13 Tenn. 379 | Tenn. | 1825
delivered the opinion of himself, and Williams and Peck, Judges,
The two first counts of this declaration may at once be laid out of the case, being not supported by evidence, as it is admitted on all hands. The third count, the one upon which the jury have found their verdict, is supposed also by the counsel on one side not to be supported by evidence, and to be one in respect of which the court
The fourth and fifth counts, for a quantum meruit and quantum valebant, came next into view. It may not be amiss to observe, that if there be any special agreement, whether that stated in the declaration or not, there cannot be a recovery upon these general counts, unless such special agreement were exactly conformed to them. For example, if the evidence shows that the defendant made a special request to be permitted to occupy, and was permitted by the plaintiff, and then proved a promise to pay as much as the plaintiff deserved to have, such evidence would support these counts, but evidence of a particular price agreed on would destroy them. 1 Term Rep. 735; 4 Esp. 213. The fifth count is for lead ore sold, &c. and is not relied on, and may be laid out of the case. Whether this cause shall be remanded to the circuit court, to be proceeded in de novo, and to the end that such amendments will be permitted by the court as will bring forward the merits, depends considerably upon the question whether by the rules of law the plaintiff be entitled to recover in some form upon the evidence which he has offered. This leads to the enquiry whether the plaintiff be entitled in law to recover or not, upon counts properly adapted to his case. If the common law upon the subject be the standard of decision in Missouri, as it is here, the question can be immediately settled. If it be not, there should be a new trial, to the end that the law of
This right of the plaintiff to recover, however, is supposed to be totally subverted by his entry upon the premises. Such interference, unless the tenant be wholly evicted and expelled from the possession, is not a discharge from payment of the stipulated compensation; but makes the enterer upon his possession a trespasser liable to make satisfaction for the damages in the appropriate action. The relation of tenant continues so long as the tenant holds over, and the tenancy is not put an end to by the legal ceremony appointed for that purpose. The tenant came in first for a year, and is continued from year to year. It is supposed to be overturned likewise by acts of Congress of 1804, 1S07 and 1811, inflicting larking the ¿0 mu-hi.
The Spanish regulations made in 1797, by Governor Gayosa, and those by Morales in 1799, evince the usages and customs which prevailed before those periods; and in the year 1796, when the concession of that year was made to St. Vrain, by the Baron de Carondelet, the then Governor-General of Louisiana, lands were distributed into three ordinary classes, and also into some extraordinary ones. Lands in the ordinary classes, were those sold, those conceded, and those distributed. Those conceded, were to be followed by orders or decrees of survey, measurement and demarcation, with delivery of possession; after which followed a title, issued by public authority. Possession was divested out of the King by the concession; and rights were claimed, or supposed, according to popular opinion, to be perfect, after the decree of survey and possession taken, though the title were never applied for; and concessions were made upon condition of settling and clearing the land. After the concession obtained, it was usual to make conveyances, and for the officers of government to receive acknowledgments of them, and to authenticate. All these disorders were repressed, and forbidden for the future, and concessions were to be followed by orders of survey, copies of which were to be annexed to the title; the concession itself being recorded in one book, the order and certificate of survey in another, and the title in a third. The extraordinary cases mentioned in the regulations, the lat
It is next to be seen in what light this claim has appeared to Congress, and what has been done by the United States to affect the title derived under the concession made to St. Vrain-.
After endeavoring to prevent by an act of 1804, occupancies and occupant claims to pre-emption in future by illegal intrusions upon the public lands, which had been acquired to the United States by the treaty of 1803, Congress began to prepare in 1806, for the discharge of the obligations which had devolved upon them by the treaty and cession of 1803, and particularly for the satisfaction of claims existing at the date of the treaty: And next, to prepare to make disposition of the lands which
The acts of Congress neither could nor have intended to place this claim upon grounds less advantageous to the plaintiff, than he would have occupied had no act been passed by Congress. The claim stands with respect to all adverse titles, and without any view to the favorable interference of Congress, precisely as it did on the first of April, 1803. If then completed, it needs not the confirmation of Congress; if not complete, it yet entitles the complainant to possession, and of course to make leases and entries upon the lands. For this reason it is, that the forfeiture inflicted upon others by the act of 1807, for possessing, or selling, surveying or marking these lands, or for causing the same to be occupied, possessed or settled, is not inflicted upon claims of this description. Such is the result which seems to follow from the view of the premises which has been just taken, and would seem rather to accord with, than to impugn the opinion which the Judge of the Circuit Court gave upon this point.
We now come to objections of minor importance, and might save ourselves the trouble of speaking upon them, having grounds enough for sustaining the opinion we give;
As to the copy of the deed from St. Vrain and wife to Smith, taken from the recorder’s books, as it does not appear that there is any other office for the registration of such deeds, but only that of the recorder’s book from whence this copy was taken, and this book or copy from the original was taken under the care and superintendence of a public officer, of high and responsible character, the
With respect to the testimony of persons who were partners with the defendant, they being liable to contribute to him their share of the recovery against him, could not in that situation testify for him; but when discharged from that liability, and being not parties to this action, the only cause for their rejection is removed, and the evidence is properly receivable.
Concerning the impressions of the witness at the time of the transaction, when there was nothing to efface them, and when no new objects had been presented to weaken his recollections, is only another mode of saying he is perfectly satisfied of the fact. It is right and proper to refer it to the jury, to fix the meaning of the witness, and to decide whether he intended thus to represent his recollections, or whether he meant to intimate that the images which were then created had since faded away, and according to the meaning which they should adopt to govern themselves.
As to' the evidence concerning damages by waste of timber, so much as is necessary to be used for smelting, the defendant had a right to use for that purpose: being included in the liberty to smelt ore, satisfaction for it is included in the price of the ore. If there be a waste beyond what is necessary, that would be recoverable in another form of action. But in fact, it is ascertainable by
Upon the whole, our opinion is, that this judgment ought to be reversed, and sent back to be proceeded on in the circuit court, which may permit the declaration to be amended, if it thinks proper, and the issues to be tried in conformity with the principles adopted in this present opinion of the Supreme Court.
Judgment' reversed.
Catron, J. did not sit in this causo.