Polk's Lessee v. Wendell,
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18 U.S. 293 (1820)
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U.S. Supreme Court
Polk's Lessee v. Wendell, 18 U.S. 5 Wheat. 293 293 (1820)
Polk's Lessee v. Wendell
18 U.S. (5 Wheat.) 293
There are cases in which a grant is absolutely void, as where the state has no title to the thing granted, or where the officer had no authority to issue the grant, &c. In such cases, the validity of the grant is necessarily examinable at law.
A grant raises a presumption that every prerequisite to its issuing was complied with, and a warrant is evidence of the existence of an entry, but where the entry has never in fact been made and the warrant is forged, no right accrues under the act of North Carolina of 1777, and the grant is void.
Where a party, in order to prove that there were no entries to authorize the issuing of the warrants, offered to give in evidence certified copies of warrants, from the same office, of the same dates and numbers, but to different persons, and for different quantities of lands, held that this was competent evidence to prove the positive fact of the existence of the entries specified in the copies; but that in order to have a negative effect in disproving the entries alleged to be spurious, the whole abstract ought to be produced in court, or, inspected under a commission, or the keeper of the document examined as a witness, from which the court might ascertain the fact of the nonexistence of the contested entries.
In such a case, certificates from the Secretary's Office of North Carolina, introduced to prove that on the entries of the same dates with those alleged to be spurious, other warrants issued, and other grants were obtained in the name of various individuals, but none to the party claiming under the alleged spurious entries, is competent circumstantial evidence to be left to the jury. In such a case, parol evidence that he warrants and locations had been rejected by the entry-taker as spurious, is inadmissible.
It seems that whether a grant be absolutely void or voidable only, a junior grantee is not, by the law of Tennessee, permitted to avail himself of its nullity as against an innocent purchaser without notice.
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 6 May, 1800, on a warrant from John Armstrong's office, dated May 25, 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 28 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 Seveir's grant. The plaintiff having proved that John Carter was entry-taker of Washington County until February 28, 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 16 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 27 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 16 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 recognized 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 handwriting. The plaintiff also offered to given in evidence a report to the Legislature of Tennessee, of November 8, 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.