
    *Breathed et al. v. Smith et al.
    January Term, 1855,
    Richmond.
    i. Writ of Right — Evidence—Older Patent. — In a writ of right, where the mise is joined upon the mere right, if no actual seizin by the demandants is proved, the tenants may give in evidence an older patent than that under which the demandants claim, with which the title of the tenants is in no way connected, to show a better outstanding title in a third person, which is evidence to be weighed by the jury, but not conclusive against the de-mandants. (Dawson v. Watkins, 2 Rob. 259 — accord.)
    a. Same — Same—Record of Proceeding of Unlawful Detainer. — on the trial of the mise joined on the mere right in a writ of right, the record of a proceeding of unlawful entry and detainer between the same parties, in which the tenants were plaintiffs and the demandants were defendants, is admissible evidence to show, that the tenants were out of possession at some time within three years before the commencement of the proceeding.
    In the Circuit Superior Court of Daw and Chancery for Morgan county, on the trial of a writ of right for nine hundred and twenty acres of land in Morgan county, the demandants offered in evidence to the jury, a patent from the Commonwealth, comprising the land in controversy, dated on the 30th of April, 1845, prior to the issuing of the writ, which was sued out on the 10th October, 1845.
    The demandants proved by a witness, that in the month of August, 1845, he had made a contract with one of the demand-ants for a lease of part of the said land, upon the terms that the witness should build a house to be occupied by him, and should clear as much of the said land as he chose, and should have one crop free from all he might so clear; that in pursuance of the said contract, the witness and the said demandant went together on the land, selected a place for the said house, and commenced cutting down timber to build the same, in which he and demandant were occupied one day, and that they cleared the site for the said house,*and cut down twenty or twenty-five logs; that he then left them, intending to return and complete it late in the fall.
    The demandants also proved by other witnesses, that, in September of the same year, he caused a quantity of timber to be cut and hewed on the said land, which was to be used in building the court-house of Morgan county, to build which the said de-mandant was contractor with the said county, and that some three weeks were occupied in cutting, hewing and hauling away the said timber, which was in fact used by the said demandant in building the said court-house.
    The tenants then proved by witnesses, that James Smith (whose heirs the tenants were), the father of the infant tenants, had cleared about three acres of the said land, in the year 1843 or 1844, and that he cultivated the .same until his death, in November, 1844, and his widow and children had cultivated it after his death; but it was proved that a crop of wheat was taken off the said three acres in the summer of 184S, previous to the month of August, and no other crop put therein during that fall. In the month of August, the fences were down, and the field seemed to have been pastured.
    They further proved by other witnesses, that the said James Smith claimed the said land under a deed derived from one Roster, dated in 1822, that he had for some twenty-three years been in the habit of cutting timber in different parts of. the said land for sale, had sold permission to cut timber thereon to other persons, and had sometime in the year 1841 or 1840, permitted another person to clear between six and ten acres of the said land, about half a mile distant from the first named clearing.
    The tenants further offered in evidence two patents, of date the 8th day of June, 1796, to one John Thornton, comprising the land in controversy, and relied on the said patents to show an elder title outstanding in the said Thornton, and unconnected with any allegation or proof of title in the tenants, derived under the saids last named patentee.
    *The demandants then offered in evidence the record of a proceeding of unlawful entry and detainer, between the said tenants as plaintiffs and the said demandants as defendants. The said proceedings were' commenced in September, 184S, and in October, 1845, the jury found that defendants did, within three years next before the exhibition of the complaint filed by the plaintiffs in the cause, unlawfully enter upon the tenement in the complaint mentioned, and turn the plaintiffs out of possession thereof, and that the said defendants did continue to hold possession thereof at the date of the said complaint, and that the plaintiffs have the right of ¡ possession in the tenement aforesaid; whereupon there was a judgment against the defendants for costs, and that a writ of habere facias possessionem, &c.
    This record was rejected by the court, and held not to be admissible evidence.
    And upon the foregoing proof as exhibited on both sides, the demandants moved the court to exclude the said patents to Thornton from the jury, as evidence on behalf of the tenants. But the court allowed the said patents to go in evidence to the jury, with the instruction, that if they believed from the evidence upon the proofs aforesaid, that the demandants were actually seized of the lands in controversy under their said patent, by possession, and taking the profits of the land, then they shall not regard the said patents to Thornton as evidence in the cause; tiut if upon the said proofs they shall believe that the tenants were seized of said premises, and were not thereof (or from) ousted and dispossessed by the demandants, in case, if they believe from the evidence that the Thornton patents embraced the lands in controversy, in law the demandants cannot recover. To which opinion of the court, refusing to exclude the said Thornton patents, but admitting them under said instructions, the demand-ants excepted.
    And the demandants further excepted to the opinion of the court excluding from the jury the record of the *proceedings in the case of unlawful entry and detainer offered in evidence by the demandants, to show that the tenants were out of possession at the date of the writ in that case.
    Upon this evidence, with the instructions of the court thereupon, there was a verdict and judgment for the tenants, to which judgment the demandants obtained a super-sedeas from the Court of Appeals.
    August, for the appellants,
    cited, Green v. Titer, 8 Cranch, 229; Green v. Watkins,..7 Wheat 27; Bolling v. Mayor of Petersburg, 5 Rand. 563; Dawson v. Watkins, 2 Rob. 259; Greenl. Ev. I 51 (a)-52, 530, 531.
    No counsel for the appellees.
   GIEMEE, J.,

delivered the opinion of the court.

This was a writ of right brought in the Circuit Court of Morgan county. The mise was joined on ■ the mere right, a jury em-pannelled, and a verdict and judgment rendered for the tenants.

During the progress of the trial, both the demandants and tenants having introduced evidence tending to prove that they had respectively made an actual entry upon the land in controversy, the tenants, for the purpose of defeating the demandants’ right to recover, by, showing a better outstanding title in a third person, introduced as evidence two patents from the Commonwealth to John Thornton, dated in 1796, without attempting to connect their title with them. The demandants moved the court to exclude said patents, -¡but the court over-ruled the motion and allowed them to be read as evidence to the jury, with the instruction set. forth in the first bill of exceptions.

The first question to be decided is, whether or not the Circuit Court erred, in admitting the patents with the instruction given. It is well settled, that in a writ of right, where the demandant shows no actual possession *(or seisin by pedis positio as it is termed), but relies wholly on a constructive seisin by virtue of a patent of the land as vacant land, it is competent for the tenant to disprove that constructive seisin, by shewing that the State had previously granted the same land to other persons with whom the tenant claims no privitjn Green v. Watkins, 7 Wheaton; Dawson v. Watkins, 2 Rob. Rep. 259. This principle is founded on the obvious reason that the Commonwealth, having by patent divested herself both of possession and title, a subsequent patent can convey neither.

Applying this principle to the first instruction, given by the Circuit Court, I see no objection to the first part of it; but I think the latter part too broad in this, that by it in the case supposed of an actual possession by the tenants, from which they had not been ousted by the demandants, the said patents are not only made evidence, but conclusive evidence against the de-mandants, instead of being admitted as evidence to be weighed by the jury.

The demandants offered as evidence before the jury the record, verdict and judgment in a proceeding of unlawful entry and detainer between the same parties for the land in controversy in this suit, as tending to prove an admission by the tenants, that the demandants were at the time when or at some time within three years before the said proceeding was commenced in possession of said land, but the court refused to permit it to be read, to which opinion the demandants excepted. As has been already stated the possession of the land was a question between the parties; therefore any testimony on that subject would be relevant to the issue. It cannot be denied that any admission made by either party on the subject would be evidence against him; and, if this be true, it follows as a necessary consequence, that a solemn admission entered of record must be evidence against the party making it. I think, therefore, that the Circuit Court erred in excluding the record from the jury for the purpose for which it was offered. Bolling *v. Mayor of Petersburg, 3 Rand. 563 ; 1 Green. Ev. p. 675, § 527 (a)-528. And for these reasons I am for reversing the judgment.

The decree of the court was as follows:

This day came the plaintiffs, by their counsel, and the defendants, although solemnly called, came not: whereupon, the court having, &c. is of opinion that the record of the case of unlawful entry and detainer mentioned in the second bill of exceptions, ought to have been received as evidence in the cause; and that so much of the opinion of the court upon the motion to exclude from the jury the patents of John Thornton, referred to in the first bill of exceptions, as declared, that “if the jury believed that the tenants were seized of the premises, and were not thereof (or from) ousted and dispossessed by the demand-ants, and that the Thornton patents embraced the land in controversy, in law the demandants could not recover,” was erroneous. The court might, with propriety, have said to the jury that if they believed those facts to be proved, then the patents were proper evidence in the cause. But to say, that “in law the demandants could not recover,” was going too far. Therefore it is considered, that the said judgment be reversed and annulled, that the plaintiffs recover against the defendants their costs by them expended in prosecuting their writ of supersedeas aforesaid here: and it is ordered, that the jury’s verdict be set aside and the cause remanded to the Circuit Court of Morgan county for a new trial to be had therein, with instructions to permit the record of the case of unlawful entry and detainer to go in evidence to the jury, if offered by the demandants for the same purpose, and if the same patents of Thornton should be again given in evidence so much of the instruction heretofore given, as is above declared to be erroneous, is not to be repeated.

Which is ordered, &c.  