Davidson's Lessee v. Beatty

Chase, J. delivered the following opinion of the court: Where a person shows title to a tract of land, as for instance Blackacre, and is in possession of part, possession of part is possession of the whole. Where a person claims by possession alone, without showing any title, he must show an exclusive adverse possession by enclosure, and his claim cannot extend beyond his enclosures. The reason is obvious, and the determination, when considered, will be found to correspond with the principles of justice, and to be in favour of the rightful owner of land, and against the intruder or trespasser. Two principles, generally recognised and sanctioned by the decisions of the court, when understood, will show the propriety and justice of the determination.

A title to a tract of land, as Blackacre, with possession of part is possession of the whole tract. Where two are in possession of a tract or a house, it is his possession who has the right. According to the first principle, right and possession of part being possession of the whole, nothing can exclude the rightful owner from the advantages of his general possession, or operate in derogation of his right, (consistent with the second rule,) but acts of ownership ⁶²² done by the intruder, which unequivocally show a claim of title in opposition to, or adversary to, the rightful owner, and such acts as necessarily exclude him from enjoying- or participating in the advantages derivable from the possession. The plaintiff appealed to the court of appeals.

At June term, 1798, the appeal was dismissed by the appellant’s attorney. Opinion of John Thomson Mason, Esq. given before the above suit was brought. John Gordon, in a manner not necessary upon the present occasion to be explained, became seised in fee-simple of and in a tract of land called Knave’s Disappointment: being so seised, William Black, of London, merchant, in 1768, obtained a judgment against him for the sum of 1,273/. 6s-. 2d. sterling, besides costs of suit in the provincial court. Upon this judgment an attachment under the act of 1715, c. 40. was sued out, and laid upon the lands called Knave’s Disappointment, which were appraised to the sum of 500/. sterling, and, in October, 1768, were condemned upon this attachment.

The whole of this business was transacted by Mr. Stephen West, now deceased, who at that time acted under a power of attorney from William Black. Upon the 1st of June, 1770, Stephen West, as attorney in fact for William Black, for the consideration of 500/. sterling, sold and conveyed this land to Adam Stewaft, who, on the 10th of the same month, for the consideration of 550/. sterling, sold and reconveyed the same land to Stephen West in his own right. On the 7th oí July, 1770, Stephen West, for the consideration of 900/. sterling, sold and conveyed this land to Charles Beatty and George Fraser Hawkins, who laid the same off into lots which they called The Addition to George Town, and sold and conveyed them to the present holders, or those under whom the present holders now claim. John Gordon at this time set up a title to this land, but offers terms of compromise to the tenants in possession» ⁶²³ The ohject of this opinion is to advise the present holders, as to the expediency of accepting on rejecting those terms of compromise.

To this end it will be wholly unnecessary to give any opinion as to a great part of the case above stated. If the right be not in John Gordon, the present holders can derive no benefit from a compromise with him; or if the right be in him, and his remedy to enforce that right be gone, they have not any thing to fear from him. . I shall, therefore, on this occasion, confine myself to two inquiries. 1st; Whether at this time there is in John Gordon an existing title to the lands in question ? . 2d. If there be such a title, whether there be a l'emedy to reduce that title into possession ?

The first question will turn upon the condemnation in 1768, under the act of 1715, c. 40. If this act of assembly was at this day res integra, and now for the first time to receive a construction, it would probably create some difficult questions. When taken in some points of view, the condemnation seems to vest the property condemned in him for whom the judgment of condemnation was rendered; and yet some other expressions of the same law, seem strongly to imply the necessity of an execution to carry that judgment into