Polk v. Hill

• Decision Date: 30 June 1811
• Citation: 2 Tenn. 118
• Parties: POLK v. HILL et al.
• Court: Tennessee Circuit Court

2 Tenn. 118

POLK
v.
HILL et al.

Circuit Court, D. Tennessee.

June, 1811.

This was an action of ejectment, to which the defendants pleaded not guilty, and issue joined. The plaintiff produced in evidence a grant from the state of North Carolina, to William Polk, for five thousand acres, dated April 17, 1800. This grant was founded on a removed warrant from John Armstrong's office, or the office opened pursuant to the act of 1783 (chapter 2).² The plaintiff proved his boundaries, and that the defendants were settled within them. The defendants produced a grant from the state of North Carolina to John Sevier for 25,060 acres, dated August 28, 1795, with mesne conveyances, deduced from that grant to themselves, and proved that the tract of the plaintiff for 5,000 acres lay wholly within the limits of the 25,060 acre tract under which they claimed. This grant on the face of it states that it issued by virtue of forty warrants of 640 acres each, but does not express whether they are county, John Armstrong's, military, or pre-emption warrants. A part of the grant is gone, by accident or otherwise. It is the part which expresses the consideration. Grants for John Armstrong's claims, and some of the county claims, express on the face the consideration of ten pounds for every hundred acres. Other county claims express the consideration of fifty shillings. Pre-emption warrants usually express a consideration of ten pounds per hundred. Military grants express a consideration of the ‘signal bravery and persevering zeal’ of the officer or soldier. That part of the grant to Sevier which is lost, respects the consideration received by the state. It stands thus: For and in consideration of _____ p _____ unds. This grant or patent was sealed with the great seal of the state of North Carolina, and had on its face all the requisite forms of a state patent.

The plaintiff's counsel objected to the reading of this grant in evidence to the jury on the following grounds, which they said they were able to substantiate:-First. By the laws of North Carolina, no grant could lawfully issue for as large a number of acres as are included in the grant to Sevier. Second. Because the amount of the consideration, originally expressed on the face of that grant, appears to have been torn out. Third. That said grant on its fact appears fraudulent, the number of acres mentioned being 25,060, 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. Fourth. For the purpose of avoiding said grant to Sevier, it was offered to be proved that the forty warrants of 640 acres each, mentioned in the grant, under which the defendants claim, purport on their face to have been issued by Landon Carter, entry taker of Washington county; and that the land covered by said grant is situate between Cumberland Mountain and Tennessee river, and not within said county of Washington. Fifth. That the consideration of ten pounds for every hundred (if originally in the grant), was fraudulently inserted by procurement of said John Sevier, the grantee. Sixth. That no entries were ever made in the office of the entry taker of Washington county, nor elsewhere, authorizing the issuing of such warrants. Seventh. The said pretended warrants are forgeries. Eighth. That at the time of the cession of the western part of the state of North Carolina, now the state of Tennessee (see Act N. C. 1789, c. 3), to the United States, and at the time of the ratification thereof by congress, on the 2d April, 1790, (Folwell's Ed. Laws U. S. 92), said pretended forty warrants did not exist, nor were any locations or entries in the office of the entry taker of Washington county, from which they appear to have issued, authorizing their issuance. Ninth. That no consideration for said land was ever paid to the state of North North Carolina, or any of its officers. Tenth. And for the purpose of proving that the consideration mentioned in said grant to John Sevier had been altered from fifty shillings to ten pounds, the counsel for the plaintiff offered to read in evidence a letter from the grantee, under whom the defendants claim, to the secretary of the state of North Carolina in the following words: ‘Jonesborough, 2 Nov., 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 in the hands of Mr. Gordon. Should there be no impropriety, I should consider myself much obliged to have ten pounds inserted in the room of fifty shillings. I have instructed Mr. Gordon to furnish you with a plat of the amount of three 640 acres, which I consider myself indebted to you for fees, etc., which I beg you will please accept, in case you can conceive that the three warrants will be adequate to the sum I am indebted to you.’ Eleventh. It was insisted that the person who had signed his name as deputy surveyor was not such, and therefore the grant was void.

Argument for the plaintiff:

The counsel for the plaintiff, in support of these objections to the reading of the grant, said that if the truth of the case could be come at, they would be able to show a more stupendous fraud than was ever perpetrated in any country. The Yazoo speculation was but as an atom in principle, compared to it. Can it be possible, in any civilized country whose laws are founded on the immutable principles of morality, that legal principles shall close the door against inquiry in such a case? According to the doctrine which had been lately advanced, if an officer of government do an act it must be binding on all, however unjust and iniquitous. No matter who is injured, the state or an individual, it must stand good. The face of the patent, it is admitted, imports a presumption that the officers of the government of the state of North Carolina, who issued it, acted honestly and according to law. But the principle is well known, that presumptions only stand until the contrary be shown. We are prepared to show the contrary if we are permitted. We state that these objections can be substantiated by proof. The court must presume it to be true in this stage of the cause. A fraudulent transaction any person may show, though he be a stranger, and make such act void. If this were not the case, no person could be safe, and fraud would be patronized instead of being suppressed. The idea of the acts of ministerial officers being beyond inquiry on the ground of fraud is absurd, and contrary to every principle to be found in the books. The governor and secretary of North Carolina who issued this grant are nothing more than ministerial officers. It is true the entry books of Washington county, whence we say these warrants issued, have been destroyed or accidentally lost; but we have an abstract showing the names of the enterers and the quantities entered. After the loss of the entry book, this abstract is the best evidence the nature of the case admits. Reporters of the decisions in other states show that fraud in obtaining grants may be inquired into. This has been particularly the case in Maryland and Virginia. There is no law of North Carolina authorizing the issuing of grants for more than five thousand acres in any case, except in a few cases to officers in the army of a superior grade. This will appear by reference to Act Nov. 1777, c. 1, § 3, respecting county claims; Act 1783, c. 3, § 9, John Armstrong's; and Act 1782, c. 2, § 6, the military claims. The act of 1784 (chapter 19), authorizing the consolidation of claims, is confined to the swamp lands near the seaboard in North Carolina. It never was intended to apply to the middle, and much less to the western, part of the state. On this ground, therefore, the grant is void, and ought not to be read to the jury. The secretary acts as a mere agent or attorney-in-fact in issuing the grant. If he exceed his powers, his act will be void. 1 Com. Dig. ‘Attorney,’ 13, p. 780. It has been urged that it was customary for North Carolina to consolidate claims for lands lying there, as well as in this state, and that usage is the safest interpreter of laws where they are doubtful. This we admit; but we never heard of such grants except in a few instances to Stockley Donnelson.

The second objection is also material. As the grant stands, there is no consideration expressed on the face of it. It is unintelligible. A consideration is indispensable to the validity of a deed (2 Bl. Comm. 296), and it was decided in the case of Butt's lessee in this court that the same rules and principles of law which apply to deeds apply to grants. An erasure or interlineation in a material part of a deed destroys its validity. Consequently the effect of this grant, as to the conveyance of the interest, is done away. False suggestions in a grant render it void agreeably to all the books; surely the part which expresses the consideration is material, and if there be any difference it must be the most so; it is therefore important this part of the grant should be preserved, and remain intelligible; without it the grant can have no effect. The consideration expressed having been torn out, it was incumbent on the defendants to produce a registered copy of the grant as the next best evidence; this they might have done; not having done so, it will be presumed this alteration was intentional and fraudulent.

The third objection to the reading this grant is very important, and on its result much of the interest of society depends. The grant is founded on forty warrants of 640 acres each (making 25,000 acres), and yet to calculate the acres included within the lines as called for in the grant, there are upwards of 50,000 acres. This could not have been a mere mistake in the secretary in making out the grant; the excess is too great for such presumption; there must have been fraud in this transaction...