
    M’Lean v. Copper and Others.
    [Monday, May 9, 1803.]
    Verdict — Finding Livery of Seisin. — The verdict should find precisely, whether there was livery of seisin; barely finding the memorandum endorsed upon the deed, is but evidence of the fact and insufficient and therefore, a new trial was awarded.
    Conveyance — Possession—Qurere.—whether a feoffment by one out of possession is not void ?
    In ejectment for a lot of land in the town of Alexandria, brought by Elizabeth Copper, late Elizabeth Arrell, daughter of Eichard Arrell, deceased, and others, against Archibald M’Eean; the, jury found a special verdict, which stated: That John Muir and Harry Piper, two of the trustees for the town of Alexandria, being seised as the law requires, conveyed to James M’Leod, in fee. That M’Leod entered, and died seised in the year 1770, intestate, leaving Eobert M’Leod, his son, and heir at law: who, by deed of the 15th of September, 1784, conveyed to Eichard Arrell, deceased; which was recorded on the 20th of the same month. That the said Eichard Arrell died intestate about the year 1795, and the plaintiffs are his representatives and heirs at law. That the said Eobert M’Leod made a deed of" feoffment, and memorandum of livery of seisin, to James Kirk, (under whom the defendant claims,) . on the 24th of December, 1783; which deed and '^memorandum were recorded on the 23d September, 1784. That Eobert M’Leod was a citizen and inhabitant of Marjdand; but that the deed was executed by him in Alexandria, and was attested by witnesses residing there. That Arrell, before the conveyance to him, had notice of Kirk’s deed. That Arrell gave a bond to Eobert M’Leod, conditioned for the payment of 3001., if Kirk, or his representatives should not recover the land of Arrell; which is dated the 15th September, 1784, and recorded 20th January, 1791. That Eobert M’Leod, when he conveyed to Kirk, was not in possession. That James M’Leod had made a verbal sale to Watson, who entered, and was possessed; and, being so possessed, sold to Eigdon, 14th September, 1770, and gave bond to make a title. That Eigdon, by will, on 22d April, 1772, after some specific bequests, devised to his wife, Elizabeth Eigdon, in fee, all the rest of his estate, both real and personal, and died 19th May, 1772. That the said Elizabeth Eigdon, on 28th February, 1775, assigned the said bond to Arrell, who entered on the said land in consequence thereof, enclosed it, and peaceably and quietly held it till his death. That Kirk, on 24th December, 1783, gave a bond to Eobert M’Leod, for payment of 1301. on being put into possession of the lot, which Eobert M’Leod, on 19th March, 1787, assigned to Arrell. That Kirk, at the time of giving said bond, knew that Arrell was in possession, and would dispute the title to the lot.
    The District Court gave judgment for the plaintiffs; and the defendants appealed to this Court.
    Eandolph, for the appellant.
    We have a regular title, which can be objected to upon two grounds only; that is to say: 1. That the deed was not recorded within eight months. 2. That Kirk knew of Arrell’s title when he took the deed. As to the latter, it is not a proper subject of enquiry in a Court of Law; but, if the plaintiff could have supported his case at all, it must have been in a Court of Equity. And, as to the first, the act of *1784, [c. 62, 12 Stat. Larg. 155,] speaks of persons resident in Virginia, which M’Leod was not; for, the verdict finds that he was a citizen and inhabitant of Maryland. Of course, his having accidentally come into Virginia, will not satisfy the act, which ought to be construed strictly. A third objection perhaps will be, that M’Leod, at the time of making the deed, was out of possession. But, as to this,- the Court is referred to the argument in Duval v. Bibb, (ante, 362). Besides, liver3' of seisin was made in this case; which necessarily supposes possession. And, therefore, as the verdict only finds that Arrell was possessed when the deed was made, the Court will intend that the livery was made, at another time; which will remove the objection. Co. Litt. 48, 266. The plaintiff’s title is liable to this exception, that the verdict finds Arrell knew of our deed at the time of taking his.
    Lee, contra.
    It is clear that Kirk knew of Arrell’s right before his purchase; and the notice affects the appellant. 2 Pow. on Mortg. 296. M’Leod was out of possession at the time of making the deed to Kirk; which, therefore, is wholly void. Co. Litt. 369; 2 Black. Com. 314; [Partridge v. Strange et al.,] Plowd. 88. But as Arrell was in possession, the deed to him was effectual, and perfected his title, as the same books prove. It is not material, that M’Leod was a citizen of Maryland. Eor, the deed was executed in Virginia; and the witnesses might have been compelled to attend at Court, and prove it. Of course, as the act of Assembly is express, the failure to record it within the eight months, avoids it against a purchaser for valuable consideration.
    Call, on the same side.
    The act uses the word resident in the State at the time of making the deed; which expression is fully satisfied by the grantors being within the limits of the State; and, therefore, recording within the eight months, could not be dispensed with. There was no fraud in Arrell in taking a deed, because he had a prior equity. For, the verbal sale to Watson was good; and the*title from him is regularly deduced. But, the converse of this doctrine holds against Kirk; because, finding another in possession, he ought to have enquired before he purchased; for, the possession was notice of our equity.
    Randolph, in reply.
    The verdict does not find the facts with precision. It does not appear whether livery was actually made or not, but leaves it wholly uncertain. It is material, that M’Leod was not a citizen of Virginia; because, the buyer has a right to two modes of probat, that by witnesses, and that by acknowledgment of the party in Court. But the argument, on the other side, tends to deprive him of the latter.
    Cur. adv. vult.
    
      
       Conveyance — Possession in Grantor. — The principal case is cited in Birthright v. Hall, 3 Munf. 539, for the proposition that, there must he possession in the grantor at the time of the deed made, or livery of seisin, actually found, in order to pass the estate.
      But the principal case is cited and distinguished in Claiborne v. Henderson, 3 Hen. & M. 357.
      The principal case is further cited with approval in Birthright v. Hall, 3 Munf. 547.
    
   PENDLETON, President,

delivered the resolution of the Court.

This is an appeal from the District Court of Dumfries, where the appellees brought an ejectment against the appellant for a lot and half an acre of land in the town of Alexandria, in which there was a special verdict, stating, that the trustees of that town, being seised of the lot in question, by deed dated the 30th May, 1765, conveyed it to James M’Leod, who died seised in 1770, leaving Robert M’Leod his son and heir. That James the father, in his lifetime, made a verbal sale of the lot to Joseph Watson, who entered and was in possession thereof; and September 14th, 1770, gave a bond to Edward Rigdon, in the penalty of 1001., conditioned for making a good right to the lot, and defending it against all persons whatsoever. That Rigdon by his will dated April 22d, 1762, devised ¡the lot as part of his residuary estate, to his wife Elizabeth, in fee. That Elizabeth, on the 28th of February, 1775, in consideration of 151. assigned the bond and her right to the lot, to Richard Arrell, who in 1776 entered into possession of the lot, enclosed it, and quietly held it till his death, and for the greatest part *of the time, occupied it as a grass lot. That on the 24th of December, 1783, Robert M’Leod of Frederick county, in Maryland, by feoffment, in consideration of 1701. specie, conveyed the lot to James Kirk of Alexandria, in fee with a general warranty, on which deed there is a memorandum, that on the same day peaceable possession of the lot was given by M’Leod to Kirk, in presence of the subscribing witnesses; also, a receipt for the consideration money'; and, there is a certificate of the Clerk of the Corporation Court of Alexandria, that this deed, memorandum, and receipt, were proved by the witness and ordered to be recorded, on the 23d September, 1784, more than eight months, but less than two years from the date of the deed, which the jury find was executed in Alexandria, where the witnesses also resided. On the same 24th of December, 1783, James Kirk entered into a bond to Robert M’Leod, in the penalty of

2501. reciting the conveyance to him, but that the lot is yet in possession of Richard Arrell and others, who dispute the title, and the condition is, that Kirk shall pay 1301. without interest after his being put into possession of the lot, and an undeniable title in fee made, which bond M’Leod on the 19th of March, 1787, for 1121. 8s. 6d. assigned to Richard Arrell. They find that Robert at the time of his conveyance to Kirk, was out of possession, , and that Kirk knew at the time, that Arrell was in possession, and would dispute the title. That Robert M’Leod by bargain and sale, dated the 15th of September, 1784, and duty recorded, conveyed the lot to Richard Arrell in fee, with a general warranty. That Richard Arrell at the time, had notice of M’Leod’s deed to Kirk. On the same day, Arrell executed a bond to M’Leod, in the penalty of 6001. reciting that conveyance, and the former one to Kirk; and the condition is, that, if Kirk recovered the lot, the bond was to be void; and if Kirk failed, and Arrell’s title was established, and Arrell should in that case, pay 3001. to M’Leod, by three several instalments, the bond was *also to be void. That Richard Arrell died intestate in possession of the lot, in 1795, and that the plaintiffs are his heirs; how or when they lost the possession, 'so as to become plaintiffs, is not stated. The equitable title supposed to be derived from the verbal sale of James M’Leod the father, to Watson, may be placed out of the question: since it has no effect upon the legal title; and, if the plaintiffs go into a Court of Equity, circumstances may be opposed of weight, sufficient to prevent relief: As may also the dispute, whether Robert’s deed to Kirk was recorded within time; since the act only declares a conveyance, not recorded, to be void as to subsequent purchasers without notice, and Arrell is found to have had notice: And we come to the question on the legal title. From this special verdict, it appears that both parties claim under Robert M’Leod; the defendants by a prior deed in December, 1783, and the plaintiffs by a subsequent deed in September 1784; and the prior deed must prevail, unless its operation is prevented by the adverse possession at the time of making it; as to which fact, the special verdict is uncertain, if not contradictory, for it states, that Arrell in 1776, entered into possession of the lot, and quietly held it till his death in 1795, and that Robert, at the time of his conveyance to Kirk, was out of possession; which might be true, and yet it might also be true, that Robert, after the conveyance, might peaceably enter into the lot, so as to make livery of seisin, if no person, claiming under Arrell, was then upon the lot; of which the memorandum endorsed on the deed and proved by the witnesses, is a very strong evidence, and which is rendered probable also, by, the nature of Arrell's occupation as stated, since he occupied it as a grass lot; but still, however strong, this is only evidence; and the fact, whether there was an actual and peaceable entry, so as to make the livery effectual, ought to have been decided by the jury; especially as they state an adverse possession, with notice. The Court is therefore of opinion, that they cannot *proceed to judgment upon this verdict, it being uncertain, if not contradictory, as to the material facts of Arrell’s continual possession from 1776 to 1795, and Robert M’Eeod’s peaceable entry to make livery to Kirk in 1783. The judgment is therefore reversed with costs, and a new trial awarded.  