Polk's Lessee v. Wendell

ERROR to the Circuit Court of West Tennessee. This was an action of ejectment, for five thousand acres of land, in the State of Tennessee, granted by the Governor of North Carolina, to Polk, the lessor of the plaintiff, on the 6th of May, 1800, on a warrant from John Armstrong's office, dated May 25th, 1784. The defendants, who were proved to be in possession of part of this tract, claimed title under a grant from the Governor of North Carolina to John Seveir, for twenty-five thousand and sixty acres, bearing date on the 28th of August, 1795. This grant appears by the annexed certificate of survey to be founded on forty land warrants of six hundred and forty acres each, numbered from 1634 to 1676, and surveyed in one entire tract. The land in dispute was proved to lie within the lines of Serveir's grant. The plaintiff having proved that John Carter was entry-taker of Washington county until February 28th, 1780, and that Landon Carter was then appointed, offered in evidence an office copy of an abstract (marked K. in the transcript) of the warrants, on which Seveir's survey and grant were founded; the original book of entries being destroyed. From this copy it appeared, that all the warrants were issued from the Washington county office, in April or May, 1780, to the surveyor of Sullivan county, and purported to be founded on entries which bore date on the 16th of September, 1779. They were all signed 'Landon Carter, Entry-taker.' He also produced, and offered to give in evidence, office copies of warrants from the same office, (marked H. and L. in the transcript,) of the same dates and numbers, but to different persons, and for different quantities of land. These warrants appeared to be issued by John Carter; and were offered, like Seveir's warrants, for the purpose of showing that the latter were spurious, and, consequently, that Seveir's grant was void. The plaintiff also offered in evidence a grant to Seveir for 32,000 acres, dated 27th of November, 1795, which purported to be founded on thirty-six warrants, all of them except the two first on alleged entries, dated on the same 16th of September, 1779. He also offered to prove, that the two first warrants had been satisfied by prior grants, and in respect to the others, that warrants for the same numbers issued to other persons, and were recognised in the abstract of Carter's entry book, but none of Seveir's. The plaintiff also offered to prove, that the warrants and locations of Seveir had been insinuated, in 1794 or 1795, into the entry taker's office without his knowledge; that they were rejected by the entry-taker as spurious; and that the locations were in Seveir's hand-writing. The plaintiff also offered to given in evidence a report to the legislature of Tennessee, of November 8th, 1803, declaring all Seveir's warrants to be fraudulent fabrications. All this testimony was overruled and rejected by the Court, to which the plaintiff excepted. A verdict was taken, and judgment rendered for the defendants, and the cause was brought by writ of error to this Court. March 1st. Mr. Harper, and Mr. Gaston, for the plaintiff, argued, 1. That it was competent for the plaintiff to show, that no entries had been made in the land office of North Carolina, and that, therefore, the Governor had no power to issue the grant. The act of 1777, c. 1. s. 3. makes the entry the first essential and indispensable requisite to obtaining a title to vacant land. The 5th section points out the difference between location, entry, and warrant. The entries are the foundation of the claim, and are all to be numbered in the order in which they are made. The 9th section declares every right obtained in any other manner, 'utterly void.' This section follows the directions in regard to the entry, and makes a valid entry the one thing needful. In the construction of this statute, it has been settled in the Courts of North Carolina, that no legal title is created until the grant; and that the elder grant, though founded on a junior entry, is, at law, to be preferred to a junior grant on an elder title; that an equitable interest is acquired by the first entry, which is to be enforced as other equitable titles are enforced. It is also settled, that when a grant issues, it furnishes sufficient prima facie evidence, that all the prerequisites of the law have been complied with; and that it cannot be avoided by showing irregularities in the conduct of the officers who superintended the progress of the claim from the entry to the grant. There have been loose dicta, unsatisfactory and inconclusive reasonings, from which other inferences have been drawn: But it is denied, that it ever was law in North Carolina, that a grant should be good if it could be clearly shown that it was not founded on an entry, but was wholly fraudulent. It would have been impossible to pronounce such a decision without a violation of the plan, strong words of the 9th section of the act, 'shall be deemed, and are hereby declared utterly void.' Such a decision too, would have been inconsistent with the first principles of the common law, fraud being the object of its peculiar adhorrence, and contaminating every act.a Courts of common law have a concurrent jurisdiction with Courts of Equity, in all cases of frauds.b It is impossible that a grant, begun and ended in fraud, where there has been no claim entered, nor purchase made from the State, should be valid. If, however, a doubt could exist in the case of a grant issuing before the year 1789, assuredly none can be entertained on a grant made by the governor of North Carolina since the cession of the territory, which now forms the State of Tennessee, to the United States. By the act of cession, the sovereignty and domain are relinquished by North Carolina, and a mere ministerial power is reserved to the Governor of that State to perfect grants, 'where entries have been made agreeably to law, and the titles not perfected.' The State has no longer authority to dispose of the lands. She is no longer their proprietor. The Governor has a mere naked power, unconnected with an interest, to make grants where entries have been previously made. A grant issued where no entry has been made, is an act wholly unsupported by the power, and cannot possibly transfer an interest. The whole question has, in fact, been already settled by the reasoning and decision of this Court, when this case was formerly before it.c

a Fermor's case, 3 Co. Rep. 77.

b 3 Bl. Com. 431; Bates v. Graves, 2 Ves. jr. 295; 8 Ibid. 283; Arthur Legal's Case, 10 Co. 109.

c 9 Cranch, 87.

d ''Gilb. Law of Evid.'' 69. Phillips on Evid. 303, 304. kept in unsuspected repositories.e The day book of a prison, containing a narrative of the transactions there, is proof of the time of a prisoner's commitment.f So, terriers are evidence of manorial boundaries, either when found in the regular repositories, or in places where the custody can be satisfactorily explained.g But, in this case, there are positive statutes of the legislature of Tennessee, by which this book of entries and copies from it are made evidence.h In addition to all this, was the parol evidence. The introduction of these locations and warrants into the office in 1795, in a secret manner, betrayed a consciousness that they had not before existed there. This accumulation of proof fully established the plaintiff's allegation; or, at all events, it had a tendency to establish it, and its sufficiency ought to have been left to the jury. As to the legislative report; there is some reason to believe, that the legislature of Tennessee intended, by their act of 1807, c. 82., to make it evidence. At least it might have been proper evidence to bring home notice to the defendants, prior to their purchase.

e Phillips, 304. 11 East, 234. 1 ''Maul. & Selw.'' 294.

f King v. Aikley, cited Phillips, 313.

g Phillips, 316, 317.

h Laws of Tenn. 261. only. Between private parties, evidence dehors the patent is wholly inadmissible at law.i 2. The testimony offered in this case was clearly inadmissible upon the principles of the former decision of this Court; in which, it may be added, that the Court has gone farther than the local Courts in permitting inquiries into facts occurring prior to the issuing of a grant.j The Court below gave no opinion upon any specific evidence, but on the general question, and rejected the whole testimony, which was offered to prove that the warrants were forged. But in order to prove this, the production of the warrants was indispensable, and no inferior proof ought to have been received. The abstract is defective, because it is only of a part of a record, when it ought to be of the whole, and so certified. It is a part only of a copy of a copy. The attempt to infer the spuriousness of the warrants from the identity of the numbers, was justly repelled, because the same numbers are often given to many warrants, and it can seldom be shown on what entry the grant issued. The report of the select committee of the legislature was also inadmissible as evidence; both because there is no proof that it was ever acted on by the house, and because the State of Tennessee had, at the time, no authority over the lands, North Carolina having retained the right of completing titles originating before the cession. 3. But, even supposing the grant under

i Spalding v. Reeder, ''Maryl. Rep.'' 187. 1 Hayw. 106. Id. 135. Id. 359. Id. 497. 3 Hayw. 215. 1 Tenn. Rep. 318. 2 Tenn. Rep. 25. Id. 47.

j 9 Cranch, 98. which the defendants claim to have been fraudulently obtained by the original grantees, as they are bona fide purchasers without notice, they are entitled to the protection of the Court.k The Courts of Tennessee have established the doctrine, that even in the case of a void grant, a junior grantee shall not avail himself of its nullity as against an innocent purchaser without notice.l

2. The evidence offered by the plaintiff was proper in itself, and relevant to show, that no entries had been made, prior to the cession, authorizing the Governor of North Carolina to make a grant to Sevier. The best evidence was offered of the pretended warrant on which his grant was founded, and, also, to show, that other warrants existed of precisely the same numbers. This alone raised a presumption, that one or the other must have been spurious. According to the act of 1777, c. 1. s. 5. there could not possibly be two sets of entries of the same numbers, without the most extraordinary negligence. This testimony ought to have gone to the jury, even if there had been no other. It should have been left to them to decide which of the two sets of warrants was spurious under the peculiar circumstances of the case. But it was supported by corroborating evidence of great weight; by the abstract of Carter's entries. The competency of this evidence may be maintained both on the ground of common law principles, and on special enactments of the local legislature. It is the best which the nature of the case admits of. Works compiled by authority and order of the government of the country, on public occasions, and on subjects of public interest, are recognized as authentic documents in courts of justice, and admitted as evidence in matters of private right. Such are, in England, the celebrated Doomsday Book; the Survey of the King's Ports; the Valor Beneficiorum;d copies of Surveys of Church and Crown Lands; The Attorney General, and Mr. Williams, contra, insisted, 1. That the proceedings on which a grant issues, are to be presumed to be correct. They constitute a question between the State and the grantee March 9th. Mr. Justice JOHNSON delivered the opinion of the Court.