1 Tenn. 370 | Tenn. Sup. Ct. | 1808
Lead Opinion
The plaintiff claimed under a military grant for 640 acres to Thomas Hogg, No. 1271, dated November 16, 1790, and registered April 29, 1807; upon an entry dated January the 10th, 1786, in the following words: "Thomas Hogg, assignee of Robert Mann, 640 acres, on Yellow Creek, four or five miles below the Chickasaw trace, running so as to include a black-oak tree marked W B, for complement."
The defendant claimed under a military grant to *371 William Allen, dated May the 20th, 1793, registered November 30, 1795, upon an entry in these words; "December the 7th, 1785, William Allen, assignee of John Grave, 640 acres, on the first big fork, on the west side of Yellow Creek; to adjoin Mills Ramsey's claim on the west, running as the law directs."
Mills Ramsey's entry was dated August the 2d, 1784, on Yellow Creek, and to adjoin Israel Harmon's upper lines running up the creek for quantity.
The counsel for the plaintiff objected to the asking where Mills Ramsey's claim was reputed to lie. It was insisted that the calls of an entry ought to speak for themselves. That the defendants ought to show by record where Harmon's claim lay; then Ramsey's, and then show that their survey adjoined in the manner called for in the entry. thought the question improper. Reputation could not be resorted to. Suppose Harmon's entry vague; the other two dependent entries would of course be so, as he was inclined to think at this time. It is certain, however, that common reputation alone cannot be the ground of a claim.
Addendum
The acts respecting the registration of grants have been previously considered. There was not a regular continuance of these acts in North Carolina before the expiration of others, as has been stated at the bar. Their legislature were in the habit of making subsequent laws authorizing registration and confirming grants which had not been registered in time. A short review from the commencement of that government will show it.
The first act was in November, 1715, allowing twelve months; their confirmatory acts in the order in which they were made, are those of April, 1741, December, 1756, April, 1760, January, 1764, November, 1766, December, 1770: eighteen months allowed. January, 1793, April, 1777, April, 1780: two years allowed; thence continued every two years until November, 1788, and when the Cession Act passed, but one year of this term had elapsed.
The first act under our own government was 1794, c. 22, two years, as usual. The next, 1797, c. 42; 1801, c. 20; 1803, c. 57; 1805, c. 16: twelve months allowed; and the Act of 1807, c. 85, allows one year where the time had expired, and two years for all others. After this view of the subject of registration, is it probable that North Carolina considered grants not registered within time as void? Surely not: nor in fact could they upon principles of law. The condition of registration expressed in the grant is a subsequent, and not a precedent one. The first part of the grant absolutely vests the estate; after which, it cannot be divested or revested without some act of the grantor; and none but the grantor or his heirs can take advantage of the breach of this condition. No stranger can do it. The grant, by a breach of condition subsequent, is not void, it is only voidable by those who made it, and no others, and remains in full force until it is thus avoided. Littleton, § 350; Co. Lit. 217 b, 218 a, 206 a and b, 179 a, 214 a and b.
As the State cannot enter for a breach of condition, they must avoid their unregistered grants by a *377 legislative act; they are incapable of doing it in any other way. When legislating on the subject, they speak of such lands as lapsed. There being no legislative act declaring the revestment of this land in the State, on account of the plaintiff's grant not having been registered, we are bound to say that the tide never was out of Hogg, and chose claiming under him.
The entry, and the manner in which it was surveyed, are the next considerations which present themselves.
The calls in all entries seem divisible into two classes.
1st. Prominent.
2d. Subordinate.
Entries should be so certain that the surveyor and others may, by reasonable exertion, ascertain the spot. After it is ascertained, the surveyor has an option to run it (so that he complies with the calls) in an oblong or square, unless where the lines of older claims interfere, when it may be run in any shape adjoining those lines; where an entry calls to adjoin a particular tract or to include a particular spot, the latitude of surveying, so as to include the spot in any part of the tract, and to run in an oblong or square, is left to the surveyor.
Calls for natural objects, such as rivers, creeks, branches, springs,c., are generally prominent calls when compared with artificial ones, such as letters on trees, lines of others, c. It is a rule of reason, as well as of law, that if all the calls of an entry cannot be complied with, those which are subordinate in point of notoriety may be rejected by the Court, and abandoned by the party, and the claim shall be valid notwithstanding ut res magis valeat quam pereat. See Hughes, 3, 14, 45, 168, 194.
The jury will inquire, whether, what is now called the Town Fork, was, when Allen's entry was made, generally known by the description of the first big creek (from the mouth in going up) that empties in Yellow Creek on the west side. When we say generally known, we mean by those persons who had opportunities of knowing the creek, and conversing with those who did. A few individuals, *378 compared with the number of others who knew the creek, calling it the first creek, would not be sufficient when the majority of persons acquainted with it called it by another name.
The length of this creek is an important inquiry with the jury. If a whole creek would be included in a survey of the size of the defendants', or Allen's, by running in an oblong, not more in length than twice its breadth, the entry is sufficiently certain, and it does not lie in the mouth of the plaintiff to say you ought to have run to the mouth of the creek, and thus injured me more than you have done; nor that you had no right to run upon other lands than those I claim. The simple question is, could the surveyor, by running the tract in any manner the law allowed, include the present interference in Allen's survey? If he could, and the defendant's grant covers it, they must hold. If the jury should be of opinion that Allen's survey could not join Ramsey, and lie on this creek too, the surveyor was correct in surveying it on this creek, provided it is the one called for in the entry.
Verdict for the defendants.
Addendum
said he wished to know the true ground of difference. If the fact was that Harmon's entry was special, which is the presumption until the contrary appear, he should desire to know how it was surveyed, whether conformably to the entry or not. If an entry be made to adjoin another special entry, and the latter is not surveyed conformably to the entry, the adjoining enterer is not obliged to follow the mistake, but should survey as was originally intended.
It appeared in testimony that Yellow Creek headed to the south, and ran nearly north; that Harmon's claim was surveyed and granted about three miles lower down the creek than William Allen's, which the defendants claim; that Ramsey's survey adjoined Harmon above, and lay about two and a half miles lower down than Allen's. *372
Anthony Foster surveyed Hogg's, Harmon's, and Ramsey's claims. The defendants' claim lies on a creek latterly called the Town Fork, which issues from a large spring, about three-quarters of a mile from the creek, where it empties itself in. Allen's claim takes in the head of the fork, lying on both sides of it, near the mouth. A number of witnesses were produced, on the part of the defendants, showing that about the time Allen's entry was made, before and some time after what is now called the Town Fork was called the first large fork from the mouth of the creek, and except two branches called Indian Creek and Racoon Creek, this was the first large run coming in on the west side in going up the creek. It was proved, on the part of the plaintiff, that these runs were now and for a considerable time past called creeks. Mr. Hawkins went to that part of' the country when it was first settled, in the year 1793, when he did not hear of any name for these runs: they obtained names after he went there. It was also proved that the Chickasaw trace, referred to in the plaintiff's entry, lay about seven and three-fourths miles from the land in dispute.
