Coulson v. WaltonAnnotate this Case
34 U.S. 62 (1835)
U.S. Supreme Court
Coulson v. Walton, 34 U.S. 9 Pet. 62 62 (1835)
Coulson v. Walton
34 U.S. (9 Pet.) 62
APPEAL FROM THE CIRCUIT COURT OF THE UNITED
STATES FOR THE DISTRICT OF WEST TENNESSEE
Tennessee. A bond was executed in 1787 by which the obligor bound himself to pay one hundred pounds for a horse or to make over to the obligee his interest in a certain entry and warrant of land, and if the deed or grant for the land should issue to him, to transfer the land by deed, and to warrant and defend the said deed. The obligor elected to pay the bond by giving the land for the same. He made no valid conveyance of the land in his lifetime, but it was taken possession of by the obligee, and has ever since been occupied under the title so acquired by the obligee. After the son and sole heir of the obligor came of age, he commenced an action of ejectment for the land, and those who claimed title under the obligee filed a bill for an injunction, and that the defendant, the plaintiff in the ejectment, be decreed to convey the land according to the stipulations in the bond. This bill was filed in 1822.
The court said, in considering the question as to the genuineness of the bond on which this controversy is founded, the first important fact that occurs to the mind is the remoteness of the transaction. Nearly half a century has elapsed since this instrument purports to have been executed. The obligor and the obligee and both the witnesses are dead. The contract belongs to the past age. It was executed, if at all, when the country was new and unsettled, and the parties to it seem to have been illiterate men and unacquainted with business transactions. These circumstances are referred to not to show that this bond should be received without proof, but to show that as strict proof should not be required of its execution as if it were of recent date. The law makes some allowance for the frailties of memory, and where a great length of time has elapsed since the signing of an instrument attempted to be proved, circumstances are viewed as having an important bearing upon the question.
The case of Barr v. Gratz, 4 Wheat. 231, 4 Cond. 426, cited.
Construction of the statutes of limitations of North Carolina of 1815 and 1819.
Statutes of limitations are applied by courts of equity in all cases where at law they might be pleaded. At law, to make the statute a bar, there must be an adverse possession, and by analogy a court of equity in a similar case will hold the statute to be a good bar.
But the statute insisted on as a bar in this case does not depend upon possession. It bars a creditor who does not sue the heir within seven years. There can be no doubt that the statute applies where a creditor seeks to make the heir liable for the debt of his ancestor on the ground that either personal or real property descended to him. And this appears to be the decision of the Supreme Court of Tennessee on the statute. There is nothing in their decisions referred to which shows that they have given effect to the statute beyond this. By the statute of 1819, which is wholly different in its language from the
act of 1815, a bar is created indiscriminately to suits in equity as well as at law. The statutes do not apply to this case.
The instruments under which a part of the complaints set up an equity
derived from the heirs of the obligor, are proved, but they cannot be sanctioned by this Court except where such instruments were executed by the heirs of full age. It is the duty of the court to protect the interests of minors, and the decree of the circuit court in this respect, as well as in every other, is correct.
The case is fully stated in the opinion of the court.
MR. JUSTICE McLEAN delivered the opinion of the Court.
In their bill the complainants state that on 22 February, 1785, a certain entry in the land office of North Carolina was made by Isaac Coulson, assignee of David Welles, for six hundred and forty acres of land, and that afterwards, on 2 January, 1787, he executed a bond to one Josiah Payne for the conveyance of said tract of land agreeably to the terms therein expressed, to-wit:
"Know all men by these presents, that I, Isaac Coulson, of the State of North Carolina and County of Davidson, do oblige myself, my heirs and assigns, to pay to Josiah Payne one hundred pounds in Virginia currency, in payment for a certain bay stud horse I bought of him within
twelve months from the date hereof, with lawful interest, otherwise, in lieu thereof, I do oblige myself to make over all my right and interest of a certain entry and warrant of land of six hundred and forty acres, lying on the north side of Cumberland River, on said river, about one or two miles above the mouth of the Caney Fork, unto the said Josiah Payne of the county and state aforesaid, or his heirs and assigns. And if a deed or grant should issue to me before said entry or warrant should be transferred from me to said Payne, then and in that case I do hereby oblige myself to make a transfer deed of all my right, title and interest of the aforesaid land unto the aforesaid Josiah Payne or his assigns, which deed and right, when made, is to be taken in full payment for the one hundred pounds and interest, and I do hereby oblige myself to warrant and defend said deed from me, my heirs and assigns forever unto the said Payne and his heirs."
Which bond purports to have been signed and sealed by the said Isaac Coulson and witnessed by James Donelson and William Bush.
The complainants further state that the obligor elected to pay the said sum of one hundred pounds by giving the land as expressed in the above recited bond, which mode of payment was assented to by the said Payne. That said Isaac Coulson died intestate sometime in the year 1791, leaving the defendant his only heir at law. That a grant was issued for the land on 15 September, 1787, but no valid conveyance was made to the said Payne for the land, although in his lifetime various means were tried to obtain a title. That possession was taken of the land in 1799 or 1800, and that it has been occupied ever since under the title of Payne, and that the taxes have been paid. That since the defendant has arrived at full age he commenced an action of ejectment and recovered a judgment for the land, and the complainants pray an injunction and that the defendant may be decreed to convey all his interest in the premises to the complainants.
In his answer the defendant denies that the bond set forth in the complainants' bill, was ever executed by his father, Isaac Coulson, and states that it is a forgery, and he denies the other material allegations in the bill.
In considering the question as to the genuineness of the bond on which this controversy is founded, the first important fact
that occurs to the mind is the remoteness of the transaction. Nearly half a century has elapsed since this instrument purports to have been executed. The obligor and the obligee and both the witnesses are dead. The contract belongs to the past age. It was executed, if at all, when the country was new and unsettled, and the parties to it seem to have been illiterate men and unacquainted with business transactions.
These circumstances are referred to not to show that this bond should be received without proof, but to show that as strict proof should not be required of its execution as if it were of recent date. The law makes some allowance for the frailties of memory, and where a great length of time has elapsed since the signing of an instrument attempted to be proved, circumstances are viewed as having an important bearing upon the question.
In the case of Barr v. Gratz, 4 Wheat. 231, this Court decided
"That where a deed is more than thirty years old, and is proved to have been in the possession of the lessors of the plaintiff in ejectment, and actually asserted by them as the ground of their title in a chancery suit, it is, in the language of the books, sufficiently accounted for, and it is admissible in evidence without regular proof of its execution by the subscribing witnesses."
There is no proof of the handwriting of James Donelson, one of the subscribing witnesses to this bond, but it is proved that he was supposed to have been killed by the Indians many years ago.
The handwriting of Bush the other subscribing witness is proved by three of his sons, who were well acquainted with his hand, one of them having administered on his estate. These witnesses, and especially two of them, speak with great confidence not only as to the signature of their father, but they say that the body of the bond appears to have been written by him. And they state that although at the time the bond bears date and for some years before and afterwards until his death, their father lived in Clark County, Kentucky, yet he was absent the greater part of his time on hunting expeditions, and they understood that he was several times in the western part of Tennessee. It appeared that their father understood surveying,
was a pretty good scribe, and was frequently called on to write deeds and other instruments.
Three witnesses testify to the original contract and the circumstances which led to it. Payne sold to Coulson a valuable horse, for which he agreed to pay one hundred pounds. Sometime afterwards, Coulson, finding the horse did not suit his purpose, induced Payne as his agent to sell him, which was done, for the tract of land now in controversy. It was after this sale, as these witnesses say, that they understood a bond was executed, by which Coulson was bound to pay to Payne one hundred pounds or convey the land to him in lieu of the money. Two witnesses state that in addition to the land, Coulson agreed to pay Payne $50 dollars, in a horse.
George Cumming, and the sister of Josiah Payne were acquainted with William Bush, and the latter was also acquainted with the other witness, James Donelson.
Sometime after the date of the bond, Coulson, it is proved, went to Virginia under the expectation of obtaining money to pay off the bond from the estate of his father, but he found that the estate had been wasted, and being disappointed in raising the money, he remained in Virginia, married, and afterwards died in 1791. In the year 1793, Payne went of Virginia and obtained from the widow of Coulson a bond, in a penalty, dated 6 November, 1793, with a condition to convey all her interest in the land in dispute, and she authorized Payne to take possession of it. This bond was executed by the widow, on the advice of Jacob Coulson, her brother-in-law, that it was best to discharge the claim by the conveyance of the land.
An attempt was made to obtain a conveyance under the sanction of a county court in Virginia, and Mrs. Coulson attended the court for that purpose, but the decision was that it had no power to act on the subject.
At another time, Payne made application to the widow, and said he ought to have something, as he should have to wait until the children became of age, and she let him have a horse worth fifteen pounds.
In 1797 or 1798, it appears a man by the name of Johns was sent to Virginia for this title, and was informed by Payne that he would probably find it ready for him. At this time, Mrs.
Coulson, Jacob Coulson, and Benjamin Johns went to the court in Grayson County, Virginia, and were three days in attendance on it, endeavoring to procure a title for the land, but failed.
Payne had then sold a part of this land to Johns, but as no deed could be obtained, Johns was unwilling to take the land, and he exchanged it with Walton, who in 1799 or 1800 took possession of a part of the tract, and has ever since held it by himself and his heirs. At a subsequent period, he made other purchases of the tract. It was known as Payne's land from the time Johns went to Virginia for a title.
Payne died in 1805, and his heirs endeavored to obtain a title by permitting the land to be sold for taxes, in 1806, and they became the purchasers. Shortly after this sale, George Payne, son and administrator of Josiah Payne, went to Grayson County, Virginia, and procured a release of all claim to the land from the representatives of Coulson, and in which they stipulated not to redeem the land under the sale for taxes. This instrument has been lost. George Payne was drowned a few years after the writing was obtained by him.
These are the material facts and circumstances relied on by the complainants, to prove the execution of the bond, and to lay the foundation to the equitable relief prayed for in the bill.
A great number of depositions were read by the defendant's counsel to rebut the facts proved by the complainants and show that they are not entitled to relief.
Six witnesses state that they were acquainted with William Bush and several of them with James Donelson. That they both came from the Indian nation, and were supposed to be tories and refugees. That Bush was a dissipated man, was occasionally deranged, and incapable of business. That he had a brother named Abner, who was a man of good capacity, and of respectable character; that they were both hunters, and were well acquainted with the watercourses falling into the Mississippi River south of the Tennessee.
Donelson and William Bush were reported to have been killed by the Indians in years 1786 or 1787.
The depositions of three witnesses were read by the defendant who were well acquainted with William Bush in Clark County, Kentucky, and who from their intimacy with him and the short distance they lived from him, about the time the bond
bears date, seem to think he could not have been absent from home at that time.
And it is proved by Jermiah Coulson, brother of Israel, that when Payne was in Virginia, a conversation took place between him, the witness and Jacob Coulson, at which time Payne said he had no obligation or any instrument of writing from Isaac Coulson respecting the land in dispute. And that Payne also said he was to receive from Coulson a negro boy, under twelve years old, in discharge of the debt, and at the same time he agreed to pay the taxes on said land and take care of it for the children of said Coulson, and the witness was called on specially to remember the agreement. At this time Payne received a horse of Mrs. Coulson worth $50 in part payment of the claim.
The first inquiry which naturally arises in the mind on reading the whole evidence is whether it may not be reconciled. Some parts of it, and especially those parts which relate to the subscribing witness, William Bush would seem to conflict, but this is susceptible of a most satisfactory explanation.
There can be no doubt from the facts stated by the witnesses that there were two persons who bore the name of William Bush and who were occasionally in the western part of Tennessee about the same time. One of them, the Kentucky Bush, was a respectable man, a deacon in the Baptist church, a surveyor, wrote a good hand, and he died in Clark County, Kentucky, about the year 1816. The other was believed to have come from the Indians, was an ignorant, dissipated man, incapable of business, accustomed to hunting in the country south of the Tennessee River, and was reported to have been killed by the Indians in 1786 or 1787. He had a brother named Abner, who is proved to have been in no way connected with the Kentucky Bush.
The mere statement of these facts is enough to convince everyone that the different witnesses, in describing the character, capacity for business, pursuits, residence and death of William Bush, could not have referred to the same person. Even the witnesses examined by the defendant, in proving the residence and death of the Kentucky Bush proved enough to show that he could not have been the same person who was believed to have been a refugee and tory and was suspected
of attacking boats on the Mississippi River in connection with other persons and of committing other depredations upon society.
The fact that there were two persons of the name of William Bush may be safely assumed, and the question arises whether the signature of the Kentucky Bush as a subscribing witness to the bond is satisfactorily proved.
Some doubt is attempted to be raised as to this fact from the statements of the witnesses who lived in the immediate neighborhood of Bush and who have no recollection of his having been absent from home about the time the bond bears date.
But this evidence, at best, is of a negative character, and depends upon the memory of witnesses for a great number of years of a fact not calculated to make any impression on the mind. No circumstances are related by the witnesses which were calculated to impress upon their memories the absence of William Bush in January, 1787. What prudent person, in the absence of such circumstances, would undertake to state, positively that his nearest neighbor was absent from home any given month some twenty-five or thirty years before?
But the complainants have proved by the three sons of Bush and his widow that he was from home hunting the greater part of his time, and some of them say that from his conversations and several facts they believe he often visited Western Tennessee. And more than one witness who lived in the neighborhood of Josiah Payne became acquainted with Bush in his expeditions to Tennessee.
From these facts it would seem that no presumption against the due execution of the bond can arise from the statement of the witnesses who were the neighbors of Bush and who could not recollect of his having been absent from home about the time the bond is dated.
But how can the admissions of Payne in the presence of Jeremiah and Jacob Coulson that he held no instrument of writing on Isaac Coulson for the land in dispute, and that he had agreed to receive a negro boy in discharge of the claim, be explained, and also his agreement to pay the taxes on the land, and take care of it for the heirs of Coulson? And what
answer can be given to his having received a horse worth $50 in part payment of the claim?
The payment of the horse seems to have been in pursuance of the original agreement. Two of the witnesses state that Coulson, in addition to the land, was to give Payne a horse worth $50. And it is not improbable, if the remarks were made by Payne as stated by Jeremiah Coulson, that he held no written contract from Isaac Coulson, they must have referred to the fact of here being no writing respecting the payment of this horse.
That he agreed to pay the taxes, and preserve the land for the heirs of Coulson is disproved by the fact that either then or sometime before, Payne procured a bond from Mrs. Coulson for the land. The language of this bond cannot be mistaken, and it goes to show that instead of abandoning the land and agreeing to pay the taxes for the heirs of Coulson, he was determined to perfect his claim to it by the use of such means as he could resort to. By the statement of Mrs. Coulson, it appears Payne complained that he should have to wait for a title until her children became of age. This fact, as well as the deed and the whole course of conduct of Payne, show that he could not have made the remarks and agreement as stated by Jeremiah Coulson.
From this view of the evidence, which has a bearing upon the fact of the contract and the execution of the bond, the proof is as clear and as satisfactory as could be reasonably expected after the lapse of so many years.
The handwriting of Bush is proved by the positive testimony of three witnesses, and the consideration of the bond is clearly proved by three other witnesses, all of whom stand without any impeachment of their credit. Conclusive as these facts would seem to be as to the genuineness of the bond and the consideration on which it was given, there are others equally conclusive.
If no contract between Coulson and Payne had been made, what could have induced the latter to visit Virginia in 1793, and how can the conduct of Mrs. Coulson in executing a bond to convey all her right in the land, with the advice of her brother-in-law, Jacob Coulson, be accounted for. This was about five years after the money was to have been paid, or the
land conveyed. The circumstances were then known to the parties, and no objection seems to have been made either by Mrs. Coulson or the connections of her deceased husband to the claim set up by Payne. So far from any objections' being made, everything was done, both by Mrs. Coulson and her friends, which they could do to vest the title for this land in Payne. They applied to the court, and remained in attendance upon it for three days, at one time, under the hope of obtaining the necessary authority to execute the conveyance. And Payne complained of the hardship of being compelled to wait for a title until the heirs of Coulson became of age.
These are facts established by the evidence, and do they not show beyond controversy that there was a contract between Coulson and Payne respecting this land? And this important point being established independent of the bond, the genuineness of that instrument must be extremely probable. Its language agrees with the contract as proved by parol, and several of the witnesses say the contract was reduced to writing. And in addition to this, the clear proof of the handwriting of Bush the subscribing witness would seem to be conclusive. Taking into view all the facts and circumstances in favor of the due execution of this instrument, it has been as fully established as could be expected of any writing of so ancient a date.
But it is objected that this bond has been mutilated, and therefore it must be rejected. It is true that some alterations have been made on the face of the bond. The words "North Carolina," or some other words, have been erased, and the word "Virginia," in lieu thereof, has been inserted. This alteration would make the bond read Isaac Coulson, of the State of "Virginia" and County of Davidson, instead of the State of "North Carolina,", &c. The signature of Isaac Coulson to the bond seems to have been scratched out and again written.
That these alterations have been made since the death of Payne is satisfactorily proved; it is clear that no one having any interest under the bond could have had a motive to alter it as seems to have been done. If, by the alterations, the obligation of Coulson had been increased, either as to the time of payment, the sum to be paid, or the number of acres to be conveyed, Payne or his heirs might have had some
motive of interest to make them, but their interest was directly opposed to any act which would impair the validity of the bond or cast suspicion upon it.
It is proved that after the death of Payne, the bond was in the possession of those who claimed the land adversely to it, so that its destruction would have advanced their interests. It is fair, therefore, to presume that if the alterations were made by design, they could not have been made by anyone claiming under the bond, but must have been made by someone who had an interest in destroying it.
By this bond, Coulson agreed to pay to Payne