
    McConnell &c. vs. Bowdry’s heirs and Widow.
    Ejectment.
    Appeal from the Woodford Circuit; William L. Kelly Judge.
    
      Evidence. Letters of Attorney. Special authority. Recitals. Geography. Bills in Equity. Lapse of time. Possession. Sheriff’s Return. Widow. Heirs. Estoppel. Landlord arid Tenant.
    
    April 17.
    Statement.
    Lessor’s title papers.
    Patent to O’Neal.
    O’Neal’s letter of attorney to Hughes.
    Deed of O’Neal to Craig, made under the letter of attorney.
    John Craig’s deed to Lewis Craig.
   Judge Owsley

delivered the Opinion of the Court.

[Absent Chief Justice Bibb.]

This appeal is prosecuted from a judgment recovered by the appellees upon the trial of the general issue in an action of ejectment, brought by the appellant in the circuit court of Woodford.

On the trial, the lessors of the appellant attempted to derive title under a patent which issued from the Commonwealth of Virginia to Robert O’Neal, the fourth of January, 1786, for one thousand acres of land, and introduced and read to the jury that patent, together With the following writings, to wit:

A letter of attorney from the patentee, O’Neal, bearing date the 5th of November, 1802, Authorizing James Hughes to execute, to Capt. John Craig, a release of all his right under the entry of one thousand acres, made for him by the said Craig, and refered to in a bill in chancery, filed by him, in a suit then depending in the General Court against the Said Craig, upon the said Craig assigning to him a bond he held on Col. Richard Young, far one thous- and acres in Gallatin county.

The deed of O’Neal to Craig for one thousand acres of land, dated the 26th of June, 1806, and purporting to have been made by Hughes, under a power of attorney from O’Neal, in consideration of an assignment, that day made by Craig to O’Neal, of Young’s bond for the conveyance of one thousand acres of land, about thirty miles from the mouth cf Licking.

The deed of John Craig to Lewis Craig, dated the 3rd of June, 1807.

Lewis Craig to John Jonitt.

O'Neal's deed to Craig excluded.

Assignment of error.

Grounds of objection to the deed of O'Neal excluded.

And the deed of Lewis Craig to John Jouitt; bearing date the 29th day of September, 1806.

The lessors of the appellant also introduced other evidence, as well written as parol, and after the appellees had likewise gone through their evidence, and the court had been asked by each party to instruct the jury upon points of law, the deed from O’Neal to John Craig was excluded from the consideralion of the jury, by a decision of the court, made upon the motion of the appellee’s counsel.

The propriety of the decision which excluded that deed from the jury, is questioned by the assignment of errors.

As the deed appears to have been executed by Hughes, as the attorney in fact for O’Neal, it was undoubtedly incumbent upon the court, in deciding upon its admissability as evidence, to ascertain whether or not, in making the deed of conveyance, Hughes exceeded the power confered upon him by O’Neal. For although the title may be conveyed by attorney, nothing is more clear than that the power to do so, must be derived from the holder of the title, and that if any thing, exceeding the power delegated, be done by the attorney, it has no effect upon the principal. In revising the decision of that court, therefore, we are necessarily led to the same enquiry.

And at the threshhold we would remark, that the deed which was excluded by the court, appears; on its face, to have been executed by Hughes in virtue of a power of attorney given to him by O’Neal, on the fifth of November, 1802, so that if Hughes possessed competent power to make the deed, his authority must have been derived from the letter of attorney of that date, executed by O’Neal, and to which we have already referred. The sufficiency of that letter of attorney to confer upon Hughes a power to convey the one thousand acres of land therein described, upon the happening of particular contingences, was not denied in argument; but it was contended, that there is nothing in the cause Conducing satisfactorily to prove, that the land actually Conveyed by Hughes to J. Craig, is the tract which, by the letter of attorney, he was authorized to convey, or that the contingency, upon the happening of which, he was directed to convey, had in fact happened before the deed of conveyance was made. We, however, think differently.

Recital in the deed made by the attorney that the grantee had performed the condition on which the letter of attorney authorized the conveyance to be executed, held, under the circumstances here, to be evidence conducing to prove the fact.

Judicial notice of the distance of the mouth of Licking from Gallatin county.

Bill in chancery which had been brought by defendants against alienor of the plaintiff’s lessor, recognizing the title derived under a deed made by an attorney acting under a limited authority, being read in evidence, held to conduce to maintain the title.

We admit that the.evidence upon this subject is not as strong and conclusive as might be desired; but there are. contained in the record numerous facts and circumstances, which, in our opinion, are calculated to satisfy any unbiassed mind, that in making the deed to Craig, the agent, Hughes, acted strictly within the limits of the power delegated to him by O’Neal, it was upon Craig’s assigning a bond which he held upon Col. Richard Young, for one thousand acres of land in Gallatin county, that Hughes was directed to convey to him; and the deed purports to have been made in consideration of Craig having, in fact, assigned Young’s bond; and although the land tor which the assigned bond on Young called, is not described in the deed to lie in Gallatin county, the number of acres is stated to be one thousand, and is described to lie about thirty miles from the mouth of Licking, between which and the county of Gallatin, we are bound, from the general history of the country, to know that there is not thirty miles. Whilst it is, therefore, conceded that the bond on Young is not, in every particular, described in that deed precisely in the same language that is employed in the letter of attorney, it must be evident, from a comparison of the two instruments, that there is nothing in the description contained in the deed which can justify an inference, that the bond on Young, for the assignment of which the deed was made, is not the bond, to obtain which, Hughes was empowered to convey’.

Rut to the contrary, when if is recollected, that there is no evidence in the cause conducing to shew that Craig ever held but one bond on Young, or that O’Neal owned any other land than that which is described in bed in the deed; when it is recollected, as is proved in the cause, that she ruly after the deed was made, Jonitt, the ancestor of part of the lessors of ’the appellant, claiming under the title of O’Neal, brought an ejectment, and recovered judgment against Lettice Bowdry, one of the appellees, and the mother of the others; when it. is perceived, that after the recovery of Jouitt in that ejectment, a bill in equity was filed by Lettice Bowdry, in which she recognipes the title of Jouitt, derived under O’Neal; pnd that before her bill was brought, a bill had been filed by the other appellees, in which a like recognition of Jouitt’s title is made.

Long acquiescence of the principal in the possession under the conveyance, is evidence the conditions on which the attorney was to make the deed had occurred, and that he did not transcend his power.

Bill by the guardian of infants (read in evidence against them after full age, without objection) allowed to have effect.

When all these facts are perceived, and when it is furthermore recollected, that there is nothing in the cause conducing, in the slightest degree, to shew that O’Neal, in his life time, or his representatives since, have, for the space of near twenty years since the date of the deed, ever expressed any dissatisfaction with the conduct of Hughes in making the deed, or questioned the right of those claiming under that deed, every unbiassed mind must, we apprehend. be brought necessarily to conclude,, not only that the land described in the deed as the tract therein designed to be conveyed is, in truth, the one thousand acres which, by the letter of attorney, Hughes was empowered to convey, but that in point of fact, the bond held by Craig for one thousand acres in Gallatin county, is the same bond, for- the assignment of which to O’Neal, the deed was made by Hughes.

In the preceding remarks it will be perceived that we have adverted to the fact of recognition of Jouitt’s title, made in the. bill brought against him by part of the appellees whilst they were infants, and it might possibly be inferred that too much weight is intended to be given to that recognition; but to, prevent an inference of that sort, we would remark, that the fact has been adverted to not as one, if it stood alone, that would be entitled to any extraordinary weight, but as a circumstance calculated to strengthen the presumption raised by various other facts, that in making the deed, Hughes acted strictly within the scope of his authority; and for that purpose, we apprehend, the Bill was properly used in evidence.

Deed admitted.

Twenty years' possession relied on.

Evidence of the possession.

Recovery by Jonitt against Bowdry's widow, on the title of O'Neal, and proceedings afterwards under the occupant laws.

It follows, therefore, that the court erred in excluding the deed from the jury.

In the progress of the trial various instructions were moved for by each party, and the assignment of errors questions many of the opinions given by the court thereon, but as we suppose, the admission of the deed from O’Neal to Craig, as evidence, will, when the cause returns to the court below, remove most of the objections taken to the appellant’s right to recover, we shall barely notice some of the principal questions, which may probably again arise on another trial.

The appellees set up claim under a patent which issued from the State of Virginia, to James Bowdry, the 24th day of February, 1790, in virtue of a survey bearing date the 25th day of June, 1788; and rely upon a continued possession under that claim, for upwards of twenty years, as a bar to. the right of entry claimed by the lessors of the appellant, under the ad verse elder patent of O’Neal.

There was a contrariety of testimony before the jury, as to the precise ime when the possession was first taken by Janies Bowdry of the land; but evidence was introduced conducing to prove, that he settled on the land in 1786 or 1787; and that he continued to reside there until his death in 1807, and that Lettice Bowdry. his widow, and one of the present appellees, continued, with her family, to reside, upon the land, until after the commencement and termination of an ejectment. brought by Jouitt, claiming under the patent to O’Neal, the 9th March, 1808; that at the September term of that year, Lettice Bowdry appeared to the action, caused herself to be made defendant, and pleaded the general issue; that a trial was (hereupon had, and verdict and judgment rendered against her; that commissioners were then appointed, under the occupying claimant law, to assess the improvements, rents, &c. and report was afterwards made by the commissioners to the court. By that report, Jouitt was brought in debt, and executed bond with security for the same, as directed by law.

Writ of possession on Jouitss judgment, returned executed.

Suit in chancery—injunction to the judgment in ejectment-injunction dissolved and habere facias awarded.

Habere facias executed.

Demise had expired between the tests of the two writs of habere facias possessionem.

Lease of McConnel to Mrs Bowdry and Thomas

Renewal of the lease to Mrs Bowdry.

After this, it appears that a writ of habere facias possessionem issued in favor of Jouitt. upon the judgment; and upon that writ the sheriff returned. “executed the 2nd July, 1811. and possession then given to James Howard, the agent of Jouitt."

It also appears, that several suits in chancery were brought by the appellees against Jouitt for the land; in one of which, (the last decided.) an injunction was awarded against Jouitt’s judgment, in favor of Lettice Bowdry; and that, by consest of the parties) a decree was entered in 1819. dismissing the bill, with leave to Jouitt to sue out a writ of possession for the land.

A writ of habere facias possessionem accordingly issued, and was executed by the sheriff delivering possession to McConnell, the 22nd of February, 1820.

We should have remarked, that in the, ejectment brought by Jouitt, the demise is laid to have been made the last day of December, 1806, and to continue from thence, the term of ten years, next following; so that when the writ of habere facias possessionem issued, in 1820, the demise had expired; but the term of ten years had not elapsed, from the date of the demise when the first writ of possession issued in 1811.

After the last writ of possession was executed, and in April, 1820. an agreement which was reduced to writing, and signed and sealed by the parties, was entered into between LettiCe Bowdry and Thomas, of the one part, and McConnell of the other part, whereby the latter leased the plantation, including part of the land in contest, for the term of one year, to the former, and they, on their part, covenanted to pay a fixed rent.

At the expiration of that lease, McConnell again, by similar writing, leased the plantation to Lattice Bowdry, for another year. At the expiration of that lease, Mrs Bowdry refused to deliver the possession to McConnell, and this ejectment was brought against her, &c.

In ejectment against the heirs for land, that had been recovered by the alienor of the plaintiff’s lessor, in an ejectment against the widow, and of which possession had been delivered on a habere facias, but afterwards regained by the heirs, the computation of the tire to bar under the limitation can extend only up to the commencement of the action against the widow.

Evidence conducing to prove other facts, was also introduced, but the, foregoing, together with such as may be incidentally mentioned, will shew the application of the points of law about to be noticed.

We would premise, that in the remarks we are about to make, it is not designed to go into the enquiry whether or not, assuming the preceding facts to be established, the appellees have succeeded in shewing that neither of the, lessors of the appellant have a right of entry to the land patented to O’Neal. Our object will be only to notice some of the, principal points of law, which were contested at the bar in argument, and which may possibly again arise upon the return of the cause to the court below.

And in the first place we would observe, that if, under the statute, of 1796, limiting rights of entry, the appellees can succeed in defeating a recovery by the. appellant, it must be done by proving a continued possession by them, or those under whom they claim, for twenty years before the commencement of the ejectment, which was beought by Jouitt against Lattice Bowdry. Not, however, because the possession was not continued by her, after that suit was commenced, but because the limitation presented in the statute, could not, after suit brought, continue to run against the right of Jouitt. It undoubtedly will not be pretended, that on the. trial of that suit, the plaintiff’s right to recover could have been defeated by proving an adverse possession by the defendant, for twenty years, at the trial, if the possession had not, in fact, continued that long before the commencement of the action; and if, on that trial. the continuance of possession by the defendant in that suit, after it was commenced, could not be brought in aid of her prior possession, we apprehend that it is equally incompetent for the appellees, in this case, to avail themselves of the possession held by Mrs. Bowdry, after the commencement of that ejectment, so as by uniting it with her prior possession, to bar, by the lapse of time, the same, right of entry that was then held by Jouitt. and now claimed under him by the lessors of the appellant. For it is apparent from the evi denoe, that in the ejectment, brought by Jouitt, judgment was not only recovered by him. but that the possession was afterwards delivered to his agent by the sheriff, under a writ of habere facias possessionem, which regularly issued upon that judgment; so that, having obtained the possession under that judgment, Jouitt must we apprehend, at least, as respects any effect the lapse of time can have on his title, be considered as having been possessed of the land from the time the suit was commenced by him.

Return of the sheriff of the execution of the writ of habere facias, is conclusive between the parties.

Where the heir relies on the possession of the widow in bar of an ejectment, the sheriff’s return executed of a habere facias on a judgment against her in favor of the alien or of the les-or, is conclusive on them.

It is true, the fact of Jouitt having obtained the possession no otherwise appears, than from the sheriff’s return, made upon the writ of possession; but Leftice Bowdry was a party totheaction brought by Jouitt; and in the ease of Smith vs Hornbeck, 3 Marsh. 392, it was held, that between the parties, the return of the sheriff upon a writ of habere facias possessionem, that he had delivered possession to the plaintiff, was conclusive of the fact; and that decision we still think correct.

But it is said the appellees, except Lettice Bowdry, were not parties to the ejectment brought by Jouitt, and that although the return of the sheriff may conclude her, it is contended, that it is not evidence against the other appellees; and that of course, they should not be prvented from insisting upon the possession which was continued after the commencement of Jouitt’s action, in defence to the present action. It should however be recollected, that Lettuce Bowdry is the mother of the other appellees, and widow of their deceased father; and of course, upon the decease of her husband, site became entititled to the possession of the plantation, rent free, until her dower should be assigned her; and not only so, but the evidence conduces strongly to prove, that she actually held the possession and enjoyed the profits of the land, as she was at liberty to do, without the control of any other person, in point of fact, therefore, the possession, such as it was, must, we apprehend, after the death of her husband, be considered as having been held by Mrs. Bowdry; and the other appellees, though they were not parties to the ejectment brought by Jouitt, yet, as they are attempting to derive benefit from her possession they ought not to be allowed to avail themselves of any portion of that possession which can not be re-relied on by her. and must be bound by any evidence bearing upon the fact of her possession, that is conclusive upon her.

Tenant cannot deny his landlord’s title, though he was in possession when he accepted the lease.

It follows, therefore, that neither of the appellees can avail themselves of the continuance of the possession by Lettice Bowdry, after the commencement of the ejectment by Jouitt against her, for the purpose of baring the right of entry then set up by him, and now claimed by the lessors of the appellant.

But with respect to Lettice Bowdry, there are other facts proved in the cause, which in our opinion, excludes her from controverting the right of McConnell, tone of the lessors of the appellant,) to recover in the present case. She appears on two successive years to have leased the land of McConnell, and as the possession has never been since restored by her, according to well settled principles, she is estopped to contest his title. That a tenant is not, in the general, allowed to dispute the title of bis landlord, was not denied in argument, hut it was said, that it appears from the lease accepted by her from McConnell, that she was, at the time, both leases were made, residing upon the land; and it was argued that unless the possession is received from the landlord, the tenant is at liberty to controvert his title; and hence it was inferred that Mrs. Bowdry is not concluded from questioning McConnell’s title, by her acceptance of either lease. But as respects her right to dispute the title of McConnell, we apprehend, that it is totally immaterial whether or not Mrs. Bowdry was, in point, of fact, residing upon the land at the date of the lease. By accepting the lease and stipulating for rent, she as effectually recognized the title and possession of McConnell to the land upon which she then resided, as she could possibly have done, if at the time she had not lived upon the land, and had, after the lease was made, entered under McConnell. After accepting the lease she was the tenant of McConnell; holding the possession under and for him. and in a proceeding like the present, can not, until she restores the possession to him, be permitted to deny, that at the making of the lease he had title.

Rule the same as to sub tenants.

With respect to Thomas, who also was a joint lessee with Mrs. Bawdry in the first lease, the same principle applies, unless the possession which he held under the lease has been restored to McConnell; hut if he has yielded that; possession to McConnell, and has not, afterwards, in any way held under Mrs. Bowdry, he should not. by either lease, be prevented from controverting McConnell’s title.

Upon the whole, we are of opinion, the judgment must he reversed with cost, the cause remanded to the court below, and the verdict of the jury set aside. and further proceedings there had, not inconsistent with this opinion.

PETITION FOR A RE-HEARING BY

JAS. HAGGIN ESQ,.

April 28.

On the trial of the suit in the circut court, McConnell &c. to make out their title, offered in evidence a deed which purported to have been made by Hughes, as attorney for Oneal. to John Craig, in the year 1806, and the letter under which Hughes acted.

This letter of attorney authorised Hughes to release to Craig, 1000 acres, “referred to in a bill in chancery filed by me in a suit now depending in the General court, against the said Craig, upon Craig’s assigning to him, a bond he has on Col. Richard Young, for 1000 acres in Gallatin county.” The circuit court rejected the deed, for two reasons, to wit: The bill in chancery of Oneal against Craig or a copy of it from the General court, was not produced to shew, what tract of laud Hushes was authorised to convey, and because it did not appear that Craig had assigned the bond on Young for 1000 acres of land in Gallatin.

It is now decided that the circuit court erred. I would, however, express a different hope, and earnestly entreat a re-consideration of the point.

It was indispensable, to enable McConnell to avail himself of this deed, to shew a written authority from Oneal to Hughes, to execute it. The authority produced, however, is special and conditional.

First, as to the extent of the power. The agent was only authorised to release one particular specified tract. What tract was that? The letter of attorney as produced, contains a very imperfect and unsatisfactory description of the. tract. The parties to it seem to be Sensible of this, and, therefore, refer for its specification, to a bill in chancery, of record, in the office of the General court, where the power is also recorded, filed by Oneal against Craig. Thus we are assured that there is a record, which contains a description of the tract to which this letter of attorney has allusion. Then I say, there is on earth, no testimony for this purpose, equivalent to that record. It is the most direct and certain; that to which the mind, acting upon the responsibility of an oath, and resolved to attain to the truth, would at once turn. Every thing else, in the absence of this bill, is but secondary and subordinate, and whilst the rule prevails, requiring the best testimony in the power of the party, it cannot be superseded. Say, so indispensable is this bill, it is in legal contemplation, constituted, as regards a description of the land, a part of the letter of attorney itself. Such is the effect of the reference. And in its absence we have but a part of the letter of attorney. Say that the letter of attorney, had refered to a survey in the Register’s office, in the name of Oneal, recorded in book A. page 200, as descriptive of the land to be conveyed, or to a deed from A to him, recorded in the Genera] court, in a certain book and page. Would you permit oral proof that in fact this was the tract intended, for the witness had read it. and it contained terms precisely descriptive of this, and inapplicable to another tract, claimed by Oneal. Then there is nothing in the rule, requiring the best evidence, and parol maybe received instead of the letter itself Indeed, the deed may be supplied by the recollection and the judgment of witnesses, and no effort is necessary to obtain the written document.

We act more frequently upon this principle in-cases of entries for land: and familiar cases best plain. A. makes an entry on the head of Cane run, and B. makes one adjoining A. on the lower side. Would oral proof be admitted of the calls of the entry of A. without effort to obtain, a copy? It has never, I presume, been attempted. By adoption the locative calls of A. become those of B, likewise,, they are all in writing, and they, or copies, must be produced for inspection.

I hesitate to recapitulate the proof and to controvert the inferences drawn from it. The question is. of competency. Was or was not this deed read on the trial of Jouitt’s ejectment against the widow? Was it scrutinized, or did it pass sub silentio? Has the guardian who filed his bill for the purpose of maintaining the entry of the infants, undertaken to pronounce on the validity of this deed, and if he has, ate the heirs bound by this admission of his bill in chancery? Has the widow improvidently made concessions in the progress of her litigation, with Jonitt? And are the heirs bound by them? These are all questions by no means difficult, as I really apprehended, but as deductions have been drawn from the affirmative of some of them, I beg leave to repeat, that the controversy is not, how muck they tend to prove, in favor of that deed, but are they admissible in law, to shew that the agent acted in his sphere, without the production of the record referred to, as part of the letter of attorney.

The case of Swann and Wilson, 1 Marshall is illustrative of the principle I would support. Swann, the plaintiff in ejectment, introduced a patent, to Charles Severas. He insisted that this error in the name was clerical—it should have been Swann. He shewed the entry, from the surveyor’s office, in the true name; proved, that he had been uniformly acknowledged the proprietor, and that one of the name of Severns had never been heard of in the neighborhood, That he had even leased and delivered possession to Wilson in the year 1794, who. hod continued on it ever since: the plaintiff residing in Pennsylvania. Wilson introduced a bill in chancery, which he had filed in the, Jessamine circuit court, of recent day, in which he avowed Swann to be the grantee, and prayed that lie might be compelled to release to and entry which he, Wilson, had acquired from Craig. He shewed a decree to that effect, obtained by publication against Swann, but he had not acquired a need After all this proof, on motion of Wilson’s attorney, Swann, was nonsuit, because be did not also produce a copy of the survey. and this court affirmed the judgment, Now, it .is believed that none who heard the proof, could doubt as to the identity of the grantee, yet the court considered the survey more appropriate, in legal contemplation, to shew the fact; and therefore, required it. Surely for Swann the case was stronger than it is at present for McConnell. An entry in the name of Swann, a claim by him under this patent without opposition, a lease and possession in conformity by the defendant himself, his own bill acknowledging Swann to be the grantee, his publication and decree, and no adverse pretender ever known, were circumstances ample. Yet the survey was held to be more direct and unerring, and the rule prevailed. Here the infants are to be compromited by acts of their guardians and officious friends. And the record, not only superior or of at least equal grade, and more explicit, is dispensed with, and that too, notwithstanding the parties to the. transaction expressly refer to it, as the test of their intent.

Touching the condition. The agent was only to, convey upon the condition of Craig’s assigning to him a bond on Young for 1000 acres in Gallatin. We have no proof that this was done, except the deed recites that it is in consideration off the assignment of Young’s bond, for one thousand acres, patented to Craig, about thirty miles from the mouth of Licking. It is not admitted that this is the same land, or rather that it is so proved. For our consideration for the. agent, would recognize his act to a very great extent.

They must shew that the condition was fulfilled. It is not even sufficient for the agent to say it. But be has not said it. In the case of McClary’s heirs and Lancaster it was held to be indispensable for the plaintiff to prove that the principal had given bond for the land to the grantee, as the letter of attorney only conferred an authority to convey in conformity to such an instrument. The case, however, of Duke and Bruce, is conclusive, if it be law, as we suppose; See 2 Litt. 244. Bruce set up title under a deed from Barry as the agent of Maury. The letter of attorney among other provisions indicating a high confidence, authorised the agent (if necessary) to make sale of any of his lands in Kentucky. It was held, that to give effect to this deed, it must be shewn to be necessary to sell. For that purpose the deposition of Barry was taken, he stated that he found himself under the necessity of selling. This court says that by the most liberal rule applicable to the subject, it is insufficient. The circumstances, the facts should be shewn, that the court might judge of the necessity. They combat the propriety of any inference m favor of the deed from tilt act of the agent, and they with their usual ability, shew that it would be in prostration of all the rules of special and limited power. Although Barry sold, and swore that it was necessary that he should sell Maury’s lands. no intendment, was indulged, but the special circumstances to bring it within the pale of the authority must be set forth. In this case there is not the scintilla of proof that the bond assigned on Young was in Gallatin. I is true it may have been so without outrage upon geographical boundaries. But it might just as conveniently and probably be in several other counties. Unless contrary to the rules asserted in the case of Duke and Bruce, we are disposed to presume in favor of the act of the agent, we have no authority for saying this tract lay in Gallatin. Most certainly it would have been as just to admit, as Barry swore, that it became necessary to sell the lands, that it was so in truth, as to find, because a tract is to lie within thirty miles of the month of Licking, that it, therefore, lay in the county of Gallatin.

To make out title under a deed of conveyance executed by an agent acting under a limited authority, proof must be made of those things having been done upon the happening of which the agent was authorized to act.

Whether we, therefore, enquire into the tract is be conveyed by the agent, or the condition upon which that conveyance was to be made, agreeably to authority, and especially to the precedents afforded by this honourable tribunal, we would say that the opinion pronounced was not sustainable.

Other questions are involved in the cause, in relation to which, after much investigation, I sincerely believe, have been misconceived. Somewhat as regards fact, as well as law. But it seemed expedient at present only to call the attention of the court to those upon which I have dwelt, because less investigated in the argument, and more clear and familiar in practice. If, as I trust, the cause shall be opened, I will be permitted to advert to those points.

I have endeavoured to perform, but rather hastily, a duty at all times painful, and at present peculiarly so. I am well apprised of the onerous duty, and immense responsibilities, at this moment attending this court, and to ask more than my reasonable share of their time and consideration, may even savor of illiberality. But the inheritance of my clients, now reduced to a pittance, rests upon the effort, and the presumption will, I trust be excused.

Judge Owsly

delivered the Opinion of the Court on the Motions, for a re-hearing.

June 19.

The points to which the attention of the court has been invited by the petition for a rehearing, have again been considered, and the opinion formerly delivered is approved. When the case was before under advisement, the cases of McClary’s heirs against Lancaster, and Duke against Bruce, which are referred to in the petition, were recollected by the. court; and the opinion was then, and now is, understood not to adopt any principle inconsistent with any thing decided in either of those cases. According to each of those cases, there, can be no recovery by a person claiming through a deed of conveyance which has been executed by an agent acting under a limited authority, unless proof be made of those things having been done, upon the happening of which the agent was authorized to make the deed of conveyance; and without controverting the correctness of that principle, but proceeding upon the assumption of its correctness, it was decided in the former opinion in these cases, that the evidence introduced on the trial, in the court below, went satisfactorily to prove, that in making the deed to Craig, the agent, Hughes, had not exceeded the power conferred upon him by the letter of attorney from O’Neal.

Held that the evidence was sufficient for the jury to infer the facts required to authorize the execution of the conveyance for the land in question.

If incompetent evidence be given to the Jury with out objection, which conduces to prove the facts necessary to admit in evidence a deed of conveyance, the deed shall be read, not withstanding the objections to it, unless the objection he extended to the introductory evidence.

We have not deemed it necessary to again recapitulate the evidence from which that conclusion was drawn, but will content ourselves by remarking, that upon a review of the record, we are still satisfied that the evidence not only conduces to prove that the bond upon Young, which, by the letter of attorney, was to be assigned by Craig before Hughes was to make the deed of conveyance, was in fact, assigned previous to the time Hughes made the deed, but moreover, that the land described in the deed made by Hughes, is in truth, the land which, by the letter of attorney, he was authorized to convey to Craig. It was not said in the former opinion, nor is it designed now to say, that evidence more conclusive might not have been produced; but it is intended to say, that the evidence which was introduced is of a character, from which the jury might reasonably infer every fact necessary to a due and regular execution of the authority with which Hughes was intrusted by the letter of attorney from O’Neal; and that instead of excluding from the jury the deed made by Hughes, the court should have left it with them for their determination, upon the evidence which was introduced by the parties.

Whether or not the bill in equity and the bond to which reference is made by the letter of attorney as having been filed in the General Court, would have been better evidence than that which was introducted on the trial, of some of the facts which were necessary to be proved; and whether on account of that superior evidence not appearing to be out of the power of McConnell. &c. to produce, the evidence introduced by them, might not have been rejected. if it had been objected to by the heirs of Bowdry, are enquiries that we did not, when the case was formerly under advisement, nor do we now consider ourselves under any necessity to make, because we understand from Hie record, that no objections were taken in the court below to the competency of any evidence which was introduced, except that of the deed made by Hughes as the agent of O’Neal; and because we understand the objection to that deed, not to have been taken in that court on the ground of any incompetency of the other evidence, introduced to prove facts to which it. conduced to prove, but on the ground of that evidence not conducing to prove those things which were necessary to be proved, to authorize the deed from Hughes to be used in evidence. It was not until the evidence of both parties was all introduced, and not until instructions on points of law, growing out of facts proved, had been given to the jury, on the application of each party, that any question was made as to the admissibility of any part of the evidence; and we are unable to discover from any thing contained in the record, that, even then any sort of objection was taken to any part of the evidence, except the deed made by Hughes. Under these circumstances, therefore, we must presume, that by objecting to the deed, it was not intended to question the competency of any other evidence which had been received without objection and as no other evidence bat that, of the deed was excluded, we must infer, that in deciding upon the admissibility of the coed, the court were not governed by any supposed incompetecy of any other evidence. Whatever objections might, therefore, have, been urged to any part of the. evidence, except the, deed, we must, alter the failure of Bawdry’s heirs to make them in the court below, presume that the objections were then either waived or removed by other proof, and should now, as was formerly done, proceed in reversing Hie decision of that court, upon the evidence not excluded, as if it were liable to no possible objection; and so proceeding, the result must be what it was decided to be former opinion.

Crittenden and Wickliffe for McConnell 3 Haggin for Bawdry’s heirs.

The petition is, therefore, overruled.  