Love v. Simms’s lessee, 22 U.S. (9 Wheat.) 515 (1824)

Love, Plaintiff in Error, v. Simms’s lessee, Defendant in Error.

A. question, under the registry acts of Tennessee, whether a junior conveyance registered, should take precedence of a prior unregis tered deed. Held, that the registry did not, under the circum stances, vest the title against the elder deed.

ERROR to the Circuit Court of West Ten nessee.

This cause was argued by Mr. Eaton, for the J^b- &sd.

1824. plaintiff in error,” and Mr. Harper, for the de'“^^.^, fendant in error.

Mr. Justice Johnson delivered the opinion of March lOlh. the Court<

This cause comes up from the Circuit Court for the district of West Tennessee. The judgment in that Court is in favour of the plaintiff in eject ment, and error is brought to reverse that judg ment, on the ground that the Court below in structed the jury that the plaintiff there had the better title, and ought to recover. The facts of the cause are exhibited in a bill of exceptions, and, so far as are necessary to illustrate this opinion, may be stated thus:

One Stockly Donaldson obtained a grant of lands of the State of North Carolina, in that re gion of territory which lies west of the Cumber land mountain, and now composes apart of West Tennesse. This grant issued upon an entry made in the office of John Armstrong.

After obtaining the patent, Donaldson executed a power of attorney to one Grant, to sell this land, and Grant accordingly sold it to one Alli son, and executed a conveyance to him in due form. This deed bears date in 1795. But it ap pears, that two years previous to this sale, Do naldson himself had executed a title for the same land to one Adair. And the plaintiff in ejectment now makes title through Allison, while the de-

If the case rested here, there would be no dif v.

ficulty in it; but, by the laws of North Carolina, no deed passes an estate, unless it be recorded in the county in which the land lies, and that within twelve months of its date. In this instance, the subsequent deed claims precedence, on the ground of prior registration, after the twelve months pre scribed to the prior deed, and, of consequence, at a time when the prior deed was supposed to be altogether void, for want of registration.

On the point of registration the facts arc these. The act of 1715, which is the registering act alluded to, has been suspended, as to the limitation of time, almost ever since its enactment. A similar provi sion in the land laws of that Stale, on the subject of registering grants, has also been the subject of a similar suspension. But as there was no County Court embracing within its jurisdiction that re gion of country in which this land lay, a new pro vision is introduced into the suspending act of 1788, by which it is enacted, that, persons owning lands of this description, shall register them in the counties in which they reside; and a proviso, as to non-residents, is inserted, in these words: “ Provided always, that persons owning such lands in this State, west of the Cumberland mountain, and not residing therein, shall register their grants for such lands in Hawkins county.”

The holder of the junior conveyance from Do naldson, availed himself of this proviso, or (more properly speaking) enacting clause, and recorded

1824. it, with all his muniments of title, in Hawkins ^^ county. This took place in the year 1797, but v. the defendant below, the holder of the senior title Simms, from Donaldson, did not record his title until the year 1806, when, the State of Tennessee having created a county embracing this land, he com mitted his deed to registration in the county where the land lay; which was also done by the plaintiff below, four years afterwards. If, then, the regis tration in Hawkins county was a valid registration, and the effect of it was to vest the estate, to the prejudice of the prior conveyance from Donaldson, the plaintiff had the better title, and the charge was correct.

This question will now be examined.

It is obvious, that to attribute to the registra tion in Hawkins county the effect here contended for, it is necessary,

Ed ri?

which the conclusions of this Court on otherv.

Sun tils.

points, render now unnecessary to be pursued ;

end the subject is only noticed, to avoid the im plication, that this Court has acquiesced in such a construction of the clause in question.

2. To give effect to the registration in Hawkins county, it is also obvious, that the 5th section of the act of 1738 must have continued in force until 1797, when the deed to Allison was recorded in that county. And this must either be inferred from the words of the section itself, or must be the effect of the subsequent reviving acts.

In their ordinary and direct signification, the words of the section in question certainly import perpetuity; and did it stand alone, such would be the eflect given to it, whether in its operation it be considered imperative or remedial. But the context necessarily limits its duration* Both the title and preamble of the act, declare it to be to re lieve persons, who would be sufferers from neg lecting to record their muniments of title in due time. And it would be hard to conceive a reason why grants and mesne conveyances elsewhere, should be forced upon record within a limited lime, and those for lands in this district of coun try left without limitation as to time. While there was uo oilice assigned for their registration, a rea son existed ; but that reason is taken away, when we admit that a proper office was opened for that purpose.

The question, however, does not rest, here : a

1824. recording law, unlimited in point of time, and un

affected by penalties, is an absurdity, since it de

V. stroys its own views, when it leaves the individual

at large, to record or not, as he pleases. And if an additional proof be wanting, to indicate the sense of the Legislature in passing this section of the act of 1788, it is to be found in the reviving act of North Carolina, of 1790, in which it is express ly declared, that the act of 1788 would expire, if not then revived. The idea, therefore, of its be ing perpetual, in its own provisions, is rejected; and it remains to inquire, whether it was conti nued in force up to 1797, when the deed to Allison was recorded in Hawkins county. This must depend upon the several reviving acts passed sub sequent to 1788. And it is perfectly clear, upon collating those acts, that the 5th section of the act of that year had expired, and was dropped, be fore Allison’s deed was registered. In 1790, the State of North Carolina passed a law, reviving, for two years, the act of 1788, with all its provisions ; but the State of Tennessee had previously been separated from North Carolina, and the provisions of the 5th section of the act of 1788, appear never to have been taken up in Tennessee.

The act which purports to revise the act of 1788, v. is that of Tennessee, of 1794 ; and by that, the Simms* right of recording out of the county where the land lies, is wholly dropped. The general words of the act of North Carolina, in 1790, arc not adopt ed ; but the right of recording again, is explicitly brought back to the general policy of the country, that of recording titles in the county where the land lies.

The question will, no doubt, here occur, whether the Legislature could have intended to impose this duty, while there was no county, and no Court, in which such record could be made.

The answer is, that the question is here imma terial, since it is enough for ail the purposes of the defendant below, if the obligation to record did not exist at all, until there was a county establish ed ; but were it otherwise, the only question here is, whether the provisions of the act of 1794, or any other act prior to 1797, revives the supposed right to record in Hawkins county; whether it grants a privilege, or imposes a duty, as to that particular county, and the right of recording in any other place than where the land lies.

The act of 1796, which is that under the imme diate protection of which it is necessary that Alli son’s deed should be sustained in favour of the plaintiff be Icw, contains a simple revival of the act of 1794, without any farther provision. Its mean ing and effect, therefore, must be toad upon the face of the latter act.

V«,. IX. eg

1824. There were some other points made in tiie ar gument, which, as the cause must be sent back, it Love

v.

is proper to notice Simms.

At one, if not two periods, of the early history of Tennessee, there occurred an interval of time, du ring which the suspending laws, ns they arc called, did not exist, and that of 1715, of course, operated upon all cases within.it. That State passed from tiie jurisdiction of North Carolina in 1790, but its first territorial Legislature did not meet until 1794. By a provision of the act of separation, the laws of North Carolina became the laws of Tennessee, until repealed by the Legislative authority of the ceded territory, or, it is presumed, until they ex pired by their own limitations. Whether an hia tus occurred in these suspending laws, at the in terval of time, is immaterial in this cause, since the junior deed did not come into existence until after the passage of the act of 1794. But between the sessions of 1800 and 1801, there did occur a chasm in these suspending laws, which chasm, the defen dant in error contended in argument, put an end to the interest claimed under the prior deed alto gether.

^v^

the law was in force. We give no opinion on the

Love

operation of the act of 1715,. on titles to those V.

Simms.

lands which were so situated that it was impossi ble for the provisions of the act of 1715 to be com plied with; that is, those lands which lay in no designated county. Tn the present instance, the land in controversy was not included within a county line, until the year 1801. As both deeds were registered in the proper county, after the chasm occurred, they are both equally affected by it; and it has no bearing upon their interests, as made out under the registration where the land lies.

Another point made in argument, was, that the defendant could not protect himself under the title to Adair, without connecting trimselfwith it. Upon recurring to the words of the charge, we find it to be, that the plaintiff below had the better title. From this, an inference undoubtedly arises, that if the defendant below had exhibited a better title, the plaintiff*could not recover, even though the de fendant did not show that better title to be trans mitted to himself.

Since the registration in the county where the land lies, and which is the only registration deem ed valid in this cause, gave the prior registration to the prior deed, and thus took awTay every claim to precedence from the deed under which the plaintiff below made title, the Court must be ad judged to have erred in its charge upon that sub ject. On the implied proposition, that the better title might be set up, as a shield against the plain-

1824. tiffs recovery in ejectment, even though the de fendant does not show that better title in himself, Lave

v. we will limit ourselves to the following remarks : Simms.

The rule of law, that a plaintiff' must recover by the strength of his own title, and not the weak ness of his adversary’s, must be limited and ex plained by the nature of each case as it arises. Since the rule is universal, that a plaintiff in eject ment must show the right to possession to be in himself positively, and it is immaterial as to his right of recovery, whether it be out of the tenant or not, if it be not in himself, it follows that a tenant is always at liberty to prove the title out of the plaintiff, although he does not prove it to exist in himself. Possible difficulties may be sug gested as to the application of this principle to mere tort feasors or forcible disseisors; but be sides that such cases, being generally provided for under statutes of forcible entry, must be of rare occurrence, it is time enough, when they occur, to consider what exceptions they present to the general principle.

The last point proper to be noticed, is that made in the former argument, on the question oi revocation of the power of attorney under which the junior deed was executed.

Judgment reversed.

Judgment. This cause came on to be heard, &c. On consideration whereof, this Court is of opinion, that the said Circuit Court erred in in structing the jury “ that the lessor of the plaintiff had the better title to the land in controversy.” It is, therefore, adjudged and ordered, that the judgment of the said Circuit Court in this case be, and the same is hereby reversed and annulled: and it is further ordered, that said cause be re manded to the said Circuit Court, with instruc tions to issue a venire facias de noro.

Slewart

(Practice.]

Ingle.