Polk's Lessee v. Wendal
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13 U.S. 87 (1815)
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U.S. Supreme Court
Polk's Lessee v. Wendal, 13 U.S. 9 Cranch 87 87 (1815)
Polk's Lessee v. Wendal
13 U.S. (9 Cranch) 87
The Act of North Carolina, 1783, ch. 2, opening the land office did not prohibit a person from making several different entries, amounting in the whole to more than five thousand acres, nor from purchasing the rights acquired by others by entries, nor from uniting several entries in one survey and patent, and such union of several entries is allowed by the Act of 1784, ch. 19.
In a patent, the obliteration of the consideration does not make void the grant.
In cases depending on the statutes of a state, the settled construction of those statutes by the state courts is to be respected.
In Tennessee, the younger patent on the elder entry prevails over the elder patent on the younger entry. A patent justifies a presumption that all the previous requisites of the law have been complied with.
A patent is void at law if the state had no title or if the officer who issued the patent had no authority to do so.
In North Carolina, the want of an entry annuls a patent.
After the cession of land by North Carolina to the United States, the former had no right to grant those lands to any other grantee who had not an incipient title before the cession.
The question whether such incipient title existed is therefore open at law.
On the trial, the plaintiff below, who is also plaintiff in error, relied on a patent regularly issued from the State of North Carolina, for 5,000 acres of land, dated 17 April, 1800, which patent included the lands in controversy.
The defendants then offered in evidence a patent issued also from the State of North Carolina and dated on 28 August, 1795, purporting to convey 25,060 acres of land to John Sevier, which patent also comprehended the lands in controversy. To the reading of this grant the plaintiff objected because
1. By the laws of the State of North Carolina, no grant could lawfully issue for as large a number of acres as are included in that grant.
2. The amount of the consideration originally expressed in the said grant appears to have been torn out.
3. The said grant on its face appears fraudulent, the number of acres mentioned being 25,060, the number of warrants forty of 640 acres each, and yet the courses and distances mentioned in its body include more than 50,000 acres.
These objections were overruled and the patent went to the jury. To this opinion of the court the counsel for the plaintiff excepted.
The counsel for the plaintiff then offered to prove for the purpose of avoiding the said grant:
1. That the forty warrants of 640 acres each mentioned
in the said grant purport on their face to have been issued by Landon Carter, entry taker of Washington County, and that the land covered by the said grant is situated between the Cumberland Mountain, and Tennessee River, and not within the said County of Washington.
2. That the consideration of ten pounds for every hundred acres was fraudulently inserted in the said grant, by procurement of said grantee, John Sevier.
3. That no entries were made in the office of the entry taker of Washington or elsewhere authorizing the issuing of such warrants.
4. That the pretended warrants are forgeries.
5. That at the time of the cession of the western part of the State of North Carolina to the United States and at the time of the ratification thereof by Congress on the ___ day of _____ 1790, the said pretended warrants did not exist, nor were any locations or entries in the offices of the entry taker of Washington County from which they appear to have issued, authorizing their issuance.
6. That no consideration for the said land was ever paid to the State of North Carolina or any of its officers.
And, to prove that since the execution of the said grant, the consideration mentioned therein had been altered from 50 shillings to ten pounds, the counsel for the plaintiff offered to read as evidence a letter addressed by the said John Sevier to James Glasgow, then Secretary of State for the State of North Carolina, in the words following, to-wit:
"Jonesborough, 11 November, 1795"
"I am highly sensible of your goodness and friendship in executing my business at your office in the manner and form which I took the liberty to request. Permit me to solicit a completion of the small remainder
of my business that remains in the hands of Mr. Gordon."
"Should there be no impropriety, should consider myself much obliged to have ten pounds inserted in the room of fifty shillings. I have directed Mr. Gordon to furnish unto you a plat of the amount of about 640 acres which I consider myself indebted to you provided you would accept the same in lieu of what I was indebted to you for fees, &c., which I beg you will please to accept in case you can conceive that the three warrants will be adequate to the sum I am indebted to you."
"I am, with sincere and great esteem,"
"Dear sir, your most obedient servant,"
"Hon. James Glassgow"
"HON. MR. GLASSGOW, Secretary of State"
The counsel for the defendants objected to the reception of this testimony, and it was rejected by the court. To this opinion also an exception was taken.
A general verdict was rendered for the defendants, on which the court gave judgment.
This judgment has been brought up to this Court by writ of error.