Miller's Lessee v. Holt
| Decision Date | 31 May 1799 |
| Citation | 1 Tenn. 111 |
| Parties | MILLER'S LESSEE v. HOLT. |
| Court | Tennessee Circuit Court |
[ S. C., ante, 49; infra, 243, 308.]
Ejectment, plea not guilty.--The lessor of the plaintiff derived his title from a grant issued to Thomas King for 640 acres of land, dated the 8th of April, 1794, and registered the 4th of April, 1800. A deed from King to Miller, dated February 11, 1802, was produced, and also another grant for 640 acres, dated April the 30th, 1803, No. 315, upon an entry made in John Armstrong's office on the 9th of April, 1784, but the warrant upon this entry was removed and surveyed at the place now in contest.
Miller, for the defendant, objected to the reading of the grant to the lessor of the plaintiff, dated in April, 1803, being long after the filing of the declaration in ejectment. He insisted this paper certainly could not be read to support an action which was commenced before it had an existence; this grant did not issue until the 30th of April, 1803; the present action was commenced on the 10th of February, 1802.
The defendant deduced his claim from a grant issued to James King, dated the 19th of February, 1795, No. 200, registered July the 1st, 1804, for 5,000 acres upon a John Armstrong warrant, a deed from James King to Stockley Donelson, registered April 8, 1800. A general power of attorney from Stockley Donelson to John Hacket, dated 29th September, 1795.
The counsel for the lessor of the plaintiff, objected that this power could not be read as evidence upon a certificate of the probate and registration only, there being no law to authorize the recording powers of attorney.
In answer to this objection, it was observed by the defendant's counsel, that, under similar circumstances, the Court had, on a former occasion, admitted a letter of attorney to be read upon a certificate of probate and recording.
a1
It is not recollected that there is any act which directs that letters of attorney shall be recorded.
In the act establishing the fees of the countycourt clerks,d1 there is an allowance to the clerk for recording a power of attorney.‡For the present we are willing that the paper be read to the jury as a part of the title of the defendant, and if this should not be satisfactory the point can again be brought before the Court, when it can be more maturely considered. The defendant then proceeded in the deraignment of his title, by showing a deed from Stockley Donelson, by John Hacket, his attorney, to D. Scott for 250 acres, being part of the 5,000 acre tract, dated October the 31st, 1796, and a deed from Scott Hoxcy, dated December 24, 1799, for the same 250 acres, which includes the lands of which the defendant is in possession.
The counsel for the plaintiff objected to the reading of the deed from Scott to Hoxcy upon the certificate of registration, because it did not appear from that certificate, or any other, that the deed had been proved agreeably to law.
In answer to this objection, it was contended that the Court would presume probate, for otherwise the register could not legally register the deed, and the Court will presume that the register acted legally and with propriety; otherwise great inconvenience might arise from an inadvertent omission of this kind.
This deed, from the copy produced, does not appear to have been proved as the law requires before it could be admitted to registration; but as it should have been, it is said we ought to presume that the officer would not have put it on his books without previous probate. We are not of that opinion, nor do we believe the doctrine of presumption will warrant such an idea; if it does not, the reason and policy of the law, with respect to the registration of deeds, would be averse to such a presumption. No doubt but instances have and may occur where instruments of writing have been copied on the register's books, which the law has not directed to be placed there. The register is not by law authorized to take probates; this power is given to other officers; registers may think themselves authorized to copy writings offered, into their books upon such evidence as shall be produced; or perhaps without any, for the lawful fee, believing it not their province to judge of the legality of probates. Upon the death or resignation of a register, his books are handed over to his successor, who would no doubt certify any instrument copied on his books in the manner he might find. If no probate appeared he could not certify one if otherwise he could certify it.
The register is a ministerial officer whose acts in this respect are not to be viewed in the light of interlocutory steps in a suit at law, as to which presumption might be raised after a final determination of the cause.
Registration is the ultimate design of the laws as to the preservation of the intention of the parties; there is no other act to be done which would show that probate had been made, for it can not be dispensed with.
As a necessary measure to preserve the purity and verity of papers of this kind, it seems necessary it should appear that probate was made, otherwise a copy can not be received as evidence. Upon the defendant's failing in this chain of title he resorted to another, the evidence of which was produced.
A judgment was obtained by Joseph Beard against Stockley Donelson, upon which a fieri facias issued for $6.22 1/2, which was levied on the above 5,000 acres of land, and sold for $110 to Andrew Jackson, who obtained a sheriff's deed, dated April 13, 1801. Jackson gave Charles M'Clung a power of attorney to sell this land or a part it.
M'Clung, as attorney-in-fact for Jackson, by deed bearing date the 11th July, 1801, conveyed of this tract 250 acres to Holt, the defendant, being the land now in dispute. This deed appears to have intended for confirmation principally; it recites a chain of conveyances which had been formerly made, beginning with the grant to King, noticing several tiles, then to Hoxcy, and from him to Holt, all of which are noticed, except the deed to Holt, in the first attempt to deduce a title.
Miller, for the defendant, took another objection to the title of the plaintiff, supported by certified copies from the secretary's office of North Carolina; from these copies it appeared that Thomas King, under whose title the lessor of the plaintiff claims, obtained his grant upon a Carters warrant, No. 235, to William Baily, that two other grants had issued to Elisha Walling and William Baily, upon surveys having reference to warrants of the same number.
Under these circumstances it was contended that the grant to Thomas King was void, another grant having before issued upon the same warrant; and consequently the claim of Miller was void, he being in no better situation than King himself.
Scott, for the defendant, read a certified copy of the grant to Thomas King, from which it appeared that the survey was different from that read by the counsel for the plaintiff.
This copy accorded with the grant as altered....
To continue reading
Request your trial