divided, and was argued by counsel; on consideration whereof this Court doth order, that it be certified to the Circuit Court of the United States for the District of Ohio: 1. That the owner of a survey, made in conformity with his entry, and not interfering with any other person's right, may abandon his survey after it has been recorded. 2. That the defendant, on the facts stated in the case, cannot protect himself at law, under the act of Congress, passed the 2d of March, 1807, entitled, "An act to extend the time for locating Virginia military warrants, for returning surveys thereon to the office of the Secretary of the Department of War, and appropriating lands for the use of schools in the Virginia military reservation, in lieu of those heretofore appropriated," and the several subsequent acts on the same subject. 1822, Green Watkins. [COMMON LAW.] GREEN V. WATKINS. In a writ of right, the tenant cannot give in evidence the title of a third person, with which he has no privity, unless it be for the purpose of disproving the demandant's seisin. Therefore, where the demandant proves an actual seisin, by a pedis positio, the tenant cannot be permitted to prove a superior outstanding title, since it does not disprove the demandant's seisin. But where the demandant relies for proof of seisin, solely upon a cons 1822. Green V. Watkins. Feb. 5th. Feb. 12th. structive actual seisin, in virtue of a patent from the State, of vacant lands, the tenant may show that the land has been previously granted by the State, for that devests the title of the State, and disproves the demandant's constructive seisin. A writ of right brings into controversy only the titles of the parties to the suit, and is a comparison of those titles; and either party may therefore prove any fact which defeats the title of the other, or shows it never had a legal exisience, or has been parted with. The case of Green v. Liter, 8 Cranch, 229. commented on, and explained. THIS cause was argued by Mr. Montgomery, for the plaintiff in error, and by Mr. B. Hardin, for the defendant. Mr. Justice STORY delivered the opinion of the Court. The record in this case presents a great variety of facts, out of which several important questions have arisen; but as the merits of the cause may, in the opinion of the Court, be completely disposed of by the decision of a single point, the facts which illustrate that point will alone be mentioned. This is a writ of right, originally brought by the plaintiff in error, against the defendant in error, to recover a certain tract of land in Kentucky, described in the writ. Issue being joined on the mere right between the parties, the demandant, to sustain his suit, gave in evidence a patent of the land in question, granted to him by the Commonwealth of Virginia, and dated the 28h day of January, 1784, and offered proof of the boundary. But he offered no proof, other than his patent, that he was ever seized of the land in question. According to the de cision of this Court, in Green v. Liter, (8 Cranch, 229.) a patent of vacant lands of the State conveys to the grantee a constructive actual seisin, sufficient to maintain a writ of right; and therefore the demandant in this case entitled himself prima facie, upon this evidence, to a recovery. To rebut this conclusion, the tenants offered in evidence, as well for the purpose of proving title in themselves, as to show that the demandant was never seized of the premises, certain patents from the Commonwealth of Virginia, which included the premises, to wit, a patent to John Lewis and Richard May, dated the first of June, 1782; a patent to Edmund Eggleston, dated the same day and year; and a patent to John Gratton, dated the same day and year; and a patent to Isham Watkins of the same date: under which patents the tenants endeavoured to derive by mesne conveyances a good title to themselves in severalty. To the regularity of the title of the tenants so derived, the demandant took several objections, which were overruled by the Court, and the conveyances were admitted in evidence; and if, in point of law, the patents so offered in evidence by the tenants were admissible, for the purpose of showing that the demandant never had any constructive actual seisin in the premises, which was the only seisin on which he relied, the regularity of these mesne conveyances to the tenant becomes wholly immaterial, since, if these patents were still outstanding in strangers, they would, if admissible, all establish the same defect of seisin in the demandant. The question, then, which meets us at the threshhold of this cause is, whether it 1822. Green v. Watkins. 1822. Green be competent for the tenants, in a writ of right, where the demandant shows no seisin by a pedis positio, but relies wholly on a constructive actual seisin, in virtue of a patent of the land, as vacant land, Where the de- to disprove that constructive seisin, by showing for proof of sei- that the State had previously granted the same land Watkins. mandant relies sin, solely upon a constructive actual seisin in to other persons, with whom the tenants claim no virtue of a pa State, of vacan! tent from the privity. In other words, whether the tenants can lands, the te- set up title and seisin in a stranger, to disprove the nant may show, that the land seisin of the demandant: and, upon the fullest consi has been previ ously granted by the state, for deration, we are all of opinion that they may. The that devests the title of the State reasoning on which our opinion is founded, is this; demand the mise joined in a writ of right, necessarily in and disproves the ant's constructive seisin, volves the titles of both parties to the suit, and institutes a comparison between them. It is consequently the right of each party, to give any fact in evidence, which destroys the title of the other; for the question in controversy is, which hath the better mere right to hold the demanded premises. It has been already decided by this Court, and is indeed among the best established doctrines of the common law, that seisin in deed either by possession of the land, and perception of profits, or by construction of law, is indispensable to enable the demandant to maintain his suit. The tenant may therefore show in his defence, that the demandant had no such actual seisin; for the seisin of the freehold by the tenant, which is admitted by the bringing of the suit against him, is a sufficient title for the tenant, until the demandant can show a better title. The tenant may thus defeat the demandant, by proving that he never had any such seisin in deed; or if he once had it. that he has parted with his whole estate, by a conveyance competent to convey, and actually conveying it. To apply this doctrine to the present case. The demandant here relies, not on a seisin in deed, by a pedis positio, but on a seisin in deed by construction of law, in virtue of his patent. If the land included in the grant belonged, at the time of the conveyance, to the State, and was vacant, upon the principles already asserted by this Court, it conveyed, by operation of law, a seisin in deed to the demandant. But if the State had already granted the land by a prior patent, it was already, upon the same principles, in the adverse seisin of another grantee, and, consequently, the patent to the demandant could not convey either title or seisin. It is, therefore, manifest, that for this purpose, to disprove the seisin of the demandant, the tenants in this case were entitled to introduce the four patents above stated, (even if they failed to establish a privity of estate in themselves,) since these patents were all prior to that of the demaudant, included the land, and, if admitted, would show, that the seisin in deed, by mere construction of law upon the grant of his patent, never had a real existence. It has been supposed, however, at the bar, that the case of Green v. Liter establishes a different doctrine on this point. In our opinion, that case does not justify any such conclusion; and certainly was not understood by the Court to require it. It will be recollected, that the case of Green v. Liter came before this Court upon a division of opinion of the Judges of the Circuit Court upon certain questions 1822. Green V. Watkins Green v. Liter, Cranch., 229, and explained. commented on |