Polk Lessee v. Wendal Al

Decision Date07 February 1815
PartiesPOLK'S LESSEE v. WENDAL & AL
CourtU.S. Supreme Court

Absent. LIVINGSTON, J. TODD, J. & STORY, J.

THIS case as stated by the chief justice in delivering the

opinion of the Court, was as follows:

This is a writ of error to a judgment in ejectment rendered in the Circuit Court of the United States, for the district of West Tennessee. On the trial, the Plaintiff below, who is also Plaintiff in error, relied on a patent regularly issued from the state of North Carolina, for 5000 acres of land, dated the 17th day of April, 1800, which patent included the lands in controversy.

The Defendants then offered in evidence a patent issued also from the state of North Carolina, and dated on the 28th of August, 1795, purporting to convey 25060 acres of land to John Sevier, which patent also comprehended the lands in controversy. To the reading of this grant the Plaintiff objected, because,

1. By the laws of the state of North Carolina no grant could lawfully issue for as large a number of acres as are included in that grant.

2. The amount of the consideration originally expressed in the said grant appears to have been torn out.

3. The said grant on its face appears fraudulent, the number of acres mentioned being 25060, the number of warrants forty of 640 acres each, and yet the courses and distances, mentioned in its body, include more than 50,000 acres.

These objections were over-ruled and the patent went to the jury. To this opinion of the Court the counsel for the Plaintiff excepted.

The counsel for the Plaintiff then offered to prove for the purpose of avoiding the said grant.

1. That the forty warrants of 640 acres each mentioned

in the said grant, purport, on their face, to have been issued by Landon Carter, entry taker of Washington county, and that the land covered by the said grant is situated between the Cumberland mountain, and Tennessee river and not within the said county of Washington.

2. That the consideration of ten pounds for every hundred acres was fraudulently inserted in the said grant, by prosurment of said grantee, John Sevier.

3. That no entries were made in the office of the entry taker of Washington or elsewhere authorizing the issuing of such warrants.

4. That the pretended warrants are forgeries.

5. That at the time of the cession of the western part of the state of North Carolina to the United States, and at the time of the ratification thereof by congress, on the ___ day of _____ 1790, the said pretended warrants did not exist, nor were any locations or entries in the offices of the entry taker of Washington county from which they appear to have issued, authorizing their issuance.

6. That no consideration for the said land was ever paid to the state of North Carolina or any of its officers.

And, to prove that since the execution of the said grant the consideration mentioned therein had been altered from 50 shillings to ten pounds, the counsel for the Plaintiff offered to read as evidence a letter addressed by the said John Sevier, to James Glasgow, then secretary of state for the state of North Carolina, in the words following, to wit:

'Jonesborough, 11th November, 1795.

'DEAR SIR,

'I am highly sensible of your goodness and friendship in executing my business at your office in the manner and form which I took the liberty to request. Permit me to solicit a completion of the small remainder of my business that remains in the hands of Mr. Gordon.

'Should there be no impropriety, should consider myself much obliged to have ten pounds inserted in the room of fifty shillings. I have directed Mr. Gordon to furnish unto you a plat of the amount of about 640 acres which I consider myself indebted to you provided you would accept the same in lieu of what I was indebted to you for fees, &c. which I beg you will please to accept in case you can conceive that the three warrants will be adequate to the sum I am indebted to you.

I am with sincere and great esteem,

Dear sir, your most obedient servant,

JOHN SEVIER.'

'Hon. James Glassgow.'

Endorsed thus,

'HON. MR. GLASSGOW, Secretary of State.'

'Mr. Gordon.'

The counsel for the Defendants objected to the reception of this testimony, and it was rejected by the Court. To this opinion also an exception was taken.

A general verdict was rendered for the Defendants, on which the Court gave judgment.

This judgment has been brought up to this Court by writ of error.

C. LEE, for the Plaintiff in error.

Two questions arise in this cause.

1. Whether the fraud does not vacate the grant to Sevier?

2. Whether the evidence of that fraud should not have been admitted:-

1. The invalidity of the grant to Sevier appears upon its face. It is mutilated by the erasure of the consideration. And it has been fraudulently altered in a material part.

By the law of North Carolina, the survey must be annexed to the patent, and is a substantial part of it. From this survey it appears that under 40 warrants, for 640 acres each, amounting to 25060 acres, there have been granted to him more than 50,000 acres.

These objections having been made at the trial below, ought to have excluded the patent from the consideration of the jury.

There is a difference between a public and a private grant. A patent must be issued according to the requisites of the law or it will be void. It takes effect merely by the provisions of the law, and if not made pursuant to law, can convey no title. 3 Co. 77, Fermor's case. 10 Co. 110 Legate's case. 6 Co. 55, Lord Chando's case. 5 Co. Barwick's case.—Co. Litt. 260.

In the case of a sale of land by a sheriff for taxes, the proceedings must be regular and according to the law which authorizes the sale, or it will be void. So under the bankrupt laws, and the Lord's act in England. The same rule of law applies to a grant from a state; and the party may take advantage of it, in ejectment. 1 Harris & M'Henry's reports, 145, The Lord Proprietary of Maryland v. Jennings & Al. So if a bond or release be offered in evidence, the other party may shew it was obtained by fraud. And if any objection appear upon the face of the instrument, the Court will take notice of it. 6 Cranch 70, O'Neale v. Thornton.

2. The Court ought to have permitted the Plaintiff to give evidence of the fraud and of the want of foundation for the patent. In ejectment the deeds are not declared upon, nor set forth in the proceedings, so that the opposite party has no opportunity to plead the fraud, or the erasure, &c. He can only produce these facts in evidence by way of objection so as to prevent such deeds from being read in evidence to the jury.

If the entry taker in Washington county had no authority to issue the warrants for these lands, they are void. The evidence of that fact ought therefore to have been admitted.

The evidence of collusion between Sevier and the secretary of state, and of the other facts stated in the bill of exceptions, ought to have been received. For however slight the evidence might have been of some of the facts, yet it ought to have been left to the jury. 6 Cranch 50, Maryland Ins. Co. v. Woods.

The Court below decided that no evidence could be given to invalidate the patent, except what regarded the entries.

Mr. Lee cited the following statutes of North Carolina, from Iredell's revised code, p. 205, the act of 1777, ch. 1, § 3, 4. Id. p. 322, the act of 1783, ch. 2, § 2.—id. p. 345, the act of 1784, April session, by which the lands were ceded to the United States. And the acts of 1784, October session, p. 386, ch. 19, § 6. 1778, p. 252.—1786, ch. 20, § 20.—1789, ch. 3, p. 467, and 1791, ch. 21, § 5.

JONES, centra.

1. The first objection was to the admission in evidence of the patent to Sevier, for any purpose. There was nothing on the face of the patent to make it void. It was not mutilated. There were blanks in it, but no mutilation; and there is no evidence that it was mutilated.

There could be only three kinds of consideration; fifty shillings—ten pounds—or military service. It could not by law be either the first or the last. It must therefore have been ten pounds.

The act of the officer carries a presumption that the proper consideration was paid; and the statute shows what that consideration ought to have been.

2. The next objection is that the grant comprehends 50,000 acres instead of 25,060.

But the grant is only for the 25,000, although the survey may include more. The statute which prohibits grants for more than 5,000 acres, does not vacate such grants. It is only directory to the officer; and such grants are recognized by the laws of North Carolina. 1784, ch. 19. The excess is no evidence of such fraud as will vacate the deed.

The Defendants were not bound to show the correctness of their entries; nor any thing else prior to the patent. The entries were merged in the patent.

As to the second bill of exceptions: it presents but one point. The only evidence offered and rejected was the letter of Sevier to Glassgow. For although it states that the Plaintiff offered to prove other facts, yet it does not state that he offered evidence of those facts.

But if the bill of exception imports that such evidence was offered, yet the Defendants were innocent purchasers. The contest is not between the original parties. They were not bound to look beyond the patent; and if the facts were proved, which the Plaintiff offered to prove, yet the patent is not thereby made void, but voidable by proper process. The king may avoid his grants where a subject could not, 10 Co. 113, Legate's case; but it must be either by quo warranto or scire facias, or information in the nature of a quo warranto; which is a process in the nature of a proceeding in rem: There is no instance where it has been declared void when brought collaterally into question. And although a statute declares a grant void, yet it is not actually void, but voidable. 7 Bac. Ab. 64, B. 6 Cranch, 180, Fletcher v. Peck.

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