1 Tenn. 529 | Tenn. | 1813
This was an ejectment in the circuit court of Bonne, and appeal to this court.
It appeared on the trial, that the plaintiff claimed under a grant to William Reed, for 400 acres of land; from this grant, which was offered in evidence, it appeared that the land was surveyed by Abraham Swaggerty, on the 20th of June, 1790. The land is described therein, as lying in the county of Hawkins, on the north west side of Emmery’s river, in Powel’s Valley, including the Cumberland trace, and the west branches of the first creek that falls into Tennessee river below the mouth of Clinch river, beginning at a Post Oak on Rees line, a former survey of 610 acres, thence south, 45 east, 180 poles to a Post Oak, south, 45 W. 360 poles to a stake; N. 45 W. 160 poles to a stake; thence a direct course to the beginning. In order to establish the boundaries of this tract, the plaintiff also gave in evidence a grant for 640 acres, to William Reed, surveyed by Abraham Swaggerty, on the second of June, 1787, described as lying and being in the county of Hawkins, on the north west side of Emmery’s river, on the west braches of the first creek that empties into Tennessee river below the mouth of Clinch river, including the Cumberland trace, beginning near the head of the Oven spring, at a Post Oak and Red Oak, at the foot of Cumberland mountain, thence south, 45 W. 400 poles to a Post Oak; S. 45 E. 280 poles to a stake; thence N. 45 E. 400 poles to a stake; thence a direct course to the beginning. The beginning of the 640 acre tract Was admitted, and that the tract was situated as described in the grant, but that old marks on none of the lines or corners of that tract could be found, except at the beginning. Colonel M'Clellan proved, that he never heard of any survey or grant in the name of Ree, in that neighborhood, and that he is well, acquainted with the 640 claim of William Reed mentioned above. To begin at William Reed’s second corner, as called for in his grant, as a Post Oak, and run the courses and
The defendant shewed no title, and relied on possession only; but in order to impair the force of the plaintiff's testimony, proved, that to begin on the second: line of William Reid, at various points, within two hundred poles from. the beginning of that line, and run the courses of the 400 acre grant, he would not he within it, and the objects called for in the grant would he included. Stephen Bishop, who was marked by the surveyor as a chain carrier in his plat of survey of the 400 acres,deposed,that he never did carry the chain in the surveying of that tract. Different witnesses proved that the plaintiff made several experimental surveys in order to ascertain his boundaries; in consequence of some one-off these surveys, the defendant left the place he lived at, and removed a small distance to the where be now lives, in order to be without the plain? tiffs claim, who told him he must remove. That the plaintiff told the defendant, whilst they were disputing about the plaintiff's boundaries, at he did not know where they were, and that be would be under the necessity of getting colonel M'Clellan, the public surveyor, to run out the tract, and ascertain the lines, which was accordingly afterwards done.
The jury found a verdict for the defendant, upon which the plaintiff moved for a new trial, which was refused by the court. To this opinion of the court refusing a new trial, the counsel for the plaintiff excepted; on the part of the defendant two grounds have been taken in this court:
Second. If this point should turn oat otherwise, the finding of the jury is correct from the evidence before them.
The first question was put at rest in the case of Kelton vs. Moore, and Kelton vs. Bevins at Nashville. These were two cases situated like the present the same exception taken and argued; the court was then full and much time taken to examine the question. It was the first time the point was brought before the court of appeals. Upon examining the decisions in the states of Virginia and Kentucky whose judicial establishments are similar to our own, it appears the question has been settled there, and that the courts of those states examine the decisions of the inferior courts as to granting or refusing new trials; so the law has been settled here in the cases alluded to at Nashville. See 1. Wash. 79 325.2. Wash. 36. 1. Call. 369. 3. Call. 563, Hardin 167. 515. 539 and 586. But the supreme court will not disturb the decision of an inferior court as to new trials, unless it clearly appears that the court erred. If doubtful the case will be suffered to rest.
This court having power to examine and control the judgments of the circuit courts in relation to new trials, the second question offers itself.
The first and leading principle to be attended to in the construction of grants is that they shall not be destroyed, or be ineffectual for uncertainty, if by any reasonable means the intention of the contracting parties can be collected ; and these means are not confined to what appears on the face of the grant itself, id certum est quod certum reddi potest. Any fact or matter in pais to which the grant either directly or indirectly refers may be shewn in affirmation of the grant, rather than it should be abortive 3 Wil. ed. Bac. Ab. tit. Grants, F. 386. 394. I. 391. H2. Co. Lit. 183 b. 2. Wil. 78. 2. Saund. 96. n.
It has been insisted that as the plaintiffs grant
But it is again insisted that there is nothing either in the grant, or the proof by which the beginning on the second line can be legally ascertained. The
It was the duty of the surveyor to mark his corner & lines: the law presumes he did so, Littell 64. 3. Binney 35 to 38. Hence it appears that there was a post oak marked as a corner at the end of the first line, and beginning of the second of the 640 acre tract of Reid the surveyor having returned such a tree as a corner. It thus appears that on the second line of Reed there was a post oak known to the surveyor of the 400 acre tract. It was at the beginning of that line, and marked as a corner for Reeds. No other post oak has been shown to exist, on this second line, and much less, a marked one. None having been shown to exist there, we cannot presume one did exist, as there is nothing which could lead to such a presumption. The return of the surveyor shows that there was a post oak at the end of the first line of Reid being his second corner,it is therefore a fair inference that this post oak was intended for the beginning corner of the 400 acre tract, no other marked post oak having been shewn to exist on this second line. In order to establish the boundaries of a tract of land it is not indispensably necessary that some corner, or marked line, should be proved to exist. If it is proved to have existed or any monument, corner or marks from which the boundaries called for in a grant or deed can be satisfactorily ascertained, according to "an easy and natural interpretation” it is sufficient, and particularly so against a man who has no title.
The judgment must be reversed and the cause remanded to the circuit court for a new trial.
QJ* This case was not received until after the index was printed.
In the case of Polks lessee vs. Robertson and Cockrell ante pa 456 a question of boundary alone occured as it was contemplated by law that at the time Polk procured his survey and grant, lands in that part of the conntry might be legally surveyed and granted without entry, on this ground the decisions are reconcileable.