Supreme Court of Tennessee.
____.
APPEAL.
1. LAND LAW. Caveat. Issuance of grant.
Under the laws of North Carolina formerly in force here, a caveat is expressly authorized relying upon a superior title, to prevent the issuance of a grant, and it is hardly possible that the Assembly of Tennessee in 1807 intended to lessen the number of cases to which this remedy shall be applied. (Post, p. 122.)
2. COURTS. Trial term.
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. (Post, p. 123.)
3. SUPREME COURT PRACTICE. Reversal. Action of inferior court.
Where the judge and jury coincide in opinion, this court will hesitate, for a judgment will not be reversed for a supposed error unless in a very clear case. (Post, p. 125.)
Statement of the Case by the Court:
This was a caveat commenced in the county court of Lincoln, by the appellee against the appellants, to prevent the issuance of a grant.
At the May term 1812, by consent of the parties, the cause was transferred to the circuit court of Lincoln County, which sat in June. At the first term a motion was made to dismiss the caveat because the caveator had a grant, which motion, at the December term, was overruled. The appellants filed an exception to this opinion, and at the same time moved for a change of
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venue. This motion was also overruled upon the ground that it ought to have been made at the June terms, and an exception to this opinion was also taken.
A jury empannelled to find facts in the cause, found for Buchanon.
1. That on the 17th day of December, 1794 a grant for the land in question issued from the State of North Carolina to Robert Buchannon, describing the same as follows, “1800 acres of land, on the east fork of Little River, beginning above Robert Edmundson’s survey of 1280, at a black oak and red oak, running east 379 poles, to a stake, thence North 758 poles to a stake, thence West 379 poles to a stake, thence South 758 poles to the beginning.”
2. That the land surveyed for the heirs of John Joseph Williams interfers with the land claimed by Buchanon as is set forth in the caveat to the amount of 300 acres.
3. That there is a water course called the east fork of Little River, and on this fork are Robert Edmundson’s survey and grant.
4. That Edmundson had no other survey or grant for 1280 acres in this state.
5. That on the 2nd day of September 1807 the survey of Robert Edmundson was generally known by the inhabitants of the country where the same is.
6. That the land in controversy were then generally known as the land of Buchanon, and especially by Thomas Hickman the agent and locator for the heirs of John Joseph Williams.
7. That nearly an equal quantity of the land claimed by Buchanon’s grant lies on east side of Buchanon’s creek, which is the same called the east fork of Little River in the grant for 1800 acres.
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8. That the stream called the east fork of Little River in Buchanon’s grant, is the same called for in Edmundson’s grant.
9. That the lines of both these tracts were marked and were notorious as early as June or July 1807, and that sundry persons, as early as 1806 were settled on the land granted to Buchanon, claiming under him.
10. That the east fork of Little River, is the first creek above the mouth of Little River, by which description it is called for in Edmundson’s grant.
11. That Edmundson’s grant begins at the mouth of the first fork from the mouth of Little River.
For the appellant it was found:
1. That in the year 1783 the east fork of Cane Creek acquired the name of the east fork, and from that period down to this time has been notorious by that name and by no other.
2. That said east fork is not the creek in question, but much longer and larger; and that Little River and Cane Creek are the same.
3. That said east fork forms a junction with the middle fork of Cane Creek or Little River; which middle fork is about the same size and length of said east fork.
4. That some distance below the junction of said forks constituting Little River, there is another fork called the west fork, and nearly of the same size; and below that is a creek now called Williams’ creek, and below that is a creek now called Craigheads’ creek.
5. That the creek in question is about two miles in length beyond the north boundary of Buchanon’s tract as claimed, and not more than one tenth as large as Little River.
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6. That Buchanon’s land was never actually surveyed before the grant issued, nor is any line or corner proved to have been marked previous to 1807.
7. That in the plat of Buchanon’s land annexed to his grant, there is no representation of any water course.
8. That no lines or corners of the tract of 1280 acres granted to Edmundson were marked previous to 1806.
9. That Williams’ heirs, on the 2nd day of September 1807 entered the land in question by a special entry, which has been truly surveyed.
10. That the place claimed as the beginning corner of Buchanon’s is about 40 poles west of the north west corner of Edmundson’s grant as claimed; and the Southeast corner of Buchanon’s grant as claimed, is about ten rods east of the creek in question, now called Buchanon’s creek, and 80 poles west of the north east corner of Edmundson’s land as he claims it.
11. That Edmundson’s grant is dated the 17th December 1794.
12. That if Buchanon’s tract were surveyed adjoining Edmundson as claimed, making the creek in question the centre of a base of Buchanon’s survey, the interference with the coveatus would not have been so much as at present by one third.
13. That the plats and certificates of survey annexed to the grants of Edmundson and Buchanon are dated the 11th November 1792.
A bill of exception to an opinion of the court overruling a motion for a new trial, disclosed that upon the trial it had been proved by William Edmundson that in October 1800 he knew Robert Edmundson’s tract, and in July 1807, surveyed it, beginning at the mouth of the first creek about the mouth of Little River. He also run out and marked the lines of Buchanon’s land at the same
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time, but he found no old marked lines or corners to either of the tracts. When he began to run Buchanon’s land, he found a red oak and black oak, which seemed to have been marked about a year before. He also proved that the creek on which he surveyed is the first fork on the east side above the mouth of Little River, and that about ten miles higher up is the east fork of Little River, properly so called. Robert Edmundson proved that he had no other tract of 1280 but the one here mentioned, which begin at the mouth of the first fork of Little River or Cane Creek. He heard the persons who were acquainted in this part of the country, as early as 1794, call the place where the tract of 1800 acres is surveyed and claimed, Buchanon’s land. After the lines were run by William Edmundson the same was generally known throughout that part of the country, and it was known to Hickman before he made Williams entry. He also proved that in 1784, what is now called Buchanon’s creek, was generally called the first fork of Little River, and by some it was than called the east fork.
The bill of exception also disclosed other evidence, but it may be seen by a reference to the facts found by the jury, without a recapitulation here.
The circuit court having decided in favor of Buchanon, Williams heirs appealed to this court in order to have the judgment reversed.
HAYES TRIMBLE, for the appellants, argued, that a caveat could not be entered by a person claiming under a grant.
The Act of 1807, Ch. 1, Sec. 47 and 48, authorizing proceedings by caveat, evidently intended only to provide for settling disputes between persons who had proceeded in perfecting their titles no further than a survey.
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The Act of 1809, Ch. 49, Sec. 17, authorized a change of venue, if application was made at the first trial term. In caveats, the first trial term, is the term when the court are first informed that a jury will have to be summoned to try facts. To summon a jury is not a matter of course in caveat cases; because the parties may, and frequently do, agree to the facts. It is true, the cause stood for trial at the June term, but then the court were not asked for a jury until the December term, at which time a regular application was made for a change of the venue. It would seem evident, therefore, that the court erred in this point.
But the great objection is that from the testimony, the court erred in deciding in favor of Buchanon. His grant is wholly vague, and can cover land no where. It was never surveyed previous to the issuance of the grant, nor does the grant contain any description by which the locality of the land can be ascertained. Were this an entry, the court might by construction fix the boundaries, but that privilege does not extend to a grant, which must always fix a certain boundary, or it is void.
HAYWOOD and WHITESIDE, for the appellees replied, that the true construction of the act of 1807, authorizing proceedings by caveat as well applied where the coveator claimed under a grant as where he did not. No good reason could be assigned why the circumstance of having a grant should place the grantee in a worse situation than if he had no grant. The real object of the act was to authorize a proceeding in a summary way, and to nip the spirit of litigation in the bud.
The court, it was urged, did right in refusing to change the venue. The first trial term was the term when the cause was first in a situation to be tried. It is true, at the
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June term, no jury was demanded by either party; but the cause was then in a state for trial, and if it had been urged, a trial would have been had. That was the period when the application for a change of the venue ought to have been made, and not afterwards. As to the objection that Buchanon’s grant is vague, not much difficulty can arise from it.
It is not natural whether we are able now to prove an actual survey before the grant issued, or not. We now show marked lines and corners, which appear older than the date, of the appellee’s claim, corresponding with the calls in the grant. One thing is therefore certain, that before the date of the adverse claim, our lines, as now claimed, has become certain, and when we add to this the principle, that in all cases the court will make the grant effectual if possible, the objections to Buchanon’s claim ought to cease.
WHITE, J.
The record shows that this was a caveat filed by Buchanon, to prevent the plaintiff from obtaining a grant upon an entry and survey made under the laws of Tennessee, because it is alleged Buchanon has a better title to the same land derived under a grant from the state of North Carolina dated in the year 1794 and surveyed in 1792. The caveat was filed in the county court of Lincoln, and by the consent of the parties, at May session 1812, was transferred to the circuit court of the same county for trial. At June term 1812 of the circuit court, the cause was continued upon a motion to dismiss the caveat, and at December term the motion was overruled. The counsel for the appellants then moved that the venue might be changed to some adjoining county.
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The court overruled the motion, stating that the matter of the affidavit upon which the motion was founded was sufficient, but that the application came too late. A jury was then sworn to ascertain the material facts not argued by the parties. They returned a verdict, in which many facts were found, amongst which were the following: that Buchanon had a title regularly derived from the state for the land in dispute — that it lies on the first fork of Little River which empties in on the east side, and adjoins Edmundson’s 1280 acre tract which lies on the same stream, beginning at the mouth thereof; that Edmundson had no other 1280 acre tract in the country.
A new trial was moved for, but the motion was overruled, and judgment rendered in favor of Buchanon. A bill of exceptions was taken to the opinion of the court overruling the motion, and the cause removed to this court. And now three points are made by the appellants.
1. The circuit court when applied to ought to have dismissed the caveat.
2. The venue ought to have been changed.
3. A new trial ought to have been granted.
Upon the first point we have been referred to the Acts of 1807, Ch. 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 a grant to the land. This argument has been answered in a manner entirely satisfactory to the court. The words in the first part of the section are sufficiently comprehensive to include this case, and it would be unjust to exclude it on account of general words in the close of the 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
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this country, a caveat is expressly authorized in such cases as this; and it is hardly possible that 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 alleged the caveator has the better right. Under our statute it is given to every person who alleges 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 then, in Tennessee, not suffer those who allege they have better claims, in consequence of having grants, to use the 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 it had 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 is made, at, or before the first trial term. 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 in for a personal defense in writing. Hence no issue is made up as in ordinary cases. This cause was commenced in the County Court; it was then ready for trial; by consent the parties transferred it to the circuit court to be there tried. The first term thereafter the papers were returned to the circuit court may be considered the trial term. It has been urged, that this case should be likened
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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 court, 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 where one is unwilling: in this, the original papers is delivered over to the circuit court; in the other, a transcript of the whole record is made out and carried up.
In cases of appeals it is made the duty of the appellant, under a severe penalty, to carry up the record; but in this case it is not made the duty of either party to carry up the papers.
At all events, the Act of 1809 is so worded as to leave it, as it is probable the Legislature intended, as the circuit court have decided; and the opinion of the circuit courts upon this point ought not to be disturbed.
But it has been urged as this is a caveat case, the trial term never arrives until the court make up the issue; which was not, in this case, until December.
This construction would be attended with bad 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 made until the cause comes on for final hearing, which may, and frequently is, many terms after that at which the hearing might have legally taken place. This cause might legally have been tried at June term — the inquiry might at that term have been made by the jury; therefore, that was the first trial term in the circuit court.
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The third point has been pressed with unusual earnestness; and to form an opinion whether a new trial ought to have been granted, we must of necessity look into the whole of the 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 who superintended the trial. We are bound down to the record. Many circumstances often transpire in the course of a trial, deserving much weight, can never be spread upon the record. Where the judge and jury engaged in the trial coincide in opinion, we ought to hesitate; our means and information as to the matter of fact, are a necessity, 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 stand the merits of this question, viz., whether Buchanon’s grant covers this land?
The grant itself calls for 1800 acres of land, on the east fork of Little River, above Robert Edmundson’s 1280 acre track — beginning at a red oak, running and etc. The proof is, that what may with propriety be called the east fork, and what has been notorious as the main east fork since 1783, is ten miles from the place claimed; but it is likewise proved that the grantee in 1783 called this the east fork, and at the same time, Edmundson called it 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 upon the same stream with Edmundson’s 1280 acres — his grant identifies the stream by description; as, the “first fork” and this is proved to be the first fork from the mouth of Little River. Edmundson
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has but one tract of this size; any one looking for the land covered by Buchanon’s grant must know it was on the same stream with Edmundson’s. It calls to lie above Edmundson — You must then first fix Edmundson — and this is done without difficulty, because it is to begin at the mouth of the fork, and runs certain courses and distances, so that the boundaries cannot be mistaken. Still difficulties exist as to Buchanon’s land. It is to lie above; but we are not told how far? If the trees called for could be found, we could go to them, and there fix the beginning; but no old mark of any description is found.
Well, rather than destroy the grant, we will say it shall lie 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 where there is nothing to counteract the presumption that the two tracts were intended to adjoin.
But how are we to fix the precise point of beginning? If either of the open corners of Edmundson 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 existed at the place, but that time, or some other cause, had removed them; but there is no such call in Edmundson’s grant. Well, if the upper line of Edmundson, and the lower line of Buchanon were to be the same length, the one ought to be the entire boundary of the other. Even this will not apply to Buchanon’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 that corner of Edmundson which will nearest give the same proportion of land on east side of the stream; and by adopting this principle, and fixing the
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beginning according to it, although it will not include all the land claimed by Buchanon, yet it will include more of the appellants than is now claimed, and therefore the verdict ought not to be disturbed.
In no case should a grant be made void for 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 both the grantor and grantee? Nothing but disorder, injustice, and confusion will result from such a course. Let those who still have warrants to satisfy keep clear of the claims of others. If they do not, the court ought to be astute to prevent the distinction of old claims that are honest and have long since been ripened into grants.
In this record it is shown that prior to making the appellants entry, trees, corresponding with those called for in Buchanon’s grant, were then lately marked as the beginning, and lines from those trees run and marked; and the grantee was claiming under this grant to those boundaries thus marked. Now, it is difficult to find any fair, legal, or equitable principle, upon which the state could drive the grantee from this land, if it were attempted, unless some other land could be shown which would better correspond with the calls of the grant — and that is not pretended. The grantee has paid for the land; the state has issued a grant; the place claimed correspond with the general calls — and might it not be fairly supposed that the trees called for, once existed, but 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, how can the appellants be in a better situation? The entry was made after this new marking; we must suppose
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the locator acquainted with the land and its situation; he would see the place correspond with that mentioned in the grant, and 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 his claim?
In this case, a decision of this point is unnecessary. The point may sometime arise. Let those who are interested look to it; it is for this purpose it is now stated. For, if such a case as Buchanon’s could be supported upon principle, it should never be destroyed for want of a precedent.
OVERTON, J.
Without going into a minute detail of the case, as has been done by the other members 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 are entertained respecting the proper method of ascertaining boundary in this case, which form the main ground of decision with me.
In fixing the boundaries of Buchanon’s grant, the testimony of William Edmundson is important. In the year 1806, long before Williams entry was made, Buchanon requested him to survey and mark his land. Upon going upon 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 run 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 he began.
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This red oak stands about forty poles due west of Robert Edmundson’s south west corner.
The survey as made by William Edmundson adjoins Robert Edmundson’s upper or north boundary; but his lower line being shorter than Edmundson’s upper one, of course, Buchanon’s south east corner, as marked by William Edmundson is on Robert Edmundson’s upper line, west of his north east corner. Buchanon’s land lies on both sides of the water course called for, though not equally on both sides.
The principle question is, are these boundaries of Buchanon’s grant sufficiently established to prevail against the appellants?
The principle of law is universally recognized, that every instrument of writing, which passes an interest, shall have effect, and not be made 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 appellants.
1. The State has its officers, the surveyor to survey and mark out the boundaries of entries. He is a public agent, and the trustee of every man in society 1 Caines 421. He acts independently of the control of the enterer, and the manner in which he shall act is directed or regulated by the legislature. He certifies in his plat that he marked the corners and lines of Buchanon’s land; at least, the law required him to do it, and we must presume he did his duty. Before the plaintiff made his entry, new marks for a corner were shown, running from which the courses of the grant, land would be included sufficiently notorious in point of conformity with the call of the grant. The general description, both in the entry and grant, reasonably
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agree with the locality of the land included by these new marks. Considering the situation in which this country 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, ch. 1, sec. 21, there was no law in use authorizing the processioning of lands.
The marks or 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 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 removed by employing a surveyor to renew these lines and corners. They did so, and we know it was a common practice previous to the year 1786, when a processioning law passed. The corner made for the 1800 acre tract, was made before the passage of the Act of 1806, 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 grounds, and for a long time barred from access by the whites. From 1792, when the survey of Buchanon was made until 1805, the corner originally marked might have fallen down, or the marks destroyed, designedly or accidently. 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 support of right that these new marks were nothing more than a renewal of the old; and at all events as between the State and its grantee this presumption is incontrovertable, unless the State or some person claiming made it can show other old lines or corners, including lands which answer the description
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in the grant. Aside from these considerations, if the surveyor had 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, as the party 2 Cairn C.E. 48, in the case of Leckmore v. 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 rights of other persons, which can never be maintained. Wherefore the rule in all such cases is, that what ought 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 to 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 (3), 7 Johns, 1-12-2-28; 4 H M 194.
The law delights in the settlement of boundaries (4), Newl 109.
In Pennsylvania, it has been determined that a claimant can have a second survey made, including different land from the first, provided such second survey be made on the land of the state; or, in other words, on which no other person had acquired a title, either legal or equitable. (5), Add. Rep. 251: 2 Bin. 39.
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The State will not be permitted to dispute the second survey if no person can be injured. So if a survey previously to an entry of the same land, by the person for whose benefit the survey was applied. (6), 1 Bin. 227.
Why then may not marks made after the issuance of a grant (where it is covertly done) be obligatory on the State, as well as in the case where they are made even before the claimant has a warrant or entry?
When we perceive the efforts which have been made by courts in every country to prevent the destruction of contracts by uncertainty, particularly as respects the locality and boundary of land granted, no doubt can be entertained that the state will not be suffered to dispute this red oak corner. (7), Hardin 292, Hughes 147, 3 Cairns 293, 1 Bin. 247; 2 Bin. 39; 5 John 450, 2 Bay 521; 1 Bay 247; 1 Bin. 148; Sit 30; Ten. Rep 463, 529; 3 Bin. 28.
2. 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 plaintiff’s entry had notice. (8), 3 Bin. 28, 36.
As respect 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, situated as the plaintiffs are, they stand in no better situation than the state under which they claim. It is sure that the State could not claim the land from Buchanon. At the time Williams’ entry was made, there were marked corners and lines; though lately made, they agreed with the calls of Buchanon’s grant, which possessed sufficient certainty and the enterer, honestly designing to steer 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,
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where the renewed marks of Buchanon’s grant, as they accorded with the grant which he had seen.
Therefore, he ought to have held his land, and taken land elsewhere. According to the principles of equity Buchanon surely ought to hold this land. His legal right covers it; and it would be contrary to the numerous decisions found in the books, that the plaintiffs, who have only an equitable claim, should take it from him.
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