Heirs & Devisees of John Jo. Williamson v. Buchannan, 2 Tenn. 278 (1814)

White, J.

The record shews, that this was a caveat filed by Buchan to prevent the plaintiff from obtaining a grant, upon a lay and entry, made under the laws of Tennessee, because knowledged, Buchannon has a better claim to the land, demurer a grant from the state of North Carolina, to Bachannon for 1800 acres, and dated in 1792, and surveyed in the year 1792. The caveat . e county court of Lincoln, and by the consent May session 1812, was transferred to the court she sne county for trial at June term 1812

of the circuit court; the cause was continued, and at December term of the same year, the counsel of the Williamson’s moved that the caveat might be dismissed, because Buchannan claiming under a grant, could not maintain a caveat ; motion was overruled. The counsel of the same party, then moved upon an affidavit, that the venue might be changed to some adjoining county. The court overruled the motion, stating that the matter of the affidavit was sufficient, but the application was too late. A jury was then sworn to ascertain the facts material, which were not agreed on, by the parties ; they returned a verdict in which many facts were found, amongst the rest, the following, that Robert Buchannan had a title regularly derived under the grant mentioned in the caveat; that said grant covers the land in dispute ; that it lies on the first fork of Little river, which empties in on the east side, and adjoins Robert Edmondson’s 1280 acre tract which lies on the same stream, beginning at the mouth thereof ; that said Edmondson had no other 1280 acre tract. The counsel of the plaintiff in error moved the court to set aside the finding by the jury, and grant a new trial, which motion was overruled, and judgment rendered in favor of Buchannan. A bill of exceptions was tendered to the opinion oi the circuit court, refusing the new trial, and the cause removed into this court—and now these points have been made by the plaintiff in error.

First. That the circuit court, when applied to, ought to have dismissed the caveat.

2nd. The venue ought to have been changed.

3rd. A new trial ought to have been granted.

Upon the first point we have been referred to the acts of 1807 chap. 2 sec. 47, 48, and it is insisted, that the legislature evidently intended, that a caveat should be filed, in no case, where the caveator, set out a complete title by grant to the land. This argument has been answered in a manner entirelo satisfactory to the court.

The words in the first of these sections are sufficiently comprehensive to include this case, and it would be unjust to exclude it, on account of general words in the close of she section ; because every reason which would show that a caveat ought to lie, in cases acknowledged to be within the law, apply with equal force, to this case. Under the laws of North Carolina, formerly in force in this country, a caveat is expressly authorised in such a case as this, and it is hardly probable the assembly of Tennessee, in 1807, intended to

lessen the number of cases, to which this remedy shall be applied.

In Virginia, a caveat is given in all cases, where it is alledged the caveator has the better right-in our statute it is given to any person who alledges he has a better claim—under their statute, it is believed caveats have been used by those who supposed they had a better right, they being grantees, as well as by those, who were without grants. Why not then in Tennessee, suffer those who alledge they have better claims, in consequence of having grants, to use this remedy likewise ? The expression in our statute, is as general as that in the Virginia statute ; and we ought to extend the remedy to as great a variety of cases. Surely one of the strongest reasons that can be assigned, why the government should not grant land to B. is, that they have already granted the same land to A.

The second point relied upon is, that the venue ought to have been changed.

The substance of that section of the act of 1809, upon which this question depends is, that upon sufficient reasons being assigned, the venue may be changed, if application at, or before the first trial term is made. The whole question then is, when was the trial term in the circuit court; was it June or December ? In caveat causes the defendant is not called on for a formal defence in writing, hence no issue is made up, as in ordinary cases. This cause was commenced in the county court, it was there ready for trial; by consent the parties removed it to the circuit court, to be there tried. The first term there, after the papers were returned to the circuit court, may be considered the trial term. It has been urged that this case should be likened to the cases of appeals, and in these by the express words of the statute, there must be thirty days between the county and circuit courts, otherwise the papers need not be returned until a short period before the 2nd term succeeding the appeal. Several material distinctions exist between the cases ; this is done, by the consent of both parties ; the other, when one is unwilling ; in this, the original papers with a transcript of the record cf transfer, is delivered over to the circuit court; in the other a transcript of the whole record, is made out and carried up.

In case of appeal, it is made the duty of the appellant under a severe penalty to carry up the record ; in this, it is not made the duty of either party to carry up the papers. At

all events, this act of 1809, is so worded as to cause it, as probable the legislature intended the construction of it should be, as it has been construed by the circuit courts, as that it should be otherwise ; and its opinion upon this point ought not to be distrusted. But it has been urged, as this is a caveat case, the trial term never arrives, until the court makes up the issue, which was not in this case till December. This construction would be attended with had effects, and the legislature it is believed, never intended it should be given. The first trial term, is the first term at which, the cause might be legally tried. In cases where an issue is made up, it is the first term after that, at which the issue is so made ; in caveat cases, an issue is never trade until the case comes on for final hearing, which may, and frequently is, many terms after that, at which the hearing might legally have taken place. This might legally have been tried at June term. The inquiry might as that term have been made by the jury, therefore that was the first trial term in the circuit court.

The third point has been pressed with unusual earnestness, end to form an opinion whether a new trial ought to have been granted, we must of necessity look into the whole proof upon the merits of this case.

Before doing so, we ought to bring to our minds these considerations, that it is hardly possible, a revising court can have as full a view of the case, as the circuit court that superintended the trial had. We are bound down to the record; many circumstances often transpire in the course of a trial, deserving much weight, which can never be spread on the record—where the judge and jury, engaged in the trial, coincide in opinion, we ought to hesitate on means of in formation as to the matter of fact, which of necessity is much more limited ; and a judgment ought never to be reversed, for a supposed error on this point, unless in a very clear case ; no reasonable ground for support, ought to be left, else the opinion should never be disturbed : how then stands the merits of this question, on the main fact, that is Buchannon’s grant, covering this land ? The grant itself calls for 1800 acres of land, on the east fork of little river, above R. Edmondson’s 1280 acre tract—beginning on a red oak and running &c. The proof is, that what may with most propriety be called the east fork, and what has been notorious as the main east fork, since 1783, is ten miles from the piece claimed ; but it is likewise proved, that the grantee in 1783

called this the east fork, and at the same time Edmondson called this the first fork ; but upon this point, as to whether this be the correct water course, there can be but little doubt; this grant is for land on the same stream with Endmondson’s 1280 acres; his grant identifies the stream by description, the “ first fork,” and this, it is proved, is the first fork from the mouth ; Edmondson has but the one tract of this size—any one, looking for the land covered by Buchannon’s grant, must know it was the same stream with Edmondson’s ; by looking at Edmondson’s, he would be conducted to this stream ; this calls to lie above Edmondson’s. You must then first fix Eumondson’s ; this is done without difficulty, because it is to begin at the mouth of the fork, and run certain courses and distances, and its boundaries cannot be mistaken—still difficulties exist as to Buchannnons—it is to be above, but it does not say how far.

If the trees called for could be found, we would go to them and there fix the beginning; but no old mark of any description is found. Well, rather than destroy the grant, we shall say it shall be adjoining, or immediately above.— This has been considered correct as to entries thus worded, and with at least as much propriety, may this construction be applied to all grants, when there is nothing to counteract the presumption that the two tracts were intended to adjoin ; but how are we to find the precise point of beginning. If either of the upper corners of Edmondsons, called for trees of the same description that this does, and the other did not, that should be the corner—upon the presumption, that the trees once existed at that place, but that time, or some other cause had removed them. But there is no such call in Edmondsons. Well, if the upper line of Edmondsons, and the lower line of Buchanans were to be the same length, the one ought to be the entire boundary of the other. Even this will not apply to Buchannon’s case ; because, his lower line is shorter than that which it is to adjoin. Any shift then, rather than let the grant be lost ; it is to lie on both sides of the stream—we ought then to begin at the corner of Edmondsons, which will give the nearest, the same proportion of land, on each sides of the stream ; and by adopting this principle, and fixing the beginning according to it, although it will not include all the land claimed by Buchannon, yet it will include more of the caveat, than is now claimed, and therefore this verdict ought not to be disturbed.

In no case should a grant be void tor uncertainty, if by any reasonable shift, or contrivance, it can be fixed to a

given spot, and its boundaries ascertained. Why disappoint the expectations and wishes of the grantor and grantee ?— Nothing but disorder, confusion and injustice, will result from such a course, not assisting those who still have warrants to satisfy, to keep clear of the claims of others. If they do not, courts ought to be astute to prevent the destruction of old claims, that are honest, and long since ripened into grants. In the record, it is shown that prior to the making the entry of the caveatees, trees corresponding with those called for in Buchannon’s grant, were then lately marked as the beginning, and lines from those trees run and marked, and the grantees were claiming under this grant, to those boundaries thus marked. Now it is difficult to discern any fair, legal, or equitable principle, upon which the state could drive the grantees from this land, if they were to attempt it, unless they could show some other place, that would better correspond with the calls of the grant, which it is not pretended can be done. The grantees had paid for the land, the state had issued the grant, the place claimed corresponds with the general calls ; and might it not be fairly supposed, the trees called for, once existed, but that time had either destroyed the trees, and with them the marks, or that by some means the marks had disappeared, and that those new marks were only a renewal of the old boundary? If then, this would be the situation of the state, the grantor, how could Williams be in a better situation ? He made his entry after this new marking ; we must suppose him acquainted with the land and its then situation—he would see that place corresponded with the place mentioned in the grant ; might he not well suppose that those new marks, were only intended to perpetuate the true boundary, as originally made ? If so, why not send him some where else with this claim ? In this case, a decision of this point, is unnecessary ; the point may some time arise—let those interested look to it—it is for that purpose, it is now stated. For if such a case a Buchannon’s could be supported upon principle, it should never be destroyed for the want of a precedent.

Overton J.

Without giving a minute detail of the case,as has been done by the other member of the court, it is only necessary for me to offer such additional observations as have occurred. With the reasoning adopted I perfectly concur.

On the third position, in relation to the propriety of granting a new trial, impressions and opinions are entertained

respecting the proper method of ascertaining boundary in this case, which forms the main ground of decision with me. In fixing the boundaries of Buchannon’s grant for 1800 acres, the testimony of Wm. Edmondson is important. In the yeas 1806, long before Williams' entry was made, Buchannon requested him, to survey and mark his land.— Upon going on the ground he showed him a red oak, marked as a corner, apparently about twelve months before, for the south west corner of the 1800 acre tract; from thence he ran round the tract, agreeably to the calls of the grant, and marked the lines and all the other corners at that time. He did not see any other marks except at the red oak where they began. This red oak stands about 40 poles due west of Robert Edmondson’s south west corner. The survey as made by W. Edmondson, adjoins R. Edmondson’s upper, or north boundary, but his lower line being shorter than Edmondson’s upper one, of course, Buchannon’s south east corner, as masked by Edmondson, is in Robert Edmondson’s upper line, west of his north east corner ; and Buchannon's land lies on both sides of the water course called for, though not equally on both sides. The principal question is, are these boundaries of Buckhannon's grant sufficiently established, to prevail against the plaintiff. The principle of law is universally recognised, that every instrument of writing which passes an interest, shall have effect, and not be considered void for uncertainty, if by any reasonable means, the intention of the contracting parties can be effectuated. This brings us to consider the question.

First, as between the State and the grantee, and secondly, between the grantee, and the third intervening claim of the plaintiff.

First. The State has its officer, the surveyor, to survey, and mark out the boundaries of entries. He is a public agent, and the trustee of every man in society.(a) He acts independantly of the control of the enterer, & the manner in which he shall act, is directed, or regulated by the legislature. He certified in his plat, that he marked the corner and lines of Buck hannon’s land, at least the law required him to do it, and we must presume he did his duty. Before the plaintiff, made their entry, new marks for a corner were shewn, running from which the courses of the grant, land would be included, sufficiently notorious in point of conformity with the calls of the grant. The general description, both in the entry and the grant, reasonably agrees with the locality of the land included

by these new marks. Considering the situation in which this county was placed, in relation to the renewal of land marks, we are constrained as reasonable beings, and upon principles of law, to respect these boundaries. Previous to the act of 1806 c. 1 s. 21. there was no law in use, authorising the processioning of lands. The marks on corners were subject to continual and increasing loss, by lapse of time, if not otherwise. There was no public law directing the renewal of these marks, or of lines. It was scarcely to be expected in the nature of things, that proprietors would stand by and quietly submit to loss, perplexity, litigation, and trouble, from a source which they believed could be remedied by employing a surveyor to renew these corners or lines. They did so, and we know it was a common practice* previous to the year 1806, when a processioning law was passed. The corner made for the 1800 acre tract, was made before the passage of the act of 1306, or in other words, these new marks on the red oak were made before that time: a little before, an Indian treaty had opened that country, which had been reserved as Indian hunting ground, and for a long time barred from access by the whites. From 1792 when the survey of Buchannan was made, until 1805, the corner originally marked might have fallen down, or the marks destroyed designedly or accidentally. It is a presumption of law, that a corner was once made ; and knowing the usage and practice of the country, it is a fair presumption in favor of right, that these new marks, were nothing more than the renewal of the old : at all events, as between the state and its grantee, this presumption is incontrovertable, unless the state, or some other person claiming under it, can shew other older corners or lines, including lands which answer the description in the grant. Aside from these considerations, if the surveyor failed to do his duty originally, which cannot be presumed, as between the state and the grantee, the state would not be permitted to dispute boundaries marked out by the party himself agreeing with the calls of the grant, unless it could show a survey originally made. The neglect of a surveyor, being a public trustee, should not injure a third person. 2 Caines C. E. 48. In the case of Lechmere vs. the Earl of Carlisle 3 P. W. 215, it is said " the forbearance of the trustees in not doing what it was their office to have done, shall in no sort prejudice the Cestui que trust; since, at that rate, it would be in the power of trustees, either by not doing or by delaying to do their duty, to affect the lights of other persons, which can never be maintained. Wherefore, the rule in all such cases is, that what ougnt to have

been done, shall be taken as done ; and a rule so powerful it is, as to alter the very nature of things ; to make money land, and on the contrary turn land into money.”

“ Thus, money articled to be laid out in land, shall be taken as land, and descend in the heir ; and on the other hand, land agreed to be sold, shall be considered as personal estate.” As between individuals, they are competent to locate and survey their own lands.(1) The law delights in the settlement of boundaries.(2) In Pennsylvania it has been determined, that a claimant can have a second survey made, including different lands from the first, provided, such second survey be made on the lands of the state ; or in other words, on which no other person has acquired a title, either legal or equitable(3) The state will not be permitted to dispute the second survey, if no person be injured. So, of a survey, previously to an entry of the same land, by the person for whose benefit the survey or plat was applied(4) Why then, may not marks made after the issuance of a grant, where it is correctly done, be obligatory on the state, as well, as in the case where they are made even before the claimant has a warrant of survey.

When we perceive the efforts, which have been made by counts in every county, to prevent the destruction of contracts, by uncertainty, particularly as respects locality and boundaries of land granted, no doubt can he entertained, that the state will not be suffered to dispute the red oak corner.(5)

Secondly, how far is the case altered by the intervention of the interest of a third party, subsequently acquired from the same source. The record shows, that the locator of the plaintiffs entry had notice.(6) As respects surveys on vague entries this question has never been decided, nor is it intended to give any opinion on it in this case, because it is believed, that situated as the plaintiffs are, they stand in no better situation than the state, under which they claim. It is seen, that the state could not claim the land from Buchannon. At the time Williams's entry was made, there were marked corners and lines, though lately made, they agreed with the calls of Buchannan’s grant, which possessed sufficient certainty ; and the enterer honesty designing to stear clear of other men’s rights, which were prior in date as well as to acquire rights of his own, ought naturally to conclude these were the renewed marks of Buchannan’s grant, as they accorded with the grant, which in contemplation of law he had seen.

Therefore, he ought to have held his hand, and taken land elsewhere. According to the principles of equity, Buchannan surely ought to hold this land ; we believe his legal right covers it ; and it would be contrary to the numerous decisions to be found in the books, that the plaintiffs, who have only an equitable claim, should take it from him.

The judgment must be affirmed.