1 Tenn. 258 | Tenn. Sup. Ct. | 1807
In Equity. — The plaintiff purchased 400 acres of land of the defendant, to be within four miles of Duck River; upon this purchase he paid a part, and gave his note for the balance. Upon this note a judgment had been obtained.
The object of the bill was to enjoin this judgment, and further relief. The bill stated that the plaintiff was a stranger to the situation of the lands in this country, and did not know but the land he was buying might be possessed and enjoyed, when in fact it lay within the boundary reserved for the Indian hunting grounds, within which no person could settle *259 agreeably to the act of Congress. Independent of this cause, the defendant has not any title to the land sold him, so that it is not in his power to convey.
The answer of the defendant stated generally that it was in his power to convey, without stating how or producing any title papers. The answer was excepted to, because it did not state how he was able to make a right. A second or further answer was put in, to which there was a replication. The defendant has not shown us how he can make a title, though he has been particularly called upon to do it. The law is that the title deeds themselves, or copies, would be higher evidence than the defendant's oath, in the general way which he has sworn; and as the plaintiff has it not in his power in this case to show that the defendant cannot make a right, nor can evidence be expected from him to that effect; the defendant ought to prove the affirmative, unless he had produced or referred to deeds of record. As he has not done it, let the money received be refunded, and the defendant perpetually enjoined from receiving the balance.
