ERROR to the Circuit Court of Kentucky.
This was an ejectment in the Court below, brought to recover the possession of lot No. 18, in the town of Danville, in the State of Kentucky. It appeared, from the evidence in the cause, that the plaintiffs are the heirs of John Dunlap, who was a citizen of Pennsylvania, and claimed as the heir of his brother, James Dunlap, who died seised of the premises in question, in the autumn of 1794. James Dunlap was an alien, and a subject of the king of Great Britain, who came to the United States subsequent to the treaty of peace of 1783, and died before the signature of the treaty of 1794. After his death, one Hunter, professing to have purchased of John Dunlap, entered into possession, and conveyed to several persons, parcels of the lot; and to the defendant, Rochester, one parcel, in 1795, who entered into possession thereof, and has occupied the same ever since; having acknowledged the title of said Dunlap, as that under which he held.
Upon this evidence, the counsel for the plaintiffs moved the Court to instruct the jury,
1st. That if the jury find the defendant obtained possession under James G. Hunter, who obtained possession as the attorney of John Dunlap, or who claimed under an executory agreement with John Dunlap, and that said defendant has held, and occupied under John Dunlap's title, claiming from said Hunter, as the attorney of said Dunlap, or under an executory agreement, or has, since he was in possession, acknowledged the title of said Dunlap, as that under which he held; that then the defendant is not permitted to impeach or controvert the title of said John Dunlap, by parol evidence that James Dunlap was an alien.
2d. That if the defendant, Bochester, acquired the possession, and has continued to hold as above, the possession of the defendant was no such an adverse possession as would toll the right of entry of said John Dunlap, and the statute of limitations does not apply.
3d. That if James Dunlap occupied the lot, from the date of his deed till his death, and said James G. Hunter and the defendant have continued to hold it under the claim of John Dunlap, his brother, as heir to James; that from these facts, connected with the evidence in the cause, and in the absence of any proof of an inquisition or office found as to the alienage of James Dunlap, and in the absence of any grant or other act of the commonwealth or its officers since the death of said James, in derogation of the title of said James or of said John, they should presume that said James was a citizen of the United States.
4th. That if they believe the evidence, they should find for the plaintiff.
5th. That the jury have a right to presume that James Dunlap was a citizen of the State of Virginia, or of some one of the United States, and if so, John Dunlap was his heir, and capable of inheriting.
6th. That if James Hunter entered under a parol agreement with John Dunlap, the possession of said Hunter was the possession of said Dunlap
7th. That the inheritance claimed by John Dunlap, as heir to James, is protected by, and within the provisions of the treaty between the United States and Great Britain, signed 19th November, 1794.
The Court refused the 1st, 3d, 4th, 5th, 6th, and7th instructions, moved by the plaintiff; and gave the second, with this qualification, 'that if John Dunlap had either title or the actual possession of the premises after the death of James Dunlap, and before the entry of said Hunter, or of the defendant, then the statute of limitations did not apply.'
The defendant moved the instruction, that if, James Dunlap was an alien, and died before the 19th November, 1794, then the plaintiff has made out no title to the land in question which will authorize them to find for him; which was given by the Court with this qualification, that if the jury find that John Dunlap had actual possession of the premises after the death of James Dunlap, and prior to the time when Hunter took possession, in that event this instruction would not be given. March 15th.
Mr. Bibb, for the plaintiff, (1.) stated that the first instruction, moved on the part of the plaintiffs, involved the proposition that Hunter, who entered, claiming under John Dunlap, would be estopped from denying John Dunlap's title by parol, and that the defendant, Rochester, who entered under Hunter, stands in the same predicament with his grantor, and is besides precluded by his own acknowledgment from denying the title from which his own is derived.a