Georgia. Ejectment for a tract of land in Franklin County,
Georgia, held under a grant to Basil Jones, and conveyed by the
attorney of Basil Jones to the defendant in error.
See
24 U. S. 11 Wheat.
380,
30 U. S. 5 Pet.
233. A copy of the grant was produced in evidence, and a copy of a
power of attorney, dated 6 August, 1793, to Thomas Smith,
authorizing him to sell the land, executed in the presence of Abram
Jones, J.P., and Thomas Harwood. This copy was certified from the
records of Richmond County, Georgia, and recorded 11 July, 1795.
The original power of attorney was lost, and evidence of the loss,
to introduce the copy, was given.
What evidence is sufficient to introduce secondary proof.
The Deputy Clerk of the Richmond County Court, who as such had
recorded the original power of attorney, swore that he was well
acquainted with Abram Jones, esquire, and his handwriting, during
the year 1793, &c. That the record of the power of attorney
from B. Jones to T. Smith, made by himself, while clerk of the
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 that said power of attorney, the one offered
in evidence, had been compared with the record of the original made
by himself, and is a true copy. Upon this evidence the
plaintiff offered the copy in evidence, and it was admitted by
the circuit court.
Held that there was no error in
admitting this evidence.
At the time of the admission of this evidence, it was forty
years old. Abram Jones, the subscribing witness to the original,
was long since dead, and it did not appear that the other witness
was alive. The original power did not exist, so that no evidence of
the handwriting of the other witness could be given. After the
lapse of thirty years from the execution of a deed, the witnesses
are presumed to be dead, and this is the common ground for
dispensing with the production of them, without any search for
them, or proof of their death when the original deed is before the
court for proof. This rule applies not only to grants of land, but
to all other deeds where the instrument comes from the custody of
the proper party claiming under it, or entitled to its custody.
The case of
Patterson v.
Winn, 5 Pet. 233,
30 U. S. 244,
cited.
The rule is admitted, that a copy of a copy is not evidence.
This rule properly applies to cases where the copy is taken from a
copy, the original being still in existence, and, capable of being
compared with it, for then it is a second remove from the original,
or when it is a copy of a copy of a record, the record being in
existence, and deemed by law as high evidence as the original, for
then it is also a second remove from the original. But it is a
quite different question whether it applies to cases of secondary
evidence where the original is lost, and the record of it is not
deemed in law as high as the original, or when the copy of a copy
is the highest proof in existence. (In this case, the power of
attorney was recorded in Richmond
Page 34 U. S. 664
County, and the land in controversy was in Franklin County.)
Held that this is not the case of a mere copy of a copy
verified as such, but it is the case of a second copy verified as a
true copy of the original.
If a certified copy of a duly recorded deed is evidence, it is
not necessary to produce the original book in which the same was
recorded.
There are cases when grants and securities made contrary to the
prohibitions of a statute, in part, are, upon the true construction
of the intent of the statute, void
in toto. But it is very
different in cases standing merely on the common law. And
therefore, at the common law, in order to make a grant void
in
toto for fraud or covin, the fraud or covin must infect the
whole transaction or be so mixed up in it as not to be capable of a
distinct and separate consideration.
A grant may be good for part of the land granted and bad as to
other parts of the same. The case of
Patterson
v. Jenks, 2 Pet. 216,
27 U. S. 235,
cited.
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.
24 U. S. 11 Wheat
380, 6 Cond. 355, and 8 Pet. 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 7,800 acres of land, including the lands in
controversy in this suit, dated 24 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, Jr., purporting to be dated 6 August,
1793, authorizing Smith,
inter alia, to sell and convey
the tract of 7,800 acres, which power purported to be signed and
sealed in the presence of Abraham Jones, J.P. and Thomas Harwood,
Jr., and the copy was certified to be a true copy from the records
of Richmond County, Georgia, and recorded there on 11 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
Page 34 U. S. 665
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 24
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, Jr., executed on 6 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 t11 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, Jr., 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 23 July, 1833; also the deposition of Andrew
Fleming stating numerous and particular acts which he had performed
to discover the said
Page 34 U. S. 666
originals. This deposition set forth diligent 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, Jr., made by himself while clerk
Page 34 U. S. 667
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, Jr., alleging himself to
be the attorney in fact of Basil Jones, dated 18 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 6 August last past, did empower and authorize
the said attorney (Thomas Smyth, Jr.) 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
Page 34 U. S. 668
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, practiced a deception upon the
governor of the state, and thereby induced him 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.
Page 34 U. S. 672
MR. JUSTICE STORY delivered the opinion of the Court.
This is a writ of error to the Circuit Court of the District of
Georgia. The cause, which is an ejectment, has been twice before
this Court, and the decisions then had will be found reported in
24 U. S. 11 Wheat.
380, and
30 U. S. 5 Pet.
233, to which we may therefore refer as containing a statement of
many of the material facts.
At the new trial had in November term, 1833, in pursuance of the
mandate of this Court, 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, including
the lands in controversy, dated 24 May, 1787, with a plat of survey
thereto annexed. He then offered a copy of a power of attorney from
Basil Jones to Thomas Smyth, Jr., purporting to be dated 6 August,
1793, and to authorize Smyth, among other things, to sell and
convey the tract of seven thousand three hundred acres so granted,
which power purported to be signed and sealed in the
Page 34 U. S. 673
presence of "Abram Jones, J.P., and Thomas Harwood, Jr.," and
the copy was certified to be a true copy from the records of
Richmond County, Georgia, and recorded therein, on 11 July, 1795.
And to account for the loss of the original power of attorney, of
which the copy was offered, and of the use of due diligence and
search to find the same, the plaintiff read the affidavit of
William Patterson, the lessor of the plaintiff, which in substance
stated that he had not in his possession, power, or custody the
original grant, and that he verily believed the original power of
attorney and grant have been lost or destroyed. He also read for
the same purpose the deposition of Andrew Fleming, which stated in
substance the searches made by him among Thomas Smyth's papers and
the information received by him leading to the conclusion that the
same has been lost or destroyed. Also the deposition of Mrs. Smyth,
the widow of Thomas Smyth, for the same purpose. Also the
deposition of Richard H. Wilde, which stated several searches made
by him for the original power in the office of the Clerk of
Richmond County and in other places, and an application to the wife
of Basil Jones, and to the son of Thomas Smyth, for the like
purpose, and an advertisement in two Georgia newspapers for
information respecting the same, all of which proved ineffectual.
The same witness also stated that Abram Jones, the supposed
subscribing witness, was, by public reputation, long since dead. It
was admitted that Abram Jones was, at the time of the supposed
execution of the power, a justice of the peace.
The plaintiff also read in evidence the deposition of William
Robertson, who stated that he was Deputy Clerk of the Court of
Richmond County in 1794, and Clerk in 1795, and continued in office
until 1808 or 1809; that he was well acquainted with Abram Jones
and his handwriting during the years 1793, 1794, and 1795, and
before and afterwards. That the record of the power of attorney
from B. Jones to Thomas Smyth, Jr., made by himself while clerk of
the 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 the said power of attorney transmitted with the
deponent's depositions (the copy before the court)
Page 34 U. S. 674
had been compared with the record of the original made by
himself in Richmond County, and is a true copy.
The plaintiff also gave in evidence a deed executed by Thomas
Smyth, Jr., as attorney in fact of Basil Jones, dated on 18
November, 1793, conveying as such attorney to William Patterson,
the lessor of the plaintiff, certain tracts of land, and among
others the tract of seven thousand three hundred acres, which deed
contained a recital that Basil Jones, by his certain writing or
letter of attorney dated 6 August, 1793, did empower and authorize
his said attorney in his, Basil Jones', name, to sell and dispose
of the tracts mentioned in the deed, which deed was recorded in the
records of Franklin County on 25 July, 1795.
Upon this evidence the plaintiff offered the copy as evidence in
the case. It was objected to by the defendants, and the objection
was overruled by the court, and the copy was admitted in evidence
to the jury. And this ruling of the court constitutes the first
ground in the bill of exceptions upon which the defendants now rely
for a reversal of the judgment of the circuit court, which was in
favor of the plaintiff.
In the consideration of the admissibility of the copy, two
questions are involved. In the first place, whether there was
sufficient evidence of the genuineness and due execution of the
original power of attorney. In the next place, if its genuineness
and due execution are established, whether the copy was, by the
principles of law under all the circumstances, admissible
proof.
In regard to the first question, we are to consider that the
original instrument (supposing it to be genuine) is of an ancient
date, having been executed in the year 1793 and recorded in the
public records as a genuine instrument in 1795, so that at the time
of the trial it was forty years of age. Abram Jones, one of the
subscribing witnesses, was long since dead, and it does not appear
that Thomas Harwood, the other subscribing witness, was alive or
that the plaintiff had any means of identifying him or tracing out
his residence. The original power did not exist, so that the
plaintiff could not, by an inspection of his handwriting, ascertain
who he was or where he lived.
After the lapse of thirty years from the time of the execution
of a deed, the witnesses are presumed to be dead, and this is
Page 34 U. S. 675
the common ground in such cases for dispensing with the
production of them without any search for them or proof of their
death when the original deed is before the court for proof. It is a
rule adopted for common convenience and founded upon the great
difficulty of proving the due execution of a deed after an interval
of many years. And the rule applies not only to grants of land, but
to all other deeds where the instrument comes from the custody of
the proper party claiming under it or entitled to its custody. 1
Phillips on Evidence, ch. 8, sec. 2, 406, and cases there cited; 1
Starkie on Evidence, part 2, sec. 143, 144, 145, and cases there
cited. If, therefore, the original power were now produced from the
custody of the plaintiff, it would not be necessary to establish
its due execution by the production of the subscribing witnesses.
It would be sufficient to establish it by other proofs. This view
of the matter disposes of that part of the argument which denies
that the proof of the original instrument can be made without the
production of the subscribing witness, Harwood, or accounting for
his nonproduction.
Then what is the proof of the genuineness and due execution of
the original power of attorney? Mr. Robertson swears that he was
acquainted with the handwriting of Abram Jones (one of the
subscribing witnesses) at the time of its date as well as before
and afterwards; that he recorded it in the county records; that the
record is a copy of an original power of attorney, which he
believed to have been genuine, for that the official signature of
Abram Jones must have induced him to commit the same to record. Now
what is to be understood by the "official signature" in the
language of the witness? Clearly his genuine handwriting, and the
annexation of his official title, "J.P." -- that is, Justice of the
Peace -- establishing that he verifies the instrument, not merely
as an individual, but as a public officer. It is impossible that it
could be his official signature unless it was also a genuine, and
not forged, signature of his name. So that here we have from Mr.
Robertson direct proof of his belief of the genuineness of the
signature of a subscribing witness, from his knowledge of his
handwriting, his examination of the original instrument, and his
having recorded it upon the faith of such belief. It seems to us
perfectly clear, upon the received principles of the
Page 34 U. S. 676
law of evidence, that this was sufficient
prima facie
proof of the genuineness and due execution of the original power to
be left to the jury for its consideration of its weight and
effect.
The next question is whether sufficient ground was laid in the
evidence to establish the loss or destruction of the original
power, so as to let in secondary proof of its contents. We think
there was, considering the lapse of time since the original
transaction, the diligence which had been used, the searches which
had been made, and the other attendant circumstances stated in the
depositions, to fortify the presumption of such loss or
destruction. This was the view of this point taken by this Court in
the former decision in
30 U. S. 5 Pet.
233,
30 U. S. 242,
though it was not then so directly before us, and having heard the
new argument addressed to us on the present occasion, we see no
reason for departing from our former opinion.
The remaining question, then, is whether the copy now produced
was proper secondary proof, entitled by law to be admitted in
evidence. The argument is that it is a copy of a copy, and so not
admissible, and that the original record might have been produced
in evidence. By the laws of Georgia, act of 1785, deeds of bargain
and sale of lands are required to be recorded in the county where
the lands lie. Prince's Dig. 112. Powers of attorney to convey
lands are not required by law to be recorded in the same county,
though there seems to be a common practice so to do. The act of
1785 provides that all bonds, specialties, letters of attorney, and
powers in writing the execution whereof shall be proved by one or
more of the witnesses thereto before certain magistrates of either
of the United States where the same were executed and duly
certified in the manner stated in the act, shall be sufficient
evidence to the court and jury of the due execution thereof.
Prince's Dig. 113. The present power was not recorded in the County
of Franklin, where the lands lie, but in Richmond County, and
therefore a copy from the record is not strictly admissible in
evidence, as it would have been if powers of attorney were by law
to be recorded in the county where the lands lie, and the present
power had been so duly recorded. It is certainly a common practice
to produce, in the custody of the clerk, under a subpoena
Page 34 U. S. 677
duces tecum, the original records of deeds duly
recorded. But in point of law, a copy from such record is
admissible in evidence upon the ground stated in
Lynch v.
Clark, 3 Salk. 154, that where an original document of a
public nature would be evidence if produced, an immediate sworn
copy thereof is admissible in evidence, for as all persons have a
right to the evidence which documents of a public nature afford,
they might otherwise be required to be exhibited at different
places at the same time.
See Mr. Leach's note to 11 Mod.
134;
Birt v. Barlow, 1 Doug. 171; 1 Starkie on Evidence
sec. 36, 37. If, therefore, the record itself would be evidence of
a recorded deed, a duly attested copy thereof would also be
evidence. The present copy does not, however (as is admitted), fall
within the reach of this rule. But the question does arise whether
the defendant can insist upon the production of the record books of
the County of Richmond in court in this case as higher and more
authentic evidence of the power of attorney not properly recorded
there, to the exclusion of any other copy duly established in
proof. We think he cannot. It is not required by any rule of
evidence with which we are acquainted.
We admit that the rule that a copy of a copy is not admissible
evidence is correct in itself when properly understood and limited
to its true sense. The rule properly applies to cases where the
copy is taken from a copy, the original being still in existence
and capable of being compared with it, for then it is a second
remove from the original, or where it is a copy of a copy of a
record, the record being in existence, by law deemed as high
evidence as the original, for then it is also a second remove from
the record. But it is quite a different question whether it applies
to cases of secondary evidence where the original is lost or the
record of it is not in law deemed as high evidence as the original,
or where the copy of a copy is the highest proof in existence. On
these points we give no opinion, because this is not, in our
judgment, the case of a mere copy of a copy verified as such, but
it is the case of a second copy verified as a true copy of the
original. Mr. Robertson expressly asserts that the record was a
copy of the original power made by himself, and that the present
copy is a true copy which has been compared by himself with the
Page 34 U. S. 678
record. In effect, therefore, he swears that both are true
copies of the original power. In point of evidence, then, the case
stands precisely in the same predicament as if the witness had made
two copies at the same time of the original and had then compared
one of them with the original, and the other with the first copy,
which he had found correct. The mode by which he had arrived at the
result that the second is a true copy of the original may be more
circuitous than that by which he has ascertained the first to be
correct, but that only furnishes matter of observation as to the
strength of the proof, and not as to its dignity or degree. In each
case, his testimony amounts to the same result, as a matter of
personal knowledge, that each is a true copy of the original. We
are therefore of opinion that there was no error in the court in
admitting the copy in evidence under these circumstances.
In the further progress of the trial additional evidence was
offered, and thereupon the defendants prayed the court to instruct
the jury 1. that if the jury believed that Basil Jones, the deputy
surveyor and grantee under whom the lessor of the plaintiff claimed
-- by designating the stream marked on 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 -- practiced a deception upon the Governor of
Georgia, and thereby induced him to issue the grant; that such
grant is fraudulent and void, and cannot entitle the plaintiff to
recover; 2. that a grant of land is an entirety, and that a grant
void in part is void for the whole; 3. that a concealment or
misrepresentation of material facts, calculated to deceive the
governor issuing the grant, renders the grant null and void in law.
The court refused to give either of these instructions, and the
question now is whether all or either of them ought to have been
given.
The first instruction is couched in language not wholly
unobjectionable or free from ambiguity. It assumes certain facts to
be established in the case without referring them to the decision
of the jury, and on them founds the instruction, which is certainly
not a correct practice. It also uses the words
Page 34 U. S. 679
"practiced a deception" without adding any qualifying words,
whether the deception was knowingly and willfully practiced for the
purposes of fraud or whether it was by mistake of law or fact, or
by misplaced confidence in the representations of other persons.
And it is certainly the duty of a party asking an instruction to
use language of such a definite and legal interpretation as may not
mislead either the court or jury in regard to the precise nature of
the application.
But waiving this consideration, the instruction asked makes no
distinction between the case of a fraudulent grantee and the case
of a
bona fide purchaser from such grantee without notice
-- a distinction most important in itself, and in many cases
decisive in favor of the purchaser, whatever may have been the
fraud of the original grantee.
It is unnecessary, however, to rely on this circumstance, for,
stripping the instruction of its technical form, it comes to this
-- that if any part of the land included in the grant lay within
the Indian boundary, and the governor was deceived as to that fact,
the grant is void for the whole land, not only for that within the
Indian boundary, but for all that lying within the limits of the
state. This proposition is attempted to be maintained by the
doctrine that a grant void in part is void as to the whole. And
certain authorities at the common law have been cited at the bar in
support of the doctrine. We have examined those authorities, and
are of opinion that they do not apply to cases like the present.
There are doubtless cases where grants and securities, made
contrary to the prohibitions of a statute in part, are, upon the
true construction of the intent of the statute, void
in
toto. But Lord Hobart informs us that it is very different in
cases standing merely upon the common law. For (to use his quaint
but expressive language)
"the statute is like a tyrant; where he comes, he makes all
void; but the common law is like a nursing father, and makes void
only that part where the fault is, and preserves the rest."
See also Norton v. Simmes, Hob. 14;
Maleverer v.
Redshaw, 1 Mod. 35;
Collins v. Blantern, 2 Wilson's
351. And therefore, at the common law, in order to make a grant
void
in toto for fraud or covin, the fraud or covin must
infect the whole transaction or be so mixed up in it as not to be
capable of a distinct and separate consideration.
Page 34 U. S. 680
The case of
Hyslop v. Clarke, 14 Johns. 458, was a case
of fraud where both the grantors and grantees and assignees were
privy to a meditated fraud against creditors, and therefore it was
held void
in toto. The case of
Butler v. Dorant,
3 Taunt. 229, which is very shortly reported, seems to have
proceeded upon the ground, that the statute avoided the security
in toto. If it did not, it seems questionable in its
doctrine.
In the present case, there is no statute of Georgia which
declares all grants of land lying partly within and partly without
the Indian boundaries to be void
in toto. And the policy
of the Legislature of Georgia on this subject is sufficiently
vindicated by holding such grants void as to the part within the
Indian boundary, leaving the grant good as to the residue. This
very point was, in fact, decided by this Court in
Patterson
v. Jenks, 2 Pet. 216,
27 U. S. 235.
One question there was, whether the whole grant (a similar grant)
was a nullity because it contains some land not grantable. In
answer to the question, MR. CHIEF JUSTICE MARSHALL, in delivering
the opinion of the Court, said,
"In the nature of the thing, we perceive no reason why the grant
should not be good for land which it might lawfully pass, and void
as to that part of the tract for the granting of which the office
had not been opened. It is every day's practice to make grants for
lands which have, in fact, been granted to others. It has never
been suggested that the whole grant is void because a part of the
land was not grantable."
We are entirely satisfied with this doctrine as equally founded
in law and reason. The land in controversy in the present suit is
within the acknowledged boundary of Georgia and without the Indian
boundary, and admitting the grant to be void as to the part within
the Indian boundary, it is in our judgment valid as to the residue
notwithstanding the supposed deception stated in the instruction,
for that deception did not affect with fraud any part of the
transaction except as to the land within the Indian boundary. The
instruction therefore was rightly refused by the court.
The second instruction may be disposed of in a few words. It
contains a proposition absolutely universal in its terms -- that a
grant of lands is an entirety, and that a grant void in part is
void for the whole. If this proposition were true, then a grant
Page 34 U. S. 681
of ten thousand acres, which was void for any cause whatever as
a conveyance of one acre, although it might be for want of title in
the grantor, would be void for the remaining nine thousand nine
hundred and ninety-nine acres. It is sufficient to say that the
instruction so generally framed ought not to have been given.
The third instruction admits of a similar answer. It is
universal in its terms, and states
"that a concealment or misrepresentation of material facts [not
stating whether innocently or designedly and fraudulently made]
calculated to deceive the governor, issuing the grant [not stating
whether he was actually deceived or not] renders the grant null and
void in law"
as to all persons whatever, not stating whether the party is the
original grantee or a
bona fide purchaser under him
without notice. For the reasons already stated, such an
instruction, so generally stated, ought not to have been given.
Upon the whole, we are all of opinion that the judgment of the
circuit court ought to be
Affirmed with costs.