Greenleaf's Lessee v. Birth. 6 P.

one equal undivided third part, on the day of the date of the abovenamed articles of agreement," (the 10th of July, 1796,) &c., &c. It then proceeds to specify three squares and lots contracted for by Greenleaf, with the commissioners of the city of Washington; and three thousand lots contracted for by Greenleaf, as agent of Morris, with the same commissioners; and about two hundred and twenty lots, contracted for by Greenleaf with Daniel Carroll; and about four hundred and twenty-eight and a half lots contracted for by Greenleaf with Notley Young; and then proceeds, "and also all

those lots situate in the said city of Washington, supposed [310] to be about two hundred and thirty-nine and one quarter in number, for which the said James Greenleaf contracted with Uriah Forrest and Benjamin Stoddert by an agreement in writ ing, bearing date, &c., (15th of July, 1794.) The lot sued for was one of these lots, and was included in a conveyance made by Forrest and Stoddert to Greenleaf, on the 24th of September, 1794. Several other parcels of lots are then specified, and then comes the following exception: "excepting, nevertheless, out of the lots, squares, lands, and tenements above mentioned, all that square marked and distinguished in the plan of the said city of Washington, by the number 506, and that other square lying next to and south of the said number 506, and all that other square lying next to and south of the square last aforesaid, the said square containing, &c., &c., which it is agreed, &c., shall be and remain the sole and separate property of the said James Greenleaf, and his heirs and assigns. And excepting also all such squares, lots, lands, or tenements as were either conveyed or sold, or agreed to be conveyed, either by all or either of them, the said James Greenleaf, Robert Morris, or John Nicholson, or any of their agents or attorneys, to any person or persons whatsoever, at any time prior to the said 10th day of July, A. D. 1795.

It is observable that the granting part of the deed begins by excepting from its operation all the lots, squares, lands, and tenements which are within the exceptions. The words are, "doth grant, &c., except as is hereinafter excepted, all those hereinafter mentioned and described lots, squares, lands, and tenements," &c. In order, therefore, to ascertain what is granted, we must first ascertain what is included in the exception; for whatever is within the exception is excluded from the grant; according to the maxim laid down in Co. Litt. 47 a, si quis rem dat et partem retinet, illa pars quam retinet semper cum eo est, et semper fuit.

It has been argued that the second clause in the exception is utterly void for uncertainty, because it excepts "such squares, lots, &c., as were either conveyed or sold, or agreed to be conveyed,"

Greenleaf's Lessee v. Birth. 6 P.

without stating to whom sold or conveyed, or agreed to be conveyed, or giving any other description which would reduce them to certainty. And it has been intimated that it is also void for repugnancy, because it is an exception of a part which had been previously granted; and Co. Litt. *47 a, has been relied on in support [* 311 ] of this objection; where it is laid down that an exception of a thing certain out of a thing particular and certain, will be void; as, if a man leases twenty acres, excepting one acre, the exception is void. Com. Dig. Fait, E. 7. But without stopping to inquire in what sense, and to what extent the rule thus laid down is law, it is sufficient to say that there is no such repugnancy here; for the exception is not out of the thing previously granted, but is incorporated into the very substance of the granting clause.

As to the other exception, we do not think it is void for uncertainty. It refers to things by which it may be made certain, and id certum est, quod certum reddi potest. No one will doubt that the exception of squares and lots actually sold and conveyed, would be sufficiently certain; for they may be made certain by reference to the deeds of conveyance. And as all contracts for the sale and conveyance of lands must be in writing, there seems the same certainty in reference to the lots contracted to be conveyed by the parties or their agents.

It has been suggested, that the generality of the exception might open a door to frauds and impositions upon third persons, by enabling the parties to bring forward spurious or concealed contracts at a future time. But to this objection it is a sufficient answer, that the present is not a case of a bonâ fide purchaser or grantee, whose title may be affected by any such fraud or concealment. The defendant, Birth, is a mere stranger to the title, and, for aught that appears, is a mere intruder. It does not lie in his mouth to contend that an exception, solemnly stipulated for by the parties, shall not be binding between them. They were content to take the conveyance upon these terms. There was certainly enough in the exception to satisfy them; and it would be a fraud in the grantees to attempt to avail themselves of the general and loose expressions of the exception, to avoid the titles of parties claiming title under Greenleaf by prior deeds or contracts of lots within the reservation. Even if the exception were void at law, a court of equity would relieve them against the claims of Morris and Nicholson, set up to their prejudice. It is not improbable that many such titles in this city are now held under the faith of this exception; and a declaration, at the instance of a mere 'intruder, that it was utterly void, might work the most [312] serious mischiefs. We see no substantial ground to support it.

Greenleaf's Lessee v. Birth. 6 P.

But if it were otherwise, still, the other exception of the square number 506, and the other two squares next south of it, are sufficiently certain. This court cannot judicially know that one of the squares next south of square number 506 is not square number 75; and there is nothing in the record that negatives it, for the defendant offered no evidence except the naked deed.

But it is said that if the exception is not void, still, the burden of proof is upon the plaintiff to establish that the lot in controversy is within the exception; because it is peculiarly within the privity and knowledge of the plaintiff's lessor what lots were conveyed and sold, and contracted to be conveyed, and the defendant has no means of knowledge. That in many cases the burden of proof is on the party within whose peculiar knowledge and means of information the fact lies, is admitted. But the rule is far from being universal, and has many qualifications upon its application. In the present case, the plaintiff has shown, primâ facie, a good title to recover. The defendant sets up no title in himself, but seeks to maintain his possession as a mere intruder, by setting up a title in third persons, with whom he has no privity. In such a case, it is incumbent upon the party setting up the defence, to establish the existence of such an outstanding title beyond controversy. It is not sufficient for him to show that there may possibly be such a title. If he leaves it in doubt, that is enough for the plaintiff. He has a right to stand upon his primâ facie good title, and he is not bound to furnish any evidence to assist the defence. It is not incumbent on him, negatively, to establish the non-existence of such an outstanding title; it is the duty of the defendant to make its existence certain.

Besides, this is the case of an outstanding title set up under a deed executed in 1796, under which, in respect to the act in controversy, the grantees are not shown either to have had, or to have claimed any possession or right of possession. The present ejectment was brought in 1818, twenty-two years after the execution of

that deed; and the trial had in 1829, more than thirty-three [* 313] years after its execution. Under such circumstances, a very strong presumption certainly arises that the lot was included within the exception; for it would be difficult in any other manner to account for such total absence of claim, or possession, by the grantees. An outstanding title could hardly be deemed a good subsisting title by common presumption, under such circumstances; whereas, if the lot was within the exception, the non-claim would be natural and fully accounted for. We are, therefore, of opinion that the circuit court erred, in refusing the instruction prayed for by the plaintiff in the first bill of exceptions.

Greenleaf's Lessee v. Birth. 6 P.

The second bill of exceptions, after stating that the defendant admitted that the legal title to the lot in question, under the patent from the State of Maryland, was vested in the plaintiff by the patent, and by divers mesne conveyances, on the 30th day of August, 1799, proceeds to state that, thereupon, to prove a title out of James Greenleaf, the defendant offered in evidence to the jury, the proceedings in the case of James Greenleaf, an insolvent, before the chancellor of Maryland, and the act of Maryland of 1798, c. 64, to the admission of which proceedings the plaintiff objected; but the court overruled the objection and admitted the evidence; and thereupon, on the prayer of the defendant, the court instructed the jury, that the said act of 1798, and the proceedings of insolvency, did show a legal title out of the plaintiff, and did preclude a recovery in this suit, on the first count in the plaintiff's declaration; that is to say, upon the demise of Greenleaf.

The plaintiff's counsel thereupon gave in evidence the proceedings in the case of the insolvency of Greenleaf, in the commonwealth of Pennsylvania, and the conveyances therein mentioned, not recorded in the State of Maryland; and prayed the court to instruct the jury that, under the operation of the said proceedings in Maryland and Pennsylvania, the legal title to the premises in the declaration, notwithstanding said conveyances, was not devested from Greenleaf, by any thing by the defendant so shown; which instruction the court refused to give, to which refusal, and instruction, and admission of evidence, the plaintiff excepted.

By the laws of Maryland, (with certain exceptions not necessary to be mentioned,) no conveyance is sufficient to pass any estate of inheritance or freehold in lands, or any estate above *seven years, except the deed or conveyance be in writing, [*314] and acknowledged in the general court, or before a judge thereof, or in the county court, or before two justices of the county where the lands lie, &c., &c., and be enrolled in the records of the county, or of the general court, within six months after the date thereof; see act of 1715, c. 47; act of 1767, c. 14; act of 1783, c. 9; act of 1794, c. 57; act of 1798, c. 103. Neither the deed of assignment of Greenleaf to the trustee under the Maryland insolvency, nor the deed of assignment of Greenleaf to the trustees, under the Pennsylvania insolvency, have ever been enrolled in the general court, or in the county where the land in controversy lies. Unless, then, some exception can be found which exempts these assignments from the general law, the omission to enrol them renders them, in a legal sense, mere nullities, and incapable of passing any title to the land in controversy. There is no pretence of any exception in relation to

Greenleaf's Lessee v. Birth. 6 P.

the assignment under the Pennsylvania proceeding; and, therefore, that did not devest the title of Greenleaf. But in regard to the Maryland proceedings, it is said that there is, under the act of 1798, c. 64, respecting insolvents, a constructive exception. That act provides, section 5th, that upon the petitioning debtor's (and Greenleaf was in that predicament) executing and acknowledging a deed to the trustee to be appointed, as the act requires, conveying all his property, real, personal, and mixed, &c., and the trustee's certifying the same, it shall be lawful for the chancellor to order that the said debtor shall be discharged from all debts, &c. Greenleaf was accordingly dis charged, having in this respect complied with the terms of the act. The 15th section of the act provides "that all proceedings under this act shall be recorded by the register, who shall be entitled to the same fees as are fixed by law for services in other cases, &c., &c." Now the argument is, that this clause operates, pro tanto, a repeal of the general laws, in relation to the enrolment of conveyances, so far as respects assignments by debtors under the act. But we think this is not the fair construction of the act. There is nothing in the act which requires the assignment to be recorded; nor does it necessarily constitute a part of the proceedings before the chancellor. On the contrary, the 5th section contemplates, that it shall be executed and

acknowledged by the debtor in the usual manner, and the [*315] trustee is to certify the same to the chancellor. If the deed is to be acknowledged in the usual manner, then it is to be enrolled in the usual manner, for no provision is made for its enrolment elsewhere; and the only judicial notice which the chancellor has of it, as connected with the proceedings before him, is by the certificate of the trustee. Nor is there any policy disclosed on the face of the act of 1798, which could justify the court in presuming that the legislature intended, in respect to deeds of insolvent debtors, that the ordinary securities of enrolment should be dispensed with. We think, then, that there was error in the circuit court in admitting the proceedings under the Maryland insolvency; and also in instructing the jury that these proceedings showed a legal title out of the plaintiff, and precluded a recovery in the suit.

For the same reasons, there was error in the refusal of the circuit court to instruct the jury according to the prayer of the plaintiff's counsel; that under the operation of the said proceedings in Pennsylvania and in Maryland, the legal title to the premises was not devested from Greenleaf by any thing shown by the defendant.

The judgment of the circuit court is therefore reversed, and the cause is to be remanded to the circuit court, with directions to award a venire facias de novo.