Stockard v. McGary

120 Tenn. 180 | Tenn. | 1907

Mr. Chief Justice Beard

delivered the opinion of the Court.

This is an ejectment bill. The complainant deraigns title to the land in question from a grant to himself and Thomas Voorhees, bearing- date 7th day of January, 1887. This grant contains the recital that it was issued “in consideration of an entry made in the entry taker’s office of Lewis county on the 29th of December, 1886,” and it described the land as being in the Eighth civil district of Lewis county.

The defendant deraigns title through mesne conveyances from a grant to James E. and W. E. Voorhees. dated the 10th day of August, 1889, based on an entry made in the entry taker’s office of Wayne county on the 5th day of March, 1888. While having a younger entry and grant, the 'defendant insists that complainant’s action must fail, because the weight of the extrinsic testimony in the case is that at the time his entry was made and grant issued, and up to the year 1897, thereafter, the land covered by these grants lay within the limits of Wayne county, and therefore that complainant’s entry was void, and this being so, the grant based thereon was equally void.

From the year 1844, when the county of Lewis was established by legislative act, up to the year 1897, the record shows that there was much confusion in the minds both of the officers of Lewis county and of the citizens of both that county and of Wayne as to the exact location of that part of the line separating these two counties which ran in the immediate neighborhood of the property in controversy. It is evident that many persons living in the immediate community understood that this land and the land surrounding it were within the limits of Lewis county, while others believed that the boundary line between these two counties divided this tract with other tracts in that vicinity. That the entry taker who received the entry upon which the grant of complainant was issued believed that this tract lay across this line and in both these counties is evident, not only from the entry itself, but also from tbe fact that, having noted the entry in his office in Lewis county, soon thereafter he mailed or sent it either to the entry taker or surveyor of Wayne county to he there entered. We are satisfied that this was done before the issuance of the grant to complainant and Yoorhees, yet the record leaves it in great doubt, if in fact it does not make it certain, that the entry was never recorded in the entry taker’s office of Wayne county.

While we cannot say with absolute certainty .on this record that no part of this tract lay in Lewis county, yet we think we must concede that the weight of the testimony is that it wasi situated altogether within the limits of Wayne county, and therefore that the entry taker of Lewis county was without authority to receive and record the entry in his office. The question then presented is: Can the defendant in this action at law avail himself of this fact to avoid complainant’s grant? In other words, in the face of a grant, issued by officers representing the State, conveying confessedly vacant and unappropriated land, authenticated by the great seal of the State, will the defendant, a junior grantee, be permitted to avoid the older grant upon the ground that the entry with regard to which it purports to be issued was made in the office of an entry taker not empoAvered to receive it?

' The counsel for the defendant — the appellant in this case — maintains that these questions are conclusively answered in favor of his contention by the leading case of Polk v. Wendal et al., which was twice decided by the supreme court of the United States; the opinion on the first appeal being delivered by Chief Justice Marshall and on the second by Mr. Justice Johnson, and the first opinion reported in 9 Cranch, 87, 8 L. Ed., 665, and the last in 5 Wheat., 293, 5 L. Ed., 92. This case involved a controverted question of land law arising upon certain statutes of the State of North Carolina, and the two opinions delivered therein have always been regarded as of great authority, especially in the courts of Tennessee and North Carolina. In that case the plaintiff claimed under a grant for five thousand acres issued by the State of North Carolina in the year 1800 to William Polk. The defendants claimed under a grant for twenty-five thousand acres issued by the same State in 1795 to John Sevier. No question was made upon the plaintiff’s grant, other than it was younger than that from which' the defendants deraigned their title. Upon the trial of the case in the United States circuit court for the district of Tennessee, the offer of the defendants to read the Sevier grant as evidence of their title was resisted upon a number of grounds. Over the objection of the plaintiff the grant went to the jury, and, the trial having resulted in a verdict and judgment in favor of the defendant, the case was carried by writ of error to the supreme court ,of the United States, and there was first decided in 1815; the opinion at that time, as has been stated, being-delivered by Chief Justice Marshall and reported in 9 Cranch, 87, 8 L. Ed., 665. Alter stating at very considerable length the yarions statutes of- North Carolina providing for the opening of the land office in the State and directing the appointment of entry takers, the court proceeded to dispose of certain grounds of exceptions which it is unnecessary here to set out, and, holding that there was no error in permitting the Sevier grant to go to the jury, then said: “The remaining exceptions were taken after the grant was before the jury, and are for causes not apparent on its face. They present one general question of great importance to the landholders of the State of Tennessee. It is this: Is it in any, and, if in any, in what, cases allowable in an ejectment to impeach a grant for cause anterior to its being issued?”

Before coming to the consideration of these exceptions, and an answer to the question, this eminent-judge laid down certain general principles which it was assumed would give aid in disposing of these exceptions and making answer to this question. The court said: “The laws for the sale of public lands provide many guards to secure the regularity of grants, to protect the incipient right of individuals, and also to protect the State from impostors. Officers are appointed to superintend the business, and rules are framed prescribing their duty. These rules are, in general, directory; and when all the proceedings are completed by a patent issued by the authority of the State, the compliance with these rules is presupposed. That every prerequisite has been performed-is an inference properly deducidle, and which every man has a right- to draw, from the existence of the grant itself. It would, therefore, be extremely unreasonable to avoid a grant-in any court for irregularity in the conduct of those who are appointed by the government to supervise the progressive course from its commencement to its consummation. . . . But there are cases in which a grant is absolutely void, as where the State had no title to the thing granted, or where the officer had no authority to issue the grant. In such cases the validity of the grant is necessarily examinable at law.”

There is no contention in the present case that the State was without title to the land in controversy when the grant was issued in 1887 to the complainant and Yoorhees. So it is that their grant is not void by reason of the proposition stated in the first clause of the sentence last above set out. It is insisted, however, that it falls within the letter of that contained in the last clause; that is, that it is void because the entry taker of Lewis county had no authority to make an entry of lands lying in Wayne county, and that the defendant is entitled in this action to impeach the grant upon that ground.

We are satisfied that the scope of the proposition, relied on as authority for the defendant’s contention, is much narrower than is here insisted upon. Its limitation, we think, is clearly seen by the exceptions of the plaintiff, which the court was then considering and preparing to dispose of. These exceptions, overruled by the trial judge, are thus stated: “The plaintiff offered to prove that no entries were ever made authorizing the issuance of the warrants on which the grant to Sevier was founded, and that the warrants themselves were forgeries. He also offered to prove that at the time of the cession to congress of the territory in which these lands lie the warrants did not exist, nor were there any locations in the offices from which they purport to have issued to justify their issuance.”

Considering these exceptions, and the action of the trial judge in overruling them, the court said that “the act of 1777 (Iredell’s Laws N. C., 1804, p. 205, c. 1), which opens the land office and directs the appointment of an officer in each county, denominated an ‘entry taker,’ to receive entries of all vacant lands in his county, directs the entry taker, if the land should not be claimed by some other person within three months, to deliver to the party a copy of the entry, with its proper number, and an order to the county surveyor to survey the same. This order is called a ‘warrant.’ The ninth section of the act (Iredell’s Laws N. C., 1804, p.. 206) then declares ‘that every right, etc., by any person or persons set up or pretended to any of the mentioned lands which shall not be obtained in the manner by this act directed, or by purchase or inheritance from some person or persons becoming proprietors, by virtue thereof, or which shall be obtained in fraud, evasion, or elus-ion of the provisions and instructions thereof, shall be deemed and are hereby declared utterly void.’” The court then said further: “In the year 1789 North Carolina ceded congress the territory in which the lands lie for which Sevier’s grant was made, reserving, hoAV-ever, all existing rights under the State, which were to be perfected according to the laws of North Carolina. This cession was accepted by congress. . . . The land for which the warrants were granted, by virtue of Avhich the surveys Avere made, lies within that district of country for Avhich the land offices were opened by the act of 1777. . . . After that cession the State of North Carolina had no power to sell an acre of land within the ceded territory. No right could be acquired under the laws of the State. But the right was reserved to perfect incipient titles. The fact that this title accrued before the cession does not appear upon the face of the grant. It is, of course, open to examination. The survey was not made until May, 1795, many years posterior to the cession. It purports, however, to have been made by virtue of certain warrants founded on entries which may have been made before the cession. But if these warrants had no existence at the time of the cession, if there were no entries to justify them, then what right could this grantee have had at the time of the cession? The court can perceive none, and, if none existed, the grant is void for Avant of power in the State of North Carolina to make it.”

The testimony Avhich Avas tendered in the trial court, and for its error in rejecting Avhich the judgment of that court was reversed and the cause remanded, tended to prove that entries were never made, that the warrants purporting to issue upon such were forgeries, that no right accrued under the act of 1777, and that there existed no inchoate right at the time of the cession act. It was with regard to these peculiar conditions, which the testimony offered would tend to establish, that the general proposition in the sentence above quoted was announced. We think it necessarily followed, from the terms of the cession act, that a party claiming under a grant from the State of North Carolina of lands lying in the State of Tennessee, issued after that act went into operation, in whatever form his grant came into controversy, would be bound, if properly challenged, to show that it was within the reservation of that act, and that it was equally true that his grant might be impeached in an action of ejectment by showing that no inchoate right existed .at the date of the cession act, either because no entry was made in accordance with the requirement of the act of 1777, or that warrants issued upon his grant were forgeries. This, however, is not the case at bar. The land in question was unappropriated. The title to it was in the State of Tennessee at the time of the issuance of the grant under which complainant claims. His grant came from the proper office, and was issued by the secretary of State and the governor, whose duty it was to see that all prerequisites had been complied with, and it is authenticated by the great seal of the State. Such a case, we axe satisfied, does not fall under tbe ban of tbe principle announced by Obief Justice Marshall.

When that case a second time went to tbe supreme court upon an error assigned upon tbe action of tbe trial court in rejecting testimony offered to impeach tbe grant, tbe limitation that was to be attached to tbe earlier decision is clearly indicated in tbe opinion delivered by Mr. Justice Johnson. In speaking of that decision the court said: “It will be observed that as to irregularities committed by tbe officers of government prior to tbe grant tbe court does not express a doubt, but that tbe government, and not tbe individual, must bear tbe consequences resulting from them. On tbe contrary, it declares that tbe existence of tbe grant is in itself sufficient ground from which every man may infer that every prerequisite has been performed. All, then, that it decides is that an entry was indispensable as tbe inception to the title of Sevier; that if an original grant bad issued to him after tbe cession, or a title bad been perfected where there was no incipient title before the cession, as in tbe case of a grant on a forged warrant and no entry, that it would be void.” Again it is said: “This court disavows having ever decided more than that an entry, or other legal incipiency of title, was necessary to tbe validity of a grant issued by North Carolina for lands in Tennessee after tbe separation. They have never expressed an inclination to let in inquiries into tbe frauds, irregularities, or acts of negligence of tbe officers of government, prior to tbe issuing of a grant, but, on the contrary, have expressed the opinion that the government must bear the consequences.”

That this was the limit to which the case in 9 Cranch, 87, 3 L. Ed., 665, could be invoked as authority is again pointed out in St. Louis Smelting, etc., Co. v. Kemp, 104 U. S., 636, 26 L. Ed., 875. Here it is said, in speaking of their decision: “The court held that proof that no entry had been made in the office of the entry taker in the county where the lands patented were situate prior to the cession to the United States was admissible under the ninth section [of the act of 1777], for without such entry they would not be within the' reservation mentioned-jn the act of cession. In other words, proof was admissible to show that the State had not retained control over the property, but had .conveyed it to the United States.”

The case last cited was an action at law predicated upon a patent issued by the United States, which the defendant sought to impeach by testimony as to certain irregularities and defects antedating its issuance. In speaking of such a muniment of title and the effort to impeach it in an action at law by extrinsic testimony, the court said:

“The patent of the United States is a conveyance by which the nation passes its title to portions of the public domain. For the transfer of that title the law has made numerous provisions — designated the persons who may acquire it and the terms of its acquisition. That the provisions may be properly carried out a land department, as part of the administrative and executive branch of the government, has been created to supervise all the.various proceedings taken to obtain the title, from their commencement to their close. . . . The execution and record of the patent are the final acts of the officers of the government for the transfer of their title, and, as they can be legally performed only after certain steps have been taken, that instrument, duly signed, countersigned, and sealed, not merely operates to pass the title, but is in the nature of an official declaration by that branch of the government to which the alienation of the public lands under the law is intrusted that all the requirements preliminary to its issue have been complied with. The presumptions thus attended are not open to rebuttal in an action at law. It is this unassailable character which gives to it its chief — indeed, its only — value as a means of quieting its possessor in the enjoyment of the land it embraces. Of course, when we speak of the conclusive presumption attending a patent for lands, we assume that it was issued in a case where the department had jurisdiction to act and execute it; that is to say, in a case where the lands belonged to the United States, and provisions had been made by law for their sale.”

After reviewing the many cases in that court bearing upon this question, the general doctrine declared to be settled is thus stated: “A patent in a court at law is conclusive as to all matters properly determined by the land department, when its action is within the scope of its authority; that is, when it has jurisdiction under the law to conyey the land. In that- court the patent is unassailable for mere errors of judgment. Indeed, the doctrine as to the irregularity and validity of its acts, wheré it has jurisdiction, goes so far that, if in any circumstances under existing law a patent would be held valid, it will be presumed that such circumstances existed. . .... On the other hand, a patent may he collaterally impeached in any action, and its operation as a conveyance defeated by showing that the department had no jurisdiction to dispose of the lands; that is, that the law did not provide for selling them, or that they had been reserved from the sale, or dedicated to special purposes, or had been previously transferred to others. In establishing any of these particulars the judgment of the department upon matters properly before it is not assailed, nor is the regularity of its proceedings called into question; but its authority to act at all is denied, and shown never to have existed.”

So it is, we think, clear from these interpretations of the case in 9 Cranch, 87, 3 L. Ed., 665, that its authority extends no further than to let in evidence in a collateral proceeding to show that the State had no title to the land at the issuance of its grant, or had made no provision for its sale, or had reserved it from sale, or had previously transferred it to another grantee, or for some other like reason the grant was absolutely void. That case bad no occasion to deal with tbe connection of an entry and grant, save as this was effected by tbe reservation in tbe cession act of tbe right of North Carolina to perfect titles that at tbe date of that act were inchoate, and certainly it was never intended to lay down tbe proposition, contended for at bar, that a grant issued upon an entry made by inadvertence or other mistake in tbe office of tbe wrong entry taker, under tbe system prevailing in Tennessee at tbe present time, was void, and that this could be shown in an action of ejectment by a second grantee. Tbe fact that tbe entry in this case was made in tbe office of tbe entry taker of Lewis county, when tbe land- lay in Wayne county, was an error, it may be conceded, of tbe enterer; but it was no less an error on tbe part of the State’s officer to permit this to be 'done. At most it was an irregularity, and we think, on tbe authority of tbe cases cited, the State owning tbe land, and tbe grant having been issued under tbe great seal of tbe State, all inquiry as to this, especially by tbe second grantee, is cut off.

The case of Overton’s Lessee v. Campbell & Lackey, 5 Hayw., 165, 9 Am. Dec., 780, is one full of learning on tbe subject of grants and of great authority. Jn that case separate opinions were delivered by Whyte, Roane, and Haywood, JJ., all masters of tbe technical system of land laws which Tennessee inherited from North Carolina. Tbe questions there presented were: First, whether a grant issued by North Carolina, under the po wer reserved in the cession act, made upon a military warrant to land outside of the territory set apart by that State, in section 7 of chapter 3 of the Acts of 1783 (Iredell’s Laws N. C., 1804, p. 326), preferentially for the officers and private soldiers of the Continental line, was void; and, second, if so, could this be shown in an action of ejectment? All these judges concurred in holding that the grant was not void, while there was a difference between them on the last question. Judge Whyte, in his opinion, after setting out the holding of the court in the case in 9 Cranch, 87, 3 L. Ed., 665, said:

“I shall now make an application of the doctrine in Polk v. Wendal to the case under consideration, and in doing this I will admit in effect, as the plaintiff’s counsel contend, that the State had no right in one sense to issue the grant in question to the defendant; that is, that he had no directions to issue a grant on the defendant’s claim for land in John Armstrong’s ground. . . . North Carolina authorized her officer to issue grants upon military claims for the land comprised within the military bounds designated in the seventh section and third chapter of the Acts of 1783, and she authorized her officer to issue grants upon John Armstrong’s claims for land within John Armstrong’s bounds. The officer, however, instead of pursuing his authority strictly, issued the defendant’s grant, being a military claim, for land comprised within John Armstrong’s bounds. Now this was an irregularity in the execution of his authority, or a nonpursuance of its directions; but the lands within both bounds . . . . were grantable by order of the State. The officer had a right to issue a grant passing the State’s title to both; the one to the one claimant, the other to the other. But the officer has granted a part of John Armstrong’s bounds to a different claimant than the law contemplated. The question is, does this make the grant absolutely void? My opinion is that it does not. . . . But it is also said, on argument for the plaintiff, that on this case agreed no entry is stated, and we are not to presume one, when our decisions say a grant may be good without an entry. Besides, it is said, ‘you cannot presume in favor of illegal acts, but you may do so in favor of legal ones.’ . . . This, in fewer words, is saying there was no entry, therefore the grant is illegal, and as the grant is illegal no entry can be presumed. The strength of this objection consists in setting the statement of the case in opposition to the grant and an inference deduced therefrom, to wit, that there is no entry . . . against the presumption of law raised by the evidence of a grant that there is one. . . . What is a State grant? It is a public record (2 Blackstone, Com., 346; 3 Tucker’s Blackstone, 261, note 10; Jackson v. Lawton, 10 Johns. [N. Y.], 26, 6 Am. Dec., 311); a record to evidence in the most solemn manner by the great seal of the State, for it cannot issue before it is recorded — this act of recording being one of the essentials constituting a grant, and that before it issues. ... A State grant or patent is a record of the highest validity and verity, and is conclusive evidence of its contents, to wit, that the State has passed its title to the lands therein conveyed. • It must at the same time be conclusive evidence that all the previous requisites existed that were necessary to authorize and render it a complete and legal act which were material and traversible.” Citing several authorities, Judge Whyte continues: “These authorities prove, first, that the grant is incontrovertible evidence of the entry; and, secondly, that the inference deduced is inadmissible. But if the statement [that is, the agreed statement of the case] had even in express terms negatived the actual existence of an entry, and the parties had put it down as a fact totidem verbis that there was no entry, then I would say that though the parties by their admissions may renounce the benefit of the law, yet they, cannot thereby change it, and that the complexion of the case is not the least varied; that the evidence of its nonexistence, being of an inferior nature to that evidenced by the grant, could not prevail, and, being incompatible with the rules of law, the court would be bound to disregard-it. It is remarked that our decisions have said a grant is good without an entry. Perhaps it would be more correct to say a grant is good without showing the copy of an entry, in the cases where the law requires one which in the general would be unnecessary, superfluous, and even improper. The existence of an entry by copy would be attested by the officer; lie having the legal custody of it. A grant attests the same existence by evidence of a greater dignity* by the great seal of the State, and supersedes all inferior modes of showing the same thing it shows. A grant, being a public record, comprehends within itself ■every requisite for its existence, and, emanating under the sanction of the great seal, possesses the highest evidence of them when it is itself used as evidence.”

In the opinion in that case delivered by Haywood, J., after stating certain causes for which a grant may be deemed void, it is added: “But the grant is not void for any mistake or miscalculation, or wrong step taken by the officers of the government in stages precedent to the emanation of the grant, which is not induced by the fraud or misconduct of the grantee. The public employs them, and is responsible for their acts, and must look for retribution in such cases to them, and not to the innocent grantee. . . . Imperfed and informal entries, wrong surveys without demarkation or chain carriers, surveys not made to the cardinal points, but in forms different from those prescribed by law, plats and certificates not made out and certified exactly as the law directs — -these, if prejudicial to the government, are not causes for rescinding the grant. The government ought to suffer for the acts -of its officers, whom it appoints and trusts.”

If It be true that the issuance of the grant on the claim of defendant for land in John Armstrong’s ground without legislative direction, in the case in 5 Hayw., 165, 9 Am. Dec., 780, was a mere irregularity, which in no wise would affect the grant itself, then certainly in the present case the fact of the making of complainant’s entry in the 'office of the wrong entry taker was of no higher grade than a mere irregularity, and as such imported no vice into the grant issued thereon. And, if in that case the court would conclusively presume that an entry had been made, notwithstanding the omission of mention thereof in the agreed statement of facts, or, as put by Justice Whyte in his opinion, if this statement had conceded that no entry had been made, yet the grant would not he affected, then it follows that the grant of complainant stands unimpeachable by reason of the fact upon which the defendant now seeks its avoidance.

In Smith’s Lessee v. Winton, 1 Overt., 280, 3 Am. Dec., 755, it was held that, “in ejectment between adverse claimants of land, evidence is not admissible to show that the grant upon which the interest of one of the parties depends was obtained by fraud.”

In Curle v. Barrel, 2 Sneed, 63, it was said: “A person claiming title in virtue of a subsequent entry and grant, with notice of the prior grant which remains in force, has no such interest as will entitle him to litigate the right of the former grantee.” In this latter case the difference between a void grant- and one merely voidable, in so far as it affects the defensive rights of a younger grantee, is pointed out. It is there said that a void grant vests no title in the grantee, and, notwithstanding its issuance, leaves the land covered by it unappropriated and subject to disposition upon the part of the State, and, this being so, that in an ejectment either party may obviate its force by shoAving that for any cau.se it is void. The court added: “It seems that in a collateral proceeding, not between parties to the grant, the grant, being matter of record, cannot in general be impeached and declared void, except by some matter of record — by some evidence of the same grade as the grant itself, or by facts apparent on the face of the grant.”

In Berry v. Wagner, 13 Lea, 591, the general rule announced in the Smith Case and the Curie Case is again repeated, and is there distinctly recognized. That this rule is a wise one, in view of the authority and force which is attached to a grant from the State, we think is beyond question. If the State sees proper to condone a fraud perpetrated upon it by a party Avho secures a grant of its unappropriated lands, why should a younger grantee be permitted to make the question, especially if this younger grantee, as in the present case, had full notice, not only of the prior grant, but of all the circumstances under which it Avas issued? If the younger grantee will not be permitted to impeach the prior grant because of fraud in obtaining it, upon what sound ground can it be maintained that he can challenge it because of irregularity in the initial step, taken in securing that grant? We are satisfied that tbis cannot be done, and that it would be a violation of sonnd principle to permit it to be done.

While there has been fluctuation in the decisions in tbis State as to the necessity of an entry in order to the obtaining of a grant, and cases are produced holding to such necessity (Crutchfield v. Hammock, 4 Humph., 203; Woodfolk’s Lessee v. Nall, 2 Sneed, 674), yet, as early as the case of Craig’s Lessee v. Vance, 1 Overt., 182, Judge Overton, equaled only, possibly, by Judge Haywood in a knowledge of the land laws of this State, and who had as much to do in giving form to our technical land law system as any one, either on or off the bench, said: “An entry is not indispensably necessary to the validity of a grant.” In later cases it has been held that neither entry nor survey is necessary to tire validity of a grant. Smith v. Buchannon’s Lessee, 2 Overt., 305; Disney v. Coal Creek M. & M. Co., 11 Lea, 613; Sampson’s Heirs v. Chester’s Heirs (Tenn. Sup.), 91 S. W., 43.

Independent, however, of these authorities, we are entirely satisfied that, in the face of all the presumptions that attached to complainant’s grant, the defendant will not be permitted in this action to inquire whether it was or not founded upon an entry made in the proper office. It seems to us irreconcilable with sound reason that a grant, issued by the highest officers of the State and authenticated by its great seal, should be made to depend for its validity upon the action of a subordinate, such as (possibly) an inefficient entry taker. In the absence of a statute declaring in express terms a grant void by reason of sncb an irregularity, as is attempted to be shown in this case, we do not feel authorized to yield to the insistence of the defendant in this cause. The present record illustrates the unwisdom of resorting to uncertain extrinsic proof to avoid a grant. As has already been stated, great differences existed as to whether this land was on one side or the other of the dividing line between Lewis and Wayne counties. The surveyor and entry taker of Lewis county, who recorded the entry and made the survey for complainant, believed it to lay across this line. Many citizens living in the immediate neighborhood (if the contention of defendant is right and his location of this dividing line is to be relied upon) believed themselves for many years to be residents of Lewis county, when in fact they were citizens of Wayne county. Their children were sent to the public schools of Lewis county, their property, some of it adjoining the land in question, was assessed by the officers of that county, and taxes upon it were paid by them to its revenue collectors. But while this is so, as already stated, we think the weight of the proof is with the contention of the defendant on this point, yet the character of this evidence illustrates the wisdom of the rule that with the issuance of the grant the entry, like the survey, has served its purpose, and in a controversy between the first grantee and the second, a sound public policy will not permit it to be inquired into, save in exceptional cases. In the words of Whyte, J., in Overton’s Lessee v. Campbell et al., supra, there are cases “in which the copy of an entry is necessary to be produced, not for the purpose of barely showing its existence, but to show the modifications under which it does exist, as where in the development of a title it is wished to give a grant beyond the date of it. The copy of an entry is a requisite for the exposure of particulars not appearing by the grant, not to show that the entry exists for the grant does that, but to show how it does exist as to time or date, location,” etc. In other words, among other cases the entry may be resorted to in a controversy between an old grant and a later entry, and a younger grant and an old entry special in its nature, in order to give the younger grantee, under the rule of relation, priority by virtue of that' entry.

The grant in this case thoroughly identifies the land in controversy, but recites that it is situated in Lewis county. If it be true, as we have conceded it is, that this land is situated in Wayne county, then the grant falls directly within the saving terms of section 3, c. 91, p. 89, of the Acts of 1859-60, this section being embraced in section 3766 of Shannon’s Code.

Upon the whole case, we think there is no error in the decree of the chancellor; and it is affirmed.