Ross v. Reed

ERROR to the circuit court for the district of East Tennessee. The defendant in error, who was plaintiff in the court below, claimed title under a grant from the state of Tennessee, bearing date the 26th day of April, 1809, founded on an entry made in the entry taker's office of Washington county, No. 975, dated on the 2d day of January, 1779, in the name of John McDowell, for 500 acres of land, on which a warrant issued on the 17th day of May, 1779. The defendants in the court below, now plaintiffs in error, claim under a grant from the state of North Carolina to John Henderson, dated the 9th of August, 1787, and a deed of conveyance from John Henderson to the defendant, Ross, duly executed and registered. Morrison held as tenant under Ross. At the trial of the cause, a bill of exceptions was taken by the defendants, in which was stated a transcript taken from the book procured from the office of the secretary of state of the United States, which contains reports of the lands entered in Sullivan and Washington counties; also a copy of the warrant issued to John McDowell for 500 acres of land, both of which are certified by the clerk to the commissioner of East Tennessee. Also the grants under which each party claims, the deed of conveyance from Henderson to Ross, together with the viva voce testimony of the witnesses produced. It then proceeds to state 'that the defendants contended, 1st, That having the eldest grant, the plaintiff could not recover, unless he had shown a prior entry, which the law would consider special for the place now claimed, and produced satisfactory evidence that the right was vested in him. That as no proof had been given that Reed had ever purchased or paid any consideration for McDowell's entry, he could not, in virtue of that entry, entitle himself to a verdict. That the mere statement in the survey and grant that Reed was assignee of McDowell, was no evidence whatever of that fact. 2d. That if such proof had been given, still he could not recover, because the proof shows that the objects called for in the entry existed at two places, some distance from each other; and, therefore, the entry was ambiguous and doubtful. But the court charged and instructed the jury that the circumstance of a survey having been made, and a grant issued upon McDowell's entry, in the name of Reed, calling him assignee of McDowell, was prima facie evidence that the entry was the property of Reed. And that it was true if the calls in an entry would equally well suit more than one place, it would not be considered special for either place; but it was for the jury to determine, from the evidence, whether the place spoken of on the south side of Holston would as well suit the calls of the entry as the one on the north side; and that, except for James King's testimony, he had hardly ever heard an entry better established than the one now under consideration.' There was a verdict and judgment in favour of the plaintiff, and the cause was brought up to this court by writ of error. March 21st. TODD, J., delivered the opinion of the court.