Boyer v. Porter

• Decision Date: 30 November 1807
• Citation: 1 Tenn. 258
• Parties: BOYER v. PORTER.
• Court: Tennessee Circuit Court

1 Tenn. 258

BOYER

v.PORTER.

Superior Court of Law and Equity of Tennessee.

November, 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 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.

Dickinson, for the plaintiff, upon the hearing, prayed for a perpetual injunction as to the judgment, and that the money paid should be refunded.

Stuart, for the defendant, observed that the proper way for the plaintiff to proceed was by attachment under the Act of Assembly, for a contempt in not putting in a full answer the last term.

Dickinson, e contra.--We have excepted to the answer, still the defendant ought to satisfy the Court that he has a title to the land sold; this he has evaded in the second answer, though it was the particular cause of exception to the first.

Per Curiam. Powell and Overton, JJ. (Campbell, J., absent).

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 can not 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.