
    Archer, Administrator of Tanner, v. Saddler.
    Thursday, April 28, 1808.
    Grant — When Presumed — Province of Jury. — A patent or grant for lands may, under circumstances, he presumed to have formerly issued, of which circumstances, and of the conclusion to he drawn from them, it is the province of the Jury, and not of the Court, to judge.
    Same — Same—Possession and Payment of Taxes. — In this case, the circumstance of upwards of sixty years peaceable and uninterrupted possession in the caveator, and those under whom he claimed, together with the payment of quit-rents before, and taxes since, the revolution, was considered as sufficient ground for such presumption.
    Administrator Cum Testamento Annexo — When May Maintain Caveat. — An administrator with the will annexed, being in possession of lands therein directed to be sold, may maintain a caveat to prevent any other person from obtaining a patent for the same as waste and unappropriated.
    On the 13th day of May, 1801, Peterfield Archer, administrator, with the will annexed of Branch Tanner, deceased, filed with the clerk of the District Court of Richmond, a copy of a caveat in the following words: ‘ ‘Bet no grant issue to Thomas Saddler, or his assigns, for two hundred and twenty-eight and one quarter acres of land in Chesterfield, on Indian Spring Branch, surveyed in the name of the said Saddler, on the 3d of October, 1797, and returned to the land-office, on the 10th day of January, 1798; because Peterfield Archer, administrator, with the will annexed of Branch Tanner, deceased, claims the said land, under the testament and last will of the said Tanner, to sell first for the purpose of paying the debts of the said Tanner, and, afterwards, of paying over the residue of the money in equal proportions to Joseph Royal Archer, Pe-terfield Archer, Mary Page, Pinnie Saunders, formerly Archer, Martha Pield Archer, and Elizabeth Royal Archer, legatees of the said Tanner, who was seised and possessed of the said land in fee-simple in his life-time. He the said Tanner, and those under whom he held, or from whom he derived title to *the said land, having been in rightful and peaceable possession thereof for 60 years at least anterior to the date of the entry, by virtue of which the said Saddler caused said survey to be made.”
    On this caveat, a Jury, being impanelled to ascertain the facts which were not agreed between the parties, found that Peterfield Archer, in whose name the caveat was prosecuted, was the administrator with the will annexed of Branch Tanner, deceased; finding the will, in haec verba; (in which the said land was directed to be sold for the purposes mentioned in the caveat;) that the land in dispute was comprehended in a deed from William Clayton to Branch Tanner the elder, dated Sept. 18th, 1773, which deed they found in like manner; that the said land was, among other lands, devised by Branch Tanner the elder, to his said son Branch; (finding also the will of Branch Tanner the elder;) and was part of the land devised by the said Branch Tanner the younger, to his administrator, for the purposes specified in the caveat; that John Soanes, about seventy years ago, that is to say, upwards of sixty years previous to the entry made by the defendant, was in possession of the land in dispute, claiming and using it as his own ; that Soanes sold it for a valuable consideration to one Eppes; that Eppes sold it in like manner to one Winfree; that Winfree sold it in like manner to one Clayton, who, as aforesaid, conveyed it to Branch Tanner the elder; but that no deed was produced from Soanes to Eppes, or from Eppes to Winfree, or from Winfree to Clayton, and no evidence appeared that any deed ever was executed, except from Clayton to Tanner as aforesaid, unless the execution of deeds might be inferred from the sales before stated; that the said land had been, from the commencement of the said Soanes’ possession as aforesaid, in the exclusive and successive possession of the said Soanes, Eppes, Win-free, Clayton, Branch Tanner the elder, deceased, and Branch Tanner the younger, deceased, and of the plaintiff as administrator, &c. as aforesaid, and at different periods *in cultivation; that, at different periods, from 1769 to 1773, the said Winfree, while he held the said land, paid quit-rents thereon; and the said Clayton, while he held the said land, also paid quit-rents thereon; that the said Branch Tanner the elder, in his life-time, and, since his death, the said Branch Tanner the younger, and, since his death, the plaintiff, had regularly paid, ever since the year 1782, the taxes chargeable on the said land; that, during the late war, to wit, in 1781, the Court-house of Chesterfield County was burnt by the British forces, and many papers and deeds destroyed or lost; (but the clerk’s office was kept at a distance from the Court-house;) and that a great number of the papers, deeds, and records of the office of Henrico County, were destroyed by the British troops during the same year, (1781.)
    Before the Jury retired from the bar, the plaintiff, by his counsel, contended, that they had a right to presume and find, that a patent had formerly issued for the land in question, if such fact was, in their opinion, a rational inference from the other facts which they should find ; but the Court instructed the Jury that they had no such right, as there was no patent, or copy of a patent, produced, nor evidence of the patent’s being lost or destroyed, and that the question, whether a patent was to be presumed or inferred from the facts found, was to be decided by the Court; to which opinion the plaintiff, by his counsel, filed a bill of exceptions.
    The Court pronounced the law, upon the facts found by the Jury, to be in favour of the defendant; from which judgment the plaintiff appealed.
    Hay, for the appellant,
    said, that whether there had been a patent or not, was a question of fact, exclusively (and especially under the caveat law) proper for the consideration of the Jury. To shew that the Court had no jurisdiction as to questions of fact, he cited Co. Hitt. 1SS b. 226 a. 12 Vin. 125, 21 Vin. 396, 1 Wis. 55, Witham v.
    *The Earl of Derby, and 5 Com. Dig. 158. Under the caveat-law, the Jury are to find such facts as are material in the cause, and not agreed by the parties. Now, the fact that a patent did issue was the most material of all, and was not agreed. Yet the Court excluded the Jury from deciding that fact.
    But, even if the Court ought to have decided this question, the existence of a patent ought to have been presumed from the circumstances,  The opinion of the Legislature upon the subject is clearly shewn by the act “concerning the title of the Commonwealth to lands which have been settled more than thirty years.” That act, indeed, cannot govern this case; but the principle which gave birth to it is a good one, and ought to be followed by the Court. Here, there has been possession in the ca-veator, and those under whom he claims, for upwards of 60 years, and a regular payment of quit-rents and taxes. From the nature of things, in many cases, it is impossible to know who was the original patentee; and therefore the patent itself, though it certainly once existed, cannot be produced.
    Randolph, for the appellee,
    contended, that the caveat could not be maintained by Archer, because Tanner had no legal estate. A patent could not be presumed without some evidence of its existence. Since patents were always recorded, originally, in the County Court, and, afterwards, in the secretary’s office, there could be no room for presumption ; but some memorandum at least, or proof of its having been destroyed, ought to be exhibited,  Presumption must have some ground to stand upon. A copy, a memorandum, or evidence of loss, are each sufficient; but, without some of these, the existence of a patent or deed, ought not to be presumed, 
    
    Before the revolution, no length of possession would bar the King; and the same doctrine has been recognised as to the right of the Commonwealth.
    *But, whether Tanner had a right to the land, or not, Archer, as his administrator, could not maintain the caveat. The testator appointed three executors, who refused to qualify. The act, respecting the sale and conveyance of lands devised to be sold,  does not apply to this case; for the land is devised to nobody. The administrator may sell, but who shall convey? If he make a conveyance, he must use the name of the heir.
    Hay, in reply.
    Mr. Archer was authorised by the will to sell the land. The Jury find he was in possession. They find also that he was a devisee, which appears an erroneous deduction by them from the will. I will, therefore, not insist on that. But it is not necessary for the plaintiff in a caveat to have such right as would maintain an, ejectment.
    Randolph. Where the caveatee has a legal right, no person not having a legal title can maintain a caveat.
    Hay. The case of Johnson v. Brown,  proves the contrary. It was absolutely necessary in this case, that the caveat should have been prosecuted by the administrator. It was not to be expected, that the heirs would have stepped forward for the sake of the devisees or creditors, in the protection of whose title they were not interested. It was the duty of the administrator with the will annexed, who was trustee of the lands for the payment of debts, and was himself in possession of the land, to defend the title.
    But, even if the caveat was instituted incorrectly, it ought to be dismissed without prejudice to the rights of Tanner’s heirs and devisees, 
    
    So much as to the form; now, as to the merits of the present controversy. It is contended, that, in this country, a patent cannot be presumed at all: but is there any reason against applying the English authorities here? The reasons assigned by Lord Mansfield, in Cowp. 106 — 111, apply *equally to this country. That case confutes the argument, that a patent, or a copy, or memorandum of it, must be produced. It is said, in Bedle v. Beard,  that, if such a doctrine should prevail, an ancient grant would injure, instead of strengthening a title, because the length of time increases the difficulty of finding the patent, &c.
    According to the case of Eldridge v„ Knott,  an act of Parliament may be presumed, notwithstanding the maxim “nul-lum tempus occurrit regi.”
    In this state it is impossible for most people to shew a better title to their lands than is here shewn by the caveator. I doubt not but the very grant in question is now under this roof: but, unless we know the name of the patentee, we cannot find it.
    Randolph. 2 Wash. 281, Leev. Tapscott, is a contrary authority.
    Hay. On what principle is the difference, there mentioned, to be admitted? In England, the King’s grants are, in themselves, matters of record : they pass through several offices, and are, in each, transcribed and enrolled. The reason is stronger, then, for allowing the presumption in this country, than in England. It is true, there is no adjudication for allowing such presumption here: but not a case to the contrary can be found. In the case of Lee v. Tap-scott, Judge Lj’ons, in his opinion, seems ■incidentally to admit that a Jury has a right to presume a patent; and Judge Pendleton also presumes the patent to have been recorded. We do not pretend that possession gives a right; but that its long continuance is evidence to presume a right.
    Randolph. A deed of bargain and sale may be presumed, because it is not necessarily recorded, being good between the parties, though not recorded: but a grant cannot be presumed.
    
      
       Rev. Code, I vol. p. 146, sect. 38.
    
    
      
       Cowp. 102, Mayor of Kingston upon Hull v. Horner, 1 Fonbl. 320.
    
    
      
       Rev. Code, p. 318, c. 228.
    
    
      
       Lee v. Tapscott, 2 Wash. 279.
    
    
      
       2 Burr. 1075, Ooodtitle, lessee of Bridges et al. v. Duke of Chandos.
    
    
      
       Rev. Code, 1 vol. p. 166, sect. 45.
    
    
      
      
         3 Gall, 259.
    
    
      
       1 Call, 206, Hunter, &c. v. Hall.
    
    
      
       12 Co. Rep. 5.
    
    
      
       Cowp. 214.
    
    
      
       2 Tuck. Bl. 346.
    
   ^Friday, May 6, 1808. The Judges delivered their opinions.

JUDGE TUCKER.

The principal questions in this case are,

1. Whether upwards of sixty years peaceable and uninterrupted possession in the caveator, and those under whom he claims, together with payment of quit-rents antecedent to the revolution, and of taxes since that period, afford a sufficient ground to presume a grant from the crown, for the lands in question?

2. Whether it was the province of the Jury, impanelled for the purpose of finding such facts as were material to this cause, and were not agreed by the parties, on the trial of this caveat, to presume such grant, or of the Court, before whom the trial was had?

3. Whether an administrator with the will annexed, directing the sale of the lands in question, the possession of which is also found to have been in the said administrator, and that, since the death of his testator, he had regularly paid the taxes thereon, can maintain a caveat to prevent the emanation of a patent for the same in favour of a person entering for the same, as waste and unappropriated land?

The first of these points depends upon the principles which were ably discussed and decided by Lord Mansfield and the rest of the Judges of the Court of K. JB. in the case of the Mayor of Hull v. Horner, just before the American revolution. In that case it was said by the enlightened Judge, “that if a foundation can be laid that a record or a deed existed, and was afterwards lost, it may be supplied by the next best evidence to be had, or, if it cannot be shewn that it ever existed, yet, enjoyment, under a title which can only be by record, is strong evidence to be left to a Jury, that it did once exist.” In Lord Purbeck’s case, the letters patent, which were the only proper evidence of his title, could not be *found; and there was no proof of the record having been lost; but he had sat in Parliament, and done other acts, which were evidence of a title; and the House of Lords presumed that a patent had existed. And, so long ago as the case of Beadle v. Beard, 12 Co. 5, it was observed, with great force, that ancient possession would injure instead of strengthening a title, if after a succession of ages, and the decease of parties, objections should prevail, which might have been answered in the life-time of the parties, and, if well founded, would most probably have been sooner made. In the case of a supposed byelaw, we are told, that usage' is allowed to support it, without any proof of the existence of such bye-law, or of the loss of it; and that the principle upon which this is done is -right; namely, in favour of rights, which parties have long been in the peace-able and quiet possession of. And therefore, that it may be taken to be established, in point of law, that although a record be not produced, nor any proof adduced of its being lost, yet, under circumstances, it may be left to the consideration of a Jury, or of a Court of Equity, if the case comes properly before them, whether-there be not sufficient ground to presume a grant. There is not one of these principles, which, under the circumstances of this case, does not operate in favour of the caveator. Sixty years quiet and peaceable enjoyment of lands in this country, are ten years over the period which is a perpetual bar, even in a writ of right. Such a period of uninterrupted possession strengthens every presumption in favour of a perfect title antecedent thereto; for the commencement of this peaceable possession is not shewn. It is carried back seventy years, which may be considered as the utmost stretch of human memory, where a witness speaks of his own knowledge and recollection. This is not unlike the case of Birch v. Alexander, as to this point. The acceptance of quit-rents by the crown, is a strong presumption of a grant from the crown, because quit-rents were reserved in all grants made by the crown. The not producing *the patent may have been owing to the general practice of the country to take a conveyance of lands, without requiring all the previous title-deeds, and muniments of a title not supposed to be disputable. And where large grants of land have been parcelled out among a number of purchasers, the original patent must have remained in the hands of one only, of those who claimed a title under it, and the omission to recite the seller’s title, which the want of skill among those who prepared deeds has rendered almost universal in Virginia, furnishes a still further argument in favour of presumption founded upon long and peaceable possession. The regular payment of taxes since the revolution bars all presumption of a right accruing to the Commonwealth by forfeiture for non-payment of taxes, and leaves the presumption, arising from the long and peaceable possession, unrepelled. The destruction of the records of the Courts in which the conveyances for this land ought to have been recorded, and in which the title might possibly have been deduced from an ancient patent, is also a circumstance favourable to the presumption of a patent in this case.

Presumptions, in favour of long and peaceable possession, that there has been a grant, must, at no very long period hereafter, be absolutely necessary to be made, on almost all occasions, in consequence of the operation of our law of descents. If lands descend in parcenary for the space of sixty years, we may venture to pronounce that in a country where there is no regular register of marriages, and births, the labour and ingenuity of the profession would in nineteen cases out of twenty be defeated, in the attempt to deduce a regular title, or to shew an original patent. And, if every speculator may enter upon lands which have been in the possession and occupation of any other, for such a period, 'unless he can shew a grant or patent for them, we may venture to pronounce, that not one man in twenty in Virginia will be able to hold his esta te.

*In speaking to the first point, I have necessarily touched upon the second, viz. that it is the province of the Jury, and not of the Court, to make the presumption. The act which directs a Jury to be impanelled for the purpose of finding such facts, as are material in the pause, and are not agreed by the parties, would be decisive in this case, were not the rule of the common law, in respect to it, as clear as it certainly is, in favour of the right of the Jury to make such presumption.

The will of the testator being found, and the possession of the caveator, under it, being also found, we are bound to presume he entered with the assent of the heir, for the purpose of fulfilling the will of his testator. I therefore think he had such an interest as to enable him to maintain a caveat.

Upon these grounds I think the judgment ought to be reversed, and the cause sent back with directions to impanel a Jury for the finding of such further facts, material to the cause, and not agreed by the parties, as are not already found by the Jury formerly impanelled for that purpose; on which occasion the District Court ought to instruct the Jury that they have a right to presume and find that a patent hath formerly issued for the land in question, if such fact shall, in their opinion, be a rational inference from the evidence which shall then be offered to them.

JUDGE} ROANE}.

I think it clear that th e Jury in this case had a right to presume a patent. In the case of the Mayor of Kingston upon Hull v. Horner, it is considered as the established law that although the charter is not produced, nor any proof made of its being lost, yet, under circumstances, it may be left to the consideration of a Jury, or of a Court of EJquity, (in exclusion of a Court of Raw,) if the case comes properly before them, to presume a charter. In Lord Purbeck’s case, (stated in the opinion of the Court in that case,) it is said that the letters patent could not be found, and that there was no proof of the *record being lost; but, inasmuch as he had sat in parliament, levied a fine of his hon-ours, &c. and enjoyed them till the time of his death, it was presumed that the letters patent had existed.

In the case of Eldridge v. Knott, the Court of King’s Bench adopted the same doctrine, and, referring to the case of the Mayor of Kingston upon Hull v. Horner, adds, “that it is not, in such case, that the Court really thinks a grant has been made, because it is not probable a grant should have existed without its being upon record; but they presume the fact, for the purpose, and from the principle, of quieting the possession.”

These cases, (and, especially, this last ground of decision,) seem fully to answer the objection of the appellee’s counsel, that, where the grant is a matter of record, it ought to be produced, or at least some memorandum shewing that it once had existed. The circumstances, too, stated as the ground of decision in Lord Purbeck’s case are supposed not to be stronger than those in the present case; I mean the long possession, the receipt of quit-rents and taxes for a great length of time by the Crown and the Commonwealth successively, and the improbability that, at this time of day, lands in that part of the country are vacant. There is very great force too in the remark made on the part of the appellant, that, admitting patents to be in existence, and of record, it may become difficult, if not impracticable, to trace them, after a great lapse of time, and various divisions and, conveyances of the property.

I therefore concur in the opinion, that the judgment be reversed.

JUDGE) PLUMING

concurred.

The opinion of the Court was that the judgment was erroneous, in this, that the District Court refused to instruct the Jury, impanelled for the finding of such facts as were material to the cause, and were not agreed *by the parties, that they had a right to presume and find that a patent had formerly issued for the land in question, if such fact was, in their opinion, a rational inference from the facts proved to them upon the trial, and found in the verdict rendered by the Jury upon that occasion.”

Judgment reversed, and the cause “remanded to the said District Court, in order that such further facts material to the cause, and not agreed by the parties, as are not already found by the Jury formerly impan-elled, may be found by a Jury to be im-panelled for that purpose; on which occasion the said District Court ought to instruct the Jury that they have a right to presume and find that a patent hath formerly issued for the land in question, if such fact shall, in their opinion, be a rational inference from the evidence which shall then be offered to them.” 
      
       Cowp. 102.
     
      
       1 Wash. 34.
     
      
       Cowp. 111.
     
      
       Cowp. 211.
     