Jackson ex dem. Smith v. Stewarth

Where a pePsoii has entered into the possession of land under another,and acknowledged his title, he cannot set up, in defence to an action of ejectment, an outstanding title in -a third person. A lease was ex-reservin'” mu’ ■tvitii a clause ot re-entry for non-payment of tlie lessee died wife or children! no1 evidonc!?"oT a continuance of possession under him, or of payment of rent, and the ken0' possession held!8in'mg! ib'-1 ” nori-pa'\i ment of rent by tne lessor, 17ns to be presumed. Where an attorney undertakes to appear for a party in a cause, the court -will look no further, as to his authority.

THIS iras an action of ejectment, for lands in Kings-bury, in Washington county. The cause was tried at the Washington circuit, in June, 1809, before the. chief justice. At tlie trial the plaintiff proved, that the defendant entered into possession under a contract to purchase, made by Zina Hitchcock, as attorney for the plaintiff, by virtue of a letter of substitution, from Clifford; of Philadelphia, who was believed to have been authorized to make such letter of substitution. The defendant acknowledged he held under the lessors, It was proved, that about 22 or 23 years before, one Phnt was in possession, and acknowledged that he enter£d without title, and h.e surrendered, to Hitchcock, as agent to Joseph Smith, deceased, the father of the plain- , v 4 r tiff, (both of whom resided in Englandwho continued . N a y m possession until about 14 or 15 years before, when the, defendant applied to Hitchcock, as agent of JosePh Smith, deceased, to purchase. Hitchcock consentec^ t^lat ^le defendant should take possession, and the defendant agreed, verbally, for the purchase. The deiendant entered into possession, in which he has remained ever since. No writing was signed by him. The defendant frequently requested indulgence as to the payment of the purchase-money. In November, 1808, before the commencement of this suit, the agent applied to the defendant, to have the contract for the sale reduced to writing, and to secure the payments. The defendant refused to do any thing; and alleged, as a reason, that he had agreed for an adverse title to the land from John Thurman. It was further proved, that the defendant admitted that Orton Smith, the lessor, owned the land, and was son and heir of Joseph Smith, deceased. The defendant then produced the counterpart of a lease from Joseph Smith to John Griffith, dated the 26th June, 1769, for the premises, which had been delivered by Clifford to Hitchcock, as agent. He then offered in evidence an assignment, on the back of the lease, -dated 28th May, 1807, of all the lands included in the lease, to Thomas Bradshaw. The assignment was executed by “ Orton Smith, by Zina Hitchcock, his attorney.” The defendant then offered to show, that the lease was regularly assigned by Bradshaw, and, after passing through several hands, came, by assignment, to the defendant. This evidence was objected to, on the ground, that it did not appear that Hitchcock had authority from Smith to make the assignment, or that if he had, that he pursued his authority. Hitchcock then, on being asked, said, he thought he had authority, though not immediately from Orton Smith; that he had authority from Clifford, who assumed to be the agent of Smith ; and that he had sold to Bradshaw, under the authority from Clifford; and he produced a power of substitution, executed by Clifford. No original power from Smith was shown. The judge then rejected the assignment, as not proved to have been executed by Smith. The defendant then offered to prove, that Hitchcock, as agent of Smith, directed the suit to be commenced; but this evidence was rejected. The defendant then produced the original lease, from ■ Joseph Smith to Griffiths. It was for 999 years, reserving one shilling per acre for rent, and with a clause of re-entry for non-payment of rent; and proved that 30 or 40 years before, Griffiths went into possession, and continued in possession until 1775, when he died without wife or children ; that during the war, a person, by the name of Tully, entered into part of the lot, and continued there about a year, but by what authority did not appear. The judge permitted the lease to be read, as an ancient deed, but said that as it appeared to have lain dormant so long in the hands of the lessee, a re-entry was to be presumed; and a verdict was, thereupon, taken for the plaintiff, subject to the opinion of the court.