The decision of the court below granting or refusing a motion
for a new trial is not matter for which a writ of error lies to
this Court.
In Kentucky and Virginia the rule is that a court of common law
cannot look beyond the patent, but in Tennessee the courts of law,
under their construction of the land laws of North Carolina, permit
the parties in an ejectment to go back to the original entry, and
connect the patent with it.
This construction is not limited to a comparison of the dates of
the entries, but admits of an inquiry into their legal effect as
they stand in relation to each other.
The statutes of North Carolina, which have been construed to
justify a court of law in considering the entry as the commencement
of title, are applicable to military warrants as well as other
titles.
By the decisions of the courts of Tennessee, the validity of
surveys does not depend on the will or directions of claimants, and
though the mistakes of surveyors may be corrected, they cannot be
corrected so as to injure a subsequent adjoining enterer.
The laws of North Carolina do not require that an entry should
express the watercourses and remarkable places which are remote,
but only those which are contiguous, and which may assist in
designating the land intended to be acquired. Notoriety is not
essential to the validity of an entry in Tennessee, as it is in
Kentucky. The statute of Virginia, which is the land law of
Kentucky, requires that entries shall be so special and certain
that any subsequent locator may know how to appropriate the
adjacent residuum. But the land law of North Carolina contains no
such provision, and the doctrine which requires notoriety as well
as identity, has never been received in Tennessee.
Page 20 U. S. 249
This was an action of ejectment brought by the plaintiff in
error in the circuit court against the defendants in error to
recover the possession of lands in the State of Tennessee. The
title of the plaintiff, as spread upon the record, originated in an
entry made on 17 March, 1785, in the following words:
"General Sumner enters 12,000 acres of land lying east of the
upper south road between the head of Mile Creek, Little Harpeth,
and Stewart's Creek, and on the waters of some of the
aforementioned creeks, including some deadened trees, marked
'I.F.'"
The deadened trees were never found. On this entry a patent was
issued by the State of North Carolina on 27 April, 1793, to
which
Page 20 U. S. 250
was attached a plat and certificate of survey purporting to be
made by Thomas Malloy, a deputy surveyor, on 20 November, 1786.
The defendants claimed under a patent issued to William Tyrrell,
assignee, on 10 April, 1797. This grant was founded on an entry
made in the name of John Gee, on 1 June, 1785, in the following
words:
"John Gee, heir of Captain James Gee, enters three thousand
eight hundred and forty acres of land, lying and adjoining the
northern boundary of Brigadier General Jethro Sumner running west
along his line for complement."
The defendants gave in evidence the record of a former trial in
ejectment for the same land in which the verdict and judgment were
against the plaintiffs, and the testimony of Burkley Pollock, a
witness examined at that trial, who is since dead, and who swore
that he made the survey for General Sumner before Gee's entry was
made. A copy of the plat and certificate of survey made by Pollock
and recorded in the Secretary's Office of North Carolina, properly
authenticated, was also given in evidence. By the plat and
certificate of survey, it appears that the land of Sumner was laid
off by Pollock in a parallelogram, the base or first line of which
extending from west to east, was 1,292 poles and the side lines
1,486 poles. The patent which was issued on the plat and
certificate returned by Malloy, had the same base line, but the
side line is extended to 1,737 poles, and the survey is said to
include 2,026 acres, belonging to Lieutenant Thomas Pasteur.
Page 20 U. S. 251
The defendants also gave in evidence copies of a petition
presented to the General Assembly of North Carolina at its session
held in November, 1786, by the guardian of the plaintiff, praying
that a separate warrant might be issued to the heirs of General
Sumner for the quantity of land included in his survey to which
Lieutenant Pasteur had a prior title, and the proceedings of the
legislature granting the prayer of the petition. The defendants
also gave in evidence a certified copy of a certificate granted by
the commissioners of West Tennessee to the heirs of General Sumner
for so much land as was equal to the quantity lost by the prior
title of Lieutenant Pasteur, and a copy of the testimony on which
this certificate was founded.
To the admission of all these copies it is stated in the bill of
exceptions the plaintiff's counsel objected, but his objections
were overruled and the papers were read.
Some testimony was offered by the defendants to prove that in
the survey of Sumner's land by Pollock, a second as well as the
first line was run, and corner trees marked at the end of that line
so as to fix the northern boundary of Sumner's land, but other
testimony was offered by the plaintiff to prove that only the first
line, which established the southern boundary, was run.
After the testimony was closed, the counsel for the plaintiff
moved the court to instruct the jury
"That it should not regard the said copies from the Secretary's
Office of North Carolina, and of the proceedings before the
Commissioners of West Tennessee as
Page 20 U. S. 252
having any effect in the said cause, and that the entry in the
name of Gee, on which the grant to Tyrrel purported to be founded,
could not be located as a special entry to any place, or if to any
place, only to the northern boundary of Sumner's land on which the
grant was founded, as granted and described in the plat and
certificate,"
but the judge refused so to instruct the jury, but informed them
that
"All said documents, except the proceedings before the
commissioners, which should have no weight in the cause, should be
considered as testimony by them, and that the plat and certificate
made by Pollock, if he marked no more of the corners and lines of
Sumner's tract, but the southern boundary, and southeast corner and
southwest corner, would show, by calculation, where the northern
boundary of his tract should be according to said plat, and locate
said Sumner's entry and land to the south of that line, and fix
said entry in the name of Gee to the north of that line, and make
it special from the date of the survey made by Pollock for that
place; and that the grant to Tyrrel, although founded on a survey
made long after the grant to Sumner was issued, should relate back
to the date of said entry, and give a good title to those holding
under the said grant to the land north of the north boundary as
represented in the plat, &c., made by Pollock, against the
title derived from Sumner's grant and entry, and that Sumner's
grant should be considered as made on a removed warrant, for all
the land north of what is represented in said plat, made by
Pollock, as his northern boundary. "
Page 20 U. S. 272
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is a writ of error to a judgment in ejectment rendered in
the Circuit Court of the United States for the District of West
Tennessee, which was brought by the plaintiffs in error. After a
verdict in favor of the defendants, the counsel for the plaintiff
moved for a new trial, which was refused. To the opinion of the
judge, overruling the motion for a new trial, and also to his
charge to the jury, the plaintiff excepted, and the cause comes on
now to be heard on his exceptions
It is well settled that this Court will not revise the opinion
of a circuit court, either granting or rejecting a motion for a new
trial; but the exception to the charge of the judge, although taken
after a motion for a new trial, may have been and probably was
reserved at the time the charge was given, and will therefore be
considered.
The exception to this charge of the court below, consists of two
parts:
1st. To so much of it as admits the copies taken from the
Secretary's Office of North Carolina, as evidence in the cause.
2d. To so much of it as admits the validity of Gee's entry, and
gives it the preference to so much of Sumner's patent as
comprehends land not embraced in Pollock's survey.
Page 20 U. S. 273
The first point seems not to have been relied on by the
plaintiff's counsel in argument, and has, we think, been very
properly abandoned. These documents were official copies of papers
belonging to the title of the parties, taken from the office in
which those papers were kept and regularly authenticated. We
perceive no ground on which the objections to their admission could
be sustained. If the charge of the judge went beyond these official
copies to the proceedings of the legislature, and the record of the
former trial, we perceive no error in this. The former trial was
between parties or privies, and the petition to the legislature was
the act of the party by guardian, the resolution of the general
assembly on which, was a measure of the whole state, the effect of
which in this or any other case, might be controverted, but to
which all interested in it might have recourse.
The second part of the charge presents a question of more
intricacy, which requires an attentive consideration of the land
laws of North Carolina, and of the decisions of the courts of
Tennessee.
In Kentucky and in Virginia the rule is that a court of common
law cannot look beyond the patent, but in Tennessee it is
understood to be otherwise. The courts of law in that state allow
the parties, in an ejectment, to go back to the original entry, and
to connect the patent with it. This rule is founded on the land
laws of North Carolina, which have been construed in Tennessee to
permit and require it. But the plaintiffs contend that this
construction has been limited to the comparison of the
Page 20 U. S. 274
dates of the entries, and admits of no inquiry into their legal
effect as they stand in relation to each other.
If the question were to depend merely on its reason, it would be
difficult to support the opinion that a court authorized to compare
entries with each other, should not, in the exercise of this power,
be permitted to examine their whole legal operation and relative
effect. If it were to depend upon a construction now, for the first
time, to be given to the acts of North Carolina, we should find
great difficulty in maintaining that they allow the entries to be
compared so far as respects dates, but no further. The Act of
November, 1786, ch. 20, in its preamble, recites that
"Whereas it is the intent and meaning of the said act [the act
for opening the land office] and of the act hereby revived and put
in force, that the first enterers of the vacant and unappropriated
lands, if specially located, therein described shall have
preference of all others,"
&c. The 1st section then enacts "That every first enterer of
any tract of land, specially located, lying in the western parts of
this state," &c., shall have a further time for making his
surveys, and that grants upon lands previously entered by any other
person shall be void.
The same act allows a survey to be made on removed warrants, in
cases where the warrants were originally located on lands which had
been previously entered "as the law directs," by some other
person,
"provided such lands were at the time of such survey actually
vacant, and that such survey on removed warrants shall not affect
or injure the right of
Page 20 U. S. 275
any lands entered, and specially located, in the office
aforesaid previous to such survey."
The Act of November, 1787, ch. 23, directs all surveyors to
survey lands according to their priority of entry, and that every
grant obtained on a subsequent entry, contrary to the provisions of
that act, shall be void.
The original act had prescribed the manner of making entries,
and those made in pursuance of law are considered special.
Between special entries the first is undoubtedly to be
preferred, but if one entry be special and the other vague, as if
one should describe the land intended to be acquired, in conformity
with the act, and the other should totally omit to give a
description which might designate the place, should enter 5,000
acres of land lying in the county of A. without naming any place in
the county to which it might be fixed, could it be contended that,
on any fair construction of the acts, this entry would prevail
against one which was special, but was subsequently made? We think
it could not. The acts of North Carolina appear to us to have been
intended to preserve the priority of legal entries, not of those
made contrary to law.
We do not think that the decisions of the courts of Tennessee
establish a contrary principle. Several
dicta are to be
found in the cases stating the rule to be, that courts will go
beyond the grant only to support a prior entry, but these
dicta were applied to the exclusion of extrinsic matter,
not to the exclusion of considerations belonging to the entries
themselves.
Page 20 U. S. 276
The title to lands surveyed on removed warrants, has never been
carried back to the entry, and on the same principle the title to
lands surveyed off the entry, can have no date anterior to the
patent, so far as the survey does not conform to the entry. 1 Tenn.
172, 351, 306, 413.
The effects of entries, then, as well as their dates, is
considered by the courts of Tennessee.
It has also been contended that this principle ought not to be
applied to military grants. The acts of North Carolina, which have
been construed to justify a court of law in considering the entry
as the commencement of title, are not, it is agreed, applicable to
military warrants. But the Act of 1786, c. 20, on which this
construction is supposed to be founded, declares it to have been
the intention of the act for opening the land office, that the
first enterers "shall have preference to all others in surveying
and obtaining grants for the same."
We think the act which prescribes the mode of obtaining military
grants manifests this intention as unequivocally as those which are
referred to in the act of 1786, c. 20. It is true, as has been
stated in argument by the plaintiff's counsel, that the 3d sec. of
the act "for the relief of the officers and soldiers of the
Continental line, and for other purposes," directs, that where two
or more persons wish or claim to have his or their warrant located
on the same piece of land, the parties contending shall cast lots
for the choice. But this section obviously provides for
applications made at the same time. The 5th section directs
that
"Where a warrant shall be hereafter located, without
Page 20 U. S. 277
any person making objections to such location, that such
location shall be good and valid notwithstanding the claim that may
be afterwards set up by any other person."
This section, we think, manifests a clear intention to give
priority of right to the prior entry, and we are not surprised
that, under this act, the courts of Tennessee should comprehend
military titles also in that rule which authorizes courts of law to
take into view the entries of the parties. At any rate, such is the
settled course of the courts of the state, and those of the United
States ought to conform to it.
We think, then, that the circuit court committed no error in
inquiring into the rights of the parties to the land in controversy
under their respective entries. It is next to be considered
whether, in making this inquiry, that court has decided
erroneously.
The entry, as well as the patent of the plaintiff, being the
oldest, it must prevail unless some circumstance has occurred to
defeat the right given by this priority.
The defendants rely upon the survey made by Pollock as confining
the entry of Sumner to that survey.
Of the existence of this survey there appears to have been no
doubt, and none seems to have been entertained at the trial. The
plaintiff objected to receiving the copy of the plat and
certificate in evidence, but, when that objection was overruled, he
contested the survey no further. His object, then, was to show that
the second line was never run.
Page 20 U. S. 278
The judge charged the jury, that the plat and certificate made
by Pollock, if he marked no more of the corners and lines of
Sumner's tract, but the southern boundary, and south-east and
southwest corner would show, by calculation, where the northern
boundary of his tract should be.
Nothing can be more apparent than the correctness of this
charge. The law directs that "every tract surveyed for officers or
soldiers, shall be run out at the four cardinal points of the
compass, either in a square or in an oblong." Consequently, when
one line of a survey is given, the remaining three lines are found
by a calculation which cannot vary. General Sumner's entry was for
12,000 acres of land. A line from west to east, constituting the
southern boundary, was run, and measured 1,292 poles. Corner trees
at each extremity were marked. From the end of this first line the
survey calls for a line due north 1,486 poles. Had this line been
actually run and marked, the tract would have been bounded by the
lines actually run, and the corner trees actually marked. But, the
line not having been run, the tract was bounded by the course and
distance called for. Had there been no survey, had Sumner's entry
been for 12,000 acres of land, to begin where the survey began, and
to run east 1,292 poles, and from the ends of that line north for
quantity, it must have been bounded in the same manner, because, a
rectangular oblong figure, to contain 12,000 acres, one of which is
1,272 poles, must have for its other sides, lines of 1,486 poles.
Of course the judge was correct in saying that if the southern
Page 20 U. S. 279
boundary was given, the northern boundary was to be found by
computation.
Was he equally correct in adding that Gee's land might be
located on the north of Sumner's northern line when thus found?
We think he was.
Gee's entry called to lie, "adjoining the northern boundary of
B. General Sumner running west along his line for complement."
Sumner's northern line was consequently Gee's southern line.
If, then, Sumner's grant had been issued according to Pollock's
survey, no interference between him and Gee could have taken place.
But a plat and certificate of survey was afterwards made out by
Malloy, who was also a deputy surveyor, which extended the lines
constituting the eastern and western boundary of Sumner's land, to
1,737 poles, and upon this plat and certificate his patent was
issued. We must therefore inquire whether Pollock's survey was
legally made, and if it was whether it could be afterwards changed
so as to effect a person making an entry in the intermediate time
between his first and second survey.
The laws of North Carolina make it the duty of surveyors to
survey entries in the order in which they are made, and do not
require the presence or direction of the owners of the land.
Pollock was a deputy surveyor authorized to make this survey.
Consequently, it was regularly made, and had all the consequences
of a legal survey.
Admitting the alteration made by Malloy to be
Page 20 U. S. 280
perfectly justifiable, Gee's entry was prior to that alteration,
and the question is whether such alteration can affect an
appropriation previously made?
Upon the principles of reason and common justice, we could feel
no difficulty on this point. But we are relieved from considering
it by the decisions which have already taken place in Tennessee. In
Blakemore v. Chambles, 1 Tenn. 3, it was expressly
determined that the validity of surveys "has no dependence on the
will or direction of claimants," and that though the mistakes of
surveyors may be corrected, "they cannot be so corrected as to
injure a subsequent adjoining enterer."
Gee's entry, then, made after Pollock's survey, will, if a valid
entry, hold the lands against any subsequent survey made for
Sumner. But as Sumner's is the eldest grant, the validity of Gee's
entry must be examined.
It calls to adjoin Sumner's northern boundary, and to run west
along his line for complement.
The laws of North Carolina direct that an entry shall
express
"the nearest watercourses, and remarkable places, and such
watercourses, lakes, and ponds as may be therein, the natural
boundaries and lines of any other person or persons, if any, which
divide it from other lands."
This law cannot be construed, and never has been construed, to
require that watercourses, or remarkable places which are remote,
should be expressed in the entry. It requires the expression of
those only which are contiguous, and which may assist in
showing
Page 20 U. S. 281
the land intended to be acquired. If there be no considerable
watercourses, lakes, or ponds within it, the entry cannot express
them. The reference to the adjoining land, when we take into view
that the law directs entries to be surveyed according to their
dates, would always be sufficient to make the entry special, if the
line called for could be found. In
Smith v. Craig's
Lessee, 2 Tenn. 296, the court said,
"Previously to the year 1786, a vague entry was well understood
to be one that contained no such specialty as that a majority of
those acquainted in its neighborhood, at its date, could by
reasonable industry, find it; a special entry was considered the
reverse. How natural is it, then, for us to suppose, that the
legislature designed, in the use of this expression, in the act of
1786, to convey such ideas as had by usage and common consent been
appropriated to it."
The books are full of cases containing similar expressions. It
is impossible to look at all into the subject, without being
satisfied that in the State of Tennessee, such an entry as that of
Gee would be deemed special, if Sumner's northern boundary could be
found.
There could be no difficulty in finding it, since his land had
been surveyed when this entry was made.
But the great objection on which the plaintiffs most rely is
that to constitute a special entry in the State of Tennessee, the
objects called for must be notorious as well as certain. The entry
must be such as to give general information of the precise land it
appropriates. Notoriety, as well as identity, are essential,
Page 20 U. S. 282
it is said, to specialty, and a call for Sumner's line is not
good unless Sumner's survey was notorious.
If this proposition be correct, if notoriety as well as identity
be essential to the validity of an entry in Tennessee as it is in
Kentucky, then Gee's entry cannot be sustained. But the law of
Tennessee is in this respect entirely different from that of
Kentucky. The act of Virginia, which is the land law of Kentucky,
requires that entries shall be so special and certain that any
subsequent locater may know how to appropriate the adjacent
residuum. The land law of North Carolina, which is the law of
Tennessee, contains no such provision. The lawyers of Kentucky have
made some attempts to transplant into Tennessee the principles
which had grown up in Kentucky, but their attempts were
unsuccessful. The books are full of cases in which it is expressly
decided that notoriety is not essential to the validity of an
entry. In the case of
Philip's Lessee v. Robertson, 2
Tenn. 399, the whole subject is reviewed. Judge Overton takes a
very comprehensive view of the doctrines growing out of the land
laws of North Carolina, and shows conclusively that they do not
require, and had never been understood in Tennessee to require
notoriety as essential to the validity of an entry. His opinion in
this case has, we are informed, been confirmed by the other judges
of their supreme court.
If notoriety be not necessary to Gee's entry, it is special
according to the laws of Tennessee, and ought to hold the land it
covers against any subsequent survey
Page 20 U. S. 283
made of an entry which had been previously surveyed. The judge
was correct in saying that such subsequent survey must be
considered as if made on a removed warrant.
Judgment affirmed with costs.
