of Philip Livingston to Fonda 8r Klock, and the 600 acres excepted in the deed from Abraham Van Horne, were contained in the sixth allotment. From the field-book of the partition referred to in the answer, it appeared that the first, second, third, and fourth allotments, were subdivided into eight lots each, and the fifth and sixth allotments into four lots each; that on the balloting, lots No. 1. and 2. of the first allotment, lots No. 1. and 8. of the second allotment, No. 1. and 5. in the third allotment, No. 1. and 3. in the fourth allotment, No. 3. in the fifth allotment, and No. 1. in the sixth allotment, fell to the share of Philip Livingston. Lots No. 3. and 7. in the first allotment, No. 3. and 4. in the. second allotment, No. 2. and 3. in the third allotment, No. 2. ar.i 6. in the fourth allotment, No. 2» in the the fifth allotment, and No. 4. in the sixth allotment, fell to the share of WilliamPrevosL Lots No. 4» and 8. in the first allotment, lots No. 1. and 2. in tic second, allotment, No. 6. and 8. in the third allotment, No. 4» cod 7« kx the fourth allotment, and No. 2. in the sixth allot-&'.en£, feli to i'ie share cf Abraham Van Horne. Lots No. 6. a-.j-i So in the. first allotment, No. 5. and 6. in the second allot-»
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niéní:, No. 4; and 7. inthethird allotment, :No.' 5. And 8.. in tHé* fourth allotment,. No. 4. in the fifth Allotment, and' No.r3.'in the-sixth allotment, fell t5 the share of Mary Burnet, ..... . 1
The answer in chfincery Of oth'er-of ’the lessors of .the plaintiff^. was read-, containing the saíne allegations .as- the- an'sweiyof Jacob G. and- George G.-Klbck, 'and further insisting that ¿herís had been no subdivision-of the sixth; allotment, previous tc the. ' revolutionary war,, except on paper, and that,- subsequent to- the waiyonly lot No." 1.. had been run out, by actual survey.; .
* The ’ defendants gave in evidence a release, from George Klock, to Jellis. Fonda, dated the 2.7th; of February, -1767, ,by which he relehséd to him his interest'-in certain lots in the -patent, among-which whs -lot No. IP of the sixth lallotnienly describing the lands, ;as having- been -divided and laid-' into' lots, in September, 1764; by Isaac Vroman¿ Esq;- one of, -the commissioners-appointed to make partition, as appeared by his map and field-book, filed in the clerk’s office of the county of ¡Albany. Also, an agreement dated the '26th of January, .1763, between George Klock, of . the one part, and- John Duncan and ■Waller Rutherford, of the other, that-¿H-ocA shpuld -.convey't® -Dúncan and Rutherford, oáé haií of all-his; share-in'the ■CanajohaiHe patent, which-he bought in company with Jellis Fonda, at the same rate, and with the same warranty, it' was cpn-keyed to himi ' ■
The defendant further gave in. evidence the .following "agreement;. “ the proprietors in the Canajoharie patent having agreed to divide the said-patent amongst .them into patentees’ shares, the following persons met at ■ New-York, the 27 th day -of November, in'the year 1764, to . wit; Jacob. G. Klock, in behalf of his father, George Klock, Isaac Vromanin behalf Of Jellis Fonda, the first holding three -fourths,- and the other - one- fourth of patentees’ .shares, Philip Livingston, who;-holds-three eighths of á share, Isaac Vroman for John Diuncan,. who- , holds five eighths, of a share; William Livingston, who holds three eighths-of-'a share, and Walter Rutherford, who holds five - eighths of-.a share. They accordingly drew for, the different, shares, when Philip Livingston, and. John Duncan, drew, the patentee share that belonged to Abraham Van- Horne. „William , Livingston,, and Walter Rutherford, the share that belonged to W. Prevost; and George: Klock, and Jellis Fonda, the share tliat belonged to Philip Livingstom They have, .accordingly»
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'agreed, that whatever lands shall be drawn by the commissioners to the patentee rights above mentioned shall belong to, and be the property of, the subscribers, in the shares above specified, and mutually agree to sign releases accordingly.” This agreement was signed with the other parties by “ Jacob G. Klock for George KlockF
• The original map and field-book of the partition were produced in evidence, and it was proved that neither the balloting book, nor any other papers relating to the partition, could be found in the proper offices. By the map and field-book it appeared that partition of the tract was made by Isaac Vroman, Rynier Mynderse, and Joseph R. Yates, commissioners appointed by virtue of the act of the late colony of New-York, passed January 3d, 1762, and that the map and field-book had been filed, as the law required, on the 9th of October, 1764, and that, by the partition, the tract was, pursuant to the directions of the act, divided into- six allotments, and each of those allotments subdivided into four or eight lots, the sixth allotment being subdivided into four lots, each containing 850 acres, and numerically distinguished in such map and field-book from one progressively; and that the whole of the tract was balloted for to the patentees named in the patent. It was thereupon admitted, on the part of the plaintiff, that No. 1. of the sixth allotment, was drawn as and for the share of Philip Livingston, and No. 3. of the same allotment, as and' for the share of Mary Burnet, to which la ttor, lot the plaintiff disclaimed all title; and also admitted that all the lots drawn on the ballot to the share of the patentee, Philip Livingston, were held under title derived from Klock and Fonda. ' .
The defendant then gave in evidence a release from William, Burnet Brown, describing him as the son and heir of Mary. Burnet, to Adam Garloclc, Solomon Moyer, and John Pickard, (who, or persons claiming under whom, still had possession,) dated 19th oí April, 1765, for the lots drawn to the share of Mary Burnet, in the five first allotments; also, a partition deed between the last-named grantees, dated October 24th., 1766; and a release from John Duncan, and Walter Rutherford, to Jellis Fonda, dated 28th oí June, 1765, which recited that George Klock and Jellis Fonda were seised of an undivided sixth, eighth part of the lands contained in the said patent, as tenants in common, and that Jellis Fonda, being so seised, conveyed an.
p. 372
undivided moiety- of his share to Philip- Livingston, ~&f the 'eity of Nezv^York, merchant,.and ffliltiam:Living sfon, of the sám© place,, attorney'at law, and. the'-other moiety -to JVaiter Ruther^ jford, and John Duncan?;- that partition of the tract whs. made-in 1.764, - and that it'was- agreed,.. fey -the owners, of ■ -the ,: patent, .or .their attorneys, in the presence of the commissioners, before the allotment ofthe, land; that the. part .and--shares thereunder' described fór Jel-lis- Fonda. should fall '■ in with the i.p'art and share of lots drawn for- 'Jclli's Fonda and George Fiock,. and then conveyed to the said Je-llis, ih -fee, in his actual possession.' then being,-by .virtue--of a. bargain and' sale,- for one- year, bearing daté the- preceding day.;- and by force of the statute Of uses, one full third part of all that, land conveyed- to Walter. JluiherforJ and John Duncan, by Jellis Fonda, lying partly -in. lotsNo. 1. and % of the first allotment,, parity, in. lots No. - 7. and 8. of the second allotment, partly, in lots No. 1. and- 5,. ofthe third;, allotment, partly in lots No. il and; ,3. of the fourth allotment, and partly. in lot • No» 3.- of- the fifth allotment,, ail which- lots - were., draw-rr in behalf of the. said. Jellis, Fonda, aaid-Geo-rge.Flock,
' The defendant also- rgaye in, evidén.oe,,;a -.contract-under thei Ijands .and seals .of Jacob G. Klock, ‘One-of the lessors of the plaintiff, and Moses, and Abrahqbi Van.Cctmpen, dated the I7tb ©f March, 1788-, by which the former agreed' to sell -the latter,. No. 1> of- the fourth-allotment of the.said, patent, in fee»... Also;' a, 'Conyeyan.ee,, in ..fee,from,-George Flock to. Johannes huleé, datéd .the 21st of July,. -17,84,, -for' his. three fourths of lot No. 1* Jo the fourth allotment».- ..Also, a partition deed, b.etwéen -Jel-lis. Fonda,- John. Lansing, jji-nl. Abraham G- Jumping, 'Ghrisiopliéx,. JP.. Fates, ajad, Abrahani Van, Vecliten, of the Whole sixth allotment, except lot No. 1., dated the'1st of September, 17.90. . Also, the will of-Jellis Fonda, dated the.‘2>7'th of May, 17 91, empower-, ing his executors to sell and convey his real estate ;: and a con-, -veyance from- the. executors; to the - defendant and John Richly ■ my.er,-dated-the 9,th o.f May, 1.79-2, for; Ipp. aores .of .land-releas*., ed lo .Nó»d<Ain the' .sixth allotment, pursuant, to the- partition of 179-0,-being; the. premises in -question. . Also.-two agreements executed by the lessors, Jacob, G. Flock and George -G• Flock,^ the one to David A. Schuyler, dated the 10th of January, 1791, and thé. other to Robert . Gardner.-, dated the 29th of September, 1790, by'which they promised to give leases-of two-parcels of 'ijand in the1 sixth allotment, when they should ob.tain a title o£. confirmation, from the state,». '
p. 373
Parol evidence was also offered-by the defendant, further to show a possession, in conformity to the original partition of the patent, and by- the lessors of the plaintiff to show a possessory title in themselyes. - The jury, under the direction of the judge, found a verdict for the plaintiff, for three eighths, of .the premises, subject to the opinion of the court, on a case-containing the above facts. •
The cause was argued by Kirkland and Woodworth,lor the plaintiff, and by Van Veehten and Henry, for the defendant; but as the argument -related principally to the evidence of title and possession, and the points are fully discussed in the judgment delivered by the court, it is thought unnecessary to state the arguments of the counsel. .
delivered the opinion of-the court. The lessors of the plaintiff having deduced a title* to an undivided’ portion of the-lands granted to Van Horne and others, by the letters patent of 1763, are entitled to recover, unless a valid partition has been made of these lands among the proprietors; and-the principal question presented by the case is,, whether sufficient evidence of such partition has been shown on! the part of defendant? It seems to be admitted that a- partition has been' duly made of all the lands described in' the letters patent, -except those Contained in the sixth allotment, comprehending the premises in question; but it is argued that, this allotment is still to be considered as undivided, I am at a loss to' discover any solid-ground for this distinction., The partition was made - under the colonial act of 1762, and all the proceedings to establish a,perfect partition under that act have been produced,-except the ballot book, which cannot, at this day, be found. From the proceedings that have been discovered, and which are set forth in the case, the commissioners* as well as the parties, evidently intended to divide the whole patent; and that they did so divide it, is expressly set forth in their field-book and map; and there’is not a single fact or circumstance, that I have been able to-discover, showing that the sixth allotment- was, not as much the subject of partition as any of the other allotments.. . -That allotment, as. well as the other fiye, .was laid out into lots* and upon the balloting,. No. 1. was drawn to the share df the patentee, Philip Livingston, No. 2. to that of dhraham Van Horne, No. 3. to
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•that of Mciry Burnet, ¿nd No. 4. (comprehending the premises in question) to that of William Prevosti. -After the commission-' ers had laid out the whole tract into six allotments; and subdivided the' four first allotments into eight lots, .and the remain>'ing two into four lots,' the parties to the' partitión met at the city of New-York, lo'proceed to a ballot pursuant tó the act. By- a written agreement between the proprietors,' and’ the par--. ties to-the partition, on; that occasion, dated the 27th of Novena bier,T764, dt appears that' their respective interests Were ascertained and settled as follows, to wit:1 George Flock, andJ.ellis''r' ■Fonda, owned one of the patentees'1 [shares, (Flock three fourths,, an&'Fonda one fourth there,of,) Philip Livingston three' eighths' of á 'sharé,.: John-Duncan five'eighths, William Livingston three eighths, W. Rutherford five eighths,'making three .fourths1 óf-the whole tract; Mary Burnet, or her heirs, holding the re-.-maining fourth'. The proprietors having agreed “todivide the said patent amongst "them1; into patentee shares, they accordingly drew for-the different shares, when Philip Livingston and John Duncan drew the patentee share that belonged to Ahráham' Van<Horne, William, Livingston and W-. Rutherford the that. belonged to William Prevost, . and George Klock and Jellis Fonda the share that belonged to Philip- Livingston; and they accordingly agree, that whatever lands.shall be drawn by the commissioners to the patentee rights above mentioned, shall belong to, and be the property of, the subscribers” (tó’ the said-agreement) “ in the shares .'above 'specified; and mutually' ágréé to sign releases accordingly.” . It was objected to this agreement, in the course of the argument, that there.was no evidence to show that Jacob G. Flock was authorized to sign the agreement in behalf of his father, George Klock. 1 It 'is true there no express evidence of this fact, but that he was duly empowered to représen! his father,; is most satisfactorily proved .by his subsequent ratifications of this act, to Which I will presently ad-. vert.' By'the map and field-book duly filed pursuant to the colónial partition act, it appears, that “ partition of the said tract. of land,-granted by the letters patent aforesaid, was. made by /:•, Vroman, 2?.- ' Mynderse^ and Joseph R-. Yates, commissioners appointed by. virtue .of the act of the late colony New-York, passed the 3d of January] 1762, and that the ' said map and field-book had been'filed as the law required, on the 9 th of October^ 1764; and that by the, said partition the said tract was,,
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pursuant to the directions of the said act, divided into six alióte iments, and each of those allotments subdivided into four or eight lots, and the said sixth allotment, each containing 850 acres, and numerically distinguished in such map and field-book from No. 1. progressively ; and that the whole of the said tract was balloted for to the patentee^ named in the said letters patents’’ It further appears by the case that the plaintiff, at the trial, u admitted that lot No. 1: of the sixth allotment, was drawn as and for the share of the patentee, Philip Livingston, and lot No. 3. as find for the share of tlie patentee, Mary Burnet, to which latter lot the plaintiff disclaimed all title.” It is thus clearly shown that a partition, in fact, was made of the whole tract contained in the letters patent; and that George Klock and Jellis Fonda owned* at thé time, but one patentees’ share, being one fourth of the whole tract; and I now proceed, as briefly as the subject will permit, to show that, whatever imperfection may exist in the evidence of a valid partition, under the colonial act, owing to the non-production of the ballot-book, (if, indeed, any such imperfection exists,) it is amply supplied by the subsequent acts of the parties, and particularly by those of George Klock.
It was admitted at the trial, or is proved either by the answref to the bill in chancery, or by other written of oral testimony, 1st; That the lands in the first five allotments always have been* and still continue to be, held according to this partition.
2d.' That all the lots drawn on the said ballot, to the share of the patentee, Philip Livingston, now are, and for a long time have been, held under a title derived from George Klock and Jellis Fonda,
3d. That William Burnet Brown* claiming to be heir at law of Mary Burnet, ratified the partition by selling and conveying to Adam Garlock and others, in 1765, and within a few months after the partition was completed, “ the lots drawn to the share of the patentee* Mary Burnet, in the aforesaid partition, in the five first allotments of said patentand, that Garlock and his co-grantees* the following year, made partition of these lots among themselves, all of which have ever since been held under a title derived from Garlock and his associates.
4th. That, in April, 1766, George Klock and Jellis Fonda entered into a written agreement to divide all the lots drawn by fhem on the general partition, and in strict and exact conform!*
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ly thereto. By this agreement, Georgetook, among Othei* lots, precisely three fourths-of lot No.'l. in the sixth allotment, and Fonda one fourth and, at this time, no right or title to any other'part of the sixth allotment was‘Suggested, or pretended, ' hy George -Klock -; nor, indeed, Was any such .claim made. .ixntil afteT the time the -Indians left it. . *• ,
- 5th. That, on the. 27th Of. February, 1761 fGe:órge' Klo'ck ■ lied the lastiinentioned agreement into effect,' by releasing té Fonda, bx% interest in the lots therein-mentioned and designated.; and describing the- lands- -released as- hewing been divided'and laid out into lots', in September, 1764, by .Isadc Vronian, Esq., ■One. of the commissioners,- and the surveyor appointed to make-, partition of the land'contained in the patent pf Fan tio'rne and Others, as 'appears'by his map and feld-book, fled in the clerk*® office, in the. county of Albany. ,
■6th. That. George Klock, in July;, 1788,' sold and conveyed ■three fourths of lot No. 1. in the ■ sixth allotment,-to Johanne'é Luke, turdet- which deed it -has been held ever since. Thesé áre some of the many unequivocal áct-s hy Which -the partitioii of 1764 is recognised - and ratified, not only by George Klock§ but by others-of -the' parties to it.. Many more might, be added,; equally explicit and important, were it necessary. From thosé Which have'been adverted to, the authority of Jacob-^G. Klach, to sign his fathers name to the agreement of November, 1767* is placed beyond all doubt. And it is equally clear, that George Klocle. not only admitted, the validity of -the partition of 1764, of the five first allotments, but, also, particularly, thát.of the sixth allotment. A partition thus made, acted, upon, and ratified, and under which rights have been acquired by purchasers, from, the parties to it, ought not how to be disturbed. The court is bound to presume that évéry thing has been done,'which was required to be done, to give it- validity. The partition-,, then, being .fully proved and established, .the lessors of ■ the plaintiff must, fail, inasmuch as the defendant has shown a subsisting title to be -out of them -; and it is, in this respect, chiefly, that the present casé is distinguished from that of Jackson, ex dem. Klock and another, v. Hudson, ( 3 Johns. Rep. 375 .)
The counsel for the plaintiff, however, claims, that the lessors pf the plaintiff are entitled to recover upon their ‘possessory title; and it,- therefore, becomes necessary to say a fexv words, in relation to that point. The possession which has been-at
p. 377
tempted to be shown, commenced some time after the revoluiioriary war. It was a mere naked entry, unaccompanied with 'any title, and, in fact, without the colour of title. It may well be doubted, whether this possession was of such a nature as would have conferred any right, even if it had endured twenty years, upon those who took it, or whether it would have taken away any right from the true owner. Within twenty years, however, an action of ejectment was commenced against the persons then in possession, tinder' some of the heirs of George Klock; and the lessors of the plaintiff, in that action, having obtained a judgment by default, turned the possessors out, and entered into possession under" a hab. fac, possessionem. The defendant is a bona fide purchaser, for a valuable consideration, from the persons who thus obtained possession under that judgment. Although it is true, as was said by this court in the case of Jackson, ex dem. Wright and others, v. Deiffendorf & Zol ler, ( 3 Johns. Rep. 269 .,) that no right is definitively determined by a judgment in ejectment; yet, it is equally true, that when, a party enters under such a judgment, and then conveys to a third person for a valuable consideration, who enters under his deed, that such an entry aiid possession afford as high and solemn prima facie evidence of right as can well be exhibited; and higher and better evidence of title than the mere naked occupancy of these lands, indisputably belonging to other persons, by the representatives of George Klock. The lessors of the plaintiff, in their answer to the bill in chancery, do not put their right to recover upon the ground of possession. They rely, exclusively, upon the title which they claim to be vested in them, under the letters patent, and that title having failed, they are not entitled to recover at all.
having been formerly concerned for the lessors of the plaintiff, in a suit relative to the same title, did not sit to hear the argument, and gave no opinion in the cause.
Judgment for the defendant.