
    George Rogers Clarke v. John M‘Intire.
    An action of debt, on a bond in the penalty of 500l. was brought to April term, 1792. An action had been brought, on the same bond, in Ohio county, and discontinued. The bond was for the delivery of flour, and was given as the consideration of a purchase of a tract of land in Ohio county, claimed by virtue of an actual settlement and a military warrant. The purchase was made 17th July, 1786, the date of the bond. The defendant pleaded payment, with leave to give want of consideration in evidence. On this plea, the defendant shewed an exemplification of a patent, dated 11th October, 1783, from the state of Virginia to Moses Chapline for 500 acres, surveyed 11th December, 1781, on a military warrant, dated 19th March, 1781. Evidence was also given, from the surveyor, of a survey for David Rogers, on a certificate of an actual settlement, prior to that of G. R. Clarke, of 400 acres; and that these two surveys took up all the claim and survey of Clarke, except a long narrow strip of about 50 acres. Moses Chapline is in possession of his survey, believes his title the best, and will maintain it. The heirs of David Rogers also continue their claim and possession. Clarke had no military warrant entered; nor had he any certificate of settlement, till November, 1786, when on an application in his name by M'Intire, the court of Ohio county ordered a certificate to be granted of a settlement in 1773.
    
      Brackenridge, argued for the defendant.—Ross and Bradford, for the plaintiff.
   President.

It has been objected, by the counsel for the plaintiff, that we have no authority to try the title of land in Virginia. Directly, it is true, we have not. But when it comes incidentally before us, in a case over which we have jurisdiction, the principal draws after it all its incidents. It is indifferent where the land lies, be it in Turkey or in China, the right to it comes incidentally before us, in the trial of a personal action, for the trial of which its examination is necessary: therefore we have authority to examine it.

Act of Virginia, 1779.

But who brought the cause here? The plaintiff was, at the time of the contract, and of bringing the suit, a citizen of Virginia, and is now a citizen of Kentucky.—The defendant was then, and is yet a citizen of Virginia. The contract was made in Virginia respecting land in Virginia. The plaintiff arrested him in Pennsylvania, and would use his own arts, to deprive the defendant of the advantage of his defence. Had the cause been tried in Virginia, the courts there could try the right; and this objection would not have existed. Had the cause been tried in Virginia, there is a court of Chancery there, to which the defendant could have applied for an injunction, to stay the plaintiff from execution, till he could try the title, and shew whether he had value or not for the bond. In Pennsylvania, there being no court of Chancery, or power of injunction, defendants are at liberty to give want of title or any other consideration in evidence. The objection, that the land is in Virginia, comes with a very ill grace, on the part of a man who has himself brought the cause here, if he would deprive the defendant of the advantages, which he could have had where he and the plaintiff lived, and where the contract was made, and the subject of dispute lies.

We endeavoured to reduce the matter to the same shape, as if the cause had been tried in Virginia under the power of an injunction. We proposed a judgment for the plaintiff, with a stay of execution till the title could be tried in Virginia. But the plaintiff’s counsel rejected this proposal.

It will be attended to, that, at the time of the contract, there was a patent, for Moses Chapline, for part of the land surveyed by M'Intire on this claim. If we were excluded from examining Virginia titles; is not this, conclusive evidence, that Chapline has the title? This patent, being previous to Clarke’s certificate on his settlement, excludes the certificate; for the authority of granting certificates was for unpatented land.

It will also be attended to, that Clarke, at the time of the contract, represented that he had a military warrant located on the spot. There is evidence from the surveyor of the district, that no such warrant was or is located. The question then is, Did M'Intire take his chance of the land, knowing all the circumstances? Of did Clarke sell, and M'Intire buy a title represented of supposed good for a competent price? The presumption is strong, that it was intended on both sides, to buy and sell a good title. Whether the fact be so or not, you will judge from all the circumstances.

Antc p. 127

If a supposed good title was bought, the next question is, For how much land; and whether M'Intire has got all that was intended as the worth of his money? The value of whatever part he has not got of what he ought to have got, you will, under this plea, consider as paid of the bond.

As to David Rogers' title, the defendant has not made a clear case. He ought to have shewn a good title against himself. He has only shewn presumption, the weight of which, considering the proposition which has been made to the plaintiff and rejected, you will judge. If any of the land sold be within Moses Chapline’s survey, you ought to deduct in proportion.

The jury found a verdict for the plaintiff for 25l. 5s. 1d. and costs of suit; with this further, that the defendant should prosecute for the recovery of the whole land, and, if recovered, pay the contents of the bond.

This was compelling the plaintiff to accept the proposition, which had been made. The 25l. 5s. 1d. found for him, was for the 50 or 58 acres not included in either of the surveys of Chapline or Rogers.

Ross, two days after, on the part of the plaintiff, moved for a new trial, on a case stating the circumstances, and read 3 Comm. 390, and the case of Steinmetz v. Curry, Dall. 234, and argued on the following points.

1. The court left it open to the jury to presume title to destroy the title sold, when the action was on a deed, and it became incumbent on the defendant to shew want of consideration. The onus probandi was on him, and he must shew it absolutely, especially as he had a patent on the title sold and the certificate afterwards obtained from the court of Ohio county. The jury ought to have presumed no title, to wit, no certificate, because none was shewn; and the court ought to have to directed them, agreeably to the decision of the court of Westmoreland county in the case of Carnahan v. Hall.

President. That case was decided on an exception to evidence. Here the evidence was admitted without exception.

Ross. If the court, on exception, would have excluded the testimony, they ought positively to have directed the exclusion of its effect.

2. From the possible ignorance of foreign titles, there may be great inconvenience in this court judging of any foreign title.

3. We were surprised by hastily suffering the evidence to go to the jury, mixed with proper testimony.

Brackenridge, for the defendant.

1. The court did direct the jury, that it was not the best evidence; and left the presumption of the existence, and the presumption of the want, of the best evidence of title to operate against each other; that the jury might weigh both, and decide accordingly.

2. The lex loci is the ground on which every contract must be determined; yet a contract may be sued on any where. So, whatever be the consideration of a bond, value of that consideration may be examined by the court in which a recovery on it is demanded.

3. If any surprise had been, justice has been done.— There certainly does exist a good title, a patent, in the assignee of David Rogers. But through ignorance of the name, which we now know, we could not obtain it before the trial, and I did not think of the certificate and entry.

The court took time to consider it: and the case has never since been mentioned.  