Goodloe's Heirs v. Wilson
| Citation | 2 Tenn. 59 |
| Parties | GOODLOE'S HEIRS v. WILSON. |
| Decision Date | 30 November 1809 |
| Court | Tennessee Circuit Court |
The date of an entry, as it stands on the book, can not be contradicted, altered, or explained by parol evidence, nor by any evidence of custom, nor yet by any other entry on the book itself. [Acc. Kerr v. Porter, 1 Tenn., 14; Reid's Lessee v. Dodson, 1 Tenn., 402.]
Original public records can not be brought into court and introduced in evidence. And, therefore, a book of entries of land can not itself be given in evidence. [See Nichol v. Ridley, 5 Y., 63, where the records of the court in which the trial is had are held admissible.]
A grant, founded upon a military claim, for land lying without the military reservation according to the line run by public authority (which is conclusive) is void. [Acc. Lydia v. Pucket, 2 Tenn., 336; but see contra,Overton's Lessee v. Campbell, 5 Hay., 165.]
[Cited in: 5 Hay., 222; 4 Heis., 322.]
Ejectment for 228 acres of land, and not guilty pleaded; the defendant having disclaimed all the lands to the north of the military boundary lines. The plaintiff produced a grant to David Phillips, dated the 15th of September, 1787, and proved the lands in question to be the lands described therein; that Phillips conveyed to Robert Goodloe the said land, and that the lessors of the plaintiff are his heirs-at-law.
The defendant, who was also proved to be in possession, produced a grant, dated the 17th of November, 1794, and also an entry dated the 14th of April, 1784, “two thousand acres of land on the waters of Harpeth, about two miles south of the military line, to include the Buffaloe lick.”
The land as run, begins at a tree one mile north of the lick; thence west, thence south, thence east, thence north, thence west to the beginning; making the beginning tree to stand in the middle of the north boundary line; that the survey included the land in question.
The plaintiffs' counsel then produced their entry, copied from the book in which the military entries were made, dated the 17th of October, 1783, stricken across with a pen, and 1784 placed after it. And they produced, from the secretary's office of North Carolina, a copy of the warrant returned with the survey on which the grant to Phillips issued, with an indorsement on the warrant of a location made for Phillips, on the 17th of October, 1783, in the s??e words as that which was in the military book, and was now produced from thence. Also the plat annexed to Phillips' grant purported to have been made upon a location dated the 17th of October, 1783. The plaintiffs' counsel then stated, that the Court on a former occasion had said that the entry book could not be given in evidence, because by the law of this State the jury were to carry with them, when they retired, all such records as were given them in evidence; and that, on oyer, the record ought always to remain in one certain place; and if this jury could receive and carry it off, so could other juries; and as the book could not be given in evidence, the plaintiffs would not be allowed to give parol evidence by the keeper of the book, that this entry stood 85, and that other entries after this, as far as 88, and upwards of one hundred were dated in 1783; which fact proved that the entry 85 could not really have been upon the book after those of 1783, and of course must be misdated as to 1784, and that this evidence ought to be admitted because of the doubt raised by inspection of the copies.
But the Court, consisting of Humphreys and Powel, said this book is a record, and upon it depends all the titles for land in the military bounds. If we suffer one part of it to be explained by parol evidence, we must do so whenever it is called for, and shall thereby expose all such estates to be overturned by parol evidence.
This is an evil of too great magnitude to be endured; we will not let it in by making the decision that is now desired of us. The plaintiffs' counsel then offered to prove that, before the military entry book was ordered to be kept, it had been the common practice to make locations on the back of the warrants.
That would be to permit the same thing to be proved which we have just rejected; viz., that the true date of the entry is on the 17th of October, 1783, whereas we have just decided, that the date upon the book shall not be contradicted. This evidence can not be received.
The plaintiffs' counsel then offered two certified copies of entries from the book, standing after the third entry, No. 85, which bore date in 1783.
The object of the proof is to show that the entry dated in 1784 bears a wrong date, and should be the 17th of October, 1783. We will again, as explicitly as we can, declare our opinion. The date of the entry, as it stands on the book, ought not to be contradicted, explained, or altered by any parol evidence, nor by any evidence of custom, nor yet by any other entry upon the book itself. The plaintiffs proved by parol evidence, that certain commissioners, said to be appointed by North Carolina to run and mark the military line, described in 1783, c. 3, sec. 7, took the latitude of the Kentucky line, in the month of February, 1784, and ran fifty-five miles south, to Mount Pisgah; and some of the commissioners ran west from that point, and others east; that in running east the commissioners discovered on the first day, that they were declining too much to the north, and supposed the error to be occasioned by the snow, and the wetting of the needle. One of the commissioners then went back for another compass, but when it came it was equally erroneous with the other. That they went on marking the line about thirty-two miles; and the commissioners there left the surveyors, who went as far as Collins' River. And the plaintiffs' counsel further proved, that a due east line from Mount Pisgah would leave the lands in question to the north, and of course within the land described by the said Act of 1783, c. 3, sec. 7.
The plaintiffs' counsel opened this case, and stated that the plaintiffs were entitled to recover if they had an older grant, which covered the land in question unless the defendant had a special entry senior in date to such grant, followed by a grant thereupon. Here the plaintiffs have such elder grant, and the defendant has not such special entry. What is a special entry? It is that which gives notice, to others who see it, of the place intended to be surveyed; and no such notice was given here; for the surveyor might include the spring and be to the west, to the north, to the south, or to the east, as to all the land, except the small part between the spring and that line of the tract which was nearest. Allowing it to be a special entry, it ought to include not only the lick, but also the point two miles south of the boundary line, and, if both these points be included, the land in question will not be affected by a survey, whether that survey be made in a square or an oblong. And as to the lands in question lying to the south of the military line, they said that could not render the plaintiffs' grant void, for the Act of 1783, c. 3, sec. 7, does not say that the grants of the officers and soldiers shall be void if obtained for land beyond those bounds; although in the same act, section eight, grants obtained by others are declared void, which is also repeated in 1783, c. 2, sec. 12. And for another reason the plaintiffs' grant can not be deemed void. The marked line relied on by the defendant is really not so. Admitting that authority was given by the State of North Carolina to certain commissioners to run and mark the line described in the Act of 1783, c. 3, sec. 7, the acts of such commissioners are not valid unless they have pursued the authority given them; and they did not pursue their authority in this instance, because the...
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