Frazier's Lessee v. Basset

• Decision Date: 30 September 1808
• Citation: 1 Tenn. 297
• Parties: FRAZIER'S LESSEE v. BASSET.
• Court: Tennessee Circuit Court

1 Tenn. 297

FRAZIER'S LESSEE

v.BASSET.

Superior Court of Law and Equity of Tennessee.

September, 1808.

Ejectment, plea not guilty.--The plaintiff produced a grant for ninety-seven acres, dated October the 23d, 1793, and several mesne conveyances, among which was one from James Wheeler to the lessor of the plaintiff, dated in August, 1797, proved in Sullivan court, in February, 1798, and registered in March, 1807.

White, for the plaintiff, objected to the reading of this deed. It was well known that the time allowed by law for registering deeds had frequently expired and had been renewed. It expired and was renewed after the probate, and before the registration. The act giving further time to register did not give effect to the probate, which became a nullity after the time for registering had expired, and its renewal had no operation except as to the registration.

Kennedy, for the plaintiff.

White, for the defendant.Per Curiam.

The deed may be read, and, if the parties are dissatisfied, it may occur again upon a motion for a new trial.

The defendant relied upon possession alone.

The grant and title papers of the plaintiff called for beginning at a certain tree, thence south fifty-seven east, 100 poles; south eighty-six east, fifty poles; north 1 east, 135 poles; west, 132 poles, thence to the beginning. In running the third line from the beginning, old marks, nearly grown out, were found; they had been cut through the bark--proceeded until they came to a chestnut oak marked, of the same age with the line, as an old corner, at 122 poles, thirteen poles short of the distance called for in the grant. Continuing thirteen poles further, a chestnut oak was found marked as a corner, but lightly, the strokes not going through the dead bark. These marks looked old, but there were no marks as a line between the two oaks, thirteen poles apart. It was proved that about eight years ago the plaintiff showed the first oak at the end of the 122 poles, as his corner, to the defendant and to a surveyor who was running round it. The last oak was not known of till about eighteen months ago. Mr. Vincent, the original surveyor, was inclined to think that the last oak was the corner, though he had no other reason for thinking so than that it agreed within a few poles with the distance.

Per Curiam. Campbell and Overton, JJ., Powell, having been employed, was absent.

This is not a question whether the lessor of the plaintiff will have too much or too little in his grant, as has been argued at the bar. That is unimportant. It is a question of boundary, and which is the corner as originally made, of the two chestnut oaks; if the last, or at the distance of one hundred and thirty-five poles, the defendant is guilty; if the...