Winn v. Patterson

IN error to the circuit court of the United States for the district of Georgia.

In February 1820, an action of ejectment was instituted in the circuit court, by the lessee of William Patterson against Elisha Winn and others, to recover a tract of land in the county of Franklin, in the state of Georgia. The case has been twice before this court on a writ of error. 11 Wheat 380, 6 Cond. Rep. 355; and 8 Peters 233. Many of the material facts in the case will be found in the reports referred to.

At November term 1833, of the circuit court, in pursuance of the mandate of this court, a new trial of the case took place; and the plaintiff gave in evidence a grant from the state of Georgia to Basil Jones for 7800 acres of land, including the lands in controversy in this suit, dated 24th May 1787, with a plot of the survey of the said land annexed; a copy of a power of attorney from Basil Jones to Thomas Smith, Jun., purporting to be dated the 6th of August 1793, authorizing Smith, inter alia, to sell and convey the tract of 7800 acres; which power purported to be signed and sealed in the presence of Abraham Jones, J. P. and Thomas Harwood, Jun.; and the copy was certified to be a true copy from the records of Richmond county, Georgia, and recorded there on the 11th July 1795; and to account for the loss of the original power of attorney of which they copy was offered, and of the use of due diligence and search for the same, the plaintiff read the depositions of William Patterson and others, the particulars of which, and all the evidence in the case, are stated in the bill of exceptions. The defendant objected to the evidence, and the court overruled the objection, and allowed the paper to be read to the jury. To this decision of the court the defendant excepted, and the court sealed a bill of exceptions. In the further progress of the case further evidence was offered, and certain instructions thereon asked of the court, which were refused; and the refusal of the court to give such instructions was the subject of another exception.

The jury, under the charge of the court, found a verdict for the plaintiff, upon which judgment was entered; and the defendants prosecuted this writ of error.

The bills of exceptions were as follow.

The plaintiff, to maintain the issue on his part, gave in evidence a copy of a grant from the state of Georgia to Basil Jones, for seven thousand three hundred acres, bearing date on the 24th day of May 1787, together with a plat of survey of the said land thereto annexed (a copy of which plat and grant was in the record); and further offered to give in evidence to the jury a paper writing, purporting to be a copy of a power of attorney from Basil Jones to Thomas Smyth, Junior, executed on the 6th day of August 1793, by Basil Jones, in the presence of Abram Jones, J. P. and Thomas Harwood, on which copy there was a certificate under the official seal, of John H. Mann, clerk of the superior court of Richmond county, stating that it was a true copy from the record in his office, entered on book, &c., on the 11th July 1795. A certificate from John H. Montgomery, one of the judges of the superior court, was annexed, stating that the officer who certified the copy, was the clerk of the superior court, that his signature was entitled to full faith and credit, and that the attestation was in due form. The power of attorney authorized Thomas Smyth, Junior, to sell and dispose of seven thousand three hundred acres of land granted to Basil Jones, part of which is the land for which this ejectment was brought.

To account for the loss of the original power of attorney, the plaintiff below produced his affidavit, stating his belief that the said original grant to Basil Jones had been lost or destroyed-this affidavit was made on the 23d of July 1833; also the deposition of Andrew Fleming, stating numerous and particular acts which he had performed to discover the said originals. This deposition set forth dilligent examinations for the lost papers in various places, and by inquiries of all such persons where and with whom the said papers might probably have been found, if they had not been altogether lost or destroyed.

Also the answers to interrogatories of Anna Maria Smyth, the widow of Thomas Smyth, relative to the lost papers, and stating that she had not been able to find them, among the papers of her deceased husband, nor had she ever seen them, although she had the custody of all the papers left by her deceased husband.

And further to account for the loss of the said original power, Richard H. Wilde, Esq. was examined on interrogatories propounded to him, who stated that he had made diligent search for the said power of attorney, with the assistance of the clerk in the clerk's office of the superior court of Richmond county, without success. That he had applied to the widow of Basil Jones for the paper and for the original grant, who was unable to find the same; and had advertised for the same for some months, in two newspapers in Georgia: he had inquired for the same at the office of the secretary of state at Milledgeville, and had searched the clerk's office at Columbia, where Basil Jones formerly resided; and also had made numerous other searches and inquiries. A copy of the advertisement for the lost papers was inserted in the examination.

The testimony of John H. Wilde, Esq. was also introduced, who proved, that by reputation Abram Jones was dead long since; that he compared the copy of the power of attorney offered in evidence with the record in the clerk's office of Richmond superior court, and it is a true copy. William Patterson, the plaintiff in the circuit court, he believed had never been in Georgia.

William Robertson deposed, that he was deputy clerk and acted as such, of Richmond county, in the year 1794, and clerk of the said court in 1795, and continued in that office till 1808 or 1809; that he was well acquainted with Abram Jones, Esq. and his handwriting, during the years 1793, 1794 and 1795, and before and afterwards. The deponent further states that the record of a power of attorney from B. Jones to Thomas Smyth, Junior, made by himself while clerk of that court, is a copy of an original power of attorney which he believes to have been genuine, for that the official signature of Abram Jones must have induced him to commit the same to record; and that the copy of said power of attorney transmitted with deponent's depositions has been compared by himself with the record of the original made by himself in Richmond county, and is a true copy.

The plaintiff then offered the paper purporting to be a copy of the power of attorney in evidence; which was opposed by the counsel for the defendants, as not admissible evidence.

The counsel for the lessor of the plaintiff, further to prove the original power of attorney was made and executed, gave in evidence a deed executed by Thomas Smyth, Junior, alleging himself to be the attorney in fact of Basil Jones, dated 18th November 1793, which conveyed to William Patterson, the lessor of the plaintiff, seven thousand three hundred acres of land in Franklin county, originally granted to Basil Jones, May 24th 1787; which deed also conveyed, or purported to convey, four other tracts of land situate in Franklin county; and contained the following recital: 'whereas, the said Basil Jones, by a certain writing or letter of attorney, dated the 6th day of August last past, did empower and authorize the said attorney, (Thomas Smyth, Junior) in his, the said Basil Jones, name, to sell and dispose of five certain tracts or parcels of land hereinafter mentioned, situate in Franklin county; and state of Georgia aforesaid.' And the plaintiff offered in evidence proof that Abram Jones, who signed the original power of attorney, was, at the time he signed the same, a justice of the peace, of the county of Richmond; which was admitted by the defendants' counsel.

The plaintiff's counsel then insisted that the copy of the power of attorney was admissible in evidence, and should go to the jury, which was opposed by the defendants' counsel; but the court admitted the same, and the counsel for the defendants excepted to the said admission.

The plaintiff also offered three witnesses before the jury to prove the identity of the land in dispute, with a plat of the same given in evidence, and that the defendants were in possession of the part for which this suit was brought, and also the location of the land; which witnesses also proved that part of the said land, which lay on the south and west of the said Appalachee river, was not, at the time of issuing the said grant, situate in the county of Franklin, as the grant purported it to be, but was without the then county of Franklin, and beyond the then temporary boundary line of the state of Georgia. Whereupon the attorney for the said defendants prayed the said justices to instruct the said jury, that if the jury believed that Basil Jones, the deputy surveyor and grantee, under whom the lessor of the plaintiff claims, by designating the stream marked in the original plat as 'the branch of the south fork of the Oconee river, instead of the south fork of the Oconee river, and by stating that the land was situate in the county of Franklin, when a large part of it lay without the county of Franklin, and without the temporary boundary line of the state of Georgia, practised a deception upon the governor of the state, and thereby induced him to to issue the grant; that such grant is fraudulent and void, and cannot entitle the plaintiff to recover;' which instruction the said justices refused to give to the said jurors. And the said attorney further prayed the said court to instruct the said jurors, that a grant of land is an entirety, and that a grant void in part is void for the whole; which instruction the said justices also refused to give to the said jurors. And they further prayed the said court to instruct the said jurors, that a concealment or misrepresentation of material facts, calculated to deceive the governor issuing the grant, renders the grant null and void in law; which instruction the said justices also refused to give to the said jurors, and the jurors gave their verdict against the said defendants, upon the issue aforesaid.

The case was argued by Mr Seaborn Jones, for the plaintiffs; and by Mr Wilde and Mr Berrien, for the defendant.

Mr. Jones contended, that the circuit court erred:

1. In permitting the defendant in error to read in evidence to the jury, a paper purporting to be a copy of a power of attorney from Basil Jones to Thomas Smyth, Junior, for want of sufficient legal proof of the genuieness, existence and execution of the original, or of the correctness of said paper, offered as a copy.

2. In permitting the defendant in error to read in evidence to the jury a copy of a grant to Basil Jones, which grant, and the survey on which it was founded, were contrary to the laws of Georgia, and therefore null and void.

3. In refusing to instruct the jury that the said grant and the survey on which it was founded, were contrary to the laws of Georgia, and were therefore null and void.

To show that the writing was not admissible in evidence, until the absence of all the witnesses was accounted for, he cited, 1 Starkie's Ev. 340, 342, 345; 5 Cranch 13; 18 Johns. Rep. 60; 2 Serg. and Rawle 44; 1 Overton 187; 1 Dallas's Rep. 123; Peake's Ev. 146, 152.

There had been no possession to warrant the admission of the copy of the power of attorney, as an ancient deed. The rule requires thirty years possession under the deed. No actual possession of the land has been shown, and constructive possession will not do. No possession can be based upon a presumption. Possession or constructive possession cannot be presumed, and then from that, the execution of the deed be presumed. The actual accompanying possession is what gives credit to the presumption of the execution of a deed. Cited, 3 Johns. 295; 10 Johns. 475; 9 Johns. 169; Buller's Nisi Prius 254.

But the rule which admits ancient deeds, does not apply to a copy. Peake's Ev. 162, 141, 167. There must be proof of the due execution of the original. 1 Starkie's Ev. 154; 1 Johns. Cases 402, 409.

The record of the recording an instrument, is no evidence, unless the deed was recorded by due authority. 1 Atk. 264; 6 Binn. 274; 1 Marsh. Rep. 205.

The deed was not recorded in the proper county, as no part of the land lay in the county where the deed was recorded. There is no law of Georgia which authorises the recording of powers of attorney; but the courts have considered powers of attorney as standing on the same footing as deeds.

The enrolment of a deed is no evidence of the contents of a deed unless made by the authority of law. Cited, 1 Starkie's Ev. 365, note; Buller's Nisi Prius 255; 1 Har. and John. 527; 1 Taylor's Rep. 25; 2 Wash. Rep. 280; 1 Peters 98.

The evidence offered, was but a copy of a copy. As to copies of records being evidence: cited, 1 Philips's Ev. 291, 309, 292; 3 Day's Rep. 399; Peake's Ev. 58; 3 Dall. 65; 4 Munf. 310.

There was no evidence, whatever, of the absence of the witnesses to the power of attorney. Cited, 5 Peters 242.

The grant to Basil Jones was absolutely void, having been obtained by practising a fraud on the government of Georgia. The evidence of the fraud should have been admitted. Cited, 1 Wheat. 115, 155; Indian Treaty of 1783, and act of the legislature of Georgia of 1784; act of 1780; Patterson v. Winn, 11 Wheat. 380, 6 Cond. Rep. 355.

There has been a legislative construction of the treaty of 1784, showing what the boundary line was. This is referred to for the purpose of showing that the grant was void in part, the part of the land being within the Indian lines; and was, therefore, void altogether.

To show that all grants of land within the Indian boundary were absolutely void, and that the surveys under such grants were void: cited, Prince's Dig. of the Laws of Georgia 268, 275, 278, 304, 363; Walker's Dig. 363; Polk's Lessee v. Wendall, 9 Cranch 99, 3 Cond. Rep. 286.

It is not intended to say, that the legislature could declare a patent for lands void, if granted for lands within the state, and which were subject to grants. The law declares, the patent for land so situated shall not be given in evidence. The legislature have declared all grants within the Indian boundary void. Prince's Dig. 268, 276. Basil Jones was but a deputy surveyor, and had no authority to make the survey. The evidence shows he acted fraudulently, as he well knew the actual boundary of the Indian territory, and knowingly violated the laws of Georgia, forbidding surveys, of lands not subject to grant. He acted in violation of his official oath.

A deed which is void in part, is altogether void. 14 Johns. 458. This point was not decided by the court in the case of Patterson v. Jenks; nor was the question of the admissibility of the power of attorney decided in that case.

Mr Jones laid before the court certificates from the judges of the courts of Georgia, and opinions of the judges of those courts as to the construction of the registry acts of that state; which certificates, he contended, sustained the views he had presented, of those laws.

Mr Wilde and Mr Berrien, for the defendant in error, argued, that there was but one point in this case open for argument, as all the other questions had been decided by the court in the former cases. The defendants in the court below are shown by the record to have all resided within the limits of the county of Franklin, and all the lands in controversy in this suit are within that county.

The only point in the case is, therefore, that which relates to the admissibility of the power of attorney to support the deed from Basil Jones. Did the court err in allowing this evidence to go to the jury?

The rules of law on this question relate either: 1. To the proof of the execution of the original instrument. 2. To the proof necessary to dispense with the production of an original. 3. To the degree of secondary proof which is necessary when the production of the original is dispensed with. As the evidence in this case was not the original power, the question is, whether evidence sufficient to authorize the introduction of the copy was given. It is contended, that this proof was given in the evidence of the clerk who recorded the power, and which is set forth at large in the bill of exceptions.

A copy may be verified by an officer duly authorized for that purpose, or by the oath of an individual who has compared it with the record authorized by law; and therefore as the evidence of a private individual, not an officer, the testimony of the person who made the copy was sufficient.

It is not a copy of a copy. The witness was in possession of the original, and from that made the copy in the record, and he swears that the copy is a genuine copy of the original. The evidence is, that the copy on the record, and the copy offered in evidence, were both genuine copies of the original.

The counsel then went into a particular examination of the evidence, and contended, that it fully sustained the right of the plaintiff below, on every principle of law, to give the copy of the power of attorney in evidence. The strictest rules of law were complied with. 1 Stark. Ev. 341, 343.

The handwriting of the other witness to the power of attorney could not have been proved, as the original was lost.

Thirty years had elapsed since the execution of the power and of the deed made under it, and this authorises the presumption of the due execution of the instrument. Possession must accompany the deed, but an actual pedis possessio is not required; and this rule is not applicable to a power of attorney.

In this case, the possession was in accordance with the deed, and there was no evidence given to show that the defendants were other than mere intruders. Cited, 8 Cranch 229; 4 Wheat. 222; 5 Peters 489. Evidence of loss of papers, and secondary proof of their contents is addressed to the court. 6 Johns. 195. In Georgia, if proof of loss of an originial paper is given by the death of the party, a copy will be admitted or proof of its contents. Cited, 5 Peters 242; 2 Serg. and Rawle 44; 4 Bos. and Pull. 260; 2 Peters 250; 3 Hayward 96, 123.

If the original power of attorney were before this court, the acknowledgement of it before a justice of the peace, would, by the law of Georgia of 1785, make it, per se, evidence.

Mr. Justice STORY delivered the opinion of the Court.