
    Clay v. White and Others.
    Argued April 26th, 1810.
    I. Ejectment — By Patentee — Entry Unnecessary. — It is not necessary for a patentee of waste and unappropriated land, to make a personal entry thereon, to enable him to maintain ejectment; for the patent ipso facto confers seisin.
    2. Conveyance of Land — Necessity of Possession by Grantor. — Such seisin may be transferred and continued by deed of bargain and sale, or by devise: but a person,-whose seisin is interrupted by the actual entry and adverse possession of another, cannot, while out of possession, convey by bargain and sale such a title as will enable the bargainee to recover in ejectment.
    3. Ejectment — Special Verdict — Failure to Specify Boundaries — Effect.—The plaintiff in ejectment may recover less land than the quantity stated in his declaration. But, if the Jury ñnd a special verdict, shewing the plaintiff entitled ío a certain number of acres, part of the tract sued for; and do not specify the boundaries of such part with so much precision as that possession thereof may with certainty he delivered; a venire de novo ought to he awarded.
    This was an action of ejectment, in the District Court of New London, for 342 acres of land lying- in Pittsylvania County. The Jury found a special verdict, stating the following facts:
    John Fox obtained a patent from the Commonwealth for the land in question, on the 8th of July, 1780. In his will, 163 *dated August 5, 1780, and admitted to record, May 7, 1785, there is the following clause; ‘ ‘Item, my will is that all my land shall remain under the care and direction of my wife, to be given to, and divided amongst, my sons, John Fox, W. Fox, T. B. Fox, and Henry Fox, in such manner and proportion as she shall think fit; as they, or either of them, attain to the age of twenty-one, or marry; which shares or proportions of my said lands, so given to such child or children, I give to either, and all of them, and to his or their heirs and assigns for ever.” Anne Fox, the testator’s widow, on the 20th day of June, 1799, by indenture reciting the devise, and that Henry Fox, one of the testator’s sons, had attained his age of twenty-one years, “in pursuance of the bequest and authority thereby given to her, and in consideration of natural affection, and of five shillings to her in hand paid by the said Henry, did give, grant, bargain and sell, alien, enfeoff and confirm, to the said Henry one tract of land, in the County of Pittsylvania, containing 342 acres; describing the bounds, as in the patent; and reciting that the testator John Fox died seised and possessed thereof, in fee-simple: which deed was proved in Gloucester County Court, and certified to the Court of Pittsylvania County', where it was admitted to record in July, 1799. On the same 20th of June, 1799, Henry Fox (in consideration of 300 dollars,) sold and conveyed the same land to Matthew Clay, the lessor of the plaintiff, by deed of bargain and sale, which was duly recorded in Pittsylvania County Court.
    According to a survey, made in the cause, (in presence of the parties, and set forth in the verdict,) the lands in controversy contained 440 acres; beginning as in Fox’s patent, and running one or two courses nearly corresponding with the lines thereof, and some others apparently the same, or nearly so; and including a survey of 350 acres made August 2, 1788, for William White, one of the defendants; in whose favour a patent duly issued from the Commonwealth, on the 25th of February, 164 1792, “for 350 sacres of the land in controversy;” which patent recites that, “in consideration of the ancient composition of one pound fifteen shillings sterling, there is granted to the said William White 350 acres of land, by survey,” &c. the lines of which are recited, and do not appear to bear any relation to, or conformity with, those in Fox’s patent.
    The verdict farther stated that the said White had been in possession of the said 350 acres ever since the date of his patent: but “whether any of the before named persons were in actual seisin of the land other than is stated above, the Jury did not know.” They found the lease, entry and ouster in the declaration mentioned, and concluded in the usual form.
    The District Court gave judgment for the defendants; from which an appeal was taken to this Court.
    Hay, for the appellant.
    The District Court appears to have given judgment for the defendants on the authority of Tabb v. Baird and others, 3 Call, 475; according to which, a person not in possession cannot convey by bargain and sale such a title as will enable the bargainee to recover in ejectment against another holding by adverse possession. But the facts in this case do not justify the application of that authority to it. The lines of Fox’s patent are expressly stated to contain 440 acres, and include the 350 acres of land granted by' White’s patent. The Court, by misapprehension, thought that White was in possession of the whole land claimed by Clay; supposing 350 acres to be all: but surely Clay had a right to recover the difference between the 440 acres and the 350; though he had no right to recover the 350 acres. The obscurity of the survey and verdict misled the Court; and a venire facias de novo ought to be awarded, to ascertain the lines of the smaller patent within the bounds of the larger. Clay was entitled in equity to the whole 440 acres; and in strict law to the 90 acres only. But he ought to have recovered the latter at any rate.
    *M’Crae and George K. Taylor, contra.
    There could be no ground for this. Hither White was in possession of the 350 acres only; or of the whole land. If the former was the case, the plaintiff could not set up a claim against him for the 90 acres which he had not in possession. The case of Goodright, Lessee of Balch, v. Rich, shews that confession of lease, entry and ouster does not conclude*the question of possession; that, if the defendant be not actually in possession, judgment ought not to be given against him; and that the plaintiff ought to prove that the defendant is in possession.
    Here the declaration claims only 342 acres. There is nothing to prove that White was in possession of more than his patent warranted. If he had had nothing in his possession, claimed by Clay, there could be no doubt that Clay could not have recovered against him: and the same reason applies to these 90 acres.
    But, if White was in possession of the 90 acres, on the same ground that the plaintiff’s title failed as to the 350, it fails as to the 90; for the possession is equally adverse in both cases.
    No possession is found in Clay, or those under whom he claims, except so far as the deeds might be construed as carrying possession.
    Hay, in reply.
    Nothing is said positively as to the possession of the 90 acres. Clay’s title to the whole 440 appears. But, according to Tabb v. Baird, he cannot recover the 350 acres in this form of action. The question in Term Reports did not arise on a special verdict; but at the trial; being whether the defendant could be admitted to prove himself not in possession, or whether the plaintiff was bound to prove him in possession. No such question arose here. It would be inconvenient to transfer the doctrines recently established in England to this country. This is not a rule of property, but of practice; .and, even in that country, the rules are different in different Courts.
    *The verdict here is too defective to enable the Court to decide the whole case. There are other defendants besides White. Hardy and others, also confessed lease, entry and ouster. They may be in possession of the 90 acres. The Jury ought to have said who was in possession of them.
    Taylor. This is a new objection. Either White is in possession ; or he is not. If he is not, the law is clearly in our favour. If he is, the Jury were not bound to state the title of the defendants; for the plaintiff must recover by the strength of his own1 title; not by the weakness of the defendants’ title. The plaintiff’s title is clearly defective according to Tabb v. Baird; it appearing that the person of whom he bought never was in possession. The Jury’s stating farther the adverse possession of White was altogether surplusage.
    Saturday, May 28th. Judge Fleming informed the counsel, that an argument was requested on the following point; “whether the bare obtaining a patent for land is to be considered as giving seisin to the grantee?”
    October 29th. Hay maintained tne affirmative ; relying especially on the language of the several acts of assembly concerning the land office; from all which it appears to have been the intention of the legislature to grant an absolute unconditional title to the patentee.
    He suggested as a proposition, whether a conveyance by record is not equal to livery. In England there are two kinds; a fine and a common recovery. By either of these a complete title (which according to Blackstone is juris et seisin* conjunctio) is transferred, and no entry is necessary to perfect it. A patent under the great seal is of equal dignity: for in 5 Co. 94, b. the doctrine is laid down, totidem verbis, that letters patent under the great seal amount to a livery in law. So in Bac. 167 Abr. tit. Prerogative, and *17 Viner, 95, it is said that a grant of a reversion by the king is good without attornment. If such would have been the effect of a grant under the regal government, he could see no reason why a patent granted by the Commonwealth should not have the same effect.
    Every principle of public convenience requires that this position should be held to be true: and, when we advert to the situation of this country, it is peculiarly necessary. To take actual possession in many cases would be extremely difficult. The patentee must take witnesses with him; and by their subsequent death or removal might be prevented from recovering, though he had the oldest patent.
    If a patent were not sufficient without actual entry, it might often happen that a younger patent would take precedence, and the claimant under the older patent be driven to a suit in Chancery. But the uniform understanding of the people of this country is, that the patent itself gives complete title, and enables the patentee to maintain any action whatsoever.
    George K. Taylor, contra,
    did not contradict Mr. Hay’s position that the act of assembly gives a title: but the question is whether that title is of itself sufficient to enable a party to maintain his action without actual possession. The legislature has indeed declared that actual possession need not be proved to maintain a writ of right ; but this does not extend to ejectment; for exception probat regulam. It would seem a fair inference from that act, that, if it had not been passed, proof of actual possession would have been necessary in a writ of right.
    The case then stands as influenced by decisions in England alone. The authority of Barwicke’s case is admitted; but it only proves that a patent amounts to a livery in law. Now it is clear that a livery in law is not sufficient without actual possession. 3 Bac. Abr. 146, (Gwill. edit.) tit. Feoffment.
    Cur. adv. vult.
    *Thursday, April 19, 1810.
    
      
      Ejectment — By Patentee — Entry Unnecessary. — It has been uniformly held that a patent confers constructive seisin In deed sufficient to enable the patentee to maintain a writ of right. Dawson v. Watkins, 2 Rob. 268, citing tbe principal case, Green v. Liter, 8 Crancb 229; Green v. Watkins, 7 Wheaton 27. But seisin of some kind must be shown, either the constructive seisin in deed by tbe operation of tbe grant, or seisin in deed by the possession of the land and the reception of the profits. Dawson v. Watkins, 2 Rob. 268.
      See also, monographic note on “Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172.
      Patent — Effect—Constructive Seisin, — A patentee by the mere operation of his grant acquires at once* constructive seisin in deed of all the land embraced within its boundaries, although he has taken no actual possession of any part thereof. Koiner v. Rankin, 11 Gratt. 427; Holloran v. Meisel, 87 Va. 401, 13 S. E. Rep. 33; Garrett v. Ramsey, 26 W. Va. 373.
      And, in Garrett v. Ramsey, 26 W. Va. 351, it is-said: “Constructive seisin is seisin in law, where there is no seisin in fact. Thus when the state issues a patent to a person who never takes any sort of possession of the land granted to him, he has nevertheless constmctive seizin of all the land in his grant, though some one else be at the time in actual possession of it; for this actual possession of land belonging to the state is not regarded as adverse possession, as the state cannot be dis-seized.” As authority for this proposition the principal case is cited among others.
    
    
      
      Conveyance of Land — Necessity of Possession by Grantor. — To the point, that an owner of land, whose seisin is interrupted by the actual entry and adverse possession of another, cannot, while out of possession, effectively convey such land by deed of bargain and sale, the principal case, Duvall v. Bibb, 3 Call 362; Tabb v. Baird, 3 Call 475; Hall v. Hall, 8 Call 488; Bream v. Cooper, 5 Munf. 7, and Hopkins v. Ward, 6 Munf. 38, are cited in Williams v. Snidow, 4 Leigh 17. But actual possession of the land by the grantor is not indispensable to give effect to his deed, for, if the possession held by another be of a fiduciary character, or if its origin and continuance were such as not to amount to a disseisin except at the election of the owner for the purposes of the remedy, it will not impede the operation of the deed. Foot-note to Tabb v. Baird, 3 Call 475; footnote to Williams v. Snidow, 4 Leigh 14.
    
    
      
      Ejectment — Special Verdict — Failure to Specify Boundaries — Effect.—See the principal case distinguished in Mooberry v. Marye, 2 Munf. 461.
      Same — Verdict for Less Than Claimed in Declaration. —It is not necessary that the plaintiff in ejectment should recover all that is demanded in the declaration. He may recover less. Callis v. Kemp, 11 Gratt. 84, citing the principal case as authority. And, in Marshall v. Palmer, 91 Va. 345, 21 S. E. Rep. 672, it is said that one may sue in ejectment and recover less than he claims in his declaration (the principal case and Callis v. Kemp, 11 Gratt. 78. being cited as authority for the proposition), but he cannot recover more than he proves he has title to in himself. Thus, it was held in this case (Marshall v. Palmer), that one joint tenant cannot recover, in an action of ejectment in his own name, as sole plaintiff, the interests of himself and his co-tenants.
      See generally, monographic note on “Ejectment’* appended to Tapscott v. Cobbs, 11 Gratt. 172.
    
    
      
       7 T. R. 327.
      
    
    
      
       Ch. Rev. p. 98, 1 Rev. Code, p. 142, s. 5, p. 147, s. 43, and p. 148. s. 44.
    
    
      
       Barwicke’s case.
    
    
      
       1 Rev. Code, c. 12, s. 29.
    
   The Judges delivered their opinions.

JUDGE TUCKER

(after stating the case) proceeded as follows: Mr. Hay admitted that, after the decision of this Court in the case of Tabb v. Baird, 3 Call, 475, and Duval v. Bibb, Ibid. 362, he could not support the plaintiff’s title, under the deed of bargain and sale from Henry Fox, to maintain an ejectment for so much of the land in controversy as was found by the Jury to have been in possession of the defendant at the time that conveyance was made; but contended, that, if the verdict contained sufficient certaintjr to ascertain the bounds of White’s 350 acres, judgment ought to be rendered for the plaintiff, for the remaining 90 acres; or, if the verdict be too uncertain for that purpose, there ought to be a venire de novo. I am of that opinion ; for, if John Fox, the testator, was capable of devising this land, (of which hereafter,) Henry, his son, must be considered as taking under the devise, and not merely under the deed from his mother, which was intended to be, and was in fact, an appointment by her, under the power given by the will, and not a conveyance of any interest from herself, though both the considerations of natural love and affection, and of five shillings in money, are also mentioned therein. Whether Mrs. Fox the mother ever entered upon these lands confided to her care does not appear, and is not material to this part of the case. But the patent to White, and his actual and continued possession of the lands from the date thereof in 1792, either vested in him a rightful, or wrongful possession adverse to the title of John Fox, and of all claiming under him; so far as that possession actually extended; but no further. For it would be a most mischievous construction, indeed, to suppose, that the entry of a disseisor upon one hundred acres of land, part of one thousand, or more, would prevent the owner from conveying away the residue, to any other person he might think proper. Here the Jur3' have found the lands in controversy 169 * (meaning, I presume, the lands comprehended within the lines of Fox’s patent) to contain 440 acres, and that White’s survey contains only 3SÓ acres; the amount, though not the precise bounds of the disseisin, or ouster, are therefore shewn by the jury: and they ought to have discriminated between the lines of White’s patent and that of Fox, which the surveyor, in his report, alleges, covers and includes the former; Fox’s deed to Clay not being impeachable for the surplus.

Mr. Taylor, for the appellee, cited the case of Goodright, Lessee of Balch, v. Rich, 7 T. R. 327, to shew that the plaintiff is not entitled to a verdict for those ninety acres, because he is bound to prove the defendant in possession of the whole of the premises which he seeks to recover. Without examining the doctrine laid down in that case, to which, as at present advised, I cannot subscribe, and to which the cases of Smith v. Mann, and Jesse v. Bacchus, cited in Buller’s Ni. Pri. 110, perhaps afford a proper answer; the reply of Mr. Hay, that the Jury have in this case expressly found the lease, entry and ouster in the declaration mentioned, is, in my opinion, sufficient to obviate the objection, were such an obligation as Mr. Taylor contends for admitted.

We come now to the question suggested by a member of the Court, whether a patent from the Commonwealth be equal to an actual seisin ; or, as I understood the question, whether a patent only confers a complete title to lauds derived from the Commonwealth ; without an actual entry into the same and corporeal possession thereof, or not.

That an entry is not always necessary to give seisin in deed, appears from the cases cited by Mr. Hargrave, Co. Litt. 29, a, note 3. In England, letters patent under the great seal amount to a livery in law. In this country, where grants of waste and unappropriated land only are generally made, as in the present case, I should suppose a grant of such lands from the Commonwealth, under the seal of the state, must be considered as tantamount, not 170 *only to a livery in law, but to a liver>’ in deed. For the lands, previous to the patentee’s location, must have been waste and unappropriated, or they could not have been granted. The patent conveys all right and title whatsoever out of the Commonwealth : there is nothing in our law which implies a forfeiture in case of non-entry; whatever might have been the construction when certain improvements were required to be made within three years; there is no ground to suppose the Commonwealth can ever gain a right to the lands, so granted, again, but by escheat for want of heirs, or by forfeiture for non-payment of taxes; the right of the patentee must then be supposed to be complete and absolute. The patent is the symbol of his possession, as well as of his title. And an3' person entering upon that possession must be a trespasser or a disseisor. If the King enters into lands without title, or seizes lands by a void and insufficient office, he is no disseisor, (because of his prerogative,) but the freehold remains in the former owner; but if the King, by letters patent, grant the lands into which he has so entered, or has so seized, without title, if the patentee enters, he is a disseisor, If the King grant lands to one, and, before he enters, another person enters and keeps the possession until he dies, and dies seised; and the lands descend to the heir of the disseisor; yet may the patentee enter; for his entry is not taken away by the descent in this case, Upon common law principles, then, I am of opinion that an actual entry into waste and unappropriated lands granted by the Commonwealth is not necessar3r, in order to complete the patentee’s title thereto; but that the same is, upon the delivery of the patent, absolute and complete for every purpose whatsoever, whether to maintain an action, or to transmit an inheritance, or to grant the same by deed, or by last will and testament.

Other reasons, I think, may be drawn from the nature and situation of the country ; constant usage from its first settlement; and some particulars in our laws.

All the lands in Virginia have been originally granted *as vacant lands.

Whatever might have been the policy at the first settlement of the colony, large and extensive grants were made soon after.

With the revolution, it became an object to raise a revenue from the sale of vacant lands, without requiring any actual settlement or cultivation. Millions of acres were disposed of to purchasers from all quarters upon those terms. It was impossible to calculate upon an increase of population commensurate with such extensive grants. All that the Commonwealth required of the patentee was the jjayment of his taxes upon the lands thus acquired. That done, the law had no other claim upon him. Why then must he make an actual entry? His patent was evidence of every thing that could be the object of such an entry. It was founded upon an actual survey; for making which he paid all the expense; this survey was founded upon an actual location, made, or supposed to be made, by himself or his agent. His land-warrant was his authority for so doing ; and his entry in the surveyor’s books; the subsequent survey made pursuant thereto; and, finally, his patent, were all so many evidences, in succession, of these facts. If the possession of a lessee for years, at common law, be construed as the possession of him that hath title to the freehold, (without entry, or receipt of rent,) so as to make a man tenant by curtesy of his wife’s estate, surely these acts done by the patentee or his agents, (though preparatory to a patent, instead of being subsequent thereto,) may, in favour of a purchaser for a valuable consideration, (and such every patentee from the Commonwealth is,) be construed as equivalent to an actual entry, into lands granted by the Commonwealth. How many thousand titles must be defeated, if, in order to transmit an inheritance in lands so granted, or to give validity to a devise thereof, or to any other conveyance, an actual entry and corporeal seisin must be proved in every case? It would be both a mischief, and an inconvenience, too great for the law to adopt, or to countenance.

*Again; by an express provision in our law, actual possession need not be proved to maintain a writ of right. If the law will admit a patent, as evidence of a complete title in the demandant, or his ancestor or predecessor, in the highest and most solemn contest concerning lands, will it reject such evidence in an action merely possessory. The object of the evidence in both cases must be to prove an hereditary right in the original patentee, absolutely perfect, so as to be capable of conveying or transmitting the inheritance. It would seem strange if we were to reject the evidence of this patent to John Fox, in this case, as insufficient to support the plaintiff’s title derived from his son, and devisee, and thirty years hence the same patent should be offered and admitted as evidence sufficient to maintain a writ of right for recovery of those lands, or others in the same predicament.

Nor do I conceive it necessary that Henry Fox should have made an actual entry upon the lands to enable him to convey to Mr. Clay. Wherever there is a devise of lands, the law casts the freehold upon the devisee before entry; and, bjr the will, the possession of these lands was in Mrs. Fox, until she had made the appointment to her son pursuant to her husband’s will; that appointment being made, the law cast the possession, both under the will and under the deed of bargain and sale, (in which form the appointment was made,) instan ter, upon the son. His possession thus acquired enabled him to convey all the lands of which he was not actually disseised. An actual entry was not necessary to be made by either, to enable the plaintiff to maintain an ejectment,

Upon the whole, I am of opinion that the plaintiff was entitled to recover all the lands comprehended within the lines of John Fox’s patent, of which his son and devisee was not actually disseised, by the abatement of William White, at the time that Henry Fox executed the conveyance to the plaintiff, which the Jury have found in their verdict; and therefore that there 173 ought to be a venire *facias de novo, to ascertain the boundaries of the lands not comprehended within the line of White’s patent for 350 acres; the plaintiff being entitled to the residue.

JUDGE ROANE.

In the case of Birch v. Alexander, it was held that a seisin in the Commonwealth need not be found; that being the ultimate point beyond which a party in proving his title is not bound to go. Although this would seem to import that, in all the derivative stages, seisin must be found, yet undoubtedly the finding of an actual seisin, or corporeal investiture, may be supplied by finding other things deemed by the law of equal validity and notoriety. Thus, under the decision in Tabb v. Baird, it would be sufficient to find that a defendant purchased by deed of bargain and sale, (which is considered as a statutory livery of seisin,) from a person having possession. So, as a fine is deemed an acknowledgment of a feoffment of record, and in which livery of seisin is not necessary to-be actually given, the supposition and acknowledgment thereof in a Court of Record, however fictitious, inducing equal notoriety, the finding of an assurance of that kind would be equally effectual, were it not obsolete in this country. In like manner it is held, . that letters patent, under the great seal, amount to a livery in law. In all these cases an actual corporeal tradition is dispensed with by the law, on the ground that acts of equal notoriety with it ought to have an equal and similar effect. The reason of this holds very strongly in relation to grants of land in a new country, where the proof of actual possession would be very difficult, and where, in some sense, a corporeal investiture of the land has been already taken by the entry and survey which preceded the grant, and may be said to be admitted and sanctioned thereby. In the case before us, the seisin thus acquired by the original patentee was deduced to the present appellant by the deeds of bargain and sale stated in the verdict, as to all that part of the tract in question, of which the appellees were not in possession un174 der * William White’s fatent, and he is entitled to recover that residue. But, inasmuch as the verdict is defective in not particularly locating in the plot White’s patent, and, consequently, does not shew where that surplus lies, the verdict ought to be supplied in this particular, and therefore a venire de novo ought to be avrarded.

JUDGE FLEMING.

It appears by a survey and plot made under an order of the District Court of Franklin, that Fox’s patent, under which the appellant claims, contains (instead of 342) 440 acres; and it is found by the verdict, that White’s patent, containing 350 acres, is included therein: but no discrimination as to the part of the plot in which the said 350 acres lie; so as to ascertain the boundaries of White’s patent. Therefore, for the uncertainty, I concur in opinion that the judgment be reversed, the cause remanded to the Superior County Court of Franklin; and that a venire de novo be awarded.

It is to be understood as the unanimous opinion of the Court, that a patent from the Commonwealth for waste and unappropriated lands gives to the grantee a sufficient seisin to enable him to alien, without having ever been in actual possession of the premises, by a personal entry thereon.

The following was entered as the opinion of the Court: “The Court, having maturely considered, &c. is of opinion that the special verdict is uncertain and insufficient in this; that it appears by the survey, made in this cause and referred to in the said verdict, that the boundaries of the lands claimed by the lessor of the appellant under Fox’s patent, contain 440 acres, within which the lands designed in the grant to the appellee White, containing 350 acres only, are found by the Jury to lie, without discriminating the metes and bounds of the lands contained in the last mentioned patent, whereby 17S the boundaries of the residue *of the said 440 acres to which the lessor of the appellant is entitled may be ascertained; and that the said judgment is erroneous.” The same was therefore reversed and annulled, and a venire facias de novo awarded. 
      
       Co. Litt. 15, a, 3 Atk. 471, 3 Wilson, 516, Newman v. Newman.
     
      
       5 Co. 94, Barwicke's case.
     
      
       Bro. Abr. tit. ‘Disseisin’ 65; 4 Bac. Abr. ‘Prerogative,’ ad finem. p. 214, old edit.
     
      
       Co. Litt. 240, b.
     
      
       Vide Harg. Co. Litt. 29, a. note 3.
     
      
       Co. Litt. 111, a.
     
      
       Co. Litt. 240, b. Bull. Ni. Pri. 103; 3 Burr. 1897, Dough 468.
     
      
       1 Wash. 39.
     
      
       3 Call, 475.
     
      
       2 Bl. Com. 348.
     
      
       5 Co. 94, Barwicke’s case.
     