Williams v. Jacob

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Williams v. Jacob, Wythe 145 (1792),[1] was a dispute involving overlapping claims for the same parcel of land, and discussed whether witness testimony taken before a party was involved in the case could be admitted against that party.


Isaac Williams and Joseph Tomlinson claimed land in Ohio County (now in West Virginia) using what they said was a military warrant (a grant of land given for military service) although they did not provide proof of the warrant. In 1775, David Rogers also claimed land under a military warrant. Rogers's claim contained some of the land in Williams's and Tomlinson's claim, as well as some land in David Jones's claim.

Williams and Tomlinson took their claims to a special court of commissioners in 1779. By this time, Rogers was dead, and had left his claim to Mary Jacob. In 1780, the commissioners affirmed Tomlinson's claim. Mary did not appear for hearings about Williams's claim, so the commisioners did not make a decision on that.

Rogers asked the court of commissioners to validate his claim, but Williams filed a caveat, a formal notice requesting suspension of proceedings, against granting Rogers's claim. Williams said that due to the long distance from his attorney's office in Richmond and Williams's residence in Ohio County, he was unable to get subpoenas for witnesses in time. Though Wythe's opinion does not expressly say so, presumably this means that the court of commissioners received the witness testimony after a given deadline, because Williams's caveat was dismissed. Mary and her husband John Jeremiah Jacob received a grant for land under Rogers's claim on April 1, 1784.

Williams and Tomlinson received grants on their land claims in 1785 and 1787, but their claims were hindered by the Jacobs' prior grant. Williams and Tomlinson filed a bill in the High Court of Chancery asking that it require the Jacobs to turn over the land they received under Rogers's claim to Williams and Tomlinson. The Jacobs replied that they had sold their land rights to Jones, and therefore Williams and Tomlinson would need to sue Jones to get the land. Williams and Tomlinson then filed a bill in the Court against Jones.

The Court's Decision

The High Court of Chancery found for Williams and Tomlinson. The Court concluded that Williams and Tomlinson must have obtained their land by military or similar warrant, otherwise they could not have gotten the land grant at all. The Court found that Jones was a lite pendente (pending litigation) purchaser, and that the testimony Williams took from witnesses before Jones was added as a party were still admissible against Jones. The Court found that the witness testimony proved that Williams and Tomlinson had the superior title to the land they claimed. Even if the witness testimony were inadmissible, the Court found that at best Jones could prove no more than equal priority or rights to Williams and Tomlinson, and because Williams and Tomlinson currently possessed the property, their claim to the land was still superior; the owner of a military warrant could not use that warrant the claim that someone had already settled.[2]

The Supreme Court of Appeals of Virginia reversed the High Court of Chancery in November 1793,[3] stating that the witnesses' testimony was inadmissible because it was taken before a bill was filed against Jones. Since the bill against Jones had new charges and did not refer to the prior litigation, the Supreme Court said, it could not be considered supplementary to the original case. If Jones were a purchaser pendente lite, the Court added, the testimony might have been admissible. The Supreme Court said that before an Act of Assembly that was passed in May 1779, none of the land could be claimed by warrant, only by settlement. Even then, the right a settler obtained was only against unappropriated lands. Without the witness testimony, the Supreme Court found that Rogers, and therefore Jones, had the superior title.

Wythe's Discussion

Wythe noted that the record did not show that any exception was taken to admitting the witness testimony in the lower court, the superior court should presume that the reading of the testimony was "unexceptionable". Therefore, Wythe argues, should the Supreme Court have not rejected the testimony, since it would be admissible if Jones were a lite pendente purchaser? Even if Jones were not a lite pendente purchaser, Wythe said that the Supreme Court should have dismissed the case without prejudice. Wythe finished by noting that Rogers admitted that Williams and Tomlinson had prior possession of the property, but that the Supreme Court had rendered that prior possession irrelevant, and gave a person with a military warrant even greater power than the company in Maze v. Hamilton to seize property from a settler. At least the settler in Maze v. Hamilton got to keep his land after ransoming it from the company.

Works Cited or Referenced by Wythe

Virgil's Eclogues

Quotation in Wythe's opinion:

... and mutter to himself Impius haec tam culta novalia miles habebit? Translation: [i]s a godless soldier to hold these well-tilled fallows? Wythe uses this quotation to lament the settler’s loss of land to men with military warrants. Virgil had lost his farm to soldiers in the civil war of Antony and Octavian.[4]


  1. George Wythe, Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions, 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852), 145.
  2. The High Court of Chancery cites the maxim in aequali jure potior est conditio possidentis (When the parties have equal rights, the condition of the possessor is the better). Wythe 145, 148.
  3. Jones v. Williams, 1 Va. (1 Wash.) 230 (1793).
  4. Wythe 150.