Elisha Winn and Others, Plaintiffs In Error v. William Patterson

• Decision Date: 01 January 1835
• Parties: ELISHA WINN AND OTHERS, PLAINTIFFS IN ERROR v. WILLIAM PATTERSON
• Court: U.S. Supreme Court

34 U.S. 663

9 Pet. 663

9 L.Ed. 266

ELISHA WINN AND OTHERS, PLAINTIFFS IN ERROR v. WILLIAM PATTERSON.

January Term, 1835

IN error to the circuit court of the United States for the district of Georgia.

In February 1820, an action of ejectment was instituted in the circuit court, by the lessee of William Patterson against Elisha Winn and others, to recover a tract of land in the county of Franklin, in the state of Georgia. The case has been twice before this court on a writ of error. 11 Wheat 380, 6 Cond. Rep. 355; and 8 Peters 233. Many of the material facts in the case will be found in the reports referred to.

At November term 1833, of the circuit court, in pursuance of the mandate of this court, a new trial of the case took place; and the plaintiff gave in evidence a grant from the state of Georgia to Basil Jones for 7800 acres of land, including the lands in controversy in this suit, dated 24th May 1787, with a plot of the survey of the said land annexed; a copy of a power of attorney from Basil Jones to Thomas Smith, Jun., purporting to be dated the 6th of August 1793, authorizing Smith, inter alia, to sell and convey the tract of 7800 acres; which power purported to be signed and sealed in the presence of Abraham Jones, J. P. and Thomas Harwood, Jun.; and the copy was certified to be a true copy from the records of Richmond county, Georgia, and recorded there on the 11th July 1795; and to account for the loss of the original power of attorney of which they copy was offered, and of the use of due diligence and search for the same, the plaintiff read the depositions of William Patterson and others, the particulars of which, and all the evidence in the case, are stated in the bill of exceptions. The defendant objected to the evidence, and the court overruled the objection, and allowed the paper to be read to the jury. To this decision of the court the defendant excepted, and the court sealed a bill of exceptions. In the further progress of the case further evidence was offered, and certain instructions thereon asked of the court, which were refused; and the refusal of the court to give such instructions was the subject of another exception.

The jury, under the charge of the court, found a verdict for the plaintiff, upon which judgment was entered; and the defendants prosecuted this writ of error.

The bills of exceptions were as follow.

The plaintiff, to maintain the issue on his part, gave in evidence a copy of a grant from the state of Georgia to Basil Jones, for seven thousand three hundred acres, bearing date on the 24th day of May 1787, together with a plat of survey of the said land thereto annexed (a copy of which plat and grant was in the record); and further offered to give in evidence to the jury a paper writing, purporting to be a copy of a power of attorney from Basil Jones to Thomas Smyth, Junior, executed on the 6th day of August 1793, by Basil Jones, in the presence of Abram Jones, J. P. and Thomas Harwood, on which copy there was a certificate under the official seal, of John H. Mann, clerk of the superior court of Richmond county, stating that it was a true copy from the record in his office, entered on book, &c., on the 11th July 1795. A certificate from John H. Montgomery, one of the judges of the superior court, was annexed, stating that the officer who certified the copy, was the clerk of the superior court, that his signature was entitled to full faith and credit, and that the attestation was in due form. The power of attorney authorized Thomas Smyth, Junior, to sell and dispose of seven thousand three hundred acres of land granted to Basil Jones, part of which is the land for which this ejectment was brought.

To account for the loss of the original power of attorney, the plaintiff below produced his affidavit, stating his belief that the said original grant to Basil Jones had been lost or destroyed—this affidavit was made on the 23d of July 1833; also the deposition of Andrew Fleming, stating numerous and particular acts which he had performed to discover the said originals. This deposition set forth dilligent examinations for the lost papers in various places, and by inquiries of all such persons where and with whom the said papers might probably have been found, if they had not been altogether lost or destroyed.

Also the answers to interrogatories of Anna Maria Smyth, the widow of Thomas Smyth, relative to the lost papers, and stating that she had not been able to find them, among the papers of her deceased husband, nor had she ever seen them, although she had the custody of all the papers left by her deceased husband.

And further to account for the loss of the said original power, Richard H. Wilde, Esq. was examined on interrogatories propounded to him, who stated that he had made diligent search for the said power of attorney, with the assistance of the clerk in the clerk's office of the superior court of Richmond county, without success. That he had applied to the widow of Basil Jones for the paper and for the original grant, who was unable to find the same; and had advertised for the same for some months, in two newspapers in Georgia: he had inquired for the same at the office of the secretary of state at Milledgeville, and had searched the clerk's office at Columbia, where Basil Jones formerly resided; and also had made numerous other searches and inquiries. A copy of the advertisement for the lost papers was inserted in the examination.

The testimony of John H. Wilde, Esq. was also introduced, who proved, that by reputation Abram Jones was dead long since; that he compared the copy of the power of attorney offered in evidence with the record in the clerk's office of Richmond superior court, and it is a true copy. William Patterson, the plaintiff in the circuit court, he believed had never been in Georgia.

William Robertson deposed, that he was deputy clerk and acted as such, of Richmond county, in the year 1794, and clerk of the said court in 1795, and continued in that office till 1808 or 1809; that he was well acquainted with Abram Jones, Esq. and his handwriting, during the years 1793, 1794 and 1795, and before and afterwards. The deponent further states that the record of a power of attorney from B. Jones to Thomas Smyth, Junior, made by himself while clerk of that court, is a copy of an original power of attorney which he believes to have been genuine, for that the official signature of Abram Jones must have induced him to commit the same to record; and that the copy of said power of attorney transmitted with deponent's depositions has been compared by himself with the record of the original made by himself in Richmond county, and is a true copy.

The plaintiff then offered the paper purporting to be a copy of the power of attorney in evidence; which was opposed by the counsel for the defendants, as not admissible evidence.

The counsel for the lessor of the plaintiff, further to prove the original power of attorney was made and executed, gave in evidence a deed executed by Thomas Smyth, Junior, alleging himself to be the attorney in fact of Basil Jones, dated 18th November 1793, which conveyed to William Patterson, the lessor of the plaintiff, seven thousand three hundred acres of land in Franklin county, originally granted to Basil Jones, May 24th 1787; which deed also conveyed, or purported to convey, four other tracts of land situate in Franklin county; and contained the following recital: 'whereas, the said Basil Jones, by a certain writing or letter of attorney, dated the 6th day of August last past, did empower and authorize the said attorney, (Thomas Smyth, Junior) in his, the said Basil Jones, name, to sell and dispose of five certain tracts or parcels of land hereinafter mentioned, situate in Franklin county; and state of Georgia aforesaid.' And the plaintiff offered in evidence proof that Abram Jones, who signed the original power of attorney, was, at the time he signed the same, a justice of the peace, of the county of Richmond; which was admitted by the defendants' counsel.

The plaintiff's counsel then insisted that the copy of the power of attorney was admissible in evidence, and should go to the jury, which was opposed by the defendants' counsel; but the court admitted the same, and the counsel for the defendants excepted to the said admission.

The plaintiff also offered three witnesses before the jury to prove the identity of the land in dispute, with a plat of the same given in evidence, and that the defendants were in possession of the part for which this suit was brought, and also the location of the land; which witnesses also proved that part of the said land, which lay on the south and west of the said Appalachee river, was not, at the time of issuing the said grant, situate in the county of Franklin, as the grant purported it to be, but was without the then county of Franklin, and beyond the then temporary boundary line of the state of Georgia. Whereupon the attorney for the said defendants prayed the said justices to instruct the said jury, that if the jury believed that Basil Jones, the deputy surveyor and grantee, under whom the lessor of the plaintiff claims, by designating the stream marked in the original plat as 'the branch of the south fork of the Oconee river, instead of the south fork of the Oconee river, and by stating that the land was situate in the county of Franklin, when a large part of it lay without the county of Franklin, and without the temporary boundary line of the state of Georgia, practised a deception upon the governor of the state, and thereby induced him to to issue the grant; that such grant is fraudulent and void, and cannot entitle the plaintiff to recover;' which instruction the said justices refused to give to the said jurors. And the said attorney further prayed the said court to instruct the said jurors, that a grant of land is an entirety, and that a grant void in part is void for the whole; which...