
    Hall vs. Gittings Junr’s. Lessee. Gittings Junr's. Lessee vs. Hall.
    No adversary possession of land can avail again* the state.
    Lands Which es-cheated to the Lord Proprietary, were by the act» of October 1780,. ch. 45, and ch» 49, confiscated to and vested in the state* without office found, or an aetual entry.
    An adversary possession commencing against the Proprietary, ceased to operate against the state after the act of confiscation.
    The act of October 1780, ch 49, vested the seizin and possession of all lands liable to confiscation in the commissioners, on behalfof the state, anti divested the possession of all other persons. ' '
    . If two persons are in possession of laud, the one l>y right, and the oilier by wrong, it is, the possession of him tVho is in by right. ‘
    If land liable to escheat is included in a survey ond gvan t under an escheat wan ant on another tract of land, such grant will operate to past a good title to the' land so included, if there has been posses*»' sidn and payment of quit vents for moi e than 20 years before the act of confiscation.
    Land not liable to escheat at the time it was included in a grant on a survey made in virtue of an. escheat warrant on another tract, but whit h-alte.partís lócame escheat* will not* pass unt\er sucli grant, and the state is not estopped from granting it to any oilier person. ‘ * ‘
    
    An escheat grant relates to, and operates to i-.ass the whole the original tract escheated.
    If there are two descriptions of the land convoyed, the <;«<? by name, an* the other by metes an# bounds, &c. the grant will ope.ate to pass the lam! according to that description which is most beneficial to the grantor ,
    , If the testimony of a witness is intended to be objected to because of bis holding adjoumig lands, &c. his interest must he located on the plots.
    The deela.atinns of a former holder oí the adjoining lands, as to the hounds of the land in dispute* admitted in evidence, it pot appearing by the plots tha< he was interested in establishing the truth of' the facts related by him. ,
    , . Whether or not á will was legally executed and proved, are witters of fact for the jury; and where the will was made in 1683, they mav and ought, frym the length of time elapsed, to presume that it bad been duly executed and proved. ,
    , The jury weie directed on certain evidence of title and descent, that if true, then land which bad been granted as escheat land was not. eseheatable, tiltho for upwards of 3C0 years no per.-on ever* claimed the land under the original gi antee.
    In ejéetment the plaintiff must recover on the strength of Ins own title. The defendant may pre« vent his recovery, by showing a title in himself, or a e’e-n* subsisting tul * in a stranger.
    Possession is presumptive ev:i dneo of right, and the deflnthim. mu ot^ be deprived of his possession by any person but the rightful owner of the land, i. e. In who hath thejws possession^'.
    
    A clear subsisting title, outstanding in ¡mother, means such a title as the stranger could recover on in ejectment against either of (he contending forties.
    Land is .not ischeauibl? as Jong ns there are heirs of the original fenant or grantee,
    LNcheat is that possibility of interest which reverts to or devolves on ihe Lord upon the failure of heirs of the oi igmal grantee, and he cannot grant the land again until that event happens; and if he does his grant will pass nothing.
    An escheat grant is prima facie evidence of till*'; but being only a presumption of right in the Uro» prietary, it only exists until'the contrary is proved.
    Nothing but 20 years adversary possession can defeat a title acquired under a legal grant.
    The jury were diiecfcu), that if -hey believed certain facts, then the presumption of law was, that G. II, iorAvhom the land in dispute was surveyed on ihe 14th of October 3683, and granted to him the loth of August 1C<84, was seized thereof at the time of his will dau-d the 19th of .February 1C83? and his death m. 1085, and that the land passed to his devisee under the residuary clause In his wifi*
    Cross Appeals from the General Court. This was ara action of ejectment for a tract of land called Friendship Compleated, lying in Baltimore county. The defendant (Hall) in the court below, took defence on warrant for a tract of land called; Tolly’s Purchase, granted under an escheat warrant on Cullen’s, Lot, and pant of Cullen’s Addition. ' 1
    1. At the trial at May term 1802, tbe defendant offered to prove, that George Holland, the patentee of Holland’s. Parle, died before the year 1760, intestate, and; without issue, not having conveyed that land, and leaving no. heirs, capable of inheriting. That in the year 1774^ Waller Tol- . 
      iy entered on and became possessed pro ut leso postulad? óf ‘ the lands located on the plots in this cause, surrounding ral M, N and P, claiming the same as his own, and in virtue oí' his patent for Tolly's Purchase. That the land included in the black lines on the plots shaded yellow, surrounding red ,VI, and the land in the blue shaded lines surrounding red N, and the land in the yellow lines surrounding red P, were in the year 1774 actually enclosed by Tolly, and that he died in the year 1783, in the actual seizin and possession, (so far as he could be seized and possessed thereof against the state,) of the land so enclosed, and devised the same to the wife of ¿he defendant. That the defendant, in virtue of his marriage and the devise, entered upon the said lands in the year 1783, (so far as he could be seized and possessed against the state,) claiming the same, and hath ever since remained in such seizin and possession thereof. That the whole of ¿he three pieces of land has been under actual enclosure of fences from the year 1774 to this period, by Tolly in his life-time, claiming the same, and from the time of his death by the defendant, claiming the same. That Tolly in his life-time, and the defendant since his title accrued under the devise, and his entry, have paid quit rents to the Proprietary in his time, and taxes and assessment to the state, since the year 1780, for Tolly's Purchase; and that no actual entry ever was made by the stale, or any person on behalf of the state, ou any of the lands herein before described, except the surveyor, who on the 30th day of March 1796, entered ou ihe same to make the survey, on which the lessor of the plaintiff afterwards obtained a patent including lire said lands, for the recovery of which this suit is instituted. The plaintiff then prayed the opinion of the court, and their direction to the jury, that they being satisfied as to the true location of Holland's Park, the same being land escheated to the Proprietor, and by the act of confiscation vested in the state, no adversary possession on the part of the defendant can avail against the state, so long as the title thereof remained in the state.
    
    Martin, (Attorney-General,) and Mason, for the plaintiff,
    referred to the acts of assembly of October 1780, ch. 45, and ch. 49.
    
      
      Key, Hollingsworth and Harper, for the defend ants,
    cited Kelly's Lessee vs. Greenfield & Sothoron, 2 Harr. & M'Hen. 121. Russell's Lessee vs. Baker, 1 Harr. & Johns. 71 Ringgold's Lessee vs. Malott, 1 Harr. & Johns. 299. 2 Blk. Com. 75, 257. Murray & Sansom vs. Ridley's Adm'x. 3 Harr. & M'Hen. 171. The acts of assembly, October 1780, ch. 51, s. 5; and Nov. 1781, ch. 20, s. 8, 17. Burgess vs. Wheat, 1 Wm. Blk. Rep. 174.
    Chase, Ch. J„ . The 'court are of opinion, that there is no adversary possession on the part of the defendant which can defeat the right derived from the state. Under the act of October 1780, ch. 49, the state became actually possessed of the land; and that act dispenses with the requisites necessary in the case of the crown to avoid a possession adversary to the right of the crown, to wit, an office (found, or an actual entry. By an office found in England, ’ the crown becomes actually -seised and possessed of any es-cheat land in question. The state then had the right to ¡pass the act of assembly; and by that act, the state by its commissioners, was in as fell possession of the land as if tlier® had been, an office found, or actual entry by the cowscaissioners, and ouster of the defendant, or those nnde'£ whom he claims.
    This case 1ms been argued upon the principle of the land*® being held, under the idea of its being part of Tolly's Purchase. The -court consider it as distinct from Tolly's Purchase, and as having no connexion with the question. It has also b<jen contended by the defendant’s counsel on the principles decided in former cases. The court do notcontdder this case as affected by former decisions. In Kelly's Lessee vs. Greenfield fy Sothoron, and Russell's Lessee ®.s„ Baker, the lands had been granted by common warrant®, and afterwards taken by escheat warrants, and there tbs grantees under the common warrants, had had the adversary possession for the full length of time, to wit, 20 years. Eat in this case the state, by the act of 1780, having vest- ‘ «1 -complete possession in its commissioners, the adversary possession, (as stated in the case, commencing at faráhost in. 1774,) could only have continued till the passing •tf that act If there had, been a subsequent entry and possession of the land by the defendant, or those under whom ¿te claims, then; if/ikí then have been a cantisunnci? Sw 9-H years of that adversary possession io defeat die sight oí the state’s grantee.
    The opinion <*f the court, as can tamed hi the Mil of exceptions which was taken ai the trial, is as fellows, vre. “Tlx; court are of opinion, and so direct the jury, that in this case the act oí assembly which passed in October 1780, eh. 49, vested the actual seizin and posserdoii of the ea&V land in the commissioners appointed to preserve ceniisc&ted 11 fitiah property, as fully and amply as if the said commissioners, as the agent or trastees of tiui state, had made a forma! entry on the same. Thatthe commissioners were in possession of the said land in virtue and by operation of that act, from the time of passing the same; and although the defendant, or those under whom Isa claims, continued hi the actual possession of the said land, it was the possession of the commissioners on behalf of the state; for where two persons are in possession, the one by right, and she other by wrong, it ia the possession of him who is in by right.
    “The court are also of opinion, that the possession of ihe defendant, or those under whom he claims, was divest" ■ed by the said act of assembly, and that the act of limitations ceased to have operation, or to run from that time, and that he has no right to the said land in virtue of the said possession. That the said possession not being derived from the Proprietary, but taken and held in opposition to his title, the defendant cannot have any equitable: interest in the lend, or claim to the same upon the oíate, as standing in the place of the Proprietary.” The defendant excepted.
    2. The phin*iM, to make title to the land called Friendship Loi'yipleutcdj in ihe declaration of ejectment mentioned, road in evidence the grant thereof for 39 and ose quarter acres and .20 perches, surveyed on the 30th of March 1796, for, and granted on the 14th of March 1798 to, the lessor of the plaintiff, in virtue of a special warrant of es-cheat issued on the 29th of April i 795, io resurvey and affect a tract of land called Holland’& Park, granted to George Holland. He also read in evidence the grant of Holland’a Park, surveyed the 14 th nf October 1683, and i granted the 10th of August 1684, to George Holland, ion 150 acres. The defendant then, in order to make title to that part of Tolly's Purchase surveyed the 15ih of December 1757, for and granted to, TT alter Tolly, on the 14th of August 1759, read in evidence the grant thereof, being in virtue of a special warrant of escheat, upon Cullen's Lot, granted to Thomas Greenwin for 300 acres, and Cullen's Addition, granted also to Greenwin, for 500 acres. He then read in evidence the will of Tolly, the patentee, dated the 26th of July 1781, by which he devised Tolly's Purchase to the wife of the defendant, who is still living; and he proved that Tolly died, possessed thereof, in the year 1783. He then offered evidence to prove, that from the time of the grant for Tolly's Purchase, the quit rents on that tract had been paid by Tolly, to the agents of the Lord Proprietary, until the year 1776, and that the other-taxes and county assessments imposed on lands had alsc¡ been paid by Tolly, and those claiming under him, for Tolly's Purchas'e. He then offered evidence to prove, that from the time of obtaining the grant for Tolly's Purchase to the present time, Tolly, and those claiming under him, have been in the possession and occupation of that land, claiming title to the same. He then offered evidence to, prove, that his location of Tolly's Purchase, and for which he has taken defence, and which is described by the plot: and the fable of courses No. 15, is the true original location of that,land, and that part of the plaintiff’s pretensions for Friendship Compleatyd, interferes w'ith, and ruins foul of Tolly's Purchase. He then prayed the opinion of the court, and their direction to the jury, that admitting; Holland's Park, mentioned in the grant of Friendship Corn-pleated, was liable to escheat at the time of the survey and grant to Tolly's Purchase, and part thereof wras included in the grant of Tolly's Purchase, then the subsequent grant of the escheat on Holland's Park, called Friendship Compleated, to the lessor of the plaintiff, could not operate to give him title for any part of the land which was included in the escheat grant to. Tolly.
    
    
      i Where hvA ,'5a« Mcí» < ?ehe¡H« wut h’dutk-il ait a. ¡,uvv*s olid grs^fií, íi'iis’ji fcte.Jicnt v/nrraist on tveyIÍUT t'Tfk,, vvh gTcrtit ojxraad lo p-tss a gtecd teiN ¡o the iaj>d.so:33t*jt£/flct?, ilT t'-eve had been possession a-nd of quit rent-: Soy move than 20 5oars he» ioi-p the act os'eosi-» iiscsUion. But if tS«e land wan not íAxlieatable at the inn® the escheat; grant was obtained, ihe state w*«
    suit esttronc'd £?«jm eranthifif it te any othei* iierbcfi* Aw 1 ¡.cheat grant witste:» to th® original grant*
    
      
      Harper and Johnson, for the defendant,
    cited 4 Bac. Jib. tit. Estoppel, 107. Co. Litt. 47, 227, a. 352, 58. 4 Co. 53,
    
    
      Martin, (Attorney-General,) and Mason, for the plaintiff,
    cited Coke Litt. 3. 4 Bac. Air. tit. Estoppel, 107. The 
      
      Proprietary vs. Jennings et al. 1 Harr. & M'Hen. 92. The State vs. Reed, 4 Harr. & M'Hen. 6.
    Chase, Ch. J. The court are of opinion, and so direct the jury, that if Holland’s Park was eschcatable at the time of the grant of Tolly’s Purchase, and possession and payment of quit rents followed for more than twenty years before the act of confiscation, then the grant for Tolly’s Purchase operates to convey a good title to all the land contained within the lines of the grant. But if Holland’s Park was not cscheatable at the time the grant of Tolly’s Purchase was obtained, that in such case no part of Holland’s Park, which is included within the lines of Tolly’s Purchase, passed to Waiter Tolly under the grant, and the state was not estopped from granting Friendship Comfleated to the lessor of the plaintiff’.
    The chief judge observed, that the court considered this .decision conformable to that in Kelly’s Lessee vs. Greenfield Sothoron. He cited Blacksion vs. Johnson, in the general court -for the Eastern shore, where he said it was decided, that an escheat grant related to the original grant. The defendant excepted.
    An escheat giant will pass all the hind comprehended within the true location of the tract of land cs* cheatc d
    If there are two descriptions of the land conveyed, on'e by name, amt the other by me tes and bounds» the gram will operate to pn,3 the landacoouimg to that description which is mcM, beneficial to the
    3. The defendant then, to support his location of Tolly’s Purchase op the plots, offered in evidence the certificate and grant of that land, surveyed (in virtue of a special warrant of escheat,) on the 15th of December 1757, for, and granted on the 14th of August 1759, to Walter Tolly, In which it was stated, that there “was laid out for Waller Tolly the tracts of laud called Cullen’s Lot and such part of the tract of land called Cullen’s Addition, as is escheat, according to their ancient metes and bounds, as showed. Beginning for Cullen’s Lot at a bounded red oak, being the second boundary of the land called Trueman’s Acquaintance, and running thence N W 96 perches, N E 500 perches, S E 96 perches, ami (hen with a straight line to the beginning, containing and Said out for 300 acres more or less. Beginning for the part of Cullen’s Addition, supposed to be escheated, at the end of the N E 500 perches line of the land called Cullen’s Lot, and running thence N E 142 perch.es, S E 284 perches, S W 142 perches, and then with a straight line to the place of beginning, containing and laid out for 252 acres more or less.” Which being reduced into one entire tract — “Beginning at a bounded red oak, it being the original beginning tree of Cullen’s Lot, and tú»second boundary of Trueman’s Acquaintance, and running thence N W 96 perches, N E 642 perches, S E 284-perches, 8 W 142 perches, N W 188 perches, afnd then with a straight line to the beginning, containing and laid out for 552 acres, more or less.” lie also offered in evidence the certificate of survey of a tract of land called Double Purchase, surveyed on the 29th of January 1785,- for, and granted the 11th of October 1796 to, Aquiki Mall, the defendant In which it is stated, that there ‘fwas laid out for the said Hull, in virtue of a special warrant dated 22d of December 1784, by directions of the commissioners for-confiscated British property, 166 acres of land, lying within the reserve of Gunpowder Manor, a tract or parcel of land adjoining Gunpowder Manor, and adjoining- a tract or parcel of land called Tolly’s Purchase, beginning at a. bounded stone set up by the said Hall, at the end of 784 perches, on the first line of Gunpowder Manor, and running thence with and bounding on the manor reverse o£ the same S 39° 52' -W 784 perches, to a stone marked W T, being the beginning' of the manor, and a boundary of Tolly’s Purchase, and the second boundary of Cullen’s Lot, thence bounding on Tolly’s PvrchasclS E 784 perches, and thence by a straight line to the beginning, containing and laid out for 166 acres more or less.” He also offered in evidence that lolly, the patentee of Tolly’s Purchase, died in March 1783, seized of the lands contained within the metes and bounds of that tract, according to the said location; and by his will devised that tract to the wife of the defendant, who hath since the death of Tolly, continued in the actual seizin and possession thereof, until this time. He also ofiered in evidence that he purchased of this state some time in the year 1785, the tract of land called Double Purchase, as located on the plots, as part of" Gunpowder Manor, which manor is also located on the plot?., and obtained a grant therefor from the state on the 11th of October 1796. He also offered in evidence that Tolly, during his life, and before and until the American revolution, paid the quit rents due upon Tolly’s Purchase to the agents of the Proprietary down to the year 1776; and after that time he, the defendant, paid the taxes due thereon under the laws of this state. The plaintiff then offered in evidence a certificate of suryey of Cullen’s Lot, (surveyed for James tullen on the ITtSi of June 1683, under a warrant dated the 20th of April 1683,) “lyingin Baltimore county, at -die head of Gunpowder river, on the N side of the S branch of the said river, beginning at a bounded red oak, the bounded tree of the land called Trueman’s Acquaintance, and running from the said oak N W for breadth 96 perches, to another bounded red oak, then with ;a line drawn N E for the length of 500 perches to a bounded poplar, then running S E 96 perches to a bounded red oah^ from thence with a straight line drawn S W to ike first bounded tree, containing 300 acres.” Also the certificate of survey of Cullen’s Addition, (surveyed for ■James Cullen the 25th of 'September 1683, under a. warrant dated 30th of July, 1683,) “lying in Baltimore county, (upon the head of a river called Gunpovj•iler river, beginning at the end of the N E line of the land -called Cullen’s Lot, and running from die end of the said N E line N E 284 perches, from thence with a line drawn f? E 284 perches to a marked poplar, then running S W S84 perches, from thence running by a-direct line to the (first bounded tree, containing 500 acres more or less.” He .also offered in evidence that Cullen’s Lot, Cullen’s Addition and Tolly’s Purchase, are truly located on the plots by him the plaintiff. The defendant then prayed the opinion uf the court, and their direction to the jury, that no boundary being called for at the end of the first line of Tolly's Purchase, and the second line not calling to bind on or run with any other land, the said first line must stop at the 'number of perches called lor, and cannot be extended further-
    Chase, Ch. J. The court are of opinion, that the true •and legal exposition of the grant of Tolly’s Purchase was to convey all the land comprehended within the true location of Cullen’s Lot, and that part of Cullen’s Addition which was escheated. That where there are two descriptions of the land intended to be conveyed, the one by name, and the other by metes and bounds, or courses and distances, the grant will operate to pass the land according to that description which is most beneficial to the grantee.
    The chief judge observed, that if A. is possessed of two tracts ef land, Black Acre and White Acre, and grants White Acre, the youngest tract, by metes and bounds, which metes and bounds interfere with the lines of Black 
      Acre, then the grantee takes by metes and bounds; for thédeed must be taken most favourable,for the grantee. This question, he said, was decided in the late provincial court, and affirmed in the present court of appeals . The defendant excepted.
    If llie testimony of a witness is intended to be ob* jeeted to because of his holding' adjoining hinds, his intei'MC muit be located on the plots.
    4. The plaintiff, to establish the location of Thompson's Choice, as located by him on the plots, gave in evidence a plot of the lands called Thompson's Choice, Cullen's Lot, Cullen's Addition, Hill's Forest, Tasker's Camp, Holland's Park, (the last tract granted to the defendant",) and Jamaica, which plot was made by a certain Darby Ensor, a witness sworn in this cause; and the plaintiff offered to prove by Ensor, that the said plot was made by him from runnings directed by the defendant, and made by hirh, Ensor, as deputy surveyor of Baltimore county, in virtue of a warrant of resurvey issued from this court in an action of ejectment brought therein by the lessee of the present defendant against a certain 7'homas Gittings. And the plaintiff offered also to prove, by the testimony of James Gittings, of Thomas, that the place where Ensor run from as the beginning of Thompson's Choice, in the said runnings from which the said plot so produced was made, was the same place as located on the plots in this cause at black IT. But the defendant objected to James Gittings, of Thomas, being sworn in chief, and that he was not a competent witness to prove that the place where the defendant had directed Ensor to run from, in the runnings from ■which the said plot was made, was the same place which is-located by the plaintiff on the'plots at H; and offered to prove to the court, that James Gittings, of Thomas, was the owner of a part of Thompson's Choice; and produced the certificates of the surveys of Hill's Forest, and Holland's Park, granted to George Holland. The former of those tracts was surveyed on the 4th of October 1684, and the latter on the 14th of October 1683, and they are both stated as lying in Baltimore county, in the woods, above the head of a river called Gunpowder river. The former tract began at a bounded red oak ■ standing at the end of the N line of Thompsons Choice, and the latter be* gan at a bounded tree standing at the end of Hill's Forest»
    
      Chase, Oh. J. The court are of opinion, that James {fittings, of Thomas, he admitted as a witness to prove the fact stated by the plaintiff. The Chief Judge cited Hawkins vs. Beanes A Middleton, 2 Ilarr. M‘Hen. 119. Chapline vs. Keedy, 3 Harr, M’Hen. 578, and Gittings vs. Hall, 1 Harr. <£• Johns. 23, to show that it had been .decided, that if the testimony of a witness, who is interested, is intended to be objected to, the land, in which the witness is alleged to he interested, must be located on the plots. The defendant excepted,
    The declarations» of a former holder of the adjoining; lands, as to the bounds of the land in dispute, admitted in evidence, it not appearing by the plots that he was interested in establishing the fa els related by
    
      5. The defendant produced a witness, who deposed, that 18 years ago he lived with Charles Bidgely, who had then purchased part of Trueman’s Acquaintance, a trget of land located on the plots. That Bidgely told him that an ngreement had been before entered into between Thomas Git-tings, the owner of Thompson’s Choice, and James Greenfield, the owner of part of Trueman’s Acquaintance, (which part he had sold to Ridgelyj) that the place designated on the plots as the end of the first line of Thompson’s Choice, according to one of its locations as made on the plots, should he iixed as one of the boundaries of that part of Trueman’s Acquaintance, which Greenfield had held and sold to Bidgely. The plaintiff- then prayed the court for their opinion and direction to the jury, that the declarations of Bidgely, (who is dead,) so given in by the witness above stated, was incompetent and inadmissible, he, Bidgely, being interested in establishing the truth of the. facts by him related to the witness.
    Chase, Ch. J. The court are of opinion, that the declarations of Bidgely are competent and admissible evidence to the jury, it not appearing to the court, by the plots, that he was interested in establishing the truth of the facts related by him to the witness. The plaintiff excepted.
    Whether or in/c a will made in lfnlo was lejiallj executed & prov. ed, are matters of fact for the jury» and they oup;ht, from the length or vxine which has elapsed, to presume that it had been duly exeettVi ed anil proved
    6. The defendant, in order to show that the land claimed by the plaintiff was not escheatable for the want of the heirs of George Holland, the patentee, offered to read in evidence, an exemplification of the will of Holland, taken from the i-ccords of the late prerogative office, dated the '19th of February 1G83, whereby, amongst other things, he devised as follows, viz. “And all the rest of my lands, goods and chattels, I give and bequeath unto John Larkin9, of Ann-drundel county aforesaid, innholder, and to his heirs and assigns for ever. ” The will was signed, sealed, and attested thus;
    “ George Holland, (L S.)
    “Signed, sealed and delivered, in the presence of Wm. Lathorp,
    
      Ann M Tovey,
    
    
      Liana L. Parkes. ”
    
    And thus endorsed: “June the ZZd, 1685, came before me William Lathrup and Anne Tovey, alias Joce, the said Lailvrupe took his corporal oath, that the within was signed, sealed and delivered, as the act and deed of the said George Holland, Ann Tovey, alias Joce, took her corporal oath that she did believe that the within signed was her mark — the said Liana, mortu esl.
    
    
      ‘ ‘■Jurat coram me James Ping old.”
    
    The plaintiff objected to the same being offered in evidence, because it did not appear that the will, if executed at all, was attested by the witnesses in the presence of the testator; and because it was not the original will, and did not appear to have been proved, so as to authorise the same to be recorded.
    Chase, Cb. J. The court are of opinion, that the above circumstances are matters of fact to be determined by the jury; and that they may and ought, from the length of time which has elapsed since the making of the will, to presume that they were complied with. The plaintiff excepted.
    On certain facts of title and descent, the juty were directed, iliat if they found them to be true, then land, which had been granted as escheat larnl, was not escheatable; although the land had not been claimed under the
    original grantee for upwards of TOO years,
    In ejectment the plaintiff must recover on the strength own recovery dant by showing a title in himself,or a clear subsisting title in a stranger.
    Possession is presumptive evidence of right, and the dtfemlant cannot be deprived of his possession by any person nut the rightful owner of tlie land — he who hath the jus possessions.
    
    A clear subsisting title, outstanding in another, means such a title as the stranger could recover on in ejectment against either of the contending parties,
    Land is not escheatable as long as there are heirs of the original grantee, and until the. failure of his heirs, the land cannot be again granted; and if it is, it passes nothing.
    An escheat grant is prima facie evidence of title.
    Nothing but 20 years adversary possession can defeat a titfe acquired under .a legal grants
    7. The plaintiff then offered in evidence an escheat warrant obtained by Waller Tolly on the 6th of September 1782, on Holland’s Parle, that Tolly died a few months after the date of that warrant, and that the defendant, who intermarried with the daughter of Tolly, obtained an escheat warrant on the 22d of August 1783, on the same land, for want of heirs of George Holland, the grantee; that he returned a certificate of survey on the 1st oí July 1784, and obtained a patent therefor, by the name also of Holland’s Park, on the 13th of May 1785; and that the land, so granted to the defendant, is truly located by the plaintiff on the plots. The plaintiff then offered in evidence, that John Larkin, the devisee in the will of George Holland, died intestate in the month of February 1702, leaving Thomas Larkin, the other devisee in the said will, his heir at law, who married about the 2d of September 1697; and gave in evidence the will of T Larkin, dated the 10th of April 1731, in which Holland’s Park is not mentioned; but there is a recital of a mortgage of sundry tracts of land executed by the testator to the heirs of Amos Garrett, more than sufficient to pay the debt for which they were mortgaged, and he desired that they might be sold, &c. lie devised other lands to his daughter Elizabeth. That T. Larkin died in May 1731, leaving his daughter Elizabeth, the devisee in the will mentioned, his heir at law. He also offered in evidence the will of E. Larkin, dated the 25th of January 1735, in which no mention is made of Holland’s Park, nor is there any residuary clause; and that she died unmarried, on the 4th of February 1735. He also offered in evidence the deed of mortgage referred to in the will of T. Larkin, in which mortgage Holland’s Park is not mentioned. He also offered evidence that Zachariah Maccubbin intermarried with Susanna, his wife, on the 201 h of July 3704, and died about the mouth of December 1756, leaving Nicholas Maccubbin his son and heir, and that N. Maccubbin died about the month of March 1787, aged about 85 years, leaving Nicholas Carroll 
      
      , of the city of Annapolis, his heir. lie also gave in evidence, that N. Maccubbin was a sensible, inielligeut man, possessed of a large fortune, and very careful and attentive to his interest. He further offered in evidence, that from the time of the grant to Holland, until the present time, no person has been known to have ever actually possessed or claimed Holland’s Park, claiming it as such, except the lessor of the plaintiff, and the defendant, under their escheat grants aforesaid. And further, that n» person of the name of J.arkin or Maccubbin, or of any other name, has been known to set up a title to, orto claim the said land, except under the escheat grants aforesaid* Also, that Tolly lived .adjoining the said land during the whole of his life, and was an old man at the time of his death; and also that the defendant is an attorney of great legal information, and has been in the practice of the law for near or quite thirty yéars. The defendant then read in evidence the certificate and grant for Holland’s Parle, granted to George Holland; and gave in evidence that Holland afterwards died, having devised the land in fee to John Larlein; that J. Larkin died, and left issue two children, Thomas, his heir at law, and Hester; that T. Larkin after-wards died, leaving issue an only child, a daughter, named Elizabeth, which Elizabeth died without issue. That Hester, the sister of T¡ Larkin, and aunt to Elizabeth, intermarried with .a certain Nicholas Nicholson, by whom she had issue Susanna, her only child and heir at law.- That Susanna, after the death of Hester, intermarried with Zachariah Maccubbin, by whom she had issue N. Maccubbin, her eldest son and heir at law; that N Maccubbin, after his mother’s death, died, leaving issue a son named N. Carroll, his heir at law, now in full life, living in the city of Annapolis. He also offered evidence to prove that Holland, the patentee, J. Larkin, his devisee, and the before mentioned T. Larkin, E. Larkin, H. Nicholson, S. Maccubbin, N. Maccubbin, and N. Carroll, his son, have severally, at all times during their respective lives, lived and resided in Anne-Arundel county in this state; that the land called Holland’s Parle was originally located in Baltimore county, and that no .person or persons ever built on, improved or cultivated the said land, or any part thereof, before the defendant in this cause in 1775, and the lessor of the plaintiff in 1795, except part thereof which had been occupied by a certain Janies Gittings, and that the residue of the land lay waste and unimproved. He further offered in evidence the original debt books of Baltimore county, and entries therein of the agents of the Proprietary, on one of which, Hz. in 1769, is an entry in these words: “Gideon Linthecum Dr. To Holland’s Park, 150 acres, 6s.’’and opposite thereto the following entry, viz. “Can’t find any such person or land.” And an entry on the rent roll in the land office, made about the year 1772, in these words, viz. “150. Holland’s Park, surv’d. 14th October, 1685, for George Holland, above the head of Gunpowder river. jross. 150. 6s. Gideon Lintheeomb. The bounds of this laud being lost, the land cannot be found; nor is there any such person in being as Gideon LintheeombHe also offered evidence to prove, that the tract of land in the said entries mentioned, was the same land which was surveyed for Holland, and patented to him by the grant herein before referred to; and that it is the land located by the defendant and the plaintiff on the plots, and that it is truly located by the defendant. He then prayed the direction of the court to the jury, that if the facts in the above statement are true, that then the legal title to Holland’s Parkis in N, Carroll, the heir at law of N. Maccubbin; that the land was not liable to escheat, and that the lessor of the plaintiff is not entitled to recover the said land, in the declaration mentioned, under his escheat grant in 1798.
    Chase, Ch. J. The court are of opinion, and so direct ¿he jury, that if they find the facts stated by the defendant to be true, that the legal title to Holland’s Park is in NL Cholas Carroll, the heir at law of Nicholas Maccubbin, and that the said land not being escheatable, the plaintiff is not entitled to recover the said land, in his declaration of ejectment mentioned, under the escheat grant to the lessor of the plaintiff in 1798.
    fn ejectment the plaintiff must recover on the strength of bis own title. The defendant may prevent his recovery by showing a title in himself, or by showing a clear sub listing title in a stranger.
    Possession is presumptive evidence of right, and the de ■ feudant cannot be deprived of his possession by any person but the rightful owner of the land, i. e. he who hath the jus posscssionis,
    
    A clear subsisting title outstanding in another, means such a title as the stranger could recover on in ejectment against either of the contending parties.
    Land is not escheatable as long as there are heirs of the ■original tenant or grantee.
    Escheat is that possibility of interest which reverts to, or devolves on the lord, upon the failure of heirs of the original grantee; and he cannot grant the land again until that event happens; and if lie does, his grant will pass nothing, and cannot impair any right or interest acquired under his original grant.
    
      The escheat grant is prima facie evidence of title; but being only a presumption of right in the Proprietary, it can only exist until the contrary is proved; and if the jury find the facts stated by the defendant, there is evidence of a clear subsisting title in the heirs of George Holland, under the grant to him. Holland’s Park having been legally granted to George Holland, nothing can defeat his title, and the title of his heirs, to the said land under his grant, but twenty years adversary possession.
    The court are of opinion, that if the jury find the facts stated, a title has been legally deduced from George Holland, the patentee of Holland’s Park, to Nicholas Carroll, and that the right to Holland’s Park now subsists in him. The plaintiff excepted.
    The jury were directed, that if they believed certain facts, then the presumption of law was, that G. H., for whom the land in dispute was surveyed on the 24th of October 26s3, and’ granted to him on the 20th of August 1684, was seized thereof at the time of his w ill dated the 19th of February 1683, and his death in 1685.
    8. The plaintiff also offered in evidence, an entry on the old rent roll in the land office, made about the year 1710, in these words, viz.' “150 acres of Holland’s Park, surv’d •14th October .1683, for George Holland, above the head of Gunpowder river, at a bounded tree at the end of a parcel of land called Hill’s Forest, and now in possession of John Ford of A. A. county.” Also an extract from the land office.of the following tracts of land having been patented to George Holland, viz. Collet’s Neglect, Holland, Denton, Holland’s Delight, Holland and Holland’s Advent. Also a record of a suit brought by N. Maccubbin’s Lessee vs. Medford, about the year 1766, for establishing the bounds of a tract of land lying in Kent county, devised to Maccubbin by Col. Pickard Bennett, and which suit was tried at the assizes held in Queen-Anne’s county. The defendant then prayed the court to direct the jury, that if they believe the facts to be true as stated by him, that then the presumption of law is, that George Holland was seized of Holland’s Park at the time of his will and death, and the same land passed to Larkin, his devisee, and no presumption from the facts stated on the part of the plaintiff can arise, that Holland was not seized of the said land at the time of his will and death.
    The Couht directed the jury accordingly. The plaintiff excepted.
    
      Verdict, part for the plainiiff,
    and part for the defendant, and judgment thereon for the plaintiff. Both parties appealed to the late court of appeals, and at November term 1805, the points arising on the bills of exceptions, (th a four first taken on the part of the defendant, and the other four on the part of the plaintiff',) were argued in that court, on the cross appeals, by
    
      Pinkney, Key, Shaaffi and Harper, for Hall,
    
    and by
    
      Martin, (Attorney-General,) for Gittings’s Lessee.
    
    The then Court of Appeals not having given judgment when the legislature passed the act of 1805, eh. 16, abolishing that court, these, appeals were, by the act of the same session, ch. 05, transferred to the present Court of Appeals, and were argued at June term 1806, before Tilghman, Buchanan, Nicholson and Gantt, J. by
    
      Harper and Johnson, for Hall,
    
    and by
    
      Martin, for Gittings’s lessee.
    
    On the part of Hall, it was contended by his counsel in the former and present arguments on OnR first bill ofexcepfions, 1. That the Lord .Proprietary was entitled to the whole of the land in controversy, either by escheat or as vacant land, in case it was not included in Tolly’s Purchase. 2. That the Proprietary was liable to the operation of the act of limitations, and of adversary possession. 3. That he was therefore out of possession, and had merely a right of entry when the act of confiscation divested him of his rights, and transferred them to the state. 4. That the state acquired merely a right of entry, and had not a complete title or right of possession without office found or actual entry. 5. That the want of office found, or actual entry, was not supplied by the act of confiscation, and consequently that the state’s patentee had no right of entry, and could not maintain the possessory action of ejectment. 6. Thai as far as the Proprietary’s right depended on the escheat, it was a right in pais, liable in its own nature to be defeated by adversary possession, or other matter in pais, and requiring an office found, or actual entry, to perfect it; that it was transferred to the oí ¡’in with all its original and inherent properties; and conscq.NL!. , was liable, even in the hands of the state, to be defeated by the adversary possession of Tolly, and those claiming cider him. They referred to Russell’s Lessee vs. Baker, 
      1 Harr. Johns. 71. Kelly's Lessee vs. Greenfield, 2 Harr & M'Hen. 121. Bro. Ab. tit. Prerogative, s. 91. 2, Hawk. 448, Bro, 34, 4 Coke, 48, 58.
    On the second: bill of exceptions it was contended, 1. That if the escheat of. Holland's Park had fallen at the time when Tolly's Purchase was granted, so much of the first tract as was included within the true location of the latter would pass by the grant of the latter. 2. And that if the escheat had not fallen, but fell afterwards, still the latter grant would operate as an estoppel on the Lord Proprietary, (who it was contended was bound by estoppels like other persons,) and would pass the land to the grantee of the latter tract by way of estoppel, and would defeat the title of the lessor of the plaintiff under his grant of Friendship Compleated. They cited Kelly's Lessee vs. Greenfield, 2 Harr, & M'Hen, 121. Russell's Lessee vs. Baker, 1 Harr, Johns. 71. 3 Blk. Com. 308, 10 Vin. Ab. 454, 455, pl. 9, 10; 482, pl. 1; 484, pl. 15. Co. Litt. 45, a. 47, b. 352, a. Litt, sect. 58. 6 Mod. 258. Hayne vs. Maltby, 3 T. R. 441. 4th Supp. to Vin. Ab. 127. Fairtitle vs. Gilbert, 2 T. R. 171. 4 Com. Dig. 78, 81, 84, The attorney-General vs. Snowden, 1 Harr, Johns. 332. Moale vs. Howard, in the general court, (see post.) Owings vs. Norwood's Lessee, (ante 95.) Hawkins vs. Hanson, 1 Harr. & M‘Hen. 523, (argument of counsel.)
    On the third bill of exceptions it was contended, tliatj the location of an escheat grant was to be made by its own. expressions, and not by those in the original grant. They cited Dorsey's Lessee vs. Hammond, Harr. & Johns. 193, 2 Shep. Ab. 279. 14 Vin. M. 78, pl. 8. 2 Roll. Ab. 50. Bac. Ab. tit. Grants, (H.) 3 Blk. Com. 379. Co. Litt. 42. 2 Blk. Com. 347, 379, 380. Bac. El. ch. 3. Hob. 71.
    Oil the sixth bill of exceptions it was contended, 1. That the circumstances stated did amount to a presumption in law, that the will of Holland was legally executed. They cited Hands vs. James, 2 Com. Rep. 531. Croft vs. Pawlet, 2 Stra. 1109. 5 Bac. Ab. 508. 2. That the sta • tute of frauds did not extend to this country Until after the time when Holland's will was proved. They cited Clayland's Lessee vs. Pearce, 1 Harr. & M'Hen. 29. Carroll's Lessee vs. Llewellin, Ibid 162.
    On the seventh and eighth bills of exceptions it was con - tended, that Holland was seized of Holland's Park at the tima of his will and death; that the certificate of survey was four months before the date of the will, (the year then beginning the 25th of March, and October of course being before February,-) and that the grant in 1684 would relate to the certificate of survey in 1683. They cited 18 Vin. Ab. 222. Pigott on Com. Recov. 26.
    The counsel for Gil tings’ s Lessee, on the first bill of exceptions, referred to the acts of October 1780, ch. 45, and ch. 49. 2 Hawk. 448, ch. 49, s. I, 2. Pro. Ab. tit. Prerogative, 143, b. pi. 91. Ibid tit. Decant, 109, a. pi. 34. 8aoil, 7, (18th case). Ibid 70, (145th pase). Stanf. Pre. 54, a. 2 Boll. Ah. 184, pi. 1, 2, S, 4. 4 Coke, 58. Taylor vs. Horde, 1 Burr. 60,
    On the second bill of exceptions he citad 10 Vin. Ab, 470, pi. 9j 482, pi. 1. Co. Litt. 47. b. 352. a. Hath's Lessee vs. Polk, 1 Harr. & M'Hen. 363.
    On the third bill of exceptions he cited 2 Shop. Ab. 281. 14 Pin. Ab. 80. pi. 21; 83, pi. 41. 2 Pac. Ab. 661, 662. Bac. EL 86. 2 Mod. 3. Bulst. 177. 2 Leon. 235, Trapp’s case. Clayton, 14, Bradford’s case. 3 Coke, 9, Dowties case. Brownl. 42.
    On the sixth bill of exceptions he cited Collins vs. Nicols, 1 Harr. & Johns. 399.
    On the seventh and eighth bills of exceptions he contended, 1. That the escheat grant to the lessor of the plaintiff gave a presumptive right, and was prima facie evidence that the land was liable to escheat; that it was not shown by the defendant below that there was no such presumptive right, or that the land was not liable to escheat; that presumption was a rule of evidence, and not a fiction of law; that the evidence offered by the defendant ought not to have been admitted to defeat the right of ¡.he plaintiff, where for upwards of 100 years no person ever claimed the land under Holland, except the defendant, a wrongdoer, who should not have the benefit of presumption in his favour. 2. That the facts stated, although they might be true, d-d not authorise the court to direct the jury to make the presumption, that Holland was seized of the land at the time of his will and death, no person ever having claimed or held under his will.
    
      Curia aih\ volt.
    
    
      
      ¡te) Buischl -aud Shoos, 3. concurred.
    
    
      
      
         Hawkins vs, Hanson, 1 Hart'. §• M’Hcn. 523,
    
    
      
      
         Name changed from Slascublin by act of assembly.
    
   ' The Court of Appeals,

at the present tems affirmed flic judgment of the General Court on both appeals, concurring in the opinions pronounced in the several bills of exceptions.

Tilghxian, J.

gave no opinion on the third bill of exceptions.  