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HAWKINS V. BARNEY'S LESSEE, 30 U. S. 457 (1831)

U.S. Supreme Court

Hawkins v. Barney's Lessee, 30 U.S. 5 Pet. 457 457 (1831)

Hawkins v. Barney's Lessee

30 U.S. (5 Pet.) 457


The decision of this Court as to the validity of the law of Kentucky commonly called the occupying claimants law does not affect the question of the validity of the law of Kentucky commonly called the seven years possession law.

The seventh article of the compact between Virginia and Kentucky declares

"All private rights and interests of lands within the said district (Kentucky) derived from the laws of Virginia prior to such separation, shall remain valid and secure under the laws of the proposed state, and shall be determined by the laws now existing in this state [Virginia]."

Whatever course of legislation by Kentucky which would be sanctioned by the principles and practice of Virginia should be regarded as an unaffected compliance with the compact. Such are all reasonable quieting statutes.

From as early a date as the year 1705, Virginia has never been without an act of limitation, and no class of laws is more universally sanctioned by the practice of nations and the consent of mankind than those laws which give peace and confidence to the actual possessor and tiller of the soil. Such laws have frequently passed in review before this Court, and occasions have occurred in which they have been particularly noticed as laws not to be impeached on the ground of violating private rights.

It is impossible to take any reasonable exception to the course of legislation pursued by Kentucky on this subject. She has in fact literally complied with the compact in its most rigid construction. For she adopted the very statute of Virginia in the first instance, and literally gave her citizens the full benefit of twenty years to prosecute their suits before she enacted the law now under consideration. As to the exceptions and provisos and savings in such statutes, they must necessarily be left in all cases to the wisdom or discretion of the legislative power.

It is not to be questioned that laws limiting the time of bringing suits constitute a part of the lex foci of every country -- the laws for administering justice, one of the most sacred and important of sovereign rights and duties, and a restriction upon which must materially affect both legislative and judicial independence. It can scarce be supposed that Kentucky would have consented to accept a limited and crippled sovereignty; nor is it doing justice to Virginia to believe that she would have wished to reduce Kentucky to

a state of vassalage. Yet it would be difficult, if the literal and rigid construction necessary to exclude her from passing the limitation act were adopted, to assign her a position higher than that of a dependant on Virginia.

The limitation act of the State of Kentucky, commonly known by the epithet of the "seven years law," does not violate the compact between the State of Virginia and the State of Kentucky.

Where a patent was issued for a large tract of land, and by subsequent conveyances the patentee sold small parts of the said land within the bounds of the original survey, it has been decided by the courts of Kentucky that the party

Page 30 U. S. 458

offering in evidence a conveyance of the large body held under the patent containing exceptions of the parts disposed of is bound in an action of ejectment to show that the trespass proved is without the limits of the land sold or excepted.

In the circuit court, the lessee of Joshua Barney brought an ejectment for 50,000 acres of land in the State of Kentucky which he claimed under a patent from the Commonwealth of Virginia to Philip Barbor dated 27 December, 1786, and a deed from Barbor to him dated 7 August, 1786. The defendants, William May and John Hawkins, derived their title under a junior grant to William May for 4,000 acres of land, and they proved on the trial in the circuit court that John Creemer, who had conveyed part of the land included in the grant to William May, settled on the land in 1790, and that both of the defendants in the ejectment have had possession of the land claimed by them ever since.

The defendants introduced and read in evidence a deed from Joshua Barney to John Oliver dated 6f January, 1812, by which the 50,000 acres, conveyed to him by Philip Barbor were conveyed to John Oliver. The deed contained a recital that he had previously sold and conveyed to John Berryman 11,000 acres of the land, and other small tracts to Charles Helm, in detached parcels.

The plaintiff then produced and read a deed in evidence, a deed executed by John Oliver and himself, on 6 January, 1812, in which the former conveyances were recited and in which it appeared that the conveyance made by him to John Oliver on 6 January, 1812, was to secure the payment of $20,000 within three years, with power to John Oliver to sell the land or any part of it if Barney did not repay the sum which had been loaned to him by Oliver; he also produced in evidence a deed executed by Robert Oliver on 21 October, 1816, as the attorney in fact of John Oliver, by which the title of John Oliver, to the whole of the land is released to Barney. This deed also recites the previous conveyances to Berryman and others.

The power of attorney from John Oliver to Robert Oliver was dated at Baltimore on 12 October, 1815, and was

Page 30 U. S. 459

as follows:

"And further I do hereby authorize and empower my said attorney to contract and agree for the sale and to dispose of as he may think fit all or any of the messuages, lands, and tenements and hereditaments of and belonging to me in any parts of the United States or held by me in trust or otherwise. And to sell, execute, and deliver such deeds, conveyances, bargains, and sales, for the absolute sale and disposal thereof, or of any part thereof, with such clauses, covenants and agreements to be therein contained as my said attorney shall think fit and expedient. Or to lease and let such lands and tenements for such periods and rents as may by him be deemed proper, and to recover and receive the rents due and to become due therefrom, and to give aquittals and discharges for the same, hereby meaning and intending to give and grant unto my said attorney my full power and whole authority in all cases without exception or reservation, in which it is or may become my duty to act, whether as executor, administrator, trustee, agent, or otherwise."

It was in evidence that neither John Oliver or Joshua Barney had ever been within the limits of the State of Kentucky until within three months before the institution of the ejectment, when Joshua Barney came into the state. It was also proved that the debt due by Joshua Barney to John Oliver was still unpaid.

On the trial, the circuit court instructed the jury that the deeds to John Oliver and from Oliver to Barney did not show such an outstanding title as the defendants could allege, and refused to instruct generally that the plaintiff had no right to recover.

The court also refused to instruct the jury that the plaintiff had no right to recover unless he showed that the 11,000 acres did not cover the defendants, recited to have been conveyed to Berryman.

The court also refused to instruct the jury that the law was for the defendants if they found from the evidence that the defendants had had the land twenty years in possession before the bringing of the suit.

The defendants excepted to the opinion of the court and prosecuted this writ of error.

Page 30 U. S. 463

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